BENJAMIN SCHOENTHAL, et al., Plaintiffs-Appellees, v. KWAME RAOUL, et al., Defendants-Appellants.
Nos. 24-2643 & 24-2644
United States Court of Appeals For the Seventh Circuit
September 2, 2025
ARGUED MAY 28, 2025 — DECIDED SEPTEMBER 2, 2025. Appeals from the United States District Court for the Northern District of Illinois, Western Division. No. 3:22-cv-50326 — Iain D. Johnston, Judge.
KOLAR, Circuit Judge. Illinois‘s Firearm Concealed Carry Act forbids licensees from carrying firearms on public transportation, with an exception for unloaded and stored firearms. See
The Second Amendment protects an individual‘s right to self-defense. It does not bar the people‘s representatives from enacting laws—consistent with our nation‘s historical tradition of regulation—that ensure public transportation systems remain free from accessible firearms. We are asked whether the state may temporarily disarm its citizens as they travel in crowded and confined metal tubes unlike anything the Founders envisioned. We draw from the lessons of our nation‘s historical regulatory traditions and find no Second Amendment violation in such a regulation. We reverse.
I. Background
A. Illinois Law
The Firearm Concealed Carry Act allows Illinois residents to obtain licenses to carry concealed firearms in public.1
This case is about only one of those locations, public transit. The Act provides that a licensee shall not knowingly carry a firearm on or into
[a]ny bus, train, or form of transportation paid for in whole or in part with public funds, and any building, real property, and parking area under the control of a public transportation facility paid for in whole or in part with public funds.
A first violation of Section 65(a)(8) is a Class B misdemeanor punishable by up to 6 months incarceration and up to a $1,500 fine.2
Section 65(a)(8) regulates conduct on numerous public transit systems. The largest is the Chicago Transit Authority
B. Procedural History
The Plaintiffs are three Illinois residents who claim that Section 65(a)(8) violates their Second Amendment rights (as enforceable against Illinois by the Fourteenth Amendment).3 Benjamin Schoenthal, Mark Wroblewski, and Douglas Winston are concealed carry licensees who want to carry firearms for self-defense while using public transit systems, namely the CTA and Metra. Plaintiffs often refrain from transit trips they want to take because Section 65(a)(8) requires temporary disarmament.
Plaintiffs brought their complaint against several state officials who they alleged are empowered to enforce Section 65(a)(8) against them: Illinois Attorney General Kwame Raoul, the Cook County State‘s Attorney (then Kimberly M. Foxx, now Eileen O‘Neill Burke), and DuPage County State‘s Attorney Robert Berlin, plus two others who are no longer
The parties filed cross-motions for summary judgment. The district court‘s decision first addressed jurisdiction and rejected the argument that Plaintiffs lacked standing. It found an injury because “[t]he undisputed facts show that each plaintiff would carry a concealed handgun on public transportation for the purpose of self-defense if not for the Firearm Concealed Carry Act‘s ban and its threat of arrest and prosecution.” Therefore, the district court concluded that “Plaintiffs’ injuries trace back to the threat of enforcement” and “a declaration would redress that injury.”
On the merits, after applying Bruen, the district court granted Plaintiffs’ motion and declared that enforcing Section 65(a)(8) against Plaintiffs would violate the Second Amendment. It held that carrying firearms on public transit fell within the textual ambit of the Second Amendment, and that the government had failed to meet its burden to establish that Section 65(a)(8) was within the country‘s historical tradition of firearm regulation.
The Defendants appealed in two sets: Attorney General Raoul joined by the DuPage County State‘s Attorney, and the Cook County State‘s Attorney on her own. When the distinction matters, usually because an argument was made by only one, we refer to them separately as the State and Cook
II. Analysis
We review the district court‘s grant of summary judgment and the underlying question of constitutional law de novo. Anderson v. Milwaukee County, 433 F.3d 975, 978 (7th Cir. 2006). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Before we reach the merits, we must confirm that Plaintiffs have standing to bring their claims. Word Seed Church v. Vill. of Hazel Crest, 111 F.4th 814, 819, 822 (7th Cir. 2024).
A. Plaintiffs Have Standing
To establish standing, Plaintiffs must “present an injury that is [1] concrete, particularized, and actual or imminent; [2] fairly traceable to the defendant‘s challenged behavior; and [3] likely to be redressed by a favorable ruling.” Dep‘t of Commerce v. New York, 588 U.S. 752, 766 (2019) (quoting Davis v. Federal Election Comm‘n, 554 U.S. 724, 733 (2008)). As the district court found, each of the Plaintiffs would take a concealed firearm on public transportation if not for the credible threat of prosecution by Defendants under Section 65(a)(8), so injury and traceability are certain. And a judgment that the statute violates the Second Amendment would provide redress.
Cook County offers two reasons why we should nevertheless conclude that the Plaintiffs lack standing. The first deserves no more than a brief rejection. For context, Plaintiffs originally sought injunctive relief, in addition to a declaratory judgment, but the district court‘s summary judgment decision held that they forfeited the request for an injunction.5 According to Cook County, the forfeiture means the district court lost jurisdiction to enter a declaratory judgment. That is incorrect.
Nearly a century of case law establishes that Plaintiffs can bring a standalone claim pursuant to the procedures in the Declaratory Judgment Act,
That brings us to Cook County‘s second reason why Plaintiffs lack standing: other rules restrict Plaintiffs from carrying firearms on public transportation even in the absence of the challenged statute, so a favorable decision does not redress Plaintiffs’ injuries because they still could not carry firearms on public transit. This argument requires us to carefully parse the Supreme Court‘s standing jurisprudence, along with our own case law, but Plaintiffs’ injuries are indeed redressable.
Currently, Metra bans firearms with no exception for concealed carry licensees. Passenger Code of Conduct, Metra, §§ III(I), IV(H).7 Plaintiffs assert that they will defy Metra‘s
Cook County cites Harp Advertising Illinois, Inc. v. Village of Chicago Ridge to argue that Metra rules and the possibility of trespass charges eliminate Plaintiffs’ standing. 9 F.3d 1290 (7th Cir. 1993). There, we held that a plaintiff who challenged one village ordinance lacked standing because the desired conduct was prohibited by another unchallenged and unrelated zoning rule, hence a favorable ruling would not redress the injury. Id. at 1292.
transit....” A look at
Here, Plaintiffs’ redressable injury is facing prosecution under Section 65(a)(8).8 With respect to possible trespass charges, neither we nor the Supreme Court have ever held that a plaintiff who brings a pre-enforcement challenge against one criminal statute must also challenge all criminal or civil enforcement statutes that potentially bear upon the same conduct. “[T]he ability ‘to effectuate a partial remedy’ satisfies the redressability requirement.” Uzuegbunam v.
