UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS 

UNITED STATES OF AMERICA §

§

versus § CASE NO. 1:23-CR-10

§

AHMED ADBALLA ALLAM §

MEMORANDUM AND ORDER

Pending before the court is Defendant Ahmed Adballa Allam’s (“Allam”) Motion to

Dismiss the Indictment (#22). Allam is charged with one count of possession of a firearm in a

school zone, in violation of 18 U.S.C. § 922(q)(2)(A). Allam contends that, in light of the United

States Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen, ___

U.S. ___, 142 S. Ct. 2111 (2022), and the United States Court of Appeals for the Fifth Circuit’s

recent decision in United States v. Rahimi, 61 F.4th 443, 448 (5th Cir. 2023), petition for cert.

filed, (U.S. Mar. 21, 2023) (No. 22-915),118 U.S.C. § 922(q)(2)(A) runs afoul of the Second

Amendment to the United States Constitution. The Government filed a response in opposition

(#31). Having considered the motion, the Government’s response, the record, the applicable law,

and the relevant history, the court is of the opinion that the motion should be denied.

I. Background

Until July 2022, Allam lived with his family at their home in Brooklyn, New York. At

that time, Allam left New York and headed toward the west coast. Allam left in his father’s SUV,

a black Toyota RAV4 (“SUV”), bearing a New York license plate. Early into Allam’s trip, he

stopped at a gun store in Pennsylvania. There, he purchased a Diamondback model DB15—an

1 The Fifth Circuit originally filed its panel opinion, United States v. Rahimi, 61 F.4th 443 (5th

Cir. 2023), on February 2, 2023. On March 2, 2023, however, the Fifth Circuit withdrew its February

opinion and substituted it with the above-cited panel opinion.

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AR-15-platform rifle.2 After Allam’s firearm purchase, he proceeded to California, where he

stayed for a few months until departing for Texas in December 2022. 

Allam arrived in Beaumont, Texas, some time in early January 2023. It appears that Allam

had been living in the SUV since he left New York and continued to do so after coming to

Beaumont. The Beaumont Police Department (“BPD”) became acutely aware of Allam’s presence

in Beaumont after receiving multiple complaints reporting that Allam would park for extended

periods of time around St. Anthony Cathedral Basilica School (“School”) and Temple Emanuel,

a Jewish synagogue. Between January 24, 2023, and Allam’s arrest on January 29, 2023, he

consistently parked on the south-east side of Forsythe Street directly across from School grounds

for hours on end. Allam’s unusual activity concerned the School’s principal, which motivated her

to call BPD several times each day. Various members of the School’s community asked Allam

to move the SUV, and BPD officers interacted with Allam upwards of nine times during his stay

on Forsythe Street. Allam usually parked the SUV approximately 50 feet from the School’s

playground. Additionally, during Allam’s time on Forsythe Street, School students would

periodically cross Forsythe Street to attend mass at the Basilica, which is off School property. 

On the night of January 29, 2023, a BPD officer was posted on Forsythe Street to monitor

Allam. Once Allam moved the SUV from its parked position, the BPD officer stopped him for

2

“The ArmaLite Rifle, design 15 is [a] rifle platform commonly abbreviated AR–15, a registered

trademark of Colt’s Inc. AR–15, Registration No. 0,825,581.” Def. Distributed v. U.S. Dep’t of State,

838 F.3d 451, 461 n.1 (5th Cir. 2016) (Jones, J., dissenting); see Lucio-Vasquez v. City of Aurora, No.

21-CV-2756-WJM-MDB, 2023 WL 2891009, at *3 n.5 (D. Colo. Apr. 11, 2023) (“The term ‘AR-15’

is a reference to the Colt ArmaLite Rifle-15. Since the patent to the gas operating system that made Colt’s

AR-15 so successful expired in 1977, the term ‘has become a catchall that includes a variety of weapons

that look and operate similarly, including the Remington Bushmaster, the Smith & Wesson M&P15[,] and

the Springfield Armory Saint.’” (quoting Ali Watkins, John Ismay & Thomas Gibbons-Neff, Once Banned,

Now Loved and Loathed: How the AR-15 Became “America’s Rifle,” N.Y. TIMES (Mar. 3, 2018),

https://www.nytimes.com/2018/03/03/us/politics/ar-15-americas-rifle.html.)). 

2

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a traffic violation, and additional BPD officers arrived as backup. Allam repeatedly failed to

comply with many of the BPD officers’ instructions, and he was eventually arrested. Upon

conducting an inventory search, BPD officers found, among other things,3the DB15 rifle, 150

rounds of ammunition, and a loaded thirty-round magazine.4 The location of the stop and Allam’s

subsequent arrest, as well as where he parked on Forsythe Street, was within 1,000 feet of the

School’s property.5

On February 1, 2023, a grand jury in the Eastern District of Texas returned a one-count

Indictment charging Allam with possession of a firearm in a school zone, in violation of 18 U.S.C.

§ 922(q)(2)(A), which provides: 

3 Allam appeared before United States Magistrate Judge Christine L. Stetson on February 9, 2023,

for a detention hearing. In Judge Stetson’s Order of Detention (#29), she noted that in addition to the

DB15 rifle, ammunition, and the magazine, there were various other items seized from Allam’s vehicle

“including children’s clothing . . . questionable magazine articles regarding terrorist events, and journal

entries related to gun violence that mention rape, murder, killing moms, the president is dead, taking the

AR in, taking no hostage, and blow up the base.” BPD officers also found a “plastic marijuana grinder”

containing “marijuana residue,” “approximately one ounce of suspected synthetic marijuana,” and a “white

powdery substance . . . wrapped up in a piece of loose leaf paper” that “field tested positive for

cocaine” (#s 35, 42).

4 The DB15 rifle was found under the SUV’s rear passenger seat. The rifle was in its original,

unlocked box. Additionally, the rifle was unloaded and the thirty-round magazine was found in a bag

behind the driver’s seat, along with the additional rounds of ammunition. 

5

 On February 6, 2023, Allam filed a Motion to Suppress Evidence (#21), wherein he sought to

suppress evidence found in the SUV as a result of an unlawful arrest and search. United States Magistrate

Judge Zack Hawthorn held a hearing on Allam’s motion on March 20, 2023. In Judge Hawthorn’s Report

and Recommendation (#42), signed on April 24, 2023, he found that:

[T]he BPD officers lawfully stopped and detained Allam’s vehicle for violating several

provisions of the Texas Transportation Code, lawfully arrested Allam for committing such

traffic violations, satisfied their burden in showing they conducted a lawful inventory of

Allam’s vehicle, and accordingly, had probable cause to search the rest of his vehicle once

they discovered illicit contraband.

As a consequence, Judge Hawthorn recommended that this court deny Allam’s Motion to Suppress. By

order (#46) signed on May 10, 2023, the court adopted Judge Hawthorn’s Report and Recommendation.

3

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(2)(A) It shall be unlawful for any individual knowingly to possess a firearm that

has moved in or that otherwise affects interstate or foreign commerce at a place that

the individual knows, or has reasonable cause to believe, is a school zone.6

(B) Subparagraph (A) does not apply to the possession of a firearm--

(i) on private property not part of school7grounds;

(ii) if the individual possessing the firearm is licensed to do so by the State

in which the school zone is located or a political subdivision of the State,

and the law of the State or political subdivision requires that, before an

individual obtains such a license, the law enforcement authorities of the

State or political subdivision verify that the individual is qualified under law

to receive the license;

(iii) that is--

(I) not loaded; and

(II) in a locked container, or a locked firearms rack that is on a

motor vehicle;

(iv) by an individual for use in a program approved by a school in the

school zone;

(v) by an individual in accordance with a contract entered into between a

school in the school zone and the individual or an employer of the

individual;

(vi) by a law enforcement officer acting in his or her official capacity; or

(vii) that is unloaded and is possessed by an individual while traversing

school premises for the purpose of gaining access to public or private lands

open to hunting, if the entry on school premises is authorized by school

authorities.

On February 7, 2023, Allam filed the pending motion to dismiss pursuant to Federal Rule of

Criminal Procedure 12(b)(3)(B). Allam contends that 18 U.S.C. § 922(q)(2)(A), in conjunction

with 18 U.S.C. § 921(a)(26)(B),8is facially unconstitutional because it violates the Second

6

“The term ‘school zone’ means--(A) in, or on the grounds of, a public, parochial or private

school; or (B) within a distance of 1,000 feet from the grounds of a public, parochial or private school.”

18 U.S.C. § 921(a)(26).

7

“The term ‘school’ means a school which provides elementary or secondary education, as

determined under State law.” 18 U.S.C. § 921(a)(27).

8 Allam challenges 18 U.S.C. § 922(q)(2)(A) only to the extent that it prohibits the possession of

a firearm within a distance of 1,000 feet from the school grounds. He does not contend that 18 U.S.C.

§ 922(q)(2)(A), in conjunction with 18 U.S.C. § 921(a)(26)(A), is unconstitutional.

4

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Amendment, relying upon Bruen and Rahimi. The Government opposes Allam’s motion,

contending that 18 U.S.C. § 922(q)(2)(A) is constitutional despite both Bruen and Rahimi.

II. Analysis

A. Procedural Mechanism

Federal Rule of Criminal Procedure 12(b)(3)(B) permits a court to dismiss a defective

indictment. An indictment predicated on a statute that is unconstitutional is defective and, thus,

must be dismissed. United States v. Barber, No. 4:20-CR-384-SDJ, 2023 WL 1073667, at *2

(E.D. Tex. Jan. 27, 2023) (“[A]n indictment premised on a statute that is unconstitutional must

be dismissed.”); United States v. Brown, 715 F. Supp. 2d 688, 689 (E.D. Va. 2010); see In re

Civil Rights Cases, 109 U.S. 3, 8-9 (1883) (“An indictment is defective if it alleges a violation of

an unconstitutional statute.”). 

B. Second Amendment Challenge

The Second Amendment provides: “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.” 

U.S. CONST. amend. II. In District of Columbia v. Heller and McDonald v. Chicago, the

Supreme Court “recognized that the Second and Fourteenth Amendments protect the right of an

ordinary, law-abiding citizen to possess a handgun in the home for self-defense.”9 Bruen, 142 S.

9

Prior to the Supreme Court’s decision in Heller, in United States v. Emerson, the Fifth Circuit

held that the Second Amendment “protects the right of individuals, including those not then actually a

member of any militia or engaged in active military service or training, to privately possess and bear their

own firearms.” 270 F.3d 203, 260 (5th Cir. 2001), cert. denied, 536 U.S. 907 (2002); see Rahimi, 61

F.4th at 450 (“In Emerson, we held that the Second Amendment guarantees an individual right to keep and

bear arms—the first circuit expressly to do so.”). “However, Emerson recognized that the Second

Amendment right wassubject to ‘limited, narrowly tailored specific exceptions or restrictionsfor particular

cases that are reasonable and not inconsistent with the right of Americans generally to individually keep

and bear their private arms as historically understood in this country.’” Barber, 2023 WL 1073667, at

*2 (quoting Emerson, 270 F.3d at 261).

5

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Ct. at 2122 (citing District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. Chicago,

561 U.S. 742 (2010)). Recently, in Bruen, the Supreme Court held, “consistent with Heller and

McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a

handgun for self-defense outside the home.” Id. 

1. Bruen’s Framework

Before Bruen, and in response to the Supreme Court’s decision in Heller, circuit courts

“coalesced around a similar ‘two-step inquiry for analyzing laws that might impact the Second

Amendment.’” Rahimi, 61 F.4th at 450 (quoting United States v. McGinnis, 956 F.3d 747, 753

(5th Cir. 2020), cert. denied, 141 S. Ct. 1397 (2021)). Courts would first “ask ‘whether the

conduct at issue falls within the scope of the Second Amendment right.’ To make that

determination, ‘we look to whether the law harmonizes with the historical traditions associated

with the Second Amendment.’” McGinnis, 956 F.3d at 754 (quoting Nat’l Rifle Ass’n of Am., Inc.

v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 194 (5th Cir. 2012), cert.

denied, 571 U.S. 1196 (2014)). “If the conduct fell outside the scope of the Second Amendment

right, then the challenged law was constitutional.” Rahimi, 61 F.4th at 450 (citing McGinnis, 956

F.3d at 754). “But if the conduct fell within the scope of the right, then we proceeded to the

second step of the analysis, which applied either intermediate or strict scrutiny.” Id. 

