The Revived Second Amendment: Concealed Carry And “Sensitive Places”

In New York State Rifle & Pistol Association v. Bruen, the Supreme Court found a New York state law unconstitutional that conditioned the granting of a license to carry a handgun on the applicant’s showing that they had a special need or good cause for the license. The New York law defined “good cause” narrowly, and the state officials making those determinations had almost total discretion to decide if an applicant had shown “good cause.” Showing, for example, that you lived in a high crime area was not sufficient. Instead, the applicant would need to prove that they faced a specific and personal threat. Under these conditions, few permits to carry a firearm were issued.

When Bruen was decided, the vast majority of states had either eliminated the need for a permit to carry a handgun or granted a carry permit under a “shall issue” standard. Under the “shall issue” standard, the state must issue a carry permit to an individual who meets the age requirement, passes a background check, and completes some type of training program. In Bruen, the Supreme Court held that New York state would have to use a “shall issue” model for granting permits.

After Bruen, states with “may issue” laws needed to convert those laws to “shall issue” laws. One of those states was California. When California amended its “may issue” law, in light of Bruen, it gave with one hand and took away with the other. California implemented a “shall issue” framework for issuing permits, but then made those permits meaningless by prohibiting the carrying of firearms in the vast majority of places within the state.

In Bruen, the Supreme Court acknowledged that states can prohibit the carrying of firearms in some places. These locations are sometimes referred to as “sensitive places.” The phrase “sensitive place” is problematic. It suggests that a common denominator exists that links together many different types of places. The reality is that states do not agree on what constitutes a “sensitive place.” Some states, for example, allow the carrying of firearms in some government buildings, while others prohibit the carrying of a firearm in any building owned or leased by the government. Some states allow individuals to carry a firearm on mass transit buses and trains, while other states prohibit it. Some states allow the carrying of firearms in parks, while others prohibit the carrying of a firearm in any park. Constitutional rights are not so malleable.

What can make a certain location rise to the level of a “sensitive place” for purposes of the Second Amendment was not an issue before the Supreme Court in Bruen. The Supreme Court did nonetheless address, to a limited extent, what can constitute a “sensitive place.” The Supreme Court’s list, however, was extremely limited: “legislative assemblies, polling places and courthouses.” The Supreme Court cautioned, however, that a state’s indiscriminately expanding the list of “sensitive” or prohibited places would “eviscerate the general right to publicly carry arms for self-defense . . .” The Supreme Court also threw cold water on the suggestion that a state can prohibit the carrying of firearms in any location were large numbers of people congregate. After Bruen, many issues remain as to what places can actually rise to the level of a “sensitive place” under the Second Amendment.

While the Supreme Court in Bruen did not rule on what constitutes a “sensitive place,” it did provide a methodology for evaluating Second Amendment claims. Determining the Second Amendment’s scope is an inquiry that must be informed by history. Whether a state can prohibit the carrying of a firearm in certain locations turns on whether the state or the federal government can show that such locations or similar types of locations were protected at the time the Second Amendment was enacted and in the early to mid-1800s. The Supreme Court explained that:

Analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one hand, courts should not ‘uphold every modern law that remotely resembles a historical analogue,’ because doing so ‘risk[s] endorsing outliers that our ancestors would never have accepted. . .” On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.

The Supreme Court’s decision in Bruen has set the stage for a reevaluation of what can and cannot constitute a “sensitive place” under the Second Amendment. This has become a flashpoint in states that had to replace their “may issue” laws with “shall issue” laws. California was one such state.

When California replaced its “may issue” law with a “shall issue” law, it also vastly expanded the list of places in which carrying a firearm was prohibited. Under California’s new “shall issue” law, it is possible to get a carry license, but it is practically impossible to carry a handgun when going anywhere. Not surprisingly, the new California law was quickly challenged.

In May v. Bonta, the plaintiffs challenged many of California’s prohibited place designations. The federal district court hearing the case stated that California’s broad list of prohibited places was “repugnant to the Second Amendment, and openly defiant of the Supreme Court.” The court stated that the new California law “turns nearly every public place in California into a ‘sensitive place,’ effectively abolishing the Second Amendment rights of law-abiding and exceptionally qualified citizens to be armed and to defend themselves in public.”