In Reporters Committee for Freedom of the Press v. Rokita, we affirmed the grant of a preliminary injunction in a pre-enforcement challenge to Indiana‘s buffer law, which made it a crime to approach within 25 feet of a law enforcement officer executing his duties. No. 24-2927, 2025 WL 2218472, at *1 (7th Cir. Aug. 5, 2025). There, we rejected a similar argument that the plaintiffs lacked a redressable injury where the challenged buffer law and a separate, unchallenged emergency incident statute each criminalized similar conduct. Id. at *4–5. First, we explained that “although there may be some overlap between the buffer law and the emergency incident statute, the overlap is not complete“—the buffer law “applie[d] in a far broader set of situations....” Id. at *4. Second, we observed that even had there been complete overlap, because both statutes were criminal laws, facing prosecution under both for the same conduct would subject the plaintiffs to steeper penalties. Id. We held that “removing an additional layer of criminal liability [is] a form of redress sufficient to confer standing, even though the underlying behavior [is] still subject to prosecution” under other laws. Id. (citing Animal Legal Def. Fund v. Reynolds, 89 F.4th 1071, 1078 (8th Cir. 2024)).
Contrary to Cook County‘s arguments, Harp does not undercut our standing analysis. There, we discussed standing where the asserted injury was “the inability to erect an off-premises billboard” and the overlapping restrictions were imposed by civil, not criminal laws—a zoning rule challenged by the plaintiff and a separate, unchallenged local ordinance. Harp, 9 F.3d at 1292. Either of the zoning rule or the ordinance operating alone would have precluded the Harp plaintiff‘s
Cook County points out that Harp relied on Renne v. Geary, but that case is even further afield from the facts here. 501 U.S. 312 (1991). In Renne, the plaintiffs challenged a restriction on certain speech from political candidates, alleging injury because “they desired to hear” that speech. Id. at 319. The Supreme Court had “reason to doubt” that this injury could be redressed by a favorable decision because a different, unchallenged law might still prohibit the speech that the plaintiffs wanted to hear. Id. Quite unlike this case, the asserted injury was a step removed from the restriction, which had no direct effect on the plaintiffs. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.“). Also relevant for our purposes is that the challenged rule “carrie[d] no criminal penalties, and [could] only be enforced by injunction.” Renne, 501 U.S. at 322.
We decline to extend Harp to defeat Plaintiffs’ standing here and instead follow Reporters Committee for Freedom of the Press. Plaintiffs’ criminal exposure from Section 65(a)(8) is a discrete injury that a court can remedy. “Plaintiffs [who] face a credible threat of prosecution ... should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.” Holder v. Humanitarian L. Project, 561 U.S. 1, 15 (2010) (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)). A categorical rule that plaintiffs must always challenge all restrictions that might apply to their desired conduct could allow the government to evade review of squarely presented controversies, especially in the realm of pre-enforcement challenges to criminal penalties. At the same time, we
As stated by Brackeen, 599 U.S. at 292–94, the possible impact of a favorable opinion could not give Plaintiffs’ standing if they had not presented Section 65(a)(8) charges as an injury that a favorable judgment is likely to redress.9 It merely helps define the injury. In viewing the injury as prosecution under Section 65(a)(8), we find it relevant that there are several layers of conjecture needed to conclude that Plaintiffs would continue to face trespass charges after a favorable decision. Without Section 65(a)(8), no portion of the Illinois Criminal Code prohibits Plaintiffs from carrying concealed firearms on transit.10
We also observe that Metra has authority to confiscate fare media and suspend riding privileges but cannot otherwise penalize Plaintiffs. Passenger Code of Conduct, Metra, § V. Plaintiffs’ apparent cost-benefit analysis—that they would
There is a second basis for our conclusion that Plaintiffs have standing.12 In a decision issued at the end of the last term, the Supreme Court emphasized that we assess redressability based on the plaintiff‘s complaint, not “the relief the District Court granted on the merits.” Gutierrez v. Saenz, 145 S. Ct. 2258, 2267 (2025). There, the Supreme Court said that
Here, the complaint‘s prayer for relief requested a judgment declaring that the “Public Transportation Carry Ban consisting of
With our jurisdiction assured, we turn to the merits.
B. Illinois‘s Public Transit Firearm Restriction Is Consistent With The Second Amendment
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
The Supreme Court has now instructed us to assess Second Amendment claims by using the two-step test laid out in Bruen, 597 U.S. at 24, with the benefit of the additional direction in United States v. Rahimi, 602 U.S. 680 (2024). Under the Bruen framework, we first consider whether “the Second Amendment‘s plain text covers an individual‘s conduct....” Bruen, 597 U.S. at 24. At this first step, we corroborate our reading of the Second Amendment‘s plain text with assistance from historical sources. See id. at 20 (explaining that in Heller, the Court assessed whether its initial textual interpretation was “confirmed by the historical background of the Second Amendment” (quoting Heller, 554 U.S. at 592)). If the plain text covers an individual‘s conduct, “the Constitution presumptively protects that conduct.” Id. And we then move to Bruen‘s second step, where the government has the burden to “justify its regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation.” Id.
Everyone agrees that the plain text of the Second Amendment, as interpreted by the Supreme Court, covers Plaintiffs’ desire to ride public transit while carrying a licensed
At the second step, “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” Rahimi, 602 U.S. at 692. To determine whether a modern regulation is “‘relevantly similar’ to laws that our tradition is understood to permit,” id. (quoting Bruen, 597 U.S. at 29), the central inquiry is “how and why the regulation[] burden[s] a law-abiding citizen‘s right to armed self-defense,” Bruen, 597 U.S. at 29. For how, we ask “whether modern and historical regulations impose a comparable burden on the right of armed self-defense....” Bruen, 597 U.S. at 29. Then, for why, “whether that burden is comparably justified....” Id. A law that “regulates arms-bearing for a permissible reason” may still fall to a Second Amendment challenge if the burden exceeds that found in our tradition. Rahimi, 602 U.S. at 692. But when the government has presented “historical laws ‘address[ing] particular problems’ there is a good chance ‘contemporary laws imposing similar restrictions for similar reasons’ are also permissible.” United States v. Rush, 130 F.4th 633, 641 (7th Cir. 2025) (quoting Rahimi, 602 U.S. at 692).
