Relevant Constitutional Principles

Generally Applicable First Amendment Principles

In 1977, the neo-Nazi National Socialist Party of America announced its intention to march in Skokie, Illinois, a community with the largest population of Holocaust survivors in the country. They intended to wear uniforms embellished with the Nazi swastika and carry a banner bearing the swastika and statements such as “Free Speech for the White Man.” As abhorrent as their message was to the majority of the population, years of court battles had made it clear that the First Amendment protects the right to engage in hateful, racist, offensive speech and to associate with others who share those views.⁴ But the First Amendment does not protect violent or unlawful conduct, even if the person engaging in it intends to express an idea.⁵ Nor does the First Amendment protect speech that incites imminent violence.⁶

Governments May Impose Time, Place, and Manner Restrictions on Speech and Assembly in Public Forums

Although the First Amendment limits the government’s ability to regulate speech in public forums, it does not guarantee a right to express oneself “at all times and places or in any manner that may be desired.”⁷ Long-established First Amendment principles permit the government to act in ways that burden expressive freedoms if it can demonstrate an adequate justification for doing so. Public safety is a legitimate and compelling governmental interest that can justify certain restrictions on speech and assembly.

Speech restrictions in public forums are generally adjudicated under one of two overarching First Amendment frameworks. First, restrictions that single out speech on the basis of its content are subject to strict scrutiny, meaning that they “must be the least restrictive means of achieving a compelling state interest.” ⁸ Second, if a restriction is content-neutral—such that it regulates only the time, place, or manner in which speech can occur, but not the substance of the speech itself—then it need only (1) be “narrowly tailored to serve a significant governmental interest” and (2) “leave open ample alternative channels for communication of the information.”⁹

This Section provides an overview of three key issues local governments must grapple with when considering whether to impose restrictions on public demonstrations, rallies, protests, and marches: (1) how to determine whether a speech restriction is content-based or content-neutral, (2) how that determination affects courts’ tailoring analyses, and (3) which alternative methods of communication qualify as “ample.”

Which Speech Restrictions Are Content-Based?

According to the Supreme Court, a content-based restriction is one that “target[s] speech based on its communicative content”—in other words, “because of the topic discussed or the idea or message expressed.”¹⁰ In the context of public demonstrations, this distinction arises most often in the following three settings.

The Text of Permitting Regulations

When textual provisions “on [their] face” distinguish between types of communicative content, those regulations are content-based.¹¹ As a result, permitting requirements, ordinances, or other written requirements that apply only to¹² (or carve out exemptions for¹³) certain groups, topics, or functions are almost certain to be classified as content-based. This is not to say that such restrictions would never survive strict scrutiny—only that they are subject to strict scrutiny. In contrast, multiple courts have held that generally distinguishing between expressive and nonexpressive activity does not qualify as content-based, inasmuch as all speech is treated the same.¹⁴

Accounting for Listeners’ Reactions

Even without a textual provision that singles out particular actors or messages for favorable or unfavorable treatment based on their content, speech restrictions will be deemed content-based if they account for—or were prompted by—the prospect of an adverse audience response. As the Supreme Court has made clear, “[l]isteners’ reaction to speech is not a content-neutral basis for regulation.”¹⁵

This principle is a crucial First Amendment limitation in the context of public demonstrations. Courts have found speech restrictions to be content-based when the possibility (or actuality) of a hostile audience caused governmental officials to deny permit requests¹⁶, cancel scheduled events¹⁷, change the location of proposed events¹⁸, search all attendees¹⁹, employ crowd-control measures,²⁰ and silence individual speakers engaged in expression²¹. In addition, facially neutral permitting regulations will be deemed content-based when they invite officials to consider how others might react to a particular speaker’s message. This is true, for example, of permitting fees designed to offset the costs of police protection²². (The constitutionality of such fees will be further explored in Section III.A.3.)

