Attorney General Ken Cuccinelli issued an advisory opinion on firearms on campuses (PDF) a few days ago. Before I even read it, I knew I’d be torn about his conclusions, whatever they would prove to be. I own a few firearms (long guns, not handguns), and I paid close attention to Heller a few years ago, though I didn’t root for either side in that case—it was just clarity that I’d hoped for. Sen. Emmett Hanger (R-Mount Solon) had asked Cuccinelli for his opinion on whether UVA may prohibit firearms within university buildings, a topic on which there’s been a fair amount of debate over in the past few years, especially after the 2007 Virginia Tech massacre. Cuccinelli’s response was:
It is my opinion that, under the present state of the law, the University lawfully may promulgate a policy that prohibits persons from openly carrying a firearm in the buildings that are subject to the policy. It is further my opinion that with respect to persons who have a concealed carry permit, because the University adopted a policy rather than a regulation, it has not “otherwise prohibited by law” persons with a concealed carry permit from possessing a handgun, and, therefore, the policies may not be used to prohibit persons with such a permit from carrying a concealed firearm into the buildings covered by the policy.
In short, Cuccinelli finds that universities have the power to enact such prohibitions. (In Heller, Justice Antonin Scalia, writing for the majority, wrote that “nothing in our opinion should be taken to cast doubt on…laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” So the SCOTUS provides backup on this point.) But there is that bit of important hair-splitting, the matter of a “policy” vs. a “regulation.” What’s the difference? Well, § 18.2-308 (“Personal protection; carrying concealed weapons; when lawful to carry”) says:
The granting of a concealed handgun permit shall not thereby authorize the possession of any handgun or other weapon on property or in places where such possession is otherwise prohibited by law or is prohibited by the owner of private property.
“Prohibited by law.” So what’s a “law”? We find that in Title 2.2, Chapter 40 of the state code (“Administrative Process Act”), which leads with a listing of definitions, including this definition of a regulation:
“Rule” or “regulation” means any statement of general application, having the force of law, affecting the rights or conduct of any person, adopted by an agency in accordance with the authority conferred on it by applicable basic laws.
Why is the ban a policy and not a regulation? I have no idea. I speculate that regulations require the Board of Visitors to approve them, and policies do not, but I’m really just making that up. Presumably the university could address this by simply making this prohibition a regulation and that would be that.
There is one bit of Cuccinelli’s decision that I’m not totally convinced of, though it doesn’t help that I’m not attorney. In support of his conclusion that a policy does not have the force of law, he cites the definition of regulation (as I have, above), but “absence of evidence is not evidence of absence,” as Carl Sagan once wrote. Cuccinelli’s only support of the idea that this is an actual matter of state law comes in the form of a citation of a case, in footnote 17, wherein he writes:
See also Woods v. Commonwealth, 26 Va. App. 450, 457, n. 3, 495 S.E.2d 505,509 n. 3 (1998) (“a statement of policy does not have the force of law ….”) (quoting Shenango Tshp. Bd. of Supvsrs. v. Pa. Pub. Util. Comm’n, 686 A.2d 910, 914 (Pa. Commw. Ct. 1996)).
So I did see also Woods v. Commonwealth, and I’m not impressed. A footnote on page 9 of that decision includes a series of examples of “other jurisdictions [that] recognize the power of administrative agencies to adopt interpretative rules or guidelines,” with quotes from decisions from Massachusetts, Maryland, Pennsylvania, Rhode Island, and West Virginia. These quotes are just examples within a footnote—the words in those quotes are not standing in for the court’s own, in the manner of my use of the quote from Sagan above. It smacks of desperation for Cuccinelli to lean on this as his sole affirmative evidence that there is precedent for the notion that a policy does not have the force of law. I’m not saying that a policy is law. I have no idea. But if this is the best he’s got, I’m not real confident that it’s good enough.
I am glad to have this opinion as the basis to begin a larger discussion about this, but I hope that smarter folks than me (and less partisan folks than Cuccinelli) will weigh in on the specifics of this in the weeks ahead.