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

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.”

Assessing New Mexico’s Emergency Public-Carry Ban

On September 8, New Mexico Governor Michelle Lujan Grisham issued a Public Health Emergency Order that prohibits the carrying of firearms on public property in certain New Mexico counties.  Governor Grisham’s order has already been challenged in court and enjoined by a federal judge.  The order highlights the role of Western territorial restrictions under Bruen’s test and the interplay between the old two-part framework for Second Amendment cases and the text, history, and tradition method.

The New Mexico order begins by declaring gun violence and drug abuse “statewide public health emergencies.”  The public carry ban applies to counties that meet certain threshold gun violence metrics (based on the recent rate of violent crime and firearm-related emergency room visits).  While guns may be possessed and carried on private property, they must be transported to and from such locations with a trigger lock or other disabling device.  The order further bans the possession of a firearm “on state property, [and in] public schools, and public parks.”  The order directs state agencies to inspect licensed firearm dealers to ensure compliance with legal requirements and directs the department of health to create “a comprehensive report on gunshot victims presenting at hospitals in New Mexico.”  Those who violate the order are subject to “civil administrative penalties.”  The initial order would have lasted for 30 days and was renewable by the Governor if she determined that the relevant state of emergency still existed.  

The New Mexico order—which the Governor enacted in response to a series of high-profile shootings including some involving children—prompted quick reactions and backlash.  At least two lawsuits have been filed in New Mexico federal court challenging the order on Second Amendment grounds.  Some New Mexico law enforcement officers asserted that they will not enforce the order, with Bernalillo County[1] Sheriff John Allen stating that “[i]t’s unconstitutional, so there’s no way we can enforce” it.  The New Mexico attorney general registered his opposition to the ban and stated that he “do[es] not believe it passes constitutional muster.”  And nationwide, notable proponents of gun regulation spoke out against the order—including California Democratic representative Ted Lieu and March For Our Lives founder David Hogg.

On September 13, Judge David Urias of the District of New Mexico temporarily enjoined enforcement of the order’s public carry ban after holding a consolidated hearing on several legal challenges to the order (collectively captioned NAGR v. Grisham).  Judge Urias performed an initial assessment of how Bruen applies to the public carry ban, and he found that the plaintiffs had shown a likelihood of success on their Second Amendment claims.  The judge quoted the Court’s determination in Bruen that, “[a]part from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense.”  The judge further found that the plaintiffs would suffer irreparable harm absent an injunction because they will be denied a fundamental constitutional right, and that the balance of the equities favored entering the injunction.  Therefore, Judge Urias enjoined the public carry ban (but not other provisions of the order, such as the locational restrictions) pending a decision on the plaintiffs’ motion for a preliminary injunction.  The judge set a preliminary injunction motion hearing for October 3.  On September 15, Governor Grisham amended the public carry ban to apply only to parks and playgrounds. 

There is little analysis of the state’s initial legal defense of the order in the NAGR v. Grisham opinion, so it remains to be seen whether and how New Mexico chooses to defend the remaining portions of the order in court given additional time.  Under Bruen, the closest historical analogues for a blanket public carry ban in a specific county are likely laws from Western territories during the Civil War and Reconstruction eras.  The New Mexico territory enacted a law immediately prior to the Civil War that broadly prohibited “any person [from] carry[ing] about his person, either concealed or otherwise, any deadly weapon of the class and description mentioned [including pistols . . . or any other deadly weapon” (emphasis added).  The law, which is notable for purporting to cover both concealed and open carry (as Governor Grisham’s order does) was raised in Bruen as a potential analogue for New York’s may-issue licensing law.  The Supreme Court, however, roundly rejected the idea that the New Mexico ban supported New York’s law:

This extreme restriction is an outlier statute enacted by a territorial government nearly 70 years after the ratification of the Bill of Rights, and its constitutionality was never tested in court. Its value in discerning the original meaning of the Second Amendment is insubstantial. Moreover, like many other stringent carry restrictions that were localized in the Western Territories, New Mexico’s prohibition ended when the Territory entered the Union as a State in 1911 and guaranteed in its State Constitution that “[t]he people have the right to bear arms for their security and defense, but nothing herein shall be held to permit the carrying of concealed weapons.”

The Bruen majority broadly discards territorial laws—including other late-19th-century territorial regulations that banned public carry entirely in densely populated areas—as “exceptional” and “improvisational.”  As I’ve written previously, the Court’s treatment of territorial regulations is puzzling because the federal Second Amendment always applied directly in the territories[2] and because the Court has appeared to credit territorial history in other areas of constitutional law.  I have an article-length analysis of these issues that was published in the Washington University Law Review earlier this week.

To be clear, I think the New Mexico order is patently unconstitutional under Bruen because the Court forcefully rejects the idea that late-19th-century territorial laws can ever constitute a historical tradition of regulation to support a modern gun law.  That appears to be Judge Urias’ conclusion as well in NAGR v. Grisham.  But I believe the legal challenges to New Mexico’s order illustrate some oddities with Bruen’s approach.  Rather than tackling the more difficult question of why a law such as New Mexico’s 1860 territorial ban is substantively not an analogue for a modern public carry ban, the Court chooses to dismiss all such laws based on factors unconnected to substance (the laws were “improvisations,” they covered only a small percentage of the nation’s population, they weren’t challenged in court, and some of them were amended or repealed after statehood).  Instead of setting clear guardrails for the analogical inquiry, this simply shows how malleable the Bruen test is.  Almost any historical law can be explained away by some socio-demographic rationale; it’s more difficult to explain why a law is different in terms of how and why the law burdened the right to armed self-defense.

I am not arguing that late-19th-century territorial laws and ordinances alone should support a modern emergency order like New Mexico’s, even under a different application of Bruen.  For one, the fact that these historical prohibitions were approved by territorial legislatures (whereas the New Mexico order was issued unilaterally by the Governor) may be enough to render them non-analogous.  Historical territorial public carry bans might be too late in time to shed light on the meaning of the Second Amendment (even though New Mexico’s law was in force in 1868, when the Fourteenth Amendment was ratified).  Or a court might perform a more detailed analysis into why such historical bans were passed and find that the reasons differed from those offered by Governor Grisham in important ways.  Any of these avenues, I think, would be more satisfying than the Court’s approach in Bruen.

What’s more, it’s not at all clear to me that the New Mexico order is constitutional under Heller and McDonald.  Illinois banned both concealed and open carry until 2012, when the Seventh Circuit struck down the state’s concealed carry ban.  In Moore v. Madigan, the circuit court held that

a blanket prohibition on carrying gun in public prevents a person from defending himself anywhere except inside his home; and so substantial a curtailment of the right of armed self-defense requires a greater showing of justification than merely that the public might benefit on balance from such a curtailment, though there is no proof it would.

The court found that Illinois failed to provide a compelling legislative rationale for the ban and that it was therefore unconstitutional under Heller.  Illinois initially considered appealing that decision to the Supreme Court but ultimately did not, instead enacting a shall-issue permitting law over then-Governor Pat Quinn’s veto. 

Thus, I don’t necessarily think Bruen changed anything with regard to the constitutionality of the New Mexico order.  A flat ban on public carry should have triggered strict scrutiny under the old two-part test.  Or, perhaps, a court might have found that there was no rational or substantial state interest in such a ban (as the Seventh Circuit held in Moore).  It may even be more straightforward for a court to strike down a broad public carry ban under a two-part analysis including means-end scrutiny, because the court would not need to grapple specifically with broad territorial bans from the mid-to-late-1800s. 

[1] Bernalillo County, the most populous county in the state which includes the city of Albuquerque, appears to be the primary target of the order (although, by its terms, the order is not limited to Bernalillo County and could apply to other counties if they reach the relevant gun violence thresholds).

[2] For this reason, it’s unclear why the Court attributes such significance to the enactment of New Mexico’s state constitutional protection of the right to keep and bear arms in 1911.  The territory was subject to the federal Second Amendment from its establishment in 1850 all the way up to 1911.

Taking Aim at New York’s Concealed Carry Improvement Act

[This is a guest post based on a paper that was presented at the 2023 Firearms Law Works-In-Progress Workshop.  The Workshop is held each year on a home-and-away basis with the University of Wyoming Firearms Research Center.  This post does not necessarily represent the views of the Duke Center for Firearms Law.

Since its enactment in July of last year, New York’s Concealed Carry Improvement Act (CCIA) has been subject to a barrage of litigation in federal courts. This is hardly surprising, as the law presumptively bans carry nearly everywhere in the state. In fact, Governor Kathy Hochul admitted as much when, after being asked where carry license holders could carry under the law, she replied, “Probably some streets.” The day the Supreme Court handed down Bruen, Hochul signaled that she would “fight back.”  The Governor had indicated earlier that she didn’t want to “telegraph” her strategy due to concern that the Court would “write around it.”

From public transportation, to restaurants that serve alcohol, theaters, libraries, museums and even Times Square, vast portions of the state are completely closed off to concealed carry. The law also contains a default rule that firearms are banned on all private property unless the owner or lessee indicates otherwise, such as through signage. The CCIA also fortifies the state’s requirement that applicants for carry licenses prove good moral character, defined in the new statute as “having the essential character, temperament and judgement necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others.” One federal judge speculated that this standard may be impossible to satisfy for those seeking to use a gun in self-defense because it does not carve out an exemption for endangering others during a case of justified self-defense.

It’s hard to reconcile this law with the Second Amendment, particularly when Bruen held that carrying firearms in public (outside of sensitive locations) is protected by the Constitution. It’s also extremely difficult to read the CCIA and presume that the New York legislature engaged in a good faith attempt to comply with Bruen’s demands. In a vacuum, some of these provisions, like the good moral character requirement, could be enforced fairly by merely assessing whether a particular applicant is dangerous. But, for decades, New York officials have attempted to frustrate the ability of average citizens to simply possess a firearm. Under New York City’s regulations, the NYPD may examine an applicant’s past arrests, even if those arrests did not result in a conviction. In one particularly egregious case, the NYPD denied an applicant a license to keep a handgun in his own home because he failed to disclose a sealed arrest from nineteen years prior in which he was found not guilty. In a case postdating both Heller and McDonald, a judge upheld the denial, reasoning, astonishingly, that the “possession of a handgun is a privilege, not a right.” More recently, after the state legislature repealed a law banning possession of “gravity knives,” a notoriously vague classification that legislators concluded had resulted in disproportionate arrests of minority New Yorkers, the NYPD resurrected an archaic public transportation regulation in order to continue enforcing the ban on New York City’s subways and buses.

The state’s new sensitive place and private property laws fare no better. The CCIA carves out no fewer than twenty sensitive locations, along with dozens of subcategories. In conjunction with the law banning firearms on private property by default, the CCIA works to effectively ban carry almost everywhere in the state, aside from one’s own property, public streets and sidewalks. Bruen makes clear that such a scheme violates the Constitution: “[T]here is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place’ simply because it is crowded and protected generally by the New York City Police Department.” As a Manhattan resident, I have yet to see a single storefront with a “Guns Allowed” sign. Effectively, New York has declared Manhattan, if not the entire state, a “sensitive place.”

To be sure, both Heller and Bruen bless the presumptive lawfulness of banning firearms in locations like government buildings, schools, and polling places (although it isn’t clear that a straightforward application of Bruen’s own analytical approach would support the constitutionality of all of these bans), and some of New York’s own named sensitive places might well be permissible under that precedent. But the vast majority don’t appear to have any solid footing in the nation’s historical tradition of firearm regulation, and their combined effect is such that they render half of the Second Amendment’s operative clause a near nullity. Although I argue that many of the individual sensitive place designations are unconstitutional alone, when considered in combination they effectively exempt cities from the Amendment’s protections. Confronted with a similar circumstance, a divided panel of the Seventh Circuit struck down various Chicago zoning ordinances that, in combination, made it effectively impossible for gun ranges to operate within city limits. While states and localities maintain sweeping zoning authority under their police power, the court in Ezell engaged in heightened scrutiny of the restrictions because they implicated the Second Amendment. Although Bruen abrogated that decision’s reliance on means-end scrutiny, it did not abrogate common sense insofar as multiple permissible regulations may, when acting in concert, account for an undue burden on a constitutional right. As noted above, Bruen makes clear that states cannot effectively declare cities off limits to firearms.  Through this lens, assessing the CCIA isn’t quite that complicated, as most of its individual provisions are unconstitutional under Bruen’s framework even when the state’s police power is accounted for, as I argue in my forthcoming Fordham Law Review article.

Take some of the sensitive places, for instance. Setting aside the handful that Heller and Bruen acknowledged as permissible (i.e., government buildings and polling places), what obvious historical analogue is there for banning firearms in restaurants that serve alcohol? New York points to nineteenth century statutes that banned carrying firearms while intoxicated, but this appears to me to impose a materially different burden on arms bearers than the CCIA. Consider also the public transportation carry ban. New York has failed to identify a single example of a U.S. jurisdiction prohibiting firearms on public transportation in its briefs. Of course, “public” transportation systems were often under private ownership during the relevant period of historical inquiry, but that surely doesn’t mean that states were powerless to regulate that enterprise.

Additionally, consider the default rule banning firearms on private property. Its academic defenders argue that the law doesn’t implicate the Second Amendment because it only shapes a default rule consistent with a property owner’s common law right to exclude, allowing property owners to choose to allow or prohibit firearms on their property. I’m not convinced. As an initial observation, the text of the Second Amendment draws no public/private distinction. I am also hesitant to incorporate into this context wholesale principles of property law, particularly where the textual threshold that Bruen requires to bring conduct within the Second Amendment’s ambit is so low.

Consider also Hochul’s justification for the default rule: it “gives power to business and property owners to decide whether or not they want guns in their establishments, which could include bars, restaurants, shops or grocery stores.” Setting aside the fact that the CCIA would brand anyone bringing a firearm into a bar or most restaurants a felon regardless of the owner’s wishes, the law gives businesses no such power. Instead, it exempts certain groups from the default rule, including police, both active and retired, security guards, judges, and hunters. In a previous post, Andrew Willinger suggested that “[o]ne common thread uniting these groups is that most have previously undergone some form of heightened firearms training, beyond what is required to obtain a concealed-carry license in New York.” This is certainly true, but, as Robert Lieder points out, it wasn’t the state’s justification for the law. And, in any event, it seems to me that a hunter carrying firearms on private property creates more danger than someone carrying for self-defense because the former intends to discharge his or her firearm whereas the latter does not. The state’s rationale seems entirely contrived and a pretext to prevent license holders from carrying a firearm outside their homes. If Hochul and the legislators truly wanted to give business and property owners the power to decide whether they want guns in their establishments, why exempt anyone aside from active police in exigent circumstances?  Consider that the Ninth Circuit struck down a California provision exempting retired police from the state’s assault weapons ban. The court noted that the exemption was wholly contrary to the legislature’s stated goal of reducing the number of assault weapons in the state. When one realizes that default rules are inherently sticky—that is, when presented with different, perhaps even better, terms, parties will often abide by the default for various reasons—it becomes obvious why New York established this default.

Soon we will see the Second Circuit’s forthcoming opinion in Antonyuk v. Nigrelli, a case which challenges large portions of the CCIA including several of its licensing prerequisites (i.e., the good moral character requirement, character references, disclosure of cohabitants, an in-person interview, and a social media review), many of the sensitive place restrictions, and the private property default rule. Although the standard for appellate review of a preliminary injunction is abuse of discretion, I suspect that the Second Circuit will be less skeptical of the CCIA than the district court was. However, based on oral arguments, specifically comments by Judge Gerald Lynch, I also suspect that the Second Circuit will affirm the district court’s injunction at least as to the private property default rule and the ban on carrying in public parks. Given the prevalence of similar Bruen-response legislation—New Jersey, Maryland, and Hawaii passed similar laws after New York, and California and Massachusetts are considering similar laws—I would be surprised if the Supreme Court does not take up the issue of the default rule or sensitive place restrictions soon, particularly given its increasing willingness to grant certiorari in Second Amendment cases.

The History of North Carolina’s 1879 Concealed Carry Ban: Part II

This is Part Two in a two-part series on the history of North Carolina’s 1879 concealed carry law.  Part One summarized the historical context and legislative record surrounding the law.  Part Two will address how the law was enforced in one North Carolina county in the decades after it was enacted.  

Enforcement of the 1879 Concealed Carry Ban in New Hanover County

Because of the inherent dangers of relying on legislative history and newspaper accounts, historical enforcement data is potentially quite valuable.  Contemporary court records can show how a law was actually enforced in the years after it was enacted, shedding at least some light on how the law was used in practice and whether it may have disproportionately impacted Black citizens.  Over the past several months, the Center has engaged in an archival research project to determine how North Carolina’s 1879 concealed carry law was enforced in New Hanover County (which includes the city of Wilmington) in the decades following its enactment.  A collection of New Hanover court records and minute books from this time period is preserved at the North Carolina State Archives in Raleigh.  We reviewed the following court records to identify prosecutions under the concealed carry ban:

  • New Hanover County Criminal Court Minutes, 1877-1884, 1888-1895
  • New Hanover County Superior Court Minutes, 1902-1910

In 1909, the state’s General Assembly passed a law establishing a “special criminal court” for New Hanover County—known as the Recorder’s Court—with exclusive jurisdiction over certain criminal offenses including “carrying concealed weapons.”  The post-1909 Recorder’s Court minutes have most likely been destroyed: the State Archives has no record of these minutes being transferred to Raleigh, and county officials do not believe the records were preserved locally.  The records we reviewed, then, are a representative snapshot of how the concealed carry law was enforced in a single North Carolina county from 1879 to 1909.  They are by no means comprehensive, as even the preserved minute books omit certain years, and they do not shed light on statewide enforcement of the law.

The minute books typically list the defendant’s name, the offense(s) charged, the case disposition, and the adjudication and sentence imposed (if any).  We reviewed all enforcement actions regardless of outcome—in other words, the set of records we reviewed includes instances where the defendant received a criminal sentence and instances where the defendant was acquitted, given a suspended sentence, or where the state ultimately did not pursue the case.  The court records do not list the race of the defendant.  Race was determined by cross-referencing the available information from these records with other historical materials, including contemporary newspapers (which occasionally reported on concealed-weapons prosecutions listing the race of the defendant) and public ancestry databases.

The racial makeup of New Hanover County changed dramatically during the period of our study.  While Black citizens were 62% of the county population in 1880, that percentage declined to 48% by 1910.  This decline was due in no small part to the 1898 white supremacist coup which overthrew Wilmington’s integrated Fusionist government, permanently banished many prominent Black leaders from the city, and resulted in the death of hundreds of Black citizens.  If one averages the decennial population percentages from 1880 to 1910, the county was 55% Black and 45% white.  Note that these numbers are taken from the federal census tables and that the 1890 census records were largely destroyed in a fire in the 1920s (which may mean that the 1890 numbers are estimates, but the general trends are still clear).

Table 1:  Population of New Hanover County by Race (1880-1910)

























We found 274 total unique prosecutions under the concealed carry law in the set of court records we reviewed.  We were unable to determine the race of the defendant with confidence for many of these prosecutions—either because the name was not listed in one of the databases we consulted or because the name was common and associated with both Black and white county residents at the time.  Of the 274 total unique prosecutions, we were able to identify the race of the defendant with a high level of certainty for 141 prosecutions.  We then determined the percentage of prosecutions of Black and white defendants, respectively. 

(I am happy to share the spreadsheets containing our underlying data by email with anyone who is interested, and welcome any feedback or suggestions.  We are currently in the process of updating those spreadsheets to link directly to the relevant images from the court minute books, and we are also coding the case outcomes to enable analysis of whether outcome was correlated meaningfully with the race of the defendant.)

As the table below illustrates, the racial makeup of concealed carry defendants for the prosecutions we reviewed from 1879-1909 aligns almost exactly with the average racial makeup of the county as a whole during that time period.  This does not necessarily indicate that the concealed carry law was enforced equally against Black and white citizens in New Hanover County at the time.  After all, Black citizens may have been less likely to carry weapons publicly in the first place—in which case maybe police were disproportionately targeting the few Black citizens who carried weapons, while allowing certain white citizens to violate the law.  It is difficult to draw conclusions one way or the other without a more detailed understanding of historical social norms and practices surrounding the carrying of weapons.  Table 2 does demonstrate, however, that the race of those prosecuted under the concealed carry ban in the county from 1879 to 1909 was consistent with the racial makeup of the county as a whole.

Table 2:  Prosecutions under Concealed Carry Law in New Hanover County (1879-1909)


Number of prosecutions











These numbers also stayed relatively stable over time, even after the Fusionist government of Wilmington, by far the largest city in the county, was violently overthrown and replaced with a white supremacist Democratic administration in 1898. We reviewed a subset of 68 prosecutions in which we could confidently identify the defendant’s race and the exact date of the charge.[1]  This analysis showed that the racial enforcement percentages did not change substantially with the events of 1898.  In fact, the percentage of Black defendants prosecuted under the law actually decreased after 1898, which is consistent with the fact that the county was becoming increasingly white at that time (as shown in Table 1 above).

Table 3:  Sample of Concealed Carry Prosecutions by Date (Pre- and Post-1898)




Black prosecutions



White prosecutions






Black percentage



White percentage



While the data does not show that the concealed carry law was not enforced in a discriminatory manner in New Hanover County in the three decades after it was enacted, it does show that police and prosecutors were not solely pursuing charges against Black citizens for violating the law.  However, it may well be that judges were sentencing defendants convicted for violating the law in a discriminatory manner.  Sentences, which were often listed in the minute books, varied widely.  As just one example, in June 1905 a Black man (Frank James), who was tried and found guilty of violating the concealed carry law, was sentenced to one year of labor on the county roads.  Eden Perry, a white man who was found guilty by a jury of violating the same law the very next month, was ordered to pay a $5 fine and the costs associated with his trial.  Further research is needed to determine the extent of any such sentencing disparities and explore a possible connection between race and the sentence imposed in concealed carry cases.


Our results show that, in the North Carolina county perhaps most notorious for racialized violence in the post-Civil War period, the race of those defendants prosecuted under the state’s concealed carry ban from 1879 to 1909 aligned with the racial makeup of the county as a whole.  The county was, on average, 55% Black and 45% white.  53.9% of concealed carry prosecutions were brought against Black defendants, and 46% were brought against white defendant.  As noted above, it may well be that Black citizens generally refrained from carrying weapons in public while white citizens did not—if so, the data may reflect biased enforcement.  Possible sentencing disparities also warrant further research, as that is likely one way in which the racial prejudice of white judges and juries may have found expression.[2]  While some areas of North Carolina appear to have used integrated juries in the immediate post-Civil War period, as early as 1887 the North Carolina Supreme Court rejected a challenge by a Black defendant to a sentence imposed by an all-white jury where qualified Blacks were entirely excluded from the venire.  And scholars generally agree that Blacks “virtually disappeared from the southern jury box by 1900, even in counties where they constituted an overwhelming majority of the local population.”

