Supreme Court hears oral arguments in UW gun case
June 20, 2019
LARAMIE — The Wyoming Supreme Court heard oral arguments Wednesday morning in a legal challenge regarding whether the University of Wyoming has the right to regulate firearm possession on campus.
In December, Albany County district court Judge Tori Kricken determined that the university does have that authority, in part because she determined that sloppy drafting of the 2010 Wyoming Firearms Freedom Act unwittingly stripped away some gun rights in the state.
After Wednesday’s oral arguments, the supreme court will issue a written decision “at a later date.”
It will likely be months before the supreme court issues a decision.
Both Bruce Salzburg, attorney for UW, and Jason Tangeman, the Laramie attorney representing a Uinta County man who challenged the school’s gun regulations, were stumped by a few questioned they fielded from justices during the hearing that lasted an hour.
Much of the discussion centered around W.S. 6-8-401, which states that “the sale, transfer, purchase, delivery, taxation, manufacture, ownership, transportation, storage, use and possession of firearms, weapons and ammunition shall be authorized, regulated and prohibited by the state, and regulation thereof is preempted by the state.”
Section 401, which has existed since 1995, also states that “no city, town, county, political subdivision or any other entity” can regulate firearms.
Arguments made by Tangeman and Salzburg centered around the question of whether UW counts as “the state” for the purpose of being allowed to regulate guns, or if Section 401’s meaning of “the state” refers only to the Legislature.
UW’s own brief before the supreme court even states that “the University is a political subdivision of the State of Wyoming.”
If political subdivisions aren’t allowed to regulate guns, Justice Keith Kautz wanted to know why UW would be any different.
“You stipulated that the university is a political subdivision,” Kautz said while addressing Salzburg. “So the political subdivision term (in Section 401) is different than the term political subdivision in your stipulation?”
“I can’t honestly answer that ‘yes,’” Salzburg conceded.
If the justices were to determine that UW is a political subdivision subject to the rules of Section 401, such a ruling would only limit the university’s ability to regulate guns if the court also overturns Kricken’s determination that Section 401 now only applies to guns manufactured in Wyoming.
In 2010, gun advocates in the Legislature attempted to update the section to add even more restrictions on gun regulations. However, they did so using the Wyoming Firearms Freedom Act, a law largely intended to skirt federal regulation of Wyoming-made guns.
The update to Section 401 was a tangentially-related “rider” to the law. However, the law also begins with an applicability clause: “This act shall apply to firearms, firearm accessories and ammunition that are manufactured in Wyoming.”
That applicability clause applies to the Section 401 update as well, Kricken said in December, meaning that, since 2010, the state’s pre-emption of gun regulations applies only to guns manufactured within the state.
Under Kricken’s ruling that upends the conventional interpretation of Section 401, local communities and political subdivisions can now regulate guns manufactured outside the state.
Tangeman argued before the high court that there are other parts of the Wyoming Firearms Freedom Act that indicate it doesn’t apply to Section 401.
“There’s an inherent inconsistency within all of the (Wyoming Firearms Freedom Act) statutes,” Tangeman said.
“Do you contend that it’s ambiguous,” Justice Kate Fox asked.
“Yes, in that regard,” Tangeman responded.
“In what regard?” she pressed him.
“It’s ambiguous because one part of the act, you could argue it incorporates the 1995 act of Section 401, and in other parts it does not,” he said.
Kautz lent credence to Tangeman’s argument.
“And there’s no statement anywhere in the WFFA that it is amending 401,” Kautz said.
Tangeman said Kricken’s interpretation creates “absurd” results, including limitations on regulating guns in Wyoming public schools.
Tangeman is a school board member of Albany County School District No. 1.
“As a school board trustee, it’s possible that our school district could take the Legislature’s invitation to promulgate rules and regulations allowing our teachers to concealed-carry firearms on campus,” he said. “But if we accept the district court’s interpretation and analysis, if one of those teachers doesn’t get his concealed carry permit as required by the statutes, it’s a complete defense so long as the gun is manufactured outside of Wyoming.”
While Kricken’s interpretation might have caused unwanted results, Salzburg argued that the the 2010 law isn’t ambiguous in that it definitely now limits Section 401 to Wyoming-made guns.
