Gun owners love to talk about “rights.” Rights are so essential to our politics that we frame every issue in terms of the same, without even realizing that other formulations are possible.
Is there any American political issue that doesn’t get this treatment? The federal government tells us that same-sex marriage is a fundamental right, and that Title IX guarantees a woman’s civil right to educational opportunity equal to that of a man.
However, rights have vague origins, and few even agree as to which rights exist. Case in point: Neither the United Nations’ Universal Declaration of Human Rights nor the Charter of Fundamental Rights of the European Union claim that the rights enumerated therein are God-given. Nor do they mention an individual right to be armed. Here in the United States, our founding documents state that rights come from the Creator, and that there is a right to bear arms. Yet only about half of the country seems to take either notion seriously.
There may be good reasons to formulate pro-gun policies that have nothing to do with rights, which is still a fairly recent legal concept in human history. But this is a debate for another day (watch this space). Rights are a foundational–if imperfect– feature of American law, and that is unlikely to change soon.
Which brings us to campus carry.
Last session, the State of Texas removed most of the prohibitions against carrying concealed weapons in public university buildings. Private universities are still allowed to ban weapons. This compromise was said to balance the right to bear arms against the rights of property owners, in this case the private universities’ governing bodies.
At face value, this seems reasonable. Most judicial opinions weigh various rights against one another or against some perceived state interest. But when fundamental rights are abrogated, courts rarely concern themselves whether they are infringed by a private or public entity– and with good reason.
Consider a thought experiment. Imagine a private university, as part of its code of conduct, forbade its adult students from voting in public elections while they attended classes there. If any university were able (and foolish enough) to enforce such a provision, it would be promptly sued in federal court, probably by the Department of Justice itself. No court in the nation would accept the defense that the institution’s private status allows it demand that students relinquish their voting rights.
The reason is that our laws emphasize individual, fundamental rights over mere contractual or property rights of corporate bodies. The Supreme Court wrote that “the right to keep and bear arms is fundamental to our scheme of ordered liberty” (McDonald v. City of Chicago, 2010), thereby affirming an individual Constitutional right to own weapons in one’s home. This is, at the very least, a definitive strike against private colleges’ gun ban loophole regarding students who live on campus. Baylor University wouldn’t dare state in court that its private status exempts it from federal civil rights law, or that its privately-owned dorms are “Title IX-free zones.” Why, then, is Baylor allowed to enforce anti-gun dorm rules that effectively prevent residents from owning weapons? Does this not violate the very rights that the Court affirmed in McDonald?
One may object that Title IX is distinguishable, because it only applies to universities that accept federal money. In other words, those who take government money must operate by government rules. This is a fair point. But all Texas college students are eligible to apply for the Tuition Equalization Grant (Texas Education Code, §61.221). With the Republicans dominating the Legislature, it should be trivial to pass a law that reserves state college money to those institutions that allow their students and staff to be armed. If the Federal government can impose Title IX this way, why can’t Texas use similar legislation to defend gun rights?
Despite the injustice, the courts are unlikely to undo the balancing act performed only two years ago by the Legislature. Now that the predicted mass shootings have failed to materialize after six months of licensed campus carry at public colleges, pro-gun legislators should act while they still have the momentum and close the private university loophole.