Sensitive-Place Challenges Proceed at Bruen Step Two; Government-as-Proprietor May Ban Firearms; “Default No-Carry” Rule for Public-Access Private Property Is Unconstitutional

1. Introduction

In this consolidated cross-appeal, multiple plaintiffs (including Katherine Novotny and allied organizations, and Susannah Warner Kipke and the Maryland State Rifle and Pistol Association) challenged a suite of Maryland laws and regulations restricting firearm carry in a wide array of locations. Maryland defended the restrictions chiefly under the “sensitive place” concept first identified in District of Columbia v. Heller, 554 U.S. 570 (2008), and refined through the historical-analogy method of New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022).

The litigation arose after the district court (D. Md.) granted and denied relief in different respects at the preliminary-injunction and summary-judgment stages, producing a mixed set of outcomes and prompting cross-appeals. The Fourth Circuit’s published decision—authored by Judge Gregory and joined by Chief Judge Diaz, with Judge Agee concurring in part and dissenting in part—both (a) clarifies the doctrinal “slot” occupied by the sensitive-place inquiry within Bruen, and (b) resolves the constitutionality of numerous location-specific prohibitions.

Key issues

• Framework: Where, within Bruen’s two-step test, does “sensitive place” analysis belong?
• Scope: Which modern locations qualify as constitutionally permissible firearm-exclusion zones based on historical tradition?
• Government property: May the government bar firearms when acting as a proprietor/market participant (e.g., operating mass transit)?
• Private property: May the State criminalize carry onto private property open to the public unless owners affirmatively “opt in” (posting/sign or express permission)?
• Justiciability: Do plaintiffs have standing for pre-enforcement challenges to the various restrictions?

2. Summary of the Opinion

The court affirmed in part and reversed in part. Judge Gregory’s opinion is controlling in full. The court’s holdings, location-by-location, are summarized below.

3. Analysis

3.1. The new doctrinal framework: sensitive places belong at Bruen step two

A principal precedential contribution of the opinion is its clarification that “sensitive place” analysis is not a textual carve-out at step one, but a historical-tradition justification evaluated at step two. The court holds that sensitive-place laws “directly impact the right to bear arms” and are thus “subject to Bruen’s historical analysis” at step two, relying in part on McRorey v. Garland, 99 F.4th 831 (5th Cir. 2024), and a concurrence in United States v. Price, 111 F.4th 392 (4th Cir. 2024) (en banc).

The court integrates this with its en banc second-amendment jurisprudence—especially Bianchi v. Brown, 111 F.4th 438 (4th Cir. 2024) (en banc)—to distinguish:

• Step one: original public meaning of the Second Amendment’s text (with Founding-era sources emphasized), articulated through Price’s three questions (protected people, common-use arms, and protected “course of conduct”).
• Step two: whether the regulation is “consistent with this Nation’s historical tradition,” with attention to “why and how” the law burdens the right, as emphasized by United States v. Rahimi, 602 U.S. 680 (2024).

Practically, this framework matters because it channels sensitive-place disputes into analogical history rather than categorical “place labeling,” and because it sets the government’s burden: not to prove that the Second Amendment text excludes the conduct, but that tradition supports the restriction.

3.2. Government as proprietor: a Second Amendment “proprietary property doctrine”

The opinion’s other major doctrinal move is to recognize, in the Second Amendment context, a principle drawn from constitutional cases distinguishing the government acting as sovereign from the government acting as proprietor. Relying on Engquist v. Or. Dep’t of Ag., 553 U.S. 591 (2008), United States v. Kokinda, 497 U.S. 720 (1990), and Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992), the court holds that when the government is acting in its proprietary capacity or as a market participant—rather than regulating open public land as “steward”—it may prohibit guns “without offending the Second Amendment.”

To operationalize the category, the court “turn[s] to the First Amendment,” citing Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (plurality), and analogizes mass-transit systems to nonpublic forums; it also cites circuit authority extending the idea to firearms: Wolford v. Lopez, 116 F.4th 959 (9th Cir. 2024), and United States v. Class, 930 F.3d 460 (D.C. Cir. 2019), abrogated on other grounds by Bruen.

