Below is my column in the Hill on the next round of litigation over the Second Amendment. New York and other states quickly moved to exploit the concurrence of Justice Brett Kavanaugh (who was joined by Chief Justice John Roberts) that state officials believe contains a loophole for greater gun limitations based not on the weapons but the places where they can be taken.
Here is the column:
In the movie “The Incredibles,” the villainous character “Syndrome” reveals a plan to make everyone a superhero. Syndrome’s motive is hardly altruistic: He hated superheroes and “with everyone super, no one will be.” Democratic leaders seem to be planning their own Syndrome plan for the Second Amendment — to make everywhere a special or “sensitive place” so that few places outside the home are protected by the constitutional right.
The recent decision in New York State Rifle & Pistol Association, Inc. v. Bruen was one of the most significant victories for the Second Amendment in the history of the Supreme Court. It was the latest defeat for the State of New York, which — having supplied a series of dubious state laws that have served to expand individual protections under the Constitution — has been the greatest gift to gun owners since the invention of the revolver.
Right on cue, New York Gov. Kathy Hochul (D) promised Syndrome-style legislation within an hour of the release of the Bruen decision. To make matters worse, Hochul went on television to say in a mocking tone that they would just come up with a long list of sensitive places.
Hochul and others are relying on a concurrence in Bruen by Justice Brett Kavanaugh, who was joined by Chief Justice John Roberts. Kavanaugh reaffirmed the language in the 2008 decision in Heller v. District of Columbia that the Second Amendment was “neither a regulatory straightjacket nor a regulatory blank check.” States and the federal government could still adopt some restrictions on firearms. He specifically noted that the list of “sensitive places” referenced in the earlier case was not “exhaustive.”
Kavanaugh’s limiting language was immediately taken as a license to bar guns by redefining places where they might be carried.
New York’s Concealed Carry Improvement Act passed 43-20 and has elements that are ripe for constitutional challenge. However, it was the list that was so striking; indeed, it is hard to come up with a place that would not be declared special or sensitive. The list would seem to cover most areas outside of the home, including government buildings; any location providing health, behavioral health or chemical dependence care or services; any place of worship or religious observation; libraries; public playgrounds; public parks; zoos; the location of any state-funded or -licensed programs; educational institutions both in elementary and higher education; any vehicle used for public transportation; all public transit including airports and bus terminals; bars and restaurants; entertainment, gaming and sporting events and venues; polling places; any public sidewalk or public area restricted for a special event, and protests or rallies. That includes simply passing through Times Square.
Montgomery County, Maryland, officials have proposed to bar the legal right to carry firearms “in or within 100 yards of a place of public assembly.”
Other states like California are moving to bar permitted gun owners from carrying guns into any school grounds, college and university campuses, government and judicial buildings, medical facilities, public transit, public parks, playgrounds, public demonstrations and any place where alcohol is sold.
These states believe they have an ally in Roberts. The chief justice has been criticized in the past for embracing rights while creating avenues for their circumvention. The most obvious example is his opinion in National Federation of Independent Business v. Sebelius, finding that the individual mandate of ObamaCare violated federalism but then saying that it did not matter if it is simply called a tax (which no party had done).
These states are now hoping Roberts and Kavanaugh will do the same thing with gun rights in staunchly defending the individual right to carry a gun unless states simply define a wide array of places as “gun-free.” It is not the gun but the place that’s driving the exclusion.
The problem is that Hochul and others may have been too open in gaming the opinion.
Roberts is the ultimate incrementalist and institutionalist. As shown in his sole concurrence in the abortion decision in Dobbs v. Jackson Women’s Health, he is not afraid to stand alone in seeking a moderate compromise. However, he is not someone who relishes being treated as a chump.
Simply listing most of Manhattan as a “sensitive place” will again push the constitutional envelope. It will force the court to again limit the authority of the states to shoulder the burden of balancing the individual right to gun ownership against the need to protect these places from the exercise of that right.
In answering that question, the court is likely to ask how statistically lawful gun permit owners have caused or materially increased the public safety risk in these areas. Studies have generally not shown a clear relationship between restrictive gun permit laws and a significant decrease in gun violence.
