[The scholarship highlighted in this post does not necessarily represent the views of the Duke Center for Firearms Law.]

Two new pieces of student legal scholarship are now posted examining aspects of the Bruen test.  First, in a note forthcoming in the Yale Law Journal, Josh Hochman “survey[s] rules and regulations promulgated by railroad corporations in the nineteenth century, [which he] argues . . . reveal an historical tradition of regulating passengers’ firearms.”  Hochman also asserts more broadly that “[i]ncorporating the history of non-governmental actors may have the effect of illuminating new sites where the nation has historically regulated guns in public.”  This is a fertile ground for post-Bruen research and scholarship, and at least one federal judge has relied in part on rules promulgated by private corporations when ruling on a Second Amendment challenge.  Second, in a comment that will be published in the Penn Law Review, R. Brian Tracz assesses the historical background of pre-trial firearm deprivation from criminal defendants, evaluates potential analogues, and argues “that category-wide firearms regulations of pretrial defendants without an individualized determination of dangerousness do not fit into any historical tradition of firearm regulation—including the tradition of firearm regulation for dangerous individuals.” 

Josh Hochman, The Second Amendment on Board: Public and Private Historical Traditions of Firearm Regulation, Yale L.J. (forthcoming)

Abstract:

This Note argues that the Supreme Court’s Second Amendment jurisprudence allows, and may require, courts to consider sources of analogical precedent outside of formal lawmaking. Taking public transportation as a case study, this Note is also the first account to chart how historical firearm regulations in sites of transportation should inform the constitutional basis for regulating guns in contemporary trains and subways. Surveying rules and regulations promulgated by railroad corporations in the nineteenth century, it argues that these sources reveal an historical tradition of regulating passengers’ firearms. This case study instructs that courts and litigants can honor Bruen’s history-based test only by considering all of the nation’s history of firearm regulation, not just statutes.

Brian Tracz, Bruen and the Gun Rights of Pretrial Defendants, 172 U. Penn. L. Rev. _ (2023)

Abstract:

New York State Rifle & Pistol Ass’n v. Bruen announced a novel constitutional test for gun regulation. This test requires gun regulation to be “consistent with this Nation’s historical tradition of firearm regulation.” This Comment provides the first scholarly sketch of historical pretrial firearms regulations. Based on this history, I argue that forbidding non-dangerous individuals awaiting trial from possessing a firearm violates the Second Amendment under Bruen. I also reject attempts to justify gun regulation by classifying defendants as categorically unvirtuous or dangerous, by appealing to the “seriousness” of a crime (e.g., as a felony), or by analogizing pretrial release conditions to historical surety laws.

I also draw a big-picture conclusion about the Court’s historical tradition analysis. Under Bruen, courts need to fabricate a suitably described historical tradition by which to compare historical and modern firearm regulations. So despite Bruen’s promise to reign in judicial discretion, its historical-tradition analysis ultimately increases judicial discretion by allowing courts to set the relevant description by which to compare historical and modern gun regulations.

This guest post does not necessarily represent the views of the Duke Center for Firearms Law.

Earlier this year, the American Bar Association adopted Resolution 603, a policy resolution about permitting or banning guns on college campuses. Resolution 603 was a proposal from the ABA’s Standing Committee on Gun Violence, which in the past has proposed model legislation or advocated for specific firearm regulations. The Standing Committee’s publications are an under-appreciated resource for policymakers and researchers in the field of firearms policy, as they provide extensive background and comprehensive citations to state statutes on specific topics related to gun laws.

The American Bar Association itself exerts significant influence over our legal system – not only through its role in the selection and vetting of federal judges and its promulgation of the Model Rules of Professional Conduct, but also through its advocacy on controversial policy issues and model legislation. (For the ABA’s own overview of its efforts and impact on many fronts in our legal system, see the ABA’s 2022 Impact Report; for a positive look back at the ABA’s accomplishments, see here; for critiques, see here and here).

Resolution 603, adopted by the ABA House of Delegates at its midyear meeting in February 2023, urges state and local governments to enact laws and regulations banning guns on college campuses, or at least to permit higher education institutions to restrict the presence of firearms on their own campuses. The Report that accompanied Resolution 603 mentions that 16 states and the District of Columbia “have effectively prohibited concealed carrying of guns on campus,” and provides citations for each of the relevant state statutes. Two states, Colorado and Utah, allow concealed carry permit holders to have guns everywhere on public college campuses in those states. An additional twelve states permit guns in certain areas on public college campuses: Arkansas, Georgia, Idaho, Kansas, Minnesota, Mississippi, Ohio, Oklahoma, Oregon, Tennessee, Texas, Virginia, and Wisconsin.

The report sets forth several arguments in support of banning guns completely from college campuses. First, college students are more at risk for suicide than most other segments of the population, and access to firearms substantially increases both the likelihood of a suicide attempt and the likelihood that a suicide attempt will be fatal (the footnotes cite many sources to support these propositions about the association between firearm access and suicide). Second, college campuses already have an unfortunate prevalence of interpersonal violence, such as sexual assault and intimate partner violence, and easy access to firearms escalates the frequency and severity of such violence. Third, the increased presence of firearms on campus is likely to raise the incidence of other campus crimes, accidental shootings (especially on campuses with widespread alcohol and drug abuse), and thefts of firearms (college students are generally not careful about safe storage of weapons).

An additional argument in the report is the concern about the social atmosphere on college campuses, even apart from increases in campus shootings. “Forcing guns onto college campuses also inhibits the free exchange of ideas in the classroom by making students and faculty feel less safe to express their views,” the report argues. The presence of firearms can have a chilling effect on the free expression of ideas, especially ideas that are controversial. Even when there are no overt threats or brandishing, knowing that many fellow students passionately disagree with certain viewpoints – and that an unknown number of those students are armed – can be intimidating for those who would like to express contrarian views. The report cites polls that reveal most students and faculty prefer not to have guns permitted on campus.

The report concludes by arguing that campus gun bans are permissible, even under the Supreme Court’s new analytical rubric set forth in New York State Rifle & Pistol Association v. Bruen. The writers note Justice Kavanaugh’s concurrence in Bruen which observed, “[n]othing in [the Court’s] opinion should be taken to cast doubt on . . . laws forbidding the carrying of firearms in sensitive places such as schools.”

Anticipating the objection that guns reduce crime by enabling students to defend themselves, or by deterring would-be assailants, the report argues, “There is no credible evidence to suggest that students carrying guns will reduce violence on college campuses. Instead, evidence suggests that permissive concealed gun carrying generally will increase crime and place students at risk.”

I agree with the ABA’s position, and I am thankful that I teach at a private institution that still bans firearms in its facilities, even though the public schools in my state must allow guns on their campuses, at least in certain areas. My law school is a downtown commuter school, though – there is no student housing, no attached parking garage, and the entire facility has only one entrance by which students and faculty may enter, under the watchful eye of the front desk security guards. The question is admittedly more complex when a campus includes student residences and long-term/overnight parking for student vehicles. Even at my institution, I recognize that the ban does not prevent, in any absolute sense, someone with a concealed firearm from entering the building (we do not have metal detectors and student bags are not searched, unlike the courthouses in town); there is always some risk that an active shooter could get inside the building. But I think the ban induces most students not to bring guns to school, and this reduces the chances of accidental shootings, thefts of firearms, impulsive suicides on campus, or that occasional altercations between students will escalate into a fatal incident.

In a post last November, Jake summarized a remand order from the Michigan Supreme Court in Wade v. University of Michigan: a challenge to the university’s ban on campus possession of firearms with certain limited exceptions.  The Michigan Supreme Court sent the case back to the appellate level last fall after Bruen, and Justice David Viviano concurred to articulate questions about how the Bruen test might apply in the campus context:

Even if certain restrictions were historically permitted on college campuses, another important question arises: 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?

In short, Justice Viviano appeared to reject the notion that sensitive-places bans on college campuses present a straightforward inquiry and are constitutional under the umbrella of “schools.”  Instead, he questioned whether “[m]any areas on campus, such as roadways, open areas, shopping districts, or restaurants, might not fit the ‘sensitive place’ model suggested by Heller—[and] may instead be more historically analogous to other locations that did not have gun restrictions.” 

I believe Justice Viviano’s approach is both unnecessarily strict and inconsistent with other aspects of Bruen.  On July 20, the Michigan Court of Appeals appeared to agree, affirming its prior ruling that the university’s ban is constitutional and dismissing the plaintiff’s claim for injunctive relief.  After summarizing the parties’ supplemental post-Bruen briefs, the panel reviewed Bruen and its treatment of sensitive places.  The decision found that the plaintiff’s proposed course of conduct—keeping and bearing a handgun on the University of Michigan campus—was protected by the Second Amendment.  Moving on to the historical analogy step, the panel responded briefly to Justice Viviano’s concurrence in the remand order.  Noting that Justice Viviano focused on 1791 as the relevant historical point, the panel consulted a 1773 dictionary to determine that the term “school” included universities at that time.  The panel also found it relevant that: (1) a dictionary printed close in time to 2008, when Heller placed schools within its list of sensitive places where guns can be banned, similarly included “universities” within the term “school,” and (2) the law review article cited in Bruen’s discussion of sensitive places assumes that universities are schools.

The panel used these definitions and facts to determine that “the term ‘school’ was first used in Heller and was used broadly, without any limitations [. . . . and] in a colloquial sense.”  The decision also noted other courts which have found universities to be “schools” and thus sensitive places under the Second Amendment.  The panel rejected the plaintiff’s argument that some portions of the Michigan campus might be sensitive while others are not, and declined to interpret the Court’s endorsement of schools as sensitive places to merely establish a presumption of sensitivity that can be rebutted.  Finding the university’s rules do not violate the Second Amendment, the panel held that “the trial court properly granted the University’s motion for summary disposition.”

Ultimately, I am not sure that parsing the word “school” by consulting historical dictionaries is all that persuasive as a method of judicial analysis.  It’s also notable that the decision cites dictionary definitions of the word “school” from 1828, 1773, and 2003.  But, because the rule at issue is a state university ordinance, I think there’s actually a strong argument that the historical inquiry should focus on 1868 (as I’ve discussed in prior posts here and here).  The decision in Wade also illustrates yet another broad cleavage in how lower courts judges are applying Bruen.  While Wade appears to take the Supreme Court’s dicta endorsing sensitive places bans in “schools” and work backwards to inquire into the semantic meaning of that term, other decisions—such as the recent opinion by District Judge Carlton Reeves in United States v. Bullock (which we covered here) and the Third Circuit’s en banc decision in Range (which we covered here)—reject that course in challenges to the federal felon prohibitor.  As Judge Reeves wrote, quoting a 1944 Supreme Court decision:

Treating dicta as binding violates the one doctrine more deeply rooted than any other in the process of constitutional adjudication: that we ought not to pass on questions of constitutionality unless such adjudication is unavoidable.

