Could the University of Virginia legally bar visitors from carrying firearms in University buildings, and did its policy reach concealed carry permit holders?

Plain-English summary

Senator Hanger asked the AG to evaluate two University of Virginia policies. SEC-030 prohibits possession, storage, or use of any firearm, weapon, or ammunition by any non-law-enforcement visitor inside any University facility without the Chief of Police's prior written permission. The Medical Center's Policy 01742 imposes a similar ban on patients and visitors. The AG split the analysis into open carry and concealed carry.

For open carry, the AG concluded the policy was lawful. Prior AG opinions and the Virginia Supreme Court's decision in DiGiacinto v. Rector & Visitors of George Mason University recognize that the right to openly carry, though grounded in the Second Amendment, may be limited in "sensitive places" like schools and government buildings. UVA buildings include large numbers of students of all ages and other vulnerable groups; the hospital adds patients with mental illnesses, the elderly, and children. The University was vested with authority to promulgate and enforce policies governing its buildings. Visitors who openly carry could be asked to leave, and refusal could support a trespass charge.

For concealed carry permit holders, the AG concluded the policy could not prevent them from bringing concealed handguns into the covered buildings. The key statute, § 18.2-308(O), provides that a concealed carry permit "shall not thereby authorize the possession of any handgun or other weapon on property or in places where such possession is otherwise prohibited by law." DiGiacinto involved a George Mason University regulation, which has the force of law. UVA had adopted a policy, which does not have the force of law. So the policy did not satisfy "otherwise prohibited by law" and could not block concealed-carry permit holders. To do so, UVA would need to promulgate a regulation tailored to that effect.

Currency note

This opinion was issued in 2011. 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.

Common questions

Why is the distinction between a "regulation" and a "policy" so important?
A regulation has the force of law; a policy does not. Section 18.2-308(O) keys the limit on concealed-carry permits to places where possession is "otherwise prohibited by law." A regulation can qualify; a policy cannot.

What did DiGiacinto v. George Mason University hold?
The Virginia Supreme Court upheld a George Mason University regulation that barred weapons in academic and administrative buildings, dormitories, dining halls, and during sporting and educational events. Importantly, that regulation was tailored: it did not bar carrying on open grounds and other places not enumerated, and it covered "sensitive places" (the university and its buildings).

Could UVA fix the gap?
Yes, by promulgating a regulation rather than a policy. DiGiacinto establishes that a university has authority to promulgate such regulations. With a regulation in force, the prohibition would count as "otherwise prohibited by law" under § 18.2-308(O) and would reach concealed-carry permit holders.

What is the trespass remedy for open carry?
University officials can request that openly carrying visitors comply with the policy. If a visitor refuses to comply and refuses to leave, the person may be charged with trespass.

Did the AG endorse the policy as wise?
No. He explicitly noted he was "compelled to conclude" the policy was lawful and declined to assess its wisdom. He pointed out the argument that such policies leave law-abiding citizens unable to defend themselves while not deterring wrongdoers.

Background and statutory framework

The Second Amendment protects an individual right to bear arms and applies against the states. Article I, § 13 of the Virginia Constitution offers co-extensive protection. The right is not unlimited; the U.S. Supreme Court approved "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings."

In DiGiacinto, the Virginia Supreme Court applied Heller's "sensitive places" reasoning to George Mason University and upheld a regulation restricting weapons in academic and similar buildings. The regulation was tailored, not a total ban; the University was deemed a sensitive place because of the populations using its facilities. The AG extended the logic to the Medical Center because hospitals harbor large numbers of vulnerable patients.

A regulation has the force of law; a policy does not. Section 18.2-308(O) limits the concealed-carry exception to places where possession is "otherwise prohibited by law." A prior opinion of this Office concluded that the legislative intent is to allow concealed-carry permit holders to carry "only in areas where it has not specifically prohibited the carrying of handguns."

The Board of Visitors holds authority conferred by the General Assembly over University buildings, similar to the authority that supports a regulation under DiGiacinto.