When you say that you are going play these justices, you would be wise to head Syndrome’s other advice: “You can’t count on anyone, especially your heroes.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.
141 thoughts on “Democrats’ Second Amendment ‘Syndrome’ Plan: Plotting the Next Big Fight over Gun Rights”
Next time you call the police to take care of a shooter with a gun in a school or church insist they bring no guns to that gun-free zone.
Speaking of Lincoln, in Illinois the Syndrome plan for the Second Amendment was baked in the legislation that (finally) allowed concealed carry. Public transportation is one of those prohibited places. The news regularly presents stories of crime involving public transportation but never asks why. A second sign should be placed next to the infamous circle with a line. It should say “Victims Inside”.
Special congratulations to the woke administrators at UPenn for nominating Will ‘Lia’ Thomas for NCAA’s Woman of the Year Award. You go, girls!
Just goes to show Progressives put men above women, every single time.
I think you mean the woke jokes at U of P. They are Marxist, not Americans and you are an ass. Perhaps we can have asses designation as a fourth gender and then asses like you can ask for your very own bathrooms!
I think you mean the woke jokes at U of P. They are Marxist, not Americans and you are an ass. Perhaps we can have assess designated as a fourth gender and then assess like you can ask for your very own bathrooms that have urinals with seats!
Yes, you are correct that the sensitive places is now going to be the new battleground in the gun rights issue. Justices Kavanaugh and Roberts unfortunately opened this up for further litigation, which will now take years.
As you may know, Prof. David Kopel wrote a law review article in 2018 on this very issue:
The ‘Sensitive Places’ Doctrine: Locational Limits on the Right to Bear Arms, Charleston Law Review Vol. 13 (2018).
And Prof. Kopel’s more recent article on the issue:
Note also that there is a federal district court case in the Northern District of Illinois that found that the Cook County Forest Preserve (parks, trails, and facilites) could NOT be a sensitive place.
Solomon v. Cook County Board of Commissioners, United States District Court, N.D. Illinois, Eastern Division, Case No. 17-cv-6144,
— F.Supp.3d —, U.S. Dist. LEXIS 173175, WL 4147167 (9/13/2021)
Law review analysis of this case here:
FOREST PRESERVE GUN BAN SECOND AMENDMENT CHALLENGE, by James C. Kozlowski, J.D., Ph.D.
Please also note that several cities in Colorado have recently passed similar “sensitive places” prohibitions on licensed concealed firearms carry, including on ALL real property owned by the city. (Denver only included city-owned buildings and park land). Most of these cities also banned unserialized firearms receivers (so called “ghost guns”.) Boulder and Louisville also added “assault weapons” bans. Other cities in Colorado are also considering these ordinances.
Some of the cities specifically excluded city “rights of way” as part of city real property from the sensitive places (e.g. Boulder and Louisville). However Superior and Lafayette did not include such an exclusion. The only exception was made for personal vehicles and private property (where allowed by the property owner). So as a practical matter, licensed concealed carry is now BANNED in Lafayette and Superior, Colorado because you cannot even carry as a pedestrian on a sidewalk, street, or trail (and not openly either, per a separate ordinance). It is now illegal to park your car on a city street, get out with your firearm concealed, and walk down the sidewalk to your home, business or other private property. Pedestrians cannot carry concealed walking on trails or sidewalks. The City Council in Lafayette specifically debated this rights of way issue in public session and received written public comment on it, so they knew exactly what they were doing. The Lafayette ordinance passed 5-2, with the two council members voting against it on this very issue. In Superior I believe it passed unopposed. (The city of Superior is now being sued over its ordinances.) All the Colorado ordinances came from a “wish list” given to the several councils by the Giffords Law Center to Prevent Gun Violence and Everytown for Gun Safety – Bloomberg’s very wel- funded group of activists and lawyers. Their paid out-of-town agitators with printed red T-shirts and signs show up early at all the city council meetings to clap or boo during debate and crowd out the citizens from the halls. Info link from the Boulder Council, proud of letting this outside group write their laws restricting a fundamental right:
You probably were not aware but this web blog only allows two hyperlinks or fewer per comment. If you would like the readership to reveiw more than two links, this may be accomplished by using multiple comments of two or less hyperlinks. I removed the protocol header from several of your links so the comment would be visible.
