Open carry on campus -  Not a Second Amendment issue

Concealed weapons on campus? HB102 directly raises that issue. But in spite of arguments to the contrary this is not a Second Amendment issue as it relates to campuses. What is at issue is the Regents constitutional right to manage Montana’s University System.

Our history is rife with examples where politics and vested interests have interfered with our higher education system. In 1915, at the behest of the Legislature and the Anaconda Company — ACM — University President Craighead was fired for not towing the ACM line. Later a law professor was terminated for the same reason and a popular teacher was forced out for documenting the blatant favorable taxation granted to mining interests. Throughout the 1950s and ’60s mineral and timber interests in the state exercised considerable control in the Legislature. Eventually the people had enough.

The frustration of Montana’s people about politics in higher education resulted in the 1972 Constitution creating Montana’s Board of Regents and granting it full authority over the higher education system: “The government and control of the Montana university system is vested in a board of regents of higher education which shall have full power, responsibility, and authority to supervise, coordinate, manage and control the Montana university system … .” That broad power underwent judicial review and was affirmed in 1975 by the Montana Supreme Court in State ex rel. Judge. That opinion forms the basis for the Regent’s sole authority over the university system since that time.

The regents and the university system are responsible for more than 50,000 students, faculty and staff statewide. Many students are under the age of 18, making the university system responsible to a degree for these minors. How to manage weapons within this large and diverse population is a serious responsibility, and one which the Regents have embraced to the apparent consternation of certain members of the legislative branch.

With the concealed carry law, the Legislature attempts to substitute its judgement for that of the regents. Knowing that implementing concealed carry will impose costs on the university system, a million dollars was added to the budget bill in a transparent attempt to bribe or extort their way out of their unconstitutional overreach. A caveat to the budget provides that the right to the extra money is void if the regents challenge the constitutionality of HB102. Not win the case, just challenge the Legislature. The Legislature does not want the regents to oppose HB 102, apparently hoping to buy their way out of a constitutional challenge.

The Legislature is going about this backward. The regents are constitutionally charged with management of the university system. If the Legislature believes the regents’ policies regarding guns on campuses are unconstitutional, as some have asserted, their path is to challenge the regents’ and university system’s rules in court, not to simply substitute their judgement for that of the regents. If a court determines the university systems current gun policies must be revised the regents will follow the orders of the court. The Legislature has no legitimate role in this process.

The long-term efforts of Montanans to remove politics from higher education came to fruition in the Constitutional Convention in 1972. HB 102, along with the million-dollar bribe, invades the province of the regents to manage the university system. If the regents “exercise their legal right to challenge”HB102 they are punished. This intrusive precedent should not be tolerated. If the budget amendment and HB102 are not constitutionally challenged the regents and the university system can anticipate that future legislative overreach coupled with blackmail funding amendments will become commonplace. The hard-earned and longstanding constitutional independence of the Montana University System from political control is at stake. We shouldn’t let that happen.

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Steve Barrett is a retired practicing attorney and former chair of the Montana Board of Regents