Amicus Curiae Brief — New York State Rifle & Pistol Association, Inc., et al., Petitioners v. Kevin P. Bruen, in His Official Capacity as Superintendent of New York State Police, et al.

Supreme Court briefJul 20, 2021

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No. 20-843

In The

Supreme Court of the United States

___________

NEW YORK STATE RIFLE & PISTOL

ASSOCIATION, INC., et al.,

Petitioners,

KEVIN P. BRUEN, IN HIS OFFICIAL CAPACITY AS

SUPERINTENDENT OF NEW YORK STATE

POLICE, et al.,

___________

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

__________

BRIEF OF AMICUS CURIAE

MADISON SOCIETY FOUNDATION, INC.

IN SUPPORT OF PETITIONERS

__________

ADAM J. KRAUT

Counsel of Record

FIREARMS POLICY COALITION

1215 K Street, 17th Floor

Sacramento, CA 95814

P: (916) 378-5785

E: akraut@fpclaw.org

TABLE OF CONTENTS

Page(s)

TABLE OF CONTENTS .............................................. I

TABLE OF AUTHORITIES ...................................... III

INTEREST OF THE AMICUS CURIAE .................... 1

SUMMARY OF ARGUMENT ...................................... 2

ARGUMENT ............................................................... 3

I. OUR NATION’S HISTORY AND TRADITIONS

SHOULD

INFORM

THE

COURT’S

INTERPRETATION OF THE ENUMERATED

RIGHT TO BEAR ARMS. ....................................... 3

II. THE FOUNDING ERA IS THE RELEVANT

TIME PERIOD FOR DETERMINING THE

ORIGINAL

UNDERSTANDING

THE

SECOND AMENDMENT. ...................................... 5

A. This Court should look to founding-era history

and practices, rather than later periods, to

deduce the original public meaning of the

right. ................................................................... 6

B. The Constitution’s original public meaning and

founding-era practices lead to the proper

answer even for ‘close calls.’ .............................. 7

III.UNDER

HISTORICAL

ANALYSIS

CONSISTENT

WITH

HELLER,

PUBLIC

PLACES WERE NOT UNDERSTOOD TO BE

“SENSITIVE PLACES” WHERE ARMS COULD

NOT BE CARRIED. .............................................. 10

IV. BECAUSE INDIVIDUALS HAVE A RIGHT TO

CARRY ARMS IN PUBLIC, THE “SENSITIVE

PLACES” DOCTRINE CANNOT SWALLOW THE

RULE. .................................................................... 16

CONCLUSION ........................................................... 19

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Ass’n of New Jersey Rifle & Pistol Clubs Inc. v.

Attorney Gen. New Jersey,

974 F.3d 237 (3d Cir. 2020) ...................................... 8

Deshaney v. Winnebago Cty. Dep't of Soc. Servs.,

489 U.S. 189 (1989) ................................................. 16

District of Columbia v. Heller,

554 U.S. 570 (2008) ......................................... passim

Duncan v. Becerra,

366 F. Supp. 3d 1131 (S.D. Cal. 2019) ..................... 9

Duncan v. Becerra,

970 F.3d 1133 (9th Cir. 2020)................................... 9

Furman v. Georgia,

408 U.S. 238 (1972) ................................................... 6

Gamble v. United States,

139 S. Ct. 1960 (2019) ........................................... 4, 7

Heller v. District of Columbia,

670 F.3d 1244 (D.C. Cir. 2011) ................................. 8

Lange v. California,

141 S. Ct. 2011 (2021) ............................................... 6

Mai v. United States,

974 F.3d 1082 (9th Cir. 2020)................................... 9

Mance v. Sessions,

896 F.3d 390 (5th Cir. 2018)..................................... 8

Marsh v. Chambers,

463 U.S. 783 (1983) ................................................... 6

McDonald v. City of Chicago,

561 U.S. 742 (2010) ................................................... 2

Muscarello v. United States,

524 U.S. 125 (1998) ................................................. 17

Rocky Mountain Gun Owners v. Hickenlooper,

371 P.3d 768 (Colo. App. 2016) ................................ 9

State v. Roundtree,

2021 WI 1, 395 Wis. 2d 94, 952 N.W.2d 765 ........... 9

State v. Weber,

2020-Ohio-6832, 163 Ohio St. 3d 125 ...................... 9

Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503 (1969) ................................................. 17