We will see the same litigation that has occured over free speech.
No right is completely absolute.
There is speech that the courts have found constitutionally prohibitable – but the content based prohibitions on speech – contra the left are very narrow. Everything the left says is prohibited is not – for very good reason. It has taken us centuries to get to the very narrow content based proscriptions on speech.
But the courts have recognized many but not all context based restrictions on speech.
And we appear to be about to go through the same thing with firearms.
Ultimately this is stupid. Few of us would question that courts, public buildings and private businesses can bar guns from their premises.
But it is actually a mistake to do so as a matter of law. Especially when the prohibition is large.
We already know that Gun Free School Zones are a mistake – that is like waving a red flag in front of a bull, it is a giant sign telling would be mass shooters – Here is a place you will be able to kill many people before you can be stopped.
Aparently at Uvalde not only did parents seek to go in to rescue their children – but ARMED parents sought to go in.
Uvalde was a law enforcement disaster.
But the FACT is that mass shooting ALWAYS stop when someone with a gun kills or seriously injures the shooter.
If that is going to happen quickly – it is rarely going to be law enforcement that thwarts the mass shooter
Law enforcement is not everywhere all the time and mass shooters usually actively try to avoid them.
The carnage in mass shootings usually takes place fairly quickly towards the beginning.
If you wish to keep the toll low – that requires someone to take out the mass shooter within seconds not minutes.
The police are almost never in position to respond in minutes much less seconds.
If you bar guns by law – rather than by local rules, you may well make it a crime to try and stop a mass shooter.
If you bar guns at schools – that means that parents and armed bystanders can not choose to go in after the shooter and must wait precious minutes for police.
It is unlikely that parents will care about the law. But other bystanders might.
And the goal with a mass shooting is to thwart the shooter as quickly as possible.
Even presenting the shooter with an unexpected threat slows them down substantially.
A single shot fired at a mass shooter, requires them to divert their attention from killing people to defending themselves.
Our most precious document, our Constitution, is the most perverted wise words in the world.
The left reads our second amendment like this, AwellregulatedMILITIAbeingnecessarytothesecurityofafreeStatetherightofthepeopletokeepandbearArmsShallbeinfringed.
The Right reads our second amendment like this.
A well regulated Militia,
being necessary to the security of a free State,
the right of the people to keep and bear Arms,
Shall Not be infringed.
Which is the correct interpretation? After reading the founders beliefs I truly believe it’s the later.
And another thing, A well regulated militia was more than a suggestion, it was a mandate, for states to maintain their own defense against a tyrannical federal government.
State run militias before the National Guard guaranteed our freedom and our individual rights because they pushed back on a continual basis, and codified our citizen’s right to be armed at the same levels or better than the federal army.
Unconstitutional acts by congress have stripped us of our rights and our freedoms, which have led to the death spiral of gun control that has given us zealous agenda driven prosecutors who attack anyone who uses their civil right to self defense and have protected criminals.
Victims cause gun control, gun control causes more victims, more victims cause more gun control…
Read the amendment … “the RIGHT of the people” When the Constitution is giving something to people it used the word RIGHT.
Now go look at the remainder of the Constitution. When it is giving something to government the word POWER is used. Example: Art. I, Sec 1 “All legislative Powers herein granted …” Art I, Sec. 8 “The Congress shall have Power To lay and collect Taxes …” Art III, Sec 1 “The judicial Power of the United States, …” Art II, Sec. 1 “The executive Power shall be vested in a President …” Amend. X “The powers not delegated to the United States …”
I watch as we continue to create the great dichotomy of our generation. Soon we will have the next civil war between urban centers vs rural populations.