Bruen altered the structure of the Second Amendment analysis and set out the framework

that must be applied to Second Amendment challenges going forward. The Supreme Court

6

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rejected the circuit courts’ two-step approach and held that “it is one step too many.”10 Bruen,

142 S. Ct. at 2127. Accordingly, Bruen articulated a new framework: 

[W]hen the Second Amendment’s plain text covers an individual’s conduct, the

Constitution presumptively protects that conduct. To justify its regulation, the

government may not simply posit that the regulation promotes an important

interest. Rather, the government must demonstrate that the regulation is consistent

with this Nation’s historical tradition of firearm regulation. Only if a firearm

regulation is consistent with this Nation’s historical tradition may a court conclude

that the individual’s conduct falls outside the Second Amendment’s unqualified

command.

Id. at 2126 (internal quotation marks and citations omitted); see Rahimi, 61 F.4th at 450. 

2. Step One: The Second Amendment’s Plain Text

At the first step of Bruen’s framework, a court must determine whether “the Second

Amendment’s plain text covers an individual’s conduct.” Bruen, 142 S. Ct. at 2126. Before

analyzing whether Allam’s conduct falls within the scope of the Second Amendment,11the court

10

In Bruen, Justice Thomas stated that while “[s]tep one of the predominant framework is broadly

consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by

history . . . Heller and McDonald do not support applying means-end scrutiny in the Second Amendment

context.” 142 S. Ct. at 2127. Justice Thomas also noted that the Supreme Court “looked to history

because ‘it has always been widely understood that the Second Amendment . . . codified a pre-existing

right.’” Id. (quoting Heller, 554 U.S. at 592). Justice Thomas further noted that although the Court

mentioned in Heller that: 

[T]he ban “would fail constitutional muster” “[u]nder any of the standards of scrutiny that

we have applied to enumerated constitutional rights,” we did not engage in means-end

scrutiny when resolving the constitutional question. Instead, we focused on the

historically unprecedented nature of the District’s ban, observing that “[f]ew laws in the

history of our Nation have come close to [that] severe restriction.”

Id. (citations omitted) (quoting Heller, 554 U.S. at 628-29).

11 Or, rather, as discussed below, whether 18 U.S.C. § 922(q)(2)(A) prohibits conduct covered

by the Second Amendment. See United States v. Quiroz, No. PE:22-CR-00104-DC, 2022 WL 4352482,

at *3 (W.D. Tex. Sept. 19, 2022); see also Barber, 2023 WL 1073667, at *5 (“The burdened conduct at

issue in this case is [the defendant’s] possession of a type of AR-15 semi-automatic rifle in his home.”);

United States v. Holton, No. 3:21-CR-0482-B, 2022 WL 16701935, at *2 (N.D. Tex. Nov. 3, 2022)

(“The Court first determines ‘whether the plain text of the Second Amendment protects’ the conduct

7

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must determine whether Allam “as an individual can claim protection under the Second

Amendment.” United States v. Connelly, No. EP-22-CR-229(2)-KC, 2023 WL 2806324, at *4

(W.D. Tex. Apr. 6, 2023). 

a. The Scope of “The People”

In Rahimi, the Fifth Circuit noted “that the words ‘the people’ in the Second Amendment

have been interpreted throughout the Constitution to ‘unambiguously refer[ ] to all members of

the political community, not an unspecified subset.’” Rahimi, 61 F.4th at 451 (quoting Heller,

554 U.S. at 580). Rahimi “rejected the argument that ‘non-law-abiding’ people could be excluded

from the Second Amendment’s scope, reasoning that such an interpretation of the Amendment

‘admits to no true limiting principle.’” Connelly, 2023 WL 2806324, at *4 (quoting Rahimi, 61

F.4th at 453). Moreover, although Heller and Bruen “refer to ‘law-abiding, responsible citizens’

in discussing the amendment’s scope (Bruen adds ‘ordinary, law-abiding citizens’),” and “there

is some debate over the extent to which the Court’s ‘law-abiding’ qualifier constricts the Second

Amendment’s reach,” the Fifth Circuit held that “Heller’s reference to ‘law-abiding, responsible’

citizens meant to exclude from the Court’s discussion groups that have historically been stripped

of their Second Amendment rights, i.e., groups whose disarmament the Founders ‘presumptively’

tolerated or would have tolerated”—such as felons and the mentally ill.12 Rahimi, 61 F.4th at

regulated by these statutes.” (quoting Bruen, 142 S. Ct. at 2134)).

12 The Fifth Circuit noted that “in context, Heller simply uses ‘law-abiding, responsible citizens’

as shorthand in explaining that its holding (that the amendment codifies an individual right to keep and bear

arms) should not ‘be taken to cast doubt on longstanding prohibitions on the possession of firearms by

felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools

and government buildings.’” Rahimi, 61 F.4th at 451 (quoting Heller, 554 U.S. at 626-27). Heller

mentioned longstanding prohibitions on possessing firearms in “sensitive places” in the same breath that

it mentions felons and the mentally ill—those individuals who have been stripped of their Second

Amendment right. Specifically, Heller notes:

8

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451-52 (quoting Heller, 554 U.S. at 626-27). Thus, Rahimi “suggests that if an individual belongs

to a group that has long been prohibited from possessing firearms, the Second Amendment may

not protect that individual at all, even if their conduct would otherwise fall within its scope.” 

Connelly, 2023 WL 2806324, at *4.

Nevertheless, Allam, like Rahimi,13does not fall into any group that has “historically been

stripped of their Second Amendment rights.” Instead, the Government appears to contend that,

because Allam was not possessing a firearm in his vehicle for the purpose of self-defense, his

conduct is not protected by the Second Amendment.14 The Government relies on language from

Although we do not undertake an exhaustive historical analysis today of the full scope of

the Second Amendment, nothing in our opinion should be taken to cast doubt on

longstanding prohibitions on the possession of firearms by felons and the mentally ill, or

laws forbidding the carrying of firearms in sensitive places such as schools and

government buildings, or laws imposing conditions and qualifications on the commercial

sale of arms.

554 U.S. at 626-27. Courts may be inclined to hold that individuals subject to all “longstanding

prohibitions” (possession by felons and the mentally ill) and “longstanding” “laws” (forbidding the

possession of firearms within sensitive places) regarding firearm possession may not be protected by the

Second Amendment (or, in other words, may be excluded at step one), and, thus, may not be

“law-abiding, responsible citizens.” Accordingly, the court will conduct the sensitive-places analysis

within step one of Bruen’s framework.

13 Rahimi was far from a model citizen. In fact, he was involved in five separate shootings in little

over a month where he needlessly discharged a firearm, both in the air and in the direction of other

individuals. Moreover, “while he was suspected of other criminal conduct at the time, Rahimi was not

a convicted felon or otherwise subject to another ‘longstanding prohibition[ ] on the possession of firearms’

that would have excluded him,” thus, Rahimi was able to avail himself of the Second Amendment’s

protection. Rahimi, 61 F.4th at 452 (quoting Heller, 554 U.S. at 626-27).

14 A more narrow interpretation of the Government’s contention would be that the Second

Amendment does not apply to an individual who sits in his vehicle for long periods of time just outside a

school’s property or to an individual who maintains some mal-intent. The Government fails to elucidate

its view. The Government contends that Allam’s conduct was “consistent with that of a potential shooter

casing the scene and gearing up,” arguing that, from these actions, the court must presume that Allam had

some malicious intent unless he can prove otherwise, i.e., that he possessed a firearm for the purpose of

self-defense. The Government’s contention, however compelling on itsface, is problematic. For example,

when an individual is charged with attempting conduct that would constitute a criminal offense if it were

completed, requiring the Government to prove an overt act (some actus reus) ensures that mere thought

9

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Bruen stating that the question before the Court at step one was “whether the plain text of the

Second Amendment protects [the petitioners’] proposed course of conduct—carrying handguns

crimes (penalizing a mens rea alone) are not prosecuted. Depriving an individual of a constitutional right

for his or her intent alone is troubling for the same reasons. While Allam’s conduct (sitting in his car on

a public roadway just outside School grounds for hours and days at a time) may be disturbing, that conduct

is not unlawful per se, nor is any intent that may be imputed to Allam based on that conduct unlawful on

its own. The Government’s theory would effectively deprive individuals of their Second Amendment right

by alleging only that such individuals had some malicious intent. This is a much different situation than

the Government’s charging an individual with a criminal violation containing an intent requirement (after

a conviction of which the individual could be deprived of certain rights). The Government’s theory would

divest the right with no process at all. Moreover, the Second Amendment right should not be “readily

divested, such that ‘a person could be in one day and out the next.’” Rahimi, 61 F.4th at 452-53 (quoting

Kanter v. Barr, 919 F.3d 437, 452 (7th Cir. 2019) (Barrett, J., dissenting)).

In any event, to support its theory, the Government references Judge Ho’s concurrence in Rahimi,

asserting that Rahimi “does not suggest that, for the sake of ‘security’ and ‘free[dom],’ U.S. CONST.

amend. II, the government must wait until after an attack to respond to conduct like Allam’s.” The

Government is correct. “Arrest and incarceration naturally entail the loss of a wide range of

liberties—including the loss of access to weapons.” Rahimi, 61 F.4th at 464 (Ho, J., concurring); State

v. Buzzard, 4 Ark. 18, 21 (1842) (Ringo, C.J.) (“Persons accused of crime, upon their arrest, have

constantly been divested of their arms, without the legality of the act having ever been questioned.”). “In

addition, the government can detain and disarm, based not just on acts of violence, but criminal threats of

violence as well.” Rahimi, 61 F.4th at 464 (Ho, J., concurring) (citing United States v. Ackell, 907 F.3d

67 (1st Cir. 2018) (upholding criminal stalking law)). If an individual engages in chargeable conduct that

would indicate that he or she is likely to commit some act of violence, it is incumbent on the Government

to charge and arrest that person for such conduct. 

Specifically, the Government argues that “the Fifth Circuit did not say one way or the other

whether the Second Amendment would have extended to Rahimi’s conduct if, e.g., he had stalked his

ex-girlfriend with a rifle in hand.” This assertion is not entirely consistent with Rahimi. The Fifth Circuit

indicated that there are certain classes of individuals who may be stripped of their Second Amendment right

(felons and the mentally ill), a class in which Rahimi did not fall, and Judge Ho indicated that the proper

course of conduct when an individual poses a threat to another (when stalking, for example) is to detain

and disarm that person if his or her conduct is criminally prohibited. See id. Neither Judge Wilson, who

authored the majority opinion, nor Judge Ho seemed to indicate that an individual’s Second Amendment

right is stripped based on having a particular intent or engaging in certain conduct (arguably excluding

conduct equating to a longstanding prohibition as discussed below). The court seemed to recognize that

it is the Government’s obligation to charge and detain individuals who pose a threat. At that point, the

individual will lose certain liberties such as access to weapons. “[T]he [Second Amendment] right [is] not

a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

Bruen, 142 S. Ct. at 2128 (quoting Heller, 554 U.S. at 610). The Government may charge and convict

an individual if he or she violates a criminal statute which may or may not necessitate some intent

requirement. However, removing an individual’s Second Amendment right based on the Government’s

assertion of some mal-intent alone is “more befitting the fictional movie ‘Minority Report’ than

modern-day America.” See Andrews v. Marshall, 845 F. App’x 849, 855 (11th Cir. 2021) (citing

MINORITY REPORT (20th Century Fox 2002)).

10

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publicly for self-defense.” Bruen, 142 S. Ct. at 2134. It further asserts that, because Allam

“invokes the Second Amendment,” at step one, he must satisfy the “initial burden of showing that

it applies to his conduct.” The Government’s argument, however, is quickly deflated. 

In Bruen, Brandon Koch and Robert Nash sued the New York State Police, the entity that

oversees the enforcement of New York’s firearms licensing laws, for declaratory and injunctive

relief, “alleging that respondents violated their Second and Fourteenth Amendment rights by

denying their unrestricted-license applications on the basis that they had failed to show ‘proper

cause,’ i.e., had failed to demonstrate a unique need for self-defense.” Id. at 2125. The

petitioners alleged that carrying a handgun in public for the purpose of self-defense—their

“proposed course of conduct” and the conduct which New York law prohibited in the absence of

“proper cause”—was protected by the Second Amendment. Id. In Allam’s case, the proper

question at step one is whether the conduct prohibited by 18 U.S.C. § 922(q)(2)(A) falls within

the Second Amendment’s scope. See Quiroz, 2022 WL 4352482, at *3 (“Bruen’s first step,

however, requires only that ‘the Second Amendment’s plain text cover the conduct.’ And the

prohibited conduct under § 922(n) is ‘receipt’ of a firearm—nothing more.”); see also Barber,

2023 WL 1073667, at *5; Holton, 2022 WL 16701935, at *2 (“The Court first determines

‘whether the plain text of the Second Amendment protects’ the conduct regulated by these

statutes.” (quoting Bruen, 142 S. Ct. at 2134)). 