Citations

• Va. Code § 2.2-505 (authority for official advisory opinions)
• Va. Code § 18.2-308(O) (concealed-carry permit limited where possession otherwise prohibited by law)
• Va. Const. art. I, § 13 (right to bear arms)
• DiGiacinto v. Rector & Visitors of George Mason Univ., 281 Va. 127 (2011)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/11-078-Hanger.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

July 1, 2011

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

The Honorable Emmett W. Hanger, Jr.
Member, Senate of Virginia
Post Office Box 2
Mount Solon, Virginia 22843
Dear Senator Hanger:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether a policy of the University of Virginia prohibiting the possession of firearms and ammunition by visitors inside University buildings and hospitals without prior written consent of the University's Chief of Police is legal.

Response
It is my opinion that, under the present state of the law, the University lawfully may promulgate a policy that prohibits persons from openly carrying a firearm in the buildings that are subject to the policy. It is further my opinion that with respect to persons who have a concealed carry permit, because the University adopted a policy rather than a regulation, it has not "otherwise prohibited by law" persons with a concealed carry permit from possessing a handgun, and, therefore, the policies may not be used to prohibit persons with such a permit from carrying a concealed firearm into the buildings covered by the policy.

Background

The University of Virginia has adopted two policies regulating the possession, storage and use of firearms in University buildings and in hospital buildings. Policy SEC-030, among other things, provides with respect to visitors that

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 or his designee is prohibited.

This policy further states that

For purposes of this policy, University facilities include, but are not limited to, any academic, administration, residential, research, medical, entertainment or sports venues including any amphitheater, arena, classroom, clinic, dormitory or other residential facility, gymnasium, laboratory, office, stadium, theater and the Medical Center.

An additional definition provides that "University Facility" includes "[a]ny defined space of the University, including a room, lab, series of labs, building or controlled outdoor area."

The Medical Center at the University of Virginia also has adopted a policy governing firearms. Policy Number 01742 provides in relevant part that

Patients and visitors to the Medical Center (with the exception of law enforcement officers) are prohibited from possessing, storing or using any firearm, weapon, ammunition, or explosives within any University facility, without the prior written permission of the University's Chief of Police or his designee.

This policy defines "University Facility" as "[a]ny defined space at the University (including all Medical Center facilities), including a room, lab, series of labs, building or controlled outdoor area."

Applicable Law and Discussion

The right to bear arms is protected by the Constitutions of Virginia and of the United States. The United States Supreme Court has recognized that the Second Amendment of the United States protects an individual right to bear arms and, further, that this right operates as a restriction on the States as well as the federal government. The protections afforded by the Virginia Constitution in this area are co-extensive with those of the Second Amendment.

The law is not settled at this time with respect to how strictly courts will evaluate restrictions on the use and possession of firearms. The United States Supreme Court has stated that the right to bear arms is "not unlimited, just as the First Amendment's right of free speech [is] not." In addition, the Court has noted that the government may enact "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings."

With respect to carrying firearms inside university buildings, the Supreme Court of Virginia recently decided DiGiacinto v. Rector and Visitors of George Mason University. In that case, the Court held that a regulation promulgated by George Mason University was lawful and satisfied both the Second Amendment of the United States Constitution and Article I, § 13 of the Constitution of Virginia. The regulation at issue in DiGiacinto provides as follows:

Possession or carrying of any weapon by any person, except a police officer, is prohibited on university property in academic buildings, administrative office buildings, student residence buildings, dining facilities, or while attending sporting, entertainment or educational events. Entry upon the aforementioned university property is expressly forbidden.

The Court reasoned that the University

has 30,000 students enrolled ranging from age 16 to senior citizens, and that over 350 members of the incoming freshman class would be under the age of 18. Also approximately 50,000 elementary and high school students attend summer camps at GMU and approximately 130 children attend the child study center preschool there. All of these individuals use GMU's buildings and attend events on campus. The fact that GMU is a school and that its buildings are owned by the government indicates that GMU is a "sensitive place."

The Court found it significant that the regulation promulgated by George Mason University "does not impose a total ban of weapons on campus." Instead, "the regulation is tailored, restricting weapons only in those places where people congregate and are most vulnerable - inside campus buildings and at campus events." Importantly, "[i]ndividuals may still carry or possess weapons on the open grounds of GMU and in other places on campus not enumerated in the regulation."

