Sensitive Places After Bruen in the Fourth Circuit: Sensitive-Place Analysis at Bruen Step Two, a Proprietary-Property Rule for Public Transit, and Invalidating “Opt-In” Carry on Public-Facing Private Property

1) Introduction

Case: Susannah Kipke v. Wes Moore (consolidated with related appeals)
Court: United States Court of Appeals for the Fourth Circuit
Date: January 20, 2026
Panel: DIAZ (C.J.), GREGORY, and AGEE (JJ.)
Disposition: Affirmed in part and reversed in part (published). All sections of Judge Gregory’s opinion are controlling.

This consolidated cross-appeal tested the constitutionality of multiple Maryland restrictions on carrying firearms in specified locations, enacted and defended under the Second Amendment “sensitive place” concept first noted in District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008). Two sets of plaintiffs—individual permit holders and gun-rights organizations (including Maryland State Rifle and Pistol Association and others)—brought mostly facial challenges to Maryland’s location-based prohibitions, and sought injunctive and summary-judgment relief.

The central issues were (i) where the “sensitive places” doctrine fits within the Supreme Court’s post-New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), framework, and (ii) whether Maryland could analogize modern bans in places like mass transit, parks, entertainment venues, and alcohol-serving establishments to the Nation’s historical tradition of firearm regulation as clarified in United States v. Rahimi, 602 U.S. 680 (2024).

2) Summary of the Opinion

The Fourth Circuit both upheld and struck down different parts of Maryland’s location restrictions. It also announced two particularly consequential doctrinal rules:

  • Doctrinal placement: “Sensitive place” analysis addresses the right-to-carry conduct covered by the Second Amendment’s plain text and therefore is evaluated under Bruen’s historical-tradition inquiry at step two, not as a step-one text carveout.
  • Proprietary-property rule: When the government is acting “in its proprietary capacity or as a market participant,” the Fourth Circuit held it may prohibit guns without offending the Second Amendment—and applied that principle to uphold Maryland’s mass-transit ban.

Holdings by location (as decided in Judge Gregory’s controlling opinion)

  • Government buildings: constitutional (affirmed).
  • Mass transit (MTA vehicles/facilities owned or controlled by the State): constitutional (affirmed).
  • School buildings and school grounds: constitutional (affirmed), including as applied to grounds.
  • Public demonstrations and within 1,000 feet (after notice/order): constitutional (reversed district court’s injunction).
  • State parks; state forests; Chesapeake Forest Lands: constitutional (affirmed).
  • Health care facilities: constitutional (affirmed) (unanimous).
  • Places of amusement (museums, stadiums, racetracks, amusement parks, casinos, video lottery facilities): constitutional (affirmed).
  • Locations licensed to sell alcohol for on-site consumption: constitutional (reversed district court’s injunction).
  • Private property “opt-in” rule (default ban unless posted permission or express consent): unconstitutional as to property held open to the public (affirmed injunction); no standing as to property not held open to the public.

Judge Agee concurred in part and dissented in part. He agreed on constitutionality for government buildings and school grounds, agreed the private-property “opt-in” scheme was unconstitutional (and on standing limitations), and concurred in judgment as to healthcare facilities, but would have invalidated most of the other restrictions as inconsistent with Bruen.

3) Analysis

A. Precedents Cited (and their influence)

1. The Supreme Court’s Second Amendment trilogy and its aftermath

  • District of Columbia v. Heller, 554 U.S. 570 (2008): The opinion’s anchor for the “sensitive places” concept and the explicit examples (“schools” and “government buildings”). The Fourth Circuit treated this as strong guidance—dispositive for government buildings and strongly supportive for schools.
  • New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022): Provided the governing two-step methodology. The Fourth Circuit’s key contribution here is where sensitive-place questions belong: it held they are adjudicated at Bruen step two (history and tradition), not step one (plain-text scope).
  • United States v. Rahimi, 602 U.S. 680 (2024): Used to emphasize that history-and-tradition analysis is about “why and how” regulations burden the right, and that analogues need not be “dead ringers.” It also supplied the facial-challenge standard quoted through United States v. Nutter, 137 F.4th 224 (4th Cir. 2025).

