My colleague Jeff Welty has covered the U.S. Supreme Court’s decision in New York Rife and Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), and subsequent lower court cases several times before on the blog. Under Bruen, “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” Id. at 17. To overcome this presumptive protection, “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at 19. If the government fails to come forward with evidence showing the challenged rule is consistent with “the Nation’s historical tradition of firearm regulation,” the rule is unconstitutional under the Second Amendment. Id. at 24.
The Court of Appeals recently applied that rule in the context of G.S. 14-269.2, North Carolina’s law prohibiting possession of weapons on educational property. In State v. Radomski, COA23-340; ___ N.C. App. ___ (May 21, 2024); temp. stay allowed, ___ N.C. ___ (June 7, 2024), a unanimous panel held that the law was unconstitutional as applied to the defendant on the facts of the case. This is the first successful Bruen challenge to a state criminal law. Today’s post examines the holding and implications of the decision, and offers suggestions to defenders on how to raise, litigate, and preserve such claims.
Facts. The defendant was unhoused and living out of his car. He needed medical attention for issues relating to a kidney shunt and drove to the University of North Carolina at Chapel Hill (“UNC”) hospital early one morning. He parked in an open-air parking lot nearest to the emergency room. Near 6:00 a.m., campus police received a report of a suspicious vehicle in the lot where the defendant was parked. A campus police officer responded, finding the defendant inside his car. The car had no license plate, and the officer discovered that the defendant had no car insurance during the encounter. The officer asked if there were weapons in the car several times. After several denials, the defendant eventually admitted that he did in fact have guns in the car. He was cuffed and the officer searched the car, finding 6 long guns and ammo, including several semi-automatic rifles and a shotgun. The guns were found in soft gun cases or in between the cases and were otherwise unsecured. During the interaction, the defendant told the officer several times that he did not realize that the parking lot was considered educational property. There are signs nearby denoting the property as belonging to UNC and as a gun-free zone, but none were in the immediate vicinity of the defendant’s parking space. The officer arrested the defendant for felony possession of a firearm on educational property, and a jury later convicted him of that offense at trial.
Appeal. The defendant argued for the first time on appeal that his conviction violated the Second Amendment. He contended that the weapon on educational property law is facially unconstitutional—that any application of the law is impermissible in all circumstances—as well as that the law was unconstitutional as applied to the facts of his case. (He also argued that the State presented insufficient evidence that he knew he was on educational property, an argument that a majority of the Court of Appeals accepted as an alternative ground for reversal, but this post focuses on the Second Amendment aspect of the case.) The defendant argued that treating the parking lot near the emergency room as a part of educational property would intrude too far upon his right to keep and bear arms for self-defense. He also pointed to his status as an unhoused person, arguing that his right to keep guns for self-defense should not be any more limited than others simply because he lacked traditional housing.
The State argued that the parking lot was a part of UNC’s campus, noting that Bruen and earlier U.S. Supreme Court cases had spoken approvingly of “longstanding” prohibitions on possession of weapons in “sensitive places like schools and government buildings.” See Bruen at 3, citing District of Columbia v. Heller, 554 U.S. 570, 626 (2008). Indeed, the definition of educational property in G.S. 14-269.2(a)(1) encompasses “any” school or campus property “used, owned or operated by” any school (and the court expressly recognized that the entire UNC Chapel Hill campus qualifies as educational property under the statute in its discussion of the knowledge part of its holding).
Holding. The court agreed with the defendant that the statute was unconstitutional as applied under the Second Amendment and vacated the conviction (leaving for another day the question of the law’s facial constitutionality). According to the court, the State failed to present evidence of a comparable historical regulation imposing a similar burden on Second Amendment rights. The court rejected the view that the hospital parking lot should be seen as a sensitive place warranting a Second Amendment carve-out based on its status as property owned and used by UNC. In the court’s words:
. . . [T]he purpose of the open-air parking lot situated between the emergency room entrance, a football arena, and another healthcare building is not educational in nature; rather, its function is to provide access to the health care facilities in the area, including the hospital where Defendant was trying to be seen for significant health concerns. Radomski Slip op. at 10.
