After the U.S. Supreme Court upheld the right to bear arms last year, several states responded by making it easier to obtain carry permits but harder to use them. That strategy proved to be legally perilous: Federal judges ruled that sweeping restrictions on where people could carry handguns for self-defense in New York and New Jersey were inconsistent with the Supreme Court's decision in New York State Rifle & Pistol Association v. Bruen. A recent preliminary injunction continues that trend, barring Maryland from enforcing its restrictions on firearms near public demonstrations, its ban on carrying guns in bars and restaurants that serve alcohol, and its presumptive rule against guns in other businesses open to the public.
U.S. District Judge George L. Russell's September 29 opinion in Kipke v. Moore, which addresses two lawsuits by Maryland carry permit holders and gun rights groups, confirms that politicians were mistaken in thinking they could defyBruen by expanding the list of "sensitive places" where firearms are not allowed. At the same time, it shows that judges disagree about how to apply the constitutional test established by Bruen, which asks whether a gun control law is "consistent with this Nation's historical tradition of firearm regulation."
Russell, a Barack Obama appointee to the U.S. District Court for the District of Maryland, took a notably more permissive approach than Glenn T. Suddaby, a judge on the U.S. District Court for the Northern District of New York, and Rene Marie Bumb, a judge on the U.S. District Court for the District of New Jersey, both of whom were appointed by George W. Bush. While Suddaby and Bumb concluded that prohibiting guns in public parks and entertainment venues was probably unconstitutional, for example, Russell thinks similar rules in Maryland satisfy the Bruen test. Russell reached the same conclusion regarding museums, while Bumb was not persuaded that treating them as "sensitive places" was historically justified.
Notably, Russell's opinion runs just 40 pages. By comparison, the opinion that Suddaby issued when he enjoined several of New York's location-specific bans on gun possession last November was 187 pages long, while Bumb's May 2023 explanation of her preliminary injunction in New Jersey was even longer: 235 pages. That striking difference is at least partly due to Russell's relatively cursory consideration of the historical record.
Regarding parks, Russell notes, the plaintiffs "contend that the ban covers 'thousands of acres of land' without justification, and that there are no comparable historical regulations, despite the existence of public parks at the founding." But he considers it significant that "very few public parks existed at the time the Second Amendment was ratified, and those that did exist were typically located in cities." And while the plaintiffs cite examples of urban parks where firearms were permitted during this period, he says, "the Court cannot infer that parks were historically not regulated from so few places."
That position seems to shift the burden of proof from the government to the plaintiffs, contrary to what the Supreme Court said in Bruen. When a firearm regulation restricts conduct covered by the "plain text" of the Second Amendment, the Court said, "the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation."
According to the Supreme Court's 2010 decision in McDonald v. Chicago, the 14th Amendment, ratified in 1868, required states as well as the federal government to respect the right to keep and bear arms. Russell therefore also considers what was happening during that period. "Around the time the Fourteenth Amendment was ratified, several jurisdictions prohibited firearms in public parks," he writes, citing laws in Boston, Chicago, New York City, Philadelphia, and St. Louis. Although those laws were limited to urban parks, he says, "rural, more isolated state parks were not established in significant numbers until after the ratification of the Fourteenth Amendment," so "the Court will not infer a lack of regulation from the absence of laws governing rural state parks at that time."
Suddaby, by contrast, was not impressed by 19th-century ordinances covering city parks, noting that they were "not accompanied by laws from states that are sufficiently similar in nature"i.e., "laws regarding 'public parks' regardless of population density." He concluded that "the burdensomeness of this regulation" was "unreasonably disproportionate to that of its historical analogues."
Bumb noted that New Jersey "failed to come forward with any laws from the 18th century that prohibited firearms in areas that today would be considered parks." She doubted that the 19th-century regulations cited by the state were "well-established" or "representative" and concluded that they "do not establish a historical tradition of banning firearms at parks," even though "the modern equivalent of parks existed during this nation's founding."