Town of Castle Rock v. Gonzales,

545 U.S. 748 (2005) ................................................. 16

Tyler v. Hillsdale County Sheriff’s Office,

837 F.3d 678 (6th Cir. 2016) (en banc) .................... 8

United States v. Watson,

423 U.S. 411 (1976) ................................................... 7

Virginia v. Moore,

553 U.S. 164 (2008) ................................................... 7

Statutes and Regulations

1778 N.J. Laws 44-45 ................................................. 11

18 Pa. Cons. Stat. Ann. § 913 .................................... 17

Ariz. Rev. Stat. § 13-3102........................................... 17

Ariz. Rev. Stat. § 13-3102.01...................................... 17

Ga. Code Ann. § 16-11-127 ......................................... 18

Kan. Stat. Ann. § 75-7c20 .......................................... 18

N.H. Rev. State. Ann. § 159:19 .................................. 18

Ohio Rev. Code Ann. § 2923.123 ................................ 18

Rev. Code Wash. § 9.41.300 ....................................... 18

Other Authorities

An Ordinance for the Government of the Territory of

the United States Northwest of the River Ohio, in

DOCUMENTS ILLUSTRATIVE OF THE FORMATION OF

THE UNION OF THE AMERICAN STATES (1928) ......... 12

Carlos Santos, Bad Boys: Tales of the University’s

tumultuous early years, VIRGINIA (Winter 2013)... 12

David B. Kopel & Joseph G.S. Greenlee, The Second

Amendment Rights of Young Adults, 43 S. ILL.

U.L.J. 495 (2019) ..................................................... 11

David B. Kopel & Joseph G.S. Greenlee, The

“Sensitive Places” Doctrine: Locational Limits on

the Right to Bear Arms, 13 CHARLESTON L. REV.

203 (2018) .......................................................... 12, 15

ST. GEORGE TUCKER, BLACKSTONE’S COMMENTARIES

VOL. 1 (1803) ............................................................ 19

INTEREST OF THE AMICUS CURIAE1

Madison Society Foundation, Inc. is a Nevada

non-profit organization that defends and promotes the

Constitution of the United States, in particular the

right to keep and bear arms. Formed in 1996, MSF

works through research, education, and legal efforts,

and has appeared in numerous “friend of the court”

briefs, including before this Court. MSF contends that

the fundamental Second Amendment right includes

the right to carry firearms in public for self-defense.

1 All parties consented to the filing of this brief. No counsel

for any party authored the brief in any part. No person or

organization other than the amicus or their counsel made a

monetary contribution for the preparation or submission of the

brief. Amicus is not publicly traded and has no parent

corporations. No publicly traded corporation owns 10% or more

of Amicus.

SUMMARY OF ARGUMENT

This

Court

identified

several

laws

“presumptively lawful” in District of Columbia v.

Heller, including “longstanding . . . laws forbidding

the carrying of firearms in sensitive places such as

schools and government buildings. . . .” 554 U.S. 570,

626–27 & n.26 (2008); see also McDonald v. City of

Chicago, 561 U.S. 742, 786 (2010) (reaffirming

Heller’s language regarding “longstanding regulatory

measures.”).

Being this Court’s “first in-depth examination of

the Second Amendment,” Heller did not expound upon

what it called “sensitive places,” but instead assured

that “there will be time enough to expound upon the

historical justifications for the exceptions we have

mentioned if and when those exceptions come before

us.” 554 U.S. at 635 (italics added).

“Gun-free zones” are not expressly before the

Court, but because Respondents and their amici will

surely attempt to severely restrict the fundamental

right to carry in the instant matter (just as they do

elsewhere), amicus would respectfully offer this

survey of the history—or lack thereof—of certain

location-based restrictions in support of a principled

original public meaning analysis. The Court should

ensure that any statements it makes regarding gunfree zones are consistent with this history.

