33. DiGiacinto v. The Rector and Visitors of George Mason University, 281 Va. 127, 704 S.E.2d 365 (2011) January 13, 2011. A Dark and Sad Day in Virginia's History. The Regulation is Upheld as Constitutional and Valid by Subverting the Virginia Constitution.

"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...We hold that GMU is a sensitive place and that 8 VAC § 35-60-20 is constitutional and does not violate Article I, § 13 of the Constitution of Virginia or the Second Amendment of the federal Constitution...

GMU claims that Article I, § 14 is not a self-executing provision of the Constitution of Virginia. We disagree...Despite our conclusion that Article I, § 14 is self-executing, in order for DiGiacinto to prove a violation of that constitutional provision, he must establish that GMU, in promulgating 8 VAC § 35-60-20, functioned as a separate or independent government. The history of Article I, § 14 indicates that its origin related to the boundary problems that the Commonwealth faced during its inception: "Virginians were concerned that some of the land companies might attempt to create a new state within the boundaries of Virginia in order to enhance their chances of successfully defending claims to vast amounts of unsettled and sparsely settled land." 1 A.E. Dick Howard, Commentaries on the Constitution of Virginia 279 (1974). In the instant case, the argument that GMU, in promulgating 8 VAC § 35-60-20, was attempting to function as a separate government is without merit. GMU had statutory authority under Code § 23-91.29 to make regulations concerning the university. Therefore, GMU did not violate Article I, § 14.

Lastly, DiGiacinto argues that the General Assembly cannot acquiesce or delegate its powers away to GMU. Code § 23-91.24 makes clear that GMU is "subject at all times to the control of the General Assembly." The General Assembly did not improperly give or delegate its powers to GMU. Therefore, we hold that this argument likewise lacks merit.

Accordingly, for the reasons stated, we will affirm the circuit court's judgment."

34. Thanks to the Amicus the National Rifle Association and to all the others who supported this lawsuit.

Note to this decision by Virginia1774.org

The Commentaries by A.E. Dick Howard used by the Court states that Article I, § 13 is not an individual right. A.E. Dick Howard, Commentaries on the Constitution of Virginia at 277. ("The federal use of of the phrase "right to bear arms" has not been interpreted as intending an individual right to own weapons...Hence the sounder reading of Section 13 is that it no more embodies an individual right to use or own weapons than does the Second Amendment. Section 13 has its roots in the pre-revolutionary experience and speaks of the citizenry as a whole to prevent the seizure of militia arms"). The Court's citing of a discredited book on this very issue is troubling to say the least. The Court's assertion that: "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." is incorrect. The General Assembly did not add that wording to the Virginia Constitution as there was no convention. The people added those words by popular vote in 1970 and voted on its plain meaning. This fact was brought to the Court's attention by both the Appellant and the Amicus, the NRA. The people of Virginia did not give up or add any new right that did not already exist from the Ancient Charters of the Virginia Company of London and codified into § 13 of the Virginia Declaration of Rights on June 12, 1776. They certainly did not give up their rights under Virginia's Bill of Rights to a "living constitution" through the edicts of a judicially made-up and now perverted court doctrine of co-extensive protections repugnant to the Virginia Constitution. See Kamper v. Hawkins, 3 Va. (1 Va. Cases) 20, 38 (1793)("it is necessary that the Constitution of the state be fixed") The Court has it backwards. The Second Amendment is the progeny of Va. Const Art. I, § 13. "The Virginia Declaration of Rights was the first true Bill of Rights in the modern American sense, since it is the first protection for the rights of the individual contained in a Constitution adopted by the people acting through an elected convention... [I]ts importance as the source of the federal Bill of Rights may not be overemphasized... Every specific guarantee in the Virginia proposal, save one, later found a place in the federal Bill of Rights which was introduced in the first Congress by Madison as proposed by Virginia herself. Among those was the right 'to be confronted with the accusers and witnesses,' a lineal descendant of the phrase in the Virginia Declaration." United States v. Payne, 492 F.2d 449, 459-60 (4th Cir. 1974) (Widener, J., concurring and dissenting)." Satterwhite v. Commonwealth, __ Va. App. __ , __ S.E.2d __ (2010). "From all these instances it appears to me that this deduction clearly follows, viz. that the judiciary are bound to take notice of the [Virginia] constitution, as the first law of the land; and that whatsoever is contradictory thereto, is not the law of the land." Justice St. George Tucker, Kamper v. Hawkins, 3 Va. (1 Va. Cases) 20, 81 (1793).

