Digiacinto v. the Rector

• Decision Date: 13 January 2011
• Docket Number: Record No. 091934.
• Citation: 704 S.E.2d 365,281 Va. 127,263 Ed. Law Rep. 966
• Parties: Rudolph DIGIACINTOv.The RECTOR AND VISITORS OF GEORGE MASON UNIVERSITY.
• Court: Virginia Supreme Court

281 Va. 127

704 S.E.2d 365

263 Ed. Law Rep. 966

Rudolph DIGIACINTO

v.The RECTOR AND VISITORS OF GEORGE MASON UNIVERSITY.

Record No. 091934.

Supreme Court of Virginia.

Jan. 13, 2011.

Rudolph DiGiacinto, pro se.

E. Duncan Getchell, Jr., State Solicitor General (Kenneth T. Cuccinelli II, Attorney General; Charles E. James, Jr., Chief Deputy Attorney General; Wesley G. Russell, Jr., Deputy Attorney General; Stephen R. McCullough, Senior Appellate Counsel; David G. Drummey, Assistant Attorney General, on brief), for appellees.National Rifle Association of America (Robert Dowlut; Lindsay K. Charles, on brief), in support of appellant, amicus curiae.Present: HASSELL, C.J., KOONTZ, KINSER, LEMONS, GOODWYN, and MILLETTE, JJ., and LACY, S.J.OPINION BY Justice S. BERNARD GOODWYN.

In this appeal, we consider whether 8 VAC § 35–60–20, a George Mason University regulation governing the possession of weapons on its campus, violates the Constitution of Virginia or the United States Constitution.

I. Background

Rudolph DiGiacinto filed a complaint seeking declaratory judgment and injunctive relief against the Rector and Visitors of George Mason University (collectively GMU) in the Circuit Court of Fairfax County. DiGiacinto petitioned the circuit court to enjoin GMU from enforcing 8 VAC § 35–60–20 against him. The regulation 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 in violation of this prohibition is expressly forbidden.

8 VAC § 35–60–20. DiGiacinto is not a student or employee of GMU, but he visits and utilizes the university's resources, including its libraries. He desires to exercise his right to carry a firearm not only onto the GMU campus but also into the buildings and at the events enumerated in 8 VAC § 35–60–20. DiGiacinto argued in his complaint that 8 VAC § 35–60–20 violates his constitutional right to carry a firearm, that GMU lacks statutory authority to regulate firearms, and that the regulation conflicts with state law.

GMU filed a demurrer and plea of sovereign immunity in response to DiGiacinto's complaint. GMU contended that while DiGiacinto could properly pursue constitutional claims to openly carry a firearm on campus, sovereign immunity barred all claims based on Virginia's concealed firearms statute, Code § 18.2–308, and claims challenging GMU's regulatory authority. The circuit court granted the plea of sovereign immunity regarding the statutory concealed firearms claims, but ruled that DiGiacinto could proceed on the open carry of firearms claims. The parties stipulated to the facts asserted in their trial briefs and, after hearing the legal arguments, the circuit court took the matter under advisement.

The circuit court held that sovereign immunity barred a declaratory judgment proceeding concerning the scope of GMU's regulatory authority, but even if sovereign immunity did not bar such a claim, GMU had the requisite authority to adopt 8 VAC § 35–60–20. The circuit court also held that 8 VAC § 35–60–20 was constitutional under both the Constitution of Virginia and the United States Constitution. The circuit court referred to District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and the facts, as stipulated by the parties, in explaining its decision:

Heller does not define what constitutes a sensitive place, but the Supreme Court lists as examples schools, [and] government buildings, “[p]resumably because possessing firearms in such places risks harm to great numbers of defenseless people; that is, children,” [and] the buildings are important to government functioning.

George Mason University notes there are 5,000 employees and 30,000 students enrolled, ranging from age 16 to even senior citizen age. Three-hundred fifty-two in the incoming Freshman class will be under the age of 18 beginning this semester. Approximately 50,000 elementary and high school students attend summer camps at the University. They use these academic buildings, which are part of the regulation. There is also a child development center in which approximately 130 student/employee children are enrolled [in the] preschool and ... both the libraries and the Johnson Center ... are regularly frequented by children ages two to five years old.