While there is a historical tradition of restricting the ability to carry arms in sensitive areas like schools and college campuses, the court found that the parking lot here could not fairly be treated as educational property (despite it squarely fitting the definition of educational property in G.S. 14-269.2(a)(1)). At least under the circumstances of the defendant’s case—where the defendant was living in his car, was parked in a hospital parking lot to seek medical treatment, and never removed his guns from his car—the conviction could not stand.
Implications. The big question in the wake of the Radomski decision is how and where to draw the line between educational property that may constitutionally be treated as a sensitive place and the parts of property that, despite being owned or used by a school or campus, cannot. Insofar as the court’s reasoning can be read to focus on the primary purpose and location of the parking lot, it seems that many parts of college campuses might qualify as primarily non-educational and therefore not a sensitive place where firearms can constitutionally be prohibited. For instance, maintenance buildings and the like may lack the same educational nexus the court found missing in Radomski.
Finding the appropriate balance may make for some difficult line drawing. The court’s description above of the hospital parking lot as surrounded by non-educational properties and primarily serving a non-educational function is accurate, but buildings that would seemingly qualify as educational in nature—student dormitories, a student dining hall, and student athletic fields—are all within a block or two of the parking lot at issue here (as the State emphasized in its brief). Some of the nearby buildings surrounding the parking lot are part of the medical school, parts of which are presumably used for classroom instruction. The main hospital on campus is also a teaching hospital, where students in the medical field receive clinical training. All of this property is used and owned by UNC and is clearly covered by the statutory definition of educational property in G.S. 14-269.2. By way of illustration, here is a partial map of this area of campus with the parking lot at issue in the case circled in red (the original interactive map is here).
The devil is likely in the details for any given case. What if the defendant in Radomski was parked in a dorm parking lot instead of the emergency room lot? Or the parking deck across the street? What about in front of the football stadium for a football game? What if the defendant was carrying one of his long guns in or around the hospital? Was the fact that the defendant was in the parking lot for medical treatment a critical distinction, or would he have been entitled to the same Second Amendment protection if he was merely visiting a sick friend or relative with guns inside his car? How significant was it that the defendant was unhoused? It is not clear from the opinion which factors carried the day for the defendant. Read narrowly, the case may stand only for the proposition that this particular defendant could not constitutionally be punished consistent with the Second Amendment on these specific facts. That said, the reasoning of the Radomski court suggests at a minimum that the broad definition of educational property in G.S. 14-269.2(a)(1) may have to be narrowed to pass Second Amendment muster, at least for some factual situations.
We will have to wait and see how future opinions address the contours of our weapon on educational property law. Given the weighty legal issues and important policy interests at stake, further review by the North Carolina Supreme Court seems likely.
Advice for Defenders. While we await further guidance from this or another case, defenders should continue making and preserving Second Amendment challenges in weapon on campus cases and other cases where the charges implicate the right to keep and bear arms (i.e., any gun case). First, a word on preservation. As mentioned above, no constitutional challenge was made at the trial level in Radomski. Normally, the appellate court will not consider an argument raised for the first time on appeal, but the court invoked Rule 2 of the Appellate Rules of Procedure to waive the normal preservation rules and reach the merits of the defendant’s constitutional argument. The court acknowledged that Bruen was decided less than 80 days before the verdict was handed down in Radomski and that the issues raised by Bruen were still relatively new. We saw similar deference by the appellate division in the wake of the U.S. Supreme Court’s decision in Grady v. North Carolina, 575 U.S. 306 (2015) (finding that North Carolina’s satellite-based monitoring scheme imposed a search and was subject to Fourth Amendment reasonableness standards). As I wrote here, the Court of Appeals was forgiving of unpreserved Fourth Amendment challenges in SBM cases for a time, but the court’s patience did not last forever. After some time, it began enforcing normal preservation rules on the point. The same will be likely true here. In order to ensure any Second Amendment challenge is preserved, the issue must be raised and litigated in the trial court. Recall too that a motion to dismiss on Second Amendment (or any other) grounds is not something that can be preserved as a part of a guilty plea. See G.S. 15A-1444 (enumerating the limited grounds for appeal following a guilty plea). To preserve the argument, the constitutional challenge must not only be raised at the trial level, but the case must also be tried to verdict.