Russell concludes that Maryland's "regulations restricting firearms in stadiums, racetracks, amusement parks, and casinos are analogous to historical statutes banning them in gathering places for entertainment." He relies on the analysis in a July 2023 opinion by one of his colleagues, U.S. District Judge Theodore Chuang, in a separate case.
Regarding a "restriction on carrying firearms in recreational facilities and multipurpose exhibition facilities," Chuang wrote, "the historical statutes applicable to parks are fairly deemed to be well-established and representative historical analogues because such facilities, like parks, are locations at which large numbers of people gather to engage in recreation." Chuang, an Obama appointee, also cited a smattering of city, territorial, and state restrictions from the 19th century that prohibited firearms in locations such as public ballrooms, fairs, race courses, and places where people "assembled for amusement."
Bumb had a different take. While "this Nation has a long history of gambling establishments," she wrote, New Jersey "has presented no firearm law from states that allowed gambling that restricted firearms at gambling establishments." Instead it "offers laws it claims supports banning firearms at 'crowded social assemblies and [for] individuals with impaired judgment,'" which she deemed "insufficient" with respect to gaming facilities and other entertainment venues. Suddaby likewise thought New York had failed to show that historical tradition supported its bans on guns in theaters, conference centers, and banquet halls. He said the evidence cited by the state did not demonstrate that "the modern need for this regulation is comparable to the need for its purported historical analogues."
Russell's treatment of Maryland's ban on guns in museums is similarly lenient. "Bruen affirmed that schools are sensitive places, and museums are like schools because they serve an educational purpose and are often geared towards children," he writes. "Further, because Maryland's restrictions on firearms in museums can be justified by the protection of children as a vulnerable population, regulations banning firearms in museums are similar to those in schools."
Again, Bumb applied a stricter version of theBruen test. "The State's attempt to equate libraries and museums to sensitive places such as schools and government buildings stretches the sensitive places doctrine too far," she wrote. "The mere presence of children is not, by itself, enough to make a certain location like a school. Likewise, the State cannot stretch every government building into a sensitive place without considering the building's function and historical laws banning firearms at those locations." While Russell gives considerable weight to several 19th-century laws that prohibited guns in "locations where people gather for 'educational, literary, or scientific purposes,'" Bumb concluded that those laws were "not representative of the entire nation."
Despite these differences, Russell agrees with Bumb and Suddaby that a ban on guns in businesses with liquor licenses is not supported by historical tradition. "Bars and restaurants are not analogous to any established sensitive place," he writes. "While it is true that such businesses can attract crowds and there are risks associated with alcohol consumption, the Court is unconvinced that intoxicated people qualify as a vulnerable population, like children or hospitalized individuals. Additionally, while some crowded spaces are considered sensitive places, Bruen rejected the argument that Manhattan was sensitive 'simply because it is crowded and protected generally by the New York City Police Department.'" Turning to the historical precedents that Maryland cited, Russell concludes that laws aimed specifically at intoxicated individuals were notably narrower than a ban that covers anyone who visits a bar or restaurant, whether or not he is drinking.
Russell also agrees with Suddaby and Bumb that a default rule against guns on private property fails the Bruen test. As applied to businesses, Maryland's law allows customers to carry guns only if the owner posts a sign indicating that it's OK or otherwise gives "express permission." In support of that provision, the state cited both anti-poaching laws and postCivil War restrictions aimed specifically at African Americans, neither of which Russell deems apposite.
Finally, Russell enjoined Maryland's ban on carrying a firearm within 1,000 feet of a public demonstration. "Before the ratification of the Second Amendment," he notes, quoting Bumb's opinion, "'six out of the thirteen original colonies required their citizens to go armed when attendingpublic assemblies.'" And although Maryland cites "several nineteenth-century statutes that prohibited firearms at public assemblies," he says, Bruen "makes it clear that 'late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.'" He therefore concludes that the plaintiffs have "demonstrated a clear likelihood of success" in their challenge to the rule regarding public demonstrations.
Russell did not reach that conclusion happily. "The Court notes that it is obligated to question the constitutionality of Maryland's restriction on carrying at public demonstrations because of Bruen's narrow historical framework," he writes. "If the Court were permitted to apply intermediate or even strict scrutiny to public demonstration restriction, the law would almost certainly pass constitutional muster."
