Clarifying My Position on the AG's Opinion

I've a few questions about the Attorney General's Official Opinion on College Carry.

It is well established in Virginia that a university, through its board, "‘has not only the powers expressly conferred upon it, but it also has the implied power to do whatever is reasonably necessary to effectuate the powers expressly granted.’" This broad authority does not, however, supersede statutory or case law, public policy, or explicit statements of the General Assembly regarding specific topics.

The powers expressly conferred and possessed by the governing body of an educational institution include the authority "[t]o establish rules and regulations for the conduct of students while attending such institution" and "[t]o establish rules and regulations for the employment of professors, teachers, instructors, and all other employees and provide for their dismissal for failure to abide by such rules and regulations."

The University of Virginia has promulgated a "Security and Firearms Policy," which provides that "[t]he possession, storage, or use of any kind of ammunition, firearms, fireworks, explosives, air rifles and air pistols on University-owned or operated property, without the expressed written permission of the University Police, is prohibited."

It is my opinion that the safe operation of the campus allows regulation of, or under limited circumstances, prohibition of, firearms by any persons attending events on campus, visiting dormitories or classroom buildings, attending specific events as invitees, or under any circumstance permitted by law. The universal prohibition of firearms by properly permitted persons other than students, faculty, administration, or employees, however, is not allowed under law. A board of visitors has responsibility for the protection of the students enrolled at their university. At the same time, the rights guaranteed by the Second Amendment of the Constitution of the United States and by Article I, § 13, of the Constitution of Virginia, which protect all citizens, may not be summarily dismissed for transient reasons.

In light of the General Assembly’s specific statements regarding the limits of carrying concealed handguns and the grant of authority to colleges and universities to regulate the conduct of students and employees, it is my opinion that neither a board of visitors nor a president of a public college or university may infer authority from its enabling legislation to adopt a universal prohibition of carrying concealed handguns by holders with valid permits.

It is clear from the context of the opinion that the AG did not intend to support an unlimited blanket prohibition of concealed carry by permit holding students. He cites UVA's policy which allows for concealed carry with explicit written permission of the campus police. UVA Wise had no such policy. It's not regulation, it's a blanket prohibition dismissing Constitutional rights for transient reasons.

Also note that AG opinions are non-binding.

He fails to address the pre-emption law or Dillon's Rule.

Let's Look at the Law, Not Political Expediency

§ 15.2-915. Control of firearms; applicability to authorities and local governmental agencies.

A. No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by § 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute. For purposes of this section, a statute that does not refer to firearms, ammunition, or components or combination thereof, shall not be construed to provide express authorization.
...
The provisions of this section applicable to a locality shall also apply to any authority or to a local governmental entity, including a department or agency, but not including any local or regional jail or juvenile detention facility.
B. Any local ordinance, resolution or motion adopted prior to the effective date of this act governing the purchase, possession, transfer, ownership, carrying or transporting of firearms, ammunition, or components or combination thereof, other than those expressly authorized by statute, is invalid.

UVA is a governmental entity (administered locally BTW) here

UVA as an agency here.

Under the Administrative Process Act, an “Agency”
is defined as “any authority, instrumentality, officer, board or
other unit of the state government empowered . . . to make
regulations or decide cases.” Code § 2.2-4001 (emphasis added).
To this effect, Code § 23-14 states that all state-affiliated
four-year universities are “governmental instrumentalities;”
Code § 23-9.2:3 supplies the “governing body of every
educational institution” with the power to promulgate certain
necessary “rules and regulations.” Perhaps most significantly,
Title 8 of the Virginia Administrative Code actually denominates
University of Virginia which administers UVA-Wise within its text as the Commonwealth’s
“Agency No. 85.” 8 V.A.C. 85, Agency Introduction.

UVA as a corporate authority here (shaky, but do-able argument)

UVA Wise's Campus Police is a Department here

ALTERNATIVE ARGUMENTS:

UVA was created as a public corporation (page 7 of 116) and is subject to the Dillon Rule

If the Heller Case establishes that the 2nd Amendment is an individual right, then Breach of Contract where the Code of Conduct states:

"The College is a community of scholars in which the ideals of freedom of inquiry, freedom of thought, freedom of expression, and freedom of the individual are sustained. It is committed to preserving the exercise of any right guaranteed to individuals by the Constitution."