In general, I think Judge Reeves has the better of this argument (although, as he notes in Bullock, in some circuits lower courts may be bound by precedent to follow even dicta from the Supreme Court).  The Supreme Court has not directly addressed the constitutionality of the felon-in-possession law, nor has it directly addressed the question of whether universities are sensitive places where guns can be prohibited. That does not necessarily mean the Michigan campus gun ban is unconstitutional, or that Heller’s endorsement of certain regulations is without import.  Rather, it means that courts should not rely solely on dicta from a case where the Supreme Court did not confront or fully consider the specific legal question, without further analysis.  Scholars have also persuasively argued that, “[i]nstead of simply isolating each location . . .  judges should evaluate the reasons behind the sensitive places doctrine itself.”

Wade appears to implicate tricky historical questions including the prevalence of historical firearm bans on university campuses, whether those bans are representative considering the student population at the time, and why those bans were put in place.  Jake’s prior post describes Founding era campus firearm restrictions at the University of North Carolina and the University of Virginia; the Virginia rule, which banned students from keeping or using weapons on campus, was passed by a board including James Madison and Thomas Jefferson in 1824.  The Center’s Repository of Historical Gun Laws also contains a number of other campus gun restrictions from the 1700s and 1800s, available through this search, including a subsequent University of North Carolina regulation from 1838 and colonial-era laws restricting guns on campus at Harvard and Yale.  While further historical research is needed into the justifications for these bans, the introductory sections or preambles of campus rules may provide some clues (courts might also look to where within the rules the firearms prohibitions are located, and to the intent of the surrounding provisions).   

It is also notable that the early American history of higher education is largely one of private universities often associated with religious denominations.  In particular, large public land-grant universities—which today often support massive student bodies and may create the perception that public college education is predominant—did not proliferate until the late 1800s after the passage of the Morrill Act.  What’s more, an exceedingly small percentage of American young adults attended college up until the middle of the 20th century: while Founding era data is elusive, the number remained far below 10% of all 18 to 21 year olds as late as 1900 (see Figure 1 below).  And both private and public colleges were almost entirely closed to women and minorities for much of American history. 

Figure 1: College students as a percentage of 18-to-21-year-old U.S. population[1]

This historical background raises a number of complications with applying the Bruen test to campus gun prohibitions.  First, it makes especially little sense in this context to treat the absence of regulation as proof of unconstitutionality when one considers the extremely limited role higher education played in American society during the relevant time period.  One certainly wouldn’t expect to see legislative involvement, and even a small number of school rules might be evidence of a broad tradition given the possibility that only rules from a subset of prominent colleges have been preserved.  Second, if judges limit themselves to legislation or public university rules, they may well be ascribing importance to an absence of regulation that is merely a consequence of the tendency toward private college education at the time (rather than any judgment about the right to keep and bear arms).  I think this fact counsels strongly in favor of including private university rules within the Bruen analysis.  Third, judges may be making decisions that disproportionately impact women based solely on historical laws that applied only to all-male colleges and which women had no input in developing (the same general point applies, with varying degrees of force, to different minority groups).  If women and minorities were not attending college around the time of the Founding, or in 1868 for that matter, they surely also were not involved in considering or enacting regulations governing how guns could be kept and carried on college campuses.  This is a broader problem with originalism, of course, but it’s especially salient in higher education where the legacy of exclusion is lengthy and entrenched.  

As for Wade, the case may be appealed to the Michigan Supreme Court.  The state’s high court flipped from majority-Republican to majority-Democrat in 2020.  If the state supreme court hears the appeal, it seems fair to expect that Justice Viviano (at least) may reach a different conclusion about the university’s gun prohibition than the appellate panel. 

[1] Claudia Goldin and Lawrence F. Katz, The Shaping of Higher Education: The Formative Years in the United States, 1890 to 1940, 13 Journal of Economic Perspectives 37, 41 (Winter 1999), available at https://scholar.harvard.edu/goldin/files/the_shaping_of_higher_education_the_formative_years_in_the_united_states_1890-1940.pdf.

On June 28, Judge Vernon Broderick of the Southern District of New York issued a decision in Goldstein v. Hochul denying a motion for preliminary injunction of New York’s post-Bruen law designating places of worship as sensitive locations where guns are prohibited.  The plaintiffs in the case wish to carry concealed firearms—for which they have concealed carry permits—at their synagogue during religious services.  New York’s post-Bruen gun law, the Concealed Carry Improvement Act or CCIA, criminalizes the possession of firearms in a list of sensitive locations including “any place of worship or religious observation” (among other provisions).  The state amended the law, effective May 3, 2023, in part to modify the “place of worship” ban by adding an exception for “those persons responsible for security at such place of worship.” 

The bigger picture here is that a broad challenge to multiple provisions of the CCIA, Antonyuk v. Nigrelli, is pending before the Second Circuit (we covered the series of district court decisions in Antonyuk enjoining large portions of the law here, here, and here).  The Second Circuit stayed the ruling in Antonyuk pending appeal and heard oral argument in the case on March 20.  A decision from the Second Circuit panel can be expected shortly and, depending on the result, I believe the case is likely to ultimately be appealed to the Supreme Court—where two justices have already observed that the case implicates “novel and serious questions” and endorsed the district court decision as “thorough.”  

In another CCIA opinion issued shortly after the Antonyuk oral argument, Judge Nelson Román of the SDNY stayed his decision in Frey v. Nigrelli on many aspects of the requested injunction, pending the Second Circuit’s decision in Antonyuk and in the interests of judicial economy.  Judge Román did conduct a Bruen historical-tradition analysis of the state’s locational ban in Times Square (although he found no standing to challenge that provision) and on public transportation.  He relied on “a historical tradition of banning firearms in ‘fairs’ or ‘markets’ or areas [where] large crowds [are present]” to conclude that the Times Square ban was likely constitutional, and he upheld the subway ban based in part on a review of evidence regarding gun restrictions by private railroad companies in the late 1800s.

Antonyuk enjoined the prohibition in places of worship, but Judge Suddaby emphasized that the language of the original ban (which did not contain a security exception) was overly burdensome when compared to potential analogues due to the absence of such an exception.  Under the analysis in Antonyuk, then, the amended law may well pass constitutional muster—but this remains something of an open question.  Another challenge to the “place of worship” ban, Hardaway v. Nigrelli, was consolidated with Antonyuk and is also pending at the Second Circuit (we covered the district court decision in Hardaway here).

In Goldstein, Judge Broderick first determined that certain individuals (Governor Kathy Hochul and Attorney General Letitia James) were not proper defendants because they cannot personally enforce the statute—however, the judge found that the claims were properly brought against other defendants, including the police commissioner.  Judge Broderick then concluded that the plaintiffs had standing to challenge the “place of worship” ban, finding that their “desire to carry concealed firearms into places of worship” encompassed a constitutional interest and was proscribed by the CCIA. 

Turning next to the likelihood of success on the merits, Judge Broderick summarized his view of locational restrictions post-Bruen:

Although the Court does not explicitly define what constitutes a sensitive place, it does address specific examples that provide lower courts with some guidelines on the limits of doctrine. For example, we know that it would be “too broad[]” to classify the entire island of Manhattan simply because it is “crowded and protected generally by the New York City Police Department.” However, it is also not so narrow that the Government must find an identical law from the relevant historical periods for the modern-day regulation to be allowed.

The judge declined to focus exclusively on the Founding era, instead observing that Bruen suggests “evidence from around both time periods [1791 and 1868] are instructive regarding the scope of the right.”  The judge then relied on a multitude of state laws from the post-Civil War period banning guns in places of worship to “find[] that there is a robust tradition of considering houses of worship as Sensitive Locations.”  Judge Broderick also determined that colonial era laws and antebellum public carry restrictions constituted relevant “historical precedent for the restriction of firearm-carry for law-abiding citizens either in specific physical locations or for public safety reasons”—and he summarized state-court decisions upholding those laws and, in some instances, noting that carrying guns in certain locations was “not [] appropriate,” “little short of ridiculous,” and “shocking.”  Briefly addressing a handful of colonial laws that required individuals to carry guns to churches, Judge Broderick found that “these statutes are rooted in racism not the Second Amendment” and “should not be considered or at a minimum deserve little or no weight in the analysis.” 

The plaintiffs in Goldstein also brought First Amendment, equal protection and vagueness challenges to the CCIA’s “place of worship” ban.  The judge rejected the plaintiffs’ First Amendment challenges because “[c]arrying a gun is not a religious act and cannot be analogized to praying or being able to enter one’s house of worship.”  He determined that the equal protection challenge could not succeed because plaintiffs had not shown they were treated differently from similarly situated groups under a generally applicable ban and because no allegations suggested that any such differential treatment is based on their religion.  Finally, Judge Broderick rejected the vagueness challenge because “the term ‘place of worship’ has a long history of being used within a legal context and also has a clear and broadly understood common meaning.”

I suspect that New York’s May amendment to exempt those “responsible for security” at a place of worship from the locational ban moots ongoing legal challenges to that specific portion of the CCIA.  And I also believe the Second Circuit will reverse that aspect of Antonyuk based on the changed factual circumstances.  That said, Judge Broderick’s analysis is generally compelling in that it provides a persuasive explanation for why the absence of specific locational regulations (in the same place) at the time of the Founding should not be outcome-determinative.  The Court in Bruen observed that “the historical record yields relatively few 18^th– and 19^th-century ‘sensitive places’ where weapons were altogether prohibited.”  And “legislative assemblies,” which Bruen identifies as a settled sensitive location, where by no means off limits to guns in most places for much of early American history—Judge Broderick notes, for example, that “throughout the mid-nineteenth century, U.S. Congresspeople were regularly armed when they attended Congress.”  While the district court decision in Antonyuk generally looked for historical “twins,” or historical laws that banned guns in the same location as the modern law, I think Goldstein is likely correct that the inquiry should be broader given that even those specific locations where the Supreme Court has endorsed locational bans on gun carrying were not widely regulated at the time of the Founding. 

Ultimately, Judge Broderick found that “the number of historical legislative references that support a finding that a house of worship is a sensitive place far surpasses the number of references cited in Bruen and Heller as support for finding schools and government buildings as sensitive places.”  The historical laws banning guns specifically in churches date from the post-Civil War period.  But I think it’s a fair interpretation of Bruen to analyze to early public carry restrictions more broadly, lest Bruen be applied as a “straightjacket.”  Bruen also makes the presence or lack of “disputes regarding the lawfulness of such prohibitions” constitutionally relevant, hence Goldstein’s reliance on case law from the mid-late 1800s regarding the impropriety of public carry of firearms in certain locations. 

I think the opinion is most subject to push back on the date question, as Judge Broderick relies heavily on laws and cases from the post-Civil War era.  But that is ultimately a question on which the Supreme Court will have to provide additional guidance.  By declining to decide whether challenges to state laws under the incorporated Second Amendment should rely on a historical record close in time to 1791 or 1868, and by substantively addressing potential analogues up to 1900 when deciding a state-law challenge, the Bruen court did not clearly instruct courts to focus narrowly on the Founding era (and the opinion could even be read to suggest the opposite).  I’ve written about that issue here and here and I see a strong argument for Reconstruction era evidence playing a major role in state-law challenges, but I also believe that Judge Broderick’s decision to “look to both time periods for historical evidence” is defensible under current precedent.