Americans in the founding generation regularly

carried arms at church and on public lands. Whatever

“sensitive places” exist, these places in particular bear

no historical justification. And where “gun-free” zones

do exist, such a doctrine cannot be utilized to deny the

populace the ability to exercise their fundamental

right to self-defense prior to or immediately after

exiting such a location. Several states offer an

appropriate solution: the ability to check one’s firearm

upon entry.

Should this Court address “sensitive places” or

other “gun-free zones” in this case, it should do so in a

way consistent with the Constitution’s text and

original public meaning.

ARGUMENT

I. OUR

NATION’S

HISTORY

AND

TRADITIONS SHOULD INFORM THE

COURT’S INTERPRETATION OF THE

ENUMERATED RIGHT TO BEAR ARMS.

An analysis of the Second Amendment’s text, as it

is informed by the nation’s history and tradition,

dispositively confirms that the right to “bear arms”

extends beyond the confines of one’s home. Indeed, the

modus operandi of founding-era Americans was to

carry arms in public as part of daily life.

When Heller, in dictum, explained that some laws

“forbidding the carrying of firearms in sensitive places

such as schools and government buildings” may be

“presumptively lawful,” 554 U.S. at 626–27 & n.26, it

merely signaled to future courts that any locationbased restrictions must be substantively justified by

historical practices consistent with the Amendment’s

text.2 The dictum is not a rubber-stamp of approval

2 Presumptions are inherently rebuttable. “A presumption

shifts the burden of production or persuasion to the opposing

for restrictions in any locations a government deems

“sensitive.”

Whatever Heller meant by “sensitive places,” it

surely cannot mean the vast majority of spaces open

to public presence, travel, and accommodation. Such

an improper reading of this Court’s favorably cited

history and case law on the right to bear arms in

Heller—most, if not all, of which respected carry

outside the home—would be absurd. Because

“[c]onstitutional rights are enshrined with the scope

they were understood to have when the people

adopted them,” id. at 634-35, any sensitive-place

analysis must turn on the public understanding of the

Second Amendment at the time of ratification.

Moreover, while history and tradition can be

informative in deducing the public’s understanding, it

cannot limit or alter the original scope of a

fundamental right. See Gamble v. United States, 139

S. Ct. 1960, 1975–76 (2019) (discounting the

importance of treatises “published after the Fifth

Amendment was adopted,” and noting that

nineteenth-century sources were not used to define

the public understanding of the Second Amendment

in Heller, but instead “were treated as mere

confirmation of what the Court thought had already

been established.”).

To be sure, amicus does not suggest that this Court

should “expand” the scope of the Second Amendment,

but rather, respectfully requests that this Court, as a

co-equal branch of our government, restore the scope

party, who can then attempt to overcome the presumption.”

Presumption, BLACK’S LAW DICTIONARY 1435 (11th ed. 2019).

of the right to align with its original public meaning

and practices where the other branches have exceeded

their constitutional limits.

II. THE FOUNDING ERA IS THE RELEVANT

TIME PERIOD FOR DETERMINING THE

ORIGINAL UNDERSTANDING OF THE

SECOND AMENDMENT.

This Court need not wrestle with questions about

“sensitive places”—which are nothing other than

“gun-free zones,” where people are disarmed and

prevented from exercising their fundamental right to

self-defense—as they are beyond the scope of the

matter before it. However, should this Court’s

decision in the instant matter touch upon the times,

places, and manners in which the right to bear arms

may be restricted, such discussion must retain fidelity

to the original public understanding of the scope of the

right.3

3 Amicus limits its historical analysis to the period of time

proceeding the ratification of the Second Amendment through

the first two decades of the 19th century. The reason for this is

simple: “Constitutional rights are enshrined with the scope they

were understood to have when the people adopted them.” Heller,

554 U.S. at 634-35. The time period preceding the founding helps

to inform the public’s understanding leading up to the

ratification of the Second Amendment. And straying too far past

the ratification would result in an interpretation that is akin to

a “living constitution” mode of jurisprudence—a terminally

flawed interpretive method that is inconsistent with the

Constitution and this Court’s Second Amendment cases.