In the words of the Supreme Court, “recent Second Amendment cases ... were not meant to suggest a law trapped in amber.” Rahimi, 602 U.S. at 691. “Even if the modern-day regulation is not ‘a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster‘—we need not find a historical ‘twin.‘” Rush, 130 F.4th at 641 (quoting Bruen, 597 U.S. at 30). After all, “[t]he regulatory
With that foundation, we confront Illinois‘s public transit firearm restriction. Undoubtedly, some place-based restrictions on carrying firearms are harmonious with the Second Amendment. The Supreme Court has provided a non-exhaustive list of “sensitive places” to use as material for analogical reasoning, and beyond that, there is a more expansive tradition of regulations pertaining to confined and crowded places. Id. at 30. Although public transportation is a historically recent phenomenon, the regulation at issue is “relevantly similar” to rules throughout our nation‘s history. Id. at 29. We conclude that the government has met its burden under step two.
1. Regulation of Firearms in Sensitive Places is Permissible
The Supreme Court has repeatedly recognized that “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” are consistent with the Second Amendment. Heller, 554 U.S. at 626–27; McDonald, 561 U.S. at 786. Sensitive places “where weapons were altogether prohibited” in the 18th and 19th centuries also include “legislative assemblies, polling places, and courthouses....” Bruen, 597 U.S. at 30. At the time, there was no dispute that these rules were legal. Id. Thus, “courts can use analogies to those historical regulations of ‘sensitive places’ to determine that modern regulations prohibiting the carry of firearms in new
The Second and Ninth Circuits recently applied the sensitive places doctrine. The Second Circuit largely rejected a Second Amendment challenge to a New York state law that criminalized carrying firearms in many places, including parks, bars, places of worship, theaters, zoos, and more. Antonyuk v. James, 120 F.4th 941, 955–57 (2d Cir. 2024).13 It did not assess the constitutionality of a public transit restriction.14
The Ninth Circuit reached a more mixed result after reviewing California and Hawaii laws that again restricted firearms in parks, bars, places of worship, plus other locations not covered by New York‘s law, like banks and hospitals. Wolford v. Lopez, 116 F.4th 959, 1002–03 (9th Cir. 2024) (“A State likely may ban firearms in museums but not churches; in restaurants but not hospitals; in libraries but not banks.“).
Critically, the Ninth Circuit also assessed California‘s prohibition of firearms on public transit. Id. at 1000. Our sister circuit held that the law was likely unconstitutional but only because it did not contain an exception for unloaded and
Right now, we advise that while the issue before us is narrower than those in Antonyuk or Wolford, we find their reasoning instructive. After reviewing Bruen and Rahimi with the insight of our sister circuits, we apply the following methodology to analyze a place-based firearm restriction. “Our Nation has a clear historical tradition of banning firearms at sensitive places.” Wolford, 116 F.4th at 980; Bruen, 597 U.S. at 30 (same).
To show that a place-based regulation fits within that tradition, the government may compare it to the regulations on schools, legislative assemblies, polling places, and courthouses blessed in Heller and Bruen. Comparison to regulations at those four sensitive places benefits from an already-completed historical analysis. All we must do is make the analogy. But nothing in Bruen suggests that its short list of sensitive places was intended to be a conclusive survey of all historical place-based firearm laws. Such a narrow reading would run contrary to the two-part test Bruen announced. When a modern law does not neatly compare to the regulations on the four prototypical sensitive places, as it often might not, the government should present additional historical evidence of analogous place-based restrictions to help locate the challenged law within our tradition. If the government cannot do so, a modern regulation is unconstitutional.
That matters because the sensitive places identified in Bruen meaningfully differ from one another in their characteristics. We must consider whether there are core principles unifying those sensitive places that justify firearms regulations within them. Schools and courthouses may share structural characteristics (or not), and certainly differ in their functions and the ages and activities of their primary inhabitants; legislative assemblies and polling places are central to representative democracy but share few characteristics as physical spaces.
Plaintiffs attempt to carve out schools from the group and then assert that the remaining commonality is that the government provides comprehensive security in those places. This effort does not withstand historical scrutiny. Plaintiffs assert that firearm restrictions in schools were linked to the principle of in loco parentis authority over students. But it would be odd for the Supreme Court to talk about schools in the context of sensitive places if it was actually referring to restrictions on students, a subset of those occupying the place. Because we read Bruen, 597 U.S. at 30, and Heller, 554 U.S. at 626, to say that schools are places where firearms can be prohibited for all individuals, what makes schools “sensitive” must be something other than in loco parentis. Surely, it is not government provided security.
The government, in contrast to Plaintiffs, does not attempt to devise a common factor between schools, legislative assemblies, polling places, and courthouses. In lieu of that effort, the government’s analogies pick out various characteristics shared by some of those places. As discussed below, many of those comparisons are well-made, but we still need to identify a core principle underlying sensitive place regulations.
That unifying principle emerges when we look at “how” and “why” the government historically burdened the right to carry weapons in these four types of sensitive places. See Rahimi, 602 U.S. at 692.
Put another way, firearms are potentially disruptive and deadly everywhere. The Second Amendment settled whether society nevertheless accepts the risk of allowing armed self-defense. Yet the sensitive places doctrine tells us that the appropriate balance allows for temporary restrictions in scattered discrete places where the risk is simply different, and reminiscent of risks addressed by regulations in our past.
“To be clear,” this is not a “regulatory blank check” to use security fears to justify any firearm restriction. Bruen, 597 U.S. at 30. Rather, the search for a “relevantly similar” regulation burdens the government to make comparisons between the “particular problems” that motivated historical firearm restrictions in certain places and the problems that spur restrictions today. Rahimi, 602 U.S. at 692. Here, logical reasoning builds on the foundation of history.
Still, Bruen assigns judges with the part-time role of historian, not policymaker. The government certainly should not try to convince us that a law’s benefits outweigh the costs. It should show no more, and no less, than that the trade-off is one that accords with our history.
Some place-based restrictions will look much like those in the past. (Think of a rule banning firearms at a daycare.) Other times, they will appear rather different. This may be a constitutional warning sign, especially if the government is restricting firearms in a place that has existed throughout our nation’s history without analogous prohibitions. See, e.g., Wolford, 116 F.4th at 980–81. It may also reflect the fact, however, that some places did not exist until more recent periods of history. “[C]ourts must be particularly attuned to the reality that the issues we face today are different than those faced in medieval England, the Founding Era, the Antebellum Era, and Reconstruction.” Antonyuk, 120 F.4th at 970. When modern issues are significantly different from problems encountered in
All in all, the Supreme Court’s Bruen framework, and the sensitive place doctrine, lead us to ask: Is Illinois’s law “‘relevantly similar’ to laws that our tradition is understood to permit....”? Rahimi, 602 U.S. at 692 (quoting Bruen, 597 U.S. at 29). We could likely answer in the affirmative. Nevertheless, our Constitutional rights stand as a bulwark against government overreach, and we do not treat Second Amendment rights as a “second-class right….” Bruen, 597 U.S. at 70. So before concluding that Illinois may temporarily cabin an individual’s right to carry a firearm while using a crowded transit system, we continue our analysis.
