Could the University of Louisville ban weapons on campus under Kentucky's right to bear arms?

Plain-English summary

In 1996, Kentucky's Attorney General concluded that the University of Louisville could prohibit the possession or storage of deadly weapons and destructive devices on its campuses and in facilities it owned, leased, or operated. The office found that this policy did not violate the right to bear arms in Section 1, Seventh of the Kentucky Constitution and was therefore not void under Section 26.

The AG rejected the premise that the state constitution let the General Assembly regulate only concealed weapons. It read Kentucky decisions as allowing reasonable public-safety limits on bearing arms and cited statutes giving university boards control over their property. It also distinguished a university board from the local governments covered by KRS 65.870's restriction on firearms regulation.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

University governing boards

The opinion read KRS 164.975(1) as giving public university boards control over how their property was used. It also cited KRS 237.115(1), enacted in the 1996 session, as recognizing a college or university's right to control deadly weapons on property it owned or controlled. On that basis, the AG upheld the University of Louisville's described policy, including its reach to openly carried weapons.

Students and campus visitors

The AG said the Kentucky Constitution did not confer an absolute right to carry arms onto another's property. It treated university property as a setting where the governing board could direct visitors to enter unarmed. Its conclusion concerned possession and storage under the stated campus policy; it did not describe a criminal penalty for violating that policy.

Local and state officials

KRS 65.870 restricted city and county firearms regulation, but the AG said it did not apply to public university governing boards. The opinion also said that KRS 527.070(1)'s exclusion of higher education property from a school-weapons offense did not prevent a university board from setting its own property rules.

Common questions

Could the University of Louisville prohibit openly carried weapons on campus?

The AG said yes under the 1996 law it reviewed. It concluded that the university policy covered possession or storage of deadly weapons on its property without violating Section 1, Seventh of the Kentucky Constitution.

Did Kentucky's local firearms-preemption statute bind university boards?

The opinion said KRS 65.870 applied to local governments, not the governing boards of public institutions of higher education.

Did the lack of a school-weapons crime for universities require them to allow weapons?

No. The AG noted that KRS 527.070(1) excluded higher education institutions from that criminal offense, but said the exclusion did not prevent a university board from controlling weapon possession on its property.

Why did the AG reject the claim that only concealed weapons could be regulated?

It read Eary v. Commonwealth as recognizing that the right to bear arms was subject to reasonable public-safety measures. The opinion also discussed how Kentucky's constitutional wording had changed from earlier versions and distinguished older cases that used broader language.

Background and statutory framework

The Legislative Research Commission director asked about a University of Louisville policy and the Kentucky Constitution's Sections 1, Seventh and 26. The AG relied on the university property authority in KRS 164.975(1) and the college weapon-control provision in KRS 237.115(1). It distinguished KRS 65.870's rule for local governments and KRS 527.070(1)'s separate criminal provision. The opinion cited O’Leary v. Commonwealth for university control over campus property and Eary v. Commonwealth for the limits of the constitutional right to bear arms.

Citations and references

• Kentucky Constitution Section 1, Seventh: right to bear arms provision interpreted by the AG.
• Kentucky Constitution Section 26: voidness provision raised in the request.
• KRS 164.975(1): university governing-board authority over property use.
• KRS 237.115(1): 1996 provision recognizing college control of deadly weapons on its property.
• KRS 65.870: local-government firearms restriction that the AG distinguished.
• KRS 527.070(1): school-weapons offense excluding higher education institutions.
• Eary v. Commonwealth, Ky., 659 S.W.2d 198 (1983): reasonable limits on bearing arms.
• O’Leary v. Commonwealth, Ky., 441 S.W.2d 150 (1969): university property control.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_75bf6c1d-8b37-42fb-a9aa-ac732d4fabb0/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_75bf6c1d-8b37-42fb-a9aa-ac732d4fabb0

Original opinion text

OAG 96-40
October 4, 1996
Subject:

Whether a public university policy banning
possession or storage of a deadly weapon or
destructive device on any campus of the university or in any facility owned, leased or operated by that university is void as violative of the right to bear arms secured by the Kentucky Constitution.

Requested by:

Don Cetrulo, Director
Kentucky Legislative Research Commission

Written by:

Kent T. Young, Assistant Attorney General

Syllabus:

A public university ban on the possession or storage
of a deadly weapon or destructive device on property owned or occupied by that university does not violate the right to bear arms secured by Section 1, Seventh of the Kentucky Constitution.