A. This Court should look to founding-era

history and practices, rather than later

periods, to deduce the original public

meaning of the right.

This Courts’ “regular rule” is “that history – not

court-created standards . . . dictates the outcome

whenever it provides an answer.” Lange v. California,

141 S. Ct. 2011, *29 (2021) (Thomas, J., concurring).

And in the case of “sensitive places” where individuals

are completely prevented from exercising their

fundamental right of self-defense, history indeed

provides an answer. In determining that the phrase

“bear arms” referred to the carrying of weapons

outside the militia context, this Court found that

“[t]he most prominent examples are those most

relevant to the Second Amendment: nine state

constitutional provisions written in the 18th century

or the first two decades of the 19th.” Heller, 554 U.S.

at 584.

Indeed, this Court has looked to the public

understanding and tradition of the colonies and at the

founding to inform the scope of other enumerated

rights enshrined in the Bill of Rights. See, e.g., Marsh

v. Chambers, 463 U.S. 783, 787-88 (1983) (discussing

prayer before legislative sessions and referencing

practices of the First Continental Congress, First

Congress, Senate and House Committees, and

payment of Chaplains to perform such services just

three days prior to the agreement on the language of

the Bill of Rights); Furman v. Georgia, 408 U.S. 238,

319-20 (1972) (tracing history of the Founder’s

understanding of cruel and unusual punishment from

English law through the adoption of the Eighth

Amendment); Virginia v. Moore, 553 U.S. 164, 168

(2008) (discussing that the Court looks “to the statutes

and common law of the founding era to determine the

norms that the Fourth Amendment” protects); United

States v. Watson, 423 U.S. 411, 421 (1976) (citing the

Second Congress’s understanding and grant of arrest

powers for a felony without a warrant to federal

marshals as consistent with the Fourth Amendment);

Gamble v. United States, 139 S. Ct. at 1969-78

(reviewing the separate sovereignty exception to the

Double Jeopardy Clause).

Thus, any “limiting principle” this Court might

apply to the right to bear arms must be found in the

substantive history and tradition at the relevant

period described supra. The existence of a restriction,

or even a handful of restrictions, at a time before the

federal Second Amendment applied against the states

is not dispositive evidence of its constitutional

acceptability.4

B. The Constitution’s original public meaning

and founding-era practices lead to the

proper answer even for ‘close calls.’

It would be improper and unnecessary to apply

tiered scrutiny, or any form of interest balancing, even

where history and tradition may be somewhat opaque.

Interest-balancing tests—including for what are

4 To the extent that a state or local restriction was deemed

permissible by a state court despite an arms provision in that

state’s constitution, that may merely show that the state’s

constitution was interpreted to be narrower than the federal

right to keep and bear arms.

sometimes referred to as ‘close calls’ or sometimes

uncomfortable circumstances, such as determining

the historically grounded understanding of “sensitive

places”—are inherently in tension with Heller,

because “[c]onstitutional rights are enshrined with

the scope they were understood to have when the

people adopted them, whether or not future

legislatures or (yes) even future judges think that

scope too broad.” Heller, 554 U.S. at 634-35. The

appropriate method, as previously stated by this

Court, is to apply the principles reflected in the

Founding-era practices to the modern-day restriction.

See Heller v. District of Columbia, 670 F.3d 1244, 1280

(D.C. Cir. 2011) (Kavanaugh, J., dissenting) (“The

Court emphasized the role of history and tradition; it

rejected not only balancing but also examination of

costs and benefits; it disclaimed the need for difficult

empirical judgments . . . and it prospectively blessed

certain laws for reasons that could be (and were)

explained only by history and tradition, not by

analysis under a heightened scrutiny test.”); Mance v.