The opinion then applies the doctrine to the Maryland Transit Administration’s system, treating the State as running a commercial service devoted to “rapid, convenient” commuting—thus within the proprietor rationale. In addition, the court supplies an independent historical-analogy discussion, including private railroad firearm rules as evidence of longstanding carriage limitations in passenger compartments.

3.3. Location-by-location reasoning and the court’s historical analogies

(a) Government buildings

The court’s analysis is largely foreclosed by Supreme Court dicta treated as settled guideposts: District of Columbia v. Heller, 554 U.S. at 626, and Bruen, 597 U.S. at 31, both naming “government buildings” as sensitive places. Given that direct recognition, the Fourth Circuit treats the guidance as “more than sufficient” to uphold Maryland’s bans.

(b) Mass transit

The mass-transit holding is significant because it combines (i) the newly adopted proprietary-property approach and (ii) a history-and-tradition analysis. The court invokes statutory avoidance (Off. of Senator Mark Dayton v. Hanson, 550 U.S. 511 (2007)) to narrow concerns that “control” might reach non-state property. On the historical side, it relies on expert declarations and the notion that modern mass transit did not exist at the Founding, then treats 19th-century railroad rules as relevant analogues. It distinguishes “traveler exceptions” to concealed-carry laws as addressing long-distance journeys outside organized protection, quoting Carr v. State, 34 Ark. 448 (1879), and Smith v. State, 50 Tenn. 511 (1872).

Judge Agee’s dissent disputes both the methodological legitimacy of the proprietary doctrine and the reliance on later history and private rules, arguing for a more Founding-centered approach.

(c) Schools and school grounds

The court treats schools as sensitive places under Bruen’s dicta and holds school grounds are “analogous to school buildings” because they serve the same child-centered functions (recess, drop-off/pick-up) with comparable purpose and burden. It also notes circuit precedent applying school-related dicta in parks-with-preschools settings: LaFave v. The County of Fairfax, 149 F.4th 476 (4th Cir. 2025).

(d) Public demonstrations (and 1,000-foot buffer after warning/order)

On standing, the court applies the pre-enforcement framework of Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992), the credible-threat principles of Steffel v. Thompson, 415 U.S. 452 (1974), and the “arguably affected with a constitutional interest” standard from Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014), concluding at least one plaintiff (Kipke) showed intent plus deterrence. It also relies on the “one party is enough” rule from Maryland Shall Issue, Inc. v. Hogan, 971 F.3d 199 (4th Cir. 2020).

On the merits, the court’s distinctive move is to read the Second Amendment alongside the First Amendment’s “peaceably” assembly guarantee, quoting N. A. A. C. P. v. Claiborne Hardware Co., 458 U.S. 886 (1982), and then to rely on a historical tradition of dispersal/anti-riot authority (including Blackstone/Tucker’s Blackstone) and 19th-century “public assembly” firearm restrictions. Maryland’s law is portrayed as comparatively moderate because enforcement requires a warning and an order to leave before liability attaches.

(e) State parks and forests

The court follows out-of-circuit reasoning that “modern-style parks” emerged in the 19th century, so 19th-century municipal bans supply historical tradition. It relies heavily on Wolford v. Lopez, 116 F.4th 959 (9th Cir. 2024), and Antonyuk, 120 F.4th at 1025-26, concluding that “as soon as modern parks arose” bans proliferated and went unchallenged. Forests are treated as sufficiently analogous to parks because Maryland’s forest lands now function as recreational/educational spaces; the court notes hunting remains permitted in regulated form.

Judge Agee’s dissent attacks the park/forest analysis as relying on too-late evidence and stretching “sensitive places” toward the kind of overbreadth Bruen rejected.

(f) Healthcare facilities

The court unanimously upholds the healthcare ban, reasoning that modern hospitals differ from Founding-era facilities but fit within a historical tradition of disarming in places serving vulnerable populations and, additionally, “scientific purposes,” citing Wolford and Antonyuk.