Procedurally, the argument should be brought in a written pretrial motion to dismiss. Detail why the challenged law impacts the client’s right to keep and bear arms and remind the court that Bruen requires the State to come forward with historical evidence supporting an analogous, historical regulation. At a minimum, a motion to dismiss on Second Amendment grounds should be made on the record at some point during trial. It may be enough to simply object at some point during trial on Second Amendment or Bruen grounds (much like defenders could preserve SBM issues by simply making a Grady or Fourth Amendment objection at the SBM hearing), but a written, filed motion that is ruled upon by the trial court best ensures that appellate review is preserved.
On the merits, remember it is the State’s burden to justify the regulation. Absent some historical, analogous justification, the defendant’s challenge should succeed. Where the State is prepared to present historical evidence in support of the challenged crime, defenders should consider obtaining expert assistance from a historian capable of parsing the understanding of gun restrictions at the time of the Founding (and indeed historians are busy with calls to assist on these issues, as this Times story details). In addition to arguing the issue under the Second Amendment, defenders should consider raising a related state constitutional claim under Article I, Sec. 30 of the North Carolina Constitution. See also Britt v. State of North Carolina, 363 N.C. 546 (2009) (firearm by felon law as applied to the plaintiff violated the state constitutional right to keep and bear arms).
Consider making both facial and as-applied challenges to any firearms law. The Rodomski court expressly declined to decide the facial challenge to the weapon on educational property law. Facial challenges to a law generally face an uphill battle, as the defendant must demonstrate that no application of the law is constitutional. Until the issue is squarely decided, though, it is worth raising and preserving the argument. As-applied challenges like the one in Radomski, on the other hand, seem sure to be a fruitful area for defenders, depending on the facts of a case. For weapon on educational property charges specifically, Radomski indicates the nature of the property, the reason for the defendant’s presence, and where exactly the weapons were may all factor into the analysis.
More to Come. Bruen, and now Radomski, gives defenders a path to challenge the weapon on campus law in any variety of factual scenarios. Other crimes may also be ripe for facial or as-applied challenges, like carrying a concealed weapon and possession of firearm by felon. Courts around the country are grappling with the new landscape created by the Bruen decision, and it is a rapidly evolving area of criminal law. Consider that the Fourth Circuit recently rejected a facial challenge to the federal felon in possession law. U.S. v. Canada, 103 F.4th 257 (4th Cir.). Another circuit court recently accepted the argument that the federal ban on felons in possession was unconstitutional as applied to a defendant with multiple non-violent felony convictions. U.S. v. Duarte, 101 F.4th 657 (9th Cir.). As I covered in a recent News Roundup, Hunter Biden is preparing to make an as-applied Second Amendment challenge to his conviction for possessing of a gun while being an unlawful user of controlled substances—an issue of particular significance for residents of states with legal forms of marijuana who partake in the substance. The U.S. Supreme Court decided U.S. v. Rahimi last week, rejecting a challenge to the federal law prohibiting gun possession by a person subject to a domestic violence restraining order and arguably softening the requirement of a comparable historical regulation under Bruen (as Jeff will discuss soon in a forthcoming post). As these cases and more are decided and interpreted, we will hopefully get more clarity on how to apply Bruen in a wide variety of contexts. Whenever some of that clarity arrives, you can be sure to read about it here.
I can be reached as always at dixon@sog.unc.edu for any questions or feedback.