Yesterday, the Oregon University System and the State Board of Higher Education (OUS) issued its new policy regarding guns on campus. The new policy interprets an earlier Oregon Court of Appeals decision (Doe v. Medford School District 549C. OUS states that the opinion “distinguished between attempts to ‘regulate’ firearms—which would likely be preempted by the Oregon Legislature—and internal policies regarding employment or property.” Late in 2011, the Oregon Court of Appeals determined that Oregon law preempted OUS’s current ban on firearms.
OUS’s new policy seeks to control only its property and those affiliated with the universities. However, the policy defines affiliates broadly. For example, anyone attending courses at an OUS institution, all business partners, any person attending any ticketed event, anyone “leasing, renting, or reserving” OUS property. The next section notes that no one can “possess a firearm” in any OUS building, at any OUS sporting or performance venue, or at any OUS workplace. In this way, OUS is simply regulating its own property and employees.
Try as I might, I cannot think of any way an individual, besides those involved in military exercises or peace officers, that could carry a firearm on campus. In this way, the regulation is equivalent to a full ban on OUS property. Even if the distinction made by OUS passes muster in terms of pre-emption in Oregon courts, there is still the question of analysis under the 2nd Amendment. Laws restricting the ability to keep and bear arms must pass strict scrutiny due to the Court’s recognition of the fundamental nature of this right. Can OUS overcome this test?
The right to keep and bear arms was incorporated to the states in MacDonald v. City of Chicago, IL (2010). In District of Columbia v. Heller (2008), Justice Scalia noted that “…nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms…in sensitive places such as schools…”. Perhaps I am mistaken, but my reading of the eminent justice’s language suggests it is not aimed at higher education. Like many campuses, Oregon State University has a large campus encompassing green and recreational spaces, living quarters, research facilities, professional offices, libraries, food service venues, etc. The breadth of the campus and the facilities therein hardly seem to be within the narrow exceptions to which Justice Scalia refers. Therefore the question remains can OUS ban firearms from all its employees, affiliates, and contractors as well as ban firearms from all OUS buildings and ticketed events? Would the interest in safety and security be compelling? Is this a narrowly tailored policy?
 Oregon Firearms Educational Foundation v. Board of Higher Education and Oregon University System (2011)
 There are exceptions for law enforcement and military personnel.
 My co-blogger, Liane Kosaki, notes that Wisconsin has legalized concealed carry, and gun possession cannot be banned on state owned grounds, including the University of Wisconsin, Madison. The University can ban guns from university buildings if all buildings post signs.