Although the case law provides no clear guidance, courts arguably should treat as content-neutral any policing measures implemented in light of anticipated violence between ideologically opposed camps. If antagonistic groups expect and intend to clash with one another—regardless of what messages will be expressed on the day of an event—then any preventative speech restrictions would not stem from “[l]isteners’ reaction to speech.”²³ They would instead be justified by the existence of ongoing and foreseeable hostility between warring factions—and thus the dangerous possibility of violence arising from the gathering as a whole. The U.S. Court of Appeals for the Seventh Circuit has seemingly endorsed this position, regarding as content-neutral a speech restriction issued against the backdrop of “groups … who have been violent toward the [demonstrators] in the past, and who have been violent toward one another.”²⁴ The court viewed the challenged restriction as targeting “the possibility that attendees who had been violent at previous rallies would injure themselves, others, or property”—“not … the content of the views aired at the rally.”²⁵

Individualized Restrictions

Finally, the Supreme Court categorizes speech restrictions as content-based if they “cannot be justified without reference to the content of the regulated speech” or if they were adopted “because of disagreement with the message [the speech] conveys.”²⁶ Reasoning in this fashion, courts have deemed individualized restrictions—such as permit denials to particular applicants—to be content-based when comparably situated groups have received preferable treatment in the past.²⁷ Such disparities create an inference that officials have simply muzzled speech with which they disagreed, rather than acted to advance some valid governmental objective.

Tailoring

Regardless of whether a speech restriction is content-based or content-neutral, the government must have sufficiently good reasons for regulating expression, and it must do so in a way that does not unnecessarily restrict speech. Content-based regulations must be “the least restrictive means of achieving a compelling state interest,”²⁸ and content-neutral time, place, and manner regulations are held to a more lenient standard—that they be “narrowly tailored to serve a significant government interest.”²⁹ As the case law amply demonstrates, First Amendment tailoring analysis resists bright-line rules. Even judicial precedents presenting seemingly identical legal questions are not treated as dispositive; they are merely instructive, and can be overcome by any number of distinguishing factors relevant to the tailoring inquiry.³⁰

Which Governmental Interests Count?

The types of interests that justify the creation of permitting systems for public events qualify as “substantial” under First Amendment doctrine. These include the government’s interests in maintaining public property in a clean and usable condition,³¹ coordinating multiple uses of limited space,³² and ensuring that streets and sidewalks remain safe and accessible.³³ Courts also agree that governments have a substantial interest in regulating the harmful effects of public assemblies—including threats to human safety,³⁴ public health,³⁵ and nearby property,³⁶ as well as instances of excess noise.³⁷

It is less clear which interests qualify as “compelling.” There is a dearth of case law on this question; because the vast majority of permitting regulations (and the restrictions they engender) are content-neutral, it is usually enough to establish that a proffered interest is substantial.³⁸ That said, courts have explicitly³⁹ and implicitly⁴⁰ recognized that governments have a compelling interest in ensuring public safety and order at public events.

In the context of public demonstrations, courts virtually never question the validity of asserted governmental interests in the abstract. Problems do arise, however, when governments cannot demonstrate that their asserted interests are seriously implicated under the particular factual circumstances at issue.⁴¹ In these situations, it will be difficult to establish that speech has not been excessively restricted in relation to valid governmental goals.

Conversely, an unusually strong showing of governmental need may yield a correspondingly lenient tailoring analysis.⁴² For instance, a demonstrated history of past violence—or reliable evidence of anticipated violence—will weigh heavily in favor of the constitutionality of speech restrictions designed to ensure public safety.⁴³

Content-Neutral Time, Place, and Manner Regulations

Although a content-neutral regulation must be “narrowly tailored to serve a significant governmental interest,” it “need not be the least restrictive or least intrusive means of doing so.”⁴⁴ A regulation will be invalidated for this reason only if its strictures are “substantially broader than necessary to achieve the government’s interest.”⁴⁵ In other words, the government “may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.”⁴⁶ This test is hardly a rubber-stamp; as discussed throughout this Toolkit, courts routinely invalidate regulations that sweep unnecessarily broadly in relation to the government’s goals. Content-neutral speech restrictions are likely to be struck down if the government has overlooked “obvious” alternatives that would have achieved the same ends “with less restriction of speech.”⁴⁷

Content-Based Regulations

Content-based speech restrictions are “presumptively unconstitutional.”⁴⁸ To survive so-called strict scrutiny, such restrictions must serve a “compelling governmental interest” and be “narrowly tailored to that end.”⁴⁹ Critically, the phrase “narrowly tailored” bears a more stringent meaning in the context of content-based regulations—it requires that those regulations be “the least restrictive means” of achieving a compelling state interest.⁵⁰

