Guns on Campus & the Abdication of Individual Rights

Posted: September 2, 2011 in Uncategorized

(The following is an article written by one of our instructors for a law journal. Although it ventures into the political arena more than we normally like to, it makes some very good points. The views are his and do not necessarily reflect the views of Legal Heat as a company.)

How the gun debate proves the University of Idaho couldn’t care less about individual rights, despite what President Nellis tells the press.

A few short days ago the University of Idaho experienced a rare, but all too real, threat. Fresh off his resignation, University of Idaho professor Ernesto A. Bustamante took the life of graduate student Katy Benoit before taking his own life during a standoff with police a mere stone’s throw from the University campus.  In the aftermath of the shooting President Nellis issued a surprising, and to me offensive, statement. Responding to criticism from the press regarding the University’s reluctance to release Bustamante’s personnel file, President Nellis said the following:

Throughout the process the University remains cognizant and respectful of the individual rights of all persons involved. The Universitys confidentiality policies with respect to student information, personnel records and ongoing investigations are followed, within the bounds of safety. (emphasis added)

President Nellis could have cited any number of reasons for not releasing the information. Public record laws, looming lawsuits, internal investigations, any of these would be perfectly reasonable. It was when I heard him use the words individual rights that I was taken aback. I would applaud President Nellis’ apparent dedication to respecting the individual rights of both students and faculty, if I didn’t know better. Don’t get me wrong, he has gone to great lengths to emphasize that he is sincerely concerned about the individual rights of the deceased homicidal maniac Bustamante, it is only the law abiding student body that he appears to care less about.

If you know me at all you may have guessed that I am alluding to the University’s prohibition of firearms on campus. On several occasions we have formally requested that the University justify their position on this matter, to no avail. I have personally requested an exception to the prohibition, once again with no response. Alas, it appears the deep-rooted concern for individual rights President Nellis so emphatically proclaims from his tower, simply does not extend to the subjects clamoring below.

I believe the policy is unconstitutional, misinformed, and execrable; allow me to expand on those claims.

Unconstitutional

I am not a constitutional scholar. There are several students, not to mention faculty, at the College of Law that could offer a much better analysis than I ever could. What I will say is that the University of Idaho is a state university. It is on state land and receives tens of millions of taxpayer dollars. As a state organization the university is subject to the laws of this state, or at least it should be, as well as Article I Section 11 of the Idaho Constitution. The case law on this matter is unequivocal. I will step aside and let the current Idaho precedent speak for itself:

“Under these constitutional provisions, the legislature has no power to prohibit a citizen from bearing arms in any portion of the state of Idaho, whether within or without the corporate limits of cities, towns, and villages. The legislature may, as expressly provided in our state constitution, regulate the exercise of this right, but may not prohibit it.” In re Brickey, 70 P. 609, 609 (Idaho 1902). (Emphasis added).

“Under constitutional provision the Legislature may not deny the right to bear arms, but can only regulate the exercise of the right, Legislature may prohibit carrying concealed weapons, or prescribe character of arms that may be kept, and various other things of a regulatory character.” State v. Woodward, 74 P.2d 92 (Idaho 1937). (Emphasis added).

The question then arises, if the Idaho legislature lacks the power to enforce a firearm prohibition, from where does the University derive its power to do so? Is the University subservient to the legislature, or does it posses powers that extend beyond the bounds of our constitution? A mythical fourth branch of government, if you will, that wields the power to pick and choose which civil rights will be upheld, and which will be trampled upon. This frightening idealism reared its ugly head last semester when a very well respected law professor publicly denounced a student’s support of the right to bear arms and stated, “I don’t care what your constitutional rights say, you will not bring a gun into my classroom young man!” When a group of students approached the administration with the matter they were told they need to realize that a teacher has the right to conduct their classroom in whatever manner they please. And thus marches onward the unkempt powers of the university, Constitution be damned.

Misinformed

Last year I attended two Faculty Senate meetings regarding the prohibition of firearms on campus. I was amazed as I listened to these two dozen faculty members, most of which have a JD or PHD on their name tags, demonstrate Olympic caliber ignorance with regards to firearms. One would have to try, with great persistence, to obtain the amount of ignorance our Faculty Senate possessed on this matter. It is no great surprise, then, that when a group of individuals is charged with creating a policy regarding a matter that they are completely unfamiliar with, the result will be an illogical policy. That is precisely what we have here.