The key fallacy of so-called gun control laws is that such laws do not in fact control guns. They simply disarm law-abiding citizens, while people bent on violence find firearms readily available….Guns are not the problem. People are the problem – including people who are determined to push gun control laws, either in ignorance of the facts or in defiance of the facts.There is innocent ignorance and there is invincible, dogmatic and self-righteous ignorance. Every tragic mass shooting seems to bring out examples of both among gun control advocates.
case in point:
No wonder Congressional Democrats want to talk about Jan 6 riots…as they enjoy personal LEO protection 24/7
Supreme Court sides with Minneapolis residents suing over depleted police force, minimum 731 officers required
Minneapolis police struggling to recruit new police officers despite having enough funding
Huh. Who would have thunk Democrats anti-police, defund the police, incitement would have had consequences?
Maybe Republicans in January should announce Congressional hearings on Democrats for insurrection and incitement
I responded to you on a similar topic the other day. Minneapolis is much like Seattle, Portland, Atlanta, NYC, Chicago, and other large leftist cities; playgrounds for the left and ground zero for lawlessness that s promoted by liberal prosecutors and a weakened law enforcement presence due to the defund the police movement and the general disdain with which public officials, the media, and the public treat the police.
These people should be grateful that anyone remains that wants to serves as law enforcement in these hell-holes.
At this stage there are only two reasons to work for Seattle: You are with SPD, 52 years old, and one year away from retirement; or you are 21 years old and want to get hired quickly then lateral to another department once you get your academy and a year on the job.
Two issues everyone should look at.
This 1st one, & I would think Prof Turley might be interested in.
HR 4350 Sec.529A & Chapter 89., etc..
Cold War Veteran Exposes Dangers of Dems Domestic Martial Law Takeover Plan
Jul 18, 2022
Then this is about the Water problems out West & related weather problems everyone are in the middle of.
40 Million in US West Without Water in 2023 – Dane Wigington
By Greg Hunter On July 16, 2022 In Political Analysis 215 Comments
My weekend system update knock out my ID on my post this afternoon like the one above.
Yours is a fair assessment and you describe a recipe for disaster.
The senior LE officers in woke cities are, based on their proximity to retirement, completely averse to any action that may be even tangentially controversial or otherwise risky from a career standpoint or from a personal safety standpoint. They know that the difference between retirement and being either cancelled or killed is about this “ much. I can’t say that I blame a person in this position for seeking the safe road out.
The mid-ranks are gone though attrition; they are smart enough to know that the odds are stacked against them in the ‘woke’ cities and they are young enough to make another career start somewhere else.i can’t say that I blame them either, I would do the same.
What remains are the ‘newbies’; frightened, inexperienced, and with nobody to guide them. Like the senior officers, they want to check the box and then to check out of the trap. However, instead of retirement they see the job as a ticket to some other less threatening civil service future. Until this happens they only hope to avoid being cancelled or being killed.
What is a citizen to do when they are prevented from owning a firearm to defend themselves, when their life is in danger, and when the police are ‘woke’ newbies?
Astonishing that the same side that pushes for gun control pushes for things like defunding the police and restorative justice.
ATS writes “And Darren supports him.” and makes sure he uses the address that will immediately delete.
Way to go Darren!
We are not privy to the posts that are deleted, only those receiving email notifications see them. I don’t understand why you would admonish Darren for something written by ‘ATS’ on a ‘destined to be deleted’ post. Did you mean to say “Way to go ATS”?
Thank you, Ray. I see your point, that Darren could take what I said to be the wrong way. I think he knows my sentiments. Darren has been unjustly accused of many things, so I am sorry if my comment added to it.
I believe all the anonymous postings, those without a name and specific icon, should end (not be posted or emailed), including my own anonymous postings. That protects anonymity while protecting free speech. If you had asked me a while back, I would have objected, but I realize that the overabundance of “rights” can cause more harm than using a modicum of control. We see what has occurred, and the lack of control has led to unnecessary inconvenience and harm to a higher level of discussion.
Thanks for accepting my well-intentioned comment. If I may make another suggestion, stop playing into the hands of the Anomalies. As Mark Twain once said; “Never argue with an idiot. They will only bring you down to their level and beat you with experience.”