If Black citizens were potentially singled out for enforcement and sentenced more severely upon conviction, why does this data matter?  To me, the findings suggest that the mere exercise of state power to ban the concealed carry of certain weapons was not predominantly driven by racial considerations.  The state legislators (and members of the public who voted for them, who were largely white after the end of federal Reconstruction) likely thought it important to deter everyone from carrying concealed weapons.  If legislators and white citizens wanted to use the law only to disarm the Black population, then why arrest and prosecute white citizens at all?  Some level of discriminatory enforcement is possible, and even likely, but it was accompanied by the desire to broadly restrict concealed carry regardless of the race of the offender—consistent with concerns about public safety and concealed weapons expressed in contemporary newspapers.

More importantly, however, our results suggest that making broad claims about the interaction between any historical gun regulation and race is a risky endeavor—especially without careful analysis of relevant contemporary sources and enforcement data.  Our findings cast doubt on any claim that all Reconstruction-era gun regulation in the South (at a time when states in the South and West were most heavily involved in regulating the private possession and carrying of weapons) was irreparably infected with racism and should be disregarded for modern purposes.  But a small sample of prosecutions from a single North Carolina county certainly doesn’t settle this question.  Practices likely varied substantially by state, and even within a given state, based in part on the depth and nature of racial prejudice and how serious local police and prosecutors were about restricting concealed carry by all citizens.  More research of this type is urgently needed to better understand the background of the historical gun laws that are now often the focus of Second Amendment litigation.  Further research could easily suggest that New Hanover County is an outlier (after all, Wilmington remained a largely integrated city after the Civil War for longer than any other major urban area in the South), but it’s impossible to know until that research is conducted.  Broad and unsupported arguments that impugn a law based solely on surrounding context, however, ignore historical complexity and fail to grapple with the records of how that law was actually enforced—records which are often collecting dust in local libraries and archival collections.   

[1] Some records, by contrast, were associated only with a year, or span of years, based on the minute books in which they were found—we excluded those records from the survey of enforcement over time.

[2] Another potential project would be to explore enforcement in North Carolina counties with sizable Black populations at the time located in different parts of the state, including Mecklenburg and Wake counties.

The History of North Carolina’s 1879 Concealed Carry Ban: Part I

Contemporary debates over gun policy often occur in the shadow of history.  As we previously described, the recent debate in the North Carolina legislature over whether to repeal the state’s 1919 law requiring a state-issued permit to purchase a handgun was framed by competing claims about why that law was originally enacted.  Those who supported the repeal effort often invoked the law’s purportedly racist origins.  The idea that the law was enacted to disarm the state’s Black population finds some support in Wilmington newspapers from that time period but is mostly absent in other contemporary accounts that focused on potential public safety benefits.  Newspaper tallies of those applicants who were initially granted permits after the law was enacted are also mixed.  Supporters of the repeal effort successfully overrode Governor Roy Cooper’s veto in late March, and North Carolina no longer requires a permit to purchase a handgun in the state.

But questions about whether historical gun laws were racially motivated or enforced in a racially discriminatory manner—and, if so, what the modern consequence of those facts should be—are almost certainly here to stay.  Mainstream media outlets have reported recently about the government’s reliance on facially discriminatory historical laws to defend modern gun regulations under Bruen’s historical-analogical test.  Justice Amy Coney Barrett (at the time, a judge on the Seventh Circuit Court of Appeals) wrote in a 2018 dissent that historical laws disarming slaves and Native Americans showed a historical tradition of disarming groups “judged to be a threat to the public safety,” even though “[i]t should go without saying that such race-based exclusions would be unconstitutional today.”  However, after Bruen, some judges have opined that “‘rejecting’ the discriminatory application of those unconstitutional laws historically—while still arguing those laws should be a basis for [upholding modern gun regulations]—walks too fine a line.”

Laws that were not facially discriminatory, but may have been enforced disparately by race at certain points in time, raise similar questions.  In multiple places, the Bruen majority suggests a prominent role within constitutional law for arguments that certain historical regulations—such as concealed carry bans and surety statutes—may have been enforced in a discriminatory way (with authorities pretextually targeting Black citizens and/or choosing not to enforce the laws against white citizens).  Bruen observes, for example, that “Southern prohibitions on concealed carry were not always applied equally, even when under federal scrutiny” and that, in some states, “local enforcement of concealed-carry laws discriminated against blacks.”  These same concerns surface in policy debates as well, where they often constrain discussion in unfortunate ways.  For example, the broad claim that “racism underlies gun control laws”—full stop—fails to appreciate that historical debates over gun regulation were often animated by similarly varied concerns as modern debates—and that those concerns often did not divide neatly along racial lines.  To examine the relationship between gun regulation and race in North Carolina specifically, the Duke Center for Firearms Law embarked on a project to study the passage and enforcement of the state’s 1879 concealed carry ban.

Legislative Voting Patterns and Contemporary News Coverage

North Carolina was among the southern states to prohibit the concealed carry of certain weapons during the post-Civil War era.  An 1879 law, An Act to Make the Carrying of Concealed Weapons a Misdemeanor, made it a crime to “carry concealed about [the] person any pistol, bowie-knife, dirk, dagger, slungshot, loaded cane, brass, iron or metallic knuckles or other deadly weapon.”[1]  The statute also provided that any individual found with such a weapon outside of his or her home would, in the eyes of the law, have presumptively concealed that weapon. 

From the end of the Civil War until 1894, the North Carolina state legislature consistently included a small minority of Black senators and representatives, mostly from counties in the eastern part of the state.  This number ranged from 22 Black state legislators in 1868 to 17 legislators in 1886.  “[U]nlike the patterns followed in other southern states after Reconstruction, North Carolina still continued to elect black legislators throughout the 1880s,” notwithstanding the abrupt end of federal Reconstruction in 1876.  Black legislators continued to serve in state politics until 1900, when a newly enacted literacy-test requirement—together with wanton white supremacist violence including the overthrow of Wilmington’s fusionist government in 1898 and the massacre of hundreds of Black citizens[2]—effectively disenfranchised the state’s entire Black population.  Not one Black citizen served in the state legislature from 1900 to 1968.

North Carolina’s 1879 concealed carry law received broad legislative support, passing by a vote of 80-27 in the state house of representatives.  The 1879 state legislature included either 8 or 9 Black representatives (the official biographical compendium of state legislators lists 8, while another source says 9) and two Black senators (Henry Eppes and Franklin Dancey).  Of the 8 Black representatives listed in the compendium, 5 voted in favor of the concealed carry ban and 3 voted against.  Those voting in favor included Stewart Ellison of Wake County, while William Henry Waddell of New Hanover County voted against.  Both Black state senators voted against advancing earlier versions of the bill, although there is no record of the Senate’s final roll-call vote at the end of February. 

The legislative history of the 1879 concealed carry ban is sparse.  For the most part, only formal proposals to amend the legislation, and whether those proposals succeeded or failed, were recorded—there is no record of substantive debates about the law and its intended impact.  Among the failed amendments were motions to specify criminal punishments rather than leaving the sentence to judicial discretion, a motion to remove the word “concealed” from the bill, a proposal to change the offense from a misdemeanor to a felony, and proposals to exempt certain North Carolina counties from the law.  Contemporary newspaper reports about the law were mixed, with some newspapers voicing support on public safety grounds and others suggesting that the law would not actually stem violence because those who wanted to carry concealed weapons would simply violate the law.  For example, newspapers including The Charlotte Democrat, The Roanoke News, and The Torchlight expressed enthusiasm for the new law because of public safety concerns with the practice of carrying concealed weapons.  Other newspaper editors, however, argued against the concealed carry ban because they felt it would not deter those “swaggering desperados” who would carry concealed weapons even if the practice was outlawed.

Racial undertones were present during debates over the law and in contemporary and subsequent newspaper coverage.  Some legislators and newspaper editors emphasized the danger of concealed razors—often described as the preferred weapon of Black citizens at the time—and an unsuccessful motion was made in the state legislature to add razors to the list of banned weapons. (Although arguably encompassed by the phrase “or other deadly weapon,” the concealed carry of razors would later be specifically prohibited by amending the 1879 law.)  In June 1879, The Daily Review in Wilmington reminded its readers of the new law and mentioned razors specifically as the preferred weapon of Black citizens.  The editor expressed hope that Black citizens who carried razors would be swiftly dealt with by the courts.  Other newspapers, such as The Wilmington Morning Star, took to reporting individual convictions under the law and mentioning race only if the offender was Black.  From the late 1860s up until the 1898 coup, Wilmington newspapers also consistently fanned fears that Black citizens were heavily armed with modern weapons.

There are many reasons why even contemporary newspaper accounts might not provide a complete picture of the motivations behind legislation such as North Carolina’s 1879 concealed carry law.  For example, legislators and newspaper editors who were actually motivated to support the law because of racial animus may have given pretextual reasons for endorsing the legislation.  And it is always perilous to attempt to reconstruct the driving forces behind any action by a legislative body consisting of numerous members motivated by different considerations. The voices that come through most clearly in these historical accounts may not be representative, and there is a constant temptation to “look[] over a crowd and pick[] out your friends” rather than appreciating the nuance of the full historical record.

That said, there are remarkable similarities between the debates over North Carolina’s gun laws in 1879, 1919, and today.  Many North Carolinians invoked public safety as a primary reason for supporting these measures initially, some voiced concerns that the laws would merely make law-abiding citizens vulnerable because criminals would not be deterred by state regulation, and still others were focused on potential racialized impacts. The debate over whether to repeal the state’s handgun permit law similarly pitted those who emphasized the law’s potential impact on public safety against those who emphasized the potential diminishment of law-abiding citizens’ rights to armed self-defense (with an ancillary focus on the possible racialized origins of the permit law).

And these same areas of disagreement surfaced prominently in last June’s decision in Bruen.  Justice Breyer’s dissent observed that “firearms in public present a number of dangers. . . and are responsible for many deaths and injuries in the United States”—a pure public safety argument similar to those levied against concealed carry in the late 1800s.  Justice Alito emphasized that, in his view, “there can be little doubt that many muggers and rapists are armed and are undeterred by the Sullivan Law”—the “swaggering desperadoes” who would persist in carrying concealed weapons despite a legal prohibition.  The majority opinion, concurrences, and dissent all alluded to the ever-present debate over whether stricter gun regulation disproportionately disarms, or protects, minority groups. 

[1] The law was ultimately repealed and replaced by a shall-issue permitting system in 1995, which remains in place today.

[2] For more background on the 1898 Wilmington coup, see David Zucchino’s Pulitzer-Prize-winning 2020 book Wilmington’s Lie.

District Judge Strikes Down Minnesota Law Restricting 18-to-20-Year-Olds from Carrying Handguns in Public, but Issues Stay Pending Appeal

On March 31, U.S. District Court Judge Katherine Menendez issued a decision in Worth v. Harrington finding portions of a Minnesota statute unconstitutional and enjoining the state from enforcing the statute in the future. The provision struck down in Worth is a part of the state’s permit-to-carry statute. In Minnesota, a permit is required to lawfully carry a handgun in public. Permits will be issued to any citizen who submits an application and satisfies certain criteria listed in the challenged statute. Requirements for receiving a permit include, among others, that the applicant be 21 years or older and complete a training course in the safe use of a pistol.

The Plaintiffs in Worth included gun rights advocacy organizations as well as individual members of those organizations who were between the ages of 18 and 21 years old. Plaintiffs challenged the age provision in the statute, arguing that the state’s exclusion of 18-to-20-year-olds from public carry acted as an unconstitutional restriction on Second Amendment rights. The District Court ultimately agreed, granting summary judgment in the Plaintiffs’ favor following an analysis of the statute under the Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen.

The Court’s analysis was separated into a two-step inquiry, beginning with a textual analysis focused on the “normal and ordinary” meaning of the Second Amendment’s language to determine whether the Second Amendment protects the “individual’s proposed course of conduct.” Using the Supreme Court’s interpretation of the Second Amendment in Heller as a guidepost, Judge Menendez began by considering whether the Plaintiffs’ “proposed course of conduct” was covered by the plain text of the Second Amendment. Bruen made clear that “carrying handguns publicly for self-defense” is conduct protected by the Second Amendment. Therefore, the inquiry primarily focused on whether the Plaintiffs (individuals under the age of 21) are part of “the people” referenced in the text of the Second Amendment.

Ultimately, Worth concluded that “the Second Amendment’s plain text is better read to include adults 18 and older in its protections.” Judge Menendez cited Heller as supporting a “strong presumption that the Second Amendment is exercised individually and belongs to all Americans.” Menendez also found the Second Amendment’s silence on the subject of age convincing, referencing the Founders’ choice to place age requirements elsewhere in the Constitution—such as in the qualifying criteria for serving as a Senator, House Member, or President. Additionally, the Court found that the phrase “the people” had not otherwise been interpreted in the past to exclude 18-to-20-year-olds in the context of the First and Fourth Amendments.

Worth also explored Founding-era militia laws for assistance interpreting the scope of the Second Amendment. Judge Menendez referenced militia laws during this era that oftentimes set the minimum age of enlistment at 16. She also observed that “every colony at some point” passed a law identifying 18-year-olds as individuals “required to possess arms” for purposes of militia service. While some historical laws increased the age requirement for militia service to 21 during the colonial era, Judge Menendez found that laws using this higher age cutoff were a minority and that, in general, militia-related firearms requirements supported including 18–20-year-olds within “the people” protected by the Second Amendment.

After concluding that 18-to-20-year-olds are covered by the ordinary meaning of the Amendment’s text, the District Court moved to the second step of the Bruen analysis. Judge Menendez reiterated Bruen‘s command that, if a course of conduct falls under the Second Amendment’s protections, any restriction of such conduct must be justified by showing that the challenged law is consistent with America’s historical tradition of firearm regulation.

The District Court determined that the state failed to identify analogous regulations showing a historical tradition of depriving 18-to-20-year-olds of the right to publicly carry firearms for self-defense. The opinion focused on laws in place during or shortly after the Second Amendment was ratified in 1791. While other courts, such as the 11th Circuit in a recent decision, have relied primarily on laws from the Reconstruction era—when the Fourteenth Amendment, which would ultimately apply the federal Second Amendment against the states, was ratified—Worth rejected this approach. The 11th Circuit’s decision in Bondi highlighted the importance of focusing on the meaning of the Second Amendment as it would have been understood by those who ratified the Fourteenth Amendment in 1868. Worth found that, although Bruen recognized a role for Reconstruction-era laws when consistent with earlier history, the Supreme Court also cautioned against giving post-Founding laws more weight than they could bear. Therefore, Worth rejected the state’s argument that laws from around 1868 should be the primary focus when applying Bruen. Judge Menendez did stress that, even if she had chosen to rely more heavily on Reconstruction-era laws, the result in Worth would have been the same in her view.

Defendants offered several examples of potential historical analogues for modern age restrictions on the public carry of firearms. These included policies in place on college campuses in the early 1800s that prohibited students from owning weapons (including firearms), municipal ordinances that required a parent to pay fines for their minor child should the child illegally discharge a firearm in public, and Fourteenth Amendment era laws prohibiting the sale of firearms to minors—including some laws that identified minors as those under the age of 21.

Judge Menendez addressed each class of regulation in turn, ultimately finding that none of the laws relied upon by the state was an appropriate historical analogue for the Minnesota statute. In comparing historical and modern laws, the judge focused on how and why each regulation restricted Second Amendment rights. The opinion stressed that, in the case of early-1800s campus restrictions, these policies were not enacted by legislatures and applied only to a small subset of society at the time they were in effect (namely, students). Additionally, these policies would also have prevented students over the age of 21 from possessing firearms.

Worth similarly found municipal ordinances requiring parents to pay fines for their minor children unconvincing because those laws burdened the right to bear arms for different reasons and in different ways than Minnesota’s age minimum. These municipal ordinances, the judge found, were intended to address the danger posed by discharging firearms in public, not the danger of allowing younger citizens to carry firearms in general. The district court also determined that these laws did not prohibit 18-to-20-year-olds from carrying firearms publicly; rather, they simply recognized that a minor might be unable to independently pay the fine imposed for unlawful public discharge.

As for Reconstruction-era age restrictions, the opinion stressed that these were entitled to less weight due to their distance in time from the Founding. The district court also called attention to the fact that these laws were not relevantly similar because some of them restricted only the sale of firearms to minors but permitted minors to receive guns from their parents or employers. Additionally, the judge found that certain laws from this period restricted possession only by those under the age of 16, not 21.

Once Judge Menendez completed her analysis, she concluded that the Minnesota age restriction was unconstitutional under Bruen. Before concluding, Judge Menendez observed that she likely would have ruled differently had she been able to weigh the modern legislative justifications for the Minnesota age restriction.  She also commented that, “given the dearth of firearms regulations” from the relevant time period under Bruen, application of Bruen “seems likely to lead, generally, to more guns in the hands of more people, not just young adults.”

I find the district court’s choice to comment on the restrictive nature of the Bruen analysis particularly interesting. It seems to indicate that, after Bruen, at least some judges feel their hands have been tied by the historical analysis now required in Second Amendment cases. The practical effect of Bruen’s test is that judges are unable to consider state interests in promoting public safety or empirical data about the present-day effectiveness of state gun regulations.

After reading decisions like Worth, I am left wondering about the potential inconsistencies between cases decided soon after Bruen and those decided in the future. The historical nature of Bruen’s test requires judges to analyze historical analogues provided to them by the parties in each individual case. Is it possible that there are historical statutes or regulations from the Founding era that have yet to be discovered by modern legal scholars? What is the outcome if these statutes exist and happen to be discovered after a law has already been struck down as unconstitutional?

Worth also serves to highlight the continued disagreement and confusion over how much weight, if any, should be given to Reconstruction-era laws. Bruen did not clearly answer this question, and the difference between the opinion in Worth and the 11th Circuit’s decision in Bondi may be evidence of an impending Circuit split (should Worth be upheld by the Eighth Circuit). The legal landscape may benefit from the Supreme Court taking another Second Amendment case soon to provide clarity on these outstanding questions—and it’s possible the Court may take one as soon as this summer, if the petition for certiorari in Rahimi is granted. In a future case, the Supreme Court would have the chance to clear up ambiguities—like the relevance of Reconstruction-era laws—lurking within Bruen’s test.

Following the decision in Worth, the Defendants moved to stay the injunction of the age restriction pending appeal to the Eighth Circuit. On April 24, Judge Menendez granted the stay for a period of 30 days or, if Defendants file an appeal, until the appellate process is concluded. The order to stay reflected an understanding that the Eighth Circuit could overrule her decision, as the judge noted that the law is “far from settled” and the questions presented in the case are “open to differing conclusions.” The judge also noted that the “significance of the issues presented and the rapid development of this area of law” favored granting the Defendant’s motion for a stay. Judge Menendez then considered the practical difficulties that could occur in permitting enforcement if she declined to stay the injunction. If Minnesota granted firearm permits to 18-to-20-year-olds during an appeal, the legal status of any such permits would be unclear should the Eighth Circuit reverse the decision in Worth. While Judge Menendez found that the continued deprivation of the Plaintiffs’ constitutional rights did favor denial of a stay, she concluded that the other factors outweighed this consideration and granted the Defendants’ motion.

I personally found the District Court’s justification for issuing a stay to be convincing, and wise, under the circumstances. Although Judge Menendez conducted a thorough analysis using the Bruen framework in Worth, the consequences of an Eighth Circuit reversal following the denial of a stay could create difficult administrative problems for the state’s firearm permitting system. Issues with the validity of permits issued to 18-to-20-year-olds in the interim could create additional legal challenges at the expense of judicial time and resources. The Eighth Circuit has also yet to decide a case using Bruen’s historical-analogue test, so it is particularly unclear how the appellate court will choose to approach the analysis, and what evidence it will find convincing. In sum, Judge Menendez’s stay order and its justification again show a recognition that analyzing Second Amendment challenges post-Bruen is not a simple endeavor and that different jurists can reasonably disagree over the outcome in a particular case.

How Have State Gun Laws Changed Since Bruen?

In just over ten months since Bruen was decided last June, there has been significant movement on gun regulation at the state level.  On the surface, these developments aren’t all that surprising because they generally track what one would expect given the partisan balance in each state legislature: red states have tended to roll back gun regulations, while blue states have tended to enact new gun laws.  With that said, one thing that does not seem to have changed with Bruen is that mass shooting events continue to spur some level of bipartisan agreement on certain regulations.

Several states have recently enacted (or are considering) “assault weapons” bans, an interesting trend given that no new state laws prohibiting assault weapons were enacted in more than two decades preceding Bruen.  In fact, no state had banned assault weapons since the expiration of the federal assault weapons ban in 2004 until Delaware did so shortly after the Bruen decision, on June 30, 2022.  Illinois followed with its own assault weapons ban in January, Washington state banned assault weapons on April 25 , and state legislators in Rhode Island and New Mexico have introduced their own assault weapons bans in recent months.  In Colorado, a proposed assault weapons ban narrowly failed to advance out of the House judiciary committee in an April 20 vote and will not be enacted at this time despite a large Democratic majority in the state legislature.

The Delaware and Illinois bans have been challenged in court and, in both instances, a federal judge has declined to issue an injunction.  On February 17, a judge in the Northern District of Illinois rejected a legal challenge to the Illinois ban, finding that “[t]he history of firearm regulation [] establishes that governments enjoy the ability to regulate highly dangerous arms (and related dangerous accessories).”  A second judge in the same district largely adopted that analysis and similarly upheld the Illinois law in an April 25 opinion.  On March 27, a federal judge in Delaware denied a motion to enjoin that state’s ban because he determined that historical laws were similarly “enacted in response to pressing public safety concerns regarding weapons determined to be dangerous” and (similar to Delaware’s law) did not substantially burden the right to armed self-defense.  Unlike the federal decision from Illinois, the Delaware opinion conducted a detailed analysis of the “common use” test and found that the banned weapons were in common use for lawful purposes (as I’ve written previously, I believe that judges are especially likely to focus on this inquiry post-Bruen).  A state judge partially enjoined Illinois’ ban on equal protection grounds, and the state supreme court is slated to hear an appeal of that decision in May. 

We can also expect some appellate decisions shortly dealing with challenges to pre-Bruen state assault weapons bans—although some of these cases may be delayed if they are ultimately decided en banc.  Challenges to the Maryland and California bans are pending, and the Fourth Circuit heard oral argument in the Maryland case earlier this year.  The Illinois and Delaware laws mentioned above both restrict large-capacity magazines as well, and other states including Rhode Island and Oregon have passed their own standalone large-capacity magazine bans in the past ten months (these laws often implicate similar Second Amendment issues as assault weapons bans; we covered a federal decision on the Rhode Island large-capacity magazine ban here).