Moreover, in this case, Allam mounts a facial challenge; thus, the court must focus on the

text of the statute at issue and not the particular set of circumstances in this case.15 Field Day,

15 Although Allam labels his motion as both an as-applied and a facial challenge, his arguments

do not clearly distinguish between the two and, in substance, primarily discuss the statute’s facial validity.

The only argument Allam seems to make in support of his as-applied challenge is his contention that he

“was arrested on a Sunday evening” when “[n]o children were in school or present.” Allam asserts that

11

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LLC v. County of Suffolk, 463 F.3d 167, 174 (2d Cir. 2006) (noting that a court evaluating “[a]

‘facial challenge’ to a statute considers only the text of the statute itself, not its application to the

particular circumstances of an individual”). Furthermore, construing Heller, the Supreme Court

in Bruen “flatly rejected any means-end scrutiny as part of this analysis, [Bruen, 142 S. Ct.] at

2129, such that if a statute is inconsistent with the Second Amendment’s text and historical

understanding, then it falls under any circumstances.” Rahimi, 61 F.4th at 453 (citing United

States v. Salerno, 481 U.S. 739, 745 (1987); Freedom Path, Inc. v. Internal Revenue Serv., 913

F.3d 503, 508 (5th Cir. 2019) (“A facial challenge to a statute considers only the text of the statute

itself, not its application to the particular circumstances of an individual.”)). Thus, the question

at step one becomes, because Allam is a part of “the people” whom the Second Amendment

protects, does Allam’s conduct—i.e., the conduct prohibited by 18 U.S.C. § 922(q)(2)(A)—fall

within the scope of the Second Amendment’s “plain text.” Bruen, 142 S. Ct. at 2126; Rahimi,

61 F.4th at 454.

b. The Second Amendment’s “Plain Text”

The Second Amendment provides that the people’s right “to keep and bear Arms, shall not

be infringed.” U.S. CONST. amend. II. Allam is indicted under 18 U.S.C. § 922(q)(2)(A), which

“the imposition here is operable even when the school is not operating and children are not present.”

Allam, however, does not contend that he possessed a firearm within § 922(q)(2)(A)’s 1,000-foot zone

only when the School was not “operating.” Prior to his arrest, Allam had been observed within 1,000 feet

of School property numerous times by School officials, parents, and law enforcement. Additionally, at

the time Allam was arrested, he was living out of the SUV. He had purchased the DB15 months earlier,

and the DB15 was found under the back seat of the SUV, in its original box, with other items on top of

and scattered around it. Accordingly, although Allam was arrested on a Sunday night, it appears that he

possessed the rifle within the school zone while school was in session, and he makes no assertion to the

contrary. Thus, the court finds that, to the extent Allam mounts an as-applied challenge, it must fail. See

Rahimi, 61 F.4th at 453; United States v. Posada, No. EP-22-CR-1944(1)-KC, 2023 WL 3027877, at *6

n.6 (W.D. Tex. Apr. 20, 2023).

12

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makes it “unlawful for any individual knowingly to possess a firearm that has moved in or that

otherwise affects interstate or foreign commerce at a place that the individual knows, or has

reasonable cause to believe, is a school zone.” 18 U.S.C. § 922(q)(2)(A) (emphasis added).

Bruen’s first step requires only that the Second Amendment’s plain text cover the conduct

burdened by 18 U.S.C. § 922(q)(2)(A). See Bruen, 142 S. Ct. at 2126; Rahimi, 61 F.4th at 454;

Barber, 2023 WL 1073667, at *5; see also Connelly, 2023 WL 2806324, at *5 (“Under Bruen

and Rahimi, the Court must first decide whether § 922(g)(3) burdens conduct protected by the

Second Amendment.”); Quiroz, 2022 WL 4352482, at *3. The conduct burdened by 18 U.S.C.

§ 922(q)(2)(A) is the “possession” of a firearm while in a school zone. “[T]he ‘textual elements’

of the Second Amendment’s operative clause—‘the right of the people to keep and bear Arms,

shall not be infringed’—‘guarantee the individual right to possess and carry weapons in case of

confrontation.’” Bruen, 142 S. Ct. at 2134 (quoting Heller, 554 U.S. at 592). 

“‘[P]ossession’ is included within the meaning of ‘keep’” as used in the Second

Amendment. Rahimi, 61 F.4th at 454 (citing Bruen, 142 S. Ct. at 2134-35); Barber, 2023 WL

1073667, at *5 (“In Heller, the Supreme Court made clear that the Second Amendment’s right to

‘keep and bear arms’ includes possession of weapons, such as firearms, and ‘extends, prima facie,

to all instruments that constitute bearable arms.’”); see Connelly, 2023 WL 2806324, at *5. 

Moreover, Bruen clarified that the Second Amendment right to possess and carry firearms applies

outside the home. See Bruen, 142 S. Ct. at 2135 (“After all, the Second Amendment guarantees

an ‘individual right to possess and carry weapons in case of confrontation,’ Heller, 554 U.S. at

592, and confrontation can surely take place outside the home.”).16 Furthermore, “the Second

16

“Heller further confirmed that the right to ‘bear arms’ refers to the right to ‘wear, bear, or

carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready

13

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Amendment protects only the carrying of weapons that are those ‘in common use at the time,’ as

opposed to those that ‘are highly unusual in society at large.’” Bruen, 142 S. Ct. at 2143 (quoting

Heller, 554 U.S. at 627). The Government does not dispute that, in this case, the type of firearm

possessed by Allam—an AR-15-platform rifle—is “in common use,” such that it falls within the

scope of the amendment.17See Barber, 2023 WL 1073667, at *5; see also Rahimi, 61 F.4th at

454 (quoting Bruen, 142 S. Ct. at 2134-35).

Allam’s conduct—possession of a firearm in a school zone in violation of 18 U.S.C.

§ 922(q)(2)(A)—clearly falls within the scope of the Second Amendment’s “plain text.” 

Nevertheless, Allam, “like any other citizen, may have forfeited his Second Amendment rights

if his conduct ran afoul of a ‘lawful regulatory measure[ ]’ ‘prohibiting . . . the possession of

firearms,’ . . . that is consistent with ‘the historical tradition that delimits the outer bounds of the

right to keep and bear arms.’” Rahimi, 61 F.4th at 453-54 (quoting Heller, 554 U.S. at 626-27

& 627 n.26; Bruen, 142 S. Ct. at 2127). Accordingly, Allam may avail himself of the protections

of the Second Amendment unless the area within 1,000 feet of school property is a “sensitive

place,” such that the location is not protected by the right. 

for offensive or defensive action in a case of conflict with another person.’” Bruen, 142 S. Ct. at 2134

(quoting Heller, 554 U.S. at 584).

17

“The AR-15, which has been described as America’s ‘most popular semi-automatic rifle,’ is

covered under the [Second] Amendment’s text.” Barber, 2023 WL 1073667, at *5 (quoting Heller v.

District of Columbia (Heller II), 670 F.3d 1244, 1287 (D.C. Cir. 2011) (Kavanaugh, J., dissenting)).

“[C]ourts have repeatedly recognized that modern, semi-automatic rifles like the AR-15 are in common

use by law-abiding citizens for self-defense.” Id. “Approximately 1.6 million AR-15s alone have been

manufactured since 1986, and in 2007 this one popular model accounted for 5.5 percent of all firearms,

and 14.4 percent of all rifles, produced in the U.S. for the domestic market.” Heller II, 670 F.3d at 1261

(Noting that “it [was] clear enough in the record that semi-automatic rifles and magazines holding more

than ten rounds are indeed in ‘common use.’”). 

14

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c. The “Sensitive Places” Doctrine

The Supreme Court “gave a name—‘sensitive places’—to the idea that certain locations (as

do certain people, arms, and activities) fall outside the boundaries of the Second Amendment.” 

Joseph Blocher, Jacob D. Charles & Darrell A.H. Miller, “A Map Is Not The Territory”: The

Theory and Future of Sensitive Places Doctrine, N.Y.U. L. REV. ONLINE (forthcoming 2023)

(manuscript at 3), https://papers.ssrn.com/sol3/ papers.cfm?abstract_id= 4325454 [hereinafter

“A Map Is Not The Territory”]. When a location is deemed to be a sensitive place, statutes

prohibiting the possession of a firearm, even by a licensed individual, are constitutional. See

Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1122 (10th Cir. 2015), cert. denied, 577 U.S. 1216

(2016). In Heller, the Supreme Court stated that “nothing in our opinion should be taken to cast

doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill,

or laws forbidding the carrying of firearms in sensitive places such as schools and government

buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” 554

U.S. at 626-27. The Court later restated this holding in McDonald. 561 U.S. at 786 (citing

Heller, 554 U.S. at 626-27). 

Last year, in Bruen, the Supreme Court reiterated its prior holdings regarding such

“longstanding” “laws forbidding the carrying of firearms in sensitive places such as schools and

government buildings.” 142 S. Ct. at 2133 (quoting Heller, 554 U.S. at 626); accord United

States v. Power, No. 20-PO-331-GLS, 2023 WL 131050, at *3 (D. Md. Jan. 9, 2023); United

States v. Robertson, No. 22-PO-867-GLS, 2023 WL 131051, at *3 (D. Md. Jan. 9, 2023). The

Supreme Court noted that “[a]though the historical record yields relatively few 18th- and

19th-century ‘sensitive places’ where weapons were altogether prohibited—e.g., legislative

15

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assemblies, polling places, and courthouses—we are also aware of no disputes regarding the

lawfulness of such prohibitions.” Bruen, 142 S. Ct. at 2133 (citing D. Kopel & J. Greenlee, The

“Sensitive Places” Doctrine, 13 CHARLESTON L. REV. 205, 229-36, 244-47 (2018); Brief for

Independent Institute as Amicus Curiae, United States v. Bruen 142 S. Ct. 2111 (2022) (No.

20-843)). Thus, the Court “assume[d] it settled that these locations were ‘sensitive places’ where

arms carrying could be prohibited consistent with the Second Amendment”—and, thus, found such

prohibitions to be consistent with the Nation’s historical tradition of firearm regulation. Id. 

Further, the Court determined that “courts can use analogies to those historical regulations of

‘sensitive places’ to determine that modern regulations prohibiting the carry of firearms in new and

analogous sensitive places are constitutionally permissible.” Id. 

Although the Supreme Court did not provide a clear explanation of the exact definition of

a “sensitive place,” by stating that courts may reason by analogy, it clarified that new and

analogous sensitive places will be similar to those which it determined to be longstanding. 

Accordingly, the reasons for firearms regulations in sensitive places—both old and new—“cannot

be understood purely locationally.” “A Map Is Not The Territory,” supra, at 18. Considering the

places that the Supreme Court has recognized to be sensitive, “whether a place is sensitive depends

on the people found there or the activities that take place there.” Id. at 20 (internal quotation

marks omitted); GeorgiaCarry.Org, Inc. v. Georgia, 764 F. Supp. 2d 1306, 1319 (M.D. Ga.

2011), aff’d, 687 F.3d 1244 (11th Cir. 2012). 

16

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i. Post-Heller, But Pre-Bruen “Sensitive Places”

The Government contends that the area within 1,000 feet of school grounds should be

classified as a “sensitive place.”18 Prior to Bruen, courts were left to find their own answers as

to what constitutes a “sensitive place.” Kopel & Greenlee, supra, at 207. Accordingly, the

Government relies on four post-Heller, but pre-Bruen cases to support its position.19 First, the

Government cites United States v. Dorosan, 350 F. App’x 874 (5th Cir. 2009), cert. denied, 559

U.S. 983 (2010). Dorosan was convicted “for bringing a handgun onto property belonging to the

United States Postal Service [(“Postal Service”)]” in “violation of 39 C.F.R. § 232.1(l), which

prohibits the storage and carriage of firearms on Postal Service property.20Id. at 875. Prior to

discussing the sensitive place exception, the Fifth Circuit acknowledged that “the Postal Service

owned the parking lot where Dorosan’s handgun was found”; thus, “its restrictions on guns

stemmed from its constitutional authority as the property owner.” Id. (citing U.S. CONST. art.

IV, § 3, cl. 2; United States v. Gliatta, 580 F.2d 156, 160 (5th Cir.), cert. denied, 439 U.S. 1048

(1978)). The Fifth Circuit then held that, because “the Postal Service used the parking lot for

18

In its sensitive-places argument, the Government contends that Bruen’s “use of ‘such as’

indicates that a place outside the building may be just as sensitive for Second Amendment purposes.”

