How is American Freedom Too Sensitive for Public Spaces?

by
posted on February 26, 2024
Gun Free Zone Illustration of NYC
Kathy Hochul: Erik Pendzich/Alamy; Gun Free Zone sign: Erin Alexis Randolph/Alamy; Times Square: Tomas Eidsvold/Unsplash; New York City skyline: Norbert Nagel/Creative Commons; image composite: A1F Staff

If a freedom-loving NRA member from, say, 1994, had been able to look into a crystal ball and see 30 years forward to today, they’d no doubt be pleased and perhaps a bit jealous, but also a little perplexed.

They’d notice the U.S. Supreme Court decisions in D.C. v. Heller (2008), McDonald v. Chicago (2010) and New York State Rifle & Pistol Association v. Bruen (2022), which together decree that the Second Amendment is not a second-class right. It protects each law-abiding citizen’s right to own and carry firearms for self-defense and for other legal purposes. They’d be pleased to see this.

They’d notice the massive expansion of constitutional carry, the passage of the Protection of Lawful Commerce in Arms Act in 2005 and the huge growth in gun ownership and of concealed carry in general and, again, they’d be pleased.

They’d see all the new and useful carry options in handguns, holsters and more and would likely be a little jealous.

Indeed, they’d marvel at the renaissance for this freedom.

But they’d also shake their heads and clench their fists at the endless, and often novel, attacks from gun-control proponents on our Second Amendment rights.

And then, finally, they’d have to be perplexed as they wondered what this “sensitive-places” thing is all about.

If, in an attempt to understand this issue, they used the crystal ball to peek in on speeches from New York Gov. Kathy Hochul (D) and California Gov. Gavin Newsom (D), they’d hear them say that our Second Amendment freedom is too sensitive a thing for law-abiding citizens to practice in public. They’d notice that just about everywhere, according to these governors, now has to be a “sensitive place,” meaning that law-abiding citizens can’t be trusted with their freedom in public.

They’d notice that it is irrelevant to Hochul and Newsom—and, for that matter, to President Joe Biden (D)—that criminals, including terrorists and psychopaths, tend to pick so-called “gun-free zones” to commit their evil atrocities in.

They’d also notice that, in stark contrast to these politicians’ claims, a lot of modern studies show that armed citizens use guns to stop criminal attacks on themselves and others, depending on what study is cited, well over a million times per year—mostly without even pulling a trigger. They’d then see that, instead of using this data to steer public policy, politicians like Hochul, Newsom and Biden act like this data doesn’t exist as they continue to blame good citizens who own and carry guns for the actions of criminals.

Anyone with such a crystal ball would clearly see these politicians are not making good-faith arguments. It would then be clear to this person from 30 years ago that so-called “sensitive-place” restrictions are just the latest means being used by gun-control activists in government and elsewhere to strip away this natural right from the people.

The Latest Legal Fronts
Last December, for example, a federal judge in Newsom’s California temporarily blocked a law written to ban the carrying of firearms in most public places. U.S. District Judge Cormac Carney granted a preliminary injunction blocking the California law. Judge Carney called the sensitive-places law “sweeping, repugnant to the Second Amendment, and openly defiant of the Supreme Court.” The judge also said the law deprives people of the ability to defend themselves and their loved ones.

But, just 10 days after Judge Carney called California’s new carry law “repugnant” and granted a preliminary injunction blocking it, an appeals court put the injunction on hold, allowing the law to take effect.

The law, signed by Newsom last September, prohibits people from carrying concealed guns in public parks, playgrounds, churches, banks, zoos and many other places. Like New York’s law has tried to do, it was even written to ban concealed carry in any private store that doesn’t put up a sign saying that people can carry concealed in the establishment—the First Amendment makes that an unconstitutional imposition, as it forces speech.

But then, as this issue was going to print, the U.S. Court of Appeals for the Ninth Circuit reinstated Carney’s preliminary injunction. So, at the time, this portion of the law was back on hold.

Interestingly, Judge Carney did say that, in his opinion, freedom-loving citizens challenging the law are likely to succeed in proving it unconstitutional.

Whatever the case, as in New York, officials in California are attempting to get around the U.S. Supreme Court’s Bruen decision, a decision that ruled that, for a gun-control law to be constitutional, it must be “consistent with the nation’s historical tradition of firearm regulation.”

Gov. Gavin Newsom illustration“California progressive politicians refuse to accept the Supreme Court’s mandate from the Bruen case and are trying every creative ploy they can imagine to get around it,” said California Rifle & Pistol Association President Chuck Michel.

Michel also said that, under the law, concealed-carry permit holders “wouldn’t be able to drive across town without passing through a prohibited area and breaking the law.” He also noted that the judge’s decision in this case would make Californians safer because criminals are deterred when law-abiding citizens can defend themselves.

Meanwhile, Newsom had said that Judge Carney’s “ruling outrageously calls California’s data-backed gun-safety efforts ‘repugnant.’ What is repugnant is this ruling, which greenlights the proliferation of guns in our hospitals, libraries and children’s playgrounds—spaces which should be safe for all.”

Newsom used the phrase “data-backed gun safety” as if he didn’t know the actual data at issue. Citizens with concealed-carry permits—or those who can lawfully carry in states with constitutional carry—statistically almost never commit violent crimes. Study after study shows that these citizens are not a problem, but that they can be part of the solution if a criminal decides to harm individuals in a park, public square or other traditionally open place. It is therefore repugnant that Newsom, Hochul and Biden want to prevent good citizens from having the chance to protect themselves from those with evil intentions.