In addressing California’s list of prohibited places, the court pointed out that very few laws existed in the 1700s and early to mid-1800s recognizing “sensitive places” where firearms were prohibited. For example, with respect to schools, the court pointed out that in the 1870s, two states prohibited carrying a concealed pistol in a school. Those laws, however, did not apparently prohibit the open carrying of a firearm in a school. One other state prohibited both the concealed and open carry of a firearm in a school. During the mid to late 1800s, some other prohibitions existed, but even these were generally limited in their scope and were directed at the concealed carrying of firearms. The open carrying of handguns and rifles was rarely regulated by state law. Research may find some additional limitations on where individuals could carry firearms in the 1700s and 1800s, but for now, the list of “sensitive places” when the Second and Fourteenth Amendments were enacted is extremely limited.

Going over each “sensitive place” designation contained in the California law that was addressed in May is beyond the scope of this article. A comprehensive review is, however, unnecessary, because a few examples will show how the court analyzed California’s prohibitions. One of the “sensitive place” designations challenged in May was California’s prohibition on carrying a firearm in any hospital (public or private), medical office or “other place at which medical services are customarily provided.” The court held that the blanket prohibition on carrying a firearm in these places was unconstitutional. California was unable to identify one law in the 1700s or 1800s that prohibited the carrying of firearms in such locations.

California argued, instead, that the few laws prohibiting the carrying of a firearm in schools showed a legislative tradition of prohibiting the carrying of firearms in any location in which a “vulnerable population” is found. There are several problems with this argument. First, two of the three laws California identified only prohibited the concealed carry, not the open carry, of firearms in such locations. Second, hospitals existed in the 1800s, and the absence of any such laws prohibiting the carrying of firearms in a hospital strongly suggests that carrying a firearm in a hospital was not a concern. Third, the concept of a “vulnerable population” is so undefined and flexible that it could justify prohibiting the carrying of a firearm in almost any location. California’s argument was, as a practical matter, a request that the court make a policy decision and not follow the Supreme Court’s guidance in Bruen. The court rejected this invitation.

For similar reasons, the court struck down California’s designation of any restaurant that also serves alcohol as a sensitive place. California could not point to any legislative tradition prohibiting the carrying of firearms in restaurants. While California did not have to find a perfect historic match, it did have to find some laws that imposed a “comparable burden on the right of armed self-defense and whether that burden is comparably justified.” Given the sheer number of restaurants in California, the frequency with which people go to restaurants and the impact California’s prohibition would have on the right to carry a firearm, California needed to show more than the few state laws it presented to the court that did not even address restaurants.

California also prohibited the carrying of firearm in any privately owned business, unless the business posted a sign stating that persons with a carry license “are permitted to carry firearms on the property.” The court held that this prohibition also violated the Second Amendment. California did not cite any laws from the 1700s or 1800s that supported this sweeping prohibition. First, some of the laws California cited in support of its prohibition were designed to prevent hunting on other people’s private land. Second, the laws cited by California addressing the carrying of firearms on private property were not relevant because these laws covered property that was not open to the general public. Third, California could not point to any laws, let alone a legislative tradition, that put the burden on private businesses to declare their support with respect to the carrying of firearms on their property. The court viewed this restriction as creating a “universal default presumption against carrying firearms in public places” that placed an extreme burden on the right to carry a firearm.

The Supreme Court’s decision in Bruen has triggered resistance from both states and some lower courts. The question now becomes how the majority of appellate courts are going react to the revitalized Second Amendment and the current efforts by some states to undermine Second Amendment rights.

When it comes to safeguarding the rights enshrined in the Second Amendment, The Law Offices of George M. Sanders, P.C. is a trusted partner you can rely on. With over three decades of experience in complex litigation and an unwavering commitment to defend civil liberties, there is no better ally in the fight for your right to bear arms. This right is one we staunchly advocate for, going up against government infringement and standing alongside those facing legal challenges related to carrying a firearm. Reach out to us today – let us defend your Second Amendment rights.