This is not an issue that arises naturally in Rahimi because that case deals with a Second Amendment challenge to federal law.  However, it is possible the government may advance a “total re-speaking” theory and attempt to rely on Reconstruction era history in Rahimi.  While regulatory interventions specifically addressing the problem of guns and domestic violence are a very recent innovation, more general interventions did exist in earlier time periods and some courts in the Reconstruction era did uphold assault convictions based on domestic violence (albeit while noting that “gentle restraint” was permissible). 

One final observation about Goldstein involves the judge’s decision to disregard colonial laws requiring some citizens to bring their guns to places of worship at certain times:

The laws cited by Plaintiffs concerning the mandatory carry of firearms in places of worship are rooted in racial supremacy, and had the reprehensible and shameful goal of preserving slavery. They should not be considered or at a minimum deserve little or no weight in the analysis of the history and tradition of the regulation of firearm carry by law-abiding citizens for self-defense.

That conclusion seems correct to me.  Unlike Reconstruction era history, where the relationship between gun regulation and race was often complex, there seems to be uncontroverted evidence that the colonial bring-your-gun-to-church laws were motivated by racism (and, as I’ve previously written, most of these laws were passed long prior to 1791, even though we tend to treat the colonial period as a single, compressed era).  Judge Broderick’s point here, however, is also relevant to the history of the Second Amendment itself.  As illustrated in a recent exchange on the blog between Noah Shusterman and Carl Bogus, many historians believe that slave control played some role in the decision to draft and ratify the Second Amendment—but how that motivation stacks up against other factors, such as pro-militia sentiment and fear of large standing armies, is hotly contested. 

On January 9, District Judge Renee Bumb issued a decision in Koons v. Reynolds granting a temporary restraining order of certain sensitive-places prohibitions in New Jersey’s newly-enacted gun law.  That law was enacted in late December in response to Bruen, and among other things it designated a lengthy list of sensitive places where guns are banned, switched the default rule for carrying guns on private property, instituted training and other application requirements to obtain a concealed carry permit, and required that those who carry handguns in public obtain liability insurance.  The law is similar in many respects to the one passed by New York shortly after Bruen was decided; many portions of New York’s law (including a number of the sensitive-places provisions) have been enjoined by lower federal courts, although those rulings are currently stayed pending appeal.  New Jersey’s regulation became effective when signed into law on December 22, the plaintiffs in Koons filed their complaint that same day, and Judge Bumb held a virtual hearing on the TRO motion on January 5.

The plaintiffs in Koons challenge five provisions of the new law (other plaintiffs have challenged additional provisions as well, in separate cases that are currently ongoing).  Three of these provisions are sensitive-places bans, which prohibit guns in (1) libraries and museums, (2) bars and restaurants where alcohol is served, and any other facility where alcohol is sold for consumption, and (3) entertainment facilities, including theaters, arenas, and performance venues.  The plaintiffs also challenge (4) New Jersey’s default rule that guns are prohibited on private property unless the owner consents, and (5) the state’s ban on functional firearms in vehicles (firearms must be unloaded and secured).

Judge Bumb first assessed two preliminary issues: the state’s argument that it should be given more time to justify the legislation in court, and the plaintiffs’ standing to challenge the relevant portions of the law.  The judge rejected New Jersey’s argument for additional time, noting that—in her opinion—New Jersey “[c]ertainly . . . anticipated challenges to the legislation and should have been better prepared to defend the legislation’s constitutionality.”  The judge also noted that six months have passed since Bruen was decided and that “there is no bona fide basis for this Court to withhold its ruling because the State says it needs more time to come forward with historical evidence that the Legislature represented it had at the time of the law’s passage.” 

As to standing, Judge Bumb found it sufficient that the plaintiffs were permit holders and had a general intention to carry when moving about in public—regardless of any “concrete plans to imminently visit the places for which they challenge [the law]’s provisions.”  The judge further observed that the provisions ban guns in “places that are generally open to the public and where ordinary persons like Plaintiffs would be expected to frequent upon occasion,” and that state officials “would not agree that they would not prosecute Plaintiffs for violations of the newly enacted legislation.” 

The opinion next turned to the plaintiffs’ likelihood of success on the merits of their Second Amendment claims.  In general, Judge Bumb read Bruen to “indicate a skepticism as to expanding the definition of ‘sensitive places’ based on the historical record.”  She further found that the relevant provisions implicate the Second Amendment’s plain text because they regulate the ability to carry a handgun for self-defense in public.  For museums and libraries, the judge rejected the government’s theory that these are “locations for government and constitutionally-protected activity” as “a stretch to say the least.”  Because she found that museums and libraries were in existence at the Founding, the state’s inability to point to historical bans in those specific locations was fatal.  Although Texas did prohibit guns in 1870 in “places where persons are assembled for educational, literary, or scientific purposes,” Judge Bumb deemed that law an outlier.

For bars and facilities serving alcohol, the judge rejected historical laws restricting gun possession by intoxicated individuals as “ha[ving] no relevance” to New Jersey’s law; another historical law put forward by the state applied only to military personnel.  New Jersey’s prohibition on guns in entertainment venues, the judge said, was likely unconstitutional because—while the state pointed to a historical tradition of banning guns in places “where crowds gather”—those laws included a malicious intent requirement, excluded certain individuals from their scope, or applied to locations (such as ballrooms) substantively distinct from modern-day entertainment venues. 

The judge found that, by enacting a private-property rule presuming no right to carry, “the State is, in essence, criminalizing the conduct that the Bruen Court articulated as a core civil right.”  Moreover, the judge determined that one historical law offered as support was limited to “address[ing] the problem of poaching and trespass,” and another (a Louisiana law that prohibited “carry[ing] fire-arms on the premises or plantations of any citizen, without the consent of the owner or proprietor”) was “historically inconsistent and unconstitutional.”  The judge drew a comparison to criminal trespass law, which normally presumes a right to enter private property unless a sign is posted, and found that laws in other states only created a non-carry presumption for private residences or dwellings (not all private property).  The opinion also registered concern that gunowners will be unable to determine where they are permitted to carry and that the law may therefore criminalize innocent conduct. 

The judge found the state’s vehicle restrictions similarly inconsistent with historical tradition because historical laws often exempted travelers or those “on a journey.”  Finally, Judge Bumb observed that “[t]he Court knows of no constitutional right that requires this much guesswork by individuals wanting to exercise such right.”  Because, in the judge’s view, the plaintiffs are unable to determine prospectively where they can and cannot take their guns, the law improperly deters protected conduct.  Judge Bumb enjoined the challenged provisions of New Jersey’s law.

First, the standing analysis in Koons is noteworthy because the decision seems to apply a different standard from both the Antonyuk litigation and the ongoing litigation challenging D.C.’s ban on guns in the Metro (Angelo v. District of Columbia, which we previously covered here).  In Antonyuk, Judge Suddaby held that “‘someday’ intentions—without any description of concrete plans, or indeed even any specification of when the ‘someday’ will be— do not support a finding of the ‘actual or imminent’ injury that our cases require.”  Therefore, he found that the plaintiffs in that case lacked standing to challenge restrictions in places such as Times Square.  In Angelo, the district court recently denied the plaintiffs’ motion for a preliminary injunction due to lack of standing.  The judge examined D.C. Circuit precedent and concluded that it was insufficient for plaintiffs to merely allege the intention to carry guns on the Metro but for the District’s ban—rather, without more (such as evidence that others had actually been arrested for bringing guns onto the Metro), the judge found the allegations too speculative.  While the approach to standing can vary significantly by circuit, Angelo’s position seems likely too strict, while the analysis in Koons appears too dismissive.  It’s not clear what the Angelo plaintiffs would need to do to obtain standing, short of actually exposing themselves to arrest and prosecution.  On the other hand, it’s hard to accept that an imminent, legally-cognizable injury results from the inability to carry a gun in a place where you may never set foot.  Do the Koons plaintiffs actually go to museums and libraries?  Surely some examination of that question is warranted, rather than relying merely on the fact that these locations are open to and frequented by members of the general public.

Second, the judge’s comparison to the law of criminal trespass points to the important issue of what notice is required to alert gunowners to whether they are committing a criminal offense when carrying on private property.  Judge Bumb observes that “the burden under the criminal trespass statute is not on the unsuspecting actor, but on the landowner to indicate to others not to trespass.”  The opinion also quotes an exchange from oral argument on the notice issue:

THE COURT: But I think you’re ignoring one salient fact, is that you’re now making it criminal for a person who has a license to conceal carry to not know in advance what that right is.

[New Jersey’s attorney]: So that’s right, Your Honor.

The practical problem here is that, under New Jersey’s new law, permit holders are not only barred from carrying in any location without explicit permission—they’re also required to determine in advance what the policy is for each location they intend to visit.  It isn’t immediately clear to me that the trespass comparison works, because there’s no suggestion that it would be unconstitutional for New Jersey to change its criminal trespass law in the same way it has changed its private-property gun law (to place the burden on those entering private property to determine whether or not they are permitted to do so).  That New Jersey, and other states, may have a different default rule in the criminal trespass context doesn’t speak to whether this rule is analogous to historical gun regulations.  But the opinion is correct to identify notice as a real problem lurking within the practical operation of such default switches.  One way to address this issue may be to remove “word of mouth” permission in both directions—business owners would then have to post a particular sign to permit guns, and gun owners would merely need to locate that signage (or the lack thereof) to obtain notice of each location’s policy.  As Jake Charles has described, states like Texas have legislated detailed instructions for signage indicating that guns are banned on private property; states switching to a “no carry” default rule could similarly ameliorate the notice issue, to some extent, by standardizing signage for allowing guns.

Third, it’s interesting that Koons seems to imbue the legislation’s reference to historical gun regulations with legal significance.  Judge Bumb rejected the state’s request for additional time to gather “historical evidence that the Legislature represented it had at the time of the law’s passage.”  But why should the fact that the legislature noted certain historical statutes in the law itself necessarily restrict the scope of the state’s defense of the law in court?  This holding seems to punish the state for having engaged in a survey of historical laws in the drafting process—therefore, according to the judge, state attorneys won’t be given time to collect any additional historical evidence during litigation.  That’s a somewhat odd result, especially given Bruen’s emphasis on resolving historical disputes by the “adversarial system of adjudication.” 

Finally, the Koons opinion is notably lacking in any analysis of whether historical and modern laws were comparably justified.  For example, it’s tough to imagine that historical laws restricting gun possession by intoxicated individuals were not justified on comparable grounds to modern laws restricting guns in bars and restaurants serving alcohol (alcohol and guns is, generally speaking, not a safe combination).  And historical laws restricting guns “where crowds gather” were likely similarly justified as laws restricting guns in entertainment venues and stadiums today (dense crowding and guns is, generally speaking, not a safe combination).  Yet discussion of how these laws were justified is nowhere to be found.  One way to read Koons is that it determines the result at the outset by reading into Bruen a profound skepticism of any sensitive-place restriction other than those regulating government buildings and schools (Judge Bumb references “a skepticism as to expanding the definition of ‘sensitive places’ based on the historical record”).  That’s an odd conclusion to draw from Bruen, though, because the majority explains that:

[C]ourts 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.

If the Court was skeptical about any expansion beyond the specific locations it identified, it would presumably have said as much rather than gesture to a non-existent set of “new” sensitive places. 

