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WASHINGTON – A blockbuster Second Amendment decision from the Supreme Court that could expand the ability of Americans to carry guns in public is likely to energize a debate over how far cities and states may go to ban guns in "sensitive" places, such as bars, hospitals and sports stadiums.
Though the question wasn't up for consideration in the case, experts predict it will be soon.
A 6-3 majority of the Supreme Court ruled Thursday that a New York law requiring people to demonstrate "proper cause" to carry a handgun in public prevented residents from exercising their Second Amendment rights. The decision, experts have predicted, is all but certain to leave cities and liberal states scrambling for a Plan B.
"'Sensitive places’ is the next major Second Amendment battleground,” said Adam Winkler, a UCLA School of Law professor, before Thursday's ruling. "States like New York and California that currently restrict concealed carry pretty severely are not just going to throw up their hands and surrender."
The high court's decision and the fallout from it lands as the nation once again grapples with a series of mass shootings, including one at an elementary school in Uvalde, Texas, last month in which 19 students and two teachers were killed. The shooting prompted bipartisan momentum in Congress for gun control legislation.
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In his opinion for the court on Thursday, Associate Justice Clarence Thomas noted historical references to guns being banned near legislative assemblies and courthouses and said that "we therefore can assume it settled that these locations were 'sensitive places' where arms carrying could be prohibited consistent with the Second Amendment." But Thomas said the court had no reason to define "sensitive places" in the New York decision.
The court's decision landed as Congress appears to have momentum for approving some gun restrictions for the first time in years. Lawmakers this week appeared to be on track to quickly pass the most meaningful package of gun control measures in decades.
Up for debate: Defining 'sensitive places'
Nearly 15 years ago, a 5-4 majority of the Supreme Court endorsed the idea that sensitive place regulations for schools and government buildings could withstand constitutional scrutiny. The question likely to vex lawmakers and courts, experts said, is whether limitations on the right to carry a gun in public are justified in other places – such as subways, college campuses and public protests.
"The question becomes, how do you define a sensitive place for constitutional purposes?" said Eric Ruben, a law professor at Southern Methodist University and a fellow at the Brennan Center for Justice, before the New York ruling. "That's a question that's not before the Supreme Court right now. But I expect it to be in the coming years."
At issue in the case is a century-old state law that requires residents to have "proper cause" to carry a handgun – in other words, a need for a permit that is greater than the general public. Two upstate New Yorkers, joined by the New York State Rifle and Pistol Association, sued when a licensing official denied them carry privileges.
The nation's highest court hadn't previously weighed in on the Second Amendment in more than a decade. In a pair of cases, one in 2008 and the other in 2010, a majority of the court affirmed the right of Americans to possess guns at home for self-defense. The court left unanswered questions about carrying those weapons into public places.
During oral arguments in November, the justices quizzed the parties on how far states may go in regulating where people may carry guns. They peppered the plaintiffs with hypotheticals about whether officials could ban handguns on the subway, at New York University or at Yankee Stadium.
"Can they say you cannot carry your gun at any place where alcohol is served?" Chief Justice John Roberts asked. "What about a football stadium?"
A federal appeals court struck down a similar requirement in Washington in 2017. The city, which for years had some of the strictest gun laws in the nation, issues licenses to carry concealed handguns but has a lengthy list of places where guns are prohibited, including public transit, polling places, churches and synagogues, hospitals and private businesses that post "conspicuous signage" barring guns.
Virginia passed a law two years ago giving local governments broad power to prohibit guns in parks, community centers and streets and sidewalks next to events.
"If the Supreme Court endangers public safety by wrongly overturning New York's public carry licensing law, lawmakers' to-do lists should start with fixes to keep guns out of sensitive places like bars, parks and government buildings," said Shannon Watts, founder of Moms Demand Action, which advocates for strong gun laws, anticipating Thursday's ruling.
Amy Hunter, a spokeswoman for the National Rifle Association, said prior to the ruling that the case “has nothing to do with ‘sensitive places.’” The issue, she said, was only raised "by the state of New York when they realized they were going to lose." Now, she said, the issue is "being employed by gun ban lobbyists."
Second Amendment advocates and conservative groups were nevertheless closely watching the litigation. In a brief filed last year in the New York case, the libertarian Independent Institute argued that "gun-free" zones historically were limited to places where the government provided security, such as courthouses and airports.
"The court should not only agree with petitioners that the Second Amendment protects the right to bear arms outside the home but, in so doing, also explain that the Second Amendment does not leave room for the government to eviscerate this right through the unbridled declaration of public gun-free zones," the group wrote.
Paul Clement, a former solicitor general in President George W. Bush's administration who argued the New York case for the plaintiffs, told the justices he was "a little bit reluctant" to embrace the idea that government-provided security alone should be the threshold to justify banning guns in specific places. Under that rubric, he said, cities might try to prohibit guns broadly in entire neighborhoods by pointing to large police forces.
Instead, Clement suggested federal courts consider whether the building or space at issue prohibits all weapons and not just guns, whether it allows anyone through the doors or restricts access and whether it's a space where "weapons are out of place."
This article originally appeared on USA TODAY: Supreme Court 2nd Amendment decision sets up debate over guns in bars