(g) Places of amusement (museums, stadiums, racetracks, amusement parks, casinos, video lottery)

The court again relies on 19th-century and post-Reconstruction-era regulations restricting firearms at social gatherings and places of entertainment, and holds these locations fit within a national tradition of treating certain crowded social/amusement venues as sensitive places. Wolford v. Lopez is central to the analysis, including examples such as New Orleans (1817) and Missouri (1875). Museums are treated as educational/scientific spaces often frequented by children, fitting within an education/science-sensitive-place tradition referenced via Antonyuk.

(h) Locations that sell alcohol for on-site consumption

The court reverses the district court and upholds the restriction. It identifies three historical strands: (1) Founding-era (and earlier) regulation of firearms in connection with intoxication, explicitly supported by Rahimi’s “drunken New Year’s Eve revelers” example; (2) a tradition of restricting arms in crowded social spaces; and (3) more directly on-point mid-to-late 19th-century liquor-premises restrictions (e.g., New Mexico 1853; Oklahoma 1890, as recounted in Wolford).

(i) Private property without permission (the “opt-in” rule)

This is the court’s principal pro-plaintiff merits ruling: Maryland’s “default no-carry unless posted/permission” regime is unconstitutional as applied to private property held open to the public. The court holds plaintiffs had standing (intent to carry on such properties; credible threat of prosecution; redressability), citing Lujan and aligning with Antonyuk, 120 F.4th at 1043.

On the merits, the court emphasizes that the statute is directed at gun owners, not property owners; it does not meaningfully implement the property owner’s right to exclude (which exists regardless). It rejects Maryland’s “trespass tradition” framing and expressly “diverge[s]” from the Ninth Circuit’s approach in Wolford that such statutes merely set a default rule. Maryland’s historical citations are treated as either hunting-specific (thus not analogous to general public-access premises) or “outliers.” The court also invokes Bruen’s admonition that the “island of Manhattan” is not a sensitive place, reasoning Maryland’s rule would effectively convert most public places into gun-free zones.

However, the court dismisses the facial challenge insofar as it concerns property not held open to the public, finding no standing because plaintiffs did not allege intent to bring firearms into dwellings.

3.4. Precedents cited: how they shaped the outcome

• District of Columbia v. Heller (sensitive places dicta; “government buildings” anchor).
• New York State Rifle & Pistol Association, Inc. v. Bruen (two-step test; “why/how” analogical method; warning against overbroad “crowded places” logic; “Manhattan” remark).
• United States v. Rahimi (clarifies step-two analogy; rejects “law trapped in amber”; facial-challenge standard; highlights regulation of intoxicated gun use).
• United States v. Price (en banc) (step-one articulation; concurrence situating sensitive places at step two).
• Bianchi v. Brown (en banc) (Fourth Circuit’s approach to original meaning and broader historical tradition; used to justify how the court sources history across time at step two).
• Maryland Shall Issue, Inc. v. Moore (en banc) (standard of review for summary judgment; procedural baseline).
• United States v. Nutter (facial challenge difficulty; government need show constitutionality in some applications).
• Engquist v. Or. Dep’t of Ag., United States v. Kokinda, Int’l Soc. for Krishna Consciousness, Inc. v. Lee, Lehman v. City of Shaker Heights (proprietary-property/market-participant concept imported as an analytical tool).
• Wolford v. Lopez, United States v. Class (circuit authority supporting applying proprietor logic and/or public-transportation analogies).
• Susan B. Anthony List v. Driehaus, Steffel v. Thompson, Lujan v. Defs. of Wildlife (standing and pre-enforcement injury standards).
• N. A. A. C. P. v. Claiborne Hardware Co. (First Amendment boundary: violence not protected as “advocacy,” used to support regulation at demonstrations).