I'm In Good Company

Expelled Conservatives:

John Locke from Christ Church College, Oxford
Robert Frost from Dartmouth (fyi some scholars say voluntary withdrawl)
Tom DeLay from Baylor University

And last but not least

Steve Barber from University of Virginia's College at Wise...

Commonwealth Attorney: OOPS!

Some interesting quotes via an excellent article by Mike Allen of the Roanoke Times:

Barber also has angrily challenged claims made in Scott County court documents that he was involuntarily committed to a mental institution after the guns were found. It was the assertion by campus police that he had been committed that led a judge to suspend his concealed-carry permit.

Barber has shown The Roanoke Times copies of a temporary detention order signed Feb. 29 and a release paper dated March 3. Together, they appear to indicate that he was held in a mental institution for several days but that his evaluators found nothing wrong with him.

Scott County Commonwealth's Attorney Marcus McClung said he had viewed the situation as an emergency that needed a fast response. He pursued the petition using the best evidence he had available: testimony from a campus police sergeant that Barber had been committed.

McClung said he's preparing a new petition using a different statute, under which the issue of whether Barber was committed won't matter.

He noted that the suspension doesn't affect Barber's right to own firearms, and that Barber can appeal.

Asked about Barber's assertion that the college gave the wrong information to authorities, college Vice Chancellor Gary Juhan replied, "I can't comment on that."

Bristol Herald Courier Shinanigans

They allow comments for the editorial, get four total comments (in a row--in support of me), then the comments disappear.

Fascinating. Will they come back?

Update: Two comments are back...
Update: No comments...

I'm gonna stop looking until tomorrow.

TDO Drama

Mike Allen at the Roanoke Times is reporting that Mr. Magoo Marcus McClung can't find either my TDO or my IC.

He can't find the IC because it doesn't exist.

But he can't find the TDO???

I got my medical records today.

Trivia: Leila Bradshaw (school counselor) signed the Petition to TDO. Daphne Blanton's name is on the TDO. No wonder "they can't find it." LOL!

Best line from my medical records:

"Mental Status Exam: The patient is alert and oriented x4, friendly and cooperative with interviewer, maintaining fair eye contact throughout. Patient's speech is regular rate, rhythm, and tone. Thought process appears to be logical and coherent. The patient's thought content was without suicidal or homicidal ideation, plan or intent. The patient denies any auditory or visual hallucinations. The patient states his mood as "open", "really all right ", with affect [sic:
effect] being congruent and full. Attention and concentration not explicitly tested. Insight and judgment appears to be grossly intact."

Stuff that in your pipe and smoke it, Bristol Herald Courier!

Bristol Herald Courier Follow Up Question

Headline: Expelled Student's Writings Raised Red Flags Before

Which is a Media General News Service wire story so it gets spread all over the ENTIRE state...

So how about that follow up question...I dunno...

"Mr. Barber, what were the results from that SOL essay you wrote that was red flagged?"

"Well Mr. Owens, I'm so glad you asked. I made a perfect score. A 600."

Yes, I told Mike Owens that I did make a perfect score and no, he didn't report it.

Bristol Herald Courier, all the slime that's unfit to print.



Quick recap:

My public intox charge establishes that I'm a recovering alcoholic, yes. But the incident on Feb. 29 was not alcohol related or criminal related for that matter (notice I haven't been charged with anything...)

My charges were dropped by the prosecutor for the assault/battery, petty theft, and felony trespassing with intent to assault/batter. The statement they gave campus police on the scene and the one filed out in town the next day were as different as night and day (read: made up) so they were dropped. Bringing up dropped charges to defame my reputation is sheer muckraking.

The fact that I was on probation with the school would only be applicable if I had broken a school rule that the school had the authority to enforce. The school broke the law with their firearm ban, and didn't have the authority to enforce it. That is not a violation of my probation.

Logic

How does a fictional character who decides to NOT kill his fictional professor = real life author deciding to kill his real life professor?

Right.

Can we please stop referring to "suicidal rampages" and "burning desires to kill his professor."

Did Campus Police Search Their Room???

"I failed math that year; I had Mr. Hagerty. I told him if I had a gun I would shoot myself. I didn’t really mean it; I just wanted attention, but there’s no diagnosis for that is there? He had me looked at by the school psychologist. She made me take a psychological test, but me knowing exactly what they were looking for with all the past counseling I had, I passed the test, or at least I thought I did. " -Anonymous

From The Jimson Weed, one of the school publications.