Another major area of movement post-Bruen is that a number of former may-issue states have passed sweeping new public-carry licensing laws and locational restrictions.  In addition to New York and New Jersey—where the laws have been challenged on Second Amendment grounds, enjoined in part at the district court level, and the cases appealed to the Second and Third Circuits, respectively—Maryland recently passed a similar law that is expected to be signed shortly by the governor.  California is debating comparable legislation, and certain Hawaii counties are considering or have enacted analogous restrictions.  In general, these laws require additional training and certifications to obtain a concealed carry permit, raise the minimum age for public carry (in some instances), and designate sensitive locations where guns are banned.  While it’s unclear how the ongoing litigation will play out, it seems almost certain that some of the sensitive-location bans will ultimately be struck down under Bruen.  Oregon went a different route and enacted a permit-to-purchase requirement by ballot initiative—the state’s implementation of that requirement has been delayed, but the state legislature is currently considering legislation on the topic.  

New York, New Jersey, Delaware and California have all acted since Bruen to pass so-called gun-industry liability laws, which generally authorize lawsuits against gun manufacturers and dealers within the predicate exception to the federal Protection of Lawful Commerce in Arms Act, or PLCAA (we discussed New Jersey’s law here, as well as an ongoing lawsuit pursuant to which that law is currently enjoined).  Michigan moved in April to pass a law requiring background checks for all gun purchases in the state and impose safe-storage requirements, and other states like Wisconsin have similarly considered proposals to expand background checks for sales not subject to the federal background-check requirements for licensed dealers.

On the deregulatory side, the former may-issue states acted via either legislation or legal opinion letter to remove their proper-cause standards for concealed carry licensing after Bruen.  Perhaps the most high-profile deregulatory move, however, has been the increasing movement toward permitless carry.  Since last June, four states have passed legislation allowing the permitless concealed carry of handguns: Indiana, Alabama, Florida, and Nebraska (Ohio’s law approving permitless carry went into effect in early June 2022; Louisiana allowed permitless carry by military veterans and is currently considering a broader permitless carry bill).  Once the Florida and Nebraska laws take effect (Florida’s is effective on July 1 and Nebraska’s law, which was just signed earlier this week, will take effect on September 10), 27 states will allow permitless carry.  That is a major shift from even one decade ago, as most of these laws have been enacted since 2015.  North Carolina repealed its permit-to-purchase requirement for handguns in late March, with the state legislature overriding Governor Roy Cooper’s veto.

The past ten months have also seen a number of deregulatory changes not made directly by state legislatures, but rather by state attorneys general choosing not to defend gun laws in court.  In Tennessee, the state agreed to settle a challenge to its 21-year-old age minimum for permitless carry by lowering the age to 18 and paying the plaintiffs’ costs and attorneys’ fees.  After the August 2022 decision in McGraw, where a district judge struck down Texas’ ban on 18-20-year-olds carrying handguns in public with or without a permit (Jake summarized that decision here), the state initially filed a notice of appeal with the Fifth Circuit but later withdrew its appeal and allowed the district court ruling to take effect.  Age-based restrictions have been a frequent subject of post-Bruen litigation, and—as noted in the Eleventh Circuit’s recent decision in Bondi upholding the state’s under-21 purchase ban (which we covered here)—the Florida legislature is currently considering a proposal to drop the age minimum despite the state’s successful defense of the law in court thus far. 

On one hand, recent developments suggest that red and blue states are growing further apart in their approaches to gun regulation since Bruen.  That’s not surprising, as Bruen predictably triggered a renewed effort in blue states to regulate firearms and did nothing to disrupt the deregulatory trend in red states that has been ongoing, especially with regard to public carry, for some time.  However, legal challenges to certain regulations such as assault weapons bans and locational restrictions could still shift the landscape significantly (we can expect to see major decisions from the federal appellate courts on some of these laws in the coming months). 

Another (potentially less obvious) conclusion from state-level developments over the past ten months is that Bruen has not changed the fact that mass shootings—like the recent tragic shootings at Michigan State and a parochial school in Nashville—still generate support for certain new regulatory measures no matter where they occur.  As noted above, Michigan passed background-check enhancements and safe-storage requirements after the Michigan State shooting, and the state currently seems poised to enact an extreme-risk protection order (or “red flag” law).  Similarly, in Tennessee, Republican Governor Bill Lee intends to sign an order strengthening background checks and has called on legislators to pass a version of a red flag law (however, it seems highly unlikely that such a law will actually be considered in the current legislative session).  Notably, Michigan and Tennessee would be the first two states since Bruen to enact red flag laws; such laws are currently on the books in 19 states and the District of Columbia.  While two trial courts in New York state have invalidated New York’s red flag law in recent months (we covered one of those decisions here), another court recently upheld the law and there are reasons to doubt that appellate courts will ultimately endorse the reasoning that has led some lower state courts to strike down red flag laws.  For one, there is substantial confusion in these decisions about whether the challenge is under the Second Amendment (which would mean applying Bruen’s test) or whether the challenge sounds in procedural due process. 

While bipartisan agreement on regulations such as red flag laws seems at least conceivable in the weeks and months ahead, it’s unclear how much staying power these measures will have.  Florida’s current deregulatory push includes efforts to undo age restrictions enacted in the immediate aftermath of the 2018 Parkland shooting.  If the state legislators advocating this repeal are successful, it will be difficult to accept that the reversal is data-driven (i.e., that the law failed to have its intended effect of increasing public safety).  There just isn’t enough data available yet from Florida to draw strong conclusions one way or the other—a leading empirical study on the impact of Connecticut’s red-flag law by Center faculty affiliate Jeffrey Swanson, for example, uses more than 13 years of data to reach its conclusions.  Developments in Florida, Texas, and Tennessee suggest to me that there’s perhaps an increased risk that even policy changes with bipartisan support upon enactment may devolve into partisan repeal fights in the near future.  

Bruen’s emphasis on historical tradition over empirical evidence of effectiveness in reducing homicides, suicides, and injuries may also be playing a role in these current state legislative trends.  While Bruen sets forth a legal test and does nothing to preclude considering empirical evidence in the legislative process, lawmakers must now also consider whether proposed policy changes that implicate the Second Amendment have historical support.  Even where courts have not opined directly on the post-Bruen constitutionality of specific legislation (or where courts have reached conflicting outcomes), politicians and lobbying groups who oppose certain laws often invoke unconstitutionality as a primary argument against enactment.  To me, at least, there’s an important distinction between observing that a law is likely to be challenged in court and that taxpayers will have to foot the bill for a costly legal defense—which is certainly a legitimate factor to consider during legislative debate—and asserting that a law is unconstitutional when there is, as yet, no judicial consensus.

Private-Property Default Exceptions, Firearms Training, and Multi-Tiered Licensing

This post is part of a mini-symposium on “Private Property and the Second Amendment,” which includes Jake Charles’ post Bruen, Private Property & the Second Amendment, and Robert Leider’s post Pretextually Eliminating the Right to Bear Arms through Gerrymandered Property Rules.  Stay tuned for additional response posts that will run on the blog in the coming weeks.  

In his post Pretextually Eliminating the Right to Bear Arms through Gerrymandered Property Rules, Robert Leider argues that one of New York’s post-Bruen legislative responses—switching the default rule governing when permitted gunowners may carry on private property—is unconstitutional.  Professor Leider professes that he is “genuinely unsure whether a state has the power to change the default rule on all private property.”  However, he argues that the law New York passed, and the one New Jersey recently enacted, do not actually change the default rule as they claim to do because the laws exempt various groups from compliance.  In other words, certain individuals are excused from the private-property default rule by virtue of their current or past position of employment or for other reasons, and those groups may carry on private property even when the property owner has not posted a sign specifically allowing firearms to be carried.  Functionally, the New York law does this by exempting such individuals from the criminal statute prohibiting possession of a weapon in a “restricted location.”  

While Professor Leider observes that New Jersey’s statute is different from, and potentially broader than, New York’s in terms of the exemptions it grants from the private-property default rule, this response focuses only on the New York law passed in July.

New York exempts the following groups from the “restricted location” provision:

(a) police officers as defined in section 1.20 of the criminal procedure law;

(b) persons who are designated peace officers as defined in section 2.10 of the criminal procedure law;

(c) persons who were employed as police officers as defined in section 1.20 of the criminal procedure law, but are retired;

(d) security guards as defined by and registered under article seven-A of the general business law who has been granted a special armed registration card, while at the location of their employment and during their work hours as such a security guard;

(e) active-duty military personnel;

(f) persons licensed under paragraph (c), (d) or (e) of subdivision two of section 400.00 of this chapter while in the course of his or her official duties;

(g) persons lawfully engaged in hunting activity.

One common thread uniting these groups is that most have previously undergone some form of heightened firearms training, beyond what is required to obtain a concealed-carry license in New York.  New York now requires that concealed-carry applicants complete 18 total hours of training, including “a minimum of two hours of a live-fire range training course,” and meet certain proficiency benchmarks.  But the exempted categories of individuals have completed firearms training that often vastly exceeds this requirement, in both time and scope.  The NYPD explains that recruits “must successfully complete fifteen days of training at the Firearms & Tactics Section . . . [which] includes five days of basic firearms instruction, and ten days of tactical training.”  The state’s Department of Criminal Justice Services provides that, in order to become a registered security guard, applicants “must have a valid New York State pistol license . . . and must complete a 47-Hour Firearms Training Course.”  Hunters must complete a 7-hour training course that covers firearms-safety topics, although completion of that course “[g]enerally . . . does not qualify [one] to obtain a pistol permit in New York State.”   Designated peace officers are required by statute to undergo additional training, and active-duty military members will, in all likelihood, have completed quite lengthy and challenging small-arms training

While a comprehensive examination of each category is beyond the scope of this post, the point is that the vast majority of individuals exempted from the New York provision were required to complete additional firearms training beyond even what the state now mandates for a concealed-carry handgun license, to become part of that category in the first place.  Category (f)—which includes state court judges and messengers employed by banking institutions—appears to be the only group exempted under the law with no express additional training requirement.  The listed categories also likely encompass most New York citizens who would have been required to complete additional firearms training (although further research would be necessary to verify, for example, whether groups such as prison guards are fully covered by the “designated peace officer” exemption).  Notably, one might also expect that the exempted individuals are among the most likely in the state to have undergone implicit or unconscious bias training; for example, the NYPD began a comprehensive training program on those issues in 2018. 

Perhaps the easiest response here is that the statute exempts not only active-duty police officers but, as Professor Leider observes, also retired police officers—who, presumably, are not required to be up-to-date with firearms training in retirement.  However, relying solely on the retired police officer exemption is a slender reed upon which to base a claim of “clear” pretext.  Moreover, a retired police officer will have completed numerous hours of on-the-job firearms training throughout his or her career, and exempting this group may simply recognize the reality that a certain cumulative volume of training is considered sufficient (even without any ongoing requirement). 

One should not be so certain then, that the exemptions themselves are evidence that the law is a “pretext . . . overtly defying Bruen.”  Bruen itself endorsed numerous state licensing laws with objective training requirements, and the concurring opinion by Chief Justice Roberts and Justice Kavanaugh specifically deemed lawful shall-issue regimes that require “training in firearms handling and in laws regarding the use of force, among other possible requirements.”  Bruen has no problem with training requirements generally—although the majority opinion is clear that licensing rules could be subject to an as-applied challenge if overly burdensome in practice.  Bruen also does not speak to, and certainly does not clearly prohibit, a multi-tiered licensing system where the ability to carry in certain locations is dependent upon completing some extra level of training beyond the base level required for a permit (one can imagine a similar system being used in the sensitive-places context, where only those with enhanced training may carry in locations where guns are generally prohibited).  The Court might have issues with such a framework, which few if any states currently utilize, but Bruen simply doesn’t expressly say anything one way or another about its constitutionality. 

There also doesn’t seem to be a historical problem with a multi-tiered licensing system, at least not under Bruen’s analysis.  All gun licensing is of relatively recent vintage, but that didn’t stop the Court from endorsing a broad range of objective requirements in the licensing context.  And, as Jake Charles has observed (and Professor Leider agrees), “New York freely allows these property owners to opt-in to be a gun-friendly zone.”  Setting a default rule that accounts for the fact that private property owners may prefer different approaches for those with, and without, extensive firearms training is still a default from which owners may deviate—and, notably, it is a default more accommodating of public carry than banning all permitholders from carrying without express consent of the owner.

New York’s law, of course, does not enact a multi-tiered system based directly on past training.  But the exceptions to the “restricted location” provision accomplish the same functional end: the individuals who are allowed to carry even in businesses where owners have not given permission are, overwhelmingly, those who have received comprehensive firearms training above and beyond the ordinary license holder.  New York’s approach may be the only practical way for a state to enact this system in the near term.  By exempting categories of individuals who have completed prior advanced training by virtue of their employment status, or otherwise, the state has created a separate licensing “tier” without the administrative burden (on both the state and license applicants) of verifying past training-course completion.  By focusing on those who are not exempted, and failing to closely examine why the listed groups are exempted, Professor Leider concludes far too quickly that this aspect of New York’s law merely caters to “politically favored groups.”

If New York had exempted only those individuals with a certain number of documented hours of firearms training within the past 10 years from the “restricted location” provision, would that law also be “clearly a pretext”?  To the contrary, nothing in Bruen prohibits such an approach, or a similar regulatory system which ties public carry in certain locations to heightened training.  It’s not clear to me how this approach would ultimately fare under Bruen, and the state may need to remove exemptions for certain groups (such as state court judges) and also offer enhanced training to members of the general public that would similarly exempt them from the “restricted location” ban.  But the possibility that objectively-grounded training considerations underlie New York’s list of exempted groups is one reason to doubt Professor Leider’s assertion that New York’s private-property regulation is clearly pretextual and should be struck down entirely on that basis. 

Pretextually Eliminating the Right to Bear Arms through Gerrymandered Property Rules

This is a guest post that is part of a mini-symposium on “Private Property and the Second Amendment,” responding to Jake Charles’ earlier post Bruen, Private Property & the Second Amendment.  Stay tuned for additional response posts that will run on the blog in the coming weeks.  

When the Supreme Court required public school desegregation in Brown v. Board of Education, some Southern jurisdictions resisted through legal chicanery.  In Virginia, the Prince Edward County school district “closed” its public schools to avoid integration, while setting up government-funded private schools that were “private” in name only.  The Supreme Court was not amused.  In Griffin v. School Board, the Court saw the closure for what it was, and it ordered Prince Edward County to reopen its schools on an integrated basis.

A similar game of legal chicanery is playing out in many Democratic states, which have launched massive resistance to the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen.  That decision held that the Second Amendment protects the right of law-abiding citizens to carry arms outside the home for self-defense.  Bruen recognized that states may reasonably regulate the right to bear arms using their police powers.  But they may not deny that right altogether to law-abiding Americans.  On this, Bruen followed the great weight of early American court precedent. 

In response to Bruen, some states have tried to engineer de facto bans on public carry.  These states have employed many mechanisms, such as requiring permits with high application fees, forcing permit applicants to disclose all their social media accounts, imposing time-consuming and expensive training requirements, and declaring as many places as possible to be “sensitive places” or “gun-free” zones.  But the most successful of the resistance measures has been to prohibit permit holders from possessing firearms on all private property unless the person in control of the property has granted express permission to enter with a weapon.  New York passed such a law in July, and New Jersey’s legislature passed a statute containing a similar provision this month.  California has also considered adopting it, and Maryland might consider it when Democrats take full control of state government in January.

By encouraging legislatures to presumptively ban firearms on all private property, prominent scholars, including Jacob Charles and Ian Ayres and Frederick Vars, claim to have found a constitutional loophole to nullify the practical effect of Bruen.  Everyone agrees that private property holders have the right to control their property.  If they want to allow guns, they may.  If they want to ban them, they may do that, too.  But why, these scholars ask, should the default rule only be that private property owners must allow guns unless they take affirmative steps to ban them?  In their view, states should have the power to flip the default rule so that guns are banned unless property owners say otherwise.

Flipping the default rule creates a de facto ban on public carry because most private property owners do not post signs either allowing or restricting firearms.  A person who cannot carry a firearm on private property cannot go about most life activities while possessing a firearm.  A gun permit holder cannot get groceries, go to a store, get a cup of coffee, use the restroom, or stop for gas while carrying a loaded firearm for self-defense.  Ironically (as I explained here), New York’s current gun carry regulations are far more restrictive than before Bruen was decided.

Although a default no-carry rule results in a drastic near-complete ban on public carry, it is not so easy to explain why this is unconstitutional.  There is no constitutional right to bear arms on private property.  The Second Amendment grants a right against the government, not a right against private individuals.  With limited exceptions, people do not have to permit guns on their property if they do not want them there.  Moreover, the Second Amendment appears to have nothing to say about which default rule a state has.  The selection of a default rule seems to be committed to a state’s police power. 

The counterarguments provided to date are unpersuasive.  In Antonyuk v. Hochul, Judge Suddaby temporarily restrained New York’s private property rules.  He argued that New York “is now making a decision for private property owners” by presumptively banning guns on private property.  But this seems wrong for two reasons.  First, New York is not deciding for private property owners.  As Jacob Charles correctly points out, private property owners may still allow guns on their property by posting a sign.  Second, one could make the same claim about the traditional default rule:  are those states deciding that guns may be carried on private property?  Obviously not:  private property owners in those states can ban guns, also by posting a sign.

Another argument that some have raised is that there is no historical tradition of presumptively banning guns on private property.  This argument, too, is unpersuasive.  Bruen does not freeze a state’s regulatory power to only those laws that have historically existed.  Although I cannot explain my reasons here, those who read Bruen to do that are, in my view, seriously misreading the decision.  Worse, even if Bruen said this, this argument is an appeal to Bruen’s authority.  It does not explain, as a matter of first principles, why New York’s law is unconstitutional.  Finally, while there may not be many examples of a presumptive ban on carrying firearms on private property, the historical record is not one-sided.  Alabama banned carrying pistols on another person’s property in the early 1900s, which its state supreme court upheld.  Some states (including pro-gun states like Louisiana and South Carolina) have presumptively banned carrying handguns inside another person’s home.  Granted, homes are not property generally open to the public.  But New York’s law applies both to homes and to businesses, so it is not obviously unconstitutional in all its applications. 

For my part, I am genuinely unsure whether a state has the power to change the default rule on all private property.  But conceding for argument’s sake that a state does have this power, I offer a different reason why New York’s law (and the law New Jersey is poised to enact) is unconstitutional.

Both states have so gerrymandered their private property law that their new law is nothing more than a pretext to deprive people of their right of public carry.  New York and New Jersey claim that they are switching the default rule so that carrying firearms on private property is banned, unless allowed by the property owner.  But this is not true.  A law switching the default rule—that actually changed the default rule—would prohibit the carrying of firearms by everyone, unless the person (1) had the express permission of the property owner or (2) was justified in committing what otherwise would be a trespass.

New York’s law does not come close.  New York exempts retired law enforcement officers from its private property ban.  These private citizens have no law enforcement powers and act with no governmental authority.  If the presumption is that carrying firearms is prohibited unless allowed, what gives retired law enforcement officers the power to violate private property rights?  Shouldn’t the default rule also apply to them?

A true switch of the default rule would also apply to active law enforcement officers.  Law enforcement officers, whether on or off duty, have no authority to violate private property rights unless they have a warrant or they are justified in committing a trespass (e.g., apprehending a fleeing felon).  For example, an on-duty officer getting a coffee at a local convenience store is a trespasser if he brings his weapons onto store property, against the owner’s wishes.  What is true of on-duty law enforcement officers is also true, a fortiori, of those who are off-duty and acting privately.  Indeed, many locations, such as stadiums and amusement parks, prohibit the possession of weapons by law enforcement officers who are not engaged in their official duties.  A law that truly changed the presumption would mean that on-duty law enforcement officers, no less than private citizens, would need express permission to bring their guns onto private property.

New Jersey’s law, meanwhile, is larded up with other exceptions.  In addition to active and retired police officers, New Jersey exempts from its default private property ban:  federal, county, and municipal prosecutors; the Attorney General, assistant attorney general, and deputy attorney general; judges of all kinds, including judges of the tax court, workers’ compensation judges, and administrative law judges; and hunters and target shooters.  So retired police, prosecutors, and tax court judges can enter grocery stores and shopping malls with concealed weapons (unless otherwise posted), while public defenders, stalking victims, and individuals with death threats would face felony charges for violating their permit restrictions.

If New York’s and New Jersey’s purported interest in presumptively banning firearms on all private property is to respect the property owner’s wishes, then these laws are grossly underinclusive.  Neither state’s law accomplishes the ends that they offer in defense. 

Although underinclusiveness does not necessarily entail unconstitutionality, it is a constitutional problem here.  Underinclusive laws can run in two directions.  Sometimes, “a legislature may deal with one part of a problem without addressing all of it.”  Erznoznik v. Jacksonville (citing Williamson v. Lee Optical Co.).  The Supreme Court has upheld laws that are underinclusive in this way.  Other times, however, underinclusiveness is a sign that the law is a pretext for accomplishing impermissible ends.  For example, in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, a city in Florida passed an ordinance that nominally regulated animal killings; but the ordinance was gerrymandered to prohibit only a particular religious practice involving animal sacrifice while allowing virtually every other type of animal killing.  The Supreme Court struck down that underinclusive law as a violation of the First Amendment’s Free Exercise Clause. 

New York’s and New Jersey’s new private-property default rule is similarly gerrymandered and pretextual.  On its face, these laws do not switch the property default rule for gun carrying by politically favored groups (e.g., retired and off-duty police).  This shows that they are not actually making a generally applicable default rule that a person may not bring a gun onto another person’s property without express consent.  Instead, these laws target gun carry by one group only:  civilians without prior law enforcement experience.  And what is clear from the face of the statute is confirmed by public statements of government officials, who openly admit that the law is part of a regulatory regime designed to prohibit most private citizens from carrying their weapons virtually anywhere.  When asked where a gun permit holder could carry his firearm under the new law, Gov. Kathy Hochul (D-NY) forthrightly answered “probably some streets.” 

Because these laws are clearly a pretext, they are not a valid regulation of the right to bear arms.  If a state wants to change its default rule to prohibit firearms on private property, it can do so.  But it must actually change the default rule.  Otherwise, a federal court should recognize New York’s and New Jersey’s law for what it is:  a shadow ban against most private citizens carrying firearms.  These states are overtly defying Bruen, and their laws should meet the same fate as Prince Edward County’s segregated “private” school system.