On November 7, Judge Glenn Suddaby of the Northern District of New York issued a 184-page opinion granting in part and denying in part the plaintiffs’ motion for a preliminary injunction of New York’s post-Bruen gun regulations in Antonyuk v. Hochul.[1]  Judge Suddaby previously analyzed the same plaintiffs’ likelihood of success on these claims in an August 31 advisory opinion which dismissed a predecessor suit for lack of standing, and in an October 6 opinion granting in part their request for a temporary restraining order of New York’s law.  We covered those prior decisions here and here.  The state appealed Judge Suddaby’s TRO ruling to the Second Circuit, which granted an interim stay of the TRO on October 12 pending a decision on the motion to stay by a three-judge panel.  The state also appealed the preliminary injunction decision, and the Second Circuit similarly granted a temporary stay of that decision, pending panel consideration, on November 15.  New York withdrew its appeal of the TRO as moot in light of the ongoing appeal of the preliminary injunction decision.   

In his November 7 preliminary injunction opinion, which came on the heels of a hearing held on October 25, Judge Suddaby enjoined the following requirements for concealed-carry license applicants:  the requirement to show “good moral character”; the requirement to provide a list of family members and cohabitants; the requirement to submit a list of social media accounts; and the requirement to submit “other information” requested by the licensing officer.  He also enjoined the state’s prohibition of guns in:  healthcare facilities; places of worship; public parks; zoos; airplanes, airports, buses and vans; establishments with a liquor license where alcohol is consumed; theaters, conference centers, and banquet halls; and any gathering of individuals to collectively express their constitutional rights to protest or assemble.  Finally, Judge Suddaby found the state’s default prohibition of guns on private property, when not explicitly permitted by the property owner, likely violated both the First and Second Amendments—and he enjoined that provision as well.

One notable aspect of the November 7 opinion is that Judge Suddaby reversed course from his earlier TRO decision in several areas.  First, he found that the plaintiffs lacked standing to challenge several locations on the state’s sensitive-places list because they hadn’t actually alleged a concrete intention to carry guns there.  The full list of locations where the judge found no standing to challenge the gun prohibition includes places such as government buildings; libraries; childcare facilities; summer camps; homeless and domestic violence shelters; building or grounds of any educational institution or college; public transportation outside of buses, vans, or airplanes; entertainment venues, racetracks and sporting events; and Times Square.  As to Times Square, the judge further suggested that—even if plaintiffs had shown an intention to carry there—he would likely have upheld the prohibition based on “an American historical tradition of banning firearms in this unique regularly congested commercial area filled with expressive conduct.”

Second, Judge Suddaby reached the opposite result from his TRO opinion when analyzing the plaintiffs’ likelihood of success as to certain challenges.  For example, Judge Suddaby struck down in their entirety the state’s good moral character requirement and its ban on guns in churches—previously, he had merely ordered the state to construe and apply those provisions to contain exceptions.  He struck down the requirement to provide “other reasonably necessary” information requested by the licensing officer, which he previously suggested was constitutional.  Judge Suddaby also found that the in-person interview requirement, which he previously temporarily restrained enforcement of, was equally or less burdensome than historical militia review laws and loyalty oaths, and therefore denied the plaintiffs’ motion as to those laws.

It is both normal and expected, to some extent, that the judge reconsidered aspects of his prior TRO ruling based on subsequent submissions and evidence presented during the preliminary injunction hearing.  Judge Suddaby signaled in his earlier ruling that he might do so.  And Judge Suddaby’s analysis of the plaintiffs’ standing to challenge locational restrictions, while unlikely to receive much attention, is both thorough and persuasive.  It also illustrates an important point likely to arise in future sensitive-places litigation:  it is crucial that judges closely scrutinize the plaintiff’s actual intention to carry guns in a prohibited location, lest courts allow the mere act of leaving one’s home with a weapon to automatically confer standing to challenge any location-based ban.  One of the plaintiffs in Antonyuk, a volunteer firefighter, argued that he had standing to challenge most, if not all, of the state’s locational restrictions simply because he might be called to fight a fire at one of those locations.  But Judge Suddaby properly rejected that argument, finding that the mere possibility of being called to one of those locations was not equivalent to a concrete intention to carry a gun there in the future.  Legal challenges should not be allowed to proceed without evidence that a gunowner actually intends to carry in a specific location in the near future; if the dominant social practice today is not to carry guns in a given location in the first place, then litigation will be difficult regardless of whether there are historical laws restricting guns in similar locations.

While it’s not surprising that Judge Suddaby revisited certain aspects of his prior order, it is interesting that he weighed historical laws under a different framework in the preliminary injunction opinion.  Specifically, he introduced the concept that “more weight is [] generally given to historical laws governing a larger percentage of the Nation’s population at the time, according to the nearest decennial census.”  Judge Suddaby didn’t use that metric at all in the TRO opinion—in fact, the word “population” doesn’t appear once in that 53-page order.  But, when evaluating the motion for a preliminary injunction, Judge Suddaby relied extensively on historical population figures.  He found, for example, that four historical laws restricting guns at churches and religious assemblies were not “representative” because “they came from states that contained only about 12.9 percent of the national population” (the same analysis applied to laws restricting guns at “public assemblies,” even though the states comprised 13% of the national population in 1870).  Laws covering 31.9% of the population as of 1791, however, would “shed some light on the public meaning of the words ‘keep and bear arms,’” in Judge Suddaby’s view.

It’s not clear to me that the use of historical population figures comes from Bruen itself or is consistent with the Court’s reasoning in that case.  While Judge Suddaby cited Bruen’s discussion of population in the territorial context (territorial laws were not representative, in part because they only applied to less than 1% of the national population at the time), Bruen didn’t use the same analysis for state laws.  It’s possible to read this portion of Bruen as suggesting that population is only one fact relevant to analysis of territorial laws, where it confirms that these laws generally can’t indicate a tradition of regulation—notwithstanding that, as I’ve written previously, the Bill of Rights applied directly to the territories in the Founding Era and the 19th century.  Moreover, Bruen’s contemporary analysis of New York’s law (which the concurrence by Justice Kavanaugh and Chief Justice Roberts called an “outlier”) relied solely on state-counting and made no reference to population.  Had the Court considered population, it would have found that the “seven jurisdictions [with may-issue laws] comprise about 84.4 million people and account for over a quarter of the country’s population,” as Justice Breyer observed.  That’s very close to the threshold Judge Suddaby appears to use for when a law is sufficiently widespread that it constitutes part of the country’s tradition.

Finally, Judge Suddaby observed in a footnote that he does not believe a “court-appointed expert historian” would be helpful in resolving the claims, in stark contrast to the recent order issued by Judge Reeves in the Southern District of Mississippi (which I covered here).  I don’t believe there’s anything wrong with judges relying on adversarial presentation to resolve disputes about the historical record—indeed, Bruen itself suggests that approach.  But it is worth noting that Judge Suddaby has not merely relied on adversarial presentation in this case.  He noted in the preliminary injunction order that he “has (given the importance of the issues presented) tried to find analogous laws to the extent the State Defendants may have not provided them.”  And certain portions of his most recent opinion contain historical analysis and observations from outside of the briefing.  When analyzing the state’s ban on guns in zoos, Judge Suddaby observed that “the Court can imagine some of the more trepid zoogoers of the time demanding to be armed in the presence of the more dangerous creatures.”  And a section of the opinion speculates that “during the years before and after 1791, persons published under pseudonyms controversial writings that, if identified as having been authored by them, could have indicated their likelihood do harm to themselves or others” because of the culture of dueling at the time.  Perhaps those observations are accurate characterizations of history, perhaps not.  But there is no suggestion in the opinion that the parties raised these arguments themselves; and Judge Suddaby also does not provide outside citations for these propositions. 

[1] The order also dismissed Governor Hochul as a defendant, which means the case will likely be re-captioned as Antonyuk v. Nigrelli.  Steven Nigrelli is the Acting Superintendent of the New York State Police, who replaced Kevin Bruen on October 7.

One of the most wide-ranging challenges to New York’s comprehensive post-Bruen gun regulatory framework was brought in Antonyuk v. Bruen. There, the court struck down many provisions of the new law. I wrote about the court’s ruling for Slate and, as you can tell from the piece, I think the Antonyuk court bungles much of the analysis. Andrew has also covered the decision multiple times on this blog – here, here, and here. While Antonyuk is important, there are also other ongoing challenges to New York’s new law, including a decision in Hardaway v. Negrelli from October 20, which takes an even more expansive view of the Second Amendment than (the already expansive view of) the Antonyuk court. Andrew summarized the decision in Hardaway here, focusing on its analysis of colonial-era history. This post examines other aspects of the decision and how Hardaway is emblematic of the inconsistent and unpredictable results in the lower courts since Bruen.

The issue in Hardaway concerned one specific place where New York’s new law prohibits guns: “any place of worship or religious observation.” In Antonyuk, despite striking down locational restrictions in lots of places, including airports, summer camps, domestic violence shelters, and others, the court actually upheld most of the place-of-worship ban. It considered a variety of historical statutes and concluded that New York can generally bar guns from those places, but that the provision must “contain an exception for those persons who have been tasked with the duty to keep the peace at the place of worship or religious observation.”

The court’s opinion in Hardaway runs for 40 pages. Most of those pages are factual background, standing analysis, and then a staggering 14 pages that consists almost entirely of select quotations from Heller, McDonald, and Bruen. Those pages were not, for the most part, spent teasing out the ways to implement the Court’s ruling, but instead purely copied-and-pasted from the earlier opinions. The court spent fewer pages applying the relevant test to the facts than it did excerpting snippets from that trio of cases.

In describing Bruen’s history & analogy test, the court several times emphasized the “high bar” that Bruen set up. It then underscored that “[t]he test is rigorous because the Second Amendment is the very product of an interest balancing” by the People. But that makes no sense as a rationale for making the implementing test demanding. The “because” in the court’s sentence conflates two separate issues: (1) how rigorous the test should be, and (2) whether the “balance” should be struck by history. An affirmative answer to the latter does not imply any particular answer to the former. The balance struck in the Amendment could favor broad or narrow protection for the right (or broad or narrow as applied to different issues); saying history settles the Amendment’s scope doesn’t tell us how wide that scope is. After all, that’s usually the question in a case like Hardaway. In other words, even if you believe that the balance was struck at the founding, nothing about that fact says anything about how rigorous the test should be to smoke out violations. The test is (or should be) calibrated to find violations, whether the balance struck in the Amendment favors broad or narrow protection for the right. If anything, the court’s conflation of these two issues shows that support for a historical approach to the Second Amendment isn’t really about originalism so much as it is about expanding gun rights.

In applying the test, the court first breezily cruised past the step one “plain text” inquiry. Instead of an analysis, the court simply stated that, just as for the plaintiffs in Bruen, the Second Amendment “presumptively guarantees Plaintiffs’ right to ‘bear’ arms in public for self-defense—and it does so as well at places of worship, which are open to all comers.” It’s not clear why the plain text covers bearing in that particular location—which after all is the precise question in this case. And, on this reading, the plain text inquiry is basically superfluous when a person claims a right to carry their gun anywhere. It’s also not clear what the “all comers” descriptor is doing. Might the court reach a different step one conclusion as to places that are not generally open to the public (like, I suspect, is true for at least some (many?) places of worship)?