Sessions, 896 F.3d 390, 394 (5th Cir. 2018) (Elrod, J,

joined by six other judges, dissenting from denial of

rehearing en banc) (“we should apply a test rooted in

the Second Amendment’s text and history—as

required under Heller and McDonald—rather than a

balancing test like strict or intermediate scrutiny.”);

Tyler v. Hillsdale County Sheriff’s Office, 837 F.3d

678, 702 (6th Cir. 2016) (en banc) (Batchelder, J.,

joined by Boggs, J., concurring) (“[I]t is that meaning

[the Second Amendment’s original public meaning]—

as Heller and McDonald make unmistakably clear—

informed as it is by the history and tradition

surrounding the right, that counts.”); Ass’n of New

Jersey Rifle & Pistol Clubs Inc. v. Attorney Gen. New

Jersey, 974 F.3d 237, 252 (3d Cir. 2020) (Matey, J.,

dissenting) (“Heller makes clear that judicial review

of Second Amendment challenges proceeds from text,

history, and tradition.”); Mai v. United States, 974

F.3d 1082, 1086 (9th Cir. 2020) (Bumatay, J., joined

by VanDyke, J., dissenting from denial of rehearing

en banc) (“Heller, thus, showed us exactly what to look

at: the text, history, and tradition”); see also Duncan

v. Becerra, 366 F. Supp. 3d 1131, 1154–55 (S.D. Cal.

2019), aff’d, 970 F.3d 1133 (9th Cir. 2020) (op.

vacated, en banc pending) (the test based on historical

understanding—the “simple Heller test”—was more

appropriate than the “overly complex analysis”

developed by some circuit courts).

Since McDonald, many judges and justices of state

courts have recognized that a test based on the

Amendment’s text, informed by history and tradition,

is the correct analysis. See, e.g., State v. Weber, 2020Ohio-6832, ¶71, 163 Ohio St. 3d 125, 146 (DeWine, J.,

concurring) (“Because a majority of the court today

adopts this approach, going forward, lower courts in

Ohio should follow the analytical framework used by

the Supreme Court in Heller and assess Second

Amendment claims based upon text, history, and

tradition.”); Rocky Mountain Gun Owners v.

Hickenlooper, 371 P.3d 768, 778 (Colo. App. 2016)

(Graham, J., concurring in part and dissenting in

part) (in light of Heller and McDonald, preferring a

text, history, and tradition test for Colorado’s state

constitutional right); State v. Roundtree, 2021 WI 1,

¶¶116-17, 395 Wis. 2d 94, 152-53, 952 N.W.2d 765,

793 (Hagedorn, J., dissenting) (“A proper legal test

must implement and effectuate the original public

meaning of the law. . . . With these principles in mind,

we turn to the text and history of the Second

Amendment.”).

Calling balls and strikes is important in both

baseball and legal analysis, but so is being clear and

consistent when a player is out. Ultimately, it is the

government’s burden to justify a ban under the proper

test announced by this Court—a test that focuses on

the Second Amendment’s text, using history and

tradition to inform its original meaning. See Heller,

554 U.S. at 625 (“adopt[ing] . . . the original

understanding of the Second Amendment”). If the

government cannot carry its burden under the proper

test and strikes out, it should not be allowed to change

the game and take another swing (and another after

that, under some lower courts’ improper multi-step

approach) until it reaches the policy result it prefers.

III. UNDER

HISTORICAL

ANALYSIS

CONSISTENT WITH HELLER, PUBLIC

PLACES WERE NOT UNDERSTOOD TO BE

“SENSITIVE PLACES” WHERE ARMS

COULD NOT BE CARRIED.

History supports the finding that the vast majority

of public places were not understood to be “sensitive

places” or “gun-free zones,” as the carriage of arms in

many places was not only common in the founding era,

but was sometimes even statutorily required.

Virtually all able-bodied men throughout the

colonial and founding eras were required to carry

arms in public to attend musters for militia service.

Additionally, many colonial- and founding-era laws

mandated the carrying of arms to church, public

assemblies, travel, and work in the field. See Amicus

Brief of Professors of Second Amendment Law, et al.,

at 25.

Furthermore, the founding generation voluntarily

carried in their daily lives most wherever they

pleased, See id. at 27-32 (providing several examples

of the Founders carrying, even as children), including

in locations sometimes considered “sensitive” by

modern governments.