Although content-based restrictions are generally subjected to strict scrutiny, the Supreme Court has stated categorically that “[s]peech cannot be … punished or banned … simply because it might offend a hostile mob.”⁵¹ This so-called “heckler’s veto” principle accounts for three contexts in which content-based restrictions are treated as per se invalid, rather than subject to strict scrutiny. First, governments may not financially burden expression in ways that are influenced by how other persons might react, or have reacted, to that speech.⁵² Second, with two narrow exceptions,⁵³ speakers may not be criminally punished merely because their speech foments violent reactions.⁵⁴ And third, governments have no authority to deny or revoke requested permits⁵⁵ or “enjoin otherwise legal expression”⁵⁶ simply because speech might elicit a hostile response.

Ample Alternative Channels

Time, place, and manner regulations must “leave open ample alternative channels for communication of the information.”⁵⁷ Although the Supreme Court has never precisely defined this requirement, its essence is that speakers must be able to reach approximately the same audience without undue cost or effort.⁵⁸ Regulations that “foreclose an entire medium of expression” are viewed with particular disfavor.⁵⁹ Alternative channels are not “ample,” moreover, if a speaker “is not permitted to reach the intended audience.”⁶⁰ This can occur when “the location of the expressive activity is part of the expressive message.”⁶¹

On the other hand, alternative channels will be considered adequate if a restriction merely renders the speech somewhat less effective⁶² or somewhat more costly;⁶³ a speaker is not entitled to insist on her “first or best choice.”⁶⁴ It is also the speaker’s burden to demonstrate that a challenged restriction threatens her “ability to communicate effectively.”⁶⁵

The First Amendment Forbids Giving Government Officials Unfettered Discretion to Regulate Expression

The First Amendment prohibits government officials from regulating expression absent “objective factors” and “articulated standards” to guide their decisions.⁶⁶ Put another way, administrators may not exercise “unfettered discretion”⁶⁷ to permit or restrict speech. This rule aims to ensure that governments will not covertly amplify their preferred viewpoints, while silencing opinions that meet with official disapproval. With unduly broad discretion comes a heightened risk that the authorized decisionmaker will favor or disfavor speech based on its content. It is not enough to rely on government officials’ good faith in administering such elastic language. If a provision allows for the unfettered regulation of First Amendment rights, then it is subject to facial invalidation unless the government can identify a “binding judicial or administrative construction” or “well-established practice”⁶⁸ confining officials’ discretion.

This prohibition on unfettered discretion applies in a variety of contexts implicated by the First Amendment. The existing case law thus counsels strongly in favor of establishing a permitting system under which public expression may be regulated only according to objective, standardized processes.

Adjudicating Permit Applications

The rule against excessive discretion applies most quintessentially to governments’ treatment of permit applications. In Shuttlesworth v. City of Birmingham (1969), for example, the Supreme Court invalidated an ordinance requiring that permits for public demonstrations be granted “unless in [the city commission’s] judgment the public welfare, peace, safety, health, decency, good order, or convenience require that it be refused.”⁶⁹ Such language enabled local officials “to roam essentially at will,” authorizing or forbidding speech according to their personal conceptions of “decency,” “morality,” and “public welfare.”⁷⁰ Courts routinely strike down similar language when it fails to constrain official decisions to (1) grant or deny permits,⁷¹ (2) impose certain conditions on permits,⁷² and (3) revoke or modify previously granted permits.⁷³

At the same time, there is wide agreement that governments must be afforded some latitude in adjudicating permit applications. Challenged provisions are usually upheld as long as the administrator’s discretion can be fairly characterized as less than absolute.⁷⁴ This is especially true when the relevant factors implicate the decisionmaker’s professional expertise (e.g., matters of public safety and available municipal resources)⁷⁵ or appear to have been phrased as precisely as possible under the circumstances.⁷⁶ And courts generally have held that qualifiers like “unreasonably,” “substantially,” and “unnecessarily” operate to reduce official discretion rather than to expand it.⁷⁷ Despite some notable exceptions,⁷⁸ facial invalidation is disfavored as long as some objective touchstones exist. It is a common refrain in this area that “a pattern of unlawful favoritism” can be dealt with “if and when [it] appears.”⁷⁹

