States are increasingly receiving federal courts’ blessing to restrict firearm access in public places that draw crowds, with the latest boost coming from a theory about protecting sold-out football stadiums full of concertgoers.
Appeals courts from the conservative Fifth Circuit to the liberal Ninth Circuit have upheld location-based firearms restrictions applying a history-focused test laid out by the US Supreme Court’s 2022 ruling in New York State Rifle & Pistol Association v. Bruen.
The latest decision from the Third Circuit, issued Sept. 10, bolstered the theory that principles gleaned from 18th- and 19th-century laws regulating “sensitive places” provide foundation for states to ban guns in modern-day venues like massive concerts.
“While our forebearers may have enjoyed waltzes in ballrooms instead of Taylor Swift concerts in sports arenas, Americans’ desire for physical safety and peace of mind during leisure has endured, forging a national tradition that supports” New Jersey’s ban, the court’s majority said.
Pro-regulation litigators say the ruling underlines a broader trend, mostly in liberal jurisdictions with judges considering challenges to blue states’ gun regulations. Judges are coalescing around a theory that the text, history, and tradition of US firearm regulation allows states to ban weapons from many public places, and crowded areas like parks, zoos, beaches, and entertainment districts.
“Six circuits since Bruen and Rahimi have largely upheld sensitive places restrictions,” said Janet Carter, managing director of Second Amendment litigation at Everytown Law. “I’m optimistic that we’ll continue to see these decisions go in our favor because the history is on our side.”
Yet cracks from Wednesday’s ruling highlight the ongoing tension that could trigger further scrutiny by the US Supreme Court, firearms rights experts said. Before Bruen the circuits had converged on tests for gun permits, but that didn’t stop the high court from changing the playing field.
“The Supreme Court does not care one iota if the lower courts of appeals coalesce any one theory that restricts the right to bear arms,” said Mark W. Smith, Ave Maria School of Law Professor and host of a popular Second Amendment YouTube channel.
Colosseum to MetLife Stadium
The Supreme Court explicitly acknowledged that states can ban guns from “sensitive” zones like legislatures, courts, and polling places. For other areas, the justices have said courts should scrutinize historic regulations and weigh whether they’re sufficiently analogous to present-day bans.
But judges are splitting with how to apply that test to modern-day venues with no historic analogues from the 1700s and 1800s. On one side, circuit majorities are deriving principles from historic regulation and mapping them on to modern venues like massive casinos, arenas, and youth recreation centers that didn’t exist at the nation’s founding or the passage of the 14th Amendment—the two historic points of focus.
“It certainly can’t be the case that the laws on the books have to look exactly like when the Second Amendment or Fourteenth Amendment were ratified,” David Pucino, legal director and deputy chief counsel for Giffords Law Center to Prevent Gun Violence said. “What’s relevant is what the laws say about the original public meaning of the Second Amendment.”
Conservative dissenters are pointing out that a lack of historic regulation of these types of venues cuts against deeming them “sensitive places.”
While “colonial and early Americans had not yet built fancy NFL stadiums, that is both anachronistic and irrelevant: they could ‘imagine’ large crowds and entertainment venues because they knew classical history, consumed international news, and personally attended enormous entertainment spectacles,” Third Circuit Judge David James Porter wrote in his partial dissent from the Sept. 10 ruling.
Dillon Harris, a Pennsylvania firearm rights litigator at Prince Law Offices PC, said certain modern venues might be “novel” compared to prior centuries, but that doesn’t support the flexibility courts are employing.
“It seems like some courts are making a decision and working backwards to justify it,” he said.
‘Vampire Rule’
The Trump Justice Department is calling on the US Supreme Court to put guardrails on the boundaries of “sensitive places,” especially when state restrictions deal with private property.
While the circuits have been upholding many states’ public area restrictions, including on public transportation, the courts are mostly rejecting gun bans on forms of private property such as personal vehicles and stores open to the public.
A US Court of Appeals for the Ninth Circuit ruling last year split along this issue. It found California’s default ban on firearms on private property absent signage allowing them violated the Second Amendment, but it upheld Hawaii’s default restriction which said private property owners could consent to guns “orally, in writing, or by posting appropriate signage on site.”
These restrictions, colloquially called “vampire laws"—stemming from the myth that vampires can only enter property if affirmatively welcomed in—could be the issue that convinces the justices to rein in the circuits’ sensitive place analysis, said Leo Bernabei, a researcher at the University of Wyoming College of Law’s Firearms Research Center and attorney with Mendes & Mount LLP.
If not, he said, courts could continue using a series of principles that, “when you combine them all, imposes an extremely immense burden on the right to carry in public.”
But rights also exist for property owners, said Shira Lauren Feldman, director of constitutional litigation at Brady United Against Gun Violence.
“We keep talking about it in terms of Second Amendment rights of people going onto property, but it’s been a mistake to not think about it as the Second Amendment rights of the people whose property it is,” she said. “There’s clearly an inherent tension with you having a firearm to defend your property and someone bringing a firearm onto your property.”
Everytown for Gun Safety, which advocates gun-safety measures, is backed by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.
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