2. Illinois’s Public Transit Firearm Restriction is Akin to the Tradition of Regulating Firearms in Crowded and Confined Spaces
We start by expanding on Bruen’s list of locations where firearms were historically prohibited. In response to Plaintiffs’ challenge, the government fits the public transit restriction within the sensitive places doctrine by supplying evidence that a consistent historical thread prohibits firearms in analogously crowded and confined locations. After that regulatory practice started in medieval England, it continued in Revolutionary America, through Reconstruction, and into the present day. Our sister circuits have described much of this history. Wolford, 116 F.4th at 986; Antonyuk, 120 F.4th at 1019–24. We borrow from their telling.
The beginning of the relevant tradition, based on the record the government has provided, is 1328’s Statute of Northampton, a “British statute forbidding going or riding ‘armed by night [ ]or by day, in fairs [or] markets....’” Antonyuk, 120 F.4th at 1019 (quoting Statute of Northampton 1328, 2 Edw. 3 c.3 (Eng.)). This firearm restriction in traditionally crowded public spaces persisted into American law, including in Virginia and North Carolina. 1786 Va. Acts 35, ch. 49; State v. Huntly, 25 N.C. 418, 420–21 (1843).
Plaintiffs explain, and we accept, that these laws were understood to only prohibit firearm carrying that caused “terror.”19 See Bruen, 597 U.S. at 40–45 (discussing the Northampton statute and successor laws). That weakens the analogy. Nevertheless, the laws still demonstrate that the American tradition has long approved of firearm restrictions that are triggered by carrying in a crowded space, even if another condition is required to complete the violation.20 This is a principle, rather than a dead ringer. Rahimi, 602 U.S. at 692.
Another law built on the principle that originated in the Statute of Northampton by flatly banning carrying firearms
And, as discussed, sensitive place restrictions were already well-known. The idea that firearms could be banned in certain locations, which originated in British legal practices, provided a relevant principle familiar to the Founding generation, and helps us understand why restrictions such as the New Orleans ordinance would be accepted without controversy. These rules were evolving and building on each other as a young nation put into practice the public understanding of the right to bear arms.
Before moving on, we pause for another comment on methodology. Plaintiffs argue that much of the government’s other evidence is not probative because it is after the Founding era. We are unconvinced. “[T]he government is not constrained to only Founding Era laws. While not every time period is weighed equally, Bruen instructs us to consider ‘historical precedent from before, during, and even after the founding....’” Rush, 130 F.4th at 642 (quoting Bruen, 597 U.S. at 27). That approach accords with Founding-era methodologies of constitutional and statutory interpretation. See, e.g., THE
Although the Supreme Court has not set a conclusive cutoff point, we and other circuits concur that evidence stretching into the nineteenth century is useful to a Bruen inquiry. Rush, 130 F.4th at 642 (citing to an 1856 statute); Bevis, 85 F.4th at 1201–02; Antonyuk, 120 F.4th at 973–74; Wolford, 116 F.4th at 980; Nat‘l Rifle Ass‘n v. Bondi, 133 F.4th 1108, 1121 (11th Cir. 2025) (en banc) (W. Pryor, C.J.) (relying on “[m]id-to-late nineteenth-century laws”). That is especially true when reviewing a state law, given that the states were not bound by the Second Amendment until the Fourteenth Amendment was ratified in 1868. See Antonyuk, 120 F.4th at 972–74; Wolford, 116 F.4th at 980.
A trickier issue emerges when Founding-era evidence and laws from later periods, such as Reconstruction, provide opposite signals about the contours of the Second Amendment. “But we need not and do not decide in this appeal how to address a conflict between the Founding-era and Reconstruction-era understandings of the right....” Nat‘l Rifle Ass‘n, 133 F.4th at 1116–17. When it comes to crowded space restrictions, “historical practice from the mid-to-late nineteenth century ... confirm[s] the Founding-era understanding of the Second Amendment.” Id. at 1116.
For example, an 1852 New Mexico law prohibited firearms at any “Ball or Fandango” (as the combined reference
These crowded-space restrictions were consistently upheld as constitutional under state constitutional provisions analogous to the Second Amendment. Andrews v. State, 50 Tenn. 165, 186 (1871); English v. State, 35 Tex. 473, 480 (1871);22 Hill v. State, 53 Ga. 472, 476 (1874); State v. Shelby, 2 S.W. 468, 469–70 (Mo. 1886). That is strong evidence that similar crowded space rules are constitutional today. See Bruen, 597 U.S. at 68 (describing “judicial scrutiny” as relevant to the analysis); Wolford, 116 F.4th at 981 (“[I]f courts unanimously
Several more laws show that just as crowded place laws existed long before Reconstruction, they persisted afterward. In 1879, New Orleans expanded its firearm prohibition to cover “any theatre, public hall, tavern, picnic ground, place for shows or exhibitions, house or other place of public entertainment or amusement.” JEWELL’S DIGEST OF THE CITY ORDINANCES OF THE CITY OF NEW ORLEANS 1 (Edwin L. Jewell ed., 1882) art. 1; see Wolford, 116 F.4th at 987. From the 1880s through the turn of the century, the territories of Arizona, Montana, and Oklahoma affirmed the aforementioned state regulatory practices by adopting prohibitions on firearms in various public gathering spaces, like ballrooms. Antonyuk, 120 F.4th at 1020 (citing 1889 Ariz. Sess. Laws 16, 17, No. 13, §3; 1890 Okla. Terr. Stats. ch. 25, art. 47, §7); Wolford, 116 F.4th at 987 (describing an analogous 1903 Montana law).
On a similar record, the Second Circuit concluded that “the Nation not only tolerated the regulation of firearms in ... crowded spaces, but also found it aberrational that a state would be unable to regulate firearms ... in such spaces.” Antonyuk, 120 F.4th at 1020–21. Said differently, a “high population density in discrete, confined spaces … has historically justified firearm restrictions.” Id. at 1027 (emphasis added). The Ninth Circuit’s analysis of various restrictions rested on a similar premise. Wolford, 116 F.4th at 986 (“[T]hese laws show a well-established tradition of prohibiting firearms at crowded places … [a]nd ... we are not aware of any question as to the constitutionality of those laws.”).