But Phil, guns hurt people! That’s why they’re prohibited on campus, to protect students.”

I am as sublimely indifferent to the harm caused by firearms as I am to the harm caused by pornography or religious philosophy. In either regard, the constitution has plainly spoken and that is enough for me. The issue of harm might be pertinent to a discussion regarding amending the constitution, but it is never relevant to upholding it. As mentioned above, however, the University appears indifferent to the Constitution, so let’s analyze the potential harms of having firearms on campus.

The Risk of Firearms vs. Other Risks

In 2009 roughly 124 million people lived in households that owned a total of roughly 270 million firearms.[i] During 2009 there were 588 deaths resulting from firearm accidents or negligent handling of a firearm.[ii] This resulted in a risk of 0.2 per 100,000 persons.[iii] During the same time period there were 30,504 deaths caused by accidental poisoning and exposure to noxious substances, such as household cleaning agents.[iv] The risk of death from accidental poisoning is 9.9 per 100,000. Contrasting the figures, a student on campus is nearly fifty times more likely to be killed by ingesting common household items than they are to be killed by a negligently handled/stored firearm. The risk of a fatality resulting from a car accident is roughly 11 per 100,000, or fifty-five times more likely to occur than an accidental firearm death.[v]

In sum, if the University was really worried about student safety they would prohibit the possession of poisonous substances in on campus housing (like Drano or Anti-freeze), or perhaps enforce a ban on vehicles or bicycles. Or they could simply do what a state institution should do, and abide by the Idaho Constitution.

Risk vs. Utility of Firearms

The Department of Justice states that there are 108,000 successful defensive uses of a firearm each year in the United States.[vi] This figure equates to 35 defensive uses of a firearm per 100,000 persons each year. When you contrast the likelihood of an accidental firearm fatality (0.2 per 100,000) with the likelihood that a student would need a firearm to defend himself (35 per 100,000), it becomes evident that a firearm is 175 times more likely to be used in a justified self-defense situation than it is to result in an accidental death.

Precedence for Guns on Campus

Many people are surprised to learn there are thousands of schools in America that do not prohibit firearms, nearly one thousand in Utah alone. During its 2004 General Session, the Utah Legislature passed Utah Code section 63-98-102, a statute prohibiting state and local entities from enacting or enforcing any ordinance, regulation, rule, or policy that in “any way inhibits or restricts the possession or use of firearms on either public or private property.”[vii] In 2006 the Supreme Court of the State of Utah clarified that Section 63-98-102 did in fact prohibit primary, secondary, and post-secondary schools from enacting any policy that prohibits the possession of firearms on campus or is otherwise inconsistent with state law.[viii] The result of this ruling was that firearms were not only allowed in on campus housing, but also the grounds and buildings of any, and all, public schools in the state of Utah. Utah has ten public universities and 899 primary and secondary schools, all of which have allowed firearms on campus since at least 2006.[ix]  Currently over 44,000 students, faculty and staff work and study at the University of Utah, more than the student body of Idaho State University, Boise State University, and the University of Idaho combined.[x] There are over 320,000 people in possession of a Utah concealed firearm permit – which permit allows them to carry onto school campuses – and it is conservatively estimated that 5,000 firearms are carried onto school grounds each day in Utah, resulting in at least 875,000 separate occurrences during a 175 day school year.[xi]  Of the hundreds of thousands of yearly occurrences, in Utah alone, there has not been a single documented negative incident of any kind involving a firearm on any Utah school campus, ever.

This is consistent with the several other college campuses nationwide that likewise permit possession of lawful firearms. After researching the issue I was unable to find a single harmful incident that has ever resulted from a lawfully possessed firearm on a college campus, although I was able to find several occurrences where firearms were successfully used by students and faculty in self-defense. It is of note that each and every incident involving the unlawful use of a firearm on campus, including the dozens of mass campus shootings, occurred on a University campus that had a zero tolerance firearms policy similar to that which the University of Idaho has in place at the current time.