Waivers from Generally Applicable Permitting Requirements

Because they “raise[] the spectre of selective enforcement on the basis of the content of speech,”⁸⁰ waiver provisions are especially likely to be facially invalidated as conferring unbridled discretion. Accordingly, courts have invalidated a host of waiver provisions authorizing administrators to dispense with standard permitting requirements, both of a procedural⁸¹ and substantive nature.⁸² Isolated departures from general protocols—which function as ad hoc waivers—are nearly certain to be struck down, as well.⁸³

There appears to be only one decision upholding a waiver provision in a permitting regulation: the Supreme Court’s 2002 decision in Thomas v. Chicago Park District. Thomas unanimously upheld a permitting regulation specifying that the administrator “may” (rather than “must”) deny permit applications for any one or more of several listed reasons.⁸⁴ The Court thus refused to “insist[] upon a rigid, no-waiver application of the ordinance requirements.”⁸⁵ But Thomas also declined to authorize fully discretionary waivers of permitting requirements. Instead, the Court noted that Chicago’s Park District had interpreted the challenged provision as allowing it to “overlook[] only those inadequacies that, under the circumstances, do no harm to the policies furthered by the application requirements.”⁸⁶ This gloss functioned as a “binding … administrative construction”⁸⁷ forbidding the use of waivers except as to trivial harms. So narrowed, the provision posed little risk of favoring or disfavoring speech based on its content. The Court concluded by assuring that any abuses could be dealt with through future as-applied challenges.⁸⁸

Financial Obligations Imposed on Permittees

Permitting regulations often require applicants to assume certain financial obligations as a condition of obtaining a permit. Examples include fees tied to the estimated costs of furnishing necessary governmental services, insurance and surety-bond requirements, and indemnification and hold harmless agreements. As explained below,⁸⁹ it is unconstitutional to consider the content of an applicant’s speech in imposing these requirements. In addition to that frequently litigated constraint, the First Amendment forbids administrators from exercising unfettered discretion in deciding (1) whether to impose financial obligations as a condition of receiving a permit, and (2) if so, in what amounts.

Unsurprisingly, the case law on excessive discretion in this context largely mirrors the general principles discussed above. The most pertinent Supreme Court decision is Forsyth County v. Nationalist Movement, in which the Court struck down an ordinance that left the decisions of “how much to charge”—“or even whether to charge at all”—to the “whim of the administrator.”⁹⁰ A variety of financial requirements have likewise been invalidated on the ground that they stemmed from an exercise of untrammeled discretion.⁹¹ Others, however, have been upheld as the product of sufficiently cabined judgments grounded in one or more articulable state interests.⁹² Lastly, as with waivers of permitting requirements more generally, waivers of financial obligations may be granted only pursuant to provisions that meaningfully curtail official discretion.⁹³

Searches of Attendees

Because the prohibition on unfettered discretion applies to “a wide[] range of burdens on expression,”⁹⁴ the U.S. Court of Appeals for the Eleventh Circuit has held that decisions to search some or all persons who attend a public demonstration cannot be the product of officials’ unguided judgment. In that court’s view, such mass searches—even if otherwise justified by a risk of impending violence—may be undertaken only pursuant to “objective, established standards” that predated the decision to implement safety protocols for a particular gathering.⁹⁵ Jurisdictions thus would be well advised to include in their permitting regulations generally applicable standards for conducting searches at public demonstrations. (The constitutionality of such searches is discussed further below in Section III.B.1.)

Generally Applicable Second Amendment Principles

Case law from the Supreme Court and lower courts suggests that certain restrictions on gun possession during public events are consistent with the Second Amendment to the U.S. Constitution. Although the Supreme Court has recognized an individual right to keep and bear arms under the Second Amendment, that right is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”⁹⁶ Rather, the Court has made clear that governments may constitutionally impose limitations on gun ownership and possession if those limitations are consistent with the Nation's historical tradition of firearm regulation.