Bruen’s use of “such as” comes from its statement at the outset of the sensitive places framework.

Specifically, the court stated, “[c]onsider, for example, Heller’s discussion of ‘longstanding’ ‘laws

forbidding the carrying of firearms in sensitive places such as schools and government buildings.’” Bruen,

142 S. Ct. at 2133 (quoting Heller, 554 U.S. at 626). In context, the Court’s statement seems to be

referring to other places where longstanding laws have forbidden the possession of firearms. See

Robertson, 2023 WL 131051, at *5 (“The Supreme Court identified sensitive places as places ‘such as’

‘schools’ and ‘government buildings.’”). In any event, Bruen does account for the classification of “new

and analogous sensitive places” based on analogies to historical regulations of sensitive places. 

19 For purposes of this analysis, the court assumes that Bruen did not alter or modify the sensitive

places analysis conducted in the various cases upon which the Government relies. 

20

“Notwithstanding the provisions of any other law, rule or regulation, no person while on postal

property may carry firearms, other dangerous or deadly weapons, or explosives, either openly or

concealed, or store the same on postal property, except for official purposes.” 39 C.F.R. § 232.1(l).

17

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loading mail and staging its mail trucks,” i.e., using the parking lot “as a place of regular

government business,” the Postal Service parking lot fell under the “sensitive places” exception

recognized by Heller. Id. (quoting Heller, 554 U.S. at 626). The 1,000-foot zone in this case

differs from the Postal Service parking lot. The area within 1,000 feet of school property is—by

definition—not school property. Nor is all land within this zone government property such that

the federal government’s constitutional authority as a property owner would be implicated. 

Additionally, schools do not conduct the same “business” in this 1,000-foot zone as is conducted

on school grounds, foreclosing the argument that the zone is a place of regular school business. 

See Dorosan, 350 F. App’x at 875. 

Second, the Government relies on Bonidy. 790 F.3d at 1121. Bonidy, “a concealed-carry

permit holder under Colorado law, sued the Postal Service,” challenging the constitutionality of

39 C.F.R. § 232.1(l) by claiming that the regulation violated his right to bear arms for

self-defense. Id. at 1122-23. In Bonidy, the Tenth Circuit concluded that the Postal Service

parking lot was a sensitive place, just like the Postal Service building, and should be “considered

as a single unit with the postal building.” Id. at 1125. The Tenth Circuit’s conclusion was based

on the facts that “it is attached” to and “exclusively serves” the postal building—“[t]here is, in

fact, a drop-off box for the post office in the parking lot, meaning that postal transactions take

place in the parking lot as well as in the building.” Id. The justifications that the Tenth Circuit

found convincing are not applicable in this case. The 1,000-foot zone cannot be considered to be

“a single unit” with a school building or its property. The 1,000-foot zone is not attached in the

sense that a parking lot is attached to a building, and the area within this zone does not

18

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“exclusively serve” a school. The area within 1,000 feet of a school commonly serves the public

at large, such that the area contains public roadways, private residences, and businesses.

Third, the Government contends that United States v. Class, 930 F.3d 460 (D.C. Cir.

2019)21is “[e]specially instructive.” Class was convicted of possessing three firearms in his car

while parked “in one of the many angled parking spots that line the 200 block of Maryland Avenue

SW” (“Maryland Avenue parking lot”) in violation of 40 U.S.C. § 5104(e)(1),22 which “prohibits

the possession of firearms on the grounds of the United States Capitol.” Id. at 462. Class’s

parking place was “approximately 1,000 feet from the entrance to the Capital itself” and the street

on which the parking spot was located was “accessible to the general public.” Id. The parking

place, however, was also “reserved on weekdays (like the Thursday he parked there) for

employees of the House of Representatives” and “marked by a sign indicating a permit is

required.” Id. The D.C. Circuit concluded that the Maryland Avenue parking lot was

“sufficiently integrated with the Capitol for Heller[ ]’s sensitive places exception to apply.” Id.

at 464. 

21 Class’s articulation of the post-Heller two-part analysis, which applied the “appropriate level

of constitutional scrutiny,” was clearly abrogated by Bruen. Bruen, 142 S. Ct. at 2127 n.4 (citing Class,

930 F.3d at 463). The court, however, does not read Bruen to abrogate the D.C. Circuit’s sensitive places

analysis, as it gives no indication that the appellate court’s previous sensitive places holdings were

incorrect. Thus, for the purposes of the sensitive places analysis, the court will consider Class’s holding

to be undisturbed. 

22

 40 U.S.C. § 5104(e)(1) states, in relevant part, that:

(1) Firearms, dangerous weapons, explosives, or incendiary devices.--An individual or

group of individuals--

(A) except as authorized by regulations prescribed by the Capitol Police Board--

(i) may not carry on or have readily accessible to any individual on the

Grounds or in any of the Capitol Buildings a firearm, a dangerous

weapon, explosives, or an incendiary device.

19

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To reach its conclusion, the D.C. Circuit reasoned that “the Maryland Avenue parking lot

may be used during working hours only by Capitol employees with a permit,” which “makes the

area a potential stalking ground for anyone wishing to attack congressional staff and disrupt the

operations of Congress.” Id. Next, the court found that the Maryland Avenue parking lot was

within 1,000 feet of the “entrance to the Capitol, and a block away from the Rayburn House

Office Building.” Id. Finally, the D.C. Circuit relied on the fact that “the owner of the Maryland

Avenue lot, the government—like private property owners—has the power to regulate conduct on

its property.” Id. (citing Adderley v. Florida, 385 U.S. 39 (1966) (observing in the free-speech

context that the government, “no less than a private owner of property, has power to preserve the

property under its control for the use to which it is lawfully dedicated”); Bonidy, 790 F.3d at 1126

(observing that when the U.S. Postal Service acts “as a proprietor rather than as a sovereign, [it]

has broad discretion to govern its business operations according to the rules it deems

appropriate”)). For these three reasons, the D.C. Circuit found the Maryland Avenue parking lot

to be “a single unit with the Capitol building,” and, thus, “a ‘sensitive’ place where firearms

prohibitions are presumptively lawful.” Id.

The 1,000-foot zone at issue in this case is, once again, distinguishable from the Maryland

Avenue parking lot involved in Class. The 1,000-foot zone around a school is not used

exclusively by the school that it surrounds, nor is access to this area restricted to school students

or employees. Additionally, the fact that a similar distance of “less than 1,000 feet” from the

Capitol entrance was at issue in Class is not dispositive. The significance of the distance involved

in Class cannot be separated from the fact that the government owned the property on which the

Maryland Avenue parking lot was located. 

20

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The Government cites additional language from Class, stating that the court “ha[d] little

trouble concluding that the same security interests which permit regulation of firearms ‘in’

government buildings permit regulation of firearms on the property surrounding those buildings

as well,” and that “[a]lthough there is surely some outer bound on the distance Congress could

extend the area of protection around the Capitol without raising Second Amendment concerns,

Congress has not exceeded it here.” Id. While this reasoning would seem to be relevant here,

the fundamental distinction between this case and Class is that the D.C. Circuit was extending the

sensitive place prohibition from inside the Capitol building exclusively to government property

outside the building. Thus, the D.C. Circuit seemed to limit this “outer bound” to property

owned by the government, and used by government employees. In that context, the government’s

role as a property owner was in play. Unlike Class, because the land within 1,000 feet of school

property, to which 18 U.S.C. § 922(q)(2)(A) applies, is not owned by the school, schools are not

acting “as property owners” in this context—a fact that appeared central to the D.C. Circuit’s

determination that the Maryland Avenue parking lot was a sensitive place. 

Finally, the Government briefly cites United States v. Lewis, 50 V.I. 995, 1000 (D.V.I.

2008) for its holding that it “need not decide [ ] what level of scrutiny should apply to post-Heller

challenges to Section 922(q)(2)(A),” because “[i]t is beyond peradventure that a school zone,

where Lewis is alleged to have possessed a firearm, is precisely the type of location of which

Heller spoke.” The court, however, conducts no analysis and provides no reasoning for reaching

its conclusion that the area within 1,000 feet of school property is a sensitive place. 

The District Court of the Virgin Islands recently reiterated this holding in United States

v. Walter, No. 3:20-CR-0039, 2023 WL 3020321 (D.V.I. Apr. 20, 2023). In Walter,

21

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“[r]easoning by analogy to the relevant historic tradition of prohibitions of firearms in the houses

of legislatures, polling places, courthouses, or other areas near core government operations

requiring security of their occupants and prevention of gun violence,” the court held “that the area

within 1,000 feet of the school grounds is within the scope of ‘sensitive places’ as contemplated

by Heller and required to ensure security of the school’s occupants and to prevent gun violence.” 

Id. at *8 (citing Class, 930 F.3d at 464; Lewis, 50 V.I. at 1001). The Walter court then states that

“[§] 922(q)(2)(A) is analogous to this Nation[’]s historical tradition of lawfully disarming citizens

in ‘sensitive places’ and is constitutionally sound.” Id. (citing United States v. Redwood, No. 16

CR 00080, 2016 WL 4398082, at *5 (N.D. Ill. Aug. 18, 2016)). Redwood, however, upheld

§ 922(q)(2)(A) based on means-end scrutiny without finding the 1,000-foot zone to be a “sensitive

place.” Redwood, 2016 WL 4398082, at *5. 

ii. Sensitive Places and School Zones

Rather than labeling the 1,000-foot zone around school property the “school zone,”

because the § 921(a)(26) definition of “school zone” includes school grounds as well as the area

around school property, such a zone can be more accurately characterized as a “buffer zone.” The

Government, relying on the above post-Heller-pre-Bruen cases, contends that this buffer zone

should be classified as a sensitive place just like the school building. As noted above, factors that

make places “sensitive” include circumstances such as “most persons therein are minors (K-12

schools), places that concentrate adversarial conflict and can generate passionately angry emotions

(courthouses, legislatures, polling places), or buildings containing people at acute personal risk

of being targets of assassination (many government buildings).” Kopel & Greenlee, supra, at 290. 

22

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It is of note that when articulating the sensitive places analysis, the Supreme Court “used

the preposition ‘in’ when referring to schools as opposed to using ‘around’ or ‘near’”—i.e.,

“words that might have provided better constitutional protection to [a] 1000-foot perimeter.” Amy

Hetzner, Where Angels Tread: Gun-Free School Zone Laws and an Individual Right to Bear Arms,

95 MARQ.L.REV. 359, 392 (2011); see Kopel & Greenlee, supra, at 290 (“[B]uffer zones are not

sensitive places.”). That is not to say, however, that an “area immediately outside of a school,”

such as a school parking lot or some other school property, is not a sensitive place. Hetzner,

supra, at 392. In fact, consistent with Dorosan, there appears to be no doubt as to the

constitutionality of 18 U.S.C. § 922(q)(2)(A) in conjunction with 18 U.S.C. § 921(a)(26)(A).23

350 F. App’x at 874. The Supreme Court’s use of “in” rather than “around” or “near” poses a

more difficult question for 18 U.S.C. § 922(q)(2)(A)’s buffer zone in light of the fact that the zone

exists only outside of school property.24 Nevertheless, in determining whether a new location is

a “sensitive place,” “courts should look to how similar the location in question is with respect to

its sensitivity, not just its proximity or lack thereof to a [‘sensitive place’].” Kopel & Greenlee,

supra, at 281 (quoting Bonidy, 790 F.3d at 1140 n.10 (Tymkovich, J., concurring in part and

dissenting in part) (“Proximity to a government building, without more, cannot be sufficient to

exempt a location from the Second Amendment.”)). Whether it be a buffer zone, open field, or

23 Defining “school zone” in part as “in, or on the grounds of, a public, parochial or private

school.” 18 U.S.C. § 921(a)(26)(A).

24 Additionally, “[w]hen it referred to schools as sensitive places, the Supreme Court was certainly

cognizant of the federal Gun-Free School Zones Act, which imposes criminal penalties for possession of

a firearm within 1000 feet of school grounds.” Hall v. Garcia, No. C 10-03799 RS, 2011 WL 995933,

at *4 (N.D. Cal. Mar. 17, 2011); see Hetzner, supra, at 392 (“[C]ertainly, the Court was aware of the

existence of laws criminalizing the possession of firearms near schools.”); see also United States v. Lopez,

514 U.S. 549 (1995) (finding the federal Gun-Free School Zones Act of 1990 was held unconstitutional

as outside the scope of Congress’s Commerce Clause power).

23

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another building, a location’s proximity to a predetermined “sensitive place”—standing

alone—cannot be enough also to designate that location a “sensitive place.” 

