Stickley v. Winchester, State Analogues, and the Folly of Narrow Historical Focus

  • Date:
  • October 07, 2022

On September 27, a Virginia state trial court granted a motion for preliminary injunction of certain provisions of the city code of Winchester, Virginia that made it unlawful to possess guns in city buildings, public parks, recreation or community centers, and public roads, sidewalks, or other locations used for or adjacent to permitted public events.  The decision in Stickley v. Winchester is notable both for its discussion of sensitive places after Bruen and its analysis of Virginia’s state-constitutional analogue to the Second Amendment. 

After summarizing the facts and concluding that the plaintiffs could challenge the local ordinance directly (without also challenging the state-level enabling statute), the court considered whether Article I, Section 13 of the Virginia state constitution is coextensive with the Second Amendment to the United States Constitution.  In 1776, the state adopted language stating that the militia was “the proper, natural and safe defense of a free state” and warning against standing armies.  The original state constitution did not mention, much less protect, a right to keep and bear arms (in either collective or individual form).  But, the court notes, Virginia supported the federal Bill of Rights that included the Second Amendment.  Virginia did not revise its own state constitution to include language protecting the right to keep and bear arms until 1969, and the opinion states that “[i]t is curious that it took almost two centuries for Article I, Section 13 to include the language that the Virginia delegates, in 1788, suggested to Congress that the federal Bill of Rights should include.” After reviewing records of the state legislative debates surrounding the 1969 constitutional amendments, the court determined that the amendments were intended to make the state constitutional protection coextensive with the federal Second Amendment and that, therefore, it should be interpreted in an identical manner.  

Next, the opinion summarized the Supreme Court’s Second Amendment decisions and the Bruen framework.  The court determined that the plaintiffs’ proposed course of action—carrying guns for self-defense in public—was presumptively protected by the Second Amendment under Bruen (and, therefore, also protected by the state constitution).  The court then considered the correct timeframe for evaluating the historical tradition of firearms regulation at Bruen step two.  The court identified two options: it could, as the city urged, look to laws passed around the time that the state constitutional provision in question was enacted (1971, when the state’s amendments took effect); or, it could look to laws passed around 1791 or 1868, when the federal Second Amendment was ratified or incorporated, retroactively, through the Fourteenth Amendment.  The court held that Bruen requires an approach that looks only to 1791 and 1868. 

Relying primarily on Bruen itself (it appears that the city put all of its chips on the argument that 1971 was the correct historical reference date), the court determined that there was “no historical basis to permit broad prohibitions on public carry” in public parks and at public events because the historical record showed only laws that restricted public carry when done with malintent.  Finding that the city had failed to meet its burden of putting forward analogous laws, the court enjoined the portions of the city code that prohibited possession in parks and on roads and sidewalks near public events.  The court also discussed Bruen’s analysis of the sensitive places doctrine and determined that parks and public streets were not relevantly similar to the sensitive places listed in Bruen because they are not “confined, mostly enclosed areas, where individuals congregate, and government business takes place.”

The court, however, declined to enjoin the section of the law banning guns in city-operated recreation or community centers.  The court found that these locations are analogous to locations such as government buildings and schools, which were enumerated in Heller and Bruen as sensitive places.  The Court also relied on a prior Virginia Supreme Court decision that upheld a firearms prohibition on the campus of George Mason University. 

First off, the court’s discussion of sensitive places is more nuanced than the observations offered by a federal judge when ruling on a recent challenge to New York’s sensitive places law.  The opinion recognized that Bruen does not limit sensitive places to only polling places, legislative assemblies, other government buildings, and schools.  Rather, the court found, because recreation and community centers are similar to those locations in relevant ways (the government is often the proprietor and children congregate in such places), they are properly deemed sensitive and guns may be prohibited. 

However, the decision here also illustrates the pitfalls of relying on party presentation to find historical facts.  Because the city of Winchester seems to have made the (perhaps dubious) decision to omit pre-1960s historical evidence from its argument entirely, the court did not consider that evidence at all.  A number of states, especially in the late 1800s, passed broad prohibitions on carrying guns in places of public assembly—without regard to whether the locations were “enclosed” or indoors.  Central Park banned the carrying of firearms as early as 1861, and it is likely that a closer examination of other town charters and rules (which are often contained in difficult-to-locate primary source archives) will reveal that this approach was not an outlier.  Here, Winchester’s law was struck down without any consideration of such evidence.  This might be fair in the abstract, given the city’s litigation strategy, and it is certainly consistent with the method of finding historical facts described in Bruen.  But this process seems likely to create a muddled situation where some courts simply accept the record as presented and strike down laws that actually do have historical analogues, other courts perform substantial independent historical analysis outside of the evidence submitted by the parties, and other courts fall somewhere in between.  Many of these cases will likely turn on how willing a court is to do its own investigation of the historical record, rather than what the historical tradition of regulating firearms actually is.

The court’s conclusion that the historical record “demonstrate[s] that citizens could generally carry in public places . . . if the[y] did not do so with bad intent” is questionable as it relates to sensitive places.  Government buildings and polling places are often open to the public.  And, in fact, this was true to an even greater extent during and immediately after the Founding—the White House, for example, was largely open to the public at the time, and Andrew Jackson famously extended an open invitation to the public to help consume a giant block of cheese he had been gifted by a New York farmer.  If government buildings were publicly accessible around the time of the Founding and they are an example of historical sensitive places where guns may be banned, it follows that the “public” nature of a place is not, by itself, a reason to deem that place non-sensitive.

Second, a few words on the court’s analysis of Virginia’s state-constitutional analogue to the Second Amendment.  Virginia originally adopted a state constitutional provision that was substantially different from the federal Second Amendment—it was clearly concerned with the evils of standing armies, not with protection of any right to keep and bear arms.  Virginia delegates then urged the federal government to adopt James Madison’s proposed Bill of Rights, including what became the federal Second Amendment.  Virginia did nothing for approximately 180 years after that, when it amended its state constitution to mirror the federal Second Amendment.  Interestingly, the records of the 1969 state legislature debates suggest that some state legislators simply overlooked the fact that the state had never added a protection of the right to keep and bear arms to its constitution.  One legislator observed, “I dare say that not a person on this floor at the time we opened this session realized that these[] words (‘therefore, the right of the people to keep and bear arms shall not be infringed’) were not in our state Constitution.”

The Supreme Court in Bruen did not explain how a court should treat a situation where a provision protecting the right to keep and bear arms is incorporated into a state constitution long after 1791, and a challenger subsequently sues under that provision (but not under the federal Second Amendment).  This isn’t merely an academic exercise—other original colonies such as New Hampshire and Delaware also did not adopt such language until the 1970sBruen and Heller emphasized that the Second Amendment “codified a pre-existing right.”  But when the Virginia state legislators amended the state’s constitution in 1969, should one automatically assume that the scope of that provision was intended to be co-extensive with the Second Amendment as of 1791?  Excerpts from the 1969 debates suggest that the answer is no:  one delegate, for example, observed that “[t]here are certain federal controls with reference to firearms,” and opined that “this [amendment] will not do anything more on the State level than has been done on the federal level” and would not impact the constitutionality of such controls.  The first part of that statement (regarding federal controls on firearms) was true when made in 1969, but would not have been true in 1791 or 1868 because the federal government had not yet imposed restrictions on the private use or possession of firearms at those points in time.  Clearly, the delegates intended to enact a provision that allowed for restrictions, such as those contained in the Gun Control Act of 1968, that existed at the time but were not necessarily supported by a Founding-era historical tradition.

This all leads to the conclusion that a myopic focus on Founding-era history is odd, especially when provisions protecting the right to keep and bear arms did so little work at the time.  The federal government wasn’t involved in regulating guns in any way until the early 20th century, and state and local governments for the most part simply weren’t constrained by protections of the right to keep and bear arms because of the anti-incorporation doctrine and absence of state-analogue provisions in many Founding-era state constitutions.  The best approach here would be to recognize that the 1969 Virginia delegates were enacting a provision coextensive with the federal Second Amendment as it existed in 1969, one that would allow for regulation of the kind that existed then.  The court’s approach of focusing only on 1791 and 1868, by contrast, ultimately seems nonsensical and contrary to legislative intent.