The Volokh Conspiracy

On February 11, the Third Circuit en banc heard oral argument in Koons v. Attorney General, which concerns New Jersey's post-Bruen ban on firearm possession in numerous public places.  A panel decision previously upheld 2-1 most of the verboten locations as "sensitive places" where the Second Amendment right does not apply.  As I discussed here, the decision was based on a flawed misreading of supposed historical analogues.  Its basic premise is that a "sensitive place" is anything a legislature says it is without Founding-era analogues and without providing comprehensive security like that in modern courthouses and in the sterile area of airports (once you go past TSA screening).

We start with the Supreme Court's methodology in Bruen that "when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct.  To justify its regulation, … the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation."  This means, as Rahimi put it, "the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition."  Here, that burden to demonstrate the existence of a historical tradition as well as the extraction of the appropriate principles falls squarely upon New Jersey. And while New Jersey demonstrated neither, it was the instant plaintiffs that established the existence of a historically-based principle of the Supreme Court's "sensitive places" doctrine as discussed below.

Previously, in Heller, the Court in dicta referred to "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings" as being "presumptively lawful," implying that the presumption may be subject to question, narrowing, or clarification.  Bruen – again in dicta – specifies "government buildings" that are sensitive places to include "legislative assemblies, polling places, and courthouses." However, in Bruen, the Court rejected New York's argument that it had the authority consistent with the Second Amendment to ban the carrying of handguns by claiming its restrictions were essentially "sensitive place" regulations. The Court specifically said that, for example, Manhattan could not constitutionally be considered a gun free zone "sensitive place" because it is crowded and police are generally present.

The provision of government security ties these historic "sensitive place" locations together.  At the Founding, governments provided enhanced security at those locations, in the persons of bailiffs, justices of the peace, sergeants-at-arms, doorkeepers, and sheriffs.  While covered in the briefs, these historical analogues are set forth in much greater detail in Dr. Angus McClellan's recent SSRN post.  So, the three locations identified by Bruen were sensitive places because they were provided with enhanced armed security, and they are proper historical analogues with roots in the Founding.

Faced with defending gun bans in numerous public places that provide no real security (other than an occasional Paul Blart mall cop), New Jersey counsel, Angela Cai, denied that any security at all is necessary to be a "sensitive place."  The state bans guns at public gatherings, zoos, parks, libraries and museums, bars and restaurants, and assorted other locations.  Places where people congregate, she argued, suffice to make a place sensitive – exactly a criterion Bruen explicitly rejected.  Even the "crowded place" argument gets dropped when gun bans at extensive wooded parks are defended.

At bottom, unmoored from comprehensive security, no limiting principle exists to what is a "sensitive place." And, the benefit to comprehensive security as the criteria for demonstrating that a location is a "sensitive place" is that it is easy to administer for judges. After all, judges literally live within the bubble of comprehensive security whenever they go to work: armed guards, metal detectors and limited (and locked) entry points to ensure bad guys with guns cannot sneak in.  Furthermore, it is worth noting that where the Founders feared that churches were vulnerable to violent attacks, they did not declare them to be a "weapons free zone" but instead legally required Americans to bring their arms there.

Ms. Cai brought up the 1328 Statute of Northampton, but Bruen saw it as relevant only as reflected in Virginia's 1786 rendition providing that "no man, great nor small, [shall] go nor ride armed by night nor by day, in fairs or markets, or in other places, in terror of the Country."  She sought to separate the terror element from the crime of going armed in fairs or markets – fairs and markets being today's supposed "crowded places" – but Bruen recognized no such separation.  The Founders regulated the misuse of the public carry of firearms by banning carrying firearms in a manner to terrify the public; peaceable carry was for defensive purposes and was not restricted even in urban settings, as none other than Founder and criminal defense attorney John Adams noted in his defense of the British after the Boston Massacre. Adams conceded that the colonists had every right to carry arms in Boston for defensive purposes.

In a classic example of "fake news," Judge Chung asked counsel for Koons, Pete Patterson, about North Carolina's supposed 1792 statutory enactment, which was "exactly the same as Northampton."  As Mr. Patterson correctly responded, "There was no 1792 North Carolina statute. That was in a private lawyer's collection of … the British laws he posited that were still in effect in North Carolina."  And it even referenced "the King."  I have previously written about how some judges have been duped by this "fake" 1792 NC statute, and have an article forthcoming on it in the Journal of Law & Civil Governance at Texas A&M. Instead, as I've explained in more detail, North Carolina enacted a law in 1741 and reenacted it in 1791 recognizing the offense of "go[ing] armed offensively," which is another way of stating that one cannot publicly carry arms "to the terror" of the people.