Bruen, Private Property & the Second Amendment

In the decade and a half since Heller, there has been a considerable amount of scholarship and litigation about the spaces where the Second Amendment extends. Bruen settled some of those questions by granting a right to publicly carry with no showing of need. And it suggested there could be permissible restrictions in certain sensitive locations. But there have also been questions about the status of gun rights on private property. A large number of states currently have laws mandating that at least some private property owners allow guns to be stored in cars parked on their property, whatever the owner’s preference or wishes (known as parking lot laws). And some states, like Texas, provide by statute that guns are by default allowed on private property with, as the state explains, “an option for private property owners to post a sign that prohibits the carry of firearms (handguns and long guns) on the property.” Those signage requirements can be onerous, and the state notes that, “It’s possible that a private property owner would need to post multiple signs in order to ban both unlicensed carry and licensed carry.” But to be sure they can exercise their right to exclude, “Property owners should consult an attorney for advice on the proper signage for their situation.”

Two years ago, in Cedar Point Nursey, Chief Justice Roberts extolled the right to exclude as fundamental:

The right to exclude is one of the most treasured rights of property ownership. According to Blackstone, the very idea of property entails that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. In less exuberant terms, we have stated that the right to exclude is universally held to be a fundamental element of the property right, and is one of the most essential sticks in the bundle of rights that are commonly characterized as property. (Citations and quotation marks omitted.)

That decision struck down a California law requiring temporary access to private property, and some commentators think the precedent it set threatens some versions of parking lot laws as well.

But even beyond parking lot laws, the permissive gun default has remained in many places—a default that presumptively allows guns on private property unless an owner expressly objects (and sometimes, as in Texas, objects in the specific way the statute provdes they must). In their 2020 book Weapon of Choice, Ian Ayres and Fred Vars advocated for flipping the default as a mechanism to empower private property owners to exercise choice and protect their property interests. This option was generally seen as constitutionally unproblematic because all it does is restrict guns from a place where there is no Second Amendment right to carry them (private property) and then give property owners the choice to “opt in” to being a gun-friendly property, as opposed to requiring them to “opt out” to become a gun-free zone.

In spite of that general understanding, two federal district court decisions in New York have recently held that New York’s post-Bruen legislation flipping that default is unconstitutional. The first is the omnibus ruling from Judge Suddaby in Antonyuk v. Hochul on November 7th. The latest is a decision by Judge Sinatra in Christian v. Negrelli on November 22nd. The Christian ruling is narrower than Suddaby’s ruling in Antonyuk, in two respects. First, the decision only covers the private-property-default provision of New York’s law and, second, the decision only applies to private property held open to the public, though the court said its rationale extends to even private property not open to the public, but that it was constrained by the relief the plaintiff asked for in fashioning the scope of the injunction.

Both decisions leave something to be desired in their reasoning. I’ll focus on Christian in this post. The court skipped over the “plain text” threshold analysis that Bruen requires before the government bears the burden of showing a historical tradition. Presumably the court thought it clear that “bear” covered the case. But, if so, this is another in a long line of problematic cases that highly generalize from the regulated conduct without explaining why that’s the right level of inquiry—for example, Christian doesn’t explain why the challenged conduct is “bearing arms for self-defense” instead of “bearing arms for self-defense on private property.” It’s not clear the latter is clearly within the “plain text.” In any event, the court did say that Bruen’s reference to a right to carry a gun “in public” was “not a limitation.” Bruen simply extended Heller from the home to the public, but “[t]he Court did not indicate that the right ceased at the property line of others.” I was particularly stunned by that last line. Of course my right to engage in conduct (whether constitutionally protected or not) doesn’t extend past another person’s property line without their consent. My first year Torts students grasp this intuitively before I ever tell them a word about the intentional tort of trespass to land.

Skipping past the step one “plain text” inquiry, the court first brushed aside concerns about its ability to decipher the historical record. It quoted Bruen’s assurance that the parties have to cite the right evidence and then added that “[t]he historical record itself, and not expert arguments or opinions, informs the analysis.” It then dismissed several of the laws that New York and its amici put forward to show a tradition of regulating guns in private spaces. Those weren’t sufficient in number (echoing other courts, the Christian court said 7 contemporary laws weren’t enough in Bruen, so fewer are insufficient here) and there wasn’t enough evidence that they were enduring laws or enforced frequently.

Finally addressing the elephant in the room, the court observed that New York pointed out that private property owners have always been able to exclude guns. Yes, said the court, “[b]ut that right has always been one belonging to the private property owner—not to the State. It is the property owner who must exercise that right—not the State.” Yet it seems clear to me that setting a default rule by statute is not exercising the right to exclude; after all, New York freely allows these property owners to opt-in to be a gun-friendly zone. The right to exclude (plus the right to include) still belongs to the property owner. Nonetheless the court concluded that the default rule set in the past can’t be changed: “The Nation’s historical tradition is that individuals may carry arms on private property unless the property owner chooses otherwise.” And thus (by definition) there is no historical tradition for New York’s inversion of the default rule.

In the course of its opinion, the court made what appear to me to be several arguments that are in significant tension, if not outright contradictory. On the one hand, the court emphasized that the Second Amendment right is important even in private spaces. “The right to self-defense is no less important and no less recognized on private property.” It drew on Justice Alito’s Bruen concurrence, which painted a picture of an increasingly dangerous world with threats around every corner. New York’s default switch means that “law-abiding citizens are forced to give up their rights to armed self-defense outside their homes, being left to the mercy of opportunistic, lawless individuals who might prey on them and have no concern about the private property exclusion.” On the other hand, the court underscored property owners’ (constitutional) right to exclude guns. “Nothing in this decision purports to impact the traditional property right to exclude others, so long as the property owner (not the State) is the one actually exercising that right.” Thus, the court in one breath says guns are all but necessary to fend off “lawless individuals” on private property, and in the next says that of course owners can strip carriers of that protection if they want. That seems incongruous at the very least.

In the end, either the Second Amendment right extends onto private property or it doesn’t. If it does, how can the law allow private property owners to exclude guns? How can it ratify private gun-excluding decisions by using state power to enforce, e.g., trespass laws (see Shelley v. Kraemer)? If it doesn’t, how is there a Second Amendment claim at all? I’ll end with a quotation from conservative Judge Gerald Tjoflat in a pre-Bruen 11th Circuit case dealing with a challenge seeking to bring guns onto private property over the owner’s objection:

Thus, property law, tort law, and criminal law provide the canvas on which our Founding Fathers drafted the Second Amendment. A clear grasp of this background illustrates that the pre-existing right codified in the Second Amendment does not include protection for a right to carry a firearm in a place of worship against the owner’s wishes. Quite simply, there is no constitutional infirmity when a private property owner exercises his, her, or its—in the case of a place of worship—right to control who may enter, and whether that invited guest can be armed and the State vindicates that right. (Emphasis added.)

If the state can “vindicate[]” the right of property owners to exclude after the fact by arresting and prosecuting trespassers (i.e., those who carry over objection), why can’t it vindicate that interest ex ante by establishing a default rule that serves that interest and still allows property owners who desire guns on their property to opt-in?

Guns on Campus Post-Bruen

Last Monday, many of us awoke to the terrible news about a shooting at the University of Virginia on Sunday night that left three students dead and two others injured. Another public college not far away, Virginia Tech, was the site of a horrific mass shooting in 2007 that killed 32 people and injured 17 others—and spurred a campus carry advocacy movement. As I’ve written about previously, supporters of guns on campus organized in response to the Va. Tech shooting and sought legislation that would require public colleges and universities to allow carrying firearms on campus. They were successful in a number of states through legislation (e.g., Texas in 2015) and in some through litigation (e.g., Colorado in 2012, though advocates were unsuccessful in Montana courts). According to the National Conference of State Legislatures, as of 2019, 10 states allowed gun carrying on campus.

Another state may soon be joining that list, at least if the plaintiff prevails. In Wade v. University of Michigan, the challenger argues that the University’s firearm ban violates his Second Amendment rights. An appellate court previously upheld the regulation, and the case went up to the Michigan Supreme Court. In an order issued last week, the high court vacated the appellate court ruling and remanded the case for reconsideration in light of Bruen.

Justice David Viviano wrote separately, concurring in that remand order “to offer a few thoughts about how [Bruen’s new test] might apply here.” Justice Viviano first noted that the appellate court’s prior ruling had upheld the regulation at least in part on the grounds that universities were considered “schools” and that Heller had said bans in schools were okay. That, he thought, wasn’t sufficient. Heller didn’t clearly bless all bans in all places that could be considered schools. For Justice Viviano, Bruen’s new test meant that there were “at least two historical investigations needed to determine whether the University of Michigan’s firearm regulation is constitutional.”

First, the lower court would have to search for analogous regulations in the historical record. In passing, he stated that his “initial review” revealed some regulations but that “none seems to have been a campuswide ban generally prohibiting open or concealed carry.” Curiously, the laws he cited from this initial review did not include the many university regulations that were complete bans, like those at the University of North Carolina (1799) and the University of Virginia (1824). UVA’s regulation, approved at a board meeting attended by Thomas Jefferson and James Madison, was comprehensive: “No student shall, within the precincts of the University, . . keep or use weapons or arms of any kind.” UNC’s even older regulation was similar: “No student shall keep . . . fire-arms; nor shall he use fire-arms without permission from some one of the Faculty.” (The latter strikes me as not all that dissimilar to the University of Michigan’s challenged regulation that bars guns on campus unless “the University’s Director of Public Safety waives the prohibition for an individual ‘based on extraordinary circumstances.’”).

Second, Justice Viviano thought an additional historical inquiry was required. Even assuming there were analogous (or even identical) bans on guns on college and university campuses in the founding era, maybe that’s not enough. Courts should ask, he said, “are large modern campuses like the University of Michigan’s so dispersed and multifaceted that a total campus ban would now cover areas that historically would not have had any restrictions?  In other words, are historical campuses the best analogy for the modern campus?” He pointed to the ways that universities have changed over time and how many now have, like the University of Michigan, “areas on campus, such as roadways, open areas, shopping districts, or restaurants, [that] might not fit the ‘sensitive place’ model suggested by Heller.”

There are a few noteworthy aspects of this concurrence. First, the surprising absence of readily available examples in Justice Viviano’s opinion (from UNC and UVA) raises yet more concerns about what judges are doing in these cases. Despite not uncovering these accessible sources, his opinion does cite to pro-gun scholarship co-authored by a lawyer who has served as counsel of record in high-profile litigation to one of the most litigious and aggressive advocacy gun-rights groups in the country, the Firearms Policy Coalition.  

Second, his suggestion that “historical campuses” may not be “the best analogy for the modern campus” makes the search for proper analogies even more fraught. Already, courts are spinning trying to figure out what an analogous regulation is that doesn’t have to be a “historical twin” or “dead ringer.” Now Justice Viviano says that maybe even restrictions in the same type of location wouldn’t be enough. Compare this stringent test to the way Bruen and other lower courts have asked if the historical law and contemporary law were addressing “the same alleged societal problem.” Recall that for Bruen, if a modern law seeks to combat a similar social problem as one that existed in the founding era, it is evidence of unconstitutionality if the Founders addressed the problem differently.

According to Bruen—and Heller before it—the laws at issue in those cases were addressing gun violence in primarily urban areas. Those were regulations “the Founders themselves could have adopted to confront that problem,” and the absence of similar regulations from that bygone era suggested the modern laws were unconstitutional. In other words, to the Bruen majority, the social problem of gun violence in urban areas was the same for the Founders in 1791 and the D.C. City Council in 1975. The legislators chose to confront the problem in different ways, and we have to respect the Founders’ way. In that context, then, the inquiry is made at an extremely high level of generality—guns hurting people in cities—but in the historical analogy context, Justice Viviano argues for slicing it very narrowly, requiring a much closer resemblance between the laws than Bruen says are required for assessing the social problems meant to be addressed. The result is an even more onerous burden on the government to sustain contemporary gun laws.

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

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.

Bruen’s Practical Impact: What We Know and Where We are Going

In recent weeks, the Center has devoted a great deal of space to covering the legal implications of the Bruen decision, including how lower courts in New York, Virginia, Texas, and other jurisdictions have started to apply its history-focused framework.  But what about Bruen’s practical implications?  Has the decision impacted the number of people seeking a permit to carry a gun in public?  What data already exist about how Bruen has changed life for gunowners, those who want to acquire a gun, and those impacted by gun violence?

After Bruen was decided, the states with may-issue permitting laws moved quickly to either amend their laws to remove the proper-cause requirement (as in the case of New York), or issue legal opinion letters stating that such requirements were no longer in force and should not be applied by licensing officers (as in New Jersey, California, and other states).  The licensing rules in these states no longer mandate that individuals make a showing of proper or exceptional cause to obtain a concealed carry permit. 

The predictable impact of these legal changes was a rapid rise in permit applications in former may-issue states, as The Reload summarized here back in July.  For example, NYPD statistics released in late September show that the period from June 23-August 31 “account[ed] for nearly 50% of all new handgun permit applications” in New York City in 2022.  In other words, applications in the two months after Bruen equaled the number filed in the first 6-7 months of the year.  San Francisco similarly recorded a “dramatic spike” in concealed carry permit applications post-Bruen, receiving 45 applications in the weeks following Bruen when the city typically sees only 2 applications per year.  Hawaii also observed a notable increase in applications, and New Jersey officials projected over 200,000 concealed carry permit applications in the state after Bruen was issued.  New permit applications in Maryland from June 23 to July 11 increased 900% from the same period in 2021. 

It also stands to reason that these states are issuing more permits under shall-issue laws, although comprehensive data on permit application success rates is not yet available.  Those who apply for a license, even under a shall-issue licensing process, must still make required submissions, undergo training, and pay an application fee (in many states) before receiving a permit.  It’s important to remember that, even before Bruen, there was a distinct rise in the number of concealed-carry permit holders—by one count, the number of permit holders increased by 48% from 2016 to 2020, driven in part by certain states relaxing their permit application requirements pre-Bruen.  And this isn’t indicative of the full increase in the number of individuals who carry concealed weapons in public either, which has certainly jumped even more dramatically as more states move to permitless carry.

Concrete statistics about gun sales post-Bruen aren’t yet available, although the most recent data for 2020 showed a large jump in gun sales overall (a 40% increase from 2019, with purchases continuing to climb in early 2021).  It’s not immediately clear that Bruen will necessarily lead to an increase in gun sales, as opposed to a jump in permit applications.  Some of the largest may-issue states (New York, New Jersey, and Massachusetts) require a permit to purchase a firearm—so the new applications there could be directly tied to gun purchases.  But many other states do not have permit-to-purchase laws, meaning that the spike in applications is likely driven by those who already own guns but were previously unable to carry those guns in public and would now like to do so.  Historically, restrictive changes to the law (like the 1994 Assault Weapons Ban) or even mere speculation that such changes are imminent, have triggered a jump in gun sales.  It may be that legal changes more permissive of gun possession and public carry, by contrast, either depress sales or have no discernible impact.  For example, gun sales declined markedly after the 2016 election of Donald Trump because prospective gun purchasers were no longer as motivated by the fear of stricter gun regulation.

Perhaps the most important empirical question in the aftermath of Bruen will be whether the decision leads to a statistically significant increase in gun violence in former may-issue states.  There’s no indication that such data would be directly relevant within the Supreme Court’s history-focused test or prompt a reevaluation of the decision, but gauging Bruen’s practical impact is still important.  The Court may, in the future, weigh challenges to other licensing rules, and preventing violent crime is (in many instances) a historically-grounded legislative rationale that can be considered in a limited way within the Bruen framework.  There are also, of course, pressing non-legal reasons to determine what impact, if any, Bruen has on gun violence.  For example, such research may lead to greater understanding of the nature and contours of gun violence as a societal problem, whatever the scope of governmental authority to address it through law.    

It could be that changing from may-issue to shall-issue licenses increases salient measures of physical violence.  For example, studies cited in the amicus briefs and Justice Breyer’s dissent in Bruen suggest an association between shall-issue licensing and higher rates of homicide and violent crime (and similar decreases for may-issue licensing), although there is academic debate about these findings and other studies find no impact.  A downstream effect of such an increase, if it exists, would be that more individuals are also exposed to gun violence, even if they are not personally a victim of gun violence.  For example, a recent study found that 30% of surveyed Generation-Z members had experienced gun violence personally and an additional 24% had a friend or family member who had.

The other piece of the puzzle here is whether Bruen leads to an increase in successful defensive firearm uses of the kind identified in Justice Alito’s concurrence.  Data regarding defensive gun uses is notoriously hard to come by, and scholarly estimates vary by a factor of ten or more.  A recent study using data from the National Crime Victimization Survey found that 0.9% of contact crimes involved a defensive gun use.  That percentage suggests there are approximately 100,000 annual defensive gun uses.  According to a different source, the 2021 National Firearms Survey, there are approximately 1.7 million defensive gun uses per year and approximately 1/3 of gun owners have (in their lifetime) used a gun to defend themselves or their property.[1]  The National Firearms Survey relies on answers provided by gunowners to survey questions.  There are numerous obstacles to accurately estimating the number of defensive gun uses, including the lack of a standard definition of a “defensive gun use,” the lack of large, reliable data sets, and the documented disconnect between the number of gunowners who report discharging a gun in self-defense and the number of individuals treated for gunshot wounds in the United States.

Even if data suggest an increase in gun violence on one or more metrics stemming from Bruen’s practical changes to state licensing frameworks, some are likely to point to increases in defensive uses of firearms (if indicated by the data) to argue that the decision’s benefits outweighed its costs.

[1] The survey itself provides more information about how the 1.7 million number, which required ancillary calculations and estimates from the data actually collected, was reached. 

Antonyuk Round 2: Federal Judge Restrains Enforcement of Much of New York’s Post-Bruen Gun Law

On October 6, Judge Glenn T. Suddaby of the Northern District of New York issued a decision partially granting a request for a temporary restraining order of New York’s revised gun law (the Concealed Carry Improvement Act, or CCIA).  The CCIA was passed on July 1, about a week after Bruen, and took effect on September 1.  Judge Suddaby had previously dismissed a challenge to the law by the same named plaintiff for lack of standing, in an order that also contained 22 pages of dicta suggesting that the judge believed much of the new law to be unconstitutional. I covered that opinion here.  This time around, Judge Suddaby concluded that the plaintiffs did have standing, relying primarily on the fact that certain plaintiffs submitted sworn declarations stating that they intended to violate portions of New York’s law, which is now in effect.  Thus, there was no procedural obstacle, and the opinion proceeded to evaluate the plaintiffs’ likelihood of success on their constitutional challenges to various provisions of the law.

Judge Suddaby’s opinion includes a lengthy footnote justifying his decision to accept assignment of the new case as a “related case” to the first one that was dismissed for lack of standing, under the Northern District’s court rules.  According to the judge, because the new case involves nearly-identical legal issues and substantially overlapping parties, judicial efficiency dictated that he accept it as related rather than allow it to be assigned to a different judge. 

At the outset, Judge Suddaby made two observations about the Bruen test.  He articulated a standard for judging historical laws under which “a historical statute cannot earn the title ‘analogue’ if it is clearly more distinguishable than it is similar to the thing to which it is compared.”  Second, he stated that he would “generally . . . look[] to instances where there have been three or more . . . historical analogues (specifically, three or more historical analogues from states, given that such analogues from territories deserve less weight under NYSRPA . . .).”  In other words, Judge Suddaby found that three historical laws is the relevant cutoff—anything less than three is an “aberration” or a “mere trend,” but adoption by a majority of states at the time is not required.

The opinion then considered the state’s “good moral character” requirement, which was included in the law pre-Bruen.  The CCIA added a definition of “good moral character” and also required that concealed-carry permit applicants provide certain information to the licensing officer to prove good moral character.  Judge Suddaby found that the definition improperly omits a self-defense exception and places the burden of proof on the applicant to rebut a presumption of dangerousness or bad moral character, rather than requiring the state to rebut a presumption that the applicant has good moral character, by preponderance of the evidence.  The opinion stated that this formulation both runs afoul of the holding in Bruen because it results in a subjective standard, and is not historically supported by loyalty oaths because those laws generally assumed that individuals were entitled to possess a gun unless the state first made a finding of dangerousness.  Judge Suddaby drafted a revised version of the moral character requirement and directed state licensing officials to construe the statute as he re-wrote it. 

The judge upheld the requirement to submit character references and other information required by the licensing officer, and to complete 18 hours of gun training.  However, Judge Suddaby found that mandating applicants to attend an in-person interview, submit a list of family and cohabitants, and provide social media account information were requirements not analogous to any historical hurdle and therefore unconstitutional.  As to the social media requirement, Judge Suddaby analogized to Founding-era pamphlets published pseudonymously and observed that an analogous law requiring disclosure of such material “would be surprising given that the Constitution—and sometimes the Bill of Rights—was vigorously debated in public by individuals who both used pseudonyms and carried guns.” 

Turning to sensitive places, Judge Suddaby first noted that he reads Bruen to “indicate[] a skepticism of . . . expan[ding sensitive places beyond government buildings and schools] based on the historical record.”  Second, he clarified that the sensitive places list does not “rise or fall in its entirety,” but rather is evaluated location-by-location.  However, New York must put forward evidence of a historical tradition of regulation for each location.  The opinion upheld New York’s prohibition of guns in government buildings, polling places, and schools, locations specifically endorsed by the Supreme Court.  The judge also found that the state could prohibit guns on sidewalks and in public areas used for government events, in places of worship if an exception is made “for those persons who have been tasked with the duty to keep the peace,” and at public assemblies where individuals gather to protest or express constitutional rights.  In each instance, the opinion cited historical statutes restricting guns in these or similar locations, or referred to the Supreme Court’s statements about the sensitive places doctrine. 

In all other locations, the judge said, the government cannot prohibit guns—including summer camps, public transportation, entertainment venues, locations where alcohol is served, Times Square, libraries, parks, zoos, mental health centers, homeless shelters, domestic violence centers, childcare providers, and others.  For example, Judge Suddaby wrote that historical laws banning guns in “fairs and markets” were not widespread and are not analogous to a blanket prohibition in Times Square because they only barred the “offensive” carrying of weapons.

Finally, the opinion evaluated the portion of the CCIA that makes privately-owned property a “restricted location” unless the owner expressly allows guns to be carried.  While Judge Suddaby believes that the state is “making a decision for private property owners that they are perfectly able to make for themselves,” he also wrote that “this policy dispute is irrelevant, because it does not regard the Supreme Court’s ‘historical tradition’ standard.”  Because historical laws only restricted the carrying of guns on “inclosed” farmland for anti-poaching reasons, Judge Suddaby found, the state today is only allowed to switch the default rule for fenced-in farmland—not for all privately-owned businesses and buildings.  Judge Suddaby stayed his order for three business days “to allow [New York] to seek emergency relief in the Second Circuit.” 