I have seen it many times. You respond anonymously to one of the Anomalies and it starts out like a well-deserved beat down. However, in short order the conversation proceeds towards “Full Retard” as the Anomaly reduces it to the only level that he has mastered, the ad hominin attack. Once the conversation has devolved to the point where you are calling each other “ATS”, the Anomaly has won. At this point there is no way to distinguish you from the idiot with a bag on his head and he has, in effect, won the “sea lion” game.
Take the high ground and call out the Anomalies to their face. The blog readers are experienced with the Anomalies; those that do not want to watch the beat down will skim right past the ugly parts and those that do want to watch will enjoy every moment of it.
Thank you, Ray but I disagree. Where has politeness gotten those trying to be civil? At best, nowhere. At worst, canceled or dead.
Look at the riots and how quickly everyone caved to the violence. ~500 Antifa BLM riots with death and destruction, property loss, and loss of jobs.
Jan 6 violence was likely partially or completely a creation of the left. Pelosi refused the national guard offered by Trump well before J6. There is evidence that the Capitol police incited a good deal of the violence and murdered two protestors and killed two other protestors in the process.
The doors in the western tunnel weren’t opened by accident. People walked in peacefully, and then something happened as the police suddenly pushed into the crowd with batons and tear gas causing trampling and death. Bouland was one of those who died while the police pushed forward into a crowd being trampled. Ashli Babbit was shot and murdered in cold blood.
Why are we not permitted to know what happened? “Schiff tucked an amendment into the National Defense Authorization Act that would prohibit any evidence collected in violation of the Posse Comitatus Act from being used in investigations. Why?”
The Rule of Law does not exist. Continuing to act as we have for years is insanity. Sometimes, we have to go into the dirt to deal with trash. We can no longer be as polite as we would like to be. We have to expose those specific people that wish to tear down America. ATS is number one on this blog, and he would not think twice about your physical well-being if it helped promote his ideology. He needs constant exposure, even anonymously so others think twice.
(When posting is a worthless name-calling event, doing it anonymously, relieves others of having to sift through the garbage.)
Today, the Rule of Law has disappeared from Washington DC. Let’s worry about that and highlight those (not just on the blog) that have created the disparity.
If you haven’t seen 2000 Mules take a look for free without advertisement but make sure you get to the important points.
You misunderstand my comment. I am not saying to be nice, not by any means. I am suggesting that you use your name for all responses, good or bad. In this way others can follow your arguments and some may care to join in on bashing the Anomalies.
The alternative, you posting as an Anon, actually empowers the Anomalies. This is because they quickly pull the argument down to the simplest level and the result is an endlessly posting back and forth of anonymous posters calling each other “stupid”.
At this point the Anomaly has won, he has hijacked you and the blog.
Ray, you are saying nothing wrong, but anomaly or Anonymous the Stupid hasn’t won anything. He is exposed more and more, and people are responding in a fashion that tells others (the important ones), that maybe it isn’t good to be Anonymous the Stupid. I post enough negatives under my standard alias so that others can always join in or post even when an anonymous is putting ATS in his place. In any event, you can see by the many nonsensical replies from ATS today that he has had to change his meds, and is out of control.
I don’t want to post trash under my name. I prefer to show respect to those that see anonymous figures for what they are. Therefore, I post under an anonymous alias so others can throw all the anonymous postings in the trash including mine. At one time that comment got ATS p-ssed.
Anyone reading carefully, can tell when I am posting anonymously, though there are one or more posters that can be confused with me. Since they are saying things I agree with, it makes no difference. Occasionally to straighten confusion out, I use my initials or full name.
Thanks for your comments, but anyone who knows me well knows that I consider the alternatives before settling on a path and then, without strong reasons, I don’t deviate from the path. It’s worked really well with me in real life where I have had to deal with many very difficult situations. Thanks.
OT: has anyone been able to locate the decision by the Eastern District of Tennessee enjoining Biden’s guidance to schools on boys participating in girls’ sports and using girls’ locker rooms and bathrooms?
If you know the name, you should be able to find it on courtlistener.com
Russia, Russia, Russia. Abortion, Abortion, Abortion. Gun control, Gun control, Gun control. Yeh, the democrats have their finger on what’s bothering Americans the most. Joe Biden should be the official mascot of the democrat party.