In moving to the historical second step, the court noted that New York identified church-ban laws enacted in the two decades following ratification of the 14th Amendment “by four states (Texas, Georgia, Missouri, and Virginia) and the territories of Arizona and Oklahoma.” Those were not enough. Unlike the sensitive locations Bruen highlighted, said the court, “places of worship or religious observation are unsecured, spiritual places that members of the public  frequent as often as daily as part of day-to-day life, and encounter vast numbers of other people there—as they do anywhere in public.” Seeming to echo a theme that Joseph Blocher and Reva Siegel are developing about at least one of the purposes of the sensitive-places doctrine, the court said the Bruen-identified locations were spaces in which armed violence “could disrupt key functions of democracy.” Not so for churches.

Then, in assessing New York’s proffered analogues, the court highlighted a phrase from Bruen about “an enduring American tradition of state regulation” and said that since seven similar (modern) laws imposing may-issue licensing were insufficient in Bruen, then seven laws must also be insufficient to justify New York’s church ban. (The court did not discuss—or acknowledge—the notion that the number of contemporary jurisdictions with such a law is not the same as searching for a historical tradition.) The court did not quote any of the laws New York cited, but said there were “a handful” and that there were also “[a] few additional municipal enactments of similar vintage,” but the latter did not alter its conclusion. As to the state’s examples:

The notion of a “tradition” is the opposite of one-offs, outliers, or novel enactments. Rather, “tradition” requires “continuity.” These enactments [New York cited] are of unknown duration, and the State has not met is burden to show endurance over time.

(Footnotes and citations omitted; emphasis in original). The court also invoked the evolution of some of the historical laws to suggest that the tradition relaxed its treatment of guns in churches over time: “As to Georgia and Missouri, the enactments apparently evolved in any event, to allow church leaders to decide the issue for their own churches.” That seemed reason to discount them—or possibly to deny them any weight at all.

In sum, the court concluded, it was left with “a handful of seemingly spasmodic enactments” that were “very much outliers—insufficient, then, in the search for an American tradition.” Unlike the court in Antonyuk, the court here did not allow the ban to remain in effect generally, with only a special carve-out for peace-keeping, but instead found it unconstitutional in toto.

The court also found that the plaintiffs had established they would suffer irreparable harm in the absence of an injunction. Churches are sites of protected First Amendment activity. Plus, according to the court, churches can be dangerous places:

Law-abiding citizens are forced to forgo their Second Amendment rights to exercise their First Amendment rights to free exercise of religion, or vice versa. And they are forced to give up their rights to armed self-defense outside the home, being left to the mercy of opportunistic, lawless individuals who might prey on them and have no concern about the place of worship exclusion.

In other words, criminals don’t follow the law. (Besides being a reductive gun-rights talking point, it’s also not the case that all those bent on doing harm flout gun laws—see, e.g., the many January 6th insurrectionists who left their guns at home, or at a staging area in Virginia, rather than take them into D.C. precisely because of the District’s strict gun laws.)

Like other recent decisions, the court’s opinion here reduces hard questions about the scope of the Second Amendment and Bruen’s methodology to simple ones that generate easy answers with minimal analysis. The court invoked themes concerning the endurance, enforcement, and evolution of historical gun laws, labelling those it chose to ignore as outliers, anachronistic, remote, or irrelevant with almost no analysis at all. How long do laws have to “endure” to count? When does a change in regulatory framework mark an “evolution” of tradition as opposed to merely a different judgment by a different set of legislators? Why don’t local laws count? And why does the state have to put forward more than seven historical analogues to show a tradition?

This last question is all the more urgent—and the lack of an answer all the more concerning—because other courts have already reached inconsistent conclusions: the Antonyuk court said it required three laws for a tradition and expressly rejected the statements by a Texas court in McGraw v. FPC that the existence of laws in nearly half the states was insufficient. Now Hardaway comes in between the two, leaving state governments with no idea whether three, seven, or many more laws are needed to justify a modern regulation. Not only are the answers missing, but so too is any principled explanation for how to arrive at one. Bruen, in short, continues to license unbounded judicial discretion that permits federal courts to implement their policy preferences in the guise of historical fact-finding.

On October 20, a federal judge in the Western District of New York issued a decision in Hardaway v. Nigrelli granting a motion for a temporary restraining order and enjoining New York’s ban on carrying firearms in “any place of worship or religious observation.”  Notably, the decision by District Judge John Sinatra reached an opposite conclusion about this specific piece of New York’s sensitive-places list than an earlier decision by Judge Glenn Suddaby of the Northern District in Antonyuk v. Hochul (Judge Suddaby’s decision was appealed to the Second Circuit and is stayed pending that appeal).

The plaintiffs in Hardaway are a reverend and a bishop in upstate New York, both of whom have active concealed-carry licenses.  The plaintiffs allege that they consistently carried guns on church property “for self-defense and to keep the peace,” under New York’s prior law which permitted license-holders to carry in most locations, and would continue doing so but for the state’s new law which designated places of worship (among many other locations) as sensitive places where guns are prohibited.  The judge first engaged in a lengthy standing analysis, ultimately finding that the plaintiffs face a sufficiently imminent threat of prosecution, based on statements by New York politicians and law enforcement officials that the new law would be actively enforced.

Moving on to the plaintiffs’ likelihood of success on the merits of their Second Amendment claims, the judge summarized the Supreme Court’s Second Amendment jurisprudence, including Bruen, and applied the Bruen test.  New York cited laws passed by four states and two territories between 1870-1890 “that contained place of worship firearm restrictions.”  Relying on Bruen, the judge held that these post-ratification laws were insufficient to constitute a historical “tradition” because they did not “show endurance over time”—rather, in the judge’s view, the laws were “outliers,” “a handful of seemingly spasmodic enactments involving a small minority of jurisdictions governing a small minority of population” passed long after 1791.  According to the judge, “[t]hese enactments are far too remote, far too anachronistic, and very much outliers—insufficient, then, in the search for an American tradition.”  Emphasizing the continued danger that Americans face outside of the home, the judge found that the plaintiffs were likely to succeed on their claims.

The judge also rejected New York’s argument that churches are analogous to historical sensitive places such as legislative assemblies, polling places, and courthouses.  The judge found that places of worship are unsecured and visited regularly by congregants, whereas the government buildings historically designated as sensitive are heavily secured areas that citizens visit “sporadically.”  The judge also held that “[t]he State’s argument that places of worship are analogous because the exclusion supposedly also minimizes the chance of violence between those with opposing views [was] undeveloped and, in any event, belie[d] the non-confrontational purpose drawing people to houses of worship in the first place.”

Judge Sinatra granted a TRO enjoining New York’s ban on guns in “places of worship or religious observation,” effective immediately with no stay, and set a preliminary injunction hearing for November 3.  There is no indication that the state has yet appealed the decision or requested a stay pending appeal, which would mean that the restraining order is currently in effect.

Hardaway reaches a contrary result to Antonyuk, which just three weeks ago upheld New York’s prohibition on guns in places of worship contingent on the state construing the provision to include an exception “for those persons who have been tasked with the duty to keep the peace.”  In Antonyuk, Judge Suddaby weighed the exact same set of historical laws relied upon in Hardaway:  laws passed between 1870 and 1890 in Georgia, Texas, Virginia, Missouri, and the Arizona and Oklahoma territories.  But Judge Suddaby found that three historical laws constitute a tradition and, applying that threshold, upheld New York’s places of worship prohibition with an added exception for those responsible for keeping the peace in a church.  Judge Sinatra, on the other hand, used some unspecified higher number of laws as the cutoff.  Four state and two territorial laws were not sufficient, in his view, to form a tradition and were all outliers.  It’s difficult to say which approach is more faithful to Bruen, but—given such disparate outcomes at the district-court level—it’s clear that some guidance from the appellate courts is urgently needed.

The Hardaway opinion also highlights an issue lurking within Bruen’s historical test which I’ve written about before: judges seem all too willing to credit “colonial” history, even when that history is much further in time from the Founding than contrary post-ratification history.  Bruen states that “late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.”  But “earlier evidence” here should only be persuasive to the extent it might illustrate the scope of the right established at the Founding.  The further back in time from the Founding one ventures, the less likely that evidence is to shed light on the meaning of the amendment ratified in 1791.  Both Antonyuk and Hardaway point to early-1600s laws requiring white men to carry guns to church, with Judge Sinatra’s opinion noting that New York’s late-1800s evidence is suspect especially in light of “colonial-era enactments that, in fact, mandated such carry at places of worship.”  The judge cites a 2014 law review article by Benjamin Boyd titled Take Your Guns to Church. 

Many of the colonial-era laws Boyd catalogues long pre-date the Founding and ratification of the Bill of Rights (his article cites to other sources for some of these colonial-era laws, including Clayton Cramer’s Colonial Firearms Regulation).  Boyd starts his colonial journey with a 1619 Virginia law requiring weapons to be brought to church on the Sabbath.  Of eight colonial laws summarized in Boyd’s article, six were passed between 1619 and 1643—the other two were passed in 1738 and 1743, respectively.  So, the vast majority of these laws were passed 150 years or more prior to ratification of the Bill of Rights, in British colonies.  Yet, to Judge Sinatra, a law passed in a U.S. state in 1870—80 years after ratification and a mere two years after the 14^th Amendment was ratified—is “far too remote [and] far too anachronistic.”  How can that possibly be?  Bruen itself cautioned that a colonial law passed “roughly a century before the founding sheds little light on how to properly interpret the Second Amendment” and noted that “[h]istorical evidence that long predates either date [1791 or 1868] may not illuminate the scope of the right if linguistic or legal conventions changed in the intervening years.” 

As Dru Stevenson has observed, “eras in the distant past seem closer together in our perception than recent events separate[d] by the same amount of time.”  This is a documented phenomenon in psychology known as “temporal compression.”  Researchers have found “evidence that memories are [] logarithmically compressed with time: the farther from the present the memory, the less discriminable it is from an earlier memory.”  It stands to reason that historical analysis is susceptible to this same fallacy, and that judges and lawyers must guard against it when examining the historical record.  It is tempting to lump all of colonial history together as close in time to 1776—the most salient historical date, the signing of the Declaration of Independence—because that is how our minds naturally perceive history.  But the colonial period, which one might date to the 1607 establishment of Jamestown, stretched for almost 200 years.  Why should a cluster of laws passed in certain British colonies in the early 1600s be more indicative of an American tradition codified in 1791 than laws passed from 1870-1890 (a conclusion that Hardaway and other decisions treat as obvious)?

Moreover, the two “bring your gun to church” laws passed closer in time to the actual Founding, in Virginia and South Carolina in 1738 and 1743, respectively, warrant a closer look.  As Carol Anderson describes in her recent book The Second, Southern militia and gun laws in the 1700s were motivated by “an overwhelming fear among whites of the enslaved’s capacity and desire for retribution” that led certain colonies to pass laws effectively deputizing the white male militia into a slave-patrol force also prepared to suppress any slave rebellion.  And Virginia and South Carolina were the two colonies with the consistently highest slave populations.  By 1710 Blacks outnumbered whites in South Carolina, and, as of the 1780 census, South Carolina was 53.9% Black and Virginia was 41% Black—the highest percentages by far in what would become the original 13 states.  There is little doubt, then, that the Virginia and South Carolina laws requiring militiamen to attend church armed were intended to address concerns about slave uprisings.  Indeed, Professor Anderson describes how the 1739 Stono Rebellion in South Carolina was conducted “[u]nder the cover of the Sabbath.” 