3.5. Legal reasoning: what the court is actually doing

Across the opinion, the court repeatedly operationalizes Bruen/Rahimi by asking two linked questions:

• Why did historical lawmakers regulate arms in comparable settings (e.g., protection of children, preserving order in assemblies, mitigating intoxication risks, maintaining tranquility in parks, safeguarding vulnerable patients)?
• How did they do it (e.g., categorical exclusion zones, dispersal orders, restrictions on loaded/accessible firearms in passenger compartments, bans in particular venues)?

The court’s willingness to rely on later 19th-century regulations—especially for locations it characterizes as “modern institutions” (parks, amusement venues, hospitals)—reflects its view that Rahimi rejects an “amber” theory and that step two can consult sources “throughout American history.” Judge Agee rejects that methodological breadth, contending the Supreme Court’s guidance demands tighter Founding-era comparators and warns that late, localized enactments cannot create a tradition.

3.6. Impact

• Fourth Circuit sensitive-place doctrine is now more structured: litigants must frame sensitive-place disputes as step-two historical-analogy questions, not as step-one textual exclusions.
• Government-proprietor theory gains precedential footing: the court’s adoption of a proprietary property doctrine for the Second Amendment—explicitly “join[ing]” the Ninth and D.C. Circuits—may influence how firearms restrictions on government-operated services (transit systems, possibly other state-run commercial facilities) are defended.
• Default “no carry unless posted/permission” laws face headwinds: the invalidation of Md. Code, Crim. Law § 6-411(d) (as to public-access private property) positions the Fourth Circuit against approaches like Wolford on this specific theory and supplies a roadmap for challengers elsewhere.
• Expanded validation of bans in non-core public venues: upholding bans in parks/forests, demonstrations (including a 1,000-foot radius after warning), alcohol-serving premises, and numerous entertainment venues may embolden similarly broad “place-based” regulations—while simultaneously sharpening the national debate over what counts as an impermissibly broad “Manhattan”-style approach.
• Standing rulings matter for pre-enforcement suits: plaintiffs’ declarations of concrete intent to carry in particular places remain pivotal; the opinion shows courts will parse declarations with granularity (public-access property vs dwellings) and dismiss overbroad facial challenges for lack of standing as to unalleged conduct.

4. Complex Concepts Simplified

• Facial challenge: a claim that a law is invalid in all its applications. Under United States v. Nutter (quoting United States v. Rahimi), the challenger must show “no set of circumstances exists” where the law is valid; the government wins if it can show constitutional applications exist.
• Bruen step one vs step two:
  • Step one: Does the Second Amendment’s text cover the conduct? (Here, carrying common firearms in public generally does.)
  • Step two: Is the restriction consistent with the Nation’s historical tradition? (This is where “sensitive place” arguments are decided.)
• Sensitive place: a location where firearm carry can be restricted consistent with historical tradition; examples named by the Supreme Court include “schools and government buildings” (Heller; Bruen) and “legislative assemblies, polling places, and courthouses” (Bruen).
• Historical analogue (“why/how”): the government need not find a “historical twin,” but must show historical regulations addressed similar problems for similar reasons and in comparable ways (Rahimi).
• Proprietary property doctrine: when the government runs property like an owner/operator in commerce (e.g., mass transit), it has greater leeway to manage use—here extended to permit firearm bans in that proprietary setting.
• Standing (pre-enforcement): plaintiffs must show a concrete intent to engage in conduct arguably covered by a constitutional right and a credible threat of enforcement; they need not await arrest (Steffel v. Thompson).

5. Conclusion

This Fourth Circuit decision is consequential less for any single place-based outcome than for the legal architecture it cements: (1) “sensitive places” are a Bruen step-two, history-and-tradition question; (2) the Fourth Circuit recognizes a government-as-proprietor rationale for firearm bans in at least some government-operated commercial settings (notably mass transit); and (3) “opt-in” default bans on carry across private property held open to the public—backed by criminal enforcement—lack the historical foundation required by Bruen and are unconstitutional on this record. The sharp methodological disagreement in Judge Agee’s dissent underscores that the opinion sits within an active, nationwide doctrinal contest over how much weight to give post-Founding evidence, how to treat modern institutions, and how to prevent the sensitive-places concept from expanding into a near-general prohibition on public carry.