After a recent U.S. Supreme Court decision affirmed the right to carry firearms in public places for self defense, state laws that ban guns in “sensitive” locations are being challenged in the next era of the battle over the Second Amendment.
Amid the decision, pro-gun advocates have filed lawsuits attempting to walk back those state laws.
One such lawsuit was filed in Illinois to reverse the firearm ban on public transportation against Illinois Attorney General Kwame Raoul and four different county state’s attorneys.
Filed on behalf of four individuals, the complaint asserts the plaintiffs should have a constitutional right to carry guns on public transportation and is asking for the law to be overturned as well as receive compensation for the costs of moving forward with the lawsuit.
“[The plaintiffs] all allege they would use public transportation either at all or more and they refrain from doing so because they don’t feel safe if they have to be disarmed when they do it,” said David Sigale, the attorney representing the plaintiffs.
Raoul and the county state’s attorneys all submitted a response to the complaint on Dec. 13, with the exception of Cook County State’s Attorney Kim Foxx who submitted a separate response.
Raoul and the other three county state’s attorneys maintain the plaintiffs aren’t subject to any relief because they have not suffered any injury as a result of the law. Since the plaintiffs have not actually broken the law that bans firearms on public transportation, Raoul and the county state attorneys allege the plaintiffs are not seeking relief as a result of those consequences.
Sigale’s lawsuit is supported by the Second Amendment Foundation and the Firearm Policy Coalition.
“We believe that any statute that is choosing to disarm individuals, simply because the way they get from point A to point B is public transportation, is not only unconstitutional, it is immoral,” Bill Sack, director of legal operations at the Firearm Policy Coalition said.
Esther Sanchez-Gomez is a litigation director at Giffords Law Center, a gun violence prevention organization led by former U.S. congresswoman Gabrielle Giffords.
According to Gomez, the Second Amendment doesn’t extend to just any public space.
“Just because you want to have it at every step doesn’t mean you get to. and I don’t think that the Second Amendment protects you in those contexts because the state has a responsibility and an obligation to protect the general public in those situations as well,” Gomez said.
Earlier this year, Raoul led a coalition of 14 attorney generals in support of a D.C. law that would prohibit firearms on public transportation including its Metrorail transit system and stations.
The brief, filed on Sept. 23 in the U.S. District Court for the District of Columbia, argues the state has the authority to regulate firearms in “sensitive places” where they pose unique dangers, including schools, houses of worship and public parks.
For Illinois and five other states, “sensitive” locations include public transportation.
Gomez identifies three categories that determine whether a location is a sensitive place: the type of activities being done in a location, the type of people there and the density of the crowd. Public transportation, she says, applies to the second two categories.
“You definitely have kids and other people who rely on public transportation to get to school, in addition to people traveling to get to work…But it’s also crowds of people, when you get to rush hour and you hop on the subway, you’re shoulder to shoulder with people,” Gomez said.
The recently decided U.S. Supreme Court case New York State Rifle & Pistol Association Inc. v. Bruen has fueled this debate over where people can carry firearms.
Decided in June, Bruen established a broader understanding of the Second Amendment, asserting individuals have the right to carry guns for self defense.
The decision ruled a New York law unconstitutional, which established a person needs to show special need to carry their gun outside of the home for self defense.
For Sigale and Sack, the effort to expand sensitive locations is a violation of this ruling.
“The government is going to make sensitive locations as broad as it can, and I think in many cases, that’s going to be overbroad,” Sigale said. “And so this is one…public transportation, and because it violates the Supreme Court’s mandate from the Bruen case, it violates the Constitution.”
Sack mirrored this sentiment, saying the expansion of sensitive locations essentially makes the right to bear arms obsolete.
“The response from these anti-gun jurisdictions was to try to take the sensitive locations, what they perceived as a loophole, and expand it very broadly,” Sack said.
But Gomez says the U.S. Supreme Court has always been clear about sensitive locations and this decision doesn’t change that.
“I don’t think they’ve been ambiguous about it,” Gomez said. “And I think a lot of these challenges that are really trying to push to make every space this gun zone are not what the Supreme Court wanted.”
The Bruen case is the first big Second Amendment case decided by the U.S. Supreme Court since District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010). The Heller case affirmed the right for an individual to have a gun in their home for self defense. But, the case also determined exceptions to the rule.
“Like most rights, the right secured by the Second Amendment is not unlimited. [It is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” Justice Antonin Scalia wrote in his decision.
The McDonald case, then, ruled the Heller decision applied to local and state governments as well but, again, affirmed the exception of sensitive locations.
Similar challenges to sensitive place restrictions as seen in Illinois have been filed in New York and D.C and more are expected to follow from gun rights supporters.
