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Wednesday, June 29, 2022

OPINION:

If we think the historic Supreme Court ruling to uphold Americans’ right to carry firearms in public for self-defense will stop gun-control crusaders, we are sorely mistaken. The Supreme Court delivered a big victory for gun rights when it ruled 6-3 that the Constitution guarantees the right of individuals to carry firearms for personal defense. But this ruling hardly resolves the issue — in fact — it has already driven gun control activists to deny our Second Amendment rights in other ways.

Even before the Supreme Court decision came down, it was easy to predict the anti-gun lobby’s next move. In fact, I did predict it last year. Since gun controllers can’t legally restrict individuals’ right to carry, they’ll use a small exception to swallow up citizens’ constitutional right to self-defense. I’m talking about the “sensitive places” exception. What is a “sensitive place”? It’s a location where the government can ban citizens from carrying firearms. You might know it better as a “gun-free zone.”


Gun-phobic activists deliberately obscure this exception. Right after the Supreme Court released its decision, New York Gov. Kathy Hochul declared that her state would rush through restrictive new gun laws. Mrs. Hochul insisted on identifying “sensitive locations” where people can’t carry guns. Similarly, New York City Mayor Eric Adams said the city would conduct “a comprehensive review of our approach to defining ‘sensitive locations’ where carrying a gun is banned.”

The idea of gun-free locations stems from the Supreme Court’s landmark 2008 decision in District of Columbia v. Heller which affirmed the right to keep and bear arms but also mentioned excepted places such as schools and government buildings. Anti-gun lawyers and judges have seized on that single, tentative sentence in a 64-page opinion, to aggressively restrict gun rights. A review of more than 1,000 Second Amendment-related cases found that 60% of the decisions quote the “sensitive places” passage.

To see what anti-gun states like New York will try, look at what some states have done already. For years, Delaware banned guns in state parks and forests. That’s 23,000 acres! And Illinois passed a law that prohibited guns in schools, public parks and public housing — and within 1,000 feet of those places. Chicago has more than 600 public parks, so with the 1,000-foot buffer zone around them, the law ended up banning guns in most of the city. Such laws distort the idea of “sensitive places” beyond all recognition.

Gun-free zones have been rare and very narrowly defined. In essence, gun-free zones can exist only where the government can reasonably assure you protection. Think of courthouses, which today have bailiffs, police, security detectors and other protections. Once you go through the metal detectors, you have a reasonable expectation to enjoy the protection of armed security.

When you define “sensitive places” to cover almost an entire city, you’re not talking about a narrow exception anymore. And you can’t have a reasonable expectation that the state will protect you in thousands of acres of parks. This is exactly why the courts of Illinois and Delaware struck down those laws.

But don’t expect New York to be chastened by those court decisions. Mrs. Hochul defiantly proclaimed that she was “prepared to go back to muskets.” (Perhaps the governor should start with her security detail to show us the way!) Mrs. Hochul specifically called for recognizing subways as “sensitive locations.” New York City alone has more than 665 miles of subway tracks — and surely the anti-gun lobby will push to include stations as well as buffer zones.

Fortunately, the U.S. Supreme Court seems to have anticipated the attempts to use the “sensitive place” exception to erode Second Amendment rights. The court’s ruling says that “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.” The ruling adds that “expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement defines the category of ‘sensitive places’ far too broadly.”

The court also seems inclined to limit “sensitive places” to locations involving a government function such as lawmaking (legislative chambers), handling legal disputes (courthouses), and voting (polling places). Thus, the idea that New York could lawfully declare areas within the state — other than those places touching upon the essential functions of government — to be “sensitive places” would seem to be contrary to the limited exception recognized by the Court.

So yes, Thursday’s Supreme Court ruling was a huge victory for gun rights. But let there be no doubt, that the gun-control lobby will keep looking for exceptions to swallow the constitutional right to keep and bear arms.

• Mark W. Smith is a constitutional attorney and a distinguished fellow at the Ave Maria School of Law as well as the host of the Four Boxes Diner YouTube channel, which discusses Second Amendment history and scholarship.


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