These two laws were a direct response to slave-uprising concerns and not a recognition of any kind of widely-accepted right to bring guns to places of worship.  Notably, the very fact that South Carolina’s law was enacted in response to Stono suggests that the idea of having guns in church was not longstanding or deeply-rooted; rather, it was necessitated by the perceived exigency of potentially imminent slave rebellions and the need to keep Blacks enslaved in the colony. 

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.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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 19^th-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.

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-19^th 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-19^th 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.” 

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.

In late February 2021, the American Bar Association adopted Resolution 21M111, “Opposition to Guns In Polling Places,” which is short enough to insert as a single block quote:

RESOLVED, That the American Bar Association urges federal, state, local, territorial, and tribal governments to enact statutes, rules and regulations to prohibit the possession and display of firearms by persons other than governmentally authorized military, law enforcement or security personnel in and around buildings and at meetings where legislative debate is conducted, or where ballots are cast, received, processed, or counted, in order to prevent violence, avoid impacts on public health and safety, and ensure that armed intimidation does not disrupt or discourage open, robust debate on public issues or interfere with the electoral processes critical to the functioning of our democracy.

[Note: this blog has covered litigation over gun restrictions at polling places here, here, and, more recently, here. And Luke Morgan published a great article in 2018 on guns at protests]. This new ABA Resolution was co-sponsored by the ABA Standing Committee on Gun Violence, the Commission on Hispanic Legal Rights and Responsibilities, the Commission on Sexual Orientation and Gender Identity, the Standing Committee on Election Law, the Section of Civil Rights and Social Justice, and the Criminal Justice Section.  Since 1965, the ABA has adopted 28 formal resolutions about firearm policy – some urging the adoption of certain policies or amendments to existing legislation, and some model acts, similar to those published by the Uniform Law Commission (also known as the National Conference of Commissioners on Uniform State Laws), that can serve as off-the-shelf bills for legislators to introduce. I highly recommend the ABA resolutions on firearm policy to scholars researching in this area, because the supporting reports are excellent – a treasure trove of useful historical background, surveys of existing state or federal statutes or court precedent, and careful legal analysis.  For legislators, the model acts in this collection are an under-appreciated resource for off-the-shelf legislation – carefully drafted, restrained in their reach, and clear in their terminology.

The five-page report that accompanies the new resolution (Guns in Polling Places) begins with an account of the arrests of a dozen or more men in October 2020 who had planned to kidnap Governor Whitmer of Michigan – and how a few these same individuals had participated in the armed protest-occupation of the Michigan State Capitol a few months before to protest COVID closure orders. It then proceeds with a background section that chronicles armed protests in legislative buildings, at polling places, and at public marches and demonstrations in the last five or six years, including armed protests following the November 2020 election.  Missing is any mention of the Capitol riot in Washington, D.C. on January 6, 2021, though it would have been an obvious example to include – the writing of the Report may have predated that incident.  The background section also includes an insightful discussion of armed militia and paramilitary groups and their public activities.  A particularly interesting point that runs through this report is that public displays of firearms are being used not merely for self-expression or safety, but to intimidate legislators, voters, and peaceful protesters exercising their First Amendment rights.

One disturbing example from the ABA report is from Virginia, where in 2020 authorities cancelled previously approved peaceful protests advocating for more gun regulations because pro-gun advocates announced they would counter-protest with weapons:

The open-carry protest movement reached Richmond, Virginia on Martin Luther King Day on January 20, 2020. More than 20,000 armed protesters gathered outside the state capitol. And while bloodshed was avoided, in light of the obvious risks to public safety, police were forced to cancel a rally and lobbying day in support of gun safety measures that had been planned for the same day. The cancelled rally and lobbying day were a tradition stretching for more than two decades, begun by advocates for strengthening Virginia’s gun laws after the mass shooting at Virginia Tech. Thus, the rally of open-carry protesters forced gun safety advocates to abandon their rights to demonstrate and petition their government by holding their traditional rally and lobbying day in the state capitol. In effect, the open-carry protesters used an armed heckler’s veto to silence their political opponents.

The collision of Second Amendment and First Amendment rights is a point discussed in a terrific recent article by Gregory Magarian; Tim Zick has a good recent piece on armed protests here, and Mike Dorf has a piece in progress here.   One of the current unresolved issues with gun rights is armed protests, which highlight the blurry line between intimidation of political opponents (implied threats, but not rising to the level of a criminal threat) and legitimate political expression or self-protection while protesting for a controversial position.

Among the drama of this past election cycle was a flurry of debate over the question of whether Michiganders could carry their guns to the polls.

On October 16, 2020, the Michigan Secretary of State issued a directive prohibiting the open carry of firearms at or within 100 feet of polling places on election day. The overarching concern of the directive was to curb the potential for voter intimidation. In response, pro-gun-rights groups filed for an emergency injunction, seeking to invalidate the directive. As Jake Charles noted in his timely piece on this topic, although the groups’ legal claims were not premised on the Second Amendment, the complaint contained overtones of Second Amendment-absolutist rhetoric. A Michigan Court of Appeals judge invalidated the Secretary of State’s directive under Michigan’s version of the APA, and the parties voluntarily dismissed the case after the election.

But the episode poses an intriguing question about the scope of the Second Amendment. Does the Second Amendment protect open carrying of firearms to polling places?

One area of Second Amendment jurisprudence that places location-based limits on firearm carrying is “sensitive places” doctrine. Sensitive places doctrine traces its roots to District of Columbia v. Heller. The Heller opinion simultaneously established the Second Amendment right to a firearm for private purposes and placed limitations on that right. “[N]othing in our opinion should be taken to cast doubt on 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 . . . .”

Since Heller, a few federal appellate courts have considered sensitive places restrictions under the Second Amendment. For the most part, these courts have not taken the history of sensitive places restrictions into account. But should they have?

There are a few reasons why inquiries into sensitive places under the Second Amendment should consider historical practice. First, Heller itself expects that such inquiries will look into historical practice. Justice Scalia stated definitively that “there will be time enough to expound upon the historical justifications for the exceptions we have mentioned.” This implies that the proper scope of inquiry for the enumerated exceptions to the Second Amendment—felons, sensitive places, and restrictions on the commercial sale of firearms—is a historical one. Moreover, the language introducing the concept of sensitive places references history multiple times. Justice Scalia stated that “[a]lthough we do not undertake an exhaustive historical analysis today,” there are certain longstanding exceptions to the Second Amendment, of which sensitive places is one. And finally, more generally, the Heller opinion overall relied upon and placed great emphasis on historical analysis. As Joseph Blocher and Darrell A.H. Miller wrote in The Positive Second Amendment, Heller has been understood to prescribe a special place for historical analysis in Second Amendment cases.

So, Heller stated that sensitive places creates an exception to the Second Amendment. And historical analysis is likely central to determining where these sensitive places are. So, what does the history of state firearms law say about guns at polling places?

In fact, there are a handful of historical state statutes that prohibit carrying firearms at or near election polling places.

A 1776 Delaware state constitutional provision declared, “no person shall come armed” to any election place, and “no muster of the militia shall be made on that day,” and nor shall any battalion or company “be suffered to remain at the time and place of holding the said elections, nor within one mile of the said places respectively, for twenty-four hours before the opening of said elections, nor within twenty-four hours after the same are closed.” The constitutional provision seems to be intended to inhibit voter intimidation. The stated purpose of the law was “[t]o prevent any violence or force being used at the said elections.”

An 1869 Tennessee statute declared that it was unlawful for “any qualified voter or other person attending any election” in the state to carry about his person, concealed or otherwise, a pistol or other deadly or dangerous weapon.

An 1870 Louisiana statute declared that it was unlawful for “any person to carry any gun, pistol, bowie knife or other dangerous weapon, concealed or unconcealed, on any day of election during the hours the polls are open, or on any day of registration or revision of registration, within a distance of one-half mile of any place of registration or revision of registration.” The stated purpose of the statute was to “Maintain the Freedom of Party Election.” The Louisiana state legislature thus viewed carrying firearms to the polls as potentially endangering that freedom of party election.

An 1873 Texas statute declared it unlawful “for any person to carry any gun, pistol, bowie knife, or other dangerous weapon, concealed or unconcealed, on any day of election, during the hours the polls are open, within a distance of one half mile of any place of election.” The structure of the statute implies the statute’s purpose was to curb voter intimidation. The Texas legislature placed the statute in the criminal code under the chapter: “Riots and Unlawful Assemblies at Elections, and Violence Used or Menaced Toward Electors.” This chapter of the penal code was located under the overall title: “Of Offenses Affecting the Right of Suffrage.”

Finally, at least two Maryland statutes—one in 1874 and the other in 1886—prohibited the carrying of guns and pistols on the days of election and primary election in certain counties.

And these are just the laws in the Duke Center for Firearm Law’s Repository. There are likely more statutes like these on the books.

The concentration of these polling place laws in Southern states in the mid-to-late nineteenth century suggests that such laws were tied to Reconstruction efforts. Moreover, the existence of these laws around the time of the Fourteenth Amendment suggests that the original public understanding of the Second Amendment (as applied to the states) included this exception for polling places on election day. State legislators presumably would not enact these laws if they thought the laws were unconstitutional under the Second Amendment.

Although the historical evidence is not conclusive, it is a critical first step for the proposition that the Second Amendment does not protect carrying guns to a polling place on election day.

The events of January 6, 2021 were tragic and shameful. Five people lost their lives as a result of the failed attempt to overthrow our elected government. But without the federal and D.C. gun laws in place, it could have been much worse.

Scenes from around the country this summer demonstrate that, in the absence of legal restrictions, some protestors will openly carry firearms to rallies, protests, and riots despite the very real risk of violence and intimidation. The events at the Michigan Legislature on April 30, when protestors stormed the capitol with guns, shows how these activities can escalate and cause harmful effects to democratic deliberation even when shots aren’t fired. Legislators reported their terror as gunmen stood watch over the gallery, and the protesters’ actions caused a temporary adjournment of the legislative body. Yet, unlike in Michigan, guns weren’t a central part of the story about what happened in Washington, D.C., on January 6. Strict local and federal gun laws are at least part of the reason why.

D.C. law bars openly carrying firearms and restricts both concealed carry and the types of firearms that one can transport or possess. The current laws have been upheld against Second Amendment challenge, with judges crediting the government’s compelling interests in public safety as reason for banning select semi-automatic weapons and large-capacity magazines. Federal law also bars gun possession not only in the Capitol building itself but also on Capitol grounds, which cover almost 300 acres of the District. This law too has been upheld against constitutional challenge. As the D.C. Circuit said in a unanimous opinion upholding the law, “there are few, if any, government buildings more sensitive than the national legislature at the very seat of its operations.” These gun laws are specifically designed to safeguard public spaces and protect the seat of government from violence.