Hat-tip to an unnamed MECC student. Good work.

OutingBarber Troll

So he's found his way to this blog. Apparently I was mistaken, his allegations are that I raped someone (another male) in the Navy and not at college.

I'm normally a passionate defender of freespeech, but I'm deleting trolls.

Update: I would like to point out that as soon as I announce my intentions that I plan on re-enlisting, there are allegations that I'm gay.

I don't know who you are OutingBarber, but I think most people see this for what it is.

FAQ

Are you crazy?
No, I'm not. After 3 days of an intense psych evaluation at Ridgeview Pavillion they determined that *shock* I'm not mentally ill, nor am I a threat to myself or others.

Are you an alcoholic?
Recovering.

Did alcohol have anything to do with this incident?
No. So quit muckraking.

Have you ever been involuntarily committed?
No.

But Commonwealth Attorney Marcus McClung said that?
He was given mistaken information from the school (violating FERPA btw) and was not looking at my medical records. I'm in the process of retrieving those now, but the truth is also in the timeline. I was issued a temporary detention order on Feb 29 where the crisis counselor/magistrate found probable cause that I was mentally ill and a threat to myself and/or others. At my first and only hearing to determine if an IC was necessary, the judge found that I was not mentally ill, nor a threat to others based on the aforementioned intense psychological scrutiny. I was released that Monday. It's impossible for a TDO and an IC to go down where I'm released after such a short period of time.

You were violating school policy--what gives?
It is my contention that the school policy is illegal. Under the Dillon Rule and because the college is a public college, they lacked the statutory power to prohibit firearms. Also, as a governmental entity they are prohibited from limiteding the possession of firearms under Virginia's Preemption law. Also the Code of Conduct states: "It [the college] is committed to preserving the exercise of any right guaranteed to individuals by the Constitution." Also, an attorney general opinion found "It is my opinion that the governing boards of Virginia’s public colleges and universities may not impose a general prohibition on the carrying of concealed weapons by permitted individuals." In other words the blanket ban on guns that UVA-Wise has is unconstitutional in the opinion of the Attorney General, the school policy needs to be changed, not the student thrown out.

Have you had problems with the professor in question before?
No, he's an outstanding guy.

Have you had problems with the Vice Chancellor that ruled to expell you?
Yes. He had censored my underground newspaper in the past, and I was looking forward to mentioning that he was illegally employing "prior restraint" the next time he submitted an application to be Chancellor.

Have you had problems with your classmates in the creative writing class?
No. I had written very positive reviews of their short stories--encouraging some of them to publish. I didn't know them outside of class, but our relations in class were friendly IMO.

Do you think being on probation with the school for the alcohol incident was a factor in expelling you?
It shouldn't be. I violated school policy and more importantly the Code of Conduct back then. I took full responsibility for it. I was wrong. But the only 'rule' I violated this time was illegally employeed by the college--not a reason to expell me. An anologous example would be the Virginia law against flag burning. It's on the books, but it has been ruled to be unconstitutional. If I burn a flag (which I'm against btw) then I shouldn't be arrested despite it STILL being on the books.

Are they out to 'get you'?

[Edit: Re-reading this on Feb 21 2009, I disagree with the below assessment.]

There isn't some conspiracy to bring me down and stifle the potentional lawsuit, no. There are some students who don't like me, never have, and are definatly making their case known. Good sources say that the Residential Hall Director sent out a mass email to some students he was friends with claiming I had a hit list, etc. That started a lot of the rumors and hype on campus. Someone with an obvious grudge has started rumors that I'm a gay rapist or something at opencarry.org. That's BS.

How do you get along with your other professors?

[Edit: Feb 21 2009, Kiersey and I soured after this was posted.]

Great. Dr. Sheldon, Dr. Michael, even Professor Kiersey and I get along (our politial views are pretty much opposite and I gave him a hard time in the paper once).

There have been many comparisons to Cho--are you anti-social?
HA! Hardly. I have lots of friends and most of them are supporting me now. I also find it humorous that people who think I'm crazy/antisocial like Cho ALSO think I caused this whole thing as a desperate plea for attention. Mike Allen at the Roanoke Times (the first reporter with the story) called me, I didn't call him. After that broke, Mike Owens from the Bristol Courier called me--they have a reputation of sensational journalism so I called the Kingsport Times to guarantee that at least my side was heard somewhere.