The opinion uses an extremely narrow frame to evaluate potential analogues to locations on New York’s sensitive places list.  Do historical laws banning guns in schools support a prohibition on guns in summer camps?  No, the opinion says, without any analysis.  May guns be banned on the subway and other modes of public transportation?  No, because historical laws banning concealed carry often made explicit exceptions for travelers, as travel was considered dangerous.  Are historical laws prohibiting guns at “public assemblies” sufficient to support a modern ban on guns in stadiums, performance venues, and concert halls?  No, the judge says, because in his view “the term ‘public assembly’ appears somewhat like the term ‘popular assembly,’” which “appears to involve a focus on one’s constitutional rights.”  Are historical laws banning guns on enclosed farms or plantations analogous to a modern law enacting a presumption that guns are prohibited in privately-owned businesses?  No, because the historical laws did not apply to buildings, only farmland.

Take Judge Suddaby’s conclusion that “the Court cannot find . . . historical statutes [banning guns in schools] analogous to a prohibition on ‘summer camps.’”  Why is that the case?  Of course schools are not the same as summer camps, but they seem analogous in almost any relevant way:  the group of people located there is the same (students, or school-aged children), the general reason for the venue’s existence is quite similar (education and social activity), and the reasons why the government might prohibit guns in that location are likely identical (children are an especially vulnerable population, and the presence of guns increases the risk of tragic misuse by children). 

This example is indicative of Judge Suddaby’s blinkered examination of the historical record—there is often no detailed analysis of whether historical and modern laws were comparably justified.  Rather, the inquiry turns on either the burden question or the judge’s own subjective impression of the two sets of laws.  If the burden (not being able to bring a gun into a school) is identical, then the modern law is supported; but if the burden is even slightly different or the judge finds that the laws might have been enacted for different purposes, then the state is out of luck.  Laws prohibiting guns in schools were almost certainly justified in comparable ways to a modern ban on guns in summer camps, and historical laws banning guns in places of public assembly were likely justified on similar grounds as modern statutes banning guns in stadiums, concert halls, and bars.  One would never know that from the opinion, however, because it contains only laundry-list citations to historical statutes, accompanied occasionally by judicial speculation about why those laws were enacted.  For example, the opinion concludes that, “on their face, the purpose of those statutes [restricting guns on enclosed lands] appears to be merely to stop poaching.”  But, surely, it’s often not possible to glean the purpose of a statute from its face, and the opinion conducts no analysis of the legislative history or any secondary-source records that might show what the animating purpose was behind any of these laws.

In certain instances, the opinion also seems to give greater weight to exceptions in historical statutes than to the historical prohibitions themselves.  History tells us that guns can be banned in church only with certain exceptions, and that prohibitions on concealed carry must always contain an exemption for travelers.  This approach takes historical imitation too far.  It should not be that modern-day legislators must mimic historical statutes verbatim; rather, as the majority opinion in Bruen explains, “even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.”  Bruen itself is clear on this point, and it’s difficult to view the imposition of historical exceptions as anything other than a requirement of complete overlap.

One final problem with Bruen’s test that comes through all too clearly here is its treatment of territorial laws.  Judge Suddaby is certainly correct in his application of Bruen:  the majority opinion demands an approach that gives territorial laws little to no weight.  But what possible justification is there for discarding a law passed in a U.S. territory 12 years after the ratification of the 14th Amendment (as the opinion does to an Oklahoma law banning guns in any place where alcohol was sold), while placing great importance on a law passed in Virginia in 1632 that required masters of the family to bring guns to church?  The Virginia law was passed more than 150 years before Virginia became a state.  In looking at history, Judge Suddaby, in his own words:

construes NYSRPA as treating relevance as controlled by a sort of dimmer switch whose slide lever darkens a room at the top and bottom of the control panel but fills the room with light as it approaches the middle (representing our insight into the public understanding of the amendments that were ratified by three-fourths of the state legislatures in 1791 and 1868).

Fair enough, perhaps, but one would imagine that the lights are switched off entirely back in 1632.  And, as I’ve previously written, Bruen’s treatment of territorial gun laws is odd and ignores the fact that the federal Second Amendment applied directly in the territories.  Judges applying Bruen will almost certainly continue to use the decision to illuminate only those portions of the historical record that produce their desired outcome.

Litigation Update: Antonyuk v. Bruen

We previously summarized the preliminary injunction briefing in Antonyuk v. Bruen, a challenge to New York’s amended gun laws.  Following a hearing on August 23, Chief Judge Glenn T. Suddaby of the Northern District of New York denied the preliminary injunction motion and dismissed the case for lack of standing in an August 31 decision

After reviewing the allegations, briefing, and oral argument, the court first found that Kevin Bruen (superintendent of the New York State police) was a proper defendant only as to New York’s 18-hour training requirement for new or renewed licenses, the sensitive-locations ban, and the restricted-locations provision.  The court then determined that the individual plaintiff, Ivan Antonyuk, failed to plausibly allege both the intent to engage in a course of action outlawed by New York’s law, and a credible threat of prosecution under that law.  Therefore, the court held that Antonyuk lacked Article III standing to challenge the law.  In a separate section, the court found that the entity plaintiffs—Gun Owners of America, Inc., Gun Owners Foundation, and Gun Owners of America New York, Inc.—failed to establish organizational or associational standing under various theories.

Despite dismissing the case for lack of standing, Chief Judge Suddaby included a 22-page evaluation of the plaintiffs’ likelihood of success on the merits—noting that this section was dictum but was

include[d] . . . out of an abundance of caution, because at least a conceivable chance exists that Plaintiffs may take an immediate appeal of this Decision and order to the Second Circuit and be found to, in fact, possess standing, in which case what follows would constitute the Court’s holding.

In this section, the court turned first to the “good moral character” requirement in New York’s law.  New York added the following definition of “good moral character,” previously a requirement that was undefined:  “having the essential character, temperament and judgement necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others.” 

The court excoriated New York’s legislative drafting, stating that the law “reads less like a measured response [to Bruen] than a wish list of exercise-inhibiting restrictions glued together by a severability clause in case some of the more fanciful restrictions were struck down.”  The definition of “good moral character” was unconstitutional, the court said, because (read literally) it would prevent those who might endanger others through legitimate defensive use of firearms from obtaining a license.  The court canvassed other state good-character or suitability requirements and found that “[n]one require a condition that is literally impossible to achieve: the use of a firearm in a manner that does not endanger oneself or others.”  Although New York indicated at oral argument that the word “danger” did not mean “a reactive danger to someone else who is a danger to you,” the express language of the provision was unconstitutional in the court’s view.   Perhaps more consequentially, the court also agreed with the plaintiffs’ argument that this part of the law improperly grants discretion to licensing officers to make decisions “based on vague, subjective criteria,” in violation of Bruen.

As to the substantive requirements and submissions required of applicants, the court would have upheld the in-person interview, requirement to submit four character references, and training requirements.  However, the court would have struck down the mandate to submit a list of social media accounts.  The court concluded that, among other problems, this requirement grants too much discretion to licensing officers and might compel applicants “to disclose self-incriminating statements on a social-media posting” in violation of the Fifth Amendment. 

Next up was New York’s list of sensitive places where guns are banned.  After reviewing Bruen’s discussion of sensitive places, the court found that New York’s list “includes numerous locations that are nonsensitive in nature” and that the state’s “expansion is unsupported by any historical examples that are actual analogues.”  The court found that New York had used public congregation and access to law enforcement as the only criteria for designating places as sensitive—which Bruen rejected in its discussion of whether Manhattan itself could be a sensitive place.  Further, despite the presence of certain potential historical analogues, “the vast majority of the other states . . . did not have statutes restricting firearms at those very locations.”  Rather than go through the list individually, the court suggested that New York’s entire list was suspect because the state “d[id] not cite any historical analogs for restricting firearms at all of the [] listed locations.”

Finally, the court considered New York’s approach to “restricted locations,” which flips the default in privately-owned areas to make guns prohibited unless explicitly permitted by the owner.  The court would have held that this provision improperly “usurp[s] . . . the rights of property owners to decide things for themselves” and that New York’s proposed analogues applied only to “inclosed” or fenced-in outside areas, not buildings.

While the court was clear that its evaluation of the merits was dictum, it is still notable in that it suggests most of New York’s law might be unconstitutional.  It is also likely that the plaintiffs here will appeal, and that other legal challenges will be brought where the plaintiff’s standing is less suspect.

First, the court’s evaluation of the “good moral character” requirement might be well-taken as a matter of strict linguistic interpretation.  But it’s important to remember that New York drafted the language after Bruen was decided and stated at oral argument that the language was intended to capture only affirmative endangerment.  This seems to simply be a matter of amending the statute slightly to add a reference to self-defense or to cover only unlawful endangering.  As the court notes, it’s essentially the same issue that arose in Heller—where Washington, D.C. argued that its requirement that handguns be rendered inoperable even while kept in the home should be read with an implicit exception for self-defense.

The bigger point here is about licensing discretion, and it’s difficult to parse the court’s statement that “licensing officers may not arbitrarily abridge [the Second Amendment right] based on vague, subjective criteria.”  Is arbitrary enforcement or subjective criteria the real problem?  There’s (as of yet) no evidence of arbitrary enforcement, so it seems like this opinion would find all subjective licensing criteria unconstitutional on their face.  But that can’t be right, given Bruen’s endorsement of licensing regimes that “have discretionary criteria but appear to operate like ‘shall issue’ jurisdictions,” including Connecticut’s statute that mirrors the language New York passed, only without the “endanger oneself or others” phrase.  Indeed, throwing out all subjective criteria is a thoroughly odd position to take given the fact that many states (states where the constitutionality of the licensing scheme has never been in much doubt) accord licensing officers discretion to deny a permit application in the extraordinary scenario when they have reason to believe the applicant would pose a danger to themselves or others.  See, e.g., Va. Code Ann. § 18.2-308.09(13) (disqualifying “[a]n individual who the court finds, by a preponderance of the evidence, based on specific acts by the applicant, is likely to use a weapon unlawfully or negligently to endanger others.”); Colo. Rev. Stat. § 18-12-203(2) (“Regardless of whether an applicant meets the criteria specified in subsection (1) of this section, if the sheriff has a reasonable belief that documented previous behavior by the applicant makes it likely the applicant will present a danger to self or others if the applicant receives a permit to carry a concealed handgun, the sheriff may deny the permit.”).  There’s no suggestion that permits are being denied in these states because someone might be harmed by a lawful defensive firearm use.

The Supreme Court seems to be saying that what matters is how the regime works in practice, and not necessarily that one iota of subjective discretion is unconstitutional.  No matter how closely a state ties the dangerousness determination to specific acts proven by a quantum of evidence, it’s still ultimately a subjective determination by the licensing officer as to whether those acts do or do not indicate that the applicant will be dangerous in the future.

Second, the court’s discussion of sensitive places is a bit of a head-scratcher.  The court agrees with the plaintiffs’ argument that “the Supreme Court in NYSRPA effectively barred the expansion of sensitive locations beyond schools, government buildings, legislative assembles, polling places, and courthouses.”  But if so, why would the Court explicitly mention the “use of analogies to those historical regulations of ‘sensitive places’ to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible”?  If there are, in fact, no other modern-day analogues to historical sensitive places, that passage of Bruen would be odd indeed.  It’s also not clear why the court in Antonyuk seems to believe that New York’s list must rise or fall in its entirety.  It has to be that sensitive places are evaluated individually, and that the items on New York’s list explicitly sanctioned by the Supreme Court (or any “new” places that meet Bruen’s test) should be upheld as a first step in the analysis—the alternative view would likely create massive inefficiency by requiring states to re-legislate ad nauseum until they got the list exactly right.

The court’s assessment of analogues for the sensitive-places ban appears to adopt a “majority of states” standard for determining when there is a historical tradition of regulation:  only when there were analogous laws in place in more than half of the states at the relevant time (presumably, 1791) is there a historical tradition of regulating in this manner.  It’s not clear where this standard comes from—it might be one way to read Bruen, and the Northern District of Texas decision in McGraw appeared to take a similar approach—but it is at odds with the actual historical analysis that the majority opinion in Bruen conducted.  Why spend 30 pages analyzing a handful of historical laws here and a handful there, if the standard is that a majority of the states must have had analogous regulations in place?  Presumably, if the Court intended to adopt such a standard, it could have simply observed that none of the potential analogues for New York’s licensing law were in force in anywhere close to a majority of states at the relevant time, and decided the case on that basis.  What Bruen suggests, to me at least, is a much more nuanced inquiry under which a handful of analogous laws can constitute a historical tradition. 

Finally, the court’s approach to evaluating potential analogues for New York’s private-property rule seems like a clear example of what Bruen says is not required:  the court would have discarded potential analogues on the basis that the historical prohibitions applied to farmland and not to enclosed buildings.  Not all private property consists of enclosed buildings, so it’s not clear why that fact alone should be determinative.  But perhaps more importantly, this doesn’t seem like the type of analysis Bruen contemplates.  As the Court says, “even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.”  Where is the analysis of how these historical enclosed-land laws were justified, and whether that justification is comparable to New York’s legislative rationales?  It seems to be enough, in the court’s view, to simply observe that the potential analogues are not dead ringers and then throw them out the window.  

On August 30, just one day before the Antonyuk decision, the New York State Rifle and Pistol Association, Robert Nash, and Brandon Koch (the same set of plaintiffs from June’s Supreme Court case) filed their own challenge to the new New York law in the Northern District of New York.  The court determined that the new case was not a “related case” to Antonyuk and randomly re-assigned it to District Judge Mae A. D’Agostino.

McGraw, the Age of Majority, and the Enduring Relevance of the Second Amendment’s Prefatory Clause

Jake recently covered the Northern District of Texas decision in Firearms Policy Coalition v. McGraw, which struck down Texas’ ban on the public carry of handguns by those under 21 years old.  In McGraw, the court reasons that the Second Amendment’s reference to a “well regulated militia” means that the amendment must necessarily protect the people who might have served in the militia in the Founding Era:

[L]ogic demands that if an individual was (or is) a member of the “militia,” the Second Amendment’s protections extend at least to those who constitute the militia. That is, although the Second Amendment is not limited to only those in the militia, it must protect at least the pool of individuals from whom the militia would be drawn.

And Heller held that “the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.”  The argument seems to go as follows:  if the Second Amendment protects anything, it is the right of those who would have been eligible to serve in the militia to keep and carry the modern equivalent of the types of weapons they would have used in militia service.

While Heller observed “that modern developments have limited the degree of fit between the prefatory clause and the protected right,” courts continue to focus on militia service in evaluating Second Amendment challenges—especially those dealing with restrictions on gun possession and public carry of guns by specific age groups.  In Hirschfield v. ATF, for example, the Fourth Circuit looked to militia laws to strike down federal regulations restricting the sale of handguns to 18-20-year-olds.  The court observed that “[t]hose who were obligated to serve in the militia and bring their own arms fall unambiguously within the original public meaning of ‘the people’ who had a right ‘to keep and bear Arms.’”

In the Founding Era, however, the legal age of majority was 21.  As Saul Cornell has explained, the idea that being required to serve in the militia represented an entryway to “young adulthood” at the time of the Founding is dubious at best, because an 18 to 20-year-old militia member had essentially no independent legal rights:

Consider the following hypothetical. Imagine the situation of an eighteen-year-old who would have been required by law to serve in the Massachusetts militia. The young man in question has a religious awakening and decides that he wishes to abandon his family and join one of the pacifist religious sects that flourished in the Founding Era, the Shakers or Sandemanians. Now imagine that his father, master, or other guardian forbids him to take such action. He insists on asserting his right of conscience and free exercise. His father rejects his claim, administers corporal punishment to his child, and orders him to report to muster. Although repellant, odious, and arguably criminal by today’s standards, a minor living in the Founding era would have no legal recourse to challenge the decisions made by a father or guardian regarding religious practices. The patriarchal authority of fathers or other legal guardians would have been absolute in this sphere. A minor facing this desperate situation would have been forced to follow the decisions made by his father or legal guardian. Moreover, if the father wished to enforce this decision with the administration of corporal punishment, that would also have been perfectly legal under the common law rules governing domestic relations.

The opinion in McGraw spends little time on the age-of-majority issue, finding only that the age of majority in the abstract is not probative (without reference to the particular right at issue), that other constitutional provisions protect minors, and that Texas failed to point to any analogous law based on the age of majority.  As an initial matter, the fact that certain constitutional rights extend to minors isn’t all that persuasive.  As Eugene Volokh has observed, minors certainly possess the right to freedom of speech, for example, “[b]ut they entirely lack other rights, such as the rights to marry, to exercise sexual autonomy, and to access highly sexually themed publications.”  To the final point, the Court observed that Texas’ purported inability to identify analogues “is relatively expected: The militia was composed of those that had yet to attain the age of majority.” 

What does the fact that those below the age of majority served in the militia really tell us about the historical scope of the right to keep and bear arms?  Returning to Professor Cornell’s piece, militia service by an 18-20-year-old “w[as] not undertaken by isolated individuals but . . . in a situation in which adults supervised minors.”  And the common-law age of majority was, in fact, closely tied to physical strength and military training.  Scholars have posited that the age of majority rose to 21 around the time of the signing of the Magna Carta in 1215, both because of technological developments that made weapons heavier and more cumbersome to carry and because “the added skill required in combat . . . g[a]ve rise to the need for the more thorough training of the young potential warrior.”  Going even further back, “Roman law placed free males who were technically ‘of full years and rights’ under the temporary guardianship of adults known as Curatores” until age 25, thought to “coincide with young males’ attainment of full intellectual maturity.” 

To the extent that American colonies and states adopted the English age of majority, then, it seems that the age-21 cutoff was tied directly to concerns about arms-bearing.  And it is also not surprising that, despite the age of majority, minors were required to serve in state militias (although, in certain states, only with the approval of their father and with guns paid for by the father).  Indeed, the militia was where those minors could expect to receive the training and instruction in weaponry that would enable them to effectively and safely operate heavy, notoriously-finicky colonial-era firearms.

What is strange—and almost certainly ahistorical—is the idea that there is a historical tradition of allowing minors to obtain and carry guns in public without receiving any training on how to safely use those weapons.  A driving force of the increase in the age of majority was the concern that technological developments in weaponry and warfare meant that it took longer for an individual to be trained to the necessary level of skill.  It would be odd to disregard entirely the training aspect of the Founding-era militia when interpreting the Second Amendment.  If the amendment protects those who constitute the militia, it presumably protects them in a similar way to how they would have been protected around the time of the Founding, when their right to keep and bear arms was contingent on actually serving in the militia and being trained by older adults and was entirely subject to parental whims.

Texas is a permitless carry state and, barring a successful appeal in McGraw, an 18-year-old not subject to the few disqualifying factors under state and federal law (such as a felony conviction) will be able to purchase and carry a handgun without any training on how to use the weapon.  When one considers the importance of proper training in the historical record, it seems unfathomable that a statutory scheme authorizing 18-year-olds to carry guns in this manner is consistent with the American tradition of firearms—as opposed to, say, a statutory scheme that couples enhanced training requirements for 18-20-year-olds with an extreme risk protection (or similar provision) authorizing parental involvement to remove weapons if a parent is concerned about harm to self or others.   

Federal Judge Strikes Down Texas Gun Law Governing Under-21-Year-Olds

Last week, in Firearms Policy Coalition v. McCraw, Judge Mark Pittman of the U.S. District Court for the Northern District of Texas struck down a Texas law that prohibited those under 21 from carrying handguns in public. The case illustrates many of the hallmarks that are likely to characterize post-Bruen litigation over contemporary gun laws. And it reinforces, for me at least, the problems that Bruen’s history-only test imposes on judges and policymakers alike.

After determining that the plaintiff organization and individual plaintiffs had standing, the court turned to Bruen. Like I and others have pointed out, including on this blog, Bruen doesn’t really discard the two-part framework that had been used across the federal appellate courts. Instead, it just refashions that test into a new two-part framework. Under Bruen Step One, as Judge Pittman noted, the court first must determine whether or not the challenged conduct is protected by the Second Amendment’s text. If the answer is yes, then the burden shifts to the government at Bruen Step Two to justify its regulation by sufficiently analogous historical laws.

At the first step, the court concluded that the Second Amendment covers the public carry of handguns by 18-20 year-olds and that the conduct is therefore presumptively protected. (While the plaintiffs framed the lawsuit as a facial challenge only as to the 18-20 age group, the challenged law applies to everyone under 21 and it’s not clear why the court’s reasoning would not also encompass 14-, 15-, or 16-year-olds.) The court observed that the constitutional text doesn’t contain any age limits (unlike the Constitution’s express age qualifications for office), and that other constitutional rights referring to “the people” are not restricted by age. This, to me, is a remarkably curious argument. What it seems to logically entail is that a law barring toddlers from carrying handguns in public presumptively covers conduct protected by the Second Amendment? And then the *only way* the court could uphold the toddler-carry ban would be to require the government to find historical analogues (analogues I suspect are lacking, at that level of specificity). Bruen wouldn’t allow the government to justify such a ban based on obvious safety rationales. What a strange, strange way to do constitutional law. Of course, the court did invoke Heller’s language about the right extending to those who are members of the “political community,” but similar rights of “the people” in the other amendments it cites do not apply only to those who are 18 or older.

At the second step, the court rejected Texas’s defense of the law as grounded in either (a) binding Fifth Circuit precedent, or (b) a rich historical tradition. Several pre-Bruen Fifth Circuit cases upheld age-based restrictions, including a 2013 decision that upheld the specific Texas law at issue. Another, the 2012 case NRA v. ATF, conducted an in-depth historical analysis but ultimately decided the case under step two of the pre-Bruen framework. And the analysis at step one, Judge Pittman said, wasn’t persuasive enough to follow. The court also found historical laws (canvassed in the NRA opinion) to be insufficiently analogous. Those laws arose around Reconstruction, and the court noted that Bruen left open the question of whether 1791 or 1868 is the relevant benchmark for finding historical tradition. However, the court essentially rejected laws arising around 1868. Those laws directly related to the purchase or use of firearms by those under 21. But the court found them insufficient:

The earliest law cited is from 1856. Accordingly, NRA’s “thorough and compelling” historical analysis is void of any laws from the Founding Era. On this point, the historical record before the Court establishes (at most) that between 1856 and 1892, approximately twenty jurisdictions (of the then 45 states) enacted laws that restricted the ability of those under 21 to “purchase or use firearms.” And by 1923, three more states joined with similar laws. But the record stops short and does not show any “historical analogs” from the Founding Era. 