Statutes construed:
KRS 65.870; 164.975(1); 237.115(1);
527.070(1)

Opinion of the Attorney General
The Office of the Attorney General has been asked to render an
opinion on whether a University of Louisville policy banning possession
or storage of a deadly weapon or destructive device on any University
of Louisville campus or in any facility, owned, leased or operated by
the University violates Section 1, Seventh and Section 26 of the Kentucky Constitution. The Attorney General provides this opinion on a public question of law which was submitted by the director of the Ken-

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tucky Legislative Research Commission on behalf of a legislator. KRS
15.025(1) and (2).
Specifically, the director of the Kentucky Legislative Research Commission asks: Since Section 1 of the Constitution of Kentucky prohibits the General Assembly from controlling other than concealed “arms” and Section 26 of the Constitution of Kentucky declares all acts in violation of the Kentucky bill of rights to be void, does the action of the University of Louisville as it applies to the possession or carrying of unconcealed weapons violate the Constitution of Kentucky, even though the action of the University is allegedly taken pursuant to 1996 HB 40? We cannot accept the premise that Section 1, Seventh of the Kentucky Constitution “prohibits the General Assembly from controlling other than concealed ‘arms’”. We, therefore, begin our analysis by addressing this assertion. We then proceed to the ultimate question of whether the action taken by the University of Louisville violates Section 1, Seventh and Section 26 of the Kentucky Constitution. Section 1 of the Kentucky Constitution provides in relevant part as follows: All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned. . . Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.

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Some assert that the last clause of Section 1, Seventh of the Kentucky
Constitution sets forth the sole power of the Kentucky General Assembly to enact laws relating to bearing arms. In Eary v. Commonwealth, Ky., 659 S.W.2d 198 (1983), however, the Kentucky Supreme Court expressly recognized that the right to bear arms is subject to the state’s reasonable exercise of its inherent police powers to protect the public health and safety. The Eary court upheld the constitutionality of a statute which prohibited convicted felons from possessing handguns. The Eary holding recognizes that the right to bear arms under Section 1, Seventh of the Kentucky Constitution is not absolute. In other words, while Section 1, Seventh of the Kentucky Constitution secures a right to bear arms, it does not define the scope of that right in absolute terms. Prior to the effective date of our present constitution (1891), the Kentucky courts recognized that one does not have an absolute right to bear arms openly at all times, in any place, and in any manner. Ogles v. Commonwealth, Ky., 11 S.W. 816 (1889). Certainly, the English common-law tradition from which our legal heritage derives did not accord to the individual an absolute right to bear arms openly. See, e.g., Emery, The Constitutional Right to Keep and Bear Arms, 28 Harvard Law Review 473 (1915). A comparison of Section 1, Seventh of our present Kentucky Constitution to its counterparts in prior Kentucky Constitutions reveals a change in language which suggests the framers of the 1891 Kentucky Constitution did not intend for the Constitution to confer an absolute right to bear arms openly. All prior versions of the Kentucky Constitution provided in relevant part that the right to bear arms “shall not be questioned”. First Constitution of Kentucky (1792), Article 12, Section 23; Second Constitution of Kentucky (1799), Article 10, Section 23; Third Constitution of Kentucky (1850), Article 13, Section 25. The drafters of the 1891 Kentucky Constitution, our present Kentucky Constitution, deleted the words “shall not be questioned”.

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We are aware of the case of Bliss v. Commonwealth, Ky., 12 Ky.
90 (1822), which construed Article 10, Section 23 of the Second Constitution of Kentucky (1799) as conferring on the individual citizen an absolute right to bear arms. The Bliss court concluded that legislation prohibiting the carrying of a concealed weapon was unconstitutional and void pursuant to Article 10, Section 28 of the Second Constitution of Kentucky (1799), the predecessor and counterpart of Section 26 of our present Kentucky Constitution. Bliss v. Commonwealth, however, was decided at a time when the Kentucky Constitution stated without qualification that the right to bear arms “shall not be questioned”. The Bliss opinion must be read in the context in which it was written. It does not state the law under the present Kentucky Constitution. Moreover, Kentucky Courts have recognized that the Bliss court’s general characterization of Kentucky’s Constitutional provisions as mandatory is subject to qualification. See, e.g., Gaines v. O’Connell, Ky., 204 S.W.2d 425, 427 (1947). We also are aware of hyperbolic dicta in Holland v. Commonwealth, Ky., 294 S.W.2d 83, 85 (1956), characterizing Section 1, Seventh of the Kentucky Constitution as “an exemplification of the broadest expression of the right to bear arms”. One need only look to the language of Article 12, Section 23 of the First Constitution of Kentucky (1792) to see that this statement, if interpreted literally, is false. The right to bear arms was expressed more broadly in our first constitution as follows: The rights of the citizens to bear arms in defense of themselves and of the state shall not be questioned. The Holland court also stated: In our state the legislature is empowered only to deny to citizens the right to carry concealed weapons. The constitutional provision is an affirmation of the faith that all men have the inherent right to arm themselves in the defense