Most of those who joined the rallies in D.C.—even those rioters who unlawfully stormed the building—seem to have largely followed these restrictions. Reports suggest that of the arrests made that day, just a handful involved weapons violations. If the federal and local gun laws had not been in place, law enforcement almost certainly would have confronted protestors threatening to overrun the Capitol who were not just angry but armed—as in Michigan. Police exercised enormous restraint with the rioters, and some experts have questioned whether they were too restrained. But would law enforcement have reacted the same way if those men and women were visibly armed? Could they have done so? One woman was tragically shot in the coup attempt. But could Capitol police have taken selfies and resorted to other de-escalation techniques if the rioters breaking down doors and smashing windows were armed to the teeth? Allowing visibly armed insurrectionists to storm a government building with express plans to disrupt one of Congress’s most solemn constitutional duties without firing shots seems unimaginable. As jarring as the images of rioters storming the Capitol was, the reaction would have been—and should have been—much more explosive had the D.C. rioters been carrying the same semi-automatic rifles as those occupying the Michigan legislature.

One value of a bright-line prophylactic rule—like the ban on open carry or guns on Capitol grounds—is that it removes the need for difficult judgment calls in the midst of tense confrontations. If those present had displayed guns, police’s authority to detain and arrest would have been clear without any further need for provocation or mining of motive. When the siege started, police questioning whether to draw their weapons or fall back did not need to add to their calculation the risk of immense amounts of firepower pouring into one of the Nation’s most protected locations. The presence, and apparent deterrent effect, of these clear legal rules was at least one thing law enforcement had on its side that day.

Opponents of gun regulation often argue that restrictions on firearms in certain places or spaces only harms law-abiding citizens because criminals don’t obey the law. They decry “pretend gun-free zones” as nothing more than target-rich environments for ill-intentioned bad guys. But the failed coup attempt shows that some criminals actually do obey gun laws. And the existence of those laws helped ensure that the tinderbox ignited January 6 at the Nation’s Capital wasn’t more lethal and destructive.

I just finished Kathleen Belew’s excellent book, Bring the War Home: The White Power Movement and Paramilitary America, and one story there stuck out to me. It’s a story about racist violence motivating stricter gun regulations with particular resonance for this moment.

In 1979, a small group of Black protesters was marching in protest of the shoplifting arrest of a Black man in Decatur, Alabama (yes, the Alabama one). A group of 200 robed Ku Klux Klan members carrying rifles, pistols, and shotguns surrounded the 8 protesters. They wounded four protesters and fired into a car before police broke up the confrontation. In response to this armed intimidation, the Decatur City Council passed an ordinance banning the carrying of weapons within 1,000 feet of any public demonstration. There is no doubt that the City Council enacted the law in response to white supremacist violence and armed intimidation and that at least one goal was to protect peaceful protest, including for the Black Americans whose gathering had previously been interrupted. And the KKK understood the ordinance as aimed at their armed confrontations. The New York Times reported at the time that shortly after the law was passed “200 robed and heavily armed Klansmen paraded through town and circled the home of Mayor Bill Dukes, jeering defiance as Decatur policemen stood by, some waving in greeting. Ray Stelle, Klan kleagle, or lieutenant, said, ‘If the Mayor wants our guns, he’ll have to come and get them.’”

This episode reminded me of another gun law motivated by a concern for Black lives. The law struck down in Heller—banning handguns from the District—was strongly endorsed in the District’s Black communities and passed by its majority Black City Council. James Forman describes how those at the time viewed the law as “a civil rights triumph.” It helped to show that, “at least in D.C., the killing of black men mattered.” Gun laws, like these, have been used many times in our history to protect racial minorities from the harms that guns can cause to communities of color.

To be sure, throughout U.S. and English history, gun laws—like all laws—have sometimes targeted racial or religious minorities. And, as a matter of enforcement, even today’s neutral gun laws are often enforced disproportionately against communities of color. These are systemic problems with the criminal legal system that should give pause to those who seek to further criminalize gun-related conduct. But the Decatur and D.C. examples alone demonstrate that it is overly simplistic to suggest “all gun control is racist.” The situation in Decatur shows democratic institutions, even in the Deep South, responding to armed intimidation and violence against Black Americans by enacting gun laws designed to protect them. The fact that the KKK interrupted a peaceful protest—a quintessential act of democratic participation—demonstrates how guns can threaten harm even when no one is shot or killed. As Joseph highlighted last week, his new article with Reva Siegel unpacks these ways that guns can, especially through armed intimidation like that undertaken by the Decatur Klan, inflict a public harm on civic life. And just as legislatures can take action to guard against the physical injuries that guns cause—like the D.C. City Council in 1975—they can also act to guard against the democratic injuries that guns cause—like the Decatur City Council in 1979.

After last week’s riot at the Capitol, the acting House Sergeant-at-Arms implemented a new policy requiring House members to be screened for weapons before entering the House chamber.  On Tuesday, June 12, the U.S. Capitol Police declined to admit Rep. Lauren Boebert (R.-Colo.) to the floor of the House of Representatives after she refused to allow Capitol Police to inspect a bag she was carrying. Rep. Boebert protested on Twitter that she is “legally permitted to carry my firearm in Washington, D.C.[,] and within the Capitol complex.”  Rep. Madison Cawthorn (R.-NC) also claimed that he was armed during the riot.

These two freshmen are not the only Members of Congress who have firearms on Capitol Hill.  Earlier this year, Rep. Ken Buck (R.-Colo.) made news when he showed off an AR-15 rifle that he keeps in his office, telling “Joe Biden and Beto O’Rourke, if you want to take everyone’s AR-15s, why don’t you swing by my office in Washington, D.C. and start with this one?”

Joe Biden is unlikely to confiscate Rep. Buck’s AR-15; but the U.S. Attorney for the District of Columbia might.  At least two sets of laws govern the possession of weapons within the Capitol complex.  In 1967, Congress specifically prohibited the carrying of accessible weapons in all capitol buildings and grounds.  In addition to this federal law, the general criminal law of the District of Columbia applies to the Capitol complex.  The District has strict rules on firearms.  Among these, all firearms must be registered, some firearms cannot be lawfully registered  (e.g., certain semiautomatic firearms deemed “assault weapons”), ammunition magazines cannot exceed a 10-round capacity, the carrying of rifles and shotguns is prohibited, and the carrying of pistols is lawful only with a license to carry issued by the District of Columbia.  (As the signs at the Capitol office buildings warn visitors, the District does not recognize carry permits from other states.)  Even with a license, the District prohibits the carrying of pistols in many places, including the “U.S. Capitol buildings and grounds” and within 1,000 feet of a demonstration.

The 1967 federal law contained an exception for those “authorized by regulations which shall be promulgated by the Capitol Police Board.”  The Capitol Police Board regulations (Appendix J), in turn, provide that, “nothing contained in [the 1967 federal law] shall prohibit any Member of Congress from maintaining firearms within the confines of his office or any Member of Congress or any employee or agent of any Member of Congress from transporting within the Capitol Grounds firearms unloaded and securely wrapped.”  When Rep. Buck faced questions about the legality of his rifle, the Capitol Police pointed to this regulation to explain why his possession of the rifle was lawful.

But Capitol Police Board regulations do not authorize him—or any other Member of Congress—to possess firearms in violation of District law.  The Capitol Police Board regulations merely exempt certain people from the 1967 federal law.  On their face, they do not purport to confer a general authority to possess firearms in violation of District law.  Nor does the Capitol Police Board have the power to grant such an authority.  The 1967 federal law had a savings clause providing that “[n]one of the general laws of the United States and none of the laws of the District of Columbia shall be superseded by any provision of this Act.”  So while the Capitol Police Board regulations provide Members of Congress with a limited exception from the 1967 federal law governing weapons on Capitol grounds, they do not preempt the District’s general gun laws—which apply at the Capitol as they do elsewhere in the District.

Possession of an AR-15 rifle is unlawful in the District.  The District of Columbia’s statutory definition of “assault weapons” includes any semiautomatic rifle with a detachable magazine and a pistol grip.  These weapons cannot be registered in the District, and a person possessing such a firearm is subject to a misdemeanor prosecution for possession of an unregistered firearm.  Rep. Buck’s AR-15 has a pistol grip and a detachable magazine, so it fits within this definition.  Rep. Buck’s rifle also appeared to have a thirty-round magazine attached.  If so, Rep. Buck could be prosecuted for that, too.  The District of Columbia prohibits ammunition magazines that can accept more than 10 rounds, and in 2019, the District elevated the penalty for this crime from a misdemeanor to a felony.

Rep. Buck is correct that his possession of a rifle within his office is consistent with Capitol Police Board regulations.  So he could not be charged under the 1967 federal law with unlawfully possessing a firearm on Capitol Grounds.  But because the federal law did not supersede the District’s weapons laws, he still could be prosecuted for violating the District’s gun control laws.

Rep. Buck has also claimed that his rifle is “non-functional” because it “is lacking its bolt carrier group” (which contains the firing pin among other components) and has been equipped with a trigger lock.  But the District’s definition of firearm includes “any weapon, regardless of operability, which . . . [can be] readily converted, restored, or repaired, or is intended to, expel a projectile . . . by the action of an explosive” and includes “the frame or receiver of any such device.”  The removal of the bolt carrier group and the existence of the trigger lock will not remove his AR-15 from the District’s regulation of firearms.

What about Rep. Boebert and Cawthorn’s desire to carry pistols throughout the Capitol?  The Capitol Police Board regulations only permit Members of Congress to keep firearms in their offices and to transport unloaded and securely wrapped firearms elsewhere.  They do not permit the carrying of a loaded pistol outside a Member’s office.  The regulations further prohibit all persons (including those otherwise authorized to carry guns at the Capitol) from carrying any firearms inside the House or Senate chamber and some other adjacent spaces, “unless assigned or approved by the two Sergeants of Arms for maintenance of adequate security.”  So Members have no right to be on the floor with firearms, loaded or otherwise.  Members who violate the Capitol Police Board regulations could face federal prosecution under the 1967 federal law.

Even within a Member’s own office, District law imposes further restrictions.  Members’ weapons would have to be registered in the District of Columbia, and they could not have any high-capacity magazines.  Their ability to carry a pistol within their office is still questionable.  District law prohibits individuals with licenses from carrying concealed pistols in certain areas, including the Capitol buildings and grounds.  So Members could not rely on having a DC concealed carry permit to carry their weapons anywhere in the Capitol, including their offices.  Without a license, District law permits a person to carry a registered firearm in his “place of business.”  I’m not sure if the Members’ offices will count as their personal places of business.  If it is, then (and only then) could they carry loaded pistols in their offices.  But here again, Members have no authority to bear arms outside their offices.  Those who do could face prosecution under District law, either for carrying a pistol without a license or, if they were licensed, for carrying a firearm in a prohibited place.  Outside of their offices, Members may only transport firearms within the Capitol complex if they remain outside the House and Senate chambers (and surrounding areas), and if the firearms are unloaded and in a locked container (which would comply with both Capitol Police Board regulations, which require firearms to be unloaded and securely wrapped, and District law, which requires that the transporting container be locked).

