Yes, you read that right, and despite all of the headlines saying the exact opposite, it’s true. In fact, the Court declined to even address the issue, which is why I now write this op-ed.
Last Friday, the Michigan Supreme Court published a 4-3 ruling finding that Clio Area School District’s weapons policies are not field preempted, but declined to address whether or not their policies are conflict preempted.
If you don’t understand the difference between those two types of preemption, don’t feel bad. You are in good company, along with nearly everyone in the state, save for a relatively small number of legal minded individuals. With that in mind, here is a crash course.
Field preempted means that an entity cannot have policies regulating a certain topic, even if there is no superior law on the matter. In our case, this would mean that schools would be barred from having any policies relating to firearms.
Conflict preempted means that an entity may regulate a certain topic, however their regulation must bow to superior law where the two conflict. In our case, this would mean that schools may have policies relating to firearms, but those policies may not prohibit what is allowed by state law nor permit what is prohibited by state law.
Now that you have the basics, remember that the Court only addressed field preemption, not conflict preemption. This means the Court said that schools may regulate up to state law, but didn’t address whether or not schools can go beyond state law. Also remember that state law allows for firearms to be lawfully possessed on school property in certain circumstances, including openly carried holstered pistols by CPL holders, and concealed carry of the the same for “exempt” CPL holders.
Given that Michigan Open Carry’s lawsuit was over a policy that went beyond state law, and that from the very beginning we asked the Courts to find CASD’s policies void where they conflicted with state law, the ruling of the Michigan Supreme Court is profoundly baffling.
After years’ worth of work and a considerable amount of money spent on all sides, the highest court in the state, the self-described “Court of last resort”, PUNTED on the most important issue.
This means we’re not done. Believe me, I wish that were not the case, but it is.
We at Michigan Open Carry concur entirely with the following from Justice Wilder’s dissent, in which he was joined by Justice Zahra:
“By narrowly addressing only the issue of field preemption, the majority has not settled this statutory dispute. That is, in order to fully resolve the ultimate issue before us—whether state law preempts the respective school policies—it is necessary to determine whether those policies are in conflict with one or more statutes enacted by the Legislature. The majority has provided only partial guidance and left lingering doubts.
The conflict-preemption issue presented by these cases is one that will surely be relitigated; it is just a question of when.”
If you are a school district in the State of Michigan that thinks you are now free to throw the safety of our children to the wind, and ban all firearms, I urge you caution. Such policies have led to tragedy far too many times across the nation, and we are prepared to do everything we can to prevent the same from happening here.
The full 60 page opinion can be read here. Be sure to read Chief Justice Markman's dissent. The claim that MOC "abandoned" the conflict argument is complete nonsense, which is why nearly all of the footnotes supporting the claim point to arguments from the other case. The SCoM likely avoided this issue because of how strongly it favored us.
Michigan Open Carry, Inc.