“And where the statute is not ambiguous, the court mustn’t have the opportunity to rewrite the statute under the guise of interpretation,” he said.
He argued that it should be the Legislature’s responsibility to “fix the problem” created by the drafting of the Wyoming Firearms Freedom Act.
“Within six weeks of the district court’s determination in this case, three bills were introduced in the 2019 Legislature. All three of them would’ve addressed this addition to the definition of this act,” Salzburg noted.
He argued that “the Legislature, at least as it exists now, accepts the determination of the district court.”
Kautz was skeptical.
“It sure seems to me that they could be saying, ‘We don’t think the district court knows what they’re talking about and we’re going to go to the Supreme Court and have that be confirmed,’” Kautz said. “It seems that (either argument) could be valid.”
“It seems to me that they had the opportunity to act and declined,” Justice Lynne Boomgaarden said earlier during Tangeman’s arguments.
The case before the Supreme Court comes after Lyle Williams, a Uinta County delegate to the Wyoming State Republican Party Convention last year, sued the university after UW police cited him for openly carrying his firearm during the political event at the UW Conference Center. Williams was not the only person attending the convention openly carrying a firearm in violation of UW's policy, but he was the only one cited.
If the Wyoming Supreme Court determines that state law doesn’t prevent the university for regulating gun possession, the justices might also need to consider whether UW’s current regulation violates the Second Amendment of the U.S. Constitution.
The university’s regulations state that its ban on guns applies to all “University-owned or operated buildings, equipment, or property,” including “all real property, other than buildings, owned or controlled by the Trustees of the University.”
The U.S. Supreme Court affirmed the right of universities to ban guns on campus in the 2008 landmark case District of Columbia v. Heller.
In that case, the court struck down the District of Columbia’s handgun ban while upholding “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”
Tangeman argued Wednesday that the Heller decision concerning “sensitive places” cannot apply to all university-owned property.
The UW Conference Center does not lie on the campus core and can’t be considered a “sensitive place,” he said.
The university also owns rural undeveloped property throughout the state, and Tangeman argued it would be silly to think the Heller definition of “sensitive places” applies to those lands.
Salzburg stated Wednesday that UW only seeks to prohibit guns “in or on its facilities.”
“Not everywhere on campus,” he said. “In or on its facilities, simply to protect the safety of students, professors and visitors.”
Tangeman was surprised by that assertion.
“That’s the first time I’ve heard that from the University of Wyoming,” he said. “I would just direct the court to the plain language of its own regulation. … It’s everywhere.”
Finally, if the supreme court decides that UW’s regulations don’t violate the Second Amendment, it might also need to consider whether the Wyoming Constitution and state law offers additional rights that require the court to applies “strict scrutiny” in determining whether gun bans are constitutional.
In American law, the standard of strict scrutiny means that courts should strike down a law that infringes on a constitutional right except in very narrow circumstances.
Under the Heller decision, courts typically now apply “intermediate scrutiny” — which has a lesser presumption of unconstitutionality of gun regulations.
Strict scrutiny now typically is only used when gun regulations limit the right of someone to possess a firearm in their own home for protection.
Tangeman, however, argued that strict scrutiny on gun bans in Wyoming should apply because of the added protections the state has built in.
The Wyoming Constitution states that “the right of citizens to bear arms in defense of themselves and of the state shall not be denied.”
Tangeman also noted that Section 401 affirms that “the right to keep and bear arms is a fundamental right.”
“In Wyoming case law … fundamental rights get strict scrutiny,” he said.
Fox wondered whether Section 401 oversteps the authority of state statute.
“I’m curious about whether it’s the Legislature’s role to determine what’s a fundamental right,” she said.
“I don’t have a good answer to that question,” Tangeman responded. “It’s a good question and … I would just take the position that the Legislature has determined it’s a fundamental right and maybe that’s something for this court to decide and not the Legislature.”
“I don’t think fundamental rights are created by the Legislature’s fiat,” Salzburg said.
Salzburg cited the 1985 U.S. Supreme Court decision in Regents of University of Michigan v. Ewing as determining that “fundamental rights” can only be created by the Constitution.
However, that decision doesn’t explicitly talk about “fundamental rights” at large.
Instead, it refers strictly to the fact that property rights and “substantive due process rights are created only by the Constitution.”