After the U.S. Supreme Court overturned New York’s concealed carry laws that had been on the books for more than 100 years, lawyers at Johns Hopkins University are examining how the court’s ruling could impact state gun restrictions quickly passed in response.
Before the U.S. Supreme Court’s most recent ruling on gun laws, the court had long applied a two-part test in evaluating Second Amendment cases. Part one required courts to rely on history to determine if the law at issue burdens the Second Amendment. Part two is whether the law is appropriately tailored to achieve an important government interest, like public safety.
Kelly Roskam is director of law and policy at the Johns Hopkins Center for Gun Violence Solutions.
“In perhaps the most consequential part of Bruen, the court abandoned this two-part test and stated that courts must now use a test that relies exclusively on text history and tradition. To satisfy this test, the government must show that the law at issue is either identical to or sufficiently analogous to an historical firearm law. However, the court provides very little guidance to lower courts on how to apply the test. For example, what makes a law sufficiently analogous to an historical law? Especially where we're facing challenges that are different or more expansive than those that were faced in the founding era.”
For example, AR-15-style rifles did not exist when the founding fathers wrote the Constitution. AR-15 rifles were created in the 1950s, according to NPR, and have since been used in many high-profile mass shootings, like in Uvalde, Texas and Buffalo, New York this year alone. The military-style weapon became available to purchase after the federal ban on assault weapons expired in 2004.
Days after the ruling, a case was filed in the District of Columbia challenging the ban on weapons in the Metro. Johns Hopkins’ Eric Rubin explains a ruling on this case would impact gun laws pertaining to transit areas in all states.
“Is it analogous because a lot of people gather both in the Metro and in fairs and markets? Or is it disanalogous unless you can find historical law? This specifically targeted firearms in transit stations Maybe, I don't know, public carriage houses - if those existed, I don't know if they existed, I'm not a historian of public transportation - but, you could see how even in this case just filed just days after Bruen, there will be disputes about what sorts of analogs historically speaking are relevantly similar and analogous to modern day restrictions on guns in public transport.”
After the Supreme Court decision, New York Governor Kathy Hochul called state lawmakers back to Albany for a special session in response. Within a few days, the Democrat and the Democratic-controlled legislature passed legislation that bars the ability to carry weapons in “sensitive areas.”
While drafting the legislation, lawmakers described the sensitive areas as: any place owned or under control of federal, state or local government; courts; any health care facility; dependence care or services; libraries, public playgrounds, public parks and zoos; the location of any program or housing licensed, regulated, certified, funded or approved by the Office of Children and Family Services, Department of Health, the Office for People With Development Disabilities, Office of Addiction Services and Supports, Office of Mental Health or Office of Temporary and Disability Assistance; nursery schools, preschools and summer camps; homeless and family shelters; school campuses; public transportation; places where alcohol or marijuana is consumed; museums, theaters, stadiums and other venues; polling places; any public sidewalk or area restricted from general public access for a limited time for a special event; any gather of individuals to collectively express their constitutional rights to protest or assemble; Times Square and places of worship.
Several lawsuits have already been filed in New York challenging the new laws. Johns Hopkins’ Alex McCourt discussed how the court may impact future challenges to “sensitive areas.”
“The court discussed this both at oral arguments, it was a topic of discussion, and also a little bit in the opinions. And it seemed like they generally thought that restrictions for sensitive places were still OK, but that they couldn't be too broad. They couldn't be so broad as to effectively declare an entire city to be a sensitive place. That said, there was nothing that they said in their opinion, the Court said in its opinion, that is binding on this specific issue.”
Roskam added the Bruen decision specifically noted the judges were not aware of many 18th or 19th Century laws relating to sensitive places under text history or tradition.
“Other courts have speculated that it has something to do with the people who congregate there, vulnerable populations like children and elderly individuals, or the activities that take place. They're important functions of democracy. So I think it'll remain to be seen exactly how a sensitive places doctrine will develop. But I think it'll be an incredibly important part of this opinion, as states are already moving to ban firearms in ‘sensitive places.’”