In particular, as discussed in greater detail below, the Supreme Court considers certain gun safety regulations to be presumptively lawful. Such regulations include, among other things, prohibitions on the possession of firearms in “sensitive places,” such as schools and government property, and laws prohibiting private paramilitary organizations.⁹⁷ In addition, governments may condition the issuance of licenses to publicly carry firearms on a variety of objective criteria, as long as the government does not “deny ordinary citizens their right to public carry.” ⁹⁸

The Supreme Court recently adopted a new standard for evaluating Second Amendment challenges in its decision in New York State Rifle & Pistol Ass’n v. Bruen. As of this writing, lower courts have not had much time to apply this standard and address the many questions that Bruen left unresolved. Each circuit will inevitably answer certain questions differently, and local governments should review the case law from their jurisdiction, as it develops, for the judicial precedent relevant to their issue. Moreover, state constitutions may include provisions protecting the right to bear arms that are different from and, in some cases, broader than the Second Amendment.⁹⁹ And, as discussed in Section II.F below, even if a local regulation is permitted under the Second Amendment, it may be preempted under state law. Accordingly, local governments should also consult their state constitutions and codes to ensure that any firearms restrictions they plan to impose are not prohibited by state law.

In District of Columbia v. Heller, the Supreme Court Recognized an Individual Right to Keep and Bear Arms for Self-Defense

In 2008, the Supreme Court in District of Columbia v. Heller recognized for the first time an individual right under the Second Amendment to keep and bear arms for the purpose of self-defense.¹⁰⁰ Despite longstanding precedent suggesting that the Second Amendment protected the right to keep and bear arms only for certain authorized military purposes,¹⁰¹ the Court struck down the District of Columbia’s ban on handgun possession in the home, which it said impermissibly infringed on individuals’ ability to use handguns “for the core lawful purpose of self-defense.”¹⁰² The Court later held in McDonald v. City of Chicago that “the Second Amendment right is fully applicable to the States,” explaining that states, like the federal government, may not impermissibly burden the right to keep and bear arms.¹⁰³ In doing so, the Court reaffirmed its “central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.”¹⁰⁴

The Supreme Court Left the Door Open for Certain Gun Restrictions

Despite its recognition of an individual right under the Second Amendment, the Supreme Court in Heller took pains to make clear that the right “is not unlimited”: It is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”¹⁰⁵ Rather, Heller expressly left the door open for governments to impose reasonable restrictions on gun possession and ownership,¹⁰⁶ and the Court in McDonald “repeat[ed] those assurances.”¹⁰⁷

In particular, the Court in Heller emphasized that several types of existing gun regulations remain “presumptively lawful.”¹⁰⁸ Such regulations include “longstanding” restrictions on the possession of firearms by felons and the mentally ill, laws prohibiting the possession of firearms in “sensitive places” like “schools and government buildings,” and bans on especially dangerous weapons, including military-style firearms.¹⁰⁹ In addition, Heller reaffirmed that the Second Amendment “does not prevent the prohibition of private paramilitary organizations.”¹¹⁰

The Heller Court further clarified that these presumptively lawful regulations were mentioned “only as examples,” and that the “list does not purport to be exhaustive.”¹¹¹ The Court did not provide guidance, however, as to the appropriate methodology for identifying other presumptively lawful regulations. And it declined to elaborate on the precise level of scrutiny that courts should apply when evaluating firearms restrictions in subsequent cases, holding only that the District of Columbia’s law would have failed “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.”¹¹²

Following Heller, Lower Courts Developed a Two-Step Framework for Evaluating Second Amendment Challenges

Following Heller, most federal courts adopted a two-step approach for analyzing Second Amendment challenges to firearms regulations. Under this framework, courts asked: “(1) Is the restricted activity protected by the Second Amendment in the first place? (2) If so, does [the regulation] pass muster under the appropriate level of scrutiny?” ¹¹³ As discussed below, the Supreme Court recently rejected this two-step framework in New York State Rifle & Pistol Ass’n v Bruen,¹¹⁴ but it is nevertheless helpful to review how courts applied the framework, as aspects of their reasoning are still relevant to post-Bruen challenges.

