RUDOLPH DIGIACINTO v. THE RECTOR AND VISITORS OF GEORGE MASON UNIVERSITY
Record No. 091934
Supreme Court of Virginia
January 13, 2011
JUSTICE S. BERNARD GOODWYN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael P. McWeeny, Judge
In this appeal, we consider whether
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
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.
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,
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
Heller does not define what constitutes a sensitive place, but the Supreme Court lists as examples schools, [and] government buildings, “[p]resumably because possessing firеarms 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 thе 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
DiGiacinto‘s argument that
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
Arguments challenging the constitutionality of a statute оr 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.”
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 peаce, 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.
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 оf 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
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)
The Supreme Court of the United States has held that the Second Amendment protects the right tо carry and possess handguns in the home for self-defense. Heller, 554 U.S. at 628-29, 128 S.Ct. at 2821-22; see also McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 3050 (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 McDonald, the Court further held that the Second Amendment applies to the states by way of the Fourteenth Amendment, 561 U.S. at 791, 130 S.Ct. at 3050 (plurality opinion), or the Privileges and Immunities Clause, id. at 3059 (Thomas, J., concurring).
nothing in our opinion should be tаken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Heller, 554 U.S. at 626-27, 128 S.Ct. at 2816-17. The Supreme Court further explained its assertion by noting, “[w]e identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.” Id. at 627 n.26, 128 S.Ct. at 2817 n.26.
The Supreme Court stated in McDonald:
It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” We repeat those assurances here.
561 U.S. at 786, 130 S.Ct. at 3047 (plurality opinion) (internal citations omitted) (quoting Heller, 554 U.S. at 626-27,
Neither Heller nor McDonald casts doubt on laws or regulations restricting the carrying of firearms in sensitive places, such as schools and government buildings. Indeed, such restrictions are presumptively legal. Heller, 554 U.S. at 627 n.26, 128 S.Ct. at 2817 n.26. In the instant сase, GMU is a public educational institution and an agency of the Commonwealth. George Mason University v. Floyd, 275 Va. 32, 37, 654 S.E.2d 556, 558 (2008); see also
It was stipulated at trial that GMU has 30,000 students enrolled ranging from age 16 to seniоr 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 schoоl and that its buildings are owned by the government indicates that GMU is a “sensitive place.”
Further, the statutory structure establishing GMU is
Recognizing the sensitivity of the university environment, the General Assembly established “a corporate body composed of the board of visitors of George Mason University” for the purpose of entrusting to that board the power to direct GMU‘s affairs.
GMU promulgated
DiGiacinto also argues that the circuit court erred in sustaining GMU‘s plea of sovereign immunity regarding his claim that GMU did not have authority to promulgate
“[Sovereign immunity] is an established principle of sovereignty . . . that a sovereign State cannot be sued in its own courts . . . without its consent and permission.” Gray v. Virginia Sec‘y of Transp., 276 Va. 93, 101, 662 S.E.2d 66, 70 (2008) (citation and quotation marks omitted). “As a general rule, the Commonwealth is immune both from actions at law for damages and from suits in equity to restrain governmental action or to compel such action . . . . Sovereign immunity may also bar a declaratory judgment proceeding against the Commonwealth,” Afzall v. Commonwealth, 273 Va. 226, 231, 639 S.E.2d 279, 282 (2007) (citations and quotation marks omitted), and does so for merely statutory claims.1
However, sovereign immunity does not preсlude declaratory and injunctive relief claims based on self-executing provisions of the Constitution of Virginia or claims based on federal law. Gray, 276 Va. at 104-07, 662
Article I, § 14 provides, “That the people have a right to uniform government; and, therefore, that no government separate from, or independent of, the government of Virginia, ought tо be erected or established within the limits thereof.” This Court has articulated the following characteristics of a self-executing provision:
A constitutional provision is self-executing when it expressly so declares. See, e.g.,
Va. Const. art. I, § 8 . Even without benefit of such a declaration, constitutional provisions in bills of rights and those merely declaratory оf common law are usually considered self-executing. The same is true of provisions which specifically prohibit particular conduct. Provisions of a Constitution of a negative character are generally, if not universally, construed to be self-executing. . . . . A constitutional provision may be said to be
self-executing if it supplies а sufficient rule by means of which the right given may be employed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law.
Gray, 276 Va. at 103-04, 662 S.E.2d at 71-72 (internal quotation marks omitted) (quoting Robb v. Shockoe Slip Found., 228 Va. 678, 681-82, 324 S.E.2d 674, 676 (1985)). Moreover, “[i]f a constitutional рrovision is self-executing, no further legislation is required to make it operative.” Id. at 103, 662 S.E.2d at 71 (citations omitted).
Despite our conclusion that Article I, § 14 is self-
Lastly, DiGiacinto argues that the General Assembly cannot acquiesce or delegate its powers away to GMU.
III. Conclusion
Affirmed.