Firearms in Student Housing: California Penal Code 626.9 and the Second Amendment

I visited UCLA last weekend. While I was there, I visited Weyburn Terrace, an apartment complex for UCLA graduate students. UCLA's website describing the housing is here. In a nutshell, Weyburn Terrace consists of apartment-style housing for graduate students only, and it is owned and operated by the school.

When I visited, I noticed a new sign on the main entrance of the building that had not been there during my time at UCLA Law. Here is a picture of the sign:

The picture is a little blurry, and in case you have trouble making it out, it says:

Notice: This property is owned and/or operated by the Regents of the University of California.

IT IS UNLAWFUL TO BRING OR POSSESS A FIREARM ON THESE GROUNDS PER CALIFORNIA PENAL CODE SECTION 626.9(H)

Violators will be prosecuted to the fullest extent of the law and subject to incarceration in state prison.

California Penal Code section 626.9(h) states:

Notwithstanding Section 25605, any person who brings or possesses a loaded firearm upon the grounds of a campus of, or buildings owned or operated for student housing, teaching, research, or administration by, a public or private university or college, that are contiguous or are clearly marked university property, unless it is with the written permission of the university or college president, his or her designee, or equivalent university or college authority, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years. Notwithstanding subdivision (k), a university or college shall post a prominent notice at primary entrances on noncontiguous property stating that firearms are prohibited on that property pursuant to this subdivision.

The sign's citation is not entirely accurate, because section 626.9(h) only applies to loaded firearms. But unloaded firearms are prohibited as well under section 626.9(i). This means that guns -- loaded or unloaded -- are prohibited in buildings used for student housing in California universities or colleges.

Is this prohibition constitutional? I explored the question in my first published paper, Second Amendment Challenges to Student Housing Firearms Bans: The Strength of the Home Analogy.



In that paper, I examine the United States Supreme Court decision, District of Columbia v. Heller. Heller established that under the Second Amendment there is an individual right to keep and bear arms. The Court struck down a District of Columbia law prohibiting the possession of firearms in homes as violating this right. Holding that the core purpose of the Second Amendment is self-defense, the Court noted that the need to have firearms for self-defense was "most acute" in the home. But the Court also stated that its opinion would not disrupt "longstanding prohibitions" on firearms in a variety of areas, including in schools and on government property.

These different parts of the Heller opinion raise the question: do bans on firearms in student housing violate the Second Amendment? Government-owned student housing may be characterized as school and government property -- two areas the Heller Court suggested firearm bans may still properly cover. But students who live in college or university housing may argue that this space is their home, and is therefore the area where the the need for firearms for self-defense purposes is most acute.

To my knowledge, courts have not yet squarely addressed the constitutionality of firearm prohibitions in student housing. In my paper, I argue that students may have stronger Second Amendment claims if they can analogize their housing to the homes discussed in Heller. Students who live in apartment-style housing, where the only difference between the student housing and other apartments is that the school is the landlord, may have a stronger argument that they have a right to possess firearms for self-defense purposes in that location. Students who live in dormitories, where private space is likely to be far more limited than in typical apartments, may have a weaker Second Amendment argument.

As time goes on, courts may end up sorting through these issues. One notable decision issued since I wrote my paper is Morris v. U.S. Army Corps of Engineers, where the Federal District Court of Idaho held that the government cannot prohibit firearms in tents on government-owned recreation areas. This suggests that the Second Amendment may protect firearm possession even on government property so long as the person challenging the restriction has a home-like space on that property.

In the meantime, I certainly do not recommend that students flout the law and possess firearms in California student housing. The law is clear, and the penalties for violating the law are steep. But in some instances -- particularly in complexes like Weyburn Terrace with apartment-style housing that is functionally indistinguishable from normal apartment complexes -- I think California Penal Code section 626.9 may face significant constitutional obstacles if it is challenged.