"Yet we shou'd think we were deficient in the duty we owe to our Country, and to Posterity, if we suffered ourselves to become accessary to establishing a precedent evidently tending to introduce them, and by renewing the oppressive Maxims and Practices of the Government, from which we have so lately been rescued by force of Arms, to sap the foundations of that Liberty, which has been purchased at the expence of so much Blood & Treasure." George Mason, 1785.

The original Virginia Supreme Court ruled on the matter of unlawful authority and Va. Const. Art. I, § 14 in 1793 with Justice Roane stating the following:

To come now more immediately to the question before the court; can those who are appointed judges in chancery, by an act of assembly, without ballot, and without commission during good behavior, constitutionally exercise that office? The fourteenth article of the Virginia Constitution recites 'that the people have a right to uniform government; and therefore, that no government separate from, or independent of, the government of Virginia, ought to be erected or established within the limits thereof.' Here then is a general principle pervading all the courts mentioned in the Constitution from which, without an exception, we ought not to depart. If those may be judges who are not appointed by joint ballot, but by an act of assembly, the senate have in that instance more power than the Constitution intended; for they control the other branch, by their negative upon the law...For these reasons, and others which it would be tedious to enumerate, I am of opinion, that the clause in question, is repugnant to the fundamental principles of the Constitution ... Kamper v. Hawkins, 3 Va. (1 Va. Cases) 20, 40-42 (1793). See Also Transylvania Treasure or Treason? Clearly, any state agency must first have explicit permission from the General Assembly to legislate on rights protected by the Constitution.

The Court today stated, "Moreover, parents who send their children to a university have a reasonable expectation that the university will maintain a campus free of foreseeable harm. See Schieszler v. Ferrum College, 236 F. Supp. 2d 602, 606-10 (W.D. Va. 2002); Hartman v. Bethany College, 778 F. Supp. 286, 291 (N.D. W. Va. 1991)." GMU's regulation allows felons as police officers to be armed under Va. Code 18.2-208.2(B) so the Court's statement has not a shred of credibility. The Schieszler case as an example is inapplicable as it was a suicide case and in fact under that Court's holding would allow the Virginia Tech killer's family to sue Virginia Tech. Thirdly, college students are not children as the court suggests and as the Hartman case held, "As this Court has already discussed, parents and students do not expect colleges to play a role as surrogate parents... It is not reasonable to conclude today that seventeen year old college students necessarily require parental protection and supervision. If they did, society might place many more limitations upon the ability of a minor to attend college than currently exist. A college freshman is just that; whatever his or her age. A college does not stand in loco parentis to its seventeen year old college freshmen...Plaintiffs have provided no factual basis for a conclusion that Bethany College breached any duty to supervise, advise, warn, maintain a safe environment for or exercise due care over Heather Hartman sufficient to withstand defendant's motion for summary judgment." Hartman 778 F. Supp. 286 at 294-95. A far wiser and intellectually honest Supreme Court of Virginia properly noted in 1848:

"We know, as a matter of fact, that at the age of eighteen, a man is capable intellectually and physically of bearing arms; and that it is the military age recognized by the whole legislation of Congress, and of the State of Virginia, and of all the States of the Union, perhaps without exception. United States v. Blakeney, 44 Va. (3 Gratt.) 405, 418 (1847). During the war of the revolution, sixteen was the military age. All of that age were enrolled in the militia, subject to be drafted, or called out en masse; as was the case in our last war with England, in some of the lower counties of Virginia. In the war of the revolution, too, commissions were given to many who were not twenty-one years of age. I myself received a commission as first lieutenant in Col. Harrison's regiment of artillery, before I was seventeen years of age, whilst I was at school; and served three years, to the end of the war. The military age absolved all from the control of parents, guardians, or masters, as to military engagements and service, as of higher obligations to the country. Id. at 441."