As noted above, this case is distinguishable from Dorosan, Bonidy, and Class. The

1,000-foot zone does not consist of school property, is not a place of regular school business (such

that the same functions and activities take place in the zone as do on school grounds), and the zone

does not exclusively serve the school which it surrounds. Moreover, the justification commonly

attributed to schools’ classification as “sensitive places” is based on the concentration of minors

contained therein. This justification becomes less persuasive farther away from school grounds. 

Within 1,000 feet of school property, there are often major throughfares, private residences, and

businesses of all sizes. In this “buffer zone,” it cannot be said that “most persons” are minors. 

Thus, the core justifications present in Dorosan, Bonidy, and Class are absent in this case, and all

that remains is the argument that “the buffer zone surrounds a sensitive place.” The “sensitive

places” doctrine is intended to encompass particular locations that are used for a specific purpose,

and it is not intended to encompass vast areas of property that contain numerous locations used

for a vast array of purposes. See Kopel & Greenlee, supra, at 265 (“The thousand-foot radius is

large enough to encompass much unsensitive land in any urban area.”). Hence, such a buffer

zone, including the area within 1,000 feet of school property, simply cannot be deemed a

“sensitive place.” Therefore, the Government has failed to show that the 1,000-foot zone around

a school should be included in the Supreme Court’s identification of “schools” as sensitive places,

or that it is analogous to the sensitive places previously identified by the Supreme Court, such that

it should be considered a new sensitive place.

24

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Accordingly, 18 U.S.C. § 922(q)(2)(A)’s constitutionality turns on whether prohibiting

individuals from possessing a firearm within 1,000 feet of school property is consistent with our

Nation’s historical tradition of firearm regulation. 

3. Step Two: This Nation’s Historical Tradition

“To carry its burden, the Government must point to ‘historical precedent from before,

during, and even after the founding [that] evinces a comparable tradition of regulation.’” Rahimi,

61 F.4th at 454 (quoting Bruen, 142 S. Ct. at 2131-32). “[W]e are not obliged to sift the

historical materials for evidence to sustain [§ 922(q)(2)(A)]. That is [the Government’s] burden.” 

Id. (quoting Bruen, 142 S. Ct. at 2150).25

“The Government need not identify a ‘historical twin’; rather, a ‘well-established and

representative historical analogue’ suffices.” Id. (quoting Bruen, 142 S. Ct. at 2133). “Like all

analogical reasoning, determining whether a historical regulation is a proper analogue for a

distinctly modern firearm regulation requires a determination of whether the two regulations are

‘relevantly similar.’” Bruen, 142 S. Ct. at 2132 (citation omitted). “The Supreme Court distilled

two metrics for courts to compare the Government’s proffered analogues against the challenged

law: how the challenged law burdens the right to armed self-defense, and why the law burdens

that right.” Rahimi, 61 F.4th at 454 (citing Bruen, 142 S. Ct. at 2133). “[W]hether modern and

historical regulations impose a comparable burden on the right of armed self-defense and whether

that burden is comparably justified are central considerations when engaging in an analogical

inquiry.” Bruen, 142 S. Ct. at 2133 (emphasis added); Rahimi, 61 F.4th at 454. 

25 Bruen notes that “[t]he job of judges is not to resolve historical questions in the abstract; it is

to resolve legal questions presented in particular cases or controversies” and “[c]ourts are thus entitled to

decide a case based on the historical record compiled by the parties.” Bruen, 142 S. Ct. at 2130 n.6

(emphasis added).

25

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“As to the degree of similarity required, ‘analogical reasoning under the Second

Amendment is neither a regulatory straightjacket nor a regulatory blank check.’” Rahimi, 61

F.4th at 454 (citing Bruen, 142 S. Ct. at 2133). “[C]ourts should not uphold every modern law

that remotely resembles a historical analogue, because doing so risks endorsing outliers that our

ancestors would never have accepted.” Bruen, 142 S. Ct. at 2133 (internal quotation marks,

alterations, and citations omitted). “On the other hand, ‘even if a modern-day regulation is not

a dead ringer for historical precursors, it still may be analogous enough to pass constitutional

muster.’ The core question is whether the challenged law and proffered analogue are ‘relevantly

similar.’” Rahimi, 61 F.4th at 454 (citing Bruen, 142 S. Ct. at 2132-33) (internal citations

omitted). 

“[W]hen a challenged regulation addresses a general societal problem that has persisted

since the 18th century, the lack of a distinctly similar historical regulation addressing that problem

is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.” 

Bruen, 142 S. Ct. at 2131. “Likewise, if earlier generations addressed the societal problem, but

did so through materially different means, that also could be evidence that a modern regulation

is unconstitutional.” Id. In some cases, the historical analogies will be “relatively simple to

draw”; however, “other cases implicating unprecedented societal concerns or dramatic

technological changes may require a more nuanced approach.” Id. at 2132. “Fortunately, the

Founders created a Constitution—and a Second Amendment—‘intended to endure for ages to

come, and consequently, to be adapted to the various crises of human affairs.’” Id. (citation

omitted). “Although its meaning is fixed according to the understandings of those who ratified

26

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it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically

anticipated.” Id.

a. The Gun-Free School Zones Act of 1990

The Gun-Free School Zones Act of 1990 (“Act”) “was introduced in response to a

‘shocking number’ of incidents of violence against children within the school environment.” The

Lesson of Lopez: The Political Dynamics of Federalism’s Political Safeguards, 119 HARV. L.

REV. 609, 623 (2005) (citing 136 Cong. Rec. 1165 (1990) (statement of Sen. Kohl)). “In his

introduction of the bill, Senator Herb Kohl highlighted three school shootings in the preceding two

years, followed by several statistics regarding the number of handguns in schools and a short

description of the bill.” Id. Senator Kohl “concluded his remarks by claiming that ‘this section

will help keep the area around our schools from becoming sanctuaries for armed criminals and

drug gangs. Gun-free school zones are not a panacea, to be sure, but they are an important step

toward fighting gun violence and keeping our teachers and children safe.’” Robert A. Martinez,

S.O.S. - Saving Our Schools: The Constitutionality of the Gun-Free School Zones Act of 1990,

22 AM. J. CRIM. L. 491, 494 (1995) (citing statement of Sen. Kohl). 

When introducing the Act in the United States House of Representatives, Congressman

Edward Feighan of Ohio “informed his colleagues that, ‘the National School Safety Center [had]

estimate[d] that 135,000 students carried handguns to school daily in 1987 and another 270,000

carried handguns to school at least once.’” Id. (citing 135 Cong. Rec. E3988 (1989) (statement

of Rep. Feighan)); Gun-Free School Zones Act of 1990: Hearing on H.R. 3757 Before the

Subcomm. on Crime of the H. Comm. on the Judiciary, 101st Cong. (1990) [hereinafter Hearing]. 

“Even at this early stage of the Act’s life, observers recognized that Congress’s authority to enact

27

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such a law was questionable.” Martinez, supra, at 494. Nevertheless, the Act passed both houses

of Congress. Id. at 495. President George H.W. Bush, before ultimately signing the bill, posed

concerns regarding the federal law’s overriding of similar state laws. Id.

Such concerns were not addressed until Alfonso Lopez challenged the Act’s

constitutionality. Id. Lopez “arrived at Edison High School in San Antonio, Texas” carrying a

.38 caliber handgun, and once school officials learned of Lopez’s possession, he “was arrested and

charged with violating the Act.” Id. (citing United States v. Lopez, 2 F.3d 1342, 1345 (5th Cir.

1993), aff’d, 514 U.S. 549 (1995)). In the trial court, Lopez “moved to dismiss the indictment,”

claiming that “the act was an unconstitutional exercise of congressional power.” Id. The trial

court, however, rejected this argument, and Lopez was tried and convicted. Id. Lopez then

appealed his conviction to the Fifth Circuit, again claiming that the Act was unconstitutional. Id. 

The Fifth Circuit agreed, holding “that section 922(q), in the full reach of its terms, is invalid as

beyond the power of Congress under the Commerce Clause.”26 Lopez, 2 F.3d at 1367-68. 

The Supreme Court affirmed, holding “that the Act exceeds the authority of Congress ‘[t]o

regulate Commerce . . . among the several States.’” Lopez, 514 U.S. at 551 (quoting U.S.

CONST., art. I, § 8, cl. 3.). “Among other explanations for its decision, the Court noted the lack

of congressional findings explaining how the law regulated interstate commerce.” Huff v.

TeleCheck Servs., Inc., 923 F.3d 458, 466 (6th Cir. 2019) (citing Lopez, 514 U.S. at 562-63). 

“Congress amended the statute to include such findings . . . and to include an

26 Lopez focused only on the Commerce Clause and did not mount a challenge based on the Second

Amendment; thus, the Fifth Circuit did not consider it. Nonetheless, the court noted that “[i]t is also

conceivable that some applications of section 922(q) might raise Second Amendment concerns.” Lopez,

2 F.3d at 1364 n.46. “[T]his orphan of the Bill of Rights may be something of a brooding omnipresence

here.” Id. 

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interstate-jurisdictional prerequisite for a prosecution.” Id. (citing Violent Crime Control and Law

Enforcement Act of 1994, Pub. L. No. 103-322, § 320904, 108 Stat. 1796, 2125-26 (codified as

amended at 18 U.S.C. § 922(q)(1)); Lopez, 514 U.S. at 563 n.4; Omnibus Consolidated

Appropriations Act of, 1997, Pub. L. No. 104-208, § 657, 110 Stat. 3009, 3009-369-71 (codified

as amended at 18 U.S.C. § 922(q)(2)). Since then, courts have upheld the amended statute as a

constitutional exercise of congressional power. Id.

b. The Why and How of § 922(q)(2)(A)

Determining whether the Government has identified a “relevantly similar” historical

analogue requires distilling “‘how’ and ‘why’ § 922[(q)(2)(A)] ‘burden[s] a law-abiding citizen’s

right to armed self-defense.’” Rahimi, 61 F.4th at 455 (quoting Bruen, 142 S. Ct. at 2133).

The text of the statute illuminates “why” it burdens the right to armed self-defense. In

relevant part, § 922(q)(1) states: 

The Congress finds and declares that--

(A) crime, particularly crime involving drugs and guns, is a pervasive, nationwide

problem;

(B) crime at the local level is exacerbated by the interstate movement of drugs,

guns, and criminal gangs;

(C) firearms and ammunition move easily in interstate commerce and have been

found in increasing numbers in and around schools, as documented in numerous

hearings in both the Committee on the Judiciary the House of Representatives and

the Committee on the Judiciary of the Senate;

. . . 

(F) the occurrence of violent crime in school zones has resulted in a decline in the

quality of education in our country;

. . . 

(H) States, localities, and school systems find it almost impossible to handle

gun-related crime by themselves--even States, localities, and school systems that

have made strong efforts to prevent, detect, and punish gun-related crime find their

efforts unavailing due in part to the failure or inability of other States or localities

to take strong measures; and

. . . .

29

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Additionally, the hearing before the House of Representatives’ Subcommittee on Crime provides

insight as to the statute’s purpose. Representative William J. Hughes stated that “[t]his

bill . . . addresses the increasing problems and tragedies which occur all too regularly when guns

are brought onto school property.” Hearing, supra, at 6. He further noted that “[w]e are

bombarded by news reports of yet another student or teacher killing at the hands of either an

armed and deranged person, or by an angry armed fellow student.” Id. “Equally tragic, the

shooting is [sic] sometimes accidental, but with the same fatal and tragic result.”27Id. In any

event, it appears that, generally speaking, § 922(q)(2)(A) was intended to protect students from

gun violence—whether that violence presents itself as a threat from outside or within a

campus—and keep firearms off school property.28

The statute itself clarifies “how” the right to armed self-defense is burdened. Section

922(q)(2)(A) is not a complete prohibition of the possession of firearms in a school zone—it

contains carve-outs, which are found in § 922(q)(2)(B), as well as a few notable omissions. 

27

It is of note that, with respect to the 1,000-foot zone around school property, “investigative

jurisdiction . . . lies with the Secretary of the Treasury, who has delegated responsibility to [the] [Bureau

of Alcohol, Tobacco, Firearms, and Explosives (“ATF”)].” Hearing, supra, at 14. Thus, upon

enactment, the “ATF would have the primary jurisdiction” to enforce its provisions. Id. While testifying

before the subcommittee, and after recognizing that the ATF maintained jurisdiction within the 1,000-foot

zone, Richard Cook (“Cook”), Chief of the ATF’s firearms division, stated that “[o]ur firearms

enforcement activities are focused on violent criminals and illegal drug traffickers”; thus, in his opinion,

the ATF “could not provide direct protection to all the Nation’s schools.” Id. Cook stated that the

obligation to protect the Nation’s schools “is, and should remain, primarily the responsibility of State and

local law enforcement officials.” Id. Additionally, when questioned as to the Act’s “magical zone of a

thousand feet,” Cook was unable to produce any information, statistics, or justification as to the benefits

of such a distance as opposed to any other. Id. at 21. 