In her Rahimi concurrence, Justice Barrett rejected the assumption that "founding-era legislatures maximally exercised their power to regulate, thereby adopting a 'use it or lose it' view of legislative authority."  But the text-history method still applied, and she warned against too high a level of generality when considering historical analogues.  In response from a question from Judge Shwartz about legislative silence, Ms. Cai replied that little need existed at the Founding for expansive sensitive places, but the expiration of the patent for the Colt revolver in 1850 prompted more handgun production and consequent more interpersonal violence by the 1870s.  That explained the passage of restrictions in Texas, Missouri, and Tennessee.

But as Judge Porter asked: "Why is that a new social problem that had never been contemplated before? Isn't that exactly the kind of thing that was addressed by the statute of Northampton going back 600 years?"  Ms. Cai added nothing new to her argument.  But it goes without saying that blunt instruments, edged weapons, spears, bows, tomahawks, and plenty of arms have been available over the centuries for both defensive and offensive use.

And it bears repeating, as Heller noted, that the Second Amendment protects modern arms that are in common use, and that if they are to be restricted, the burden falls on the state to show that they are not in common use.

As to the above three state laws cited by Ms. Cai, they were too little and too late.  Mr. Patterson pointed out that "the Supreme Court in Espinoza said more than 30 state laws from the late 19th century cannot create an early American tradition."  Like the 1870s laws cited in this case, the laws at issue in Espinoza, which were held to violate the Free Exercise Clause, were not rooted in the Founding.

That also raises the 1791 versus 1868 issue.  Which prevails?  Chief Judge Chagares asked Ms. Cai:

You argue in your brief, in various places, in particular your reply brief at page 18, that in the event of a clash between founding era and reconstruction era historical analogues, that the latter ought to control for purposes of our inquiry under Bruen. Doesn't Bruen tell us something different? … The opinion says on page 66, "Late 19th century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence."

Ms. Cai replied: "You will not find a single case that a plaintiff has cited from either the founding period or the antebellum period or reconstruction that says restrictions at sensitive places and … many jurisdictions adopted them was unconstitutional."  Well, that's because there were virtually no such restrictions at the founding or antebellum periods, and there were only a handful during Reconstruction.

The fact is that the Founders were not silent, but spoke loudly, when they adopted the Second Amendment itself and also when they legislated to punish going armed in places of public congregation like fairs and markets in a manner to terrify others.  The right peaceably to bear arms at every public place is the default rule, and the only exceptions are narrowly-defined, government-protected sensitive places.  And it's the government's burden to demonstrate that those places are consistent with America's historical tradition of regulation.

The extent to which facial challenges may be brought to arms restrictions has been a controverted subject of late, with the Fourth Circuit rejecting a parks restriction in LaFave v. Fairfax County in which a cert petition is now pending (I'm counsel in the case).  In Seigel (the companion case to Koons), in which challenges were made to parts, but not all, of certain sections of the law, Judge Freeman asked "what allows you to have a facial challenge to just a part of a statutory provision?"  Counsel Erin Murphy explained that bans on carry at playgrounds and youth sporting events were being challenged, but "we are only challenging the provisions that are there to reach things that are not happening on school property."  Heller itself exemplified that a facial challenge may be brought to a law (D.C.'s complete ban on handguns), even though some other law could apply to a specific person (e.g., a felon) or to "sensitive places" (such as D.C.-located courthouses).

Judge Chung asked why the $200 fee for a handgun carry permit could not be applied to a person with a conviction for harming someone.  Ms. Murphy replied, "I've never understood facial challenge doctrine to mean that if you can come up with a completely different law the state could have written and shoehorn that in, then your facial challenge fails because the whole point of this law is to say, no, you have to pay the fee."  This is correct. The government may not hypothesize about a non-existence statute that a legislature could have (but did not) actually enact in order to save an existing unconstitutionally-drafted statute. See Peter Patterson, Facial Confusion: Lower Court Misapplication of the Facial/As-Applied Distinction in Second Amendment Cases, Harvard JLPP (2025). The issue arose in part in the context of whether having to pay the fee creates irreparable harm for purposes of a preliminary injunction.  Imagine whether it would be irreparable harm to impose a poll tax of $1.50 to vote (the Supreme Court said yes in Harper v. Virginia).

It will not be surprising if the Koons court delays a decision until after the Supreme Court resolves Wolford, which concerns Hawaii's ban on firearm possession on private property as applied to places open to the public.  The Supreme Court is sure to give further guidance on how far states may go in restricting the places where the right to bear arms exists.