2. Fourth Circuit en banc decisions structuring the framework

  • Maryland Shall Issue, Inc. v. Moore, 116 F.4th 211 (4th Cir. 2024) (en banc): Provided standards of review and served as a recent institutional reference point for Second Amendment method in the circuit.
  • United States v. Price, 111 F.4th 392 (4th Cir. 2024) (en banc): Cited for the step-one tripartite inquiry (who is protected, arms in common use, and whether the Second Amendment covers the course of conduct). Also cited for the proposition that Bruen itself treats sensitive-place regulations as step-two analogical reasoning.
  • Bianchi v. Brown, 111 F.4th 438 (4th Cir. 2024) (en banc): Used to illustrate the Fourth Circuit’s approach to historical sources—Founding-era focus at step one and broader temporal sources at step two. This mattered because the opinion leaned on 19th-century (and later) developments for parks and other modern institutions.
  • United States v. Gould, 146 F.4th 421 (4th Cir. July 29, 2025): Reinforced that laws restricting otherwise law-abiding individuals from possessing common-use weapons regulate conduct covered by the plain text, pushing sensitive-place disputes into step two.
  • LaFave v. The County of Fairfax, 149 F.4th 476 (4th Cir. 2025): Invoked as supportive of extending school sensitivity logic to nearby or related public spaces (there, county parks with preschools), and used to bolster the school-grounds analysis here.

3. Other circuits’ sensitive-place decisions as persuasive authority

  • McRorey v. Garland, 99 F.4th 831 (5th Cir. 2024): Cited for the proposition that sensitive-place laws “directly impact the right to bear arms” and therefore are subject to Bruen’s historical analysis.
  • Wolford v. Lopez, 116 F.4th 959 (9th Cir. 2024): Heavily relied upon for (i) the proprietary-property approach imported into Second Amendment doctrine and (ii) historical analogues for parks, amusement places, and alcohol locations.
  • Antonyuk, 120 F.4th (2d Cir. 2024): Used for vulnerable-population reasoning (healthcare facilities) and for the private-property default-rule analysis, including standing and merits logic.
  • Rocky Mountain Gun Owners v. Polis, 121 F.4th 96 (10th Cir. 2024): Cited on the distinction between step one and step two burdens.

4. First Amendment “proprietor vs. regulator” precedents imported into the analysis

  • Engquist v. Or. Dep’t of Ag., 553 U.S. 591 (2008), and United States v. Kokinda, 497 U.S. 720 (1990): Used to distinguish the government as lawmaker from government as proprietor, supporting “lower scrutiny” (in First Amendment terms) for proprietary decisions.
  • Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992), and Lehman v. City of Shaker Heights, 418 U.S. 298 (1974): Used to show that mass transit and similar facilities can be treated as nonpublic fora where the government may impose restrictions as an operator.
  • United States v. Class, 930 F.3d 460 (D.C. Cir. 2019), abrogated on other grounds by Bruen, 597 U.S. 1: Cited as extending the proprietor logic to Second Amendment-adjacent settings (around the Capitol).

5. Standing and pre-enforcement challenge precedents

  • Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992): The canonical standing elements.
  • Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014), and Steffel v. Thompson, 415 U.S. 452 (1974): Used to validate credible-threat standing in pre-enforcement constitutional challenges.
  • Maryland Shall Issue, Inc. v. Hogan, 971 F.3d 199 (4th Cir. 2020): Used to assess the concreteness of intent to violate the law for standing, and to treat standing as satisfied once one plaintiff establishes it for a claim.