28 A few states also have laws which prohibit the possession of a firearm within 1,000 feet of

school property, ordinarily consistent with § 922(q)(2). See Hetzner, supra, at 385. Many others do not.

For example, Texas has its own laws prohibiting the possession of a firearm on school grounds, but they

do not extend the prohibition to the area around school property. TEX. PENAL CODE § 46.03.

30

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Section 922(q)(2)(B) provides a complete exemption29

to individuals in four contexts. 

Those individuals who: are “on private property not part of school grounds”; possess a firearm

“for use in a program approved by a school in the school zone”; possess a firearm “in accordance

with a contract entered into between a school in the school zone and the individual or an employer

of the individual”; and law enforcement officers acting in their official capacity. 18 U.S.C. 

§ 922(q)(2)(B)(i), (iv)-(vi). Additionally, the statute provides an exclusion “if the individual

possessing the firearm30is licensed to do so by the State in which the school zone is located31or

29 The court uses the term “complete exemption” to indicate that § 922(q)(2)(B) exempts classes

of people, based on their status (connected to their occupation or participation in a school program) or

location (on private property), from § 922(q)(2)(A)’s prohibition—the exemption applies to these

individuals whether they are licensed or unlicensed, or possess a handgun or rifle.

30 Many states require a permit to carry a handgun in public. Bruen, 142 S. Ct. at 2123. States

use various terms for their respective concealed-carry licensing regimes. Texas uses the term “License

to Carry” to refer to its state-issued permit that authorizes citizens to carry handguns in public. See Tyler

R. Smotherman, Troubleshooting the Gun-Free School Zones Act: A Call for Amendment in the Age of

Constitutional Carry, 55 TEX. TECH L. REV. 359, 403 (2023) [hereinafter Troubleshooting] (“Texas uses

the term ‘License to Carry’ [ ] to refer to its state-issued permit that authorizes citizens to carry handguns

in public. Other states use terms such as ‘Concealed Weapons License,’ ‘Concealed Pistol License,’ or

‘Concealed Carry Weapons Permit’ [ ].” Moreover, “some states’ permits also affect citizens’ rights to

carry handguns openly or to carry weapons other than handguns.”). Additionally, some “shall issue”

jurisdictions, including Texas and Mississippi, “have so-called ‘constitutional carry’ protections that allow

certain individuals to carry handguns in public within the State without any permit whatsoever.” Bruen,

142 S. Ct. at 2123 (citing A. Sherman, More States Remove Permit Requirement to Carry a Concealed

Gun, POLITIFACT (Apr. 12, 2022), https://www.politifact.com/article/2022/apr/12/more-states-remove

-permit-requirement-carry-concea/ (“Twenty-five states now have permitless concealed carry

laws . . . . The states that have approved permitless carry laws are: Alabama, Alaska, Arizona, Arkansas,

Idaho, Indiana, Iowa, Georgia, Kansas, Kentucky, Maine, Mississippi, Missouri, Montana, New

Hampshire, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, Vermont, West

Virginia, and Wyoming.”)). Accordingly, § 922(q)(2)(B)(ii) does not provide an exclusion for individuals

who choose to engage in “constitutional carry.” See Hetzner, supra, at 365 n.29. Additionally,

§ 922(q)(2)(B)(ii) does not protect those individuals who choose to carry a rifle or a shotgun in one of the

many states that does not require a license to carry such a firearm. See Hearing, supra, at 24 (“[W]hat

we see most frequently is that licenses to possess firearms, or carry firearms, are primarily limited to

handguns. So that in a particular State there may be no way in which a person could meet the

exemption . . . in the case of a long gun.”); id. at 26 (Representative Chuck Douglas noting that although

he would be excluded from § 922(q)(2)(A)’s prohibition for his possession of a handgun because he is

licensed in New Hampshire, he would have no protection under § 922(q)(2)(B)(ii) if he were to possess

a rifle or a shotgun, as New Hampshire does not require licenses for the possession of such firearms).

31

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a political subdivision of the State, and the law of the State or political subdivision requires that,

before an individual obtains such a license, the law enforcement authorities of the State or political

subdivision verify that the individual is qualified under law to receive the license.” 18 U.S.C.

§ 922(q)(2)(B)(ii). In other words, the statute effectively excludes only those individuals carrying

a handgun and who are licensed to do so by the state in which the school zone is located. 

Additionally, individuals who keep an unloaded firearm “in a locked container, or locked firearms

rack that is on a motor vehicle” are excluded. Id. § 922(q)(2)(B)(iii). Generally, apart from the

narrow, complete exemptions above, unless an individual is carrying a handgun and is licensed

to do so in the state in which the school zone is located, unloading and keeping his or her handgun

or rifle in a locked container or rack is the only avenue for lawful possession of a firearm within

1,000 feet of a school zone. Unless, of course, an individual possesses a firearm “that is unloaded

and is possessed . . . while traversing school premises32for the purpose of gaining access to public

Therefore, “licensed” firearm possessors, in this context, is far more narrow than “lawful” firearm

possessors.

31

Section 922(q)(2)(B)(ii)’s requirement that the permit be issued by the state in which the school

is located has significant implications as well. “The ATF has taken the position that a nonresident who

is licensed by a state through reciprocity alone, giving recognition to a permit issued by another state, is

not ‘licensed to do so by the State in which the school zone is located’--licensure by that state through

reciprocity is not, in their view, licensure by a state.” Royce de R. Barondes, Federalism Implications

of Non-Recognition of Licensure Reciprocity Under the Gun-Free School Zones Act, 32 J.L. & POL. 139,

144 (2017). “[E]ven if a state has a formal reciprocity agreement with the permit holder’s state to honor

her out-of-state permit--just as states do with driver’s licenses--the citizen is still subject to prosecution

under the [Act].” Troubleshooting, supra, at 395 (“[T]he ATF has stated that formal reciprocity

agreements between states to honor each other’s [concealed carry weapons] permits do not satisfy the

requirements of the [Act].”). 

32

 “School Premises” is not defined in 18 U.S.C. § 921.

32

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or private lands open to hunting, if the entry on school premises is authorized by school

authorities.”33Id. § 922(q)(2)(B)(vii). 

“These characteristics crystallize ‘how’ and ‘why’” § 922(q)(2)(A) “‘burden[s] a

law-abiding citizen’s right to armed self-defense.’” Rahimi, 61 F.4th at 455 (quoting Bruen, 142

S. Ct. at 2133). Identifying the “how” and “why” requires the court to focus on the key features

of the statute, namely, prohibiting some individuals from possessing some firearms—not a total

prohibition—in a school, on school property, or within 1,000 feet of school property, in order to

protect students from gun violence, whether that violence presents itself as a threat from outside

or within, and to keep firearms off school property. Additionally, in this case, identifying

“relevantly similar” regulations necessitates that the court take a “more nuanced approach.” 

c. An Unprecedented Societal Concern

To sustain § 922(q)(2)(A)’s intrusion on Allam’s “Second Amendment right, the

Government bears the burden of proffering ‘relevantly similar’ historical regulations that imposed

‘a comparable burden on the right of armed self-defense’ that were also ‘comparably justified.’” 

Id. (quoting Bruen, 142 S. Ct. at 2132-33). Additionally, “when it comes to interpreting the

Constitution, not all history is created equal,” as “Constitutional rights are enshrined with the

scope they were understood to have when the people adopted them.” Bruen, 142 S. Ct. at 2136. 

As indicated above, however, “cases implicating unprecedented societal concerns or dramatic

technological changes may require a more nuanced approach.” Id. at 2132. The court is of the

33 The discrepancies noted above defeat the Government’s assertion that “[t]aken together, two of

[§ 922(q)(2)(B)’s] carveouts [sic] [i.e., § 922(q)(2)(B)(ii)-(iii)] negate Allam’s purported concern for

law-abiding citizens who travel with firearms.” Clearly, there are a number of circumstances in which

an individual may run afoul of § 922(q)(2)(A) at the same time they would otherwise be “lawfully”

possessing and traveling with a firearm. 

33

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opinion that the prevalence of school shootings—protection from which is one of the aims of

§ 922(q)(2)(A)’s enactment—in this modern era, is certainly an “unprecedented societal concern.” 

Accordingly, a “more nuanced approach” is required when drawing historical analogies than was

utilized in Heller, Bruen, or Rahimi. See Bruen, 142 S. Ct. at 2132; Rahimi, 61 F.4th at 460. 

School shootings have lamentably become a part of this Nation’s present-day reality. 

While school shootings occurred in this country even prior to the Civil War, the current frequency

and severity of modern mass school shootings would certainly be incomprehensible to our

forefathers.34 School shootings became particularly worrisome around the mid 1980s, prompting

the enactment of § 922(q)(2)(A). School shootings later began to instill fear in parents’ hearts and

have now become a recurring nightmare. The number of firearm incidents35and active shooter

34 The first reported school shooting, the Pontiac’s Rebellion school massacre, took place on July

26, 1764—although it is unclear what weaponry was used. Theophanes Avery, The History of 260 Years

of School Shootings in Ame rica, THE CRIME WIRE (Apr. 27, 2023),

https://thecrimewire.com/multifarious/The-History-of-Nearly-250- Years-of-School-Shootings-in-America;

H ist o r y o f S c h o o l S h o o t i n g s i n t h e U n i t e d S t a t e s, K 1 2 A C A D S .,

https://www.k12academics.com/school-shootings/history-school-shootings-united-states (last visited on

May 8, 2023). The shooting occurred in a “Pennsylvanian schoolhouse in what is known today as

Greencastle” and “took place during the French and Indian War.” Avery, supra. “[F]our Lenape

warriors stormed in and committed a wholesale slaughter,” killing “[t]he schoolmaster Enoch Brown” and

10 children. Id. “Only three students survived and of them one had already been partially scalped.” Id.

In 1853, Matthew Ward, a 13-year-old, was the first child to cause a school shooting. Id. He was

disturbed by Schoolmaster Butler’s decision to punish his brother, so he “shot Mr. Butler at point blank

range, killing him on school property.” Id. “The first child-on-child shooting occurred on June 8, 1876[,]

when a 13-year-old boy shot another classmate.” Id. The first school shooting by a female, killing a

young boy for spreading rumors about her, occurred in 1886. Id. “April 9, 1891[,] marked the first mass

school shooting where more than one victim was targeted.” Id. The perpetrator was a 70-year-old man

who injured five male students at St. Mary’s Parochial School in Newburgh, New York. Id. 

35 The court uses the term “firearm incidents” instead of “all shootings at schools,” as this

definition, according to the K-12 School Shooting Database, includes even brandishing incidents. The

K-12 School Shooting Database defines “all shootings at schools” to include “when a gun is brandished,

is fired, or a bullet hits school property for any reason, regardless of the number of victims, time, or day

of the week. Unlike other data sources, this information includes gang shootings, domestic violence,

shootings at sports games and afterhours school events, suicides, fights that escalate into shootings, and

accidents.” David Riedman, All Shootings at Schools From 1970-Present, K-12 SCH. SHOOTING

34

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situations36

at schools has increased dramatically since 1970. See Riedman, All Shootings at

Schools From 1970-Present, supra. 

The average number of active shooter situations at K-12 schools for the years 1970 to 1979

was 1.6 per year. See Riedman, Active Shooter Situations, supra. This same average for the

years 2010 to 2019 was 5.5 per year.37See id. The number of active shooter situations was 1 in

2020, 9 in 2021, 3 in 2022, and 2 at this point in 2023. Id. As for all firearm incidents at K-12

schools, the contrast is even more striking. The average number of firearm incidents at K-12

schools for the years 1970 to 1979 was 16.6 per year. See Riedman, All Shootings at Schools

from 1970-Present, supra. The average for the years 2010 to 2019, however, was 51.8 per year. 

See id. Moreover, the average number of victims, both fatal and wounded, on K-12 school

property due to firearm incidents for the years 1970 to 1979 was 25.8 per year. See id. This

average expanded to 61 per year for the years between 2010 and 2019. See id. Additionally, the

number of firearm incidents was 115 in 2020, 250 in 2021, 304 in 2022, and 178 at this point in

2023. Id. The increase in firearms incidents, including active shooter situations, on and around

school campuses is an aspect of our modern society for which our Nation’s Founders could not

have accounted. This is emphasized by the fact that, aside from an incident which occurred in

connection with the French and Indian War, the court did not find a school shooting incident prior

DATABASE (2023), https://k12ssdb.org/all-shootings [hereinafter Riedman, All Shootings at Schools from

1970-Present].