So, Exactly What Are Sensitive Places?
Historically, true sensitive places have included courtrooms, the White House, congressional buildings and other very specific, controlled spaces. In all of American history, however, they have never included all public parks, private churches and private shops—privately owned stores have, traditionally, been able to decide whether they want to prohibit, by their own discretion, concealed or open carry on their property.

To Hochul and Newsom, however, the expansion of sensitive places is a useful way to attempt to subvert Bruen. The U.S. Supreme Court’s Bruen decision effectively destroyed the heavily abused “may-issue” licensing regimes in the jurisdictions that still used them to decide, based on the opinions or feelings of some licensing official, whether a law-abiding citizen could utilize this portion of the U.S. Bill of Rights.

Basically, after the Bruen ruling, anti-Second Amendment politicians found themselves facing the prospect of having to allow law-abiding citizens to buy and carry guns, so they looked for and found a possible legal mechanism in the McDonald decision to which Bruen made reference: “To be clear, even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster. For example, courts can use analogies to ‘longstanding’ ‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings’ to determine whether modern regulations are constitutionally permissible.”

So, gun-control activists in several state governments decided to declare that almost everywhere is a “sensitive area.” It didn’t matter to them that this expansion of sensitive-place restrictions does not have historical precedents in the law to make it constitutional.

Indeed, by doing this, they ignored this part of the Bruen decision: “That said, respondents’ attempt to characterize New York’s proper-cause requirement as a ‘sensitive-place’ law lacks merit because there is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place’ simply because it is crowded and protected generally by the New York City Police Department.”

Now, New York officials might argue that the “gun-free zones” they created with expansive sensitive-place restrictions do not cover the entire island of Manhattan, just every park, subway, bus, government building, church, all the restaurants and stores that don’t hang signs saying citizens can carry and more.

But then, no parent would accept that attempt at subterfuge from a child. Judges should see this as an obvious affront to the Supreme Court. Hochul, in fact, said as much.

“In response to the Supreme Court’s decision to strike down New York’s century-old concealed-carry law, we took swift and thoughtful action to keep New Yorkers safe,” said Gov. Hochul. “I refuse to surrender my right as governor to protect New Yorkers from gun violence or any other form of harm.”

So, she is refusing to “surrender” to the constitutional authority of the U.S. Supreme Court.

Meanwhile, Hochul is again accusing lawful gun owners with concealed-carry permits of being responsible for “gun violence.” As all the data shows unequivocally that permit holders basically don’t commit violent crimes, she must know this is a lie. She is just hoping that citizens who only read or watch media outlets favorable to her (which is a majority of those in New York) will fall for it.

Some of the historical precedents now being used to justify today’s expansive gun-control regulations were racist laws written to disenfranchise minorities.

Put another way, Hochul is hoping that a majority of voters will blame American freedom for any trouble they see on the streets and subways rather than the bad policies from state and local officials or the criminals committing the crimes. Accomplishing this requires people to close their eyes and minds. If, for example, a person literally or figuratively holds the pages of The New York Times in front of their face, they indeed might miss the fact that lawfully armed citizens are not to blame for the rise in crime. If that ploy works—and it might in New York—it will continue to enable bad policy.

A less-compliant media would ask Hochul why she is ignoring all the crime data that shows that lawfully armed citizens are not a crime problem. Such an honest public discussion might help to show that the overly broad use of sensitive-place restrictions is not a crime-fighting plan; it is, rather, simply a way to disempower the citizenry.

And it is a bad idea that has spread from New York state. And not just to California. In another example, legislators in New Jersey followed New York by prohibiting carry on private property, such as in stores, unless “the property owner expressly communicates permission through express consent or specific signage.”

To show how outrageous this is, ask anyone who might not know much about this topic if they can imagine any other constitutionally protected right being treated this way.

What’s Next for Sensitive Places?
As was noted earlier, Bruen requires a current law to have an equivalent or analogous law in the Founding era, when the states ratified the Second Amendment. While the Bruen opinion held that “we have generally assumed that the scope of the protection applicable to the Federal Government and States is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791,” the majority opinion also said that “there is an ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 when defining its scope.” So, perhaps, a mid-19th century gun law could be used to justify a newer gun-control law.

This has sent gun-control-supporting law firms and quite a few government attorneys searching for examples to defend California’s sensitive-places law. Of 13 “expert” declarations filed by the state of California in May v. Bonta (2023), seven don’t even identify a single pre-1868 law limiting firearms carrying, one lists a few railroads that had rules requiring firearms to be in checked luggage—mostly after 1868—and another lists an illegal confiscation of firearms after a riot.

The lawyers and researchers aren’t finding much. This is why some have actually tried to use old racist regulations and laws to justify challenged gun-control laws, as the few historical precedents for such expansive gun-control regulations were often racist laws that were written to disenfranchise particular minority groups.

So, to someone from 1994, this would seem a weird place for us to be, indeed. A lot of progress has been made, but keeping and winning back this freedom is still contingent on elections, as politicians nominate and vote on the judges who hear such cases. If enough judges get appointed who are willing to put their politics in the way of our freedom, then the Second Amendment may indeed be treated however Hochul, Newsom and Biden desire.

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