Should guns be banned in bars, hospitals? Supreme Court case could spur new 2nd Amendment fight – USA TODAY


If Democratic-led states and cities lose a major gun rights case at the Supreme Court, experts predict the next Second Amendment battleground will focus on banning firearms in “sensitive” places.

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  • In 2008 and 2010, the Supreme Court ruled that Americans have a right to keep a gun in their homes.
  • But the high court left unresolved the question of whether that right extends to public places.
  • If the court expands the right to carry a gun outside the home, the next fight will be about state efforts to regulate guns in public.

WASHINGTON – A major Second Amendment case pending at the Supreme Court is energizing a debate over how far cities and states may go to ban guns in “sensitive” places, such as bars, hospitals and sports stadiums.

Though the question isn’t up for consideration, experts predict it will be soon.

The Supreme Court is set to decide this month whether New York may demand residents demonstrate “proper cause” to carry a handgun in public. A majority of justices indicated during arguments last fall they are skeptical of New York’s requirement – signaling a result that would leave cities and liberal states scrambling for a Plan B.

“‘Sensitive places’ is the next major Second Amendment battleground,” said Adam Winkler, a UCLA School of Law professor. “States like New York and California that currently restrict concealed carry pretty severely are not just going to throw up their hands and surrender.”

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The high court’s decision and the fallout from it will land as the nation once again grapples with a series of mass shootings, including one at an elementary school in Uvalde, Texas, last month in which 19 students and two teachers were killed. The shooting prompted bipartisan momentum in Congress for gun control legislation.

While Washington considers limited measures, Democratic-led states and major cities such as New York may attempt more sweeping policies in response to the ruling.

Up for debate: Defining ‘sensitive places’

Nearly 15 years ago, a 5-4 majority of the Supreme Court endorsed the idea that sensitive place regulations for schools and government buildings could withstand constitutional scrutiny. The question likely to vex lawmakers and courts, experts said, is whether limitations on the right to carry a gun in public are  justified in other places – such as subways, college campuses and public protests.

“The question becomes, how do you define a sensitive place for constitutional purposes?” said Eric Ruben, a law professor at Southern Methodist University and a fellow at the Brennan Center for Justice. “That’s a question that’s not before the Supreme Court right now. But I expect it to be in the coming years.”

Depending on how the court rules in the New York case, the decision could prompt cities and states to impose licensing requirements, such as mental health assessments and training.

At issue in the case is a century-old state law that requires residents to have “proper cause” to carry a handgun – in other words, a need for a permit that is greater than the general public. Two upstate New Yorkers, joined by the New York State Rifle and Pistol Association, sued when a licensing official denied them carry privileges.

The nation’s highest court hasn’t weighed in on the Second Amendment in more than a decade. In a pair of cases, one in 2008 and the other in 2010, a majority of the court affirmed the right of Americans to possess guns at home for self-defense. The court left unanswered questions about carrying those weapons into public places.

During oral arguments in November, the justices quizzed the parties on how far states may go regulating where people may carry guns. They peppered the plaintiffs with hypotheticals about whether officials could ban handguns on the New York City subway, at New York University or at Yankee Stadium.

“Can they say you cannot carry your gun at any place where alcohol is served?” Chief Justice John Roberts asked. “What about a football stadium?”

A federal appeals court struck down a similar requirement in Washington in 2017. The city, which for years had some of the strictest gun laws in the nation, issues licenses to carry concealed handguns but has a lengthy list of places where guns are prohibited, including public transit, polling places, churches and synagogues, hospitals and private businesses that post “conspicuous signage” barring guns.

Virginia passed a law two years ago giving local governments broad power to prohibit guns in parks, community centers and streets and sidewalks next to events.

“If the Supreme Court endangers public safety by wrongly overturning New York’s public carry licensing law, lawmakers’ to-do lists should start with fixes to keep guns out of sensitive places like bars, parks and government buildings,” said Shannon Watts, founder of Moms Demand Action, which advocates for strong gun laws.

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Amy Hunter, a spokeswoman for the National Rifle Association, said in a statement that the case before the Supreme Court “has nothing to do with ‘sensitive places.’” The issue, she said, was only raised “by the state of New York when they realized they were going to lose.” Now, she said, the issue is “being employed by gun ban lobbyists.”

Second Amendment advocates and conservative groups are nevertheless closely watching. In a brief filed last year in the New York case, the libertarian Independent Institute argued that “gun-free” zones historically were limited to places where the government provided security, such as courthouses and airports.

“The court should not only agree with petitioners that the Second Amendment protects the right to bear arms outside the home but, in so doing, also explain that the Second Amendment does not leave room for the government to eviscerate this right through the unbridled declaration of public gun-free zones,” the group wrote.

Paul Clement, a former solicitor general in President George W. Bush’s administration who argued the New York case for the plaintiffs, told the justices he was “a little bit reluctant” to embrace the idea that government-provided security alone should be the threshold to justify banning guns in specific places. Under that rubric, he said, cities might try to prohibit guns broadly in, say, entire neighborhoods by pointing to large police forces. 

Instead, Clement suggested federal courts consider whether the building or space at issue prohibits all weapons and not just guns, whether it allows anyone through the doors or restricts access and whether it’s a space where “weapons are out of place.”

Scope of ruling will determine gun rights debate

The impact of the court’s ruling depends on its scope. A majority could decide that the presumption baked into New York’s rules – that most residents are not entitled to carry a gun – is unconstitutional. That more limited ruling would implicate similar laws in eight states – including California, New Jersey and Massachusetts – that together make up a quarter of the nation’s population.

The justices could go further and rule that the Second Amendment guarantees a right to carry a handgun in public, just as they ruled in 2008 that the Constitution guarantees that right inside the home. That outcome could have more sweeping implications for laws that impose licensing and other requirements. 

Either way, experts said, the decision will prompt a response from cities and states and – almost certainly – more litigation.  

“This Supreme Court case is not going to be the last word,” Winkler said. “We’re likely to see years of litigation over the right to carry concealed firearms.”

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