DiGiacinto v. The Rectors and Visitors of George Mason University

 

Gunston Hall and Mr. Mason

"To shew you that I have not been an idle Spectator of this great Contest, and to amuse you with the Sentiments of an old Friend upon an important Subject I inclose you a Copy of the first Draught of the Declaration of Rights, just as it was drawn by me, & presented to the Virginia Convention, where it received few Alterations; ...We have laid our new Government upon a broad Foundation, & have endeavoured to provide the most effectual Securties for the essential Rights of human nature, both in Civil and Religious liberty; the People become every Day more & more attach'd to it; and I trust that neither the Power of Great Britain, nor the Power of Hell will be able to prevail against it." George Mason, Oct. 2, 1778.


 

"GMU has a strict ban on guns and School Spokesman Dan Walsch says that is not likely to change. He says anyone not affiliated with the university who carries a gun on campus -- even with a permit -- will be asked to leave.

"There was a little ambiguity in our policy prior to Virginia Tech, and this hopefully helped erase any doubts as to where we are coming from." WTOP Radio, April 1, 2008.

 

Case No: 2008-14054 (County of Fairfax)

 

1. Bill of Complaint  - Filed October 27, 2008.

2. Defendant Was Served by the Sheriff on October 31, 2008.

3. Answer and Grounds of Defense by GMU - Filed on November 21, 2008.

4. Defendant's Memorandum for the Plea of Sovereign Immunity, Demurrer & Motion to Dismiss: March 20, 2009.

5. Plaintiff's Memorandum In Opposition to the Plea of Sovereign Immunity, Demurrer and Motion to Dismiss: Filed March 23, 2009.

6. Hearing on Sovereign Immunity, Demurrer, and Motion to Dismiss: April 10, 2009.

The hearing was held and oral arguments lasting Fifteen minutes produced no result. The Commonwealth (GMU) conceded as they did in their brief that Art. I, § 13 is a self-executing constitutional provision that waives their sovereign immunity. They would not concede that Art. I, § 14 was a self-executing constitutional provision and Counts II & III should be stricken. That was the sticking point. The Judge has stated that she will need to take more time to decide the issue as it is complicated. The oral arguments were recorded by a court reporter.

7. ORDER by The Court: April 27, 2009. Sovereign Immunity bars concealed carry on review by the court. The right to keep and bear arms openly goes forward. See: State Board For Community Colleges v. Calvert as cited in the ORDER.

8. Plaintiff's Opening Brief : June 11, 2009.

9. Defendant's Opening Brief : Filed June 12-15, 2009, Due by the 11th.

10. Plaintiff's Brief in Response To Defendant's Opening Brief : June 26, 2009.

11. Defendant's Brief in Response To Plaintiff's Opening Brief : June 26, 2009.

12. Plaintiff's Reply Brief : Filed July 7, 2009.

13. Defendant's Reply Brief : July 10, 2009.

14. July 22, 2009. Oral Arguments lasting one hour were heard. The case was taken into consideration by the Judge and his opinion will be released on July 31, 2009.

15. July 31, 2009: The Judge issued an oral opinion on the entire case on the merits.The following transcript has been corrected by an Order of the Court of August 14, 2009 for typographical errors. The July 31, 2009 Opinion.

16. August 14, 2009: The Final Order

17. August 17, 2009: Filing of the Transcript of the Trial of July 22, 2009.

18. August 17, 2009: Filing of the Notice of Appeal to the Virginia Supreme Court.

19. September 23, 2009: Filing of the Petition for Appeal to the Virginia Supreme Court.

20. October 9, 2009: Filing of the Brief in Opposition to the Petition for Appeal to the Virginia Supreme Court.

21. February 9, 2010: Writ Panel of the Virginia Supreme Court Scheduled for this case. Canceled due to snow Historic Blizzard.

22. February 10, 2010: Writ Panel by Teleconference of the Virginia Supreme Court Scheduled for this case. The Case was Heard by Justices Leroy Hassell, Harry Carrico and Leroy Millette, Jr.

23. March 30, 2010: Appeal Granted by the Virginia Supreme Court.

24. April 5, 2010: The Appeal Bond has been filed and the Joint Designation of the Appendix.

25. May 3, 2010: Amicus Curiae Brief of the National Rifle Association in Support of Appellant filed with the Supreme court.

26. May 5, 2010: The Joint Appendix and the Appellant's Opening Brief were filed with the Supreme court.

27. May 7, 2010: Amicus Curiae Brief of the Virginia Citizens Defense League filed with the Supreme court. [VCDL's Amicus Brief was not accepted by the Court].

28. May 20, 2010: Brief of Appelles, The Rector and Visitors of George Mason University filed with the Supreme court.

29. May 24, 2010: Reply Brief of Appellant, was filed with the Supreme court.

30. August 28, 2010: Letter received from the Virginia Supreme Court establishing the November sitting of the Court as a probable date for the Oral Arguments of this Case.

31. October 15, 2010: Oral Arguments For this Case set for November 1, 2010.

32. November 1, 2010: Oral arguments for this case were heard. Listen to the opening minutes of the Arguments




 

Please Maintain the History


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.



Postscript

Some noteworthy cases have been decided since this opinion was issued and other legal material has been written concerning this case and are posted here. The opinion has many flaws that are much more serious than simple mistakes and has removed the Virginia Constitution from legal existence. Without the Constitution of Virginia, the Court has no authority to sit, as it derives its power to render judgments from the Constitution. "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). "[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).

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 following law review journal had this to say about the legal holdings of the case:

"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.

One of the cases before the Court which it apparently gave no weight, was decided a few months later with a different result than the Virginia Court: Colorado Supreme Court Unanimously Rejects University Gun Ban, March 5, 2012 Regents of the University of Colorado v. Students for Concealed Carry on Campus (2012).


A 2012 law review article on administrative law details the history of the case: Jones, Administrative Law 47 U. Rich. L. Rev. 7, 21-26 (2012) citing DiGiacinto v. The Rector and Visitors of George Mason University, 281 Va. 127, 704 S.E.2d 365 (2011).

"As far as the court was concerned, when the General Assembly conferred on GMU's Board of Directors the power to make "all needful rules and regulations concerning the University," that general delegation of rulemaking authority encompassed "regulations . . . that promote safety on GMU's campus." 85 Taking note that the prohibition was not general, that is, it left open the carriage to campus of firearms in other circumstances, the court sustained the regulation.86"