November 12, 2013 in City

Gonzaga dispute raises issue of gun rights v. property rights

By The Spokesman-Review
 
Jesse Tinsley photoBuy this photo

Erik Fagan, left, and Dan McIntosh talk about their predicament Friday, Nov. 8, 2013, at their apartment in the Gonzaga University neighborhood. They have been placed on probation for having a gun in a campus apartment, which they used to repel a homeless man demanding money.
(Full-size photo)

Two Gonzaga University students disciplined for possessing a gun they used to scare off a man they suspected of attempting to force his way into their school-owned housing have sparked a national debate pitting gun rights against private property rights.

Seniors Erik Fagan and Daniel McIntosh say they were protecting themselves in their off-campus apartment with weapons assured them by the Second Amendment. But the apartment complex is owned by Gonzaga, which — like many universities — has chosen to prohibit firearms on its campus and in its buildings.

Additionally, courts at all levels have upheld the rights of “sensitive locations,” which includes learning institutions, to draft policies designed to foster safe environments but that some may argue trample on their civil rights.

“From a constitutional perspective, this is an easy case,” said Stewart Jay, a professor at the University of Washington School of Law. “Neither the Second Amendment nor any other part of the Constitution applies because Gonzaga is a private university.”

That standard could soon be used by landlords at privately owned apartment buildings, too, said Jim Wiard, executive director of the Washington Multi-Family Housing Association, an organization representing property managers statewide. The group has not yet told its members whether to draft lease clauses outlawing firearms on their property, but Wiard said he could see a trend against allowing firearms in rental units similar to how landlords nix smoking in their buildings.

“What we found in that experience is a private property owner can make any limitation they would like,” Wiard said of the anti-smoking movement. “You have to have a business reason for it and make sure it doesn’t violate any fair housing laws.”

Wiard said his group had received requests from landlords in King County for guidance on the issue, but that the organization decided there were merits on both sides and stayed out of the debate.

Schools have much clearer legal authority to curtail gun rights, based on decisions by the U.S. Supreme Court and closer to home at the University of Idaho. In its landmark 2008 decision District of Columbia v. Heller, the nation’s highest court ruled the federal government could not strip homeowners of their right to possess handguns in the home but also said the Second Amendment was not absolute.

“We do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose,” wrote Justice Antonin Scalia for the majority. Among the places where gun rights could be curtailed: so-called “sensitive areas, such as schools and government buildings.”

A Latah County court relied on that opinion when it denied a claim in 2011 by a University of Idaho law student his Second Amendment rights were being denied by his on-campus housing agreement, which prohibits firearms on campus and in all university buildings.

“Like a post office parking lot, government building, or national park, the University’s property is a sensitive place due to the large number of people (including children) who congregate there for recreational, educational and expressive purposes,” Judge John Stegner wrote in denying the claim.

Many universities prohibit the possession of firearms on school grounds. Washington State University codified its ban on campus firearms in a 2006 state law; the University of Washington’s similar ban has its roots in polices developed by the Board of Regents in 1972. Gonzaga leadership announced over the weekend plans to revisit their firearms policy, which outlaws possession of guns “at any location on campus, including university residential facilities and privately owned vehicles.”

Fagan and McIntosh appeared on national media Monday morning, reiterating plans to appeal the probation Gonzaga has imposed.

Editor’s note: An earlier version of this article contained awkward wording that may have given some readers a flawed impression of why the students were disciplined.

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