Litigation Highlight: Angelo v. District of Columbia

  • Date:
  • September 21, 2022

In Antonyuk v. Bruen, a district court judge recently suggested in dicta that New York’s list of sensitive places where guns are prohibited is unconstitutional under the standard set forth in Bruen.  I summarized that opinion here, including why its analysis of sensitive places appears inconsistent with Bruen’s directive to reason by analogy to determine new locations that can be deemed sensitive (beyond government buildings, polling places, and schools).

Antonyuk is not the only ongoing case dealing with sensitive places.  Angelo v. District of Columbia, currently pending in the federal district court in Washington, D.C., was filed on June 30 and involves a challenge by several permitholders to Washington D.C.’s designation of the Metro as a sensitive place where guns are banned (the law was passed in 2014, and went into effect the following year).

The complaint in Angelo argues that the Metro is fundamentally unlike other locations on D.C.’s list of sensitive places—such as government buildings, stadiums, schools, bars, and nightclubs—and that “[t]here is not a tradition or history of prohibitions of carrying firearms on public transportation vehicles.”  The plaintiffs cite colonial laws that imposed a “requirement to carry arms when traveling from home and while attending gatherings.”  The complaint also quotes St. George Tucker’s observation that in “many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than a European fine gentleman without his sword by his side.”  Late-19th-century prohibitions on concealed carry did not, according to the plaintiffs, ban all forms of carry and often made explicit exception for travelers.  Finally, the complaint surveys the current state of public-transportation restrictions and argues that, “other than the District of Columbia, only Illinois, Missouri, New Mexico, and South Carolina [and no former may-issue states] prohibit carry on public transportation.”  The complaint asks for preliminary and permanent injunctive relief striking down D.C.’s prohibition of guns in public transportation vehicles and stations.

The plaintiffs subsequently moved for a preliminary injunction on July 11, and—after some motion practice about the case schedule—the judge granted the District a 60-day extension to respond.  D.C. filed its response on September 16.  The response argues first that the plaintiffs lack standing because they fail to allege an imminent injury or likelihood of prosecution.  As to the likelihood of success on the merits, D.C. argues that sensitive places comprise locations with one of three characteristics, each of which is sufficient on its own to deem a location sensitive for Second Amendment purposes.  First, the category “include[s] many forms of government property in addition to locations dedicated to the exercise of constitutional rights,” because allowing guns to be carried in such places might “hinder[] the government’s operation or chill[] the exercise of other constitutional rights.”  Second, locations hosting “activities involving dense, distracted crowds (e.g., stadiums, airports, public conveyances), as well as activities of a governmental nature (e.g., motorcades, prisoner rehabilitation)” may be deemed sensitive to protect public safety.  Third, locations “that house particularly vulnerable groups such as children and those suffering from illness” can be “sensitive places” because those groups “cannot easily escape attack, much less defend themselves.”  D.C. argues that a gun-owner’s perceived need for self-defense is not relevant to the analysis.

The District’s brief asserts that the Metro is properly considered “sensitive” under all three theories articulated above—it has a close connection to government and is heavily used by government employees; it is crowded and hectic such that the risk posed by gun incidents is extremely high, and is similar to forms of interstate transportation where guns are banned, such as airplanes; and it carries vulnerable children to and from school.  D.C. distinguishes the historical laws and evidence cited by the plaintiffs, arguing that they “hardly suggest[] that civilians in the Founding Era believed themselves entitled to carry arms wherever they chose” and that exceptions for travelers were intended only to apply to “a ‘journey’ of significant distance beyond one’s customary surroundings, habits, and acquaintances.”  Although “[u]rban public transit is a uniquely modern phenomenon,” D.C. argues, analogical reasoning to historical sensitive places supports the prohibition.  Finally, the district argues that alternative forms of transportation are readily available to the plaintiffs.

The plaintiffs are slated to file their reply brief on October 17, after which the court will rule on the motion.

The complaint and opposition brief are notable for a few reasons.  By limiting their challenge to the public transportation ban, the plaintiffs (unlike the plaintiffs in Antonyuk) seem to accept that most other locations on D.C.’s list of sensitive places are permissible.  But the plaintiffs also identify certain areas which may be a focus in future sensitive-places litigation.  For example, the complaint largely accepts that banning guns in bars and nightclubs is permissible because the “[c]onsumption of alcohol increases the risk of firearm accidents and inhibits the ability of an individual to properly evaluate whether use of deadly force in self-defense is legally justified.”  The plaintiffs also suggest, however, that D.C.’s prohibition on carrying a gun “while consuming alcohol or while impaired” may be overbroad (as opposed to a prohibition on “consuming to the point of impairment” and then carrying).  The plaintiffs seek to frame Heller’s invocation of schools as applying only to K-12 schools, and argue that “schools have been a target of active killers, perhaps emboldened by the prospect of the lack of any effective armed resistance.”  It would not be surprising to see future challengers argue that bans on guns in bars and nightclubs should be limited to those who drink to excess, or that universities cannot be designated sensitive—notwithstanding a rich tradition of prohibiting weapons on college campuses.

As to the Metro specifically, the District seems more likely to succeed on its activities-based argument:  that the Metro prohibition is sufficiently similar to “early American laws prohibiting the carrying of arms near parades and on trains” because such laws illustrate a historical tradition of prohibiting guns in areas of dense congregation or around official government activities.  Specifically, the airport/airplane comparison seems apt, as those are also locations which simply did not exist at the time of the Founding but where few doubt that guns can be banned today.  The property- and people-based theories, by contrast, are more tangential because they turn on the Metro’s connection to certain groups of people or organizations—connections that are both difficult to quantify and might not support banning guns in the Metro as a whole (as opposed to Metro stations and lines especially close to the Capitol or to local schools).  

Finally, the briefing raises an important issue with the Bruen test:  to what extent, if at all, does evidence of social practice surrounding guns play a role?  The plaintiffs cite an 1803 observation by St. George Tucker that it was common for Americans to leave home armed with a rifle or musket.  The District, on the other hand, relies on historical laws in the militia context as evidence that normal civilians did not commonly carry arms in public at the time.  If judges are to evaluate modern gun regulations by reference to historical laws, there should presumably be some showing that people actually used guns in the manner contemplated during the Founding Era.  If guns were not normally carried in certain public settings as a matter of custom, then what we today view as a lack of regulation may just be evidence that there was no need for government to regulate in that setting.  The difficult question, of course, is how courts should resolve differing accounts of social custom that might exist in the historical record.  For example, is it possible (or advisable) to credit Tucker’s observation about public carry in early America without further support?  And what would that support look like?