DiGiacinto vs. the Rector and Visitors of George Mason University at VA Supreme Court today

by admin on Nov.01, 2010, under Uncategorized

Today I heard the oral arguments of Rudolph DiGiacinto vs. GMU. This is a significant case on many fronts and has been brewing for some time. In fact our current Attorney General here in Virginia gained infamy with his candidate proclamation that he thought the GMU ban was indefensible and that he would tell them so if the case were to continue into his tenure as AG.


Today, Cuccinelli’s henchmen argued for the police state enthusiasts with incendiary phrases such as “newly found right to keep and bear arms” and a lot of the phrase “sensitive places”. Basically the position of the Virginia AG post election is 100% different from his position as a candidate.

Here’s how the case was played out. Up first was appellant DiGiacinto. In summary, he reminded the court that significant developments had occurred since the briefs were submitted, chief among them the McDonald decision applying the 2nd Amendment of the US Constitution as a restriction upon the several States. He then urged the court to consider this case using the strict scrutiny standard. Here is where things got interesting. In debunking the “sensitive places” myth, he pointed out that the US Supreme Court had just made up the phrase, and that the concept had previously been rejected by the Supreme Court in US vs. Lopez; Justice Breyer used the argument in his dissent in Lopez – – but the full court overturned the Lopez conviction, remanding. Breyer reminded the court in both the Heller and McDonald dissents that “Sensitive places” was totally made up with no basis in law or ruling. Breyer’s dissent from McDonald had this to say.

DiGiacinto continued that Virginia 18.2-308, the ‘personal protection’ law provides:
…(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;

So the General Assembly of Virginia has the full expectation that there will be firearms on college campuses and that by enacting their gun ban they deny citizens, students and otherwise the right to keep & bear arms as well as pointing out that being a college student does not excuse one from militia service. The significance being that a well regulated militia is also secured by the 2nd Amendment and Virginia’s Article 1, Section 13.

DiGiacinto went on to point out that GMU did not take the “least restrictive option” in regulating as would be required under a strict scrutiny test since the GMU regulation amounts to a total firearms ban, and that by enacting such a ban GMU stepped outside their statutory grant of authority. This is significant in Virginia because in so doing they broke the law and under the Virginia Supreme Court ruling Gray vs. Sec’y of Transportation that waives sovereign immunity. “…we conclude that certain constitutional provisions are self-executing and thus waive the Commonwealth’s sovereign immunity…” All this means that if the court finds this – and, one of the Justices stopped both sides to inquire about this very issue, then GMU can in fact be sued and cannot hide behind the “sovereign immunity skirt tails”. Next DiGiacinto pointed out that :

“no law shall be enacted except by bill”. Virginia Constitution, Article 4, Section 11.
Virginia’s personal protection law says in paragraph O: The 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 or is prohibited by the owner of private property.

This basically preempts the field of where a concealed handgun permit is valid and by doing so the General Assembly states unambiguously that agencies may not regulate in this legal area. Finally that the word ‘law’ is a term of art defined in Virginia’s Constitution; as enacted by a bill or a ‘statutory law’ because statutory laws are superior to the administrative code. The close was a reference to Poindexter vs. Greenhow basically asserting that by stepping outside the statutory grant of authority given by the General Assembly, GMU cannot hide behind the sovereign immunity skirt tails any more.

Next came Cuccinelli’s henchmen.

The henchman in charge started off by declaring that ‘we have found out 3 things as a result of the newly found right to keep and bear arms since the Heller decision. People have an individual right to own and keep handguns in the home, this is applicable against the states and any sensitive restrictions must be upheld.’ The sensitive places comments weren’t dicta, and even if they were dicta they are so persuasive as to warrant special consideration like a precedent.

The henchman went on to assert that GMU’s gun ban isn’t a total ban, and therefore it passes strict scrutiny. He cited the current Governor’s opinion on the regulation. That’s a misquote as Judith Jadgman actually had the opinion authored, Governor McDonnell simply agreed with it.

Next, the henchman said that Virginia’s Article 1, Section 14 – the right to uniform government had “no modern application” so the court shouldn’t even consider it. Here the justices questioned the henchman on this. Specifically whether this was a self executing constitutional provision and whether or not the court needed to reach this argument.

The henchman continued that GMU’s firearms ban, ~2 years old, qualified as a “long standing” prohibition pursuant to Heller. He moved on to the ‘standard of review’ again, and proclaimed that no matter what standard of review was chosen, certainly not strict scrutiny, GMU’s long standing, non-total restriction easily survives strict scrutiny.
He was particularly condescending to the court in this proclamation. The Henchman closed out with a novel assertion – the GMU ban was a ubiquitous “time, place & manner” regulation that was routinely upheld against all types of fundamental rights.

These are the words of the “so called” pro-gun Attorney General of Virginia via his trusty henchmen.

A comprehensive history of the lawsuit against GMU can be viewed at

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