High school graduations, athletic games, concerts and circus performances are just a few of the family activities occurring on campus. The individuals who are part of this large community of interests clearly are the type of individuals whose safety concerns on a public university campus constitute a compelling State interest. The buildings and activities described in the regulations are those wherein the individuals gather: therefore, [they] are sensitive places as contemplated by [ Heller ]....

I find the regulation is constitutional.

The circuit court dismissed DiGiacinto's complaint with prejudice and ordered that GMU's regulation be sustained. DiGiacinto appeals.

II. Analysis

DiGiacinto argues that the circuit court erred in holding that GMU's regulation does not violate Article I, § 13 of the Constitution of Virginia and the Second and Fourteenth Amendments of the United States Constitution. He also contends that the circuit court erred in sustaining GMU's plea of sovereign immunity because Article I, § 14 of the Constitution of Virginia is a self-executing constitutional provision, and GMU did not have the authority to promulgate 8 VAC § 35–60–20.

DiGiacinto's argument that 8 VAC § 35–60–20 violates Article I, § 13 of the Constitution of Virginia and the Second and Fourteenth Amendments of the United States Constitution relies upon a primarily historical analysis. Describing 8 VAC § 35–60–20 as “effectually a total ban” on the right to bear arms on GMU's campus, DiGiacinto argues that the regulation is not narrowly tailored and violates the historic understanding of the right to bear arms.

GMU responds that the right to keep and bear arms is not an absolute right. It contends that, as recognized in Heller, the Second Amendment does not prevent the government from prohibiting firearms in sensitive places, which includes GMU's university buildings and widely attended university events. GMU further argues that 8 VAC § 35–60–20 is narrowly tailored because it allows individuals to lawfully carry firearms on the open grounds of GMU's campus.

Arguments challenging the constitutionality of a statute or regulation are questions of law that this Court reviews de novo on appeal. See Shivaee v. Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570, 574 (2005). The Second Amendment of the United States Constitution provides, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II.

Like the United States Constitution, the Constitution of Virginia also protects the right to bear arms. It states:

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

Va. Const. art. I, § 13. The interpretation of Article I, § 13 of the Constitution of Virginia is an issue of first impression. Whereas DiGiacinto contends that Article I, § 13 contains greater protections than afforded by the Second Amendment of the United States Constitution, GMU argues that, as relevant to this matter, the rights are co-extensive. We agree with GMU.

As noted by Professor Howard, the Virginia General Assembly incorporated the specific language of the Second Amendment—“the right of the people to keep and bear arms shall not be infringed”—into the existing framework of Article I, § 13 of the Constitution of Virginia. 1 A.E. Dick Howard, Commentaries on the Constitution of Virginia 273 (1974). As a result, the language in Arti cle I, § 13 concerning the right to bear arms is “ substantially identical to the rights founded in the Second Amendment.” Id. at 274.

This Court has stated that provisions of the Constitution of Virginia that are substantively similar to those in the United States Constitution will be afforded the same meaning. See, e.g., Shivaee, 270 Va. at 119, 613 S.E.2d at 574 (“due process protections afforded under the Constitution of Virginia are co-extensive with those of the federal constitution”); Habel v. Industrial Development Authority, 241 Va. 96, 100, 400 S.E.2d 516, 518 (1991) (federal construction of the Establishment Clause in the First Amendment “helpful and persuasive” in construing the analogous state constitutional provision). We hold that the protection of the right to bear arms expressed in Article I, § 13 of the Constitution of Virginia is co-extensive with the rights provided by the Second Amendment of the United States Constitution, concerning all issues in the instant case. Thus, for the purposes of this opinion, we analyze DiGiacinto's state constitutional rights and his federal constitutional rights concurrently.

The Supreme Court of the United States has held that the Second Amendment protects the right to carry and possess handguns in the home for self-defense. Heller, 554 U.S. at 634–37, 128 S.Ct. at 2821–22; see also McDonald v. City of Chicago, 561 U.S. ––––, ––––, 130 S.Ct. 3020, 3050, 177 L.Ed.2d 894 (2010) (plurality opinion), 3059 (Thomas, J., concurring). Individual self-defense is “the central component of the right itself.” Heller, 554 U.S. at 599, 128 S.Ct. at 2801. In Mc...