The federal government, for its part, regulates concealed carry in transit: an airline passenger faces federal criminal
We agree with our sister circuits and hold that regulations in crowded and confined places are ensconced in our nation’s history and tradition. As we see it, crowded spaces restrictions fall under the sensitive place doctrine. To clarify our terminology, any location where firearms can be banned is accurately described as a “sensitive place” for the sake of a Second Amendment inquiry. Bruen explicitly disclaims that it was listing all possible historical sensitive places. 597 U.S. at 30–31. The government’s crowded spaces evidence helps us figure out if the label is appropriate by creating more analogues and further defining the characteristics and problems
3. The How and Why of Historical Regulations are Akin to Those of the Illinois Public Transit Restriction
Against this backdrop of additional historical evidence, we turn to analogies. Analogizing between a legislative assembly and a CTA bus is no easy task. We could say both can suffer gridlock, yet that is clearly not relevant to our analysis. However, we are analogizing restrictions, not merely places. And because the high-level principle supporting historical sensitive place-regulations—temporary restrictions on arms-bearing in limited places with unique features—is familiar by now, we take the opportunity to be more specific.
Mindful of our marching orders from the Supreme Court, we start with the “how.” Bruen, 597 U.S. at 29. Section 65(a)(8) impairs the right to carry a firearm only when an individual is within a particular space. Many of the restrictions scrutinized in the post-Heller era are categorical deprivations of the right to self-defense, such as the licensing regime struck down in Bruen, or the ongoing challenges to
It is entirely possible to avoid Section 65(a)(8), as Plaintiffs currently do. And, when an individual decides the benefit of using public transit outweighs the burden on his right to carry, the trade-off is temporary.
Historical crowded place restrictions functioned in much the same way, and when those historical regulations differed, it was often due to earlier generations placing an even greater restriction on individuals carrying firearms. Americans in the Founding era, and through Reconstruction, accepted that their Second Amendment rights weakened in certain spaces. Bruen, 597 U.S. at 30. In fact, because firearms were often altogether prohibited in crowded spaces, the burden was greater than under Section 65(a)(8). An individual disarmed before and after the time spent at the crowded and confined ball or fandango of years past, until he returned to the place where his firearm was stored. Not true here. A concealed-carry licenseholder can keep his firearm with him as long as it is unloaded and secured during his time on public transit. See
There are more similarities in the “how.” Aside from narrow exceptions for those entrusted with positions of
“[T]he penalty—another relevant aspect of the burden—also fits within the regulatory tradition.” Rahimi, 602 U.S. at 699. A violation of Section 65(a)(8) can be punished with imprisonment and a fine, see
Next, we evaluate the “why.”23 The actual security risk at any given crowded place, such as a social gathering, is sure to
Here, the government has explained how public transit’s unique physical characteristics mean that firearms create similar problems there as in historically regulated crowded places. Public transit can be extremely crowded, with commuters standing shoulder to shoulder during peak times. Even when trains and buses are not densely packed with people, they are “discrete, confined spaces” where it would be difficult to avoid a person wielding a firearm. Antonyuk, 120 F.4th at 1027. The risk of wayward bullets striking an unintended innocent target is high. What’s more, when vehicles are in motion, escape is generally impossible.
Also relevant: a brandished weapon or gunfire could distract, injure, or kill a train or bus driver, endangering the lives of everyone on the vehicle as well as anyone in its path. Public transit is even more confined than ballrooms of the past. Riders face not just plaster and wood in a large building, but rather tubes made primarily of metal. We are also mindful that first responders face a unique challenge in confronting an attack on crowded and confined metal tubes containing
These problems are inherent to the presence of firearms in the space. Framed in that perspective, “why” Section 65(a)(8) prohibits firearms in public transit is also why historical laws banned guns in crowded spaces, and why the federal government bans firearms on airplanes. Firearms are exceptionally dangerous and lethal in confined areas with a high density of people. As with the “how,” the “why” is match. Just like the prototypical sensitive places laid out in Bruen—schools, courthouses and legislative assemblies—public transit today provides a function that is crucial to modern society.
Numerous historical comparators demonstrate why Section 65(a)(8) is within the nation’s regulatory tradition. The government offers three ways of analogizing between the security problems recognized as permissible justifications in our history and the security problems posed by public transit: crowds, vulnerable populations, and government-controlled property.
First, the government says that public transit is “often crowded,” like other sensitive places. Wolford, 116 F.4th at 1001. As we have observed throughout this opinion, Illinois’s public transit system shares that characteristic with places subjected to arms regulations throughout our nation’s history.
The government’s second way of analogy is that children regularly take public transit. The record shows that all Chicago public schools distribute CTA fare cards that allow
Third, public transit is owned and operated by the government. This is true of legislative assemblies, polling places, and courthouses.24 It was generally not true of schools during the Founding era. Regardless, we find this similarity between public transit and most of the other sensitive places to be relevant. The Supreme Court has recognized that “government buildings” have maintained a longstanding tradition of firearm restriction, although we do not read Bruen to necessarily situate all government buildings within the category of widely-accepted sensitive places. Bruen, 597 U.S. at 30 (quoting Heller, 554 U.S. at 626). Either way, the government’s power to regulate conduct and maintain order on its own property helps place laws like Section 65(a)(8) within our regulatory tradition.
Remember that millions of Illinois residents put their faith in the government to safely take them where they need to go. And those residents have decided, through their elected representatives, that forbidding firearms is a method to achieve this goal. The public transit firearm restriction is different
That dynamic does not license a majority of the people to override the Second Amendment rights of a minority in places run by the government. “[I]ndividual and democratic rights do not extinguish one another in this important area....” Id. In fact, while Cook County has argued that we should apply a “government proprietor” framework that effectively withdraws firearm restrictions on government property from the Bruen framework in favor of a rational basis test, we decline to endorse that argument.26 We consider government ownership at Bruen’s second step as a guidepost for locating
We stress that this analysis should not stretch beyond reason. Illinois cannot contend, for example, that the entire city of Chicago is a sensitive place because parts of that city can be crowded. Bruen, 597 U.S. at 29 (“[T]here is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place....’”). Nor could it say the same for even those most crowded neighborhoods. The Second Amendment equally grants the right to bear arms to those who live in high density urban areas and those in rural communities. See id. What follows from that proposition is that the particular problem motivating a firearm ban in the Chicago Loop would be little more than the innate risk of firearms in society, which is inconsistent with the “balance struck by the founding generation....” Id. at 29 n.7.