As of today, who has your guns?

[Edit: Feb 29 2009, my wife.]
UVA Wise.

What were you like in highschool?
Very quiet. I was a good student. I was a lot closer to my teachers than I was my fellow students--but I still had a few tight knit friends.

If you could go back knowing what you know now, would you write the shortstory?
No. I had no idea it would cause students or the professor to feel threatened. I would never do that intentionally.

If you could go back knowing what you know now, would you still have the guns in your car?
Yes. [edit: I change my mind on this one pretty often, so don't hold me to that answer]

What would Thomas Jefferson say about you having guns at Mr. Jefferson's College at Wise?
He would say: "The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes....Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man."

What was your goal in writing an essay about a character who considers homicide then decides on suicide--especially with the character being a student?
I wanted to write about something cuturally relevent to the readers--a professor and english students. My intent was to show how, at least in my imagination, it's like inside of the minds of one of these lunatics that people think I am now because they can't seperate the author from the character.

I have heard rumors that you had a stockpile of weapons--but not firearms--in your room, is there any truth to that?
In September when the police went into my room to see how much I had drunk, they discovered some martial arts weapons (tonfa and foam/plastic nunchuku) that I had in storage. I haven't practiced or trained with those for about six years.

Did police discover any from this incident?
They discovered the SAME foam/plastic nunchuku that THEY left in my bag from September. Because that was their mistake, they didn't bring that to the attention of the school administration.

Did anyone read the paper before you submitted it to your classmates?
Yes. My girlfriend, Shamerine.

And she wasn't concerned?
If she was, she didn't tell me.

What Others Are Saying

Wade Smith: This is absolutely unbelievable. A forced mental health examination, an expulsion over a piece of fiction, the kid had concealed permits for his weapons - welcome to Orwellian 2008. I hope he sues the pants off UVA-Wise and ends up with enough to take care of his student loans and more.

Jim Williams: To Mr. Barber. From the previous story it sounded as though you had stepped on some toes and unfortunantely the submission of your story which reminded the staff of the writings of the VT shooter gave them the ammo they needed to get rid of you. Your mental evaluation was satisfactory I suppose. Thank you for your willingness to serve this country.

Ann Smith: It is not very often that a story can give you the feeling of being kicked in the stomach but this one has. It is revolting and ridiculous that this young man did as the school asked by writing a fictious story for a creative writing class and is now being persecuted for it. Well if the university does not want any type of violent content on its campus, they need to clean house starting with it's own library. Then move onto every dorm room with a Playstation and toss those games (try pointing out one rated above E that does not contain violence). Not to mention the author of the story about the girl who kills her boyfriend by stabbing! Shouldn't this person be expelled as well?

Joe Allison: I wonder what UVA-Wise would have done to Senator Jim Webb if he had attended college there. He came back from serving in Vietnam and wrote several novels based on his experiences there, some of it was violent and sexual in nature. If he had been attending school at UVA-Wise and submitted this kind of material to a creative writing class would the university have tried to railroad him out of school like they did Daniel Barber? I think Mr. Barber should write to Senator Webb about this travisty and he should also lawyer up and go after the university. In my opinion he's due some major compensation.

Chuck Williams: You see news stories about adults who write stories regarding sick and twisted things such as pedophilia, but the liberal politically correct crowd yell that it's protected as free speech. Although this young man's story is a little bizarre, isn't it protected as well? The ironic thing is that he's served his country protecting the very thing that's not been given to him. Sad, very sad. Good point about Jim Webb, Mr. Allison.

Amanda Piper: I am a student at UVA-Wise and I know Barber Personally. The only reason this really caused such a "scare" on campus was due to the rumors that flew around without students really knowing what happened. I may not have been in his creative writing course, but I was close with him as a friend and I have read the story. The incident at VA Tech had a student who was withdrawn, had been commited before, and consitently wrote macabre stories. Barber wrote one story, and if we cannot write stories in college, in our creative writing classes without being expelled then reason really has been replaced by the paranoia of the school system. Barber was well liked by a good portion of the faculty, and had many friends. He was outgoing and did not exibit any signs of being violent! A student "giving trouble" to a professor is not violent behavior, so the professor had no reason to feel threatened by Barber. Perhaps it is only my close perspective, or even my far perspective (coming from far out-of-state) that allows me to feel that this is a case of paranoia rather than "reason". Had any of you met Steve personally, you would know his behavior is almost the opposite of threatening.

