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 defy Bruen 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 Renée 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 the Bruen 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 post–Civil 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 attending…public 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."
The Bruen 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.
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