Countless numbers of people from all walks of life traverse major cities on public transportation on a daily basis nationwide. Unfortunately, many law-abiding citizens in this group do so without the benefit of carrying a firearm for self-protection as cities across America continue to ban the concealed carry of a gun on subways, trains and busses.
Sadly, these modes of transportation are often the scene of violent crimes, such as in the horrific murder of Iryna Zarutska last August in North Carolina.
In an effort to erase this infringement on peaceable citizens, the Second Amendment Foundation (SAF) challenged the public transportation carry ban in Schoenthal v. Raoul, a case originally filed in Illinois.
At least one Supreme Court Justice seemed to understand the right to carry must encompass carrying on public transportation for the right to be meaningful. While questioning President Biden’s solicitor general during Bruen’s oral arguments in 2021, Justice Alito described the sorts of people who most need to exercise the right to carry as follows:
“None of these people has a criminal record. They're all law-abiding citizens. They get off work around midnight, maybe even after midnight. They have to commute home by subway, maybe by bus. When they arrive at the subway station or the bus stop, they have to walk some distance through a high-crime area…”
That’s why it was particularly frustrating when the Supreme Court denied to hear arguments in Schoenthal without a single dissent.
The Seventh Circuit initially ruled against SAF in Schoenthal, stating that “a consistent historical thread prohibits firearms in analogously crowded and confined locations.” Additionally, the Seventh Circuit found further support in the rules of 19th century railroad companies regarding carrying firearms in their passenger cars.
Neither of these rationalizations comport with our actual historical tradition. Guns were not historically banned in “crowded places,” and the Supreme Court rejected this very logic in Bruen, writing that “…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.”
As for relying on the 19th century railroad company rules, that is questionable from the jump because the Supreme Court tells us to look for an “…enduring American tradition of state regulation.”
Private company rules are not state regulation. But even if they were, such rules were too few and far between to form any historical tradition.
Most of the railroad company rules cited in the Seventh Circuit’s ruling were not even full bans on possession, often requiring guns to be inspected before being brought onto the train, or unloaded. And the State’s expert in another SAF case concerning California’s similar ban conceded that interstate travelers were exempted from these rules. The expert conceded that of the 70 railroads he examined, only 15% had any mention of firearms rules at all.
Aside from the constitutional analysis, public transportation carry bans are especially insidious because they function as total bans on carry for people who rely on public transportation to go about their daily lives.
Even the Ninth Circuit – which is no friend to gun rights – recognized as much when it criticized California’s law for being a full ban without exception for unloaded and locked guns: “The lack of such an exception appears particularly concerning in this context. For those who cannot afford private transportation, a complete ban on carry in public transit effectively disarms those persons entirely when they leave home in a vehicle. In other words, unlike a ban on carrying at, say, the circus, a ban on carrying on public transit unavoidably affects some persons' rights to bear arms on a nearly daily basis.”
While any sort of concession from the Ninth Circuit on gun rights is a welcomed change, unloaded guns stored in a backpack or briefcase are hardly helpful to those who face criminal attack. Unfortunately, the Seventh Circuit agreed with this logic, writing in its Schoenthal ruling that because Illinois had an exception for unloaded and secured guns, the carry ban was acceptable.
This brings us back to where we began, with the Supreme Court denying review in the case. Not one justice, not even Justice Alito, who seemed to understand the stakes here given his comments during Bruen’s oral argument, dissented.
While the denial means it’s the end of the line for this particular case, SAF has other cases challenging these so-called “sensitive places” still pending. In fact, SAF currently has six other “sensitive places” cases pending across the country, including Zimmerman v. Bondi, a case filed recently challenging the ban on firearms possession in federal facilities operated by the National Park Service.
The Supreme Court denying review is the last word in Schoenthal, but not on the same issue in other cases. As Justice Kavanaugh explained last year when the Court denied review in an assault weapon ban case, “…although the Court today denies certiorari, a denial of certiorari does not mean that the Court agrees with a lower-court decision or that the issue is not worthy of review.”
This would be very far from the first time a case was denied, only for a very similar case to be granted Supreme Court review at a later point. Bruen was preceded by a series of denials in similar cases for years before the Court was finally ready to take on another major Second Amendment case.
We can only hope the issue of public transportation carry bans will eventually meet the same fate.
– Kostas Moros
Kostas Moros is the Director of Legal Research and Education for the Second Amendment Foundation. He has been a practicing attorney in California since 2015, and is a member of several federal circuit courts, as well as the Supreme Court Bar. Aside from his litigation experience, Kostas has authored numerous amicus briefs filed in courts around the country, a law review article on why bans on common rifles are historically baseless, and dozens of articles on gun policy. He maintains a very active presence on X under the handle @MorosKostas.