Beginning with the first step of the approach, courts evaluating firearms regulations after Heller looked to history to determine “whether the law harmonizes with the historical traditions associated with the Second Amendment guarantee,”¹¹⁵ including “whether the record includes persuasive historical evidence establishing that the regulation at issue imposes prohibitions that fall outside the historical scope of the Second Amendment.”¹¹⁶ Among other things, courts examined Founding-era laws to determine whether proscriptions similar to the one at issue existed when the Constitution was ratified.¹¹⁷ Courts also looked to evidence of nineteenth-century courts and commentators to determine whether, even if such prohibitions did not date to the Founding era, they were nonetheless sufficiently “longstanding.”¹¹⁸ If a court found the restriction at issue had a sufficient historical pedigree, it would conclude that the prohibitions imposed by that restriction fell outside the scope of the Second Amendment’s protection.¹¹⁹

In addition, some courts found that the “presumptively lawful” regulations identified in Heller necessarily fell outside the Second Amendment’s protections, with no need to conduct a further historical analysis.¹²⁰ The Fourth Circuit, for instance, applied a more “streamlined” analysis when it rejected a challenge to the federal statute prohibiting felons from possessing firearms, reasoning that, “[a]mong the firearms regulations specifically enumerated as presumptively lawful in Heller are ‘longstanding prohibitions on the possession of firearms by felons.’ ”¹²¹

Because the list of presumptively lawful regulations in Heller was—explicitly—not exhaustive, some courts upheld regulations similar, but not identical, to the ones the Supreme Court expressly mentioned. For example, in 2010, the Eleventh Circuit rejected a challenge to the federal law banning possession of firearms by persons convicted of domestic violence, 18 U.S.C. § 922(g)(9).¹²² Although the court acknowledged that Heller’s list of “presumptively lawful” regulations did not include that specific prohibition, it reasoned that § 922(g)(9)’s ban served the same purpose as felon-in-possession statutes: keeping firearms out of the hands of dangerous individuals.

Moving to the second step of the two-step framework, if a regulation burdened a right historically thought to be within the scope of the Second Amendment, a court would analyze the regulation under traditional means-ends scrutiny. In other words, the court would ask whether the government’s interest in the regulation was sufficiently great and whether the regulation burdened an individual’s Second Amendment rights more than necessary to achieve that governmental interest. As noted above, the Supreme Court in Heller expressly declined to specify the precise level of scrutiny that applied, while ruling out “rational basis” review.¹²³ Accordingly, courts were left to choose between strict and intermediate scrutiny.

Courts took varying approaches to determining which level of scrutiny applied, but most reasoned that the level of scrutiny turned on how heavily a law burdened an individual’s Second Amendment rights. As the Fifth Circuit put it, “[a] law that burdens the core of the Second Amendment guarantee—for example, ‘the right of law-abiding, responsible citizens to use arms in defense of hearth and home’—would trigger strict scrutiny, while a less severe law would be proportionately easier to justify.”¹²⁴ Indeed, where a law did not encroach on an individual’s right to bear arms at home or for self-defense, most federal courts of appeals applied intermediate scrutiny.¹²⁵ And under that standard, the government was required to show only “a ‘reasonable fit’ between the challenged regulation and a ‘substantial’ government objective.”¹²⁶

In New York State Rifle & Pistol Ass'n v. Bruen, the Supreme Court Rejected the Two-Step Framework but Reaffirmed Heller's Approval of Certain Restrictions

In June 2022, the Supreme Court issued its decision in New York State Rifle & Pistol Ass’n v. Bruen, in which it held that New York’s public-carry licensing regime violated the Second Amendment by requiring applicants to demonstrate a special need for self-defense.¹²⁷ Rather than applying the two-step framework developed by the lower courts following Heller, the Supreme Court articulated a new legal standard to govern Second Amendment challenges to firearms regulations. Under this test, “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.”¹²⁸ The burden then falls on the government to “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”¹²⁹ To make that showing, the government will often need to “identify a well-established and representative historical analogue” to the regulation being challenged.¹³⁰

Applying this standard to New York’s licensing regime, the Court wrote that it had “little difficulty concluding” that the text of the Second Amendment protected not only the right to keep firearms in the home, but also the right to “carry[] handguns publicly for self-defense.”¹³¹ The burden thus fell on New York to show that its licensing scheme was “consistent with this Nation’s historical tradition of firearm regulation.”¹³² And because, in the Court’s view, New York had failed to "demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense”—or “any such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense”¹³³—the state’s public-carry licensing requirement violated the Second Amendment.

