Virginia AG Cuccinelli Says Carry Permits Trump UVA ‘No-Guns’ Policy

Virginia Attorney General Ken CuccinelliIn response to an inquiry by Senator Emmett W. Hanger, Jr. (R – District 24), on July 1st Virginia Attorney General Ken Cuccinelli issued an opinion  addressing the constitutionality and validity of a University of Virginia policy banning  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.

In the opinion, Attorney General Cuccinelli distinguished his analysis between the constitutional right to open carry and the statutory privilege granted by a concealed handgun permit.

As might be expected, much of the opinion was concerned with analogizing to DiGiacinto v. Rector and Visitors of George Mason University.  In DiGiacinto, decided January 13th of this year, the Virginia Supreme Court held that George Mason University’s regulation banning firearms in university buildings was constitutional.

However, the key distinction between the regulation at issue in DiGiacinto and UVA’s policy is a matter of administrative law.  In Virginia, regulations are promulgated via the due process protections in Virginia’s Administrative Process Act, and when properly promulgated have the force and effect of law.  Policies on the other hand do not have the force of law nor can they survive a direct conflict with a regulation or a statute.

In DiGiacinto, the regulation, having been properly promulgated and having the full force and effect of law, triggered the prohibition in 18.2-308(o):

[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[.]

However, the UVA policy, not having the force and effect of law, does not trigger any statutory prohibition.  Failing such a finding, it is to be assumed that the General Assembly intended the privilege granted by the concealed handgun permit to supersede any such policy.

As Attorney General Cuccinelli noted,  “[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.

Disappointingly, the opinion simultaneously held that such a policy, developed subject to the powers statutorily granted to UVA to formulate such policies, and sufficiently narrowly tailored, would prohibit the open carry of firearms, even by permit holders, subjecting offenders to possible trespassing charges.

It is interesting to note that Attorney General Cuccinelli, who was criticized by some for his office’s defense of GMU in DiGiacinto, took the opportunity to make a pro-gun editorial comment in the UVA opinion.

“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.”

The lesson to be taken from both DiGiacinto and this opinion is that preemption needs to be expanded to cover agency action.  I expect that this will be a continuing goal of the Virginia Citizens Defense League in 2012.

© 2011, John Pierce. All rights reserved.


About John Pierce

Monachus Lex is written by Virginia attorney John Pierce. John is a life-long gun rights advocate, an NRA certified instructor and co-founder of the nationwide gun rights group OpenCarry.org.

He has an undergraduate degree in Computer Information Systems, an MBA from George Mason University and is a 2012 Honors Graduate of Hamline University School of Law in St. Paul, MN.

Professionally, John is a member of the American Bar Association Second Amendment Civil Rights Litigation Subcommittee and his writings have been published by the ABA Civil Rights Litigation Committee and the ABA Minority Trial Lawyer Committee.

In addition, his open carry advocacy has been featured on Nightline and The Daily Show With Jon Stewart.
This entry was posted in Administrative Regulations, Campus Carry, Concealed Carry, Open Carry, State Laws, Virginia. Bookmark the permalink.

8 Responses to Virginia AG Cuccinelli Says Carry Permits Trump UVA ‘No-Guns’ Policy

  1. Garp says:

    The Utah Valley University has implemented a similar policy not allowing open carry on campus although the Utah Constitution states that no agency can implement such rules. The campus police have stated publicly that anyone caught will be cited for disorderly conduct, removed from campus and face complete removal from their course of study.

  2. Guyver says:

    This a step in the right direction, but UVa employees and students are still subject to the policy and can be fired or expelled for having a firearm on-grounds even if they do have a concealed carry permit.

    Is there a legal recourse if you are dismissed or expelled for possessing a firearm on-grounds while holding a valid concealed carry permit? As a staff member, I’d rather not lose my job, but would still like to able to defend myself.

    • Redshift says:

      Concealed means concealed. Nobody should ever know-except in a deadly situation. If it came to it, I’d rather be jobless and alive than dead and un-armed.

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