36 The K-12 School Shooting Database uses the term “active shooter” “when the shooter killed

and/or wounded victims, either targeted or random, within the school campus during a continuous episode

of violence.” David Riedman, Active Shooter Situations, K-12 SCH. SHOOTING DATABASE (2023),

https://k12ssdb.org/active-shooter [hereinafter Riedman, Active Shooter Situations].

37 The yearly average number of active shooter situations in K-12 schools for the years 1980-1989

was 3.1, 1990-1999 was 3.3, and 2000-2010 was 4.7. See id. 

35

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to the year 1853. See Avery, supra. Accordingly, shootings and firearm incidents on and around

school campuses are surely an “unprecedented societal concern” that was unanticipated by our

Founders. See Bruen, 142 S. Ct. at 2132. 

“Although its meaning is fixed according to the understandings of those who ratified it, the

Constitution can, and must, apply to circumstances beyond those the Founders specifically

anticipated.” Id. (citation omitted). Accordingly, the court includes data relating to school

shootings only for the purpose of illustrating that, in this case, a more nuanced analysis is

warranted. See id. The data are not included for the purpose of engaging in the sort of balancing

that Bruen prohibited. Rather, the data clarify that one would not expect to find a clear historical

analogue to § 922(q)(2)(A) because the societal issue which it attempts to remedy did not exist

until recently. The question in this case is markedly different from that in Bruen, where the

question of how to regulate firearms had been apparent since the Founding, or Rahimi, where the

possession of firearms by individuals accused of domestic violence had been an issue for many

years. 

A “nuanced approach” requires the court to “broaden its conception of what constitutes

an ‘analogue’ and focus its attention on the justification for, and burden imposed by it.” Antonyuk

v. Hochul, No. 122CV0986GTSCFH, 2022 WL 16744700, at *41 (N.D.N.Y. Nov. 7, 2022),

reconsideration denied sub nom. Antonyuk v. Nigrelli, No. 122CV0986GTSCFH, 2022 WL

19001454 (N.D.N.Y. Dec. 13, 2022); see Jacob D. Charles, The Dead Hand of a Silent Past: 

Bruen, Gun Rights, and the Shackles of History, DUKE L.J., (forthcoming) (manuscript at 56-57),

https://ssrn.com/abstract=4335545. Accordingly, the court must look more broadly to historical

analogues that contain a “why” or “how” similar to that of § 922(q)(2)(A), even if not directly

36

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relating to school safety. Thus, the court will consider historical state regulations that illustrate

a tradition of protecting particular locations by prohibiting firearms within such locations as well

as by prohibiting firearm possession within a buffer zone around such locations. 

d. The Government’s “Historical Analogues”

The Government’s proffered historical analogues to § 922(q)(2)(A) fall into two categories:

(1) public-university restrictions relating to firearms on campus and (2) state and territorial

restrictions relating to schools. The Government contends that “Section 922(q)(2) is ‘relevantly

similar’ to [these] historical precursors . . . both in ‘how’ and ‘why’ it burdens ‘a law-abiding

citizen’s right to armed self-defense,’ and ‘[i]t does not matter that the precursors did not ban

everyone, always, from possessing firearms near a school, because Section 922(q)(2) does not do

that either.’” 

i. Nineteenth-Century University Restrictions

The Government identifies three university restrictions from Georgia, Virginia, and North

Carolina, dating back to the early 1800s. In 1810, the University of Georgia amended its

university laws to prohibit students from possessing offensive weapons, including guns. 

Specifically, it “ordained that no student shall be allowed to keep any gun, pistol, Dagger, Dirk,

sword cane or any other offensive weapon in College or elsewhere, neither shall they or either of

them be allowed to be possessed of the same out of the college in any case whatsoever.” THE

MINUTES OF THE SENATUS ACADEMICUS OF THE STATE OF GEORGIA, Part 1, 1799-1842, at 86

(1810), http://dlg.galileo.usg.edu/do:guan_ua0148_ua0148-002-004-001. At the same time, the

University of Georgia adopted additional university laws forbidding “gambling, disorderly

37

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conduct, cursing, fighting, dueling, drunkenness, card games, and billiards.”38 The university

hoped these laws would further its effort to “cultivate the soul as well as the mind” of its students. 

F. N. BONEY, A PICTORIAL HISTORY OF THE UNIVERSITY OF GEORGIA 21 (1984). The university

built off “Yale’s old puritanical rules” which were a “good beginning” for this “long series of

regulations” geared toward “ma[king] the students behave morally and properly.” Id. The

prohibition on firearms also seemed to be related to the fact that “[s]tudent militia units had gotten

out of hand.” Id. at 22. As a result, the militia units were “disbanded and general disarmament

declared.” Id. 

In 1824, the University of Virginia’s Board of Visitors—which included Thomas Jefferson,

the university’s founder, as well as James Madison—instituted a ban of its own. Kopel &

Greenlee, supra, at 249. Specifically, the ban stated: 

No Student shall, within the precincts of the University, introduce, keep or use any

spirituous or vinous liquors, keep or use weapons or arms of any kind, or

gunpowder, keep a servant, horse or dog, appear in school with a stick, or any

weapon, nor, while in school, be covered without permission of the Professor, nor

use tobacco by smoking or chewing, on pain of any of the minor punishments, at

the discretion of the Faculty, or of the board of Censors, approved by the Faculty.

38 On the same day that the University of Georgia adopted its prohibition on firearms, it also

amended its regulations to reflect that: 

If any scholar shall be guilty of profane swearing of [sic] fighting or quarreling – if he

shall open the door of a fellow student – If he shall go more than two miles from Athens

without leave from the president a professor or tutor. If he shall disturb others by noise

[sic] loud talking or singing during the time of study – if he shall ring the Bell without

order or permission – if he shall play at Billiards, Cards, or any unlawful game, if he shall

associate with vile idle or dissolute persons, or shall admit them into his chamber – if he

shall instigate or advise any student to a refractory or stubborn behaviour he shall for

either of those offences be punished by admonition, rustication or expulsion as the nature

and circumstances of the case may require.

Id. 

38

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MEETING MINUTES OF UNIVERSITY OF VIRGINIA BOARD OF VISITORS, at 4-5 (1824),

https://rotunda.upress.virginia.edu/founders/default.xqy?keys=FOEA-print-04-02-02-4598. The

ban was a product of the students’ “spoiled and violent behavior.” Kopel & Greenlee, supra, at

249. The students “rioted and caroused, fired guns in the air, and shot at each other.” Id. at

249-50 (citing Carlos Santos, Bad Boys: Tales of the University’s tumultuous early years,

VIRGINIA MAG. (Winter 2013), http://uvamagazine.org/articles/bad_boys)). The ban came as

Jefferson was under pressure; his “enemies, and they were legion, were ready to pounce and

shutter the school they considered a godless playground of the rich.”39Id. at 250 (quoting Santos,

supra.). Thus, the ban was instituted to quell the madness. 

In 1838, the University of North Carolina adopted its own prohibitions. “No Student shall

keep a dog, or fire arms, or gunpowder. He shall not carry, keep, or own at the College, a sword,

dirk, sword-cane, or any deadly weapon; nor shall he use fire arms without permission from the

President.” Laws for the Government of the University, ACTS OF THE GENERAL ASSEMBLY AND

ORDINANCES OF THE TRUSTEES, FOR THE ORGANIZATION AND GOVERNMENT OF THE UNIVERSITY

OF NORTH CAROLINA, at 15 Chapter V (1838), https://www.google.com/books/edition/

39

 Specifically, Jefferson’s problems included:

Some students came to the University to learn, but many came to lark and laze. These

students of the first two decades, often the spoiled, self-indulgent scions of Southern

plantation owners or prosperous merchants, led a life of dissipation. With a sense of

honor easily bruised, the wrong word, the wrong look could easily lead to a scuffle, if not

a duel. The students brandished guns freely, sometimes shooting in the air, sometimes at

each other. They drank, gambled, rioted and vandalized property (even taking a hatchet

to the front doors of the Rotunda). The students’ behavior was a great humiliation to

Thomas Jefferson, the founder of their school and then one of the best known men in

America . . . . The students were hostile. His professors were threatening to quit.

Santos, supra.

39

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Acts_of_the_General_Assembly_and_Ordinan/_HVNAAAAYAAJ?hl=en&gbpv=0 (chapterfive

is entitled “Of the Moral and Religious conduct of the Students, and their conduct towards the

Faculty.”). This “is an odd construction, which seems to imply that under some circumstances

students might be permitted to use firearms, but not to keep them.” Clayton E. Cramer, Guns on

Campus: A History, ACAD. QUESTIONS 15 (Dec. 2014), https://papers.ssrn.com/sol3/

papers.cfm?abstract _id=2998355. Included in the same chapter are laws mandating chapel

attendance and prohibiting, among other things, attending horse races, betting, engaging in a game

of hazard, and possessing spiritous or fermented liquors. Accordingly, the University of North

Carolina’s firearms prohibition seems to rely on the same justifications as that of the Virginia and

Georgia universities. The prohibition may also be attributable to the fading need for “militia

preparedness.”40Id. (“In the nineteenth century, as the need for militia preparedness faded,

40

Similar prohibitions were instituted at McKenzie College, located in Clarksville, Texas, in 1860,

Kemper College near St. Louis, Missouri, in 1840, the University of Nashville in 1837, and Dickinson

College, located in Pennsylvania, in 1830. Id. Additionally, the Government cited two private university

restrictions; however, it did not include them with the public university restrictions. In 1665, Harvard

adopted a “penal law” stating:

No undergraduate shall buy, sell, barter, or exchange books, apparrell or any thing of

considerable value; but by the leave of the President or his Tutor, Guardian or Parent, or

If he shall sell or pawne any thing to any scholler, the President shall make the bargaine

and admoni[sh] [the] student noe students shall be suffered to have [a g]un in his or theire

chambers or studies, or keepeing for theire use any where else in the town, or If they be

found to have such by the President or Theire Tutors, then they shall be admonished by

the President or theire Tutors to put it away: which If they shall refuse to doe, the

President shall have power to take it quite away from them, and If they resist the President

herein, they shall upon due proofe be expelled out of the Colledge by the advise of the

Colledge overseers: the same penalty is appointed to any student that shall make

resistance against or offer violence unto the President or fellows.

A C OPY OF THE L AWS OF HARVARD C OLLEGE, 1 6 55 , a t 10 ( 1 8 6 5 ),

https://archive.org/details/acopylawsharvar00unkngoog/page/n14/mode/2up. Yale, in 1745, adopted a

prohibition that:

If any Scholar Shall keep a Gun or Pistol, or Fire one in the College-Yard or College, or

40

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colleges do start to prohibit ‘firearms, or any deadly weapon whatever’ as Waterville College,

Maine did in 1832.” (quoting LAWS OF WATERVILLE COLLEGE, MAINE 11 (1832),

https://www.googl e.com/books/edition/Laws_of_Wa t e rvill e_College_Maine

/n0wMAQAAMAAJ?hl=en&gbpv=1&pg=PA11&printsec=frontcover)). 

The Government asserts that these university restrictions are relevant analogues because

they were “broad” in that they “applied to all students regardless of age; they prohibited

possession everywhere on campus (and ‘elsewhere,’ in Georgia’s case); and they did not confer

extensive licensing, storage, and other exemptions.” In assessing analogues, courts look to the

“how” and “why” of the historic regulation to determine if it is relevantly similar to the

challenged prohibition. As for “why” the universities disarmed students, the concerns seem to

have been centered around maintaining a safe and distraction-free learning environment. In some

instances, (e.g., Georgia and Virginia) armed students posed a threat not only to the learning

environment, but also to the faculty and other students. Thus, universities were often protecting

against internal threats to safety, as opposed to external threats. As for “how,” the university

restrictions consistently applied to one group of people—students. The restrictions did not include

professors, faculty, or campus visitors. Except for Georgia’s prohibition, which applied

Shall Go a Gunning, Fishing, or Sailing, or Shall Go more than Two Miles from College

upon any Occasion whatsoever: or Shall be Present at any Court, Election,

Town-Meeting, Wedding or Meeting of young People for Diversion or any Such-like

Meeting which may Occasion Mispence of precious Time without Liberty first obtain’d

from the President or his Tutor, in any of the cases abovesaid he Shall be fined not

exceeding Two Shillings.

FRANKLIN BOWDITCH DEXTER, BIOGRAPHICAL SKETCHES OF THE GRADUATES OF YALE COLLEGE, May

1745-May 1763, Annals 8 (1896). In any event, these prohibitions carry less severe penalties than

expulsion and appear to be similar in their justification to the post-ratification public university restrictions,

cited by the Government.

