On February 11, the Third Circuit en banc heard oral argument in Koons v. Attorney General, which concerns New Jersey's post-Bruen ban on firearm possession in numerous public places. A panel decision previously upheld 2-1 most of the verboten locations as "sensitive places" where the Second Amendment right does not apply. As I discussed here, the decision was based on a flawed misreading of supposed historical analogues. Its basic premise is that a "sensitive place" is anything a legislature says it is without Founding-era analogues and without providing comprehensive security like that in modern courthouses and in the sterile area of airports (once you go past TSA screening).
We start with the Supreme Court's methodology in Bruen that "when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation, … the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation." This means, as Rahimi put it, "the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition." Here, that burden to demonstrate the existence of a historical tradition as well as the extraction of the appropriate principles falls squarely upon New Jersey. And while New Jersey demonstrated neither, it was the instant plaintiffs that established the existence of a historically-based principle of the Supreme Court's "sensitive places" doctrine as discussed below.
Previously, in Heller, the Court in dicta referred to "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings" as being "presumptively lawful," implying that the presumption may be subject to question, narrowing, or clarification. Bruen – again in dicta – specifies "government buildings" that are sensitive places to include "legislative assemblies, polling places, and courthouses." However, in Bruen, the Court rejected New York's argument that it had the authority consistent with the Second Amendment to ban the carrying of handguns by claiming its restrictions were essentially "sensitive place" regulations. The Court specifically said that, for example, Manhattan could not constitutionally be considered a gun free zone "sensitive place" because it is crowded and police are generally present.