Bruen represents an expansion of gun rights and a corresponding diminution of government power to regulate firearms. By limiting permissible regulations to those with well-established historical analogues, and by expressly eschewing the kind of means-end scrutiny that lower courts had applied following Heller, the Supreme Court cast doubt on a broad swath of reasonable gun laws that promote public safety.¹³⁴ Although the full ramifications of the decision will not be known for years, it is clear now that states and local governments should prepare for a new wave of Second Amendment challenges to regulations previously thought to be valid.

That said, Bruen was careful to emphasize that the Second Amendment is not a “regulatory straightjacket,” and that governments defending against challenges to gun laws are required only to “identify a well-established and representative historical analogue, not a historical twin.”¹³⁵ The Court further explained that, “even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster,” and it cited as an example “Heller’s discussion of ‘longstanding’ ‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.’ ”¹³⁶ “Although the historical record yields relatively few 18th- and 19th-century ‘sensitive places’ where weapons were altogether prohibited,” the majority explained, “courts can use analogies to those historical regulations of ‘sensitive places’ to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.”¹³⁷ In a concurrence joined by Chief Justice Roberts, Justice Kavanaugh also emphasized that “the Second Amendment allows a ‘variety’ of gun regulations,” and he quoted extensively from Heller’s discussion of “presumptively lawful regulatory measures.”¹³⁸

State and Local Governments May Restrict the Carrying of Firearms at Certain Public Events Consistent with the Second Amendment

Case law interpreting Bruen is still in its infancy. We can nevertheless draw some conclusions about the ability of state and local governments to limit the use of weapons at public events. Although such limitations are at greater risk of being struck down following Bruen, the analytical approach outlined by the Court suggests that some restrictions on carrying firearms at public events or demonstrations will survive challenges brought under the Second Amendment.

Prohibitions on Firearms in "Sensitive Places"

As noted above, Heller said that laws prohibiting the carrying of firearms in “sensitive places” like “schools and government buildings” are “presumptively lawful.”¹³⁹ And Bruen reaffirmed that in historically sensitive places, “arms carrying could be prohibited consistent with the Second Amendment.”¹⁴⁰ Bruen listed as additional sensitive places “legislative assemblies, polling places, and courthouses.”¹⁴¹ And, as just discussed, Bruen contemplated that lower courts would analogize to these historically sensitive locations when deciding whether new places qualify as sensitive.

In the years between Heller and Bruen, lower courts rarely elaborated on what it meant for a place to be “sensitive,” often choosing instead to resolve Second Amendment challenges on other grounds.¹⁴² In 2011, for example, the Fourth Circuit upheld a ban on handguns in vehicles in national parks, but it declined to resolve whether national parks were sensitive, holding instead that the ban satisfied the then-applicable intermediate scrutiny standard.¹⁴³ The following year, the Eleventh Circuit upheld a state regulation restricting the carrying of weapons in places of worship, again without deciding whether places of worship were sensitive, because it concluded that the conduct burdened by the law fell outside the scope of the Second Amendment’s protection.¹⁴⁴

Some pre-Bruen decisions did add color, however, as to what it means for a place to be sensitive.¹⁴⁵ In 2015, for example, the Tenth Circuit held that not only was a federal post office sensitive as a government building, but so too was the adjacent parking lot.¹⁴⁶ Although the court’s reasoning was brief, it noted that the parking lot was attached to and “exclusively serve[d]” the post office, and that “postal transactions take place in the parking lot as well as in the building.”¹⁴⁷ Likewise, the D.C. Circuit held in 2019 that a parking lot near the U.S. Capitol was sensitive because it “has been set aside for the use of government employees, is in close proximity to the Capitol building, and is on land owned by the government.”¹⁴⁸ The court rejected the argument that outdoor government property is sensitive only if it is “off-limits to the public (like the White House lawn) or protected by metal detectors and security guards (like the Capitol building),” noting that “[m]any ‘schools’ and ‘government buildings’—the paradigmatic ‘sensitive places’ identified in Heller I—are open to the public, without any form of special security or screening.”¹⁴⁹

