South Dakota legislators seem to think the state is suffering an undue and unreasonable restriction of constitutional rights on public college campuses.
This year has seen multiple pieces of legislation introduced to promote First Amendment free speech and Second Amendment right to bear arms on public campus grounds. With the introduction of these pieces of legislation—and their potential passage into law—it is important to determine what impact these rights have on college campuses and whether these rights require strengthening by our state legislature.
Recently, I read an argument between two of my friends on Facebook, one taking the position that our Second Amendment rights are currently being restricted or hindered, the other making the claim that the use of the Second Amendment on campuses potentially infringes on the students’ First Amendment free speech rights. This belief is not supported by reality.
The First Amendment guarantees there shall be no law which abridges the freedom of speech. Put another way, the First Amendment only protects your speech from being banned or suppressed by the government (or its actors). The First Amendment does not, however, protect you from another citizen at all. The simple use of the Second Amendment by one regular citizen does not infringe the First Amendment right of another regular citizen. So, while I do not believe guns on our campuses—held by regular citizens—is necessary, I will not support the misleading argument that it is because the Second Amendment might infringe on someone’s First Amendment right.
Now it is important to note infringement of a constitutional right is not per se unconstitutional, but such infringement must pass a judicial strict scrutiny test. There must be a compelling state interest, the law must be narrowly tailored to achieve a specific goal or interest, and the law must be the least restrictive way of achieving said goal or interest.
In District of Columbia v. Heller, the United States Supreme Court declared the restriction of carrying firearms in “sensitive places,” including schools, is constitutional. This holding means the current Board of Regents policy banning firearms is constitutional. While some say the Board of Regents has overstepped its authority, South Dakota state law currently vests “control of the public post-secondary educational institutions of the state.” This control extends the Board of Regents the authority to create policies regarding gun possession on campuses.
By drafting and introducing legislation looking to limit the Board of Regents control of our state’s public post-secondary educational institutions, the state legislature is proving it does not trust those officials who know best the needs, wants, and concerns of the students and staff at these institutions. The regents appointed to the Board are the state’s representatives—appointed by the Governor with the consent of the Senate. The regents are the best positioned to hear the concerns of not only the state, but also the concerns of students and staff at public post-secondary education institutions. This war on overstepping bureaucrats—as some have likened the Board of Regents—is misguided and ignorant of the facts: most of our state legislators are not experts on education policy or the running of public college campuses.
Thankfully, the SD Senate voted Senate Bill 122 down, but the fact that it was even introduced is alarming. We need to continue to trust our Board of Regents. Possession of firearms on campus and the protection of free speech are fair concerns—whether for or against these legislative proposals’ goals—and it is ill-informed to believe that one side is simply right on such complex issues. However, the Board of Regents, and not the state legislature, is best prepared to address these concerns.