By contrast, the Illinois public transit firearm restriction is consonant with a crucial limiting principle for permissible crowded and sensitive place regulations. Like sensitive and crowded place laws throughout our nation’s history, the challenged statute only applies in discrete, easily defined locations. It bears repeating that “Firearms are dangerous” is a justification outside of our regulatory tradition. “Firearms are dangerous in this kind of place” can fall within that tradition.
A universal limiting principle is difficult to square with the regulation-specific inquiry that Bruen mandates. We are careful, however, to keep in mind that our decision today must not vest too much power in the state’s hands. Doing so would disrupt the carefully drawn protections of the Bill of Rights. So we note that all we find necessary to decide in
We stress that lower courts should not employ this summary of today‘s decision as a test in all Second Amendment challenges. “[C]ommon sense” informs the Bruen inquiry. Rahimi, 602 U.S. at 698. Consider nuclear power plants. We are not certain the principle set forth above would apply to all nuclear power plants. And, the Founding generation, for all their wisdom, had no opportunity to grasp that these facilities would one day exist, let alone decide whether to incorporate them into firearm laws. See Wolford, 116 F.4th at 980. In defending a ban on firearms at nuclear power plants, the government would fare best if it produced evidence of historical firearm restrictions at watermills, smelters or munitions stockpiles. Yet even in the absence of such evidence, courts would do Bruen no favors to pretend that it is impossible to identify the shared principle with earlier sensitive place restrictions. Is there something about a nuclear power plant that implies the general right to armed self-defense might temporarily dwindle there? The threat of radioactive cataclysm, we think, carries that implication.
Likewise, we emphasize that public transit did not exist until late in the 19th century. Even the post-Reconstruction-era laws cited herein predate mass, government-operated
Any attempt to impose a test of strict similarity between historical and current regulations would not only run afoul of binding precedent, Rahimi, 602 U.S. at 692, it would also jeopardize the carefully drawn balance of power between the federal government—including federal courts interpreting the
Are we saying that the public transit firearm restriction is constitutional? Yes. But we are not done, and our conclusion is informed by the next part of this decision, which is a continued study of the crowded spaces evidence in the record. The fabric of our national tradition will at times include regulations that do not strictly come from the government.
4. Illinois‘s Public Transit Firearm Restriction is Akin to Railroad Firearm Restrictions, As a Continued Thread of Crowded and Confined Spaces Regulation
Here, we confront the government‘s contention that 19th-century railroad regulations are acceptable evidence for determining history and tradition. We tend to agree, once more aligning with the Ninth Circuit. In doing so, we emphasize that this evidence corroborates the expansive tradition of regulation in sensitive and crowded, confined places laid out
The Ninth Circuit concluded that “[a] ban on the carry of firearms on public transit almost certainly would be constitutionally permissible if the law allowed the carry of unloaded and secured firearms.” Wolford, 116 F.4th at 1002. It “acknowledge[d] that public transit bears some features common to other sensitive places, such as government buildings and schools.” Id. “Transit facilities are often crowded, they serve some vulnerable populations, and they are State-owned.” Id. As we explain above, these shared features are a potent indication that firearm restrictions on public transit are constitutional, but the Ninth Circuit turned to a different analogue.
The Ninth Circuit primarily relied on the rules of private railroad operators in the 19th century, as situated in the historical tradition of crowded place regulations. Id. Plaintiffs’ objection to this maneuver is easy to anticipate: these rules were not laws, so they are irrelevant to our analysis. This is an area for caution, but we disagree with Plaintiffs’ wholesale rejection of the regulations’ relevance. For one, the Supreme Court‘s decision in Bruen seemingly relied on private rules, in part, to support the conclusion that schools are a sensitive place.27
[i]n examining historical evidence, rules and regulations by private entities may inform the historical analysis, particularly where, as with train companies operating on the public right of way, the “private” entities were providing essentially a public service and were more properly characterized as mixed public-private entities.
Wolford, 116 F.4th at 1001. That characterization is endorsed by an array of more contemporary Supreme Court decisions. Lake Shore & Mich. S. Ry. Co. v. Smith, 173 U.S. 684, 690 (1899), overruled on other grounds by Pa. R. Co. v. Towers, 245 U.S. 6 (1917) (“A railroad company, although a quasi public corporation, and although it operates a public highway has, nevertheless, rights which the legislature cannot take away without a violation of the federal constitution....“) (internal citation omitted); Chicago, Burlington, & Quincy R. Co. v. Iowa, 94 U.S. 155, 161 (1876) (stating that railroad companies are “given extraordinary powers, in order that they may the better serve the public” and are “engaged in a public employment affecting the public interest“); Pine Grove Twp. v. Talcott, 86 U.S. 666, 676 (1873) (“Though the [railroad] corporation was private, its work was public, as much so as if it were to be constructed by the State.“). It also is supported in the record, where an expert report from Dr. Brennan Rivas explains that legislatures made special arrangements to authorize railway police to protect the peace of passengers in transit.
So is the “why.” Both the railroad rules and Section 65(a)(8) were “comparably justified,” Bruen, 597 U.S. at 29, by a concern for public safety in confined, discrete, fast-moving vehicles.29 See, e.g., Pa. R. Co. v. Langdon, 92 Pa. 21, 27 (1879) (“The right of a railroad company to make reasonable rules for its own protection, and for the safety and convenience of passengers, has been repeatedly recognised.“); Poole v. N. Pacific R. Co., 16 Or. 261, 264 (1888) (“For its own safety and convenience, and that of the public, a railroad company may make reasonable rules and regulations for the management of its business, and the conduct of its passengers.“).
Therefore, these rules—in coordination with the crowded and sensitive places analysis discussed above—show a historical tradition that bears a marked similarity with Section
We could stop here. But Bruen and Rahimi convey a clear message that the individual right to self-defense is an important fixture of our Constitution. So we have a bit more to say about why Section 65(a)(8) is a permissible regulation.
5. Illinois‘s Public Transit Firearm Restriction is Akin to Lawful Time, Place, and Manner Speech Restrictions in Sensitive Places
We have one more reflection. We have been told to draw analogies to schools, legislative assemblies, polling places, and courthouses. Bruen, 597 U.S. at 29. First Amendment restrictions are ubiquitous in each location. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969) (permitting regulation of disruptive speech in schools); United States v. Nassif, 97 F.4th 968, 976 (D.C. Cir. 2024), cert. denied, 145 S. Ct. 552 (2024) (allowing Congress to prohibit speech and demonstrations within the U.S. Capitol); Minnesota Voters All. v. Mansky, 585 U.S. 1, 12–13 (2018) (providing that polling places are “government-controlled property set aside for the sole purpose of voting” where speech is restricted); Braun v. Baldwin, 346 F.3d 761, 764 (7th Cir. 2003) (limiting speech that encouraged jury nullification in courthouses).