For example, carry to church was common and

never forbidden in the colonial and founding eras. See

id. at 25 (explaining that the colonies of Virginia,

Plymouth, Maryland, Connecticut, New Haven, South

Carolina, and Georgia all required people to carry

arms in order to attend church).

Similarly, at the time of the founding, schools were

not areas in which firearms were banned. Rather,

during the colonial and founding periods, college

students as well as professors were almost always

required to possess firearms for militia service. See

David B. Kopel & Joseph G.S. Greenlee, The Second

Amendment Rights of Young Adults, 43 S. ILL. U.L.J.

495 (2019) (describing all colonial and founding era

militia statutes from the states that ratified the

Second Amendment). Even when some students or

professors were exempted from the militia

requirements, see e.g., 1778 N.J. Laws 44-45

(excluding “Professors and Tutors of Colleges”),

nothing prohibited them from keeping arms of their

own volition. Thus, firearms were commonly kept on

campuses and “gun-free” campuses were unheard of.

“The first notable arms ban at an American

university was at the University of Virginia in 1824.”

David B. Kopel & Joseph G.S. Greenlee, The

“Sensitive Places” Doctrine: Locational Limits on the

Right to Bear Arms, 13 CHARLESTON L. REV. 203, 247

(2018). The ban was the result of “students

brandish[ing] guns freely, sometimes shooting in the

air, [and] sometimes at each other.” Carlos Santos,

Bad Boys: Tales of the University’s tumultuous early

years, VIRGINIA (Winter 2013).5 The University

banned, among other things, the student’s ability to

keep or use of weapons or arms of any kind. Kopel &

Greenlee, Sensitive Places, at 248. However, faculty

and staff were not incorporated into the ban and

remained free to bear arms. Presumably, this ability

extended to visitors as well. In sum, while there was

one example of a restriction as to students themselves

bearing arms in 1824, there was no such ban as to

teachers and visitors.

Another example is bearing arms on public lands.

Americans are uniquely fortunate in being able to

enjoy such a rich history of public lands. Public lands

existed in the founding era—for example, all

unsettled lands were ceded to the federal government

in the Northwest Ordinance of 1787—but no firearm

restrictions applied on those lands. An Ordinance for

the Government of the Territory of the United States

Northwest of the River Ohio, in DOCUMENTS

ILLUSTRATIVE OF THE FORMATION OF THE UNION OF THE

5 http://uvamagazine.org/articles/bad_boys.

AMERICAN STATES 47 (1928). Rather, a natural rights

provision ensured that in the Northwest Territory,

“the inhabitants of the said territory shall always be

entitled” to rights later included in the United States

Constitution and Bill of Rights, including due process,

jury trials, habeas corpus, and religious freedom.

There was also a ban on slavery, as well as cruel or

unusual punishment. Id. at 51–54. Given that the

Founders viewed the right to bear arms as a natural

right as well, see Amicus Brief of Professors of Second

Amendment Law at 5–7, 16–18, it seems unlikely that

the right to bear arms could have been prohibited. In

any event, it never was.

In 1872, President Ulysses S. Grant signed the

Yellowstone National Park Protection Act into law,

making it the nation’s first national park. One

hundred years after the ratification of the Second

Amendment, the Shoshone National Forest was set

aside as part of the Yellowstone Timberland Reserve,

making it the first national forest in the United

States. It was not until 1946 that the Bureau of Land

Management (BLM) was formed (combining the

General Land Office and Grazing Service), which is

now responsible for overseeing about 245 million

acres of surface (the Bureau is also tasked with

managing sub-service acres). See A Land

Management

History,

BLM,

https://www.blm.gov/about/history; Data Resources,

BLM, https://www.blm.gov/about/data. Today, the

federal government owns roughly 640 million acres of

land (roughly 28% of the nation’s total land, mostly

concentrated in the West and Alaska), of which the

majority is administered by the BLM, Fish and

Wildlife Service (FWS), National Park Service (NPS),

and the Forest Service (FS). Federal Land Ownership:

Overview and Data, CONGRESSIONAL RESEARCH

SERVICE 2 (Feb. 21, 2020).