If that were not enough, there is one further federal law complication.  A 1988 federal law (18 U.S.C. § 930) makes it a misdemeanor to possess a firearm in a federal facility, which is defined as “a building or part thereof owned or leased by the Federal Government, where Federal employees are regularly present for the purpose of performing their official duties.”  The Capitol buildings likely fit within this definition.  (I am not aware of any charges brought under § 930 for possessing firearms in a capitol building—people are usually charged under the 1967 law or the District’s gun laws because they contain higher penalties.)  Section 930 has an exception for “the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes.”  The scope of this section—especially as it applies to “other lawful purposes”—remains largely untested.  Federal courts would be unlikely to recognize, however, that it covers the carrying of loaded firearms for self-defense because such a broad exemption would largely negate the attempt in § 930(a) to generally prohibit weapons in federal buildings.  See United States v. De la Cruz-Bancroft, No. CR 09-MJ-319 JH/WDS, 2010 WL 8752034, at *2 (D.N.M. Jan. 4, 2010).  Nor is it clear how § 930’s general ban on firearms in federal facilities would interact with the specific 1967 law that Congress implemented for the Capitol.  A general rule of statutory construction is that specific laws prevail over general laws, so ordinarily one might think that the exception for Members of Congress in the 1967 law should prevail over the generic ban of firearms in federal facilities in § 930.  But the 1967 law states that it does not supersede any of the “general laws of the United States.”  The savings clause means that, even if Capitol Police Board regulations exempt Members under the 1967 law, it might not shield them from prosecution under § 930.

Finally, Members of Congress do not have any special right to break criminal law, ex officio.  While the Constitution affords Members of Congress a privilege from civil arrest “during their Attendance at the Session of their respective Houses,” that privilege does not apply to arrests for “Treason, Felony and Breach of the Peace”—a term of art that encompassed all crimes.  Nor could they rely on the Second Amendment’s right to bear arms.  Heller’s dicta, which lower courts have followed, state that governments may ban “the carrying of firearms in sensitive places such as schools and government buildings.”  The D.C. Circuit has already held that the Capitol complex is a quintessential sensitive place.

In the nineteenth century, it was not uncommon for Members of Congress to have pistols in their desks.  (Nor was it uncommon for other members to complain about their brethren who were armed with concealed weapons.)  In the twentieth century, John Dingell supposedly kept a hunting shotgun in a Capitol basement locker when he was a teenage congressional page.  But federal and District weapons law have become much stricter in recent decades.  Members of the general public routinely face felony prosecutions when they bring weapons to the Capitol complex.  Members of Congress are not above the laws they have enacted.  Except in very limited cases, they have no right to be armed on Capitol Hill.

Over the past few weeks, Joseph and Darrell have done some commentary on the relationship between guns and democratic institutions.

• Joseph Blocher & Alan Chen, Why Do States Ban “Electioneering” but Allow Guns at Polling Places?, Slate (Jan. 5., 2021)
• Olivia Li, The Gun Rights Rhetoric That Helped Seed the Insurrectionist Mindset, The Trace (Jan. 9, 2021) (interview with Darrell).
• David Sherfinski, Joe Biden: Police would have treated BLM protesters more harshly than pro-Trump forces at Capitol, The Washington Times (Jan. 7, 2021) (quoting Darrell)

Last Friday, the Michigan Supreme Court issued an order in a case it was holding until the U.S. Supreme Court decided New York State Rifle & Pistol. The Michigan case, Wade v. University of Michigan, concerns the constitutionality of the University’s ban on weapons on campus property. In accepting review of the case, the Michigan Supreme Court directed the parties to brief three issues:

(1) whether the two-part analysis applied by the Court of Appeals is consistent with District of Columbia v Heller, 554 US 570 (2008), and McDonald v Chicago, 561 US 742 (2010), cf. Rogers v Grewal, 140 S Ct 1865, 1867 (2020) (Thomas, J., dissenting);

(2) if so, whether intermediate or strict judicial scrutiny applies in this case; and

(3) whether the University of Michigan’s firearm policy is violative of the Second Amendment, considering among other factors whether this policy reflects historical or traditional firearm restrictions within a university setting and whether it is relevant to consider this policy in light of the University’s geographic breadth within the city of Ann Arbor.

In the lower courts, the University prevailed against the individual plaintiff who sought to invalidate the policy. The University revised its policy in 2001 to mandate that campus buildings and property be weapons-free, even for people with a state-issued concealed carry permit. The policy provided that the Director of the University’s Department of Public Safety could waive the prohibition “based on extraordinary circumstances,” but any waiver had to define in writing its scope and duration. After the plaintiff was denied a waiver, he sued, claiming that (1) the policy violates his state and federal constitutional right to bear arms, and (2) the policy is preempted by Michigan law.

In 2017, the Court of Appeals—in a divided vote—rejected his claims. Deeming his state constitutional claim abandoned, the court went directly to assess the Second Amendment argument. It applied the two-part framework adopted by other courts in the wake of Heller, which looks first to whether the law burdens conduct falling within the scope of the Second Amendment and then, if so, whether the law passes means-end scrutiny (or what the court of appeals called “an intermediate level of constitutional scrutiny”). At the first step of the inquiry, the court considered whether a university qualifies as a sensitive place where firearms can permissibly be excluded. To do that task, it engaged in a historical and linguistic analysis to determine whether a university would have qualified as a “school” (which Heller expressly invoked as a sensitive place) in 1868, when the Fourteenth Amendment was ratified. The court concluded that a university would have been considered a school at the time and therefore a sensitive place from which guns could be excluded. Therefore, the policy did not burden Second Amendment rights and “no further analysis is required.”

As to preemption, the court concluded that the state’s broad preemption statute is limited to restricting only those “local units of government” expressly identified in the text, not the University, which “has a unique legal character as a constitutional corporation possessing broad institutional powers.” The dissenting judge would have held that the University policy was preempted by state law and avoided the Second Amendment question altogether.

All three questions the Michigan Supreme Court directed the parties to address—the methodology for Second Amendment questions, the level of scrutiny to be applied if the two-part framework is used, and the status and boundaries of the “sensitive places” doctrine—are major issues subject to considerable debate. Since the court will be deciding these questions based on the Second Amendment and not its state constitutional analogue, there’s a possibility the case could make its way to the U.S. Supreme Court before it’s finished. Whether that happens or not, it’s certainly a case to watch.

As I wrote about earlier this week, there’s been a lot of recent action around Michigan’s new restrictions on carrying firearms into polling places. Although the legal challenge was not framed in Second Amendment terms, the individuals and gun-rights advocacy groups who brought the lawsuit presented the case as a conflict between their right to vote and their right to keep and bear arms. The trial court entered a preliminary injunction on Tuesday, halting enforcement of the restrictions. And last night, the Michigan court of appeals refused to intervene. In its order denying the state leave to appeal the ruling, the court added:

We wish to clarify two important points as election day rapidly approaches. First, while the civil-rights amicus brief raises legitimate concerns about voter intimidation throughout this country’s history, the Michigan Legislature has given the Executive Branch important and necessary tools to prevent voter intimidation: Voter intimidation is—and remains—illegal under current Michigan law. MCL 168.932(a), 168.744(1); see also 18 USC 594. Second, brandishing a firearm in public is—and remains—illegal under current Michigan law. MCL 750.234e. Accordingly, anyone who intimidates a voter in Michigan by brandishing a firearm (or, for that matter, by threatening with a knife, baseball bat, fist, or otherwise menacing behavior) is committing a felony under existing law, and that law is—and remains—enforceable by our Executive branch as well as local law enforcement.

The state has now sought review in the Michigan Supreme Court, so the matter may not be resolved just yet.

On October 16, Michigan Secretary of State Jocelyn Benson issued a memo in her capacity as “chief election officer with supervisory control over local election officials in the performance of their duties.” In that memo, Benson “clarif[ied]” that open carrying of firearms at or within 100 feet of a polling place is prohibited. The directive does not affect concealed carry, and thus licensed Michiganders may be able to bring their concealed firearms into polling places if allowed at the particular location. Benson also made clear that firearms can be stored in parked cars that are within 100 feet of a polling place if such storage is otherwise lawful.

Surprisingly, restrictions on carrying firearms into polling places are not widespread. According to a recent Washington Post article, only 6 states and D.C. ban all guns at polling places. These are not the usual states one might expect, either; they include Arizona, Florida, Georgia, and Louisiana. Beyond those place-based restrictions, federal law (and many state laws as well) make it unlawful to intimidate, threaten, or coerce a person for the purpose of interfering with his or her right to vote.

Unsurprisingly, gun-rights supporters and organizations sued the Michigan Secretary of State for issuing the directive. In a lawsuit filed last week, Lambert v. Benson, the plaintiffs claim that the Secretary’s memorandum is unlawful for two reasons. First, they claim it is beyond her powers under the Michigan law and therefore void. Second, they argue that the statutory authority she claims to operate under is an unconstitutional delegation of power of legislative power to the executive and therefore violates separation-of-powers principles.

Although the formal legal claims are not couched in Second Amendment terms, this rhetoric colors the complaint. “The Secretary of State’s pronouncement has created a Hobson’s choice for those wishing to exercise both their 2nd Amendment right to self-protection and their fundamental right to vote,” the challengers assert. What’s more, they insist, the directive itself is based on the unsupported suggestion that the presence of openly displayed firearms “may cause disruption, fear, or intimidation for voters, election workers, and others present.”

The Second Amendment issue involves questions about the nature of the right to keep and bear arms in these locations and about the government’s interest in such regulations. One point of contention will be whether polling places constitute “sensitive places” from which guns can permissibly be excluded. In Heller, the Court emphasized that “nothing in [its] opinion” should be construed as calling into question presumptively lawful regulations like those “forbidding the carrying of firearms in sensitive places such as schools and government buildings.” Although the “sensitive places doctrine” has received relatively scant scholarly attention (but see Darrell’s terrific piece here) or lower court elucidation, two key cases stand out: Bonidy v. US Postal Service and United States v. Class. In the former, the court upheld a ban on firearms in U.S. Post Offices and adjacent post office parking lots, but did not expand much on the justifications for such carve-outs. In a partial dissent, Judge Tymkovich would have struck down the ban as applied to a concealed-carry license holder in the parking lot. There, in the course of distinguishing different locations, he noted that the government needed “concrete evidence of particular vulnerability” in a certain location to justify the place’s status as sensitive. In Class, the court upheld a ban on firearms on “Capitol grounds,” even as applied to a man who parked in an open-air lot on Maryland Avenue, 1000 feet from the Capitol building. It suggested that locations qualify as “sensitive” not because of the level of threat in a place but because of “the people found there” or the “activities that take place there.”

In the Benson litigation, the trial court granted a preliminary injunction yesterday, forbidding the state from enforcing the directive. It sided with the challengers on their first grounds for relief—that the Secretary of State acted outside the procedures set forth in state law for issuing the directive. But the court also cautioned that “this case is not about whether it is a good idea to openly carry a firearm at a polling place, or whether the Second Amendment to the US Constitution prevents” the state from banning open carry at polling locations. The state has said it will appeal. To the extent that a court has the occasion to opine on the Second Amendment question, it could continue to refine the factors influencing the sensitive places doctrine.