Dan Jones (in response to some negative comments here ): I've decided to put some fact out their for Ms. Brittany and Mr. Gregory. First to Brittany, I'm the editor for the newspaper "Notes from Underground" that circulates on the campus, if you don't believe me you can find the last issue and check, so your, "if you don't go to UVA-Wise then stay out of it" argument isn't going to work on me. I'm going to go ahead and tell everyone here, Steve's paper was no worse, and in my opinion it was less, 'threatening' than whats being reported. Their wasn't even any violence in it, only contemplation. Now for Gregory. First Im going to cite the Virginia Attorney General's opinion, which can be found here: http://www.oag.state.va.us/OPINIONS/2006opns/05-078.pdf "It is my opinion that the governing boards of Virginia’s public colleges and universities may not impose a general prohibition on the carrying of concealed weapons by permitted individuals." In other words the blanket ban on guns that UVA-Wise has is unconstitutional in the opinion of the Attorney General, the school policy needs to be changed, not the student thrown out. And your "legal under the Constitution but not under school policy" is a little maddening, are adult students at universities supposed to have less rights than in other places? And our code of conduct in the student handbook says, "It (the college) is committed to preserving the exercise of any right guaranteed to individuals by the Constitution." Is the right to bear arms not an individual right? You asked if I remember VT, yes I do, I remember that over 30 unarmed people were killed that day, they had to run and hide behind doors and basically get killed execution style because they had no way to defend themselves. Now I have a question for you, do you remember the Appalachian School of Law shooting? if you don't, only three people died in that incident because when the shooting started two students went out to their cars, got their personal firearms and ended the shooting. Your right that their needs to be a fear in this country, but a fear of an administration that would strip its members of a basic human right, not of students having guns.

Muckraking

Now when Rush Limbaugh mentions the Drive By Media, I'll know what he's talking about.

The Bristol Courier has been aweful reporting the facts around the incident at UVA Wise.

What they describe as a "burning desire to kill his professor" amounts to just a few lines where the main character is considering it. Then he decides not to because "love transcends all transgressions, real or imagined." The last few pages deal with the character deciding to commit suicide. That's it. Period. No murder. In fact the line quoted as "And soon Mr. Christopher, there will be no life." is a reference to the character committing suicide as it occurs AFTER the character decides he can't kill the professor. The Courier has the essay and it's deliberatly quoted out of context.

And the character doesn't even do anything! Just think and write. How is the potentional death of one (fictional) person a "suicidal rampage" as their cohorts at the Media General News Service reported based on the phone interview I did with Mike Owens at the Courier.

Today, the paper is digging up dirt on me from highschool almost a decade ago! Yes, I wrote something for one of my English SOL's which was redflagged, and I had to do a quick interview with the school counselor (I think her name was Mrs. Scott). She determined I wasn't depressed or anything, and said (not in these exact words) that the interview was pro forma. The Courier should have mentioned I made a perfect score with that essay.

Yes, I got in trouble with the school in September. I was drunk and stumbled into someone else's room by mistake. I didn't hurt anybody. I didn't threaten anybody. I was arrested on the scene for public intox. It's the best thing to happen to me because that is what it took for me to finally get treatment. And let me add as an aside, that I'm not the first Iraq War vet to need treatment for alcoholism.

I was charged with other things from the incident (Felony trespassing with intent to commit assault and battery, assault and battery, and petty theft). On the first day at trial, the prosecutor motioned to dismiss those charges because the statement that the accuser made downtown at the police station the next day was nothing like the statement he gave campus police on the scene. What happend on February 29 was not an alcohol related incident, and is sheer muckraking trying to destroy the messenger.

I fight tooth and nail to get reporters to clarify that I've never been involuntarily committed, only TDO'd--and they just print that the commonwealth attorney claimed was "involuntarily committed" with air quotes that lack context explaining why that got the air quotes. Yes, the commonwealth attorney said that--but he got his information from the school (the false information I should add) NOT from my medical records.

And when the Kingsport Times does a very good job of making that distinction, I read in the Courier the next day that I'm a "criminal" and an alcoholic.

Meanwhile, I'm still trying to figure out the identity of the person at the opencarry.org discussion with the user name OutingBarber who claimed I was a gay rapist in reference to the alcohol incident I talked about above. That's absolute BS.