Starting pistol: Landmark Supreme Court gun ruling sparks lawsuits on ‘sensitive places’
Kaelan Deese
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The Supreme Court’s decision to strike down New York’s gun law last year has been hailed by Second Amendment advocates as a landmark decision and a fundamental new test of firearms law. In Part One of this series, Starting Pistol, the Washington Examiner investigated how the ruling in New York State Rifle & Pistol Association v. Bruen opened the floodgates to successful legal challenges. Part Two looked at the 27 states shifting to become permitless carry and the blue state permitting laws that are under legal challenge. Part Three, below, examines the new category of “sensitive” places where New York and other states have banned guns.
The Supreme Court‘s landmark Second Amendment decision last summer kicked off new legal battle lines to overturn laws designating broad localities as gun-free zones known as “sensitive places.”
Sensitive place laws aren’t new but have become a burgeoning strategy for Democratic-led states implementing gun control after last year’s June 23 New York Rifle & Pistol Association v. Bruen decision. The ruling struck down the Empire State’s old discretionary concealed carry regime and, most notably, held that gun regulations should be “consistent with the Nation’s historical tradition of firearm regulation.”
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“There’s just not a lot of guidance in Bruen about what the underlying theory is behind sensitive places,” Andrew Willinger, executive director of the Duke Center for Firearms Law, told the Washington Examiner.
“If you’re doing analogical reasoning to history, what are the principles in history that would support these modern designations? The court doesn’t really go into that at all other than to say, generally, you can’t designate something like an entire urban area or entire downtown area as a sensitive place, but [the justices] don’t provide any further guidance,” Willinger said.
In response to what Gov. Kathy Hochul (D-NY) called the “reckless” Bruen decision, she signed the state’s Concealed Carry Improvement Act on July 1 last year, which effectively banned the possession of guns in a long list of places.
Guns are listed as prohibited in New York government buildings, healthcare facilities, places of worship, libraries, playgrounds, public parks, zoos, childcare facilities, the buildings or grounds of educational institutions, mass transit, and many other locations, including a perimeter surrounding Times Square.
Tom King, executive director of the New York State Rifle & Pistol Association, the plaintiff in the landmark case, told the Washington Examiner he believes the New York’s CCIA law is a “reiteration of the laws the Bruen decision made unconstitutional.”
“It was just a way of New York state thumbing their nose at the Supreme Court,” King said.
In Bruen, the 6-3 majority opinion authored by Justice Clarence Thomas held that New York’s characterization “of its proper-cause requirement as a ‘sensitive-place’ law lacks merit.” Thomas also wrote, “There is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place’ simply because it is crowded and protected generally by the New York City Police Department.”
The justices declined to take up an expedited petition challenging the law, signaling a willingness to give lower courts more time to consider the effect of Bruen. But Justices Thomas and Samuel Alito warned the CCIA “presents novel and serious questions under both the First and the Second Amendments” in their response to the majority declining to take the petition.
Gun Owners of America saw initial success challenging the law in a case before U.S. District Judge Glenn T. Suddaby, who found a vast majority of the law was unconstitutional. But the group’s victory was short-lived after the 2nd Circuit ordered a stop to the enforcement of his decision on Nov. 15.
Now, a three-judge panel in the U.S. Court of Appeals for the 2nd Circuit is weighing whether the CCIA is constitutional, teeing up a major test for the Second Amendment post-Bruen. The appeals court heard arguments in four related cases concerning the CCIA in March, and legal experts told the Washington Examiner a decision in the case could come soon.
Like in New York, pro-gun groups in Maryland are challenging a law passed on May 16 that designates gun restrictions in a so-called “special purpose area,” which is defined as a place licensed to sell alcohol, cannabis, a stadium, museum, racetrack, or casino. A group known as Maryland Shall Issue is suing over the law, saying it violates Bruen by “banning firearms in a whole host of locations otherwise open to the public,” according to its webpage.
On the same day Maryland passed its gun legislation, pro-gun plaintiffs in New Jersey won an early victory in a challenge against the Garden State’s ban on firearms in sensitive places. U.S. District Court Judge Renee Mari Bump wrote that the state failed to “present sufficient historical evidence as required by Bruen to support each aspect of the new legislation.” The state has since appealed that decision.
Eric Ruben, an assistant professor at Southern Methodist University who researches firearms law, spoke before the U.S. Senate Judiciary Committee on March 15, highlighting several areas of Second Amendment law where lower courts have disagreed since Bruen. He said lower courts have been “diverging in terms of outcomes in methodology” in cases surrounding but not limited to “restrictions on bringing guns into ‘sensitive places’ such as places of worship, summer camps, urban mass transit, and Times Square,” according to his written testimony.
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While several legal experts told the Washington Examiner that the constitutionality of sensitive place laws could be another facet of the Second Amendment for the Supreme Court to weigh, the majority on the court thus far seems poised to allow lower courts to wrestle with interpretations until then.
Willinger said that when the time comes for the high court to consider the scope of laws surrounding sensitive places, the case “would probably be the challenge to the New York law that passed right after Bruen.”