When the federal government no longer sits on the sidelines and files its own lawsuit to protect the Second Amendment, pay attention. When the federal government is not just offering another amicus brief about their opinion in another case, pay close attention. When the federal government itself chooses to step into court challenging unconstitutional infringement of the right to keep and bear arms, it is a rare and significant development.
Last week, the Department of Justice (DOJ) filed a significant lawsuit challenging Montgomery County, Maryland’s, newly enacted Expedited Bill 23-26, a law establishing gun bans in and around “sensitive places,” arguing that it violates the Second Amendment as interpreted by the U.S. Supreme Court decision in Wolford v. Lopez. The DOJ asks that the law be declared unconstitutional and to permanently enjoin the county and its law-enforcement agencies from enforcing the law.
The law, which took effect in late July, is being challenged as unconstitutional as it creates a network of “gun free zones” prohibiting licensed citizens from carrying firearms in a wide variety of places constituting “places of public assembly.” Beyond the places themselves, the law additionally imposes a 100-yard exclusion zone around each of these locations creating an overlapping “buffer” zone making it practically impossible to carry a firearm lawfully during ordinary, day-to-day activities. The list of public places includes houses of worship, schools, parks, libraries, recreation centers, government buildings, polling places and courthouses.
The DOJ’s complaint is rather straightforward in arguing that the law effectively nullifies the right to carry a firearm for self-defense with these prohibitions. In doing so, the law is in direct conflict with the recent Wolford decision which rejected sweeping prohibitions covering places people routinely visit in everyday life. Much like Hawaii’s law that was struck down in Wolford, Montogomery County’s sweeping restrictions seek to transform broad categories of places where people live, work, worship, and otherwise conduct their daily affairs. The Court’s warning stands: “This regime hobbles what the Second Amendment protects: the right of Americans to carry arms for self-defense as they go about their daily lives.”
DOJ’s recent filing is not the first of its kind against Montgomery County. Very notably, the Silver Spring Jewish Center and Rabbi J. Menashe Shapiro are also challenging the County’s firearm restrictions as applied to houses of worship, with the 100-yard “gun free zone” serving as the central issue. Their complaint alleges that the law violates the First Amendment’s Free Exercise and Establishment Clauses, the Second Amendment right to keep and bear arms, as well as the Fourteenth Amendment’s Equal Protection Clause by discriminating against and interfering with religious decision making.
It cannot be overstated how irresponsible it is for government to effectively disarm congregants as well as a synagogue's volunteer security team at a time when Jewish institutions, and many other religious institutions, have faced heightened threats of violence.
More than ever, these so-called “sensitive places” and surrounding gun-free zones are proving to be the most vulnerable locations for law-abiding citizens. With threats against houses of worship and other public gathering places every present, those most at risk are stepping up to take responsible steps to protect themselves and their communities. Yet instead of allowing trained licensed citizens to provide protection, governments are increasingly enacting “gun-free zones” that disarm the very people seeking to enhance their own security.
Consequences of these legal challenges extend beyond the borders of Montgomery County and even the borders of Maryland. The concern is not simply that Montgomery County would have the opportunity to continue to enforce its own ordinance but that an unfavorable decision could become a road map for other Maryland counties with anti-gun counties nationwide taking notice. The state of Maryland is home to over 600 houses of worship. Even though each ordinance would apply only within that county border, the availability of Maryland statewide carry permits has been hard fought, allowing permit holders to travel throughout the state. If more counties try to adopt overlapping “sensitive place” designations, the practical ability to lawfully carry a firearm could be diminished to nothing across much of Maryland.
That cumulative effect is precisely why this ordinance has many larger implications with the danger of this type of precedent working to establish that a local government may broadly redefine ordinary public spaces as prohibited carry locations. A right protected by the Second Amendment should not vary from county to county and certainly should not disappear because a citizen crosses an invisible county line. Equally as important, the Constitution does not require Americans to surrender one fundamental right in order to exercise another.
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