Whatever bans may have existed on these federal

lands, they did not exist at the founding and do not

exist now. The formation of the National Park System,

National Forests, land managed by BLM and the

FWS, all occurred beyond the period that would give

any guidance to the public’s understanding of carrying

on such lands at the time of the founding.

Today, the only federal ban on the “possess[ion]

and carry[ing] of [firearms] in case of confrontation,”

Heller, 554 U.S. at 592, is imposed by the regulations

of the Army Corps of Engineers. 36 C.F.R. § 327.13

provides in pertinent part:

(a) The possession of loaded firearms,

ammunition, loaded projectile firing

devices, bows and arrows, crossbows, or

other weapons is prohibited unless:

(1) In the possession of a Federal, state or

local law enforcement officer;

(2) Being used for hunting or fishing as

permitted under § 327.8, with devices being

unloaded when transported to, from or

between hunting and fishing sites;

(3) Being used at authorized shooting

ranges; or

(4) Written permission has been received

from the District Commander.

Ironically, this regulation would allow for an

individual who is hunting to carry a firearm on land

regulated by the Army Corps of Engineers but punish

an individual carrying a firearm for self-defense with

a fine of up to $5,000 and/or imprisonment of not more

than six months. 36 C.F.R. § 327.25. Such a ban is

inconsistent with the original understanding of the

Second Amendment, as well founding-era history and

tradition.

These are but a few examples of locations that

some modern-day governments consider “sensitive,”

but the Founders did not. See Kopel & Greenlee, The

“Sensitive Places” Doctrine, 13 CHARLESTON L. REV.

203 (analyzing the history of schools, post offices,

parking lots, public lands, public apartment

buildings, higher education buildings, blue laws,

hunting without permission, and buffer zones around

sensitive places, among other locations).

Regardless, any restrictions imposed by modernday

governments

must

have

historical

justification—just as this Court declared in Heller. See

554 U.S. at 635 (“there will be time enough to expound

upon the historical justifications for the [sensitive

place] exceptions we have mentioned if and when

those exceptions come before us.”). And to be sure, “we

would not stake our interpretation of the Second

Amendment upon a single law, in effect in a single

city, that contradicts the overwhelming weight of

other evidence...” Id. at 632.

IV. BECAUSE INDIVIDUALS HAVE A RIGHT

TO CARRY ARMS IN PUBLIC, THE

“SENSITIVE PLACES” DOCTRINE CANNOT

SWALLOW THE RULE.

History informs the understanding that the right

and practice of bearing arms in public was the rule—

not the exception. Moreover, this Court has repeatedly

held that there is nothing that requires the “State to

protect the life . . . of its citizens against invasion by

private actors.” Deshaney v. Winnebago Cty. Dep’t of

Soc. Servs., 489 U.S. 189, 195, (1989); see also Town of

Castle Rock v. Gonzales, 545 U.S. 748 (2005).6

Thus, to the extent that this Court holds that the

existence of “sensitive places” are beyond presumptive

and that the government is permitted to restrict

individuals from carrying their arms for self-defense

in those places, there must be a solution provided to

ensure that once the individual leaves and re-enters

the public realm where carry is permitted, they are

able to adequately defend themselves “in case of

6 In the event that the Government voluntarily disarms those

who cross through its doors, while providing security for its

occupants, it would seem that they owe a duty of care that might

not otherwise exist to members of the public walking down the

street. C.f. Deshaney, 489 U.S. at 199-200 (“when the State takes

a person into its custody and holds him there against his will, the

Constitution imposes upon it a corresponding duty to assume

some responsibility for his safety and general well-being.”).