On top of that, in Anderson v. Milwaukee County, 433 F.3d at 980, we upheld a restriction that prohibited passengers from distributing literature while on public buses. We highlighted a few reasons why buses were a space where free speech rights diminished. “[T]he bus is a governmentally controlled forum....” Id. at 979. “Bus passengers are a captive audience.” Id. at 980. “It is reasonable for the bus company to attempt to ensure their comfort.” Id. “Furthermore, the bus company has an interest in passenger safety.” Id. “Given the nature of the forum, a ban on the distribution of literature on buses passes constitutional muster.” Id.
First Amendment cases, including Anderson, involve the means-ends scrutiny that Bruen prohibits, and we do not repeat that inquiry. (Even if we could, it would be substantively different because the right to speak is not the same as the right to carry a firearm.) At the same time, we doubt that the Supreme Court intended to completely divorce the First and Second Amendments, especially when we look at restrictions that are defined solely by reference to physical location. The Court, indeed, has made direct comparison between the Amendments. See Bruen, 597 U.S. at 24 (“This Second
The government may lawfully restrict speech in the sensitive places identified in Bruen. That common feature of these places is important in a constitutional sense. And similar speech limits on public transit align the public transit firearm restriction with the principle that where one constitutional right diminishes, so might another.
Ultimately, under Bruen‘s test, we are not concerned with whether the government has demonstrated a compelling interest in regulating firearms on public transit. 597 U.S. at 29 n.7. Maybe Illinois has made a good policy choice, maybe not. Our concern is whether the law aligns with the nation‘s tradition. We hold that
III. Conclusion
The district court in this case noted that it had “trouble applying what the Supreme Court said in Heller and Bruen” and
Unsettled areas of the law are nothing new. We cannot yet know if these are legal growing pains that will subside with age, or if they signify a malady in need of a cure. And, for all that lower courts may think, our job is to apply binding precedent. If the current test proves unworkable, altering it is the sole province of the Supreme Court.
Bruen and Rahimi leave some open questions. One challenge, as we have said, is how to resolve conflicting evidence between different eras. Another is the stringency of the government‘s burden: how many historical analogues are needed to sustain a law? See, e.g., Bruen, 597 U.S. at 46 (“For starters, we doubt that three colonial regulations could suffice to show a tradition of public-carry regulation.“). Relatedly, how do we know that the absence of historical regulation means that modern regulation is unconstitutional, rather than a reflection of different but permissible policy choices? Phrased differently, what evidence tells us when “founding-era legislatures maximally exercised their power to regulate....“? Rahimi, 602 U.S. at 739–40 (Barrett, J., concurring). And with what “level of generality” are we to view the similarity between a modern regulation and its historical analogue? Id. at 740. Perhaps in
We REVERSE the judgment of the district court and REMAND for proceedings consistent with this opinion.
I write separately to highlight a difficult jurisdictional question that today‘s opinion prudently reserves for a future case: how to assess redressability where a plaintiff defines her injury as the inability to engage in protected activity—not the threat of prosecution for doing so—and an unchallenged law also prohibits that precise activity.
I.
To invoke the judicial power of the federal courts, litigants must have standing. California v. Texas, 593 U.S. 659, 668 (2021). One element of the irreducible constitutional minimum of standing is redressability, which demands that it be “‘likely,’ as opposed to merely ‘speculative,‘” that a favorable decision will redress the plaintiff‘s injuries. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (quoting Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 38, 43 (1976)).
The redressability requirement serves two functions. It prevents the issuance of advisory opinions, and it generally ensures “there is a sufficient ‘relationship between the judicial relief requested and the injury suffered.‘” Diamond Alt. Energy, LLC v. EPA, 145 S. Ct. 2121, 2133 (2025) (quoting California v. Texas, 593 U.S. at 671). Yet what constitutes a “sufficient” relationship is the subject of long-running debates, at least two of which surface where a plaintiff challenges only a subset of the laws precluding her desired conduct.
A.
The first debate asks how close the relationship between the plaintiff‘s alleged injury and the requested relief must be. If it must be “likely” that a favorable decision will result in redress, how probable is “likely“? Would a fifty percent chance suffice? A seventy-five percent chance? See F. Andrew Hessick, Probabilistic Standing, 106 Nw. U. L. Rev. 55, 66–68 (2012); 13A Wright & Miller‘s Federal Practice & Procedure § 3531.6 (3d ed. 2025) (describing redressability determinations as “a matter of uncertain prediction“). Furthermore, should courts consider the likelihood of redress in relative or absolute terms? If there are multiple independent barriers to redress, would removing one suffice, or must the relief sought lift all barriers? Compare Utah v. Evans, 536 U.S. 452, 464 (2002) (requiring only that judicial relief “increase … the likelihood” of redress), with Lujan, 504 U.S. at 561 (requiring judicial relief actually make redress, itself, “likely“).
A recent decision from the Supreme Court illustrates conflicting trends in the law: Gutierrez v. Saenz, 145 S. Ct. 2258 (2025). In Gutierrez, a prisoner sought a declaratory judgment that state post-conviction procedures violated his due process rights by denying him access to DNA testing. The Fifth Circuit held that he lacked standing because a favorable decision would not entitle him to testing; his prosecutor could deny him access to the evidence on other grounds. Id. at 2262.
Several Justices dissented in Gutierrez, citing Lujan. Gutierrez, 145 S. Ct. at 2284 (Alito, J., dissenting) (protesting that the majority “makes a hash of redressability“); see also id. at 2269 (Barrett, J., concurring in the judgment). And in a second case from the same term, the Court asserted a more stringent formulation of redressability, requiring plaintiffs to show that judicial relief will cause “predictable” responses that will make redress of their injuries likely, in absolute terms. See Diamond Alt. Energy, 145 S. Ct. at 2134; see also Murthy v. Missouri, 603 U.S. 43, 57–58 (2024); Simon, 426 U.S. at 38.
Reconciling these two lines of cases presents a challenge for federal courts. But what it means for a favorable decision
B.