6. Historical “traveler” and assembly materials

  • Carr v. State, 34 Ark. 448 (1879), and Smith v. State, 50 Tenn. 511 (1872): Used to cabin “journey” exceptions in concealed-carry laws, supporting the view that routine local commuting is different from the historically understood “journey.”
  • N. A. A. C. P. v. Claiborne Hardware Co., 458 U.S. 886 (1982): Used to emphasize that violence and weapons cannot hide behind First Amendment protections, supporting Maryland’s public-demonstration restrictions.

B. Legal Reasoning

1. The opinion’s key doctrinal move: Sensitive places belong at Bruen step two

The court reasoned that “sensitive place” rules regulate where and thus how people bear arms in public—conduct within the Second Amendment’s coverage recognized by Bruen. Accordingly, the sensitive-place question is not whether the text excludes the conduct, but whether history and tradition justify the burden. This is why the court explicitly situated sensitive-place litigation under step two’s analogical inquiry (“why and how” the modern regulation compares to historical predecessors).

2. A new Second Amendment doctrine in the Fourth Circuit: the “proprietary property” rule

The most novel doctrinal development is the court’s adoption of a proprietary/market-participant principle for Second Amendment analysis, borrowed from First Amendment public-forum doctrine. The court held that when Maryland operates mass transit (MTA), it functions more like a property owner/enterprise operator than a sovereign regulator, and may therefore prohibit guns in that operational sphere.

The court also offered an independent historical-tradition rationale: because modern, state-run mass transit did not exist at the Founding, it looked to private railroad-era practices regulating loaded or accessible firearms in passenger cars, and concluded Maryland’s rule was constitutional at least in some applications—enough to defeat a facial challenge under United States v. Nutter and United States v. Rahimi.

3. Location-by-location application of step-two analogical reasoning

  • Government buildings: Treated as essentially resolved by Supreme Court guidance in Heller and Bruen.
  • Schools and school grounds: The court analogized grounds to buildings: same protected population (children), same institutional purpose, and similar self-defense burden.
  • Public demonstrations (and 1,000-foot buffer after police notice/order): The court tied the regulation to a historical tradition of protecting “peaceable” assemblies and permitting dispersal/controls for public peace, emphasizing the interaction between First and Second Amendment rights. The officer-notice and leave-until-disposal structure was treated as analogous to historical dispersal mechanisms for potentially riotous assemblies.
  • Parks and forests: The court leaned heavily on the idea that modern parks emerged in the mid-19th century and quickly became regulated as “municipal institutions,” treating those later prohibitions as probative historical analogues. It extended that reasoning to forests by analogizing modern forest lands (with recreational/educational uses) to parks, and noted hunting exceptions.
  • Healthcare facilities: The court relied on a tradition of regulating guns in places serving vulnerable populations and in scientific/medical environments.
  • Places of amusement (museums, stadiums, racetracks, amusement parks, casinos, etc.): It upheld broad prohibitions based on a historical tradition of restricting arms in places of social congregation and entertainment (especially in the post-Civil War period), and on the educational/scientific character of some venues (e.g., museums).
  • Alcohol-serving locations: Upheld by combining (i) historical regulation of guns and intoxication, (ii) historical restrictions in crowded social settings, and (iii) more direct later analogues restricting guns in liquor-selling establishments.
  • Private property default rule (public-facing): The court sharply distinguished between (a) property owners’ longstanding right to exclude guns and (b) a state criminal statute that flips the default and effectively makes most public-facing private property gun-free unless the owner opts in. It found no sufficiently relevant historical tradition supporting so sweeping a default prohibition, viewing Maryland’s cited statutes as mostly hunting-related or “outliers.” This portion is the opinion’s strongest “limit” on sensitive-place expansion, explicitly invoking Bruen’s warning that “the island of Manhattan” is not a sensitive place.