While there is an obvious difference in the detention against

one’s will, there remains the issue of being disarmed against

one’s will. It offends reason and common sense to believe that in

the first instance the government bears a heightened

responsibility for an individual’s wellbeing but in the second

instance, the government can disarm those it is providing

services to, shrug its shoulders, and bear no responsibility.

confrontation.” Heller, 554 U.S. at 592. Just as

students are not forced to “shed their constitutional

rights . . . at the schoolhouse gate,” Tinker v. Des

Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506

(1969), nor should individuals be forced to shed their

right of “being armed and ready for offensive or

defensive action in a case of conflict with another

person,” Heller, 554 U.S. at 584 (quoting Muscarello v.

United States, 524 U.S. 125, 143 (Ginsburg, J.,

dissenting)), by virtue of entering a place that a

government and this Court may deem “gun-free.”

Several model solutions exist to the problem of

temporary disarmament. For example, Pennsylvania

offers lockers to those who carry arms to its

courthouses. 18 Pa. Cons. Stat. Ann. § 913(e) provides:

Each county shall make available at or

within the building containing a court

facility…lockers or similar facilities at no

charge or cost for the temporary checking of

firearms by persons carrying firearms…or

for the checking of other dangerous weapons

that are not otherwise prohibited by law.

Any individual checking a firearm,

dangerous weapon or an item deemed to be

a dangerous weapon at a court facility must

be issued a receipt…

Cf. Ariz. Rev. Stat. § 13-3102.01 (requiring the

operator of public establishments7 to provide

temporary and secure storage that is readily

7 Defined to mean “a structure, vehicle, or craft that is owned,

leased or operated by this state or a political subdivision of this

state.” Ariz. Rev. Stat. § 13-3102(N).

accessible on entry and allows for the immediate

retrieval upon exit); Ga. Code Ann. § 16-11-127(d)(2)

(allowing a license holder to notify security of the

presence of a firearm and follow directions given for

removing, securing, storying, or temporarily

surrendering possession of the firearm); N.H. Rev.

State. Ann. § 159:19 (providing that firearms may be

secured at the entrance to a courthouse by courthouse

security personnel); Ohio Rev. Code Ann. § 2923.123

(providing that courthouses, or facilities housing

them, may offer to secure firearms carried by licensed

permittees during such time they are inside the court

facility); Rev. Code Wash. § 9.41.300 (providing for

locked boxes or a designated official to receive

firearms for safe keeping during owner’s visit to

courthouses or facilities housing court proceedings).

Kansas restricts the ability of state and municipal

buildings from being able to bar the carrying of

firearms in the public areas of those buildings, unless

they provide “adequate security measures.” Kan. Stat.

Ann. § 75-7c20. The law defines “adequate security

measures” to mean:

[t]he use of electronic equipment and armed

personnel at public entrances to detect and

restrict the carrying of any weapons into the

state or municipal building, or any public

area thereof, including, but not limited to,

metal detectors, metal detector wands or

any other equipment used for similar

purposes to ensure that weapons are not

permitted to be carried into such building or

public area by members of the public.

Adequate security measures for storing and

securing

lawfully

carried

weapons,

including, but not limited to, the use of gun

lockers or other similar storage options may

be provided at public entrances.

Id.

Put simply, “[t]he right to self defence is the first

law of nature[.]” 1 St. George Tucker, BLACKSTONE’S

COMMENTARIES, App. 300 (1803). To completely

deprive an individual of the ability to exercise that

right merely because their journey that day takes

them to a “sensitive place” along the way offends the

very notion of that right. Thus, to the extent this

Court holds it to be permissible to disarm individuals

in certain locations, such as jails or courts with armed

security officers, providing law-abiding individuals

carrying arms with some means of checking their

property at the front door would allow an individual

to exercise their fundamental right of self-defense to

and from such locations.

CONCLUSION

In the United States, many places governments

currently identify as “sensitive places” and “gun-free

zones” have no historical pedigree. Yet the

government presently has no duty to protect you when

you are forced to disarm and enter them.

This Court’s precedents require the application of

the text of the Constitution, as it is informed by

history and tradition, to determine the scope of the

right to bear arms. And careful analysis of the

relevant history and tradition suggest that any

historically permissible limitations on the right to

bear arms must be cabined to only those consistent

with the original public meaning of the right.

The Court should reverse the decision of the court

below.

Respectfully submitted,