The court stated that the tradition had to go back to the Founding to justify a modern regulation. Yet, even if it did consider those laws, the court said, they still wouldn’t be enough.

At most, Texas’s historical analogs show only that, by 1923, 22 states had laws imposing general restrictions on “the purchase or use of firearms” for those younger than 21. Based on Bruen’s guidance, however, the Court concludes these laws cannot sufficiently establish that a prohibition on law-abiding 18-to-20-year-olds carrying a handgun in public for self-defense is consistent with this Nation’s historical tradition of firearm regulation.

So almost half the states had laws regulating 18-20 year-olds less than 25 years after the Fourteenth Amendment was ratified. Not enough, said the court. It didn’t say what would have been enough or why these weren’t. The court provided no analysis for why this kind of widespread tradition wouldn’t satisfy the Bruen test, merely suggesting that these laws did not impose similar burdens because they did not prohibit public carry.

The case is problematic, not so much for its outcome (reasonable minds can differ, I think), but for its application of Bruen. I suspect this kind of bare-boned analysis and unreasoned discussion of historical tradition will be the norm—on both sides of the issue. After all, Bruen doesn’t give much else to work with.

Despite the Bruen majority’s insistence otherwise, the history-only test neither circumscribes judicial discretion nor provides clarity or predictability to the law. In many ways, Bruen magnifies discretion, offering judges the opportunity to choose from whichever historical sources they want, with little guidance or guardrails. And it certainly doesn’t make outcomes predictable or consistent. The problem with Bruen (or, at least, one big problem) is that it allows judges to make policy decisions under the guise of historical judgment. If a judge prefers stronger gun rights, then she can hold the government’s feet to the fire and reject what can at points seem like quite close historical analogues; if she is inclined in the other direction, then she can loosen that required fit (as, perhaps, was the case in the litigation over San Jose’s insurance requirement).

Some might levy a similar complaint against the pre-Bruen cases, but at least the prior framework required judges to put their cards on the table. The reason it’s pretty easy to critique the Second Circuit’s NYSRPA I decision, for example, is that the court held up the weak empirical evidence New York used to justify its law. Now, all we get is a bare conclusion that X or Y law is or is not “close enough” to the modern one. Bruen has impoverished legal analysis in Second Amendment cases and contributed to the further perception that judges deciding constitutional cases are doing so based merely on policy preferences.

Litigation Highlight: Montana Supreme Court Unanimously Upholds Permanent Injunction of Permissive Campus Carry Law

Last month, in Board of Regents v. Montana, the Montana Supreme Court unanimously held that the state’s Board of Regents has the exclusive power to regulate firearms on Montana University System (MUS) campuses. The litigation involved a challenge to Montana House Bill No. 102 (HB 102), which would have allowed the possession and carrying of firearms on state college campuses with limited exceptions. By enacting HB 102, the legislature sought to expand the right to carry guns in public to include state college campuses. 

The Board filed suit last May, seeking declaratory relief that HB 102 was unconstitutional as applied to the Board and state college campuses, and an injunction precluding the law’s application. The trial court issued the requested temporary restraining order and ultimately granted summary judgment to the Board and permanently enjoined enforcement of the relevant sections of HB 102. On appeal, the Montana Supreme Court addressed the narrow issue of whether, as the trial court found, the Board “possesses the exclusive authority to regulate firearms on [public] college campuses.”

Since at least 2012, under Board Policy 1006, the Board of Regents has limited those who can carry firearms on campus to police and security officers who meet certain requirements. Additionally, the policy empowers individual campuses to regulate possession and transportation of firearms on their premises. The state’s two largest universities require that students wishing to store guns on campus do so in a centralized gun locker.

HB 102 was signed into law by Governor Greg Gianforte on February 18, 2021. The act revised the state’s gun laws by allowing permitless concealed carry by all individuals eligible to possess guns under federal or state law, outside of a list of sensitive locations. Kansas appears to be the only state that currently requires its public colleges and universities to allow permitless carry (although only for individuals 21 or older). The Kansas law does not apply to areas on campus where “adequate security measures [are taken] to ensure that no weapons are permitted.” Under Montana’s HB 102, guns could still be banned in non-university school buildings, but the law limited the Board’s ability to regulate guns on “university system property” to only discharge, storage and possession in certain contexts—leaving the Board unable to prohibit public carry generally. The bill’s sponsor, Montana State Representative Seth Berglee, stated that the law would erase an “invisible line” around the state’s college campuses.

The key provision of the law for purposes of the Board litigation, Section 6, prohibited the Board and related authorities from “regulat[ing], restrict[ing], or plac[ing] an undue burden on the possession, transportation, or storage of firearms on or within university system property by a person eligible to possess a firearm under state or federal law.” The Board was, however, permitted to regulate certain matters related to guns—including possession and storage in specific locations (such as in an on-campus dormitory where a roommate does not consent, or at an athletic event where security is present), by certain students (such as those with a history of discipline related to violence or substance abuse), and the use of guns in certain ways (such as discharging or brandishing).  

In Board of Regents, the Montana Supreme Court first addressed the extent to which the Board’s authority is exclusive under the state constitution. Article X, § 9(2)(a) grants authority to the Board as follows: “The government and control of the Montana university system is vested in a board of regents of higher education which shall have full power, responsibility, and authority to supervise, coordinate, manage and control the Montana university system . . . .” However, § 9(2) also subjects the Board’s funds to standard legislative audits and provides that its members are “appointed by the governor, and confirmed by the senate, to overlapping terms, as provided by law.”

The court cited Marbury v. Madison to illustrate the principle that an enumerated grant of power carries a presumption of exclusivity. Under this formulation, and absent constitutional language to the contrary, the legislature cannot assert control over the Board’s affairs. Reviewing sources from Montana’s 1972 Constitutional Convention, the court found that the Board is intended to function as a “quasi-independent” department of Montana’s government, subject only to “indirect legislative control.” On this point, the court held that “the Framers intended to place the MUS outside the reach of political changes of fortune and instead in the hands of a Board which remained directly responsible and accountable to Montanans.”

The second task for the court was to determine whether the regulation of firearms on MUS properties falls within the scope of the Board’s exclusive authority. The state argued that the Board’s constitutional authority extends only to academic, financial, and administrative matters. But the court ultimately did not need to determine the outer bounds of the Board’s power. Instead, it held that regulating firearms on campus is directly related to the Board’s academic and administrative responsibilities. Because “[s]tudents, faculty, and support personnel rely on the Board to assess security risks and make decisions that will enhance . . . safety, security, and stability,” the court reasoned, “maintaining a safe and secure educational environment falls squarely within the Board’s constitutional authority under Mont. Const. art. X, § 9(2)(a).”

The court went on to note that Montana is no stranger to the effects of gun violence on college campuses, citing two past instances of fatal shootings on university campuses within the state. It also affirmed that regulatory power over firearms on campus is necessary and proper to the exercise of the Board’s general powers. According to the court, “campus safety and security is an integral responsibility of the Board.” Because gun violence is a threat to campus safety and security, the court held, Board Policy 1006 was therefore a proper exercise of the Board’s constitutional authority. Finding that HB 102 unconstitutionally infringed on this authority, the court affirmed the lower court’s decision to permanently enjoin the relevant provisions.

Despite the Board’s victory in this case, the provisions of HB 102 that relaxed public-carry rules outside of the campus setting remain intact and reflect a broader trend of deregulation across the country. Specifically, the bill lifted existing prohibitions on concealed carry in banks and bars. While permitless concealed carry is now allowed in these venues by default, private property owners may expressly ban firearms from their premises. HB 102 also allows individuals to carry guns in state and local government buildings, but only with a valid permit. Twenty-six states have enacted laws allowing permitless concealed carry, also referred to by some as “constitutional carry” laws. Last year, Texas joined the legislative surge and allowed permitless carry. Texans and non-residents who are not disqualified due to factors such as mental incompetency or prior criminal conviction can now carry concealed weapons in public without a permit.

While Board of Regents turned on whether Montana’s legislature could override the Board’s state constitutional authority, discussions about guns on college campuses often focus on the scope of the Second Amendment and a state’s ability to ban guns in sensitive places. Because New York State Rifle & Pistol Ass’n v. Bruen reaffirmed “schools and government buildings” as sensitive places where guns may be banned entirely, it does not appear that a Second Amendment challenge to Montana’s Board Policy 1006 would succeed, even after Bruen. However, the Court’s opinion expressly disclaims any effort “to comprehensively define” the sensitive-places doctrine. 

A recent law review note argues that the carve-out for banning guns in schools, which originated in District of Columbia v. Heller, is not intended to capture colleges and universities because they are predominately attended by adults. The note argues that a greater amount of First Amendment regulation is permitted at K-12 schools than institutions of higher learning. And, taking an originalist approach to Heller itself, the author contends that the word “schools” was commonly used to refer to only K-12 schools at the time of the opinion and should be interpreted accordingly.

On the other hand, the regulation of firearms on college campuses has deep roots in American history. As the Center’s Darrell Miller noted in a recent op-ed, students at Harvard were generally prohibited from possessing guns as early as 1655. Similar restrictions were in place at public universities by the early 19th-century, including the University of Virginia. In 1824, with inaugural members Thomas Jefferson and James Madison present, the UVA board resolved to prohibit students from “keep[ing] or us[ing] weapons or arms of any kind” on campus. It is worth noting that these policies applied only to students. Even so, this history of regulation may indicate that campus gun bans are consistent with the Second Amendment. In 2016, Georgia Governor Nathan Deal cited the University of Virginia’s 1824 policy as one of his reasons for vetoing a campus carry bill introduced in his state. Deal later signed the law, which allows permitted concealed carry on public campuses by individuals over 21.

The Board of Regents decision also holds interesting clues for possible future disputes between state legislatures and boards of education regarding campus gun policy. According to the Education Commission of the United States, Montana is one of nineteen states whose constitution establishes a state board to oversee its colleges and universities. In other states, these boards are creatures of statute and potentially more susceptible to disempowering legislation such as HB 102. For example, in 2011 a state appeals court held that the Oregon’ statutory board was preempted from exercising any “authority to regulate firearms.” The court struck down an administrative rule passed by Oregon’s board that generally prohibited the possession of firearms on public college campuses.


New York’s Response to Bruen: The Outer Limits of the “Sensitive Places” Doctrine

Immediately following the Supreme Court’s decision in Bruen striking down New York’s proper-cause permitting standard, New York Governor Kathy Hochul took to Twitter to call the decision “reckless[]” and “outrageous,” and pledged further action “to keep New Yorkers safe.”  Just over one week after the decision was issued, on Friday, July 1, New York state passed a suite of amendments to its gun laws in response to Bruen (known colloquially as the “Concealed Carry Improvement Act”). 

New York’s new legislation is focused on three major areas.  First, the state removed its “proper cause” requirement but took other actions to shore up the concealed-carry permitting process.  Permit applicants are still required to demonstrate “good moral character” (a requirement contained in the New York law that was challenged in Bruen, and one that is on the books in many states Bruen approvingly cited as “shall issue”).  But New York now mandates that applicants take specific steps and submit information to the licensing officer to make this showing, including:  (1) attending an in-person interview; (2) providing names and contact information for at least four character references; (3) providing names and contact information for all adults residing with the applicant and information about whether minors reside in the home; and (4) submitting “a list of former and current social media accounts of the applicant from the past three years.”  The state also enacted additional proficiency requirements that will be part of the permit process going forward, including completing an in-person firearms safety course with at least 16 hours of live training and scoring at least 80% on a written exam.  Permitholders are required to be recertified every three years and, during the first recertification, must complete the same proficiency training as new applicants.

Second, the state banned the possession of guns in a long list of “sensitive places.”  This is a major development and likely to be the focus of future litigation, so it’s worth summarizing the entire list here.  Guns are now prohibited (with only limited carveouts, including for law enforcement officials and active-duty military personnel) in government buildings, healthcare facilities, places of worship, libraries, playgrounds, public parks, zoos, childcare facilities, the buildings or grounds of educational institutions (from pre-schools to universities), summer camps, developmental disability treatment locations, addiction and mental health facilities, facilities for disability assistance, homeless and domestic violence shelters, mass transit, any location with a liquor license or license for on-premises cannabis consumption, performing arts venues, stadiums and racetracks, museums, amusement parks, banquet halls, polling places, public sidewalks or areas restricted from general use for a permitted event, any protest or gathering, and Times Square.

Third, New York became the first state in the nation to enact a blanket ban on concealed carry in privately-owned locations (with the same carve-outs mentioned above) unless the property owner posts a sign permitting guns to be carried or otherwise gives explicit consent.  The law accomplishes this by criminalizing possession of a gun in any location where the possessor knows (or reasonably should know) that the owner or lessee of the property has not permitted such possession by posting clear signage or giving consent. The “reasonably should know” prong places the burden on the individual carrying a gun to look for posted signs before entering.

In addition to these three major reforms, the law implemented background checks for ammunition purchases and provided for increased cooperation and information sharing between the state background-check system and the federal NICS system.  New York also imposed storage requirements for individuals who leave their gun(s) in a vehicle or store guns in a home where minors also reside, expanded the definition of “body armor,” and created an appeal process for applicants whose permit application is denied or who fail a background check required to purchase a gun.  The law, which does not preclude cities and towns from enacting more restrictive gun laws, is set to take effect on September 1, 2022.

While New York complied with Bruen in removing its “proper cause” standard, it also imposed additional permit requirements including an in-person interview and several documentary submissions.  Notably, the Court’s opinion in Bruen did “not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.”  It’s difficult to tell exactly where the Court will draw the line on shall-issue regimes and it will take some time to see how New York’s new scheme functions in practice.  But it’s probably a safe bet that—especially with the new training and submission requirements—we’ll see an as-applied challenge to the law at some point by a permit applicant who argues they were forced to wait too long.

The expansive list of sensitive places is another area where we can expect even more litigation.  Under Bruen’s limited analysis of the sensitive-places doctrine, certain locations on New York’s list—such as government buildings, polling places, and schools—are almost certainly fine.  But the Court also noted that “expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement defines the category of ‘sensitive places’ far too broadly.”  It remains to be seen whether New York’s law crosses the line on the amount of city land (as a percent of total acreage) that can be declared sensitive.

How will locations such as mass transit, stadiums, bars, and Times Square fare under the historical-analogue test?  Bruen cites a law review article by David Kopel and Joseph Greenlee examining “18th- and 19th-century ‘sensitive places,’” and directs judges to reason by analogy to those places to determine modern locations that might qualify as sensitive places.  In their evaluation of early U.S. history, Kopel and Greenlee describe a 1782 Boston fire-prevention law that banned loaded guns in all city buildings, but note that this law “was far outnumbered by statutes all over America that required bringing guns into churches, and sometimes to other public assemblies” at the time.  Kopel and Greenlee also catalogue late-19th century laws in Tennessee, Texas, and Oklahoma that banned the carrying of guns in places of public assembly (with slight variations by state), and a Missouri law that banned only concealed-carry in such places.  Query whether these laws will be viewed as “outliers” after Bruen, but they are certain to play a central role in future sensitive-places litigation.  And if, as Kopel and Greenlee suggest, the late-19th century Western laws were motivated by a “racial subtext” of preventing freed slaves from bearing arms in public, how (if at all) does that impact the analysis?  It seems possible that skeptical judges may credit this theory and find such laws unpersuasive of a historical tradition of broadly banning gun possession in sensitive places for legitimate public safety reasons.

New York’s ban on gun possession in private businesses unless explicitly permitted will likely be more difficult to challenge in court.  While New York’s approach is novel, courts that have considered Second Amendment challenges to gun prohibition on private property have generally held that “[a]n individual’s right to bear arms as enshrined in the Second Amendment, whatever its full scope, certainly must be limited by the equally fundamental right of a private property owner to exercise exclusive dominion and control over its land.”  GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1265 (11th Cir. 2012).  It’s possible a future challenger may argue that New York’s decision to criminalize unauthorized carry in private businesses creates a state-action nexus, or point to the cumulative effect of the private-business restriction and the sensitive-places list to argue that New York’s approach effectively nullifies the right to carry guns in public for self-defense (as we see in the complaint discussed below).

Finally, a quick word on the social media review that will be part of New York’s permit application going forward.  We may see similar requirements gain broader acceptance in the coming weeks and months, especially given revelations about disturbing social media posts by individuals who have gone on to commit recent mass shootings.  However, this portion of the New York law may be subject to criticism that it contains loopholes:  the applicant is required to submit a list of his or her social media accounts from the past three years, and it’s not clear how much (if any) independent research the state plans to conduct to see if any accounts were omitted or deleted.  It’s also an open question what qualifies as a social media account—presumably Facebook and Twitter qualify, but how about YouTube or a message board or online forum account?  It’s worth noting that New York is among the states with an ERPO, or red flag law, in place, so the state may intend for that law to do some of the work here—if a friend or relative notices something disturbing on social media, they can utilize the red flag law to attempt to prevent the individual from keeping or obtaining guns.

The social media account submission is yet another aspect of the New York law likely to face litigation.  Lawsuits challenging the New York law have already surfaced, including a complaint filed in the Northern District of New York earlier this week alleging that “exorbitant fees, [a] slew of non-sensitive ‘sensitive locations’ and ‘restricted locations’ which include very public places (like parks and sidewalks), and incredulous demands for carry license applicants, all are entirely without historical example, and thus violate the Second Amendment.”  The complaint also levies a First Amendment challenge to the social media and other documentary submissions, arguing that New York is attempting to “use protected First Amendment activity to deny the exercise of another right.” 


Justice Breyer’s Dissent in Bruen:  The Generality Problem and the Pitfalls of Searching for Historical Means and Ends

We previously reviewed and commented on Justice Thomas’ opinion for the Court and the three concurrences in New York State Rifle & Pistol Association v. Bruen.  This post is a deeper dive into the dissent, which stridently criticized the Court’s historical-tradition methodology as both dismissive of modern legislative objectives and unworkable in practice.  

The lengthy dissent was authored by Justice Breyer, joined by Justices Sotomayor and Kagan.  The dissent began with the observation that U.S. civilians possess a disproportionately high number of guns compared to civilians in other countries.  Breyer then cited statistical evidence of “[t]he dangers posed by firearms” and listed recent mass shootings.  He also observed that states need flexibility to tailor regulations to their specific demographic environments, which may dictate different regulatory choices for urban and rural areas.  Breyer stated that these “considerations illustrate that the question of firearm regulation presents a complex problem—one that should be solved by legislators rather than courts.”  Breyer asserted that the Court’s opinion will leave states without the ability to account for these issues in formulating gun policy.

The dissent then recounted the facts of the case, stressing that New York’s permitting system provided copious guidance on how licensing officials should apply the “proper cause” standard.  Breyer lamented that there was “no evidentiary record to demonstrate how the standard has actually been applied in practice.”  He argued that, in drawing a neat line between “may issue” and “shall issue” permitting schemes, “the Court ignore[d] the degree of variation within and across those categories,” failed to evaluate how permitting regimes actually function in practice, and did not consider that the seven “outlier” may-issue states have unique demographic challenges bearing on gun violence prevention strategies.  Breyer also observed that shall-issue licensing is a relatively new development and that, before the last several decades, most states employed may-issue regimes.  Finally, he cited empirical studies showing that shall-issue frameworks lead to more gun violence.

Breyer’s dissent then levied three major methodological criticisms at the Court’s historical-tradition test.  First, Breyer argued that the test is not actually faithful to Heller, because Heller expressly contemplated some form of means-ends scrutiny and only rejected a more freestanding “interest-balancing” approach.  Second, Breyer observed that the historical-tradition test is not consistent with how courts evaluate other constitutional rights—while they may consult history to determine the scope of the right, they then commonly move on to apply means-ends scrutiny to determine whether the law at issue should be upheld or stuck down.  Third, Breyer argued that the history-based test will prove “deeply impractical.”  Specifically, he questioned whether lower courts have the resources to conduct the historical analysis necessary to identify analogues and outliers, whether the test might “permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history,” and whether history can ever provide concrete answers to difficult questions that were not anticipated at the time of the Founding (Breyer cited continued scholarly debate over the historical analysis in Heller as further evidence that the Court’s test will prove immensely difficult in practice.)  Compounding these issues, in Breyer’s view, is the lack of guidance that the Court’s opinion provided to lower courts tasked with conducting analogical reasoning to historical regulations.

In a final section, the dissent conducted its own review of the relevant historical regulations.  Relying on many of the same statutes considered and dismissed by the Court’s opinion—including the 1328 Statute of Northampton, colonial and founding-era successors to that statute, early American concealed-carry prohibitions, and post-Civil War public carry bans in Western states—Justice Breyer found a “centuries-old tradition of comparable firearms regulations” analogous to New York’s “proper cause” requirement.  Justice Breyer questioned how this historical tradition could be insufficient to support the New York law, and what might possibly be sufficient under the Court’s test if such a long tradition of similar regulations fell short.  The dissent ultimately argued that the Court’s test not only improperly precludes state legislatures from making empirical judgments about the best way to address gun violence, but also overlooks historical support sufficient to uphold the New York law.

The dissent considered many of the same regulations as the Court’s opinion but drew the opposite conclusion:  that there was sufficient historical support for the New York law.  This simply underscores that the Bruen test depends entirely upon the level of generality at which a judge conducts the historical-analogue inquiry.  If one uses a powerful magnifying glass to parse the historical record, you are almost certain to find a dearth of regulatory analogues—however, at a higher level of generality, “representative” historical regulations will pop up left and right. 

As we think about the future of public-carry permitting challenges specifically, Justice Breyer’s point about the subtle nuances that exist within shall-issue regimes is important.  The dissent noted that there was no discovery in this case, and therefore no evidentiary record showing how frequently New York licensing officials actually granted concealed-carry permits in practice or whether the success rate of permit applications was higher in rural areas than in large cities.  Justice Breyer would have considered such evidence valuable in evaluating the law’s constitutionality.  The Court’s opinion said that evidence about the permitting system’s practical operation was not necessary to the outcome because New York conceded at oral argument that any non-particularized threat to safety would typically be insufficient to obtain a concealed-carry license for self-defense purposes.  However, the Court also observed in a footnote that the relatively permissive operation of Delaware’s permitting regime (5,680 licenses were granted in the first half of 2022, while only 112 were denied) was a factor in placing Delaware on the shall-issue list.  It’s not entirely clear where all that leaves us as to public carry permitting requirements going forward, but it seems plausible that courts may be free to closely scrutinize even shall-issue regimes that retain some discretionary elements if the percentage of permit applications granted is especially low.

