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Litigation Highlight: Federal Judge Weighs Maryland’s Post-Bruen Sensitive Places Law

  • Date:
  • October 18th, 2023

By: Andrew Willinger

On September 28, Judge George Russell of the District of Maryland issued a decision in Kipke v. Moore preliminarily enjoining certain locational gun restrictions in Maryland while upholding others under Bruen.  The decision is the latest in a series of legal challenges to expansive state sensitive-places laws passed in the aftermath of Bruen—New York, New Jersey, Hawaii, and California have all passed similar statutes.  As these cases are appealed and the federal circuit courts begin to coalesce around guiding principles for applying Bruen’s historical test to locational restrictions, Kipke suggests a middle road which may ultimately hold sway.

Following in the footsteps of New York and New Jersey, Maryland enacted S.B. 1 earlier this year and the bill was signed into law by Governor Wes Moore in May.  The law was set to take effect on October 1.  Among other restrictions, the law bans the public carry of firearms at designated sensitive locations and institutes a default ban on carrying firearms on private property without express permission from the property owner.  A companion bill, H.B. 824, raised the age for legal gun possession in Maryland to 21 and instituted additional requirements to obtain a concealed carry permit in the state.  Maryland took a slightly different approach from other states that have enacted broad sensitive-places laws post-Bruen.  Rather than designating a long list of locations as “restricted locations” where guns are banned, the Maryland law divides the sensitive locations into three separate categories: (1) areas for children or vulnerable individuals, (2) government or public infrastructure areas, and (3) special purpose areas.  The first category includes schools and healthcare facilities; the second includes government buildings, colleges, polling places, and certain power plants and related buildings; and the third includes bars, stadiums, museums, and racetracks.

The plaintiffs in Kipke challenged most locational restrictions in S.B. 1, and the private-property default rule, under the Second Amendment.  (Kipke consolidated two separate challenges to the law, by different sets of plaintiffs.)  The plaintiffs also challenged a number of pre-Bruen locational restrictions including bans on firearms in state parks, on public transit, in casinos, and at public demonstrations. 

The court first summarized the Bruen methodology for Second Amendment cases and Bruen’s limited discussion of sensitive places.  Judge Russell rejected the argument that the only constitutionally valid sensitive locations are those with “comprehensive, state-provided security that render[s] the need for armed self-defense unnecessary”—finding that this was a “strained reading of the sensitive-places doctrine [] unsupported by Bruen or any other authority” because Bruen expressly recognized schools (which often do not have such security in place) as sensitive places.  The judge adopted part of the analysis in another recent district court decision regarding locational gun restrictions in Montgomery County, Maryland, holding that it was appropriate to “consider historical evidence from ratification of the Fourteenth Amendment in 1868.”  (In that case, Maryland Shall Issue, District Judge Theodore Chuang found that the plaintiffs were unlikely to succeed on the merits of their Second Amendment claims because various county-level locational restrictions were supported by historical tradition—noting also “that the record lacks any evidence that during the historical time period, restrictions or proposed restrictions on carrying firearms such as those cited by the County were rejected on constitutional grounds.”  Judge Chuang’s ruling is currently on appeal to the Fourth Circuit.)

In Kipke, Judge Russell first noted “that there is no dispute that Plaintiffs’ conduct is covered by the plain text of the Second Amendment.”  He then proceeded to evaluate the relevant historical tradition separately for each challenged locational ban.  The court found that “museums are like schools because they serve an educational purpose and are often geared towards children,” and that state and territorial bans in “places of gathering for education, literary, or scientific purposes” were sufficiently analogous to the Maryland law.[1]  The judge found the healthcare facility ban “similar to historical analogues that prohibited firearms in places where people assembled for scientific purposes” and also noted that, “because health care facilities . . . serve a vulnerable population, [] their regulation is justified by the protection of that population.” 

Next, the court tackled the ban on firearms in state parks and forests.  Judge Russell “conclude[d] that even if the State regulates firearms in its proprietary capacity, [Maryland] must still show that the laws are consistent with historical regulation.”  However, he determined that there was historical support for the ban because, “as States and cities created more parks, they also imposed firearm regulations.”  Because “rural, more isolated state parks were not established in significant numbers until after the ratification of the Fourteenth Amendment,” Judge Russell declined to “infer a lack of regulation from the absence of laws governing rural state parks at [earlier times].”  The court accepted that mass transit facilities are sensitive places, using a “more nuanced analysis” and finding that these locations “are analogous to both schools and government buildings” in terms of their crowded nature and the fact that they sometimes serve vulnerable populations.

Moving on to the plaintiffs’ challenge to Maryland’s ban on guns in establishments selling alcohol, the court found that this challenge was likely to succeed and granted the requested injunction.  The court was “unconvinced that intoxicated people qualify as a vulnerable population, like children or hospitalized individuals” and declined to find that bars are sensitive based on crowdedness alone—invoking Bruen’s dismissal of Manhattan as a sensitive place.  The court declined to credit an 1890 Oklahoma law banning guns were alcohol was sold (based on the Court’s rejection of territorial history in Bruen) and found that other potential analogues banned only possession while intoxicated and thus were not relevantly similar.