Although DiGiacinto specifically addressed a regulation of firearms in university buildings rather than medical buildings, the logic of the decision applies with equal force to the policy adopted by the Medical Center. Applying the Court's reasoning to the hospital context, hospitals harbor large numbers of vulnerable patients, including children, the elderly and patients with mental illnesses.

There are two significant differences, however, between the policies at issue here and the regulation at issue in DiGiacinto. First, the policies adopted by the University of Virginia and the Medical Center are broader than the regulation at issue in DiGiacinto. For example, the Medical Center policy includes within the ban a "controlled outdoor area" and both policies include virtually all University buildings and property. The Court in DiGiacinto noted as a consideration in favor of the constitutionality of George Mason University's regulation the fact that the regulation was "tailored" and allowed individuals to "carry or possess weapons on the open grounds of GMU, and in other places on campus not enumerated in the regulation." Bans that are broader than the one expressly approved by the Supreme Court of Virginia in DiGiacinto, while likely facially constitutional, are vulnerable to "as applied" challenges with respect to particular places.

Second, a regulation has the force of law, whereas a policy does not. DiGiacinto establishes that a University has the authority to promulgate regulations restricting firearms inside certain buildings. As with regulations, the authority conferred by the General Assembly upon the Board of Visitors of the University includes the authority to create policies governing buildings at the University. Unless a policy collides with a law or regulation, a policy may be enforced by the University.

With respect to the general right of "open carry," the University may develop a policy that restricts the right of open carry within certain buildings. Prior opinions of this office have recognized the right, tied to the Second Amendment, to openly carry a firearm. This right to openly carry, like the Second Amendment right generally, may be limited in "sensitive places" like "schools and government buildings." In other words, the right to bear arms does not include an unqualified right to openly carry a firearm in a sensitive place or certain government buildings. No statute or regulation specifically addresses the right to openly carry a firearm. Therefore, the University, which is vested with the authority to promulgate and enforce policies governing its buildings, may enforce this policy. University officials may request that persons who openly carry in buildings covered by the policy abide by the policy. If these persons refuse to follow it, and also refuse to leave, they may be charged with trespass.

Unlike open carry, there is an additional statutory overlay that addresses persons who have received a concealed carry permit. Section 18.2-308(O) provides that "[t]he granting of a concealed handgun permit shall not thereby authorize the possession of any handgun or other weapon on property or in places where such possession is otherwise prohibited by law[.]" A prior opinion of this Office concluded that "[t]he clear intent of the General Assembly is to allow concealed handgun permit holders to carry handguns only in areas where it has not specifically prohibited the carrying of handguns." Where the possession of a handgun is prohibited by law, persons with a concealed carry weapon may not bring their weapons to such locations. In DiGiacinto, George Mason University promulgated a regulation, which has the force of law, prohibiting a person from carrying a firearm in certain buildings. Therefore, persons with concealed carry permits could not bring them into the specified buildings because doing so under this regulation was "otherwise prohibited by law." The University of Virginia's policy, in contrast, is not a regulation and, therefore, does not have the force of law. Consequently, the policy does not fall within the terms of the exception contemplated in § 18.2-308(O). Under § 18.2-308(O), persons with valid concealed carry permits may not, through a policy, as opposed to a regulation, be prohibited from exercising their right to carry a concealed handgun. To prevent persons who have concealed carry permits from bringing them into University or Medical Center buildings, the University would need to promulgate a regulation tailored to that effect.

In reviewing the legality of the policies, I express no opinion about their wisdom. 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.

Conclusion

Accordingly, I am compelled to conclude that under its policies, the University lawfully may prohibit persons from openly carrying a firearm in the buildings that are subject to the policy. It is further my opinion that with respect to persons who have a concealed carry permit, because the University adopted a policy rather than a regulation, it has not "otherwise prohibited by law" persons with a concealed carry permit from possessing a handgun, and, therefore, the policies may not be used to prohibit persons with such a permit from carrying a concealed firearm onto the buildings covered by the policy.

With kindest regards, I am
Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General