Sensitive Places at Bruen Step Two and the Government-as-Proprietor Rule: Fourth Circuit Upholds Most Maryland Carry Bans but Strikes “Opt-In” Default on Public-Facing Private Property

1. Introduction

This consolidated cross-appeal concerned sweeping Second Amendment challenges to Maryland laws and regulations prohibiting the carrying of firearms in an array of locations: government buildings, mass transit, schools and school grounds, public demonstrations (and within 1,000 feet thereof), state parks and forests, health care facilities, “places of amusement” (museums, stadiums, racetracks, amusement parks, video lottery facilities, casinos), locations selling alcohol for on-site consumption, and private property absent owner permission.

The central legal issue was how to apply New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), to “sensitive place” restrictions that Maryland defended by invoking the “sensitive places” language first identified in District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008). The case also presented recurring threshold questions: the standard for facial Second Amendment challenges after United States v. Rahimi, 602 U.S. 680 (2024), and Article III standing in pre-enforcement challenges.

2. Summary of the Opinion

Disposition (location-by-location)

• Government buildings: constitutional (affirmed).
• Mass transit facilities/vehicles: constitutional (affirmed) (Agee dissenting).
• Schools and school grounds: constitutional (affirmed).
• Public demonstrations & within 1,000 feet (after warning/order): constitutional (district court reversed; injunction dissolved) (Agee dissenting).
• State parks, state forests, Chesapeake Forest Lands: constitutional (affirmed) (Agee dissenting as to parks/forests).
• Health care facilities: constitutional (affirmed) (unanimous).
• Museums; stadiums; racetracks; amusement parks; casinos; video lottery facilities: constitutional (affirmed) (Agee dissenting on many).
• Locations selling alcohol for on-site consumption: constitutional (district court reversed; injunction dissolved) (Agee dissenting).
• Private property “opt-in” default rule (public-facing private property): unconstitutional (affirmed; injunction sustained).
• Private property not held open to the public (e.g., dwellings): plaintiffs lack standing (no merits ruling).

3. Analysis

3.1 Precedents Cited (and how they shaped the decision)

The opinion’s architecture is built from Supreme Court Second Amendment decisions, Fourth Circuit en banc clarifications, and cross-amendment analogies primarily drawn from First Amendment government-property doctrine.

A. Supreme Court Second Amendment canon

• District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008): The court treats Heller as the starting point for the “sensitive places” idea (“schools” and “government buildings” as paradigmatic examples). It relies on Heller as near-dispositive for government-building restrictions.
• New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022): Provides the two-step “plain text” then “history and tradition” framework; also supplies key guardrails: courts should reason by analogy; sensitive-place expansions cannot be so broad that they render vast swaths of public space effectively gun-free (the “island of Manhattan” admonition). The Fourth Circuit’s central move is to situate “sensitive places” within Bruen step two, aligning the doctrine with historical analogical reasoning.
• United States v. Rahimi, 602 U.S. 680 (2024): Used for two distinct points: (i) the government’s burden at step two is to show consistency with historical tradition, focusing on “why and how” a regulation burdens the right; and (ii) facial challenges are exceptionally difficult—government prevails if it shows constitutionality “in some of its applications.” The court also invokes Rahimi to reject a “law trapped in amber” approach.
• McDonald v. City of Chicago, 561 U.S. 742 (2010): Appears primarily in Judge Agee’s separate writing as reinforcement of the Second Amendment’s fundamental-right status; the majority proceeds under incorporation as assumed background.