41

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“elsewhere” as well as on campus, the restrictions also seemed to apply only to possession on

school property. In any event, although these enactments occurred close to our Nation’s founding,

the prohibitions applied to students only, and, thus, the university campus “was not a place where

arms were forbidden to responsible adults,” much less within 1,000 feet of campus. Kopel &

Greenlee, supra, at 252. Moreover, three university regulations that applied only to students

cannot be said to be representative of our Nation’s tradition of firearms regulation. 

ii. Late Nineteenth to Early Twentieth Century State and

Territorial Restrictions

The Government next cites seven restrictions from the late 1800s to early 1900s. “In the

half-century following the Civil War” some states and territories enacted “broad laws against

carrying at public events.”41Id. at 252-53. The Government first cites an 1871 Texas statute,

stating: 

That if any person shall go into any church or religious assembly, any school room

or other place where persons are assembled for educational or scientific

purposes . . . and shall have or carry about his person a pistol or other firearm,

dirk, dagger, slung shot, sword[-]cane, spear, brass-knuckles, bowie-knife . . . he

shall be guilty of a misdemeanor, and on conviction thereof, shall, for the first

offense, be punished by fine of not less than fifty, nor more than five hundred

dollars . . . and for every subsequent offense may, in addition to such fine and

forfeiture, be imprisoned in the county jail for a term not more than ninety days.42

41

In some states, such restrictions were likely alternatives to facially discriminatory regulations.

Kopel & Greenlee, supra, at 252 (“In the half-century following the Civil War, the former slave states

were the center of the gun control movement. Although the Equal Protection Clause of the Fourteenth

Amendment forbade gun laws that expressly discriminated on race, the racial subtext of Southern gun

control was obvious.”). 

42 This statute also prohibited carrying a firearm into a circus, show, public exhibition of any kind,

ballroom, social party or gathering, election precinct on the day or days of an election, or any location

where people may be assembled to muster or perform any public duty. Id.

42

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Act of Apr. 12, 1871, 12th Leg., 1st S. ch. 34, § 3, 1871 TEX. GEN. LAWS 25-26.43

“[B]oth

before and after the Civil War,” Texas was a “uniquely violent place.” Mark Anthony Frassetto,

The Law and Politics of Firearms Regulation in Reconstruction Texas, 4 TEX. A&M L. REV. 95,

97 (2016). Many Texans were “resistant to emancipation and Reconstruction, resulting in

staggering levels of violence against blacks and Unionists.” Id. at 99. In 1869, facing significant

resistance, “Radical Republican Edmund Davis was elected Governor of Texas,” and his

administration was defined “by its effort to restore order in Texas in the face of Democratic

opposition.” Id. at 101. During his inaugural address, Davis “called for the prohibition on

carrying handguns in public.” Id. at 103. In the summer of 1870, the state legislature fulfilled

part of Davis’s request by passing 1870 TEX. GEN. LAWS 63, a predecessor of the Texas law

stated above, which prohibited carrying firearms in locations such as schools, churches, or social

gatherings.44Id. at 104. “While the prohibition . . . provided an important tool for the state

police to maintain order” in Texas, it fell short of accomplishing Davis’s goal of dramatic crime

reduction. Id. “In response to concerns about the effectiveness of the 1870 Act . . . the Texas

Legislature drafted a bill in 1871 that prohibited” Texans from carrying weapons without

43 At that time, the Texas Constitution provided that “Every person shall have the right to keep and

bear arms in the lawful defense of himself or the State, under such regulations as the Legislature may

prescribe,” and the Texas Supreme Court understood that the Second Amendment did not apply to the

states. State v. Duke, 42 Tex. 455, 457-58 (1875). 

44 Although such laws “were technically universal,” in reality, “the Texans most vulnerable to

arrest for unlawfully carrying arms were those of African American or Mexican descent.” Brennan

Gardner Rivas, When Texas was the national leader in gun control, THE WASH. POST (Sep. 12, 2019),

https://www.washingtonpost.com/outlook/2019/09/12/when-texas-was-national -leader-gun-control/.

43

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“‘reasonable grounds for fearing an unlawful attack on his person.’” Id. (quoting Act approved

Apr. 12, 1871, 12th Leg., R.S., ch. 34, § 1, 1871 TEX. GEN. LAWS 25).45

In 1878, Mississippi enacted a statute more similar to the university restrictions listed

above. The Mississippi law applied only to “student[s] of any university, college, or school” who

carried a pistol or other weapon “concealed or partly concealed,” or to “any teacher, instructor,

or professor who . . . knowingly” permitted any student to carry such a weapon. 1878 MISS.

LAWS 176. Nevertheless, not only did Mississippi’s prohibition not ban faculty or staff from

carrying concealed firearms, but students could carry arms as long as they did so openly. Id.; see

Kopel & Greenlee, supra, at 251-52. The Government next cites two Missouri prohibitions. 

Missouri’s 1883 prohibition stated that: 

If any person shall carry concealed, upon or about his person, any deadly or

dangerous weapon, or shall go into . . . any school room or place where people are

assembled for educational, literary or social purposes . . . having upon or about his

person any kind of fire arms, bowie knife, dirk, dagger, slung-shot, or other deadly

weapon . . . he shall, upon conviction, be punished by a fine of not less than

twenty-five nor more than two hundred dollars, or by imprisonment in the county

jail not exceeding six months, or by both such fine and imprisonment.

1883 MO. LAWS 76.46 Missouri did not “go as far as Texas,” in that Missouri’s prohibition did

not restrict open carry. See Kopel & Greenlee, supra, at 254. “This was consistent with the

Missouri Constitution’s right to arms provision, which made an express exception for concealed

carry.” Id. The Government also cites an 1879 Missouri statute which prohibited “any person”

45 Bruen discussed this Texas law and determined that it, and subsequent decisions of the Texas

Supreme Court, provided “little insight into how postbellum courts viewed the right to carry protected

arms in public.” 142 S. Ct. at 2153. 

46 This statute also applied to carrying a weapon into a church, place where people have assembled

for religious worship, court rooms, or any other public assemblage of persons. Id. There was, however,

an exception for militia drills or meetings. Id. 

44

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from discharging “any gun, pistol or fire-arms . . . in the immediate vicinity of any court house,

church or building used for school or college purposes.” 1879 MO. LAWS 90. 

Additionally, Montana, in 1903, prohibited “any person” from entering a “church or

religious assembly, any school room or other place where persons are assembled for amusement

or for educational or scientific purpose” while carrying “concealed or partially concealed” a

“pistol or other firearm, dirk, dagger, slung shot, sword cane, knuckles, or bowie knife.” 1903

MONT. LAWS 49.47 This offense carried a punishment of a fine not less than fifty but not more

than five hundred dollars. Id. Montana’s prohibition, like Texas’s, covered a broad array of

locations, including private social events. Id.; see Kopel & Greenlee, supra, at 257. 

During the late 1800s, some territories enacted similar bans on firearms in certain

locations. In 1889, Arizona prohibited “any person” from having or carrying “about his person

a pistol or other firearm, dirk, dagger, slung shot, sword cane, spear, brass knuckles, bowie

knife” “into any school room, or other place where persons are assembled for amusement or for

educational or scientific purposes.” 1889 ARIZ. SESS. LAWS 30-31. Arizona’s prohibition, like

that of Missouri, applied to other gatherings and locations including churches, circuses, and

polling places and, like that of Texas and Montana, applied to social gatherings. Id. Oklahoma,

in 1890, enacted a statute prohibiting the possession of a firearm in school rooms and other places,

similar to Arizona’s statute. 1890 OKLA. SESS. LAWS 495-96; see Kopel & Greenlee, supra, at

47 Montana’s prohibition also applied to “any circus, show, or public exhibition of any kind, or

into a ball room, social party, or social gathering, or to any election precinct or any place of registration,

on the day or days of any election or registration, where any portion of the people of the State are collected

to register or vote at any election, or to any other place where people may be assembled to perform any

public duty, or at any public assembly.” Id. 

45

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258. Arizona’s and Oklahoma’s prohibitions, like Montana’s and Texas’s, applied to wide range

of areas, including both public locations and private social gatherings.

The Government asserts that these laws, enacted by states and territories, are relevant

analogues to § 922(q)(2)(A)’s prohibition. It argues that these restrictions are broader than the

early nineteenth-century university restrictions because limited exceptions for peace officers were

made and they “prohibited any person—adult or child—from carrying firearms in

schools”—excluding Mississippi. Furthermore, the Government contends that “they, too,

contained few or no carveouts akin to those in Section 922(q)(2)(A),” excluding, for example,

Montana’s exception for peaceable individuals of good moral character. 1903 MONT. LAWS 50. 

The Government concedes that “most of the precursors did not extend [to] a prescribed

distance beyond the campus or school.” It claims, however, that one state regulation did. It

argues that Missouri’s 1879 regulation that prohibited discharging a firearm within 600 feet of a

school is instructive. 1879 MO. LAWS 91. The Government overlooks the fact that the discharge

of a firearm in the vicinity of school property is covered by section 922(q)(3)(A), not section

922(q)(2)(A). Certainly, Missouri’s discharge prohibition would be an apt analogue for section

922(q)(3)(A), but it is not persuasive in this instance. Additionally, the Government contends that

Mississippi’s prohibition on students’ possession of firearms is relevant because it applied to the

possession of “concealed firearms anywhere.” Nonetheless, Mississippi’s regulation does not

seem highly relevant. Critically, it applied only to firearms that were concealed, and, like the

early university restrictions, it applied only to students. 

The Government further asserts that, because many of these late nineteenth-century

regulations “extended beyond ‘school room[s]’ to unspecified ‘other place[s]’ where children and

46

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others assembled for education, science, worship, or amusement,” the regulations provide a strong

footing for § 922(q)(2)(A)’s broad application to the area outside school property. These statutes,

however, do not lend support for a protected zone around school property. The “unspecified

places” language provided for the same protection when school functions took place in an area

other than a designated school building. The “unspecified places” were sensitive for the same

reasons that a school building is sensitive today, and these laws did not extend such protection to

an expansive zone surrounding the site where such school functions took place. The fact that

school functions maintained a protected status whether they took place in a school building or an

open field does not support the notion that the statute at issue provides for extended protection in

a zone around school property. 

In any event, it appears that these state and territorial restrictions were intended to keep

firearms and other weapons out of schools and other areas where the free flow of information and

ideas was to be encouraged. Darrell A. H. Miller, Constitutional Conflict and Sensitive Places,

28 WM. & MARY BILL RTS. J. 459, 471 (2019). As with the earlier university restrictions, states

hoped to create a safe and distraction-free learning environment for students. Moreover, the state

and territorial restrictions were broader, in that some of these restrictions prohibited all

individuals, rather than students only, from possessing firearms in a school. As for “how” these

restrictions functioned, they applied only to possession within a school or in an area where school

functions were taking place. The regulations did not provide for an expansive area of protection

around a school or area where school functions were conducted. 

47

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Laws enacted a century after the Second Amendment’s ratification are ordinarily less

helpful in shedding light on the public understanding of the Second Amendment at the Founding.48

Nonetheless, these post-Civil War enactments illustrate a strong state desire to protect schools

from firearm violence. Thus, even though these laws were enacted later in the nineteenth century

and early twentieth century, the Government has shown, and it was noted in Bruen, that in our

Nation’s history there is a tradition of prohibiting firearms in schools for the purpose of protecting

children and creating an environment conducive to learning. See Bruen, 142 S. Ct. at 2133;

Antonyuk v. Hochul, No. 122CV0986GTSCFH, 2022 WL 5239895, at *17 n.33 (N.D.N.Y. Oct.

6, 2022).

Doubtless, the Government has failed to provide the court with a “historical twin” for the

purpose of reasoning by analogy. Moreover, at first glance, it appears that the Government has

also failed to provide the court with a well-established and representative historical analogue. 

Nevertheless, the court will broaden its scope of review and “will conduct its own historical

inquiry in the Government’s absence.” Quiroz, 2022 WL 4352482, at *5. 

e. “Buffer Zone” Restrictions

Although the Government does not cite any historical evidence other than the above

university, state, and territorial prohibitions, the court understands this analysis to require a more

sweeping review of potential historical analogues. Accordingly, while not exclusively within the

context of regulations regarding schools, there appears to be historical evidence of laws creating

“buffer zones” around other sensitive places. For example, in 1534, King Henry VIII issued a

48 Additionally, although the Fourteenth Amendment is not at issue in this case, laws enacted by

territories in the