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of themselves and of the state. The only limitation concerns the mode of carrying such instruments. Holland v. Commonwealth, supra, 294 S.W.2d at 85. This language is not an essential part of the holding in the Holland case. Moreover, the Holland case is internally inconsistent. The case also cites with approval the provisions of KRS 435.230, since repealed. KRS 435.230 included a prohibition against selling “a deadly weapon, other than an ordinary pocket knife, to a minor”. The penalty for this offense was set by statute at of a term of imprisonment of not less than two nor more than five years. The Holland court determined that “the legislature has exercised the power granted it by enacting KRS 435.230". Id., at

85. The Holland court recognized the validity of a legislative enactment which went beyond merely denying citizens the right to
    carry concealed weapons, even though the Holland court asserted “the legislature is empowered only to deny to citizens the right to carry concealed weapons”. Id., at 85. The Kentucky Supreme Court has since expressly recognized that the legislature’s power with respect to the right to bear arms is not limited only to denying citizens the right to carry concealed weapons. Eary v. Commonwealth, Ky., 659 S.W.2d 198 (1983). In Commonwealth v. Wasson, Ky., 842 S.W.2d 487, 492 (1992), the Kentucky Supreme Court recognized that “much of our original Kentucky Bill of Rights” derived from “the then recently enacted Pennsylvania counterpart”. “[B]ecause of the common heritage shared by the Kentucky Bill of Rights of 1792 and the Pennsylvania Bill of Rights of 1790", “[d]ecisions of the Pennsylvania Supreme Court interpreting like clauses in the Pennsylvania Constitution are uniquely persuasive in interpreting our own”. Commonwealth v. Wasson, supra, 842 S.W.2d at 498. Article 1, Section 21 of the Pennsylvania Constitution, governing the right to bear arms, reads today just as it did in the Pennsylvania Constitution of 1790. That section states: The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.

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Article 12, Section 23 of the First Constitution of Kentucky (1792)
states:
The rights of the citizens to bear arms in defense of themselves and the state shall not be questioned. The Pennsylvania Constitution of 1790 contained a provision similar to Section 26 of our present Kentucky Constitution. Article 1, Section 25 of the present Pennsylvania Constitution retains the relevant language from the Pennsylvania Constitution of 1790, to wit: To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate. Section 26 of the Kentucky Constitution states: To guard against transgression of the high powers which we have delegated, We Declare that everything in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this Constitution, shall be void. In Commonwealth v. Ray, Pa.Super, 272 A.2d 275 (1970), vacated on other grounds in 292 A.2d 410, a Pennsylvania appellate court held that the right to bear arms was not violated by a state statutory provision which contained a general prohibition against carrying “a firearm, rifle or shotgun at any time upon public streets or upon any public property in a city of the first class”. Commonwealth v. Ray, supra, 272 A.2d at 278. The appellate court noted that “[t]he limitation is as to an area constituting a very small portion of the Commonwealth”. Id., at 278. The Pennsylvania appellate court recognized the view “[t]hat the right to bear arms guaranteed by the Constitution is not an unlimited right is almost universally accepted”. Id., at 279.

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The court reasoned “that a reasonable regulation in a gun control law
is a valid exercise of the police power of the Commonwealth prescribing for the good order and protection of its citizens”. Id., at 279. The holding in Commonwealth v. Ray suggests that banning deadly weapons and destructive devices on university property does not violate the right to bear arms conferred by the Kentucky Constitution. The Kentucky statutes and Kentucky case decisions support this conclusion. KRS 164.975(1) states in relevant part that “[t]he governing boards of public institutions of higher education” have “the power and authority to govern and control the method and purpose of use of property owned or occupied by their respective institution”. See also, KRS 164.950 and KRS 164.955. KRS 164.200 grants broad discretion to a university board of trustees to “establish proper regulations for the government of the university.” As this office said in OAG 69-357:
[T]he establishment of regulations which may limit the access of students and/or nonstudents to the campus, or which may condition their access upon certain reasonable requirements based upon the necessity for preservation of order and/or protection of students, staff or facilities is a proper exercise of the Board’s legal authority. However, the determination of the specific controls which may be required as based upon the facts gathered by or known to the Board is a matter which is to be decided by the Board, acting within its sound discretion in the discharge of responsibilities imposed by law as the governing body of the University. The general prohibition in KRS 65.870 against local firearms regulation by city, county or urban-county governments does not apply to the governing boards of public institutions of higher education. KRS 237.115(1), enacted in the 1996 session of the Kentucky General Assembly (1996 HB 40), states in relevant part as follows:

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Nothing contained in KRS 237.110 shall be construed to
limit, restrict, or prohibit in any manner the right of a college, university, or any postsecondary education facility, including technical schools and community colleges, to control the possession of deadly weapons on any property owned or controlled by them. . . KRS 237.110 is the statute which authorizes the issuance of licenses to individuals to carry concealed deadly weapons. While KRS 237.115(1) recognizes the right of colleges and universities to control possession of deadly weapons, generally, on their properties, KRS 237.115(1) limits other units of state government, city governments, county governments, urban-county governments, and charter county governments to prohibiting only the carrying of concealed deadly weapons. The Kentucky General Assembly, therefore, has recognized that the governing board of a college or university of this Commonwealth has a right to control the possession of all deadly weapons on its properties, regardless of whether the weapons are concealed or carried openly. We are aware that KRS 527.070(1), creating a criminal offense for unlawful possession of certain weapons on school property, excludes “institutions of postsecondary or higher education”. The fact that the legislature has elected not to criminalize the carrying of those weapons on the property of institutions of postsecondary or higher education, however, does not preclude the governing boards of public institutions of higher education from otherwise controlling the possession of deadly weapons on their properties. In O’Leary v. Commonwealth, Ky., 441 S.W.2d 150 (1969), Kentucky’s high court addressed the nature of a university’s control over its property. The Court considered whether a student’s right of free speech and assembly was violated when he was arrested for breach of the peace for refusing to leave a university hallway where he and others were blocking the entrance to a room as a form of protest. The O’Leary court noted that university premises generally are not “maintained for use by the public in general”. O’Leary v. Commonwealth,

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supra, 441 S.W.2d at 157. Mr. O’Leary had predicated his appeal in
part on provisions contained in the Kentucky Bill of Rights relating to
free speech and the right of assembly. The O’Leary court reasoned in
relevant part as follows:
We are fond, in this country, of reiterating the principle
that even the greatest majority is powerless to throttle a
constitutional right. It is equally true, however, that the
existence of a constitutional right is neither a sword to cut
up the rights of others nor a shield against the consequences of conduct that otherwise violates the law. The majority too has rights, not the least of which is the protection afforded by its criminal laws. It is clear from the decisions of the [U.S.]Supreme Court...that free speech and the right of assembly in public places must not be left to the ad hoc discretion of provincial authorities, nor can people be ordered off the premises of business establishments, otherwise open to the public, for no reason except their creed or color. There is a difference, however, between public and private places, and in this context we regard the premises of a college or university as no different from private property. That the institution is financed with tax money is no reason why its governing body should not have the same dominion and control over it as would a private owner. No one would contend, we trust, that the presence of a group of demonstrators in the office of its president would be any more legitimated and protected by the Constitution than would be their presence in the White House at Washington. Id., at 156. The O’Leary court specifically held that “the sanctity of a college campus and buildings is no less than that of private property”. There is no absolute right under the Kentucky Constitution to carry arms on to the property of another. The governing board of a university, like a private property owner, may direct those who come upon its property to do so unarmed.

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“[I]t is axiomatic that private rights must yield to a reasonable
exercise of the police power”. Colten v. Commonwealth, Ky., 467
S.W.2d 374, 378 (1971), affirmed in Colten v. Kentucky, 407 U.S. 104,
92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). The right to bear arms is subject to a reasonable exercise of the police power. Eary v. Commonwealth, Ky., 659 S.W.2d 198 (1983). The geographic areas occupied by university campuses are quite limited. Given this and also given the fact that one has no absolute right to carry arms on to the property of another, it is reasonable to conclude that a university ban on deadly weapons and destructive devices is not clearly contrary to that right to bear arms which is secured by Section 1, Seventh of our Kentucky Constitution. Universities are unique places of public assembly. Given that the governing boards of public institutions of higher education are authorized to control the method by which university property is used and the purpose for which university property is used, and given that large numbers of people frequently gather on university campuses, a university ban on weapons and destructive devices is not an unreasonable exercise of the police power in furtherance of the public health and safety. The University of Louisville policy prohibiting possession or storage of deadly weapons or destructive devices on any University of Louisville campus or in any facility owned, leased or operated by the University does not violate Section 1, Seventh of the Kentucky Constitution. The policy therefore is not void pursuant to Section 26 of the Kentucky Constitution. 1 A. B. CHANDLER III 1We should also note that OAG 96-39, also issued today on a similar subject, does not conflict with this opinion. Given the mandatory language of KRS 65.870, a local government’s ability to regulate the carrying of firearms is far different from such power of a University. The two are tantamount to the proverbial apples and oranges.

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ATTORNEY GENERAL

KENT T. YOUNG
ASSISTANT ATTORNEY GENERAL
#1046