B. Fourth Circuit en banc and recent circuit authority on Bruen method

• Maryland Shall Issue, Inc. v. Moore, 116 F.4th 211 (4th Cir. 2024) (en banc): Supplies standard of review on summary judgment and anchors the court’s post-Bruen Second Amendment posture.
• United States v. Price, 111 F.4th 392 (4th Cir. 2024) (en banc): Provides the step-one sub-questions (“the people,” “common use,” and the “proposed course of conduct”). The majority leans on a concurring footnote (Quattlebaum, J.) to support the view that sensitive places belong at step two.
• Bianchi v. Brown, 111 F.4th 438 (4th Cir. 2024) (en banc): The majority uses Bianchi to justify its temporal division of labor: step one is Founding-era original public meaning; step two may consider broader historical sources to identify the nation’s tradition.
• United States v. Nutter, 137 F.4th 224 (4th Cir. 2025): Drives the facial-challenge standard in the Second Amendment context post-Rahimi: the government wins if the regulation is constitutional in some applications.
• United States v. Gould, 146 F.4th 421 (4th Cir. July 29, 2025): Cited for step-one “covered conduct” recognition—laws barring otherwise law-abiding individuals from common-use weapons regulate conduct within the Amendment’s plain text.
• LaFave v. The County of Fairfax, 149 F.4th 476 (4th Cir. 2025): Cited in the demonstrations discussion (and by analogy to parks) for the proposition that schools are sensitive and that courts can extrapolate to analogous places.

C. Sensitive-place and location-ban cases from other circuits (persuasive authority)

• McRorey v. Garland, 99 F.4th 831 (5th Cir. 2024): Used for the proposition that sensitive-place laws “directly impact the right to bear” and thus belong in Bruen step-two historical analysis.
• Wolford v. Lopez, 116 F.4th 959 (9th Cir. 2024): A major comparator for parks, amusement locations, alcohol-serving venues, and mass transit; also supports (for the majority) the proprietary-capacity extension to the Second Amendment. The Fourth Circuit agrees with portions of Wolford (parks, amusement, alcohol) but expressly diverges on private-property default rules.
• Antonyuk, 120 F.4th (2d Cir. 2024) (as cited in the opinion): Influences the court’s acceptance of bans in parks, health care facilities (vulnerable populations), and the standing/redressability analysis for private property restrictions.
• Rocky Mountain Gun Owners v. Polis, 121 F.4th 96 (10th Cir. 2024): Cited on the structure of Bruen burdens (step one vs step two).

D. First Amendment government-property/proprietor doctrine imported into the Second Amendment

For mass transit, the majority’s most novel doctrinal move is to treat Maryland as acting like a private owner/market participant when operating the MTA, borrowing from First Amendment “forum” and government-ownership doctrine.

• Engquist v. Or. Dep’t of Ag., 553 U.S. 591 (2008): “crucial difference” between government as regulator and as proprietor.
• United States v. Kokinda, 497 U.S. 720 (1990): lower scrutiny when the government functions as proprietor; ownership does not automatically open property to the public.
• Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992): government may preserve property for its dedicated use; airports/terminals context.
• Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (plurality): city-run transit as commerce; nonpublic forum logic (imported by analogy).
• Young v. N.Y.C. Transit Auth., 903 F.2d 146 (2d Cir. 1990): entire subway system not a public forum (First Amendment), supporting proprietor characterization.
• White Coat Waste Proj. v. Greater Richmond Transit Co., 35 F.4th 179 (4th Cir. 2022): transit advertising space as nonpublic forum.
• Bldg. & Constr. Trades Council v. Assoc. Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218 (1993): market-participant concept (via Wolford).
• United States v. Class, 930 F.3d 460 (D.C. Cir. 2019), abrogated on other grounds by Bruen, 597 U.S. 1: D.C. Circuit’s government-property/guns reasoning near the Capitol invoked to justify analogy.

E. Standing and pre-enforcement challenge doctrine

• Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992): the three-part standing test.
• Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014): pre-enforcement injury and “arguably affected” constitutional interests.
• Steffel v. Thompson, 415 U.S. 452 (1974): plaintiffs need not risk arrest to challenge deterrent criminal statutes.
• Maryland Shall Issue, Inc. v. Hogan, 971 F.3d 199 (4th Cir. 2020), as amended (Aug. 31, 2020): once one party has standing, no need to assess others; also the “concrete intention” requirement for pre-enforcement challenges.

F. Public demonstrations: assembling, peace, and historical assembly regulation

• N. A. A. C. P. v. Claiborne Hardware Co., 458 U.S. 886 (1982): “violence has no sanctuary in the First Amendment.”
• Tucker’s Blackstone (St. George Tucker ed. 1803): invoked to show a long tradition of regulating riotous assemblies and breaches of the peace.
• The majority also draws on nineteenth-century “traveler” and carry-exception cases for transit analysis: Carr v. State, 34 Ark. 448 (1879), and Smith v. State, 50 Tenn. 511 (1872).

