Will the Denver City Council listen to what Dave Kopel has to say? Well, they ignored his advice a few weeks ago when they passed new regulations banning the lawful carry of firearms in public parks and government-owned buildings, so I kind of doubt that they’ll pay more attention now, but the attorney and Second Amendment scholar is right that the Supreme Court’s decision last week in New York State Rifle & Pistol Association v. Bruen is bad news for the types of far-reaching bans that the city (and several suburbs) have recently enacted.
Kopel told Denver weekly Westword that the Bruen decision was an “outstanding” result for the exercise of our right to keep and bear arms, but warned that anti-gun politicians like the ones in charge in Denver are going to be wasting a lot of taxpayer dollars if they continue trying to broadly stop law-abiding citizens from carrying in self-defense.
“The Denver ban on guns in government buildings is okay. The ban on guns in city parks is definitely not,” says David Kopel, research director at the libertarian Independence Institute. “They should repeal the parks ban pretty damn quick, or somebody, not me, may well sue them and make some easy money in attorney’s fees.”
… Since the ruling did not specifically mention city parks, there’s no specific indication of how it could affect Denver’s concealed-carry ban in parks. But Kopel thinks the connection is clear.
“To start with, every place that seems to be sensitive is a building, and not just a general building, but a building that has something special about it. Is Washington Park or the Denver parkland near Evergreen, is that analogous to a courthouse, a legislative assembly, a polling place, a school or a government building?” asks Kopel. “Lawyers can try to make that argument, but I think it’s pretty hard to make an analogy there.”
That’s why he thinks Denver City Council should repeal the parks aspect of the new ordinance as soon as possible rather than face a lawsuit. “I think their chances of success are quite slender,” Kopel says. “It’s just going to rack on the taxing meter on the fees that they’re going to have to pay.”
Denver city council members might not have to worry much about paying for their own attorneys, especially if gun control groups offer to defend the city’s ordinance free of charge, but when they lose their case and have to pay the attorneys fees for the plaintiffs who challenge these new laws, taxpayers are going to be on the hook.
And yes, I agree with Kopel that this is going to be a case of “when,” not “if”. The majority opinion authored by Justice Clarence Thomas specifically addressed the idea of cities or states declaring broad swathes of publicly accessible places as “sensitive spaces” where concealed carry can be banned, and made it clear that those types of bans aren’t going to pass constitutional muster, in part by citing the work of a Second Amendment scholar named… Dave Kopel.
Although the historical record yields relatively few 18th- and 19th-century “sensitive places” where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions. See D. Kopel & J. Greenlee, The “Sensitive Places” Doctrine, 13 Charleston L. Rev. 205, 229–236, 244– 247 (2018); see also Brief for Independent Institute as Amicus Curiae 11–17.
We therefore can assume it settled that these locations were “sensitive places” where arms carrying could be prohibited consistent with the Second Amendment. And 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.
Although we have no occasion to comprehensively define “sensitive places” in this case, we do think respondents err in their attempt to characterize New York’s proper-cause requirement as a “sensitive-place” law. In their view, “sensitive places” where the government may lawfully disarm law-abiding citizens include all “places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available.”
It is true that people sometimes congregate in “sensitive places,” and it is likewise true that law enforcement professionals are usually presumptively available in those locations. But expanding the category of “sensitive places” simply to all places of public congregation that are not isolated from law enforcement defines the category of “sensitive places” far too broadly. Respondents’ argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense that we discuss in detail below. Put simply, 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.
According to the law review article authored by Kopel and Joseph Greenlee that was cited by Thomas, while “gun bans in certain government buildings and in polling places do have historical precedent, bans that apply to all government buildings do not.” That goes for gun bans all government property, including parks, as well.
Laws that widely prohibit bearing arms are contrary to the text of the Second Amendment. Accordingly, they are not a legitimate part of the history and tradition of the right to bear arms. So no “sensitive places” precedent can be drawn from statutes that forbade bearing arms at all public assemblies or social gatherings. Although some of these laws were enacted long ago, none of them are longstanding, for every one of them has been repealed. Every state that had such a law has replaced it with laws allowing licensed concealed carry, or open carry, in public places, including places of public assembly or social intercourse.
Kopel also points out that governments can’t just declare a place to be “sensitive” and be done with it. Most “sensitive” places aren’t just simply off-limits to lawful concealed carry, they’re often “protected by metal detectors and guards,” which Kopel says is an indication that “the government shows the seriousness of the government’s belief that the building is sensitive. This is what Colorado law requires for government office buildings that wish to ban licensed carry on the premises.”
Denver’s public parks do not have police officers on permanent guard duty, nor do they have metal detectors or any sort of screening device to detect firearms and deter unlawful carrying. They’re deemed “sensitive” only because a majority of city council members believe they can get away with banning guns on every inch of land owned by the city. Now that Kopel (and Justice Thomas) have reminded city officials of their error in judgement, the city council should move swiftly to rescind its ban. Something tells me, however, that Kopel or another Second Amendment attorney will get their chance to earn some “easy money” off the city’s stubborn insistence that the general public has no right to bear arms in self-defense in public parks.