The campus rules banning firearms and the militia didn't work at Virginia Tech., and not having arms by their side didn't work for the Great Massacre of March 22, 1622 at the University of Henrico etc. etc.. When foxes know the henhouse is unguarded, there is going to be chicken for dinner every night. Thus, the Court's opinion is also a direct assault upon the militia and the security of "a free state" as college students are not exempt from militia duty under Virginia Code § 44-5 nor are they removed from that duty of service to the community and the state under the Constitution "as the militia embraces the whole arms bearing population". See Burroughs v. Peyton, 57 Va. (16 Gratt.) 470 (1864).

Thomas Jefferson in proposing the requirements of students at the University of Virginia wrote: "Through the whole of the collegiate course, at the hours of recreation on certain days, all the students should be taught the manual exercise; military evolutions and maneuvers, and should be under a standing organization as a military corps, and with proper officers to train and command them." Letter of Thomas Jefferson to Peter Carr (Sept. 7, 1814) John C. Henderson, Thomas Jefferson's Views on Public Education, 203 (1890). In 1785 Thomas Jefferson wrote to his nephew Peter Carr on Peter's education at the College of William and Mary. Jefferson wrote, "[c]onsider what hours you have free from the school and the exercises of the school. Give about two of them every day to exercise; for health must not be sacrificed to learning. A strong body makes the mind strong. As to the species of exercise, I advise the gun. While this gives a moderate exercise to the body, it gives boldness, enterprise, and independence to the mind...Let your gun therefore be the constant companion of your walks." Letter of Thomas Jefferson to Peter Carr (Aug. 19, 1785) in 8 The Papers of Thomas Jefferson, 407 (Julian P. Boyd ed. 1953). These remarks and other colleges who formed their own student corps and defended the Commonwealth in times of war, shows that colleges in Virginia are not sensitive places, but are the training ground for the "practices of manhood" which is being trained to arms for militia duty.

Who will stand up and defend the Virginia Constitution when the modern Supreme Court violates its oath of office and refuses to do so? Violating the Constitution's commands guarantees a foreseeable harm not only to life and limb but to liberty itself. "Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." Mapp v. Ohio, 367 U.S. 643, 659 (1961).

The General Assembly authorizes firearms training at colleges through classes or courses open to the general public under § 18.2-308(G)(3) "(3. Completing any firearms safety or training course or class available to the general public offered by a law-enforcement agency, junior college, college, or private or public institution or organization or firearms training school utilizing instructors certified by the National Rifle Association or the Department of Criminal Justice Services;)". The Court today stated, "Lastly, DiGiacinto argues that the General Assembly cannot acquiesce or delegate its powers away to GMU. Code § 23-91.24 makes clear that GMU is "subject at all times to the control of the General Assembly." The General Assembly did not improperly give or delegate its powers to GMU." But Alas! this was all covered in the briefs and oral argument. It was argued that GMU has no authority to make law, only the General Assembly does and it never gave GMU authority to pass regulations inconsistent with the laws of the Commonwealth which GMU has done. The Court has misstated and twisted the arguments to suit their twisted outcome. For those who fought and perished to establish the Virginia Constitution upon the premise that the people are sovereign and to protect those "essential rights of human nature" from government encroachment, the modern Virginia Supreme Court cares not at all. "At their bidding all is changed. In a moment, the twinkling of an eye, the lion loses his appetite and the lamb his fear. Avarice and ambition, honor and patriotism are no more, all merge in a supine state of impossible toleration. To them the millions who have nobly perished for an ideal are fools, and a sexless creature too debased to care and too indolent to strive is held up for emulation." The Court has undermined the judicial branch's credibility that was once the shinning star in America that established judicial review allowing for courts to declare acts of the legislature as unconstitutional. Today that Court has become an aider and abettor in the destruction of the rights and liberties of the people no different than the heavy handed acts of the Crown in Virginia under Lord Dunmore in seizing the gunpowder and violating the British Constitution. Whether the name is a Dunmore or Goodwyn, or Kinser, or Hassell etc.,the result is the same. "[e]very attempt in any government to change the constitution (otherwise than in that mode which the constitution may prescribe) is in fact a subversion of the foundations of its own authority." 1 St. George Tucker Blackstone's Commentaries, 19-20 (William W. Birch & Adam Small 1803). Subverting the Constitution of Virginia to the U.S. Constitution through the doctrine of co-extensive protections when the Virginia Constitution predates the U.S. Constitution, has its own well established history including bearing arms at colleges, and affords greater protections is another direct assault upon the Virginia Constitution and the people's rights.