3.2 Legal Reasoning

A. Where “sensitive places” fit in Bruen

The opinion’s most consequential methodological holding is that the “sensitive places” inquiry is not a step-one textual carveout but a step-two historical-tradition question. The court reasons that sensitive-place laws “directly impact the right to bear” arms and therefore must be tested by historical analogy—consistent with how Bruen itself used sensitive places as examples of step-two analogical reasoning. The court thus treats public carry as “covered conduct” at step one and asks at step two whether the location-based prohibition fits within historical traditions.

B. Temporal scope of history: step one vs step two

Relying heavily on Bianchi v. Brown, the majority differentiates the historical record relevant to each step: (i) step one is constrained to Founding-era meaning to interpret the text’s scope; (ii) step two may “look beyond the Founding Era” across American history to determine a broader “national tradition.” This matters because many modern locations (mass transit systems, modern parks, certain entertainment venues) lack close Founding-era analogues.

C. “Why” and “how” analogical reasoning

Drawing from United States v. Rahimi, the court emphasizes that analogical matching is not about “historical twins” but about whether the challenged law burdens the right for reasons and in ways consistent with historical practice. In practice:

• “Why” asks the governmental objective historically recognized (e.g., protecting children in schools, maintaining order in assemblies, protecting vulnerable populations in health care).
• “How” asks the burdening mechanism (e.g., full bans in a defined area; dispersal-after-warning mechanisms; storage/inspection practices in transit-like contexts).

D. The government-as-proprietor rule (mass transit)

The majority recognizes an additional pathway to uphold transit restrictions: when Maryland operates the MTA it acts as a proprietor engaged in commerce, akin to a private operator controlling its premises. Borrowing from First Amendment forum doctrine, the court holds that, as a proprietor/market participant, the government may prohibit guns on its transit vehicles/facilities without violating the Second Amendment. The court also adds an independent historical-tradition rationale: private railroad rules historically restricted loaded/accessible firearms in passenger cars, and modern local transit lacks “checked luggage” options, making a broader ban plausibly analogous for at least some transit applications—defeating a facial challenge.

E. Sensitive-place determinations by category

• Government buildings: treated as settled sensitive places under express Supreme Court statements in Heller and Bruen.
• School grounds: held analogous to school buildings; same protective rationale for children and educational environment; the burden on self-defense is treated as similar across buildings and grounds.
• Public demonstrations (and the 1,000-foot buffer after warning/order): upheld as consistent with historical tradition of regulating riotous or potentially violent assemblies; the statute’s warning-and-order-to-leave mechanism is analogized to historical dispersal practices. The majority also frames the regulation as harmonizing Second Amendment carry with First Amendment’s “peaceably to assemble” limitation.
• Parks and forests: upheld by treating modern parks as a later-arising civic institution, then relying on 19th-century urban park firearm prohibitions as evidence of tradition; state forests are deemed sufficiently analogous to parks given recreational/educational uses, and hunting is still permitted by regulation.
• Health care facilities: upheld unanimously as fitting a tradition of firearm restrictions where “vulnerable populations congregate” and where scientific/medical activity occurs.
• Places of amusement (including museums): upheld based on post-Civil-War-era prohibitions on guns at social gatherings and amusement venues (e.g., ballrooms; public assemblies; analogous gatherings), combined with educational/scientific framing for museums.
• Alcohol-serving locations: upheld based on (i) Founding-era and later concerns about mixing intoxication and firearms; (ii) tradition of prohibitions in crowded social gathering places; and (iii) 19th-century laws directly barring guns where liquor is sold.
• Private property “opt-in” default rule: struck down (as to property held open to the public) because the statute criminalizes carry absent affirmative signage or express permission, effectively flipping the default and risking making “most public places” gun-free. The court rejects Maryland’s reliance on trespass tradition because property owners already possess exclusion rights; the law targets gun carriers, not owners.

F. Facial vs as-applied posture drives outcomes

The majority repeatedly leverages the stringency of facial challenges post-Rahimi/Nutter: if a regulation is constitutional in some applications, the facial claim fails. This is pivotal for mass transit (because at least some transit modes resemble passenger compartments where accessible guns historically could be restricted) and for broad location bans where at least some sub-applications align with accepted sensitive-place rationales.