The Policy Problem

Finally, as a policy matter, the idea of adults being required by a state to outsource their most fundamental of liberties – the right to self-defense – to a third-party is regressive at best. I was raised to be as autonomous as possible. From my early childhood I despised the idea of someone else being required to do something for me that I was perfectly capable of doing for myself. This idealism is the reason my wife and I have never accepted a single penny of federal aid (no Pell Grants, food stamps, WIC, Medicaid, etc.), and instead embarked on a novel voyage of working and paying for our own stuff. We buy our child’s food and diapers, pay our own medical bills, pay for our own education, live in our own house, and don’t otherwise burden taxpayers with providing for our subsistence. I believe this is good policy.

Just as I find the idea of others paying for my food repugnant, I am equally appalled by the idea of relying on an unarmed, inadequately trained, university paid security guard to protect me from harm. Like buying food, protecting myself is also something I am perfectly capable of doing on my own. I own a nationwide firearm training company and I have various other formal certifications that ensure I am not only competent with the safe use of a firearm, but also possess similar training to that required to become a law enforcement officer. I realize that the likelihood of needing to use a firearm in self-defense is very small, especially on campus, but I believe the even greater potential harm is in the dependency this policy perpetuates.

The University of Idaho, in its Vision Statement, states that one of its primary purposes is to prepare its students for the world and ensure a sustainable future. If that really is its purpose, then it should be doing everything possible to encourage students to take responsibility for their own life, instead of fostering an expectation of paternal care. Which paternal care, by the way, has failed time and time again to provide any sort of security to those who put their trust in it. Katy Benoit wrote a letter to the University of Idaho three months before her life was taken. In the letter Katy explains, in great detail, how Bustamante (her professor) had pointed a loaded firearm at her head on three occasions and taken other very serious actions that made Katy fear for her life. (READ HER LETTER HERE). What did the University do in response to these extremely serious allegations? Nothing. They ignored the allegations, Bustamante retained his job (he ultimately resigned hours before the shooting), and the University continued to pay him to interact with other students. The University’s ability to protect students has never been more clear than in this tragic case, they simply can’t do it. If the University can’t protect a student with three months notice (and the shooter is one of their employees), how could they possibly protect students with two minutes notice?

Stop infringing on my rights, stop harming students with your illogical policies, educate yourself on the issue, and remove the firearm ban on campus.

Molōn labe,

 Phillip Nelsen


[i] U.S. Department of Commerce, Bureau of the Census, Statistical Abstract of the United States (Washington, DC: U.S. Government Printing Office, 2009).

[ii] Center for Disease Control, National Vital Statistics Report <http://www.cdc.gov/nchs/data/nvsr/nvsr59/ nvsr59_04.pdf>  (last updated March 16, 2011).

[iii] Id.

[iv] Id.

[v] National Highway Traffic Safety Administration, Motor Vehicle Traffic Crashes <http://www-fars.nhtsa.dot.gov/Main/index.aspx&gt; (last visited 07/22/2011).

[vi] U.S. Department of Justice, Guns in America <https://www.ncjrs.gov/pdffiles/165476.pdf&gt; (last updated May 1997).

[vii] Univ. of Utah v. Shurtleff, 2006 UT 51, 144 P.3d 1109.

[viii] Id., Utah Code Ann. § 53-5a-102 (West).

[ix] Utah Education Bug, Utah Public School Statistics <http://utah.educationbug.org/public-schools/>  (last visited July 20, 2011).

[x] Univ. of Utah v. Shurtleff, 2006 UT 51, 144 P.3d 1109

[xi] Utah Department of Public Safety, Firearm Statistical Review Second Quarter 2011 <http://publicsafety.utah.gov/bci/documents/2011 Q2.pdf> (last visited July 20, 2011)

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Comments
  1. Truly an outstanding argument for Liberty. Phil you should consider writing a book if you haven’t already.

  2. The assumption that government can rescue us from all problems, and it’s not the individual’s responsibility to plan for unforeseen circumstances, causes behavior changes that magnify all crises through a constant erosion of Liberty. — Ron Paul, Liberty Defined