As States Weigh New Sensitive Places Laws, How Might Current State Practice Impact Litigation after Bruen?

  • Date:
  • October 19, 2022

After New York moved quickly post-Bruen to amend its gun laws to institute new application requirements and designate additional locations as sensitive places where guns are banned, the expectation was that other former may-issue states would follow suit.  That largely has not transpired yet, and New York’s law—including many of its locational restrictions—was temporarily restrained in part by a federal judge on October 6 (although that decision was stayed and an appeal is now pending before the Second Circuit).

California attempted to pass a similar measure in the waning days of its 2022 state legislative session in early September, but the bill fell just short of the required vote threshold due in part to an urgency clause under which it would have gone into effect immediately (with no waiting period).  The bill would have instituted application requirements similar to those enacted in New York and greatly expanded the state’s list of sensitive places to include locations such as public transportation, parks, any venue selling alcohol, casinos, amusement parks, and financial institutions, among others.  A California state senator pledged to reintroduce the bill in December when the new legislative session begins.  The proposed California law does not include any modification to the rules for carrying on private property, in its current form.

State legislators in New Jersey recently announced that they intend to introduce a far-reaching law that would institute new concealed-carry license application requirements, designate additional sensitive places “including bars, beaches, stadiums and day care centers,” prohibit guns on private property as a default unless expressly allowed by the owner, and create a “statewide requirement that gun owners applying for permits to carry weapons in public also purchase liability insurance.”  The liability insurance requirement resembles a San Jose ordinance that was upheld in August.

Finally, Honolulu and Hawaii counties (the two most populous counties in the state of Hawaii) are both currently considering bills that “would designate as sensitive areas a broad range of grounds and facilities, including government buildings, courthouses, schools, hospitals, playgrounds, parks, churches, airports, voter service centers, public transportation facilities and vehicles, bars and dining establishments that serve alcohol.”  Reporting indicates that these measures would also switch the default rule for private property, as in New York.  

As these measures pick up steam in blue states, one constant is that the states seem to be keeping a close eye on litigation challenging New York’s new law.  For example, an advisor to New Jersey Governor Phil Murphy “said the legal challenges that the New York law is facing will be instructive as New Jersey finalizes its legislation.”  State lawmakers have also been careful to frame these new laws using Bruen’s language—for example, a Hawaii county attorney who drafted one of the bills currently under consideration stated:

The idea of drafting this ordinance was to draft in concert with Bruen, not against it. The idea’s not to work around the Supreme Court case but rather to legislate within the opening that this particular case has provided, and solidify what we as a community consider sensitive places. Every single portion and every single bullet point that you see within this ordinance has an analogous statute historically within the United States.

Another interesting aspect of the sensitive places landscape is that some states already prohibited guns in many locations prior to Bruen, including specific locations that are included on New York’s list and those under consideration in New Jersey and Hawaii.  For example, permitless carry states including Alaska, Kentucky, Mississippi, Missouri, Montana, and North Dakota either prohibit or heavily restrict concealed carry in bars or restaurants serving alcohol, and have done so for some time.  A lengthy list of states—including permitless carry states—generally ban concealed guns in hospitals and mental health facilities.  And states including Texas, Wyoming, Oklahoma, South Carolina, Missouri, Mississippi, Nebraska and Florida prohibit concealed carry at certain stadiums and athletic events.  It should be noted that these laws often contain exceptions (such as for guns stored in a vehicle) and that some states do permit open carry at these locations.

Missouri’s law is illustrative.  Missouri allows permitless carry by any U.S. citizen or permanent resident 19 years or older not otherwise disqualified from possessing guns.  But the state also has a statute providing that no gunowner—whether a permitholder or an individual carrying legally without a permit—may carry a concealed weapon in a long list of designated locations.  The list includes police stations, courthouses and polling places, but also the following locations (with exceptions in each instance for “[p]ossession of a firearm in a vehicle on the premises” if not removed from the vehicle):

  • “Any establishment licensed to dispense intoxicating liquor for consumption on the premises”;
  • “Any gated area of an amusement park”;
  • “Any hospital accessible by the public”; and
  • “Any sports arena or stadium with a seating capacity of five thousand or more.”

One way to look at these restrictions is that a more permissive licensing scheme necessarily means more guns being carried in public.  And, when more guns are carried in public, the state recognizes a need to step in to restrict public carry in a larger number of potentially-sensitive locations.

The recent decision restraining enforcement of many of New York’s locational restrictions struck down restrictions on concealed carry in places including establishments that serve alcohol, stadiums and amusement parks, healthcare and mental health facilities, and childcare providers.  But a substantial number of states prohibit concealed carry in at least some of these locations, and that number seems to be increasing.  Vermont, a state that has historically refrained from almost any form of gun regulation, banned the possession of guns in hospitals earlier this year.  Nevertheless, the Antonyuk decision struck down New York’s attempt to designate healthcare facilities as sensitive places where guns can be banned.  

Recall that Bruen itself—besides implementing a historical-analogical test—placed emphasis on whether a particular form of gun regulation is present in a large number of states.  The majority opinion noted that “only six states and the District of Columbia have ‘may issue’ licensing laws,” and the concurrence by Chief Justice Roberts and Justice Kavanaugh referred explicitly to “New York’s outlier ‘may-issue’ licensing regime.”  Decisions applying Bruen have, to this point, focused solely on history and declined to survey locational prohibitions in other states.  However, Bruen suggests at least some role for current state practice, and looking to sensitive places designated in other states may be one way to fill gaps that exist in the historical record due to the pace of technological and societal change.