3.3 Impact

The opinion’s likely influence is structural and immediate across Second Amendment litigation in the Fourth Circuit:

• Clarifies analytical sequencing: Sensitive-place questions are decisively placed at Bruen step two. Litigants should expect extensive historical-analogy briefing rather than step-one textual carveouts.
• Expands doctrinal tools for governments: The adoption of the government-as-proprietor rule provides states and localities an additional, non-sensitive-place route to defend firearm bans on government-operated commercial services (transit systems in particular). This may invite future disputes about what “proprietary” means and how far it extends beyond transit (e.g., public venues, ticketed facilities, state-run entertainment sites).
• Strengthens modern “sensitive place” coverage: By accepting modern parks/forests, amusement venues, demonstrations, and alcohol-serving sites as sensitive, the opinion supplies a broad map for lawful carry prohibitions, especially where historical analogues are framed as crowd-protection, vulnerable-population protection, or assembly-peace preservation.
• Limits “default no-carry” statutes for public-facing private property: The most concrete constraint imposed on legislatures is the invalidation of Maryland’s presumption flip for private property held open to the public—signaling skepticism toward regimes that functionally convert everyday commerce into a statewide “opt-in” carry permission system.
• Standing discipline on dwellings/private non-public property: The court reinforces that plaintiffs must show concrete intent to violate the specific portion challenged; generalized assertions about carrying in “stores” will not support challenges involving private residences.

4. Complex Concepts Simplified

4.1 Bruen step one vs step two

Step one (plain text): asks whether the regulated conduct (e.g., carrying a common-use handgun) is covered by the Second Amendment’s text as originally understood.
Step two (history and tradition): if covered, the government must show the regulation matches the nation’s historical tradition of firearm regulation—often by analogy.

4.2 “Sensitive places”

“Sensitive places” are locations where firearms can be restricted consistent with the Second Amendment—classically “schools and government buildings.” After this decision, in the Fourth Circuit the sensitive-place question is answered by step two history-and-tradition analysis, not by saying “the text never covered this place.”

4.3 “Why” and “how” analogies

Courts compare older firearm rules to modern ones by asking: why the government regulated (e.g., prevent violence in assemblies, protect children, protect vulnerable patients), and how it did so (e.g., bans in defined zones; dispersal orders; storage/inspection requirements). A modern rule need not be identical to an old one, but cannot be a radically broader mechanism for a historically recognized problem.

4.4 Facial vs as-applied challenges

A facial challenge argues a law is unconstitutional in all its applications. Post-Rahimi/Nutter, that is extremely hard: if the government shows the law is constitutional in some settings, the facial challenge fails.
An as-applied challenge argues the law is unconstitutional as enforced against particular plaintiffs or factual settings.

4.5 Standing (pre-enforcement)

To sue before being prosecuted, plaintiffs must show a real, credible threat that the law deters their intended conduct. Here, one plaintiff’s consistent attendance at annual demonstrations and stated intent to carry supported standing; but generalized intent to carry in “stores” did not establish standing to contest application to private dwellings.

4.6 Proprietary property doctrine

The court distinguishes the government acting as regulator (making rules for everyone) from acting as proprietor (operating its own commercial service like a transit system). When acting as proprietor, the government is treated more like a private owner managing internal operations, and the Fourth Circuit holds it may prohibit guns on that property consistent with the Second Amendment.

5. Conclusion

This published Fourth Circuit decision establishes two major doctrinal guideposts: (1) “sensitive place” restrictions are evaluated at Bruen step two through historical-tradition analogies focused on “why” and “how,” and (2) when the government operates in a proprietary/market-participant capacity, it may prohibit firearms on that property (as with Maryland’s mass transit system).

On the merits, the court largely validates Maryland’s modern location-based carry prohibitions—spanning government buildings, transit, schools/grounds, demonstrations, parks/forests, health care facilities, museums and major entertainment venues, and alcohol-serving establishments—while drawing a sharp constitutional line against “default no-carry unless opt-in” rules for private property held open to the public. The combined effect is to broaden the set of defensible “gun-free zones” in the Fourth Circuit while limiting legislative attempts to use private-property defaults to approximate a statewide public-carry ban.