TheBruen test clearly raises questions that invite judicial disagreement. Judges must decide, for example, how much weight to give laws from different historical periods and when the analogs cited by the government are numerous, similar, and representative enough to establish a relevant historical tradition. In practice, judges' answers may depend partly on their preexisting attitudes toward gun control, although such considerations are not supposed to figure in their historical and legal analysis. But this ruling shows that the Bruen test, by foreclosing the sort of "interest-balancing" analysis that courts commonly used to uphold gun control laws prior to that decision, has real teeth even when it is applied by judges who resent its strictures.
Here is the original post:
Federal Judge Enjoins Several Maryland Restrictions on Carrying ... - Reason
- The Future of the Second Amendment - Berkeley Law - April 18th, 2024 [April 18th, 2024]
- Mental Health Firearms Bill Divides Second Amendment Supporters in State House - NH Journal - April 18th, 2024 [April 18th, 2024]
- Biden Administration Unlawfully Expands Background Checks on Firearms Sales - Kevin Cramer - April 18th, 2024 [April 18th, 2024]
- The Second Amendment and 18-to-20-Year-Olds - Reason - March 29th, 2024 [March 29th, 2024]
- Chatbots like crime, hate firearms: A Second Amendment study - Washington Examiner - March 29th, 2024 [March 29th, 2024]
- OK: Oppose H.J.R. 1034, Unless Amended! | GOA - Gun Owners of America - March 29th, 2024 [March 29th, 2024]
- Republicans blast Biden admin's 'Red Flag Operation' as one that will 'violate' Second Amendment rights - Fox News - March 29th, 2024 [March 29th, 2024]
- Gordon Signed Four Second Amendment Bills, Vetoed Another - WyoToday.com - March 29th, 2024 [March 29th, 2024]
- A new resource center in the DOJ has a lot of people worried about their Second Amendment rights - Tri-State Alert - March 29th, 2024 [March 29th, 2024]
- 'It Has Everything to Do With Race': Protesters Clash Outside Kyle Rittenhouse Event - Yahoo News UK - March 29th, 2024 [March 29th, 2024]
- Governor signs firearm bills, vetoes bill to repeal gun-free zones - Buckrail - March 29th, 2024 [March 29th, 2024]
- FISA and the Second Amendment: Gun Owners Beware - RealClearPolicy - February 3rd, 2024 [February 3rd, 2024]
- Second Amendment protects the rest | Commentary | norfolkdailynews.com - Norfolk Daily News - February 3rd, 2024 [February 3rd, 2024]
- Ricketts Signs Brief to Defend Gun Owners and Second Amendment - Rural Radio Network - February 3rd, 2024 [February 3rd, 2024]
- Dems bow to local control on guns then take it away | BRAUCHLER - coloradopolitics.com - February 3rd, 2024 [February 3rd, 2024]
- Augusta County Second Amendment guy wants to protect schoolkids from books? - Augusta Free Press - February 3rd, 2024 [February 3rd, 2024]
- The 2nd Amendment is not about Hunting - WIBC - Indianapolis News & Politics - October 27th, 2023 [October 27th, 2023]
- Opinion: Protecting Our Second Amendment Rights in St. Louis ... - The Missouri Times - October 27th, 2023 [October 27th, 2023]
- Statement by Vice President Kamala Harris on the Mass Shooting in ... - The White House - October 27th, 2023 [October 27th, 2023]
- Letter: Second Amendment matters more than ever - Quad-City Times - October 27th, 2023 [October 27th, 2023]
- The Supreme Court is seriously considering whether domestic ... - Vox.com - October 27th, 2023 [October 27th, 2023]
- Letter urging House Speaker to act on gun violence sent hours prior ... - Woodland Daily Democrat - October 27th, 2023 [October 27th, 2023]
