Washington — State laws prohibiting people from carrying firearms in “sensitive” locations are providing the foundation for the next battle involving the Second Amendment in the wake of a recent Supreme Court decision, with the question in the courts shifting from whether Americans can have guns at home or in public to where they can be carried.
Already, challenges to so-called sensitive place restrictions in New York and the District of Columbia have been filed, and more are expected to follow from gun rights supporters, who argue the measures keeping them from bringing guns into places like houses of worship, on college campuses and in public parks infringe on their right to keep and bear arms.
“That’s going to be an important and interesting battlefield going forward for Second Amendment cases,” Joseph Blocher, an expert on the Second Amendment and professor at Duke Law School, told CBS News. “Until now, it’s been a sleepy corner of Second Amendment law and scholarship, and that means there’s going to be a lot of open questions to figure out, and the central one is, what makes a place sensitive such that the government can prohibit guns in that place?”
In its 2008 decision in Heller v. District of Columbia, the Supreme Court ruled there is a constitutional right to keep a handgun in the home for self-defense. More than a decade later, in June, the high courtto carry a handgun outside the home for self-defense, striking down a New York permitting regime that limited who could carry concealed firearms in public.
Justice Clarence Thomas, writing for the majority in the June decision, cited “few” 18th and 19th century sensitive places in the historical record where guns were prohibited — legislative assemblies, polling places and courthouses — but said “we therefore can assume it settled that these locations were ‘sensitive places’ where arms carrying could be prohibited consistent with the Second Amendment.”
Justice Brett Kavanaugh, joined by Chief Justice John Roberts, also noted in a concurring opinion what he said were the limits of the Supreme Court’s decision, including that the Second Amendment allows for a variety of gun regulations, among them laws prohibiting the carrying of firearms in sensitive places like schools and government buildings.
But what remains unclear from the examples cited by the justices is “the principle that connects those things,” Blocher said.
New York’s law, passed after the Supreme Court invalidated its licensing rules, designates 20 categories of sensitive locations where people cannot carry guns, among them any place of worship or religious observation, bars, ferries, banquet halls, public parks and Times Square.
The law, which took effect Sept. 1, quickly drew a legal challenge from the gun rights group Gun Owners of America and its member Ivan Antonyuk, who argued the state’s new restrictions infringed on their Second Amendment rights.
The scope of New York’s list of sensitive locations, they wrote in their complaint, makes it “hard to imagine how a carry license holder could so much as leave home without running afoul of the [Concealed Carry Improvement Act]. That is precisely the result that Bruen warned about,” a reference to the court’s June ruling in New York State Rifle and Pistol Association v. Bruen.
While a federal judge in Syracuse dismissed the case in late August, he said the gun rights backers have a substantial likelihood of success on the merits of their case and, wrote the law’s list of sensitive locations is “not deeply rooted in the nation’s historical tradition of firearm regulation.”
In addition to the challenge from Gun Owners of America, the New York State Jewish Gun Club is preparing to file its own lawsuit against the state over its restrictions on guns in sensitive spaces, which make it a crime for congregants to carry firearms in synagogues.
“The focus of this sensitive-place statute in New York is so overbroad and vague. It says you can’t possess a weapon in a place of worship or religious observation, and it begs the question: what is a religious observation?” said Ameer Benno, a lawyer hired by the gun club to challenge the law. “There’s the Second Amendment right, but the fear that if you transgress that right you could be prosecuted for a felony will chill people from exercising their religious freedom.”
The suit hasn’t yet been filed, but Benno said he and co-counsel Cory Morris have signed on numerous plaintiffs — individuals and houses of worship — who believe their Second and First Amendment rights are violated by New York’s sensitive-space restrictions.
“This isn’t a mythical thing. This is a very real, sad reality that Jews are targeted and houses of worship are targeted for violence and extremism, and by telegraphing to the world that these places are now gun-free zones, you’re quite literally putting a target on the backs of all Jewish men and women,” Benno said.
The attacks aren’t limited to synagogues, he said, and extend to churches and mosques where worshippers have “equal right to possess a weapon for their self-defense” but are prohibited from doing so under New York’s law.
“It’s simply that we have a right to be protected where we are, and this new law is overreaching,” said Tzvi Waldman, founder of the New York State Jewish Gun Club. “I just want to protect myself and be left alone.”
Waldman said that while some synagogues, primarily those with large memberships, can afford to hire private, armed security, the cost of doing so would be a substantial burden for smaller temples.
“We can’t afford that,” he said, “and besides the point, it’s a constitutional right. There’s no need to outsource security for someone else. You don’t need to hire a press secretary to be able to speak. It’s the same way. The Second Amendment is not a second-class right.”
The Supreme Court has not yet grappled directly with the constitutionality of state laws barring guns in sensitive locations, and the most significant open question for lower courts will be how they apply the new test laid out by Thomas in his June opinion.
For a firearm regulation to pass constitutional muster, the government must show it is consistent with the nation’s historical tradition, Thomas wrote for the court’s 6-3 conservative majority.
“What is it that makes those places sensitive? I think what the doctrine is going to have to provide is not just a list of locations, but a reason for those locations but not others. And that’s where we have so much uncertainty,” Blocher said. “Lower court judges will have to wrestle with those cases. It could come down to a judge’s intuition about whether Giants’ stadium is similar to a medieval fair or markets where weapons might have been restricted.”
Benno, though, is confident that New York’s law prohibiting the carrying of guns in sensitive locations — particularly houses of worship — would not withstand the Supreme Court’s new text, history and tradition test.
“It seems to be the regulation of weapons in houses of worship were the exception, rather than the rule,” he said. “The state is never going to be able to establish there is a historical tradition of what they’ve done here. This is an unprecedented act of government overreach that not only violates the Second Amendment, but goes right to the heart of the First Amendment.”
The Supreme Court’s decision finding the government cannot prohibit the carrying of firearms in public for self defense was its most significant ruling involving the Second Amendment in more than a decade, and it could be years before the justices are asked to answer what is a “sensitive” space and whether the government can prohibit firearms there.
“We’re prepared to fight this legal battle as far as it takes us,” Benno said. “If it’s to the Supreme Court, then so be it. We’re confident in the legal strength of our argument. We’re confident the state doesn’t have the law on their side.”
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