"What is the Constitution but the great contract of the people, every individual whereof having sworn allegiance to it? A system of fundamental principles, the violation of which must be considered as a crime of the highest magnitude... In short, can one branch of the government call upon another to aid in the violation of this sacred letter? The answer to these questions must be in the negative...." Kamper v. Hawkins, 3 Va. (1 Va. Cases) 20, 24 (1793). These words were written by Justices of great honor and distinction which they earned not because of their wealth and education, but because of their faithfulness to the commands of the Virginia Constitution: "But previous to the promulgating the plan of government, these deputies declared that certain rights were inherent in the people, which the public servants who might be entrusted with the execution of this government, were never to be permitted to infringe...having reserved many fundamental rights to the people, which were declared not to be subject to legislative control..." Kamper v. Hawkins, 3 Va. (1 Va. Cases) 20, 47- 48 (1793).

"An instance within the memory of some of this house, will shew us how our militia may be destroyed. Forty years ago, when the resolution of enslaving America was formed in Great-Britain, the British parliament was advised by an artful man, [Sir William Keith] who was governor of Pennsylvania, to disarm the people. That it was the best and most effectual way to enslave them. But that they should not do it openly; but to weaken them and let them sink gradually, by totally disusing and neglecting the militia. [Here Mr. Mason quoted sundry passages to this effect.] This was a most iniquitous project. Why should we not provide against the danger of having our militia, our real and natural strength, destroyed?" Statement of Colonel George Mason, (June 14, 1788) in 3 The Papers of George Mason, 1725-1792, at 1074-1075 (Robert A. Rutland ed. 1970).

The Supreme Court of Virginia has willfully and maliciously removed the Virginia Bill of Rights from legal existence and declared the people of Virginia outside of the protection of their own Constitution and in doing so the Court has "abandoned the helm of government" and committed a "crime of the highest magnitude". The Court has proclaimed that individuals cannot be trusted, but the Court in usurping the sovereignty of the people in a fit of delusion believes it is far wiser than the people themselves and their Constitution. The Court of course legally and morally condemns itself. "Sometimes it is said that man cannot be trusted with the government of himself, can he then be trusted with the government of others? Or have we found angels in the form of Kings to govern him?" History has answered that question and the Court's brazen attack upon the rights of the people and neutering the Declaration of Rights have forfeited the Court's judicial authority and what honor they had. "Misdirection is the heart of magic and the life blood of the tyrant."©

Postscript: "Broad declarations of co-extensiveness may, in some instances, deprive Virginians of their rights. Whether a clause of the Virginia Constitution would, in a particular situation, afford broader protection than an equivalent provision in the Bill of Rights is something that is not easily answered in the abstract. The answer would depend on an analysis of text, history, and precedent in the context of case-by-case adjudication. To the extent such an analysis leads to the conclusion that the protections afforded by the Virginia Constitution are broader than those offered by the United States Constitution, Virginians should not lose the benefit of those protections.28" McCullough, A Vanishing Virginia Constitution? 46 U. Rich. L. Rev. 347, 353-54 (2011). "Some of the most important protections embodied in the Virginia Constitution should not be relegated to irrelevance by sweeping declarations that they are co-extensive with provisions found in the United States Constitution. Instead, a determination of the scope of a provision under the Virginia Constitution should be made on a case-by-case basis, following an examination of text, history, and precedent." Id. at 357...Suppose, for example, that a new United States Supreme Court majority reverses the District of Columbia v. Heller26 decision, and concludes that the Second Amendment protects a collective rather than an individual right to bear arms. Would article I, section 13 of the Virginia Constitution, which has been declared to be co-extensive with the Second Amendment, simultaneously recede along with the new holding of the United States Supreme Court? This is by no means a farfetched scenario. The Supreme Court can and does overrule its own precedent, expressly or in practical effect.27...That, however, is the inescapable outcome for those clauses of the Virginia Constitution that are tethered to the federal constitution." Id. at 353.