On the theme of how faithful the Court’s opinion actually is to originalism (or, perhaps more relevant in this instance, textualism), the dissent noted that “the Court believes that the most relevant metrics of comparison are a regulation’s means (how) and ends (why)—even as it rejects the utility of means-end scrutiny.”  In other words, the Court’s test does emphasize legislative means and ends, albeit only through a historical lens.  While there’s certainly no definitive compilation of the regulations which the Framers themselves (or the founding generation) believed to be consistent with the Second Amendment, a true textualist might argue that courts should limit themselves to considering the text of potentially-analogous historical regulations and public commentary about those regulations at the time they were passed.  Looking to public commentary or understanding potentially gets a court close to the “how and why” of historical regulations—but probably not all the way there.  And, of course, attempting to glean the public understanding of why laws were passed and what regulations were considered appropriate at a certain point in history opens the door to all sorts of tricky questions:  What sources should be consulted?  How to determine the intent and perspective of a body of state legislators with diverse beliefs and motivations?  And how to deal with the possibility that accounts shedding light on contemporary public understanding were lost or destroyed?  It may often be that the loudest voice—not necessarily the voice providing an accurate account of why rules were passed and how they were viewed at the time—is the one that survives in the historical record. 

At the very least, Justice Breyer’s dissent identified a number of important obstacles which the historical-tradition test will face in practice as lower courts begin to apply it to new types of gun regulations.  While Bruen will certainly spur further historical scholarship and research, it’s worth pointing out that the Center for Firearms Law currently maintains the Repository of Historical Gun Laws—a searchable database of over 1,600 gun laws from medieval England through twentieth-century America.

Bruen’s Concurrences: The Questionable Durability of the Bruen Majority, and Ruminations on Originalism and the Limits of Historical Inquiry

Jake previously summarized and reviewed Justice Thomas’ opinion for the Court in New York State Rifle & Pistol Association v. Bruen.  This post unpacks the three concurrences, which potentially shed light on the scope of the Court’s holding and the “historical tradition” of regulation that will be relevant in future Second Amendment cases.

Justice Alito concurred in the Court’s opinion, and at the outset endorsed Justice Thomas’ analysis and the decision to strike down New York’s law under the historical tradition test.  Justice Alito then reiterated the limits (in his view) of the Court’s opinion:  it did not opine on “who may lawfully possess a firearm or the requirements that must be met to buy a gun”; it did not “decide anything about the kinds of weapons that people may possess”; and, perhaps most importantly, it did not say anything about Heller’s endorsement of certain “restrictions that may be imposed on the possession or carrying of guns.”

Having cabined the Court’s opinion as a narrow holding that a state may not prevent law-abiding individuals from carrying a gun outside the home for self-defense, Justice Alito took issue with the dissent’s citation of statistics and studies regarding gun violence in America.  In Justice Alito’s view, these statistics were irrelevant to the question before the Court, especially when they dealt only with types of gun violence more likely to occur inside the home—for example, the use of guns in suicides and domestic disputes.  Justice Alito also criticized the dissent for invoking recent mass shootings, arguing that potential mass shooters are among the least likely to be deterred by strict licensing requirements and observing that one such recent shooting occurred in New York (and thus, he said, obviously was not prevented by New York’s permit system). Then, Justice Alito moved on to emphasize the beneficial role that guns can play in enabling individuals to defend themselves and highlighted anecdotes from the amicus briefs of individuals warding off would-be attackers through the defensive use of firearms.

Finally, Justice Alito sought to illustrate what he considers the pitfalls of means-ends scrutiny:  namely, that “this mode of analysis places no firm limits on the ability of judges to sustain any law restricting the possession or use of a gun.”  First, he alluded to a New York City rule that limited the ability of permitholders allowed to keep guns in the home for self-defense to take those guns to a range for target practice—a restriction which the Second Circuit initially upheld, but the state later repealed.  This was New York State Rifle & Pistol Assn., Inc. v. City of New York, 590 U. S. _ (2020), a case decided two terms ago that we covered extensively and in which the Court ultimately held that New York City’s decision to repeal the law mooted the claims.  Second, he suggested that Justice Breyer’s dissent in Heller—which would have upheld Washington D.C.’s near-total handgun ban under means-end scrutiny—showed that such an approach leaves “[s]tates and local governments . . . essentially [] free to ban the possession of all handguns.”  In Justice Alito’s view, the fact that any court or judge might have considered these laws appropriate under a means-ends test proves that such a test fails to properly limit judicial discretion or protect Second Amendment rights.

Justice Kavanaugh wrote a separate concurring opinion, joined by Chief Justice Roberts.  With greater force than Justice Alito, Justice Kavanaugh stressed that the 43 states with “shall issue” permitting regimes are free to continue to grant permits in this way.  He also opined that the 7 “may issue” jurisdictions (6 states plus D.C.) are merely required to modify their licensing frameworks to “employ objective licensing requirements like those used by the 43 shall-issue States.”  Justice Kavanaugh also quoted the McDonald plurality opinion and its examples of permissible gun regulation—reproducing the list from Heller itself—and stated that nothing in Bruen disturbed the presumptive constitutionality of such restrictions.

Justice Barrett authored a short concurrence joining the Court’s opinion but also observing that it “does not resolve” two questions regarding how to properly interpret the historical record.  First, “the manner and circumstances in which postratification practice may bear on the original meaning of the Constitution” was left unclear.  And, second, the Court’s opinion noted—but did not resolve—the question of whether the scope of permissible regulation of an individual right should be determined as of 1791 (when the Bill of Rights was ratified) or as of 1868 (when the 14th Amendment, which incorporates the individual rights in the Bill of Rights against the states through the due process clause, was ratified).  Justice Barrett suggested (as did the Court’s opinion) that 1791 is the correct date and, therefore, Reconstruction-era regulations may be of limited or no value in assessing the historical tradition of regulating individual rights within the Bill of Rights.  Justice Barrett agreed with the Court that it was not necessary to decide either question to strike down the New York law at issue.

While it’s always difficult to divine the inner workings of the Court and know why certain justices choose to write separately rather than joining in the Court’s opinion, it is noteworthy that two out of the three concurrences devote space to stressing the same central points about the limitations of Bruen.  First, that the holding shouldn’t be perceived as a threat to shall-issue permitting systems in theory (although not necessarily in practice, if the requirements imposed on applicants are applied in an arbitrary or excessively burdensome manner).  And, second, that the holding does nothing to change the Court’s conclusion in both Heller and McDonald that “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” (plus laws regulating dangerous and unusual weapons) are presumptively constitutional.

The fact that Chief Justice Roberts and Justices Alito and Kavanaugh thought it important to emphasize these points separately leaves one wondering to what extent the Court’s opinion actually agrees that such laws are still presumptively lawful.  Taking the Court’s brief discussion of the sensitive-places doctrine as an example, Justice Thomas doesn’t simply invoke Heller saying these laws are fine—instead, he suggests that these laws are only justified where they are analogous to historical “sensitive places” where guns were prohibited.  Under that approach, it seems that certain of the Heller and McDonald presumptively-lawful regulations may be on thin ice:  these laws aren’t automatically OK, but rather have to independently meet the historical analogy test. 

The fact that three Justices who signed onto the Court’s opinion in Bruen wrote separately to stress their agreement with Heller and McDonald’s carve-out of certain specified gun regulations may indicate cracks within the six-justice Bruen majority going forward.  On one hand, the concurrences could be empty rhetoric and (when the rubber hits the road) these Justices may ultimately endorse looking to historical tradition across the board.  On the other hand, it’s possible to read these concurrences as indicating a consensus on the Court behind only a narrow version of Bruen:  historical tradition is the appropriate way to evaluate restrictions such as New York’s permitting regime which prohibit public carry by most law-abiding citizens (or the right to possess a handgun in the home, as in Heller and McDonald).  Some other gun laws might still be presumptively valid because they don’t burden the Second Amendment right of law-abiding citizens in the same way and thus do not even make it to the historical-analogue stage of the Bruen analysis—for example, laws that prohibit only certain categories of people from possessing guns, prohibit guns only in certain places, regulate the sale but not the possession of guns, or regulate only certain types of uniquely dangerous guns.  At the very least, some combination of Chief Justice Roberts and Justices Alito and Kavanaugh may embrace this narrower interpretation of the Court’s holding in Bruen.

Justice Barrett’s concurrence is slightly odd, in that she wrote merely to note questions about the proper mode of historical analysis the Court’s opinion left unanswered.  According to Justice Barrett, these questions were not necessary to resolve Bruen but will be relevant in future cases—though she also declined to answer them.  Whether you agree with the assertion that they were immaterial to Bruen or not, Justice Barrett highlights important unresolved issues with the Bruen test and only underscores how little guidance the Court’s opinion supplies to lower courts now tasked with reasoning by analogy to historical regulations.  Her first point about postratification history is fascinating because it hones in on one way in which Bruen’s focus on history may actually be in some tension with originalism.  Barrett voices concern about “[h]ow long after ratification” regulatory practice will be relevant.  In other words, how long after an amendment was ratified can state practice inform us about the intended scope of the right and what type of regulations were originally viewed as consistent with that right? 

The Court in Bruen considers subsequent state regulatory practice through the end of the 19th century.  If the relevant date of ratification is 1791 (more on that below), then the Court’s historical survey reaches over 100 years into the future to illuminate the original understanding of what regulations were permissible.  And Justice Barrett seems concerned this may be a bridge too far.  On this point, it’s interesting to note that the late Justice Scalia (considered a pioneer of originalist constitutional and statutory interpretation) frequently decried the use of subsequent legislative history:  history concerning the meaning of a law written after the law was passed.  See, e.g., Sullivan v. Finkelstein, 496 U.S. 617, 631 (1990) (Scalia, J., concurring in the judgment) (“‘Subsequent legislative history’—which presumably means the post-enactment history of a statute’s consideration and enactment—is a contradiction in terms.”).  The Court’s use of postratification regulatory practice in Bruen is slightly different, but there are arguably similar concerns about why regulatory practice 100 years after the Second Amendment was ratified should shed any light on the original understanding of what the Amendment was intended to protect and what regulations were consistent with it.

To Justice Barrett’s second point about whether to use 1791 or 1868 as the date of “ratification” for purposes of the historical tradition test, both Justice Barrett and the Court strongly suggested—but the Court did not actually decide—that the correct date is 1791, when the Bill of Rights was ratified.  If lower courts read Bruen in this way, it will have important consequences.  It is no accident that several of the closest potential analogues to New York’s proper cause requirement (including the postbellum Texas statute that even the Court conceded was closely analogous to New York’s permit law) were passed in Western states and territories during the post-Civil War period.  This was a time when state governments in the West grappled with lawlessness and widespread gun possession in rapidly-developing cities and towns on the frontier.  There are similar policy concerns at play in modern urban areas, but—if courts coalesce around an approach that focuses on 1791, even for challenges to state and local laws—regulations from this period of history may ultimately play little to no role in future Second Amendment cases.

Litigation Highlight: Juzumas and Second Amendment Challenges to NY’s Longarms Surrender Requirement

Last month, in Juzumas v. Nassau County, a Second Circuit panel ruled per curiam that New York’s statute governing licenses for firearm possession mandated that the defendant surrender his longarms once his pistol license was revoked. However, because the County policy purporting to implement this policy was unclear, the Court vacated the district court’s ruling and remanded the issue of whether and when the defendant can again possess longarms, and whether the County’s policy complies with the Second Amendment. The panel cited the County’s inability to “provide a complete description of when it will be lawful for Juzumas to acquire longarms” and mentioned that the County should be able to offer up these facts and their application “presumably on remand.” (The plaintiff did not challenge NY’s state law, but only the County policy.)  

Juzumas received a pistol license from Nassau County in 2003. Five years later, he was arrested for conspiring to import controlled substances. Under the County’s law, the officer who arrested him confiscated his pistol license and pistols. In 2012, Juzumas pleaded guilty to a misdemeanor conspiracy to defraud the United States connected to his 2008 arrest. Several years later, the County sent him a letter stating his pistol license was revoked. The letter provided three bases for the license revocation: arrest history, conviction, and lack of good moral character.

After receiving the letter, Juzumas gave his longarms to various people in his life. He tried to appeal his pistol license revocation but was unsuccessful.

Juzumas later sued the County in federal court, asserting that the County’s requirement that he surrender possession and ownership of his longarms after his pistol license was revoked is unconstitutional as applied to him. Because he did not challenge the state law, he claimed that the County’s policy interprets the NY Penal Law broader than the state law itself.

The trial court granted summary judgment in favor of Nassau County, holding that the County acted to enforce a mandatory provision of state law and so was not a proper defendant under Vives v. City of New York (2d Cir. 2008). In that case, the Second Circuit  ruled that a municipality cannot be held liable for its enforcement of state law so long as it adopted a conscious policy of enforcing the specific law in question. Further, the District Court granted Nassau County’s motion for summary judgment on Juzuma’s First, Second, and Fourth Amendment Claims, related Monell claims (claims commonly included in lawsuits against police officers to get at county funds), and the § 1983 claim. However, it concluded that Juzumas did have a Fourteenth Amendment due process claim because he should have received a hearing before being permanently deprived of his long guns. Juzumas appealed the grant of summary judgment on the Second and Fourth Amendment claims. As mentioned above, the Second Circuit affirmed the district court in part but remanded for the district court to address part of Juzumas’s Second Amendment claim, and its related Monell claim.

The specific New York law at issue was NY Penal Law § 400.00(1) which governs a citizen’s eligibility to own a firearm in the state. In New York, it is necessary to have a license in order to possess a firearm. The section provides that: “no license shall be issued or renewed except for an applicant” who meets various listed requirements. Relevant here, some of the requirements are that the applicant is “of good moral character,” and that there is “no good cause” to deny the applicant the license. Under the state law, local counties are charged with licensing responsibility within their domains. Of note, there is no licensing scheme for longarms. However, the NY Law does touch on long gun possession by someone who has had their pistol license revoked, and some of those provisions are at dispute in the case.

There are several ways for someone’s pistol license to be revoked in the state. Some are mentioned in § 400.00(11)(a), providing that if a licensee is convicted of a felony or “serious offense,” and that if the holder “at any time becom[es] ineligible to obtain a license under this section,” that fact “shall operate as a revocation of the license.” Within § 400.00(11), subsection (c) states that whenever someone’s license is suspended under subsection (a) or (b), then the person “shall surrender such license to the appropriate licensing official and any and all firearms, rifles, or shotguns owned or possessed by such person shall be surrendered to an appropriate law enforcement agency.” This subsection, the Court writes, connects longarm possession and pistol licenses.

Nassau County adopted a policy that implemented the state’s framework. State law requires surrender of long guns upon a pistol license revocation, but is silent on the acquisition of new long arms after revocation. The County’s written policy does not state whether someone can possess long guns after revocation before being issued another pistol license. Even absent a clear written policy, Juzumas claimed that the County made it so that someone who has had their pistol license revoked can only possess long arms again after applying for, and being issued, another pistol license.

Juzumas claimed that the County’s policy goes beyond enforcing state law. He argued that state law only requires the surrender of long guns when a pistol license has been revoked based on the specific factors in § 400.00(11) and not when based on other reasons contained in other subsections. Because he claimed the law goes further than the state requires, Juzumas argued that it violated his Second Amendment right to possess long guns. He also challenged the County’s position that despite the absence of a state licensing regime for longarms, he is prohibited from possessing a longarm unless he gets a pistol license.

The Court held that Juzumas misread NY Penal Law § 400.00. Looking to the plain meaning of the text and legislative history, the Court read the entire statute together, noting that “under this section” in § 400.00(11)(a) refers to all of § 400.00. Reasons someone might lose or be ineligible for a pistol license appear throughout § 400.00. Specifically, language added in 2013 by the New York State Secure Ammunition and Firearms Enforcement (SAFE) Act provided that someone can be ineligible to obtain a license for reasons not enumerated in the (11)(a) subsection. When explaining this, the Court commented in a footnote that NY courts frequently uphold pistol license revocations under § 400.00(11) without referencing any enumerated reason.

Further, the Court held that the County was reasonably applying state law. Penal Law § 400.00(11)(c) mandates that guns “shall be removed and declared a nuisance” if they are not surrendered after a license revocation. The Court explained that the language “shall” within a statute invokes something mandatory. Therefore, the Court held that Juzumas’s actual issue would be with the New York state law, and not the County. Because Juzumas had not challenged the constitutionality of the state law, the Court ended its discussion of this issue here.

Similarly, the Court also affirmed the dismissal of Juzumas’s Fourth Amendment claim, explaining that the County’s policy is merely an enforcement of state law. The County is therefore not the proper defendant.

However, the Court held that the County’s policy described in a 2015 letter does go further than state law requires. The policy described does not allow Juzumas to buy longarms until he is issued a new pistol license. But Juzumas claimed that the state law only provides for the surrender of longarms that are in his possession at the time of the license revocation and not a prohibition on the acquisition of new ones. The district court didn’t address this challenge and just determined that it was unclear whether Juzumas could possess longarms again under Nassau County’s policy.

The Court noted that the County never offered a clear declaration on its policy of longarm possession after the revocation of a pistol license. The County had offered various explanations of the policy. In its 2015 letter, it stated that Juzumas could not possess a longarm until his license was reinstated. Then at deposition, a Nassau County Police Department (NCPD) lieutenant testified “variably” to whether this was the policy. A department policy provided that if no legal impediment exists, then there does not appear to be a prohibition on someone acquiring new longarms even if his pistol license remains revoked. To add even more confusion, the County declared at oral argument that they no longer use the letter that Juzumas received in 2015, and that someone whose longarms were surrendered when his license was revoked can go out and buy other longarms after.

The Court remanded Juzumas’s Second Amendment challenge because of the lack of explicit County law governing whether Juzumas can possess a longarm after his pistol license was revoked.

Bruen, Analogies, and the Quest for Goldilocks History

On June 23, 2022, the Supreme Court issued its first major Second Amendment decision in a dozen years. In New York State Rifle & Pistol Association v. Bruen, the Court declared New York’s restrictive may-issue licensing law unconstitutional. The 6-3 decision written by Justice Thomas supercharges the Second Amendment and upends a host of settled questions in the fecderal courts of appeals, including questions about what weapons the Second Amendment protects, who can constitutionally be prohibited from possessing firearms, and many others. Although the Court’s primary holding striking down New York’s requirement that a concealed carry applicant show “proper cause” is likely to have immediate impact on the half dozen other states with similar regimes, its holding mandating a history-only test for all future Second Amendment challenges will reverberate much more widely.

Of course, a mountain of scholarship will be devoted to unpacking Bruen’s implications for gun rights and regulation—as well as for constitutional law more broadly. (In fact, the Center will be hosting a symposium at NYU Law School just a few months from now.) What follows is an initial effort to map out some of the major issues raised by the case.

In his opinion for the Court, Justice Thomas first recounted New York’s history of regulating the carrying of handguns, with the modern proper cause licensing law in place since 1913. As implemented currently, the standard is—in the Court’s words—“demanding” in requiring a showing that an applicant have a particularized need to carry publicly that’s distinguishable from the general community. The Court highlighted that many states require permits for concealed carry, but that the majority of states provide that a licensing official “shall issue” a license to whomever satisfies certain mostly-objective criteria.

It underscored—as if to deem it an outlier—that New York is one of only seven states to require a good cause showing. But it’s important to pause here and note (as Justice Breyer picks up in dissent) that this distribution of licensing regimes is thoroughly modern. As late as the 1980s, the predominant licensing scheme was the New York kind that required a showing of good cause. In fact, sixteen states at that time still completely prohibited concealed carry. And, at the time of Heller in 2008, only two states had no permit requirement at all (Vermont and Alaska). Today, 25 states have eliminated the requirement. In other words, gun-rights proponents have been monumentally successful in the legislative arena at the state level. Bruen constitutionalizes those victories to some extent.

Justice Thomas then went on to reject the unanimous methodology of the federal courts of appeals in analyzing Second Amendment questions: the two-part framework under which courts first ask whether the challenged action reaches conduct protected by the Second Amendment (a largely historical inquiry) and then, if so, move on to some form of heightened scrutiny.

Bruen sets up something of a different two-part analysis in its place:

[W]e hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’

As an aside on this paragraph, I’m not sure what the Court is getting at by referencing the text’s “unqualified command.” The case it quotes—Konigsberg v. State Bar of California—rejected a First Amendment challenge to a state bar’s refusal to admit an applicant because he would not answer questions about his membership in communist organizations. The quote comes from a footnote to the sentence in which that Court rejected a view of the First Amendment as absolute in two senses: “not only in the undoubted sense that, where the constitutional protection exists it must prevail, but also in the sense that the scope of that protection must be gathered solely from a literal reading of the First Amendment.” The footnote says the literalist, absolutist position would make no sense given laws against libel, slander, and the like, and quotes Justice Holmes’s assertion that constitutional provisions “are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil” and that their significance should not be determined “simply by taking the words and a dictionary, but by considering their origin and the line of their growth.” It notes that the same must be true of the Second Amendment’s “equally unqualified command.”

I’m puzzled by this reference. Suffice it to say that Justice Thomas does not seem keen on accepting the Konigsberg view of constitutional provisions as “living institutions” or the notion that a constitutional right can protect conduct and still be overcome by sufficient government interests. In fact, it’s worth noting that Konigsberg endorsed the very kind of (in its words) “weighing of the governmental interest involved” that the two-part framework employed and Bruen now says is completely off the table. See Konigsberg, 366 U.S. at 52 (“With respect to this same question of Communist Party membership, we regard the State’s interest in having lawyers who are devoted to the law in its broadest sense, including not only its substantive provisions, but also its procedures for orderly change, as clearly sufficient to outweigh the minimal effect upon free association occasioned by compulsory disclosure in the circumstances here presented.” (Emphasis added.))

But back to the test Bruen announced. It seems to assume a first inquiry into whether the “plain text” covers some conduct. If the answer is yes, it appears to envision a second step to see whether the government has met its burden to introduce sufficient historical evidence to justify the law. (Under the conventional two-step framework, the government bore the burden at step one to show a law burdened unprotected conduct. It is entirely unclear—to me at least—who bears the burden in Bruen’s first step of showing that the purportedly protected conduct is within the “plain text.” Governmental action is typically entitled to a presumption of constitutionality, after all.) Justice Thomas, however, said the existing two-part framework “is one step too many.” Only history is relevant.