SHALL BE BOUND BY OATH TO SUPPORT THE CONSTITUTION
SHALL NOT BE INFRINGED
Keep It Simple, Stupid!
KISS, an acronym for keep it simple stupid, is a design principle noted by the U.S. Navy in 1960.
The KISS principle states that most systems work best if they are kept simple rather than made complicated; therefore, simplicity should be a key goal in design, and unnecessary complexity should be avoided.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Article 6, Clause 3
The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.
Justices of the Supreme Court swear an oath to support the Constitution; a charge they have failed miserably and deliberately. That one dislikes and disagrees with the Constitution, does not alter, mitigate or modify the Constitution in any facet or aspect, or the fact that Justices are bound by oath to support its literal “manifest tenor.” Americans are free to alter their locus; Americans are not free to alter their Constitution, in the absence of the process of amendment. The judicial branch must assure that actions comport with law, and that branch has no power to legislate, modify legislation, or modify legislation through “interpretation” (i.e. judicial authoritarianism). The American Founders conducted a revolution to lift the despotic personal and regulatory burden of the dictatorship of the monarchy. Lincoln commenced the process of nullification of the American Revolution, the U.S. Constitution and the American society of laws to impose the “dictatorship of the proletariat.” Lincoln initiated the incremental implementation of the principles of Marxism by denying fully constitutional secession (slavery must have been abrogated legally and constitutionally) as Karl Marx’s “earnest of the epoch” leading America toward “the RECONSTRUCTION of a social world.” America has arrived.
Lincoln espoused Marx’s pejoratives “capitalist” and “fleece the people” in 1837; it was all downhill after that.
“These capitalists generally act harmoniously and in concert, to fleece the people.”
– Abraham Lincoln, from his first speech as an Illinois state legislator, 1837
“Everyone now is more or less a Socialist.”
– Charles Dana, managing editor of the New York Tribune, and Lincoln’s assistant secretary of war, 1848
“The goal of Socialism is Communism.”
– Vladimir Ilyich Lenin
“The workingmen of Europe feel sure that, as the American War of Independence initiated a new era of ascendancy for the middle class, so the American Antislavery War will do for the working classes. They consider it an earnest of the epoch to come that it fell to the lot of Abraham Lincoln, the single-minded son of the working class, to lead his country through the matchless struggle for the rescue of an enchained race and the reconstruction of a social world.”
– Karl Marx and the First International Workingmen’s Association to Lincoln, 1864
Letter of congratulation and commendation from Karl Marx to Abraham Lincoln: https://www.marxists.org/archive/marx/iwma/documents/1864/lincoln-letter.htm
The entire communistic American welfare state is unconstitutional including, but not limited to, matriculation affirmative action, grade-inflation affirmative action, employment affirmative action, quotas, welfare, food stamps, minimum wage, rent control, social services, forced busing, public housing, utility subsidies, WIC, SNAP, TANF, HAMP, HARP, TARP, HHS, HUD, EPA, Agriculture, Commerce, Education, Labor, Energy, Obamacare, Social Security, Social Security Disability, Social Security Supplemental Income, Medicare, Medicaid, “Fair Housing” laws, “Non-Discrimination” laws, etc.
Article 1, Section 8, provides Congress the power to tax ONLY for “…general Welfare…,” omitting and, thereby, excluding any power to tax for individual welfare, specific welfare, particular welfare, favor or charity. The same article enumerates and provides Congress the power to regulate ONLY money, the “flow” of commerce, and land and naval Forces. Additionally, the 5th Amendment right to private property is not qualified by the Constitution and is, therefore, absolute, allowing Congress no power to claim or exercise dominion over private property, the sole exception being the power to “take” private property for public use. If the right to private property is not absolute, there is no private property, and all property is public.
Government exists, under the Constitution and Bill of Rights, to provide maximal freedom to individuals while government is severely limited and restricted to merely facilitating that maximal freedom of individuals through the provision of security and infrastructure only.
A comment please, not an article.