These cases suggest that state and local governments can, consistent with the Second Amendment, restrict firearms not only in the sensitive places enumerated by Heller and Bruen—that is, schools, government buildings, legislative assemblies, polling places, and courthouses—but also in adjacent areas. The ability to impose such restrictions is a valuable tool in policymakers’ toolkits. With respect to legislative assemblies, for example, “more than one-third of all the armed protests that occurred in 2021 were around statehouses.”¹⁵⁰ And the power to ban guns at and around polling places is also important because “[t]he presence of armed protesters at these locations can suppress turnout and intimidate both voters and poll workers.”¹⁵¹ This became clear in Arizona in the days following the 2020 presidential election, when Trump supporters protested outside vote-counting sites with military-style assault rifles.¹⁵²

Beyond those places the Supreme Court has specifically deemed historically sensitive, state and local governments must decide how ambitious they want to be in prohibiting firearms in “new and analogous sensitive places.”¹⁵³ One lower court decision before Bruen suggested that locations could be deemed sensitive if they were “gathering places where high numbers of people might congregate.”¹⁵⁴ New York advanced a similar position in its briefing in Bruen, arguing that sensitive places were “places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available.”¹⁵⁵ The Supreme Court rejected this view, reasoning that while “people sometimes congregate in ‘sensitive places,’ ” and while “law enforcement professionals are usually presumptively available in those locations,” New York’s position “would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense.”¹⁵⁶ “Put simply,” the Court wrote, “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.”¹⁵⁷

While Bruen expressed doubts regarding an expansive reading of “sensitive places,” it remains to be seen how the Supreme Court (and lower courts) will evaluate laws that prohibit firearms at or near public protests.¹⁵⁸ Several states currently have such laws on the books,¹⁵⁹ and questioning at oral argument in Bruen suggested that some Justices in the majority might endorse restrictions on guns in particularly crowded places.¹⁶⁰ That said, certain scholars and gun rights activities—including some cited by the Court in Bruen¹⁶¹—have argued that it is not enough for a location to be crowded, and that sensitive places are instead limited to those in which the government “can provide physical defense comparable to the individual right to bear arms.”¹⁶² Bruen did not fully embrace this view, noting only that “law enforcement professionals are usually presumptively available in” sensitive places,¹⁶³ and other scholars have rejected it as ahistorical. ¹⁶⁴ Indeed, skepticism toward this position seems warranted: as the D.C. Circuit noted in the decision discussed above, “[m]any ‘schools’ and ‘government buildings’—the paradigmatic ‘sensitive places’ identified in Heller I—are open to the public, without any form of special security or screening.”¹⁶⁵ It nevertheless is likely that litigants will advance the government-protection theory in future challenges to gun restrictions at both public protests and other putatively sensitive places.

Public-Carry Licensing Schemes

Before Bruen, many federal courts of appeals held that state and local governments had broad discretion to regulate the carrying of firearms outside the home. Bruen cast doubt on many of these decisions, and it expressly abrogated those that upheld “may-issue” public-carry licensing regimes like the New York scheme the Court struck down.¹⁶⁶ However, the Bruen majority did endorse “shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course.”¹⁶⁷ And Justice Kavanaugh’s concurrence noted that “shall-issue regimes may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements.”¹⁶⁸ States and local governments therefore retain significant authority to impose public-carry licensing requirements, as long as those requirements are based on objective criteria and administered in a way that does not “deny ordinary citizens their right to public carry.”¹⁶⁹

Anti-Paramilitary Laws

Courts have long recognized that state laws prohibiting marching or drilling with firearms, as well as laws banning paramilitary organizations, are consistent with the Second Amendment. This precedent supports the inclusion of such restrictions in public-event permits. In 1886, the Supreme Court in Presser v. Illinois held that the Second Amendment did not prohibit a state law that forbade “bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law.”¹⁷⁰ As noted above, Heller made clear that the recognition of an individual right to bear arms in certain circumstances did not undermine Presser’s holding.¹⁷¹ Nor did Bruen cast doubt on Presser. Indeed, many states have longstanding anti-paramilitary laws or laws banning parading or marching with firearms, which remain lawful under Heller and Bruen. Such laws are discussed in further detail below.