The opinion grounded that test in the words and method of Heller. This is just what Justice Kavanaugh did when he first announced this sort of test as a circuit judge; he didn’t justify resort to text, history, and tradition as arising from first principles or based on anything unique to the Second Amendment, but instead as Heller’s mandate. And Heller, said Justice Thomas, doesn’t support means-end scrutiny. For a court to uphold a law against Second Amendment challenge, “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”[1]

The majority then tried to support its new standard by drawing comparisons to other areas of constitutional doctrine, stating that “[t]his Second Amendment standard accords with how we protect other constitutional rights.” It described how (part of) First Amendment analysis looks to history for categorical exceptions. (The opinion omitted entirely the fact that the First Amendment quite obviously employs means-end scrutiny in a whole host of contexts.) Although history can be hard, the Court acknowledged, “reliance on history to inform the meaning of constitutional text—especially text meant to codify a pre-existing right—is, in our view, more legitimate, and more administrable” than having judges perform means-end scrutiny. One wonders if the justices in the majority think what they were doing was not “legitimate” when five of them applied means-end scrutiny to—for example—hold certain California COVID-19 measures unconstitutional under the First Amendment.

What’s more, the Court dismissed concerns from the dissent about the ability of judges to perform the history that the decision now requires.

The job of judges is not to resolve historical questions in the abstract; it is to resolve legal questions presented in particular cases or controversies. That “legal inquiry is a refined subset” of a broader “historical inquiry,” and it relies on “various evidentiary principles and default rules” to resolve uncertainties. W. Baude & S. Sachs, Originalism and the Law of the Past, 37 L. & Hist. Rev. 809, 810–811 (2019). For example, “[i]n our adversarial system of adjudication, we follow the principle of party presentation.” United States v. Sineneng-Smith, 590 U. S. ___, ___ (2020) (slip op., at 3). Courts are thus entitled to decide a case based on the historical record compiled by the parties.

In other words, it seems to me that courts are now “entitled” to strike down democratically enacted legislation if whatever responsible government officials defending a given law neglect to insert relevant historical evidence into the record, even if that history would have supported the law. Plus, it appears to leave open the possibility that the Second Amendment right will be constantly changing as new historical evidence gets unearthed—which we’ve seen happen even in the years since Heller was decided, with developments in corpus linguistics that cast doubt on historical assertions in that case. Or just the opposite, and equally problematic situation, could be true: constitutional law could calcify a version of history, making the Supreme Court’s pronouncements about history binding for all time.

Justice Thomas suggested that historical analysis would sometimes be easy, listing three suchcircumstances: (1) “when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment,” (2) “[l]ikewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional,” and (3) “if some jurisdictions actually attempted to enact analogous regulations during this timeframe, but those proposals were rejected on constitutional grounds, that rejection surely would provide some probative evidence of unconstitutionality.”

Indeed, said Thomas, this very case itself was pretty easy. “[T]he historical analogies here and in Heller are relatively simple to draw.” Yet, he said, “other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach.” (Emphasis added.) That more nuanced approach—apparently reserved only for hard cases—requires judges to engage in analogical reasoning, finding a metric to assess relevant similarities. “While we do not now provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment,” the Court said, “we do think that Heller and McDonald point toward at least two metrics: how and why the regulations burden a law-abiding citizen’s right to armed self-defense.”

So courts ought to look to the burden the challenged law imposes, and check to see if a similar burden was imposed in the past; and then courts ought to look to the reasons the modern law was adopted and see if a historically law was similarly motivated. That means, as the Court said, that “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are ‘central’ considerations when engaging in an analogical inquiry.” The opinion hastened to add that courts may not engage in backdoor means-end scrutiny when doing this analogical reasoning (though assessing the burden and justification of a law were commonplace aspects of the two-part framework). The test, said the Court, shouldn’t be too narrow or too wide. The analogical reasoning approach is “neither a regulatory straightjacket nor a regulatory blank check.” As to the fear of a straightjacket, the Court sought to assure:

[A]nalogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.

That reassurance is likely to be cold comfort to supporters of stricter gun regulation given how the majority applied its methodology to New York’s regime. (More on that below). To give an example of the leeway the approach envisions, the opinion invoked the sensitive places doctrine. Its reasoning is less than clear to me. After citing Heller’s description of schools and government buildings as sensitive locations where guns can be prohibited, the Court said:

Although the historical record yields relatively few 18th- and 19th-century “sensitive places” where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions. We therefore can assume it settled that these locations were “sensitive places” where arms carrying could be prohibited consistent with the Second Amendment. And courts can use analogies to those historical regulations of “sensitive places” to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.

(Citations omitted). This passage is curious. Start with the suggestion that “no disputes” about the constitutionality of a given law means the Court can “assume it settled” that the law is consistent with the Second Amendment. Why, one might ask, wasn’t the fact that New York’s concealed carry licensing went unchallenged for over century mean it was “settled” that such a regulation was constitutional? It’s strange to see the opinion so cavalier with the lack of widespread place-based restrictions.

I suspect at least some members of the majority were intent on retaining the sensitive places doctrine, but it seems badly undertheorized here. Consider the second half of the passage—how do courts assess whether gun prohibitions in other places are okay? No answer but the admonition to “use analogies.” On the majority’s own description of how to use analogies (the how and why questions), almost every sensitive places question is radically indeterminate: any place-based prohibition, modern or ancient, burdens the right to armed self-defense in nearly identical ways and all, or nearly all, are justified on the same grounds (i.e., reducing opportunities for armed violence in this space). A wave of litigation is going to confront the courts with questions about what, for example, makes a restriction on guns in schools and government buildings different than in museums or on public transit. One marker the Court did lay down is that sensitive places cannot be “all places of public congregation that are not isolated from law enforcement.” But between prohibitions in polling places and courthouses—which are permissible—and citywide prohibitions—which are not—lies a vast (literal) terrain of potential gun regulations. 

After spending pages laying out what seems a squishy standard, the Court then applied it to New York’s law. At what I’m calling Bruen step one, the Court asked first “whether the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense.” It is worth noting—though the Court doesn’t spend much time on the question—that the “plain text” step is arguably quicker in Bruen than it might be in other contexts. Many argue, after all, that the plain text of “bear” means public carry, which, under the Bruen approach, shifts the burden to the government to provide historical evidence. It is more difficult to argue, for example, that the plain text of “Arms” covers high-capacity magazines, or that the plain text of “the People” does not cover undocumented immigrants.

In any event, the Court spent little time concluding that the “definition of ‘bear’ naturally encompasses public carry,” noting that “[m]any Americans hazard greater danger outside the home than in it.” Because the Second Amendment’s core right is the ability to keep and bear arms for self-defense, and individuals often find themselves in confrontations outside the home where they may need to defend themselves, the Court held it would be inappropriate and nonsensical to confine the right to “bear” arms to the home. That holding officially extends Heller and McDonald outside the home to protect public carriage of firearms.

After concluding that the plain text covers the conduct here, the Court then turned to (again, my words) Bruen step two: to justify that it can condition carry permits on a showing of need, “the burden falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation.” The Court then catalogued the types of evidence the state asserted on its behalf, including traditions from “(1) medieval to early modern England; (2) the American Colonies and the early Republic; (3) antebellum America; (4) Reconstruction; and (5) the late-19th and early-20th centuries.” At this point, the Court noted that not all history is equal. Legal regulations that are too old are not probative; nor are those that are too recent. On the latter score, the Court drew a hard line in the sand: the twentieth century is too late. (This line needed to be drawn to reach the Court’s outcome since Massachusetts had a similar regime starting in 1906 and New York’s own law stretched to 1913. But it also means that when firearm regulation picked up in response to firearm violence, tradition becomes irrelevant.) The Court makes government search for a goldilocks history that will satisfy judges that a given regulation is sufficiently grounded in history.

As Justice Barrett noted in her concurrence, one historical matter the Court left undecided is whether lower courts should look to laws around 1791 (when the Second Amendment was ratified) or 1868 (when the Fourteenth Amendment was ratified) to assess the original public meaning of the right. It said that that didn’t matter for this case because the history at both periods was similar enough on the question of public carry. And that evidence did not, said the Court, support limiting the right to carry to those who could show special need. The Court did, however, say in a footnote that it was not calling all licensing into question (though, query how this is consistent with ignoring 20th century developments) and that shall-issue licensing laws were probably okay save for any situations where, for example, “lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.”

The Court then marched through the historical record presented to support New York’s law, dismissing and distinguishing what are at times quite strict restrictions. English history, for example, is “ambiguous at best” and the Court “see[s] little reason to think that the Framers would have thought it applicable in the New World. It is not sufficiently probative to defend New York’s proper-cause requirement.” Of course, the Court acknowledged that “[w]hen handguns were introduced in England during the Tudor and early Stuart eras, they did prompt royal efforts at suppression.” But the Court said that this tradition faded by the time of the founding.

Then, as to evidence of early colonial practice, the Court cited three colonial restrictions the state invoked, but cautioned that “we doubt that three colonial regulations could suffice to show a tradition of public-carry regulation.” It then went on to distinguish those regulations. Then, curiously, it said: “Regardless, even if respondents’ reading of these colonial statutes were correct, it would still do little to support restrictions on the public carry of handguns today.” Apparently even on-point historical traditions have a shelf life that modern circumstances can render irrelevant. The rationale is worth quoting in full because it seems to me to turn historical inquiry on its head:

Whatever the likelihood that handguns were considered “dangerous and unusual” during the colonial period, they are indisputably in “common use” for self-defense today. They are, in fact, “the quintessential self-defense weapon.” Thus, even if these colonial laws prohibited the carrying of handguns because they were considered “dangerous and unusual weapons” in the 1690s, they provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today.

(Citation omitted). So contemporary usage nullifies past practices. It’s really unclear how this is consistent with the analogical methodology the opinion earlier recited: the how and why seem to line up between these old regulations and New York’s regime—they comparably burden public carry and were comparably justified. Then, too, the Court rejected another similar law, writing that “we cannot put meaningful weight on this solitary statute.” (There’s a theme of treating laws in isolation and then remarking that the Court cannot rely on isolated laws to justify New York’s.)

Turning to post-enactment of the Second Amendment laws, the Court acknowledged that “[o]nly after the ratification of the Second Amendment in 1791 did public-carry restrictions proliferate.” But none of those laws—common law offenses, carry bans, or surety statutes—supported New York. The Court read the laws and state court decisions upholding bans on concealed carry to mean that states could ban open or concealed but had to permit one. (In fact, the reasoning of several of those cases suggests that open carry might be constitutionally protected but that concealed carry was not. Heller itself explicitly recognized the latter point in a line that, interestingly, Justice Kavanaugh’s concurring opinion—which otherwise reproduces Heller’s language on exceptions—omits.) The Court also rejected a full carry ban for handguns in the New Mexico Territory from 1860, writing that “[t]his extreme restriction is an outlier statute enacted by a territorial government nearly 70 years after the ratification of the Bill of Rights, and its constitutionality was never tested in court.”

Later, in rejecting surety statutes as insufficiently analogous, the Court acknowledged that “[i]t is true that two of the antebellum surety laws were unusually broad in that they did not expressly require a citizen complaint to trigger the posting of a surety.” But, said the Court, the burden was slight: “we have little reason to think that the hypothetical possibility of posting a bond would have prevented anyone from carrying a firearm for self-defense in the 19th century.” The Court also dismissed criticism from the dissent that “the absence of recorded cases involving surety laws may simply ‘show that these laws were normally followed.’” Sure, the Court said, that might be the case, but “the burden rests with the government to establish the relevant tradition of regulation,” and along with the other ways the Court saw to distinguish surety laws, “we consider the barren record of enforcement to be simply one additional reason to discount their relevance.” Note the contrast between this description of absence-of-records and how the Court assured that sensitive place laws were okay precisely because there was no record of dispute about them. I think that ought to give some hesitation about accepting the Court’s reassurances at face value.

The Court summarized its view of antebellum regulation as supporting the government’s authority over the manner of carrying—noting, for example, that “[u]nder the common law, individuals could not carry deadly weapons in a manner likely to terrorize others” and that surety laws “provide[d] financial incentives for responsible arms carrying.” But that did not extend to restricting the right to carry to those who could show good cause.

When the Court turned to evidence surrounding the Fourteenth Amendment’s ratification in 1868, it again underscored the limited nature of its historical analysis: “we are not obliged to sift the historical materials for evidence to sustain New York’s statute,” because the state bears the burden. But it nonetheless surveyed some evidence it found. It started with Dred Scott—not to condemn the decision, but to use it to bolster the case for a broad right to publicly carry. Justtice Thomas writes that Justice Taney even subscribed to his view because Taney’s “parade of horribles” of recognizing the citizenship of Black Americans included allowing them “to keep and carry arms wherever they went.” (Emphasis by Thomas.) It’s very strange to see Dred Scott—the paradigmatic anticanonical case—cited approvingly. One might wonder why, if its reasoning about the citizenship of Black Americans is so resoundingly rejected today, we should still think it got this other legal issue correct. But even besides that, the throwaway line in Dred Scott is quite clearly incorrect, since even Justice Thomas acknowledges that on any understanding of the public carry right, it did not grant a right to carry “wherever” someone wants—private property can obviously be off limits, as can the sensitive places that the opinion assured are grounded in historical precedent.

The Court then noted the efforts of many states to restrict arms-carrying by Black Americans, highlighting that the 39th Congress meant to counteract these restrictions. It dismissed as irrelevant, however, military orders during Reconstruction that forbid the carrying of deadly weapons.

The Court next homed in on a Texas law passed immediately after the Fourteenth Amendment’s ratification that the state and federal government relied heavily on in their briefing. That law forbid carrying handguns without “reasonable grounds for fearing an unlawful attack.” It was upheld twice by the Texas Supreme Court in the span of a few years. And that law, the Court “acknowledge[d]” did “support New York’s proper-cause requirement.” Yet that support was not sufficient because, the Court said, the law and the court decisions were “outliers.” “[W]e will not,” declared the Court, “give disproportionate weight to a single state statute and a pair of state-court decisions.”

Finally, the Court turned to territorial regulation from the late 1800s. That evidence is limited in value, the Court said, because of its distance from the Second Amendment’s ratification. (The Court denied that 20th century laws were relevant at all and refused to look at it, all without explaining how Heller could have blessed felon-in-possession laws that were only enacted in the 20th century.) On the territorial laws, it noted that two territories barred handgun carry in towns, cities, and villages, two others barred all firearm carry in those places, and one barred handgun carry everywhere. Again, the Court found this regulatory tradition distinguishable. Of territory-wide laws in five dispersed areas, the Court said, “the bare existence of these localized restrictions cannot overcome the overwhelming evidence of an otherwise enduring American tradition permitting public carry.” The laws there were “exceptional” and that is apparently bolstered by the fact that the territories were sparsely populated in 1890.

Once again, the Court said, “we will not stake our interpretation on a handful of temporary territorial laws that were enacted nearly a century after the Second Amendment’s adoption, governed less than 1% of the American population, and also contradict the overwhelming weight of other, more contemporaneous historical evidence.” (Quotation marks and alterations omitted). Continuing on, the Court said the laws were rarely challenged so it could not judge “the basis of their perceived legality.” Note, again, what it means to find no evidence of challenges here versus in the context of sensitive places. And, said the Courts, courts that did uphold broader bans sometimes did so on grounds that Heller dismissed (i.e., militia oriented grounds). Thus, “[a]bsent any evidence explaining why these unprecedented prohibitions on all public carry were understood to comport with the Second Amendment, we fail to see how they” can shed light on the meaning of that provision. Finally, the Court also distinguished the strict territorial laws because they were temporary.

In summary, the Court declared that its “long journey through the Anglo-American history of public carry” failed to support the state’s position. A few “outliers” here and a few “outliers” there were not enough to support New York. Justice Thomas concluded the opinion with a nod to the “second class” theme that he’s been raising repeatedly since Heller. The Court won’t, he said, apply a whole different set of rules to the Second Amendment by allowing officials to have discretion over its exercise. But, of course, the Court did in fact impose a whole different set of rules in requiring states to come up with historical analogues to justify regulation and eschewing the type of means-end scrutiny the justices routinely applies in First Amendment cases and other areas of constitutional law.

In another post, we’ll dive more deeply into the concurrences and dissent. For now, I want to highlight a few aspects of the opinion that stood out to me. One is that this opinion reads like a full-on Justice Thomas opinion that supercharges the Second Amendment right in the way he has been calling for in dissents from denials of cert for years. I’m a little surprised to see he got all five other Republican-appointed justices to sign on in full. That wasn’t as surprising for the result of invalidating the New York law, but was surprising to me for the approach of rejecting the two-part framework and fully adopting the history-only method.

Another thing that stood out is that the majority does not repeat the assurances from both Heller and McDonald that there are a set of laws that are presumptively constitutional, like laws prohibiting certain people from possessing guns or regulations on the commercial sale of arms. (A concurrence does, but the majority opinion—made a majority only by the two justices on that concurrence—doesn’t). That’s a glaring omission to me, and just reaffirms further that Justice Kennedy’s absence made all the difference here.

I was also struck by just how many times the opinion calls something that looks as strict or stricter than New York’s law an “outlier” or “exceptional” law. One might think that outlier status is the type of thing a legal tradition loses when there’s that many to distinguish away.

Finally, in this opinion, there’s nothing about government leeway to regulate guns differently in differently-situated geographic locations. No recognition that the needs of urban and rural places might be different, and a rejection of laws specifically allowing for greater regulation in populated areas. That is a bit surprising given that Justice Thomas at oral argument appeared to lean into the urban-rural divide, asking if New York could regulate differently in New York City and upstate.

I’ll end this very blog post by just registering some concern. The opinion’s requirement that courts only look to history in deciding Second Amendment cases is likely to have a monumental impact in lower courts and on various state laws. And the way the Court in this opinion assessed history, distinguishing away all potentially relevant analogues, I think should rightly worry those who fear that a historical test just masks value judgements and judicial discretion that is at least—for whatever else can be said of it—more transparent in the two-part framework. Bruen calls for historical method, but truncates it and chops it apart. On Bruen’s account, Heller can falsify history—making traditions, laws, and cases irrelevant to the analysis—but cannot itself be falsified. That’s an odd way to employ history.

[1] In holding that Heller already rejected means-end scrutiny, the Court dismissed Heller’s own insistence that the D.C. law would fail under “any of the standards of scrutiny” the Court applies to constitutional rights, its express rationale for declining to adopt Justice Breyer’s proposed proportionality analysis (because it did not match any of the levels of scrutiny the Court has applied to other rights), and its emphasis that it was not deciding a standard of review because there would be plenty more cases to resolve that question.

The Bruen Opinion

Yesterday the Supreme Court issued its Bruen decision, holding that NY’s strict concealed carry law is unconstitutional and mandating that lower courts assess Second Amendment claims by reference only to history. We’ll be writing much more about it here, but today we have the Center’s annual firearms law works-in-progress workshop, so I’ll just post a link to my Twitter thread that captured my live reaction to the opinion and some aspects of the majority, concurrences, and dissent that I felt were especially noteworthy.


Thread: https://twitter.com/JacobDCharles/status/1539979462984564738?s=20&t=kmXVjesc4VN4VnTVSGWHsw 

NYSRPA v. Bruen and the Future of the Sensitive Places Doctrine

As we await the Supreme Court’s decision in NYSRPA v. Bruen—which will address the extent to which states can regulate public carry through licensing—the question of whether states can prohibit firearms in specific locations has become increasingly salient. During the Bruen oral argument, the justices posed hypothetical questions as to whether states could restrict firearms on university campuses or the New York City subway, at sports stadiums or bars, or in Times Square on New Year’s Eve. These questions referred to what is known as the “sensitive places” doctrine, which originated in a passage in Heller stating that “nothing in our opinion should be taken to cast doubt on . . . laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” Based on this passage, the lower courts have upheld firearms restrictions in locations that they have determined to be particularly sensitive, relying on factors including the presence of children or large crowds, historical prohibitions in those locations, or potential conflicts with other constitutional rights.

If the Court’s decision in Bruen strikes down New York’s law and limits states’ ability to restrict public carry, state and local governments are likely to pass more sensitive place restrictions, with Second Amendment challenges to these laws likely to follow. In anticipation of this litigation, some conservative groups and writers are now advocating for an extremely restrictive approach to sensitive places that looks only at whether the government has provided strict security measures, such as metal detectors and security guards, in a particular location. This argument appeared in the right-leaning Independent Institute’s amicus brief in Bruen, as well as a recent Volokh Conspiracy blog post, both of which suggested that only locations with the level of security of an airport terminal could be labeled as sensitive. Concerningly, this narrow view appeared to gain traction with Justice Alito, who asked petitioners’ counsel at oral argument whether courts should “analyze the sensitive place question by asking whether this is a place where the state has taken alternative means to safeguard those who frequent that place,” citing as an example courthouses “where everybody has to go through a magnetometer and there are security officials.”

Our article, NYSRPA v. Bruen and the Future of the Sensitive Places Doctrine: Rejecting the Ahistorical Government Security Approach, recently published in the Boston College Law Review Electronic Supplement, responds to these arguments and demonstrates that the “metal detector and security guard” approach to sensitive places is inconsistent with our nation’s history of regulating public carry and both historical and present-day case law, including Heller.

As a historical matter, location-based firearms restrictions existed at the Founding alongside already restrictive public carry laws. For example, in 1776 Delaware and Maryland prohibited firearms at election grounds. Shortly after, public universities such as the University of Georgia and University of Virginia prohibited students from possessing firearms on campus. These restrictions expanded during the Reconstruction era: a number of states enacted prohibitions in locations such as churches, schools, polling places, ballrooms, or other social gatherings or public assemblies. Notably, none of these places had heightened government security measures. And in fact, state courts upheld several of these laws against constitutional challenges, emphasizing that carrying firearms in these locations would be “improper” and “shocking to all sense of propriety” due to the nature of the location, rather than considering the level of government security.

The government security approach also fails to comport with the post-Heller case law on sensitive places in state and federal courts. The D.C. Circuit in United States v. Class explicitly rejected this approach, explaining that it would be contrary to Heller itself. As Class explained, “[m]any ‘schools’ and ‘government buildings’—the paradigmatic ‘sensitive places’ identified in Heller I—are open to the public, without any form of special security or screening.” Instead, when considering whether a location is a sensitive place, courts should consider “the people found there” or the “activities that take place there.” Since Heller, courts have examined a variety of factors that could make a location particularly unsuitable for public carry, such as the likelihood that children are present, the density of people in a location or the use of a location for large public gatherings, the presence of alcohol, whether the property is publicly or privately owned, or whether it is a location where people gather to engage in expressive or other constitutionally-protected conduct.

Ultimately, a singular theory for identifying sensitive places is difficult to articulate. The concerns supporting firearms prohibitions in, for example, bars, are obviously very different from those justifying prohibitions at public parks or election precincts. That said, and as our article discusses in more detail, the history and case law clearly show that a sensitive places doctrine based solely on the presence of enhanced security measures––such as metal detectors and security guards–is inconsistent with both the historical understanding of the Second Amendment and the approach taken by modern courts.