The ongoing lawsuit over whether the University of Missouri should allow some or all of its faculty, staff and students to have firearms on campus is in the final stages of an appeal.
The university’s attorney, Robert Thompson, on Monday filed the brief arguing that the Western District Court of Appeals should uphold Circuit Judge Jeff Harris’ November 2019 decision in favor of the current rules, which don’t allow guns.
Only a reply from Attorney General Eric Schmitt’s office remains to be filed before the court hears oral arguments. No date has been set for a hearing.
In the brief filed Monday, Thompson argued that nothing in recently enacted laws or changes to the Missouri Constitution alters the validity of the university’s rules.
"Indeed, the Missouri Supreme Court has held since the 1880s that the right to keep and bear arms does not extend to school property, which is consistent with the original meaning and understanding of the right," Thompson wrote.
The university declined to comment on the case. Spokesman Christian Basi referred to the brief as the UM System’s statement.
The litigation began in 2015 when Royce Barondes, a professor of law, filed suit in Cole County challenging the university rules. Those rules state that guns are prohibited on campus unless the Board of Curators grants an exception, which in current practice limits the possession of firearms to security personnel and ROTC students.
The attorney general’s office became involved in 2016 when the then-officeholder, Chris Koster, a Democrat, filed a similar lawsuit. The two cases were combined and have continued under Republicans Josh Hawley, elected to replace Koster, and Schmitt, appointed when Hawley was elected to the U.S. Senate.
In the state’s appeal brief, filed in June, state solicitor general John Sauer told the court that Harris made four errors in his decision upholding the rule. The first, he wrote, occurred in September 2018 when Harris ruled on a statute exempting state employees from prosecution for unlawful use of a weapon for having a gun in their car while it was parked on state property.
The law should have made the university’s rule invalid, Sauer argues, but Harris ruled it only applies to a criminal prosecution.
On constitutional questions, Sauer wrote, Harris incorrectly put the burden of proof on Schmitt to show the rule is unconstitutional, misapplied the law and should not have admitted testimony from UM System President Mun Choi.
"He was not identified as an expert witness before trial, but at trial, he repeatedly offered opinion testimony based on extensive hearsay, such as studies he had read and conversations he had, over the state’s numerous objections," Sauer wrote.
The attorney general’s office declined through spokesman Chris Nuelle to comment beyond what is in the brief.
A third brief, filed as a friend-of-the court by the Mexico-based Freedom Center of Missouri, urges the appeals court to send the case to the Missouri Supreme Court. Harris, as well as the appeals court judges, are bound by the precedents set by the Supreme Court and under most readings of precedent, David Roland wrote, Schmitt will lose.
"Even without transfer, the appeals court could find it violates the constitution," Roland wrote.
The judges would need to point to the lack of evidence shown at trial that the university actively considered less-restrictive rules instead of just deciding not to change the current rule, Roland wrote.
The rule could apply to people who have shown they are dangerous or it could be revised to allow employees to arrive at work with a gun in their car as a defensive weapon and place it in the trunk while on the job, he wrote, echoing arguments from Schmitt’s brief.
"In short, the gun ban is the equivalent of using a sledgehammer to kill a fly," Roland wrote.
The litigation began as a way to test language added to the Missouri Constitution in 2014. Voters approved new language that supporters said strengthened gun-owner rights.
"The rights guaranteed by this section shall be unalienable," the new provisions read. "Any restriction on these rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement."
The Missouri Supreme Court, however, has ruled that the new language was a restatement of rights that did not fundamentally change how guns were to be regulated in the state.
The laws allowing concealed weapons state that they may not be brought to schools, including higher education institutions, without approval.
In an interview, Roland said he wants the high court to take the case so it can revisit precedent. The burden of proof issue is key, he said, because it should be the government agency restricting a right, not the parties challenging it, that has the burden of proof.
Harris put the burden on Schmitt, Roland said.
"This is part of the idea of strict scrutiny, that the government bears the burden of justifying an infringement on a constitutional right," he said.
In the university’s brief, Thompson wrote that the attorney general’s office was incorrect when it suggested that the university should have considered less-restrictive rules and only tightened when necessary. In the same sentence, Thompson took a veiled swipe at Barondes as well.
"The implication of the Attorney General’s argument is that, if he (or perhaps an enterprising law professor) can conceive of a modification of the rule that would allow firearms on campus, and it is at least possible that no one would be injured as a result, the university must make a modification to the rule," Thompson wrote.