4. Facial challenge posture mattered repeatedly

The court repeatedly invoked the facial-challenge standard (via United States v. Nutter quoting United States v. Rahimi): if the government shows the rule is constitutional in “some of its applications,” a facial challenge fails. This featured prominently in the mass-transit discussion (different transit modes; inability to “check” firearms like luggage).

5. Standing was decided with claim-specific granularity

For demonstrations and the private-property restriction, the court applied classic pre-enforcement standing doctrine. It found concrete intent and chilled conduct sufficient for standing for carry on property held open to the public, but found no plaintiff alleged intent to carry into a dwelling (or other non-public-facing private property), defeating standing for that portion.

C. Impact

1. A clarified Fourth Circuit “sensitive places” roadmap

The decision supplies a circuit-wide framework: sensitive-place disputes are step-two questions, and courts should use analogical reasoning keyed to “why” and “how” regulations operate. This will structure future litigation over state “carry location” regimes throughout the Fourth Circuit.

2. The proprietary-property rule may significantly expand permissible gun-free zones on government-operated services

By recognizing a categorical ability for the government to prohibit guns when acting as proprietor/market participant, the court potentially enables broad restrictions across government-operated systems (transit, some facilities, possibly other commercial-style operations). This is likely to be a focal point for future challenges, particularly where “owned or controlled” is contested.

3. The private-property “opt-in” holding sharply constrains states copying default-ban models

The invalidation of Maryland’s “no carry unless posted permission or express consent” rule (for property held open to the public) is poised to influence challenges to similar post-Bruen statutes in other jurisdictions. The court framed the rule as transforming vast swaths of everyday commercial space into gun-free zones without historical support.

4. Expansion (and contraction) of sensitive-place logic

The opinion robustly validates bans in demonstrations, parks/forests, amusement venues, alcohol-serving establishments, and healthcare—signaling receptiveness to “modern institution” analogies. But it also draws a line at private-property default bans that functionally swallow public carry. This dual movement will shape both legislative drafting and litigation strategy.

5. Internal division highlights issues ripe for further review

Judge Agee’s partial dissent argues the majority relied too heavily on post-Founding sources and improperly broadened the sensitive-place exception. That disagreement—especially over parks, transit, and assemblies—signals potential en banc or Supreme Court attention where similar questions recur.

4) Complex Concepts Simplified

  • Bruen “step one” vs. “step two”: Step one asks whether the Second Amendment’s text covers the person, the weapon (in common use), and the conduct (bearing arms). Step two asks whether the government can justify the restriction using historical tradition and analogues.
  • “Sensitive place”: A location where firearms can be prohibited consistent with the Second Amendment. The Fourth Circuit held this is not a free-floating label; it must be defended under step two’s historical-analogy inquiry.
  • Facial challenge: A claim that a law is unconstitutional in all applications. Under United States v. Rahimi (as quoted through United States v. Nutter), the government defeats a facial challenge if it shows the law is constitutional in some applications.
  • Pre-enforcement standing: You can sue before being arrested if you show a concrete intent to engage in arguably protected conduct and a credible threat of prosecution. The court applied this to public demonstrations and to carry on public-facing private property.
  • Government as “proprietor”: When the government is operating property like a business or service provider (here, mass transit), the court treated it more like a private owner managing its operations than a sovereign regulating public streets.

5) Conclusion

Kipke v. Moore is a major Fourth Circuit “carry locations” decision implementing Bruen and Rahimi. It (i) squarely places sensitive-place determinations in Bruen’s step-two historical-tradition analysis, (ii) recognizes a proprietary-property principle allowing gun bans in government-operated systems like mass transit, and (iii) rejects Maryland’s attempt to flip the default rule for carrying on public-facing private property.

The opinion simultaneously broadens the set of upheld “sensitive” locations (demonstrations, parks/forests, healthcare, entertainment venues, and alcohol-serving sites) while imposing a meaningful boundary: states may not effectively make “most public places” gun-free by default through private-property opt-in mandates untethered to historical tradition.