A second debate concerns the mechanism of constitutionally permissible redress. Where a favorable decision may redress a plaintiff‘s injury, must that redress run through the court‘s judgment, or may it stem from the persuasive power and likely effect of a favorable, reasoned opinion?
In Haaland v. Brackeen, the Supreme Court adopted the former view:
Redressability requires that the court be able to afford relief through the exercise of its power, not through the persuasive or even awe-inspiring effect of the opinion explaining the exercise of its power. … It is a federal court‘s judgment, not its opinion, that remedies an injury; thus it is the judgment, not the opinion, that demonstrates redressability.
599 U.S. 255, 294 (2023) (citation modified). So where plaintiffs seek declaratory relief, they must establish that the “preclusive effect” of a favorable judgment would likely redress their alleged injury, because “[w]ithout preclusive effect, a declaratory judgment is little more than an advisory opinion.” Id. at 293–294.
Taken at its fullest, Brackeen‘s statement that redress must derive from the power of a court‘s judgment constitutes a change in the redressability doctrine. See William Baude & Samuel L. Bray, Proper Parties, Proper Relief, 137 Harv. L. Rev. 153, 179 (2023) (observing that Brackeen‘s conception of redressability “is not the conception that has always held sway
To understand that impact, I must turn to an earlier case from the Supreme Court, Renne v. Geary, 501 U.S. 312 (1991). In Renne, the plaintiffs challenged a law prohibiting political endorsements in nonpartisan elections, alleging it violated their First Amendment rights. Id. at 314–15. In dicta, the Court found “reason to doubt” the redressability of the alleged injury because an unchallenged statute also barred the plaintiffs’ desired conduct, and “invalidation of [the challenged statute] may not impugn the validity” of the unchallenged one. Id. at 319. Implied, then, was the assumption that if invalidation would impugn the other law, meaning the same constitutional reasoning applied to both, the plaintiff‘s injury could be redressable. Put more directly, Renne appears to have assumed that redress could stem from the reasoning of an opinion, not solely from a court‘s judgment.
After Renne, we and several of our sister circuits assessed whether an unchallenged law barred redressability by asking whether the “fates” of the laws were “intertwined.” Hollis v. Lynch, 827 F.3d 436, 442 (5th Cir. 2016), abrogated on other grounds by United States v. Diaz, 116 F.4th 458 (5th Cir. 2024); see also Harp Advert. Ill., Inc. v. Vill. of Chi. Ridge, 9 F.3d 1290, 1292 (7th Cir. 1993) (finding no redressability where a “valid” unchallenged law also precluded the plaintiff‘s desired activity); Maldonado v. Morales, 556 F.3d 1037, 1043–44 (9th Cir. 2009), cert. denied, 130 S. Ct. 1139 (2010) (reasoning that the plaintiff had standing because a favorable ruling “would likely allow him to surmount” an unchallenged, “similarly worded” law).
II.
This case illustrates the challenges federal courts face when navigating these crosscurrents and new developments in redressability law.
The Plaintiffs here alleged that the threat of prosecution under
To assess the redressability of this second injury, we face an early fork in the road. If we need not interrogate “whether a favorable court decision will in fact” make it more likely that the Plaintiffs can bear concealed weapons on public transit, our analysis may be brief. See Gutierrez, 145 S. Ct. at 2268. A favorable decision would remove a barrier to the Plaintiffs’ desired conduct and thus satisfy Article III‘s redressability requirement. See id. But under a more stringent application of the Court‘s redressability precedent, our analysis must continue. See Diamond Alt. Energy, 145 S. Ct. at 2133; Renne, 501 U.S. at 319.
We would next ask whether other, unchallenged laws also bar concealed weapons on public transit. By my count, the defendants and amici propose five: a CTA ordinance, a Metra rule, two provisions of Illinois‘s unlawful possession of weapons statute, and a separate provision of Illinois‘s Firearm
Prior to Brackeen, our scrutiny of these unchallenged laws may have been limited. Take CTA‘s and Metra‘s rules restricting weapons on their buses and trains. These rules largely mirror Illinois‘s transit restriction. So their fates are probably “intertwined“; a declaratory judgment that the transit restriction unconstitutionally infringed the Second Amendment would likely prove persuasive in a subsequent suit challenging the local laws. See Hollis, 827 F.3d at 442 (reasoning that the plaintiffs had standing because if the challenged federal firearm law was unconstitutional, the overlapping and unchallenged state law was likely also unconstitutional).
But BrackeenSmith v. Bayer Corp., 564 U.S. 299, 307–08 (2011); see also 18 Wright & Miller, supra, § 4417. Here, it is unclear whether a judgment against Illinois and Cook County
Begin with the parties. While Illinois may enforce transit system rules through its trespassing statute,
The issues raised in a suit challenging CTA and Metra‘s regulations may prove distinct, too. For example, Cook County asserts that Bruen does not apply to the transit restriction because the law is exempt from scrutiny under the government-as-proprietor doctrine. See Wis. Interscholastic Athletic Ass‘n v. Gannett Co., 658 F.3d 614, 622 (7th Cir. 2011) (“Where the state acts as a proprietor … its action will not be subjected to the heightened review to which its actions as a lawmaker may be subject.“); Wolford v. Lopez, 116 F.4th 959, 970–71 (9th Cir. 2024) (hypothesizing that a government bank could exclude those bearing arms as an exercise of its proprietary rights). Alternatively, Cook County argues that the transit restriction is a constitutional condition on government funding. See Rust v. Sullivan, 500 U.S. 173, 193 (1991).
The majority correctly rejects both theories. Illinois, which enacted the transit restriction, is not the proprietor of the CTA
We therefore do not need to resolve the interplay between Bruen, the government-as-proprietor doctrine, and the unconstitutional conditions doctrine in this case. These issues are not “necessarily raised” and “actually litigated.” A suit challenging CTA and Metra‘s rules, on the other hand, may implicate them. It seems unlikely, then, that a favorable judgment here would preclude the CTA and Metra from enforcing or defending their rules in a subsequent dispute with the Plaintiffs. And without this preclusive power, Brackeen instructs us that the Plaintiffs lack standing.
One final observation. Even outside the government-as-proprietor and unconstitutional conditions context, Second Amendment plaintiffs seem especially likely to encounter standing challenges under a more stringent conception of redressability. Our system of cooperative federalism has produced an array of overlapping federal, state, and local laws regulating firearms. And Bruen demands a fact-intensive
III.
The federal courts’ approach to redressability is in flux. New developments have unsettled how we assess standing when overlapping laws bar activities the plaintiff alleges are constitutionally protected. Absent further guidance, we must proceed cautiously.