Virginia AG Says Carry Permits Trump UVA ‘No-Guns’ Policy

[PegLeg45]

This in from Virginia:

Virginia AG Cuccinelli Says Carry Permits Trump UVA ‘No-Guns’ Policy

In response to an inquiry by Senator Emmett W. Hanger, Jr. (R – District 24), on July 1st Virginia Attorney General Ken Cuccinelli issued an opinion  addressing the constitutionality and validity of a University of Virginia policy banning  the “possession, storage or use of any firearm, weapon, ammunition, or explosives within any University facility by anyone, except a law enforcement officer, without the prior written permission of the University’s Chief of Police.”

In the opinion, Attorney General Cuccinelli distinguished his analysis between the constitutional right to open carry and the statutory privilege granted by a concealed handgun permit.

As might be expected, much of the opinion was concerned with analogizing to DiGiacinto v. Rector and Visitors of George Mason University.  In DiGiacinto, decided January 13th of this year, the Virginia Supreme Court held that George Mason University’s regulation banning firearms in university buildings was constitutional.

However, the key distinction between the regulation at issue in DiGiacinto and UVA’s policy is a matter of administrative law.  In Virginia, regulations are promulgated via the due process protections in Virginia’s Administrative Process Act, and when properly promulgated have the force and effect of law.  Policies on the other hand do not have the force of law nor can they survive a direct conflict with a regulation or a statute.

-------------------

Disappointingly, the opinion simultaneously held that such a policy, developed subject to the powers statutorily granted to UVA to formulate such policies, and sufficiently narrowly tailored, would prohibit the open carry of firearms, even by permit holders, subjecting offenders to possible trespassing charges.

It is interesting to note that Attorney General Cuccinelli, who was criticized by some for his office’s defense of GMU in DiGiacinto, took the opportunity to make a pro-gun editorial comment in the UVA opinion.

    “It certainly can be argued that such policies are ineffectual because persons who wish to perpetrate violence will ignore them, and that the net effect of such policies is to leave defenseless the law-abiding citizens who follow these policies. The task at hand, however, is not to evaluate the desirability of such policies. Instead, the role of the Office is to assess the lawfulness of these policies in light of the law as it presently exists in Virginia.”

The lesson to be taken from both DiGiacinto and this opinion is that preemption needs to be expanded to cover agency action.  I expect that this will be a continuing goal of the Virginia Citizens Defense League in 2012.

http://monachuslex.com/?p=100

[kmitch200]

“It certainly can be argued that such policies are ineffectual because persons who wish to perpetrate violence will ignore them, and that the net effect of such policies is to leave defenseless the law-abiding citizens who follow these policies.

How many decades have we been saying this??

[tombogan03884]

“It certainly can be argued that such policies are ineffectual because persons who wish to perpetrate violence will ignore them, and that the net effect of such policies is to leave defenseless the law-abiding citizens who follow these policies.

How many decades have we been saying this??

True, but he's in a position to do something about it.
Getting our people into those positions is what will make the difference.

[tt11758]

"The task at hand, however, is not to evaluate the desirability of such policies. Instead, the role of the Office is to assess the lawfulness of these policies in light of the law as it presently exists in Virginia.”

He is exactly right.  If only we could get the folks in the long, black robes to think that way.