After determining that the plaintiffs had standing to challenge the private property default rule, the judge rejected historical laws that targeted poaching on private land as analogues because those laws were motivated by different regulatory concerns.  The court also rejected private-property restrictions in Black Codes enacted by Louisiana and Texas after the Civil War, finding that “their intent was to discriminate, rather than to advance public safety” (a single non-discriminatory Oregon law, the court found, was insufficient).

The court quickly dismissed challenges to bans in schools and government buildings by the second group of plaintiffs, finding that the Supreme Court had explicitly approved of such prohibitions.  The Court also relied on Maryland Shall Issue to uphold bans on carrying guns in stadiums (including Camden Yards), racetracks, amusement parks, and casinos.  However, Judge Russell found that the state’s ban on carrying firearms at or near public demonstrations was not historically supported—in part because a number of colonies required attendees to be armed at such demonstrations—and that plaintiffs were entitled to an injunction of that provision.[2]

I think it’s fair to expect that Maryland will appeal Judge Russell’s decision as to the enjoined locational bans and request a stay pending appeal to the Fourth Circuit, as New York, New Jersey, and Hawaii have done when state locational firearm restrictions were invalidated at the district court level.  The Second Circuit heard oral argument in Antonyuk—the headline case challenging New York’s post-Bruen sensitive places and concealed carry licensing restrictions—on March 20, more than six months ago.  Antonyuk will likely be the first post-Bruen appellate decision on sensitive places, although challenges to New Jersey’s Bruen response law are also pending before the Third Circuit. (Oral argument there is scheduled for October 25.)  A legal challenge to Hawaii's law is now pending before the Ninth Circuit in Wolford v. Lopez, where the state's opening brief was filed on October 5.

To me, Kipke represents a more cohesive approach to sensitive places than the district court decisions in Antonyuk.  Judge Suddaby’s preliminary injunction decision in Antonyuk (which we covered here) strained to reduce the analysis to a type of mathematical equation where a judge could plug in the number of states or colonies with bans in the same location, calibrate by population, and then reach a “yes or no” answer.  Kipke, by contrast, gives much greater weight to the rationale for banning guns in a certain location and construes historical motivations at a higher level of generality.  As scholars have observed, there is danger in “allowing the concreteness and specificity of [] places to overwhelm the development of constitutional principles”—in other words, omitting the theory behind the doctrine and constructing a constitutional framework based solely on physical similarities among locations may lead to nonsensical outcomes.  Kipke appears to be responsive to that concern, allowing for an analysis more flexible than mere jurisdiction-counting that considers analogies to different locations; and I expect that the Second Circuit’s decision in Antonyuk will take a roughly similar approach.  Kipke also illustrates that a higher-generality method of evaluating the rationale behind historical locational restrictions does not necessarily give the state carte blanche to ban guns in any location it chooses (take, for example, Kipke’s invalidation of Maryland’s ban on guns in bars and at restaurants serving alcohol).  

Kipke’s analysis of the state’s ban on carrying firearms within 1,000 feet of a public demonstration implicates historical questions similar to those raised by recent challenges to gun bans in places of worship.  Kipke notes that—as with places of worship—a number of colonies required guns to be carried at public demonstrations in certain contexts, although in the mid-to-late 19th century some states and territories banned guns at those same events.  It’s difficult to know exactly what to make of this history.  I’ve previously observed that many of these colonial laws are, in fact, further in time from the Second Amendment’s ratification in 1791 than state laws enacted in the mid-to-late 1800s (even if the colonial laws sometimes feel closer due to temporal compression).  It’s not clear to me, then, that Kipke’s conclusion that later evidence of public demonstration bans contradicts the Founding Era record is correct, if the colonial laws it relies upon were enacted well before the Founding.  After all, other judges have dismissed colonial laws—and even laws enacted right after the Founding—reasoning that “[t]he Framers themselves recognized that colonial and early state governments repeatedly violated the liberty-protecting provisions of the English and state bills of rights.”  While I don’t agree with an approach that discards historical evidence close in time to the Founding, it also seems odd to credit colonial history over history that more clearly evinces American tradition as the country expanded westward.

[1] While noting the Bruen court’s focus on population density, Judge Russell explained that the analogy to schools as established sensitive places also supported the modern law’s constitutionality.

[2] The judge also noted that, “[i]f the Court were permitted to apply intermediate or even strict scrutiny to [the] public demonstration restriction, the law would almost certainly pass constitutional muster, because it does not categorically ban all firearms at public demonstrations. Rather, it prohibits guns only in a narrow set of circumstances designed to promote public safety while preserving the right to bear arms.”