The Second Amendment and the Problem of Regulatory Proliferation: The Third Circuit Analyzes the Constitutionality of Sensitive-Place Firearm Carry Restrictions

By V.R. Bohman, Charlene Anne Warner, and Thomas Williams¹

Recent Second Amendment jurisprudence has highlighted the challenge both litigants and courts face in applying the analytic framework provided in New York State Rifle & Pistol Ass’n v. Bruen.² One such struggle stems from the modern proliferation of laws.³ If a historic limitation of Second Amendment rights was constitutional, and there are genuine modern analogues, does it matter that those modern analogues have so proliferated as to restrict the Second Amendment far more than was true historically? Faced with this question, the Third Circuit in Koons v. Attorney General New Jersey,⁴ affirmed an injunction against several key provisions of a New Jersey law while upholding a so-called “sensitive place” carry ban at locations such as parks, entertainment venues, government property, libraries, museums, establishments serving alcohol, and more. This article addresses the Third Circuit’s expedition into the “uncharted frontiers” of “sensitive place” firearms restrictions.⁵

Background

Shortly after the Supreme Court issued its landmark decision in New York State Rifle & Pistol Ass’n v. Bruen,⁶ which struck down a New York law requiring a person who wanted to carry a handgun in public to show a “justifiable need” for self-protection,⁷ the New Jersey legislature overhauled many of its public carry and firearm restrictions by enacting a new measure, Chapter 131. In doing so, New Jersey replaced its “justifiable need” requirement with a series of new restrictions — including a mandatory $300,000 liability insurance requirement, a default ban on carrying on private property, a minimum $50 application fee surcharge to benefit crime victims, a requirement that carry permit applicants obtain character endorsements from at least “four reputable persons,” and an expanded list of 25 “sensitive places” that further restricted firearm carry in public.⁸

In response to this new law, a group of individuals and gun-rights organizations immediately filed a 42 U.S.C. § 1983 lawsuit against the New Jersey Attorney General and State Police Superintendent challenging these provisions.⁹ After the district court granted a partial preliminary injunction,¹⁰ both sides appealed to the Third Circuit.

The Third Circuit, in a decision by Judge Krause, reaffirmed Bruen’s analytic framework, which requires that courts (1) first determine whether the Second Amendment’s plain text covers the conduct at issue, and (2) if so, the government bears the burden of showing that the restriction is “consistent with the Nation’s historical tradition of firearm regulation.”¹¹ Under Bruen’s second step, the government must identify a “historical analogue” for the challenged firearm regulation, i.e., one whose comparable burden on the Second Amendment is “comparably justified.”¹² Notably, while Bruen left the relevant historical benchmarks somewhat ambiguous, the Third Circuit emphasized that “[b]ecause ‘constitutional rights are enshrined with the scope they were understood to have when the people adopted them,’” the key periods should include the adoption of both the Second and Fourteenth Amendments, and should not be limited to the Founding Era.¹³

After an extensive historical review of firearm regulation from the Anglo-Saxon period through Reconstruction,¹⁴ the Court discerned two core principles that underly U.S. regulatory tradition: (1) “legislatures have long enjoyed the authority to restrict the carry of firearms in specific locations central to the operation of government,”¹⁵ and (2) “legislatures may impose conditions on the carry of weapons outside the home that are designed to ensure that those who choose to carry such weapons do so safely.”¹⁶ In that effort, the Third Circuit “determine[d] whether relevantly similar historical regulations reflect a historic tradition with which a modern-day regulation is consistent,”¹⁷ including historical regulations that were not subject to Second Amendment scrutiny because it would “distort the baseline of historic referents and misconstrue the accepted scope of legislative authority at the time of the Founding.”¹⁸

Applying these principles, the Third Circuit found that the liability insurance mandate was unconstitutional because liability insurance did not exist at the Founding and historical analogues like surety statutes and strict-liability regimes imposed narrower, temporary, or ex-post burdens.¹⁹ The Court further affirmed the injunction against the $50 application fee on the basis that it “charge[d] applicants for costs neither incidental to nor necessarily caused by their bearing arms.”²⁰ However, the Court left standing the “four reputable persons” requirement as a permissible condition grounded in historical practices of ensuring safe carry, absent evidence of discriminatory application.²¹

Next, turning to the plaintiffs’ challenges to the “sensitive places” regulations, the Third Circuit concluded that the public property is not subject to a “categorical carveout,” but must be evaluated by the “same historical inquiry as other firearm regulations.”²² This recognition split with the Ninth Circuit, which declined to apply Bruen’s framework on the theory that the State can prohibit firearms when it acts in its capacity as a proprietor.²³ Further, the Third Circuit rejected the law’s presumption against carry on private property open to the public because it swept broader than New Jersey’s proposed analogues.²⁴

However, the Third Circuit upheld Chapter 131’s firearm restrictions at public gatherings, parks, beaches, playgrounds, recreation facilities, youth sports events, public libraries and museums, bars, entertainment facilities, casinos, and healthcare facilities, on the basis that those locations were sufficiently analogous to historical prohibitions on arms at particular civic functions, such as fairs, markets, parliaments, places of education, and polling places.²⁵ The Court also affirmed restrictions on firearms on public transportation because historical analogues regulating weapons in confined communal spaces “comports with the traditional right to keep and bear arms.”²⁶ However, the Court upheld the injunction against unsecured firearms in private vehicles for lack of historical precedent.²⁷

Judge Porter’s Partial Dissent

Writing separately from the majority’s opinion, Judge Porter issued a partial dissent that took issue with how the majority applied Bruen’s historical test to “sensitive places.” While he agreed with the parts of the judgment that upheld the district court’s injunction, Judge Porter cautioned against the majority’s approach to historical analogues, noting that “sensitive places” were relatively limited in the 18th and 19th centuries and that, “[i]f a court expands those few sensitive-place regulations to crowded spaces generally,” the court has analogized “far too broadly.”²⁸ On that basis, Judge Porter disputed the “astonishing number, breadth, and generality of the majority’s principles justifying New Jersey’s location-based elimination of the right to bear arms,” which effectively allowed New Jersey to forbid the exercise of Second Amendment rights “nearly everywhere that ordinary human action occurs[.]”²⁹

Additionally, Judge Porter critiqued the majority’s reliance on post-Reconstruction analogues, which he argued should be omitted as “inconsistent” with the original meaning of the Second Amendment and the relatively minor evidence of analogous historical tradition during the Founding Era.³⁰ After evaluating the historical record and observing the overly “flexible approach” adopted by the majority,³¹ Judge Portner concluded that “sensitive places are rooted in our nation’s historic regulatory tradition” and “cannot be created by government fiat.”³² Thus, by sustaining restrictions in many of the locations restricted by Chapter 131, the majority risked expanding the “sensitive places” doctrine in a way that violated the limiting principle of Bruen.³³

Conclusion

The Third Circuit’s decision, especially in light of Judge Porter’s partial dissent, illustrates the challenges faced by litigants and courts alike in applying Bruen’s methodology, including how to identify proper historical analogues and the relevance of post-Founding Era restrictions. Although the panel struck down novel regulatory mechanisms — such as liability insurance mandates and broad private-property defaults — it simultaneously sustained numerous restrictions in certain civic locations with closer historical analogues. Looking ahead, Koons may deepen emerging circuit court conflicts, which would significantly increase the likelihood of further Supreme Court review. Until then, Koons underscores both the Court’s insistence in Heller and Bruen that firearm regulations remain tethered to historical tradition, and the challenges of regulatory proliferation.