- Vermont: Gun-Controllers Are Abandoning Their Rural Roots - NRA ILA - October 27th, 2023 [October 27th, 2023]
- Foundation prepares to disburse roughly $32 million in legal aid ... - The Florida Bar - October 27th, 2023 [October 27th, 2023]
- Critics Sock Sean Hannity Over His Bizarre Personal 'Plan' For Mass ... - Yahoo! Voices - October 27th, 2023 [October 27th, 2023]
- Second Amendment Roundup: Fusillade of Amicus Briefs Filed in Rahimi - Reason - October 12th, 2023 [October 12th, 2023]
- 12 Defensive Gun Uses Bare Absurdity of Attacking Gun Rights - Daily Signal - October 12th, 2023 [October 12th, 2023]
- Horrific Attack In Israel Shows Critical Importance Of Second Amendment In America | David Hookstead - Outkick - October 12th, 2023 [October 12th, 2023]
- OPINION: Second Amendment rights deserve protection - The ... - Stanly News & Press - October 12th, 2023 [October 12th, 2023]
- Noel Hudson: What, exactly, was the well-regulated militia? - VTDigger - October 12th, 2023 [October 12th, 2023]
- Berkshire residents and officials join the debate at the statehouse ... - Berkshire Eagle - October 12th, 2023 [October 12th, 2023]
- Old gun controls that were constitutionally repealed are not precedents for modern gun control - Reason - October 7th, 2023 [October 7th, 2023]
- Rahimi: The Case That Might Turn the Court Even More Extreme on Guns - The New Republic - October 7th, 2023 [October 7th, 2023]
- Second Amendment proponents fear public health emergencies ... - The Statehouse File - October 7th, 2023 [October 7th, 2023]
- UGA political groups debate the Second Amendment at political ... - Red and Black - October 7th, 2023 [October 7th, 2023]
- From the Second Amendment to OxyContin Settlements, Here Are ... - WTTW News - October 7th, 2023 [October 7th, 2023]
- Goldwater Institute Urges Supreme Court to Respect Second ... - The Creative Corner - October 7th, 2023 [October 7th, 2023]
- I carry a firearm daily. Second Amendment rights are not absolute. - Daily Kos - October 7th, 2023 [October 7th, 2023]
- Free Lecture - To Trust the People with Arms: The Supreme Court ... - Buckeye Firearms Association - October 7th, 2023 [October 7th, 2023]
- Guest columnist Lee Armstrong: Taking 2nd Amendment to extremes - GazetteNET - August 26th, 2023 [August 26th, 2023]
- Analysis: ACLU Warns of Government Overreach in Second ... - The Reload - August 26th, 2023 [August 26th, 2023]
- Madison's Militia: The Hidden History of the Second Amendment, by ... - Shepherd Express - August 26th, 2023 [August 26th, 2023]
- Massachusetts Judge Rules Law Against Carrying Guns Across ... - The Reload - August 26th, 2023 [August 26th, 2023]
- It's Not Hard to Tell Good Guy From Bad Guy, as 12 More Defensive ... - Heritage.org - August 26th, 2023 [August 26th, 2023]
- NRA-ILA Files Friend of the Court Brief Urging the Eighth Circuit to ... - NRA ILA - August 26th, 2023 [August 26th, 2023]
- Panhandling ordinance amendments pass first Council vote - Mountain Xpress - August 26th, 2023 [August 26th, 2023]
- Florida's New Concealed Carry Law: What You Need to Know - Hernando Sun - August 26th, 2023 [August 26th, 2023]
- Why did PragerU lie about being approved in Texas schools? - Reckon - August 26th, 2023 [August 26th, 2023]
- No longer a cold war, the Tennessee House and Senate are not ... - News Channel 5 Nashville - August 26th, 2023 [August 26th, 2023]
- What's News, Breaking: Tuesday, August 22, 2023 - Brooklyn Daily Eagle - August 26th, 2023 [August 26th, 2023]
- Sparse turnout for gun rights rally with Kyle Rittenhouse after Michigan gun reform laws signed Michigan Advance - Michigan Advance - July 21st, 2023 [July 21st, 2023]
- Tom Huckin: A misinterpretation of the Constitution leads to disastrous consequences - Salt Lake Tribune - July 21st, 2023 [July 21st, 2023]
- Debate on Second Amendment | News, Sports, Jobs - Williamsport Sun-Gazette - July 21st, 2023 [July 21st, 2023]
- Sorry, Gov. Newsom, but Citizens Want to Use Guns to Defend ... - Heritage.org - July 21st, 2023 [July 21st, 2023]
- D-Wave Quantum Inc. Enter into the Limited Waiver and Second Amendment to Loan and Security Agreement with PSPIB Unitas Investments II Inc -... - July 21st, 2023 [July 21st, 2023]
- Federal Judge Rejects Lawsuit to Uphold Texas Suppressor Law for ... - The Texan - July 21st, 2023 [July 21st, 2023]
- Governor's Council approves all 7 of Healey's pardon ... - WBUR News - July 21st, 2023 [July 21st, 2023]
- Jonah Goldberg: Why July is the cruelest month for GOP presidential ... - The Winchester Star - July 21st, 2023 [July 21st, 2023]
- Second Amendment Roundup: U.S. Seeking Cert on Prohibited Persons % - Reason - May 30th, 2023 [May 30th, 2023]
- 2nd Amendment Quotes for Hot Topics - Everyday Power - May 30th, 2023 [May 30th, 2023]
- ICYMI: Buffalo News Editorial: Gun Laws and a More Sensible ... - ny.gov - May 30th, 2023 [May 30th, 2023]
- Opinion | Prince William needs gun-free zones - The Washington Post - May 30th, 2023 [May 30th, 2023]
- Second Federal Judge Expands Block on Biden Pistol-Brace Ban as ... - The Reload - May 30th, 2023 [May 30th, 2023]
- Editorial: Mayor's order of support for trans citizens contrasts with the ... - St. Louis Post-Dispatch - May 30th, 2023 [May 30th, 2023]
- Simple answer isn't workable - Las Vegas Sun - May 30th, 2023 [May 30th, 2023]
- DeSantis and the Road to the White House - The Media Line - May 30th, 2023 [May 30th, 2023]
- Should gun stores be allowed near schools? These parents are ... - Reckon - May 30th, 2023 [May 30th, 2023]
- Hawaii Agrees to Drop Baton Ban After Losing Court Fight - The Reload - May 30th, 2023 [May 30th, 2023]
- Demise of S.F. exaggerated. It's still a great city to visit - San Francisco Chronicle - May 30th, 2023 [May 30th, 2023]
- ESAs consult to amend technical standards on the mapping of ... - ESMA - May 30th, 2023 [May 30th, 2023]
- 'Not tools of self-defense': Ferguson makes case for Washington's ... - The Columbian - May 30th, 2023 [May 30th, 2023]
- Lawrence ODonnell Airs Old Clip of Republican Chief Justice Calling the Second Amendment a Fraud on the American Public - Mediaite - March 31st, 2023 [March 31st, 2023]
- Marshall University Prof: Cops and Vets Earn Their Second Amendment Rights Through Months of Training - The Truth About Guns - February 28th, 2023 [February 28th, 2023]
- Interpretation: The Second Amendment | Constitution Center - January 27th, 2023 [January 27th, 2023]
- Senate panel okays Tax Laws (Second Amendment) Bill: Fixed tax scheme gets nod to bring 2m retailers into tax net - The News International - December 23rd, 2022 [December 23rd, 2022]
- Gohmert: Without a change to how children are taught, 'We're going to have to get rid of the Second Amendment' - Fox News - December 18th, 2022 [December 18th, 2022]
- Minim, Inc. and Cadence Connectivity, Inc. Enter Second Amendment to Loan and Security Agreement with Silicon Valley Bank - Marketscreener.com - December 18th, 2022 [December 18th, 2022]
- Opinion: Let's talk about repealing the Second Amendment - The Connecticut Mirror - December 12th, 2022 [December 12th, 2022]
- The right to bear arms: what does the second amendment really mean ... - November 21st, 2022 [November 21st, 2022]
- Texas judge rules law preventing adults under 21 from carrying handguns ... - November 21st, 2022 [November 21st, 2022]