Tuesday, August 21, 2018

Professors Lawsuit Against Campus Carry Rejected by Fifth Circuit Court of Appeals

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A longshot appeal to the Fifth Circuit, to stop Texas Campus carry, has been rejected by a unanimous three judge panel of the Court.  Three professors at the University of Texas had filed the case on novel grounds. From uscourts.gov
Three professors from the University of Texas at Austin challenged a Texas law permitting the concealed carry of handguns on campus and a corresponding University policy prohibiting professors from banning such weapons in their classrooms. The professors argued that the law and policy violate the First Amendment, Second Amendment, and Equal Protection Clause of the Fourteenth Amendment. The district court dismissed the claims.

Two years ago, in July of 2016, three academics associated with the University of Texas sued the Texas AG, Ken Paxton, and several University of Texas officials. They were desperately attempting to stop the start of Campus carry in Texas, where some students who had Texas carry permits were allowed to carry personal defensive firearms on campus. The firearms had to be concealed.

A year later,  Judge Lee Yeakel dismissed the case, on the grounds that the defendants had not suffered any harm. Therefore they had no standing to sue. The professors decided to appeal to the Fifth Circuit Court of Appeals.  All of the professors are women. One, Dr. Glass, is a Liberal Arts Professor. The other two, Dr. Lisa Moore and Dr. Mia Carter, are professors of English. That may explain their ability to construct the novel arguments used in the case . From mystatesman.com:
Jennifer Lynn Glass, Lisa Moore and Mia Carter argued that their First Amendment right to academic freedom has been violated because free speech is chilled in classrooms out of concern that someone might be carrying a concealed handgun.

They also contended that their Second Amendment rights have been infringed because firearm usage is not sufficiently “well-regulated.” And they said their right to equal protection under the 14th Amendment has been violated because UT lacks a rational basis for deciding where concealed carry is permitted.

A three-judge panel of the 5th U.S. Circuit Court of Appeals unanimously rejected all those arguments Thursday, upholding the July 2017 dismissal of the case by U.S. District Judge Lee Yeakel of Austin.
At the Fifth Circuit, the three judge panel dismissed the appeal because merely claiming you are frightened of a possible outcome does not violate First Amendment protections. The Second Amendment protects the right of individuals to keep and bear arms, not the right of the state to restrict individuals from keeping and bearing arms.

The Fourteen Amendment claim was dismissed under "rational basis", which the Professors had admitted was the correct level of scrutiny for their claim  They said there was no rational basis for regulations of the University of Texas, insisted on by the State of Texas, which found that concealed carry could be restricted on some places in the University campus, such as research laboratories, but not others.  They claimed different regulations on private universities versus public universities, violated equal protection under the law.

The Fifth Circuit panel stated it was easy to find a rational basis for such disparities, such as the protection of private property rights at private universities.

Now the professors will evaluate if they wish to expend more treasure and time to ask for an en banc hearing of the entire Fifth Circuit. An en banc hearing would be voted on by the entire Fifth Circuit. If approved, the entire Circuit would hear the case.

I expect the entire Fifth Circuit would uphold the dismissal by the three judge panel. The opinion is well argued, and rests on solid precedent. The professors have the option of appealing to the Supreme Court. With the impending appointment of Judge Kavanaugh by President Trump to the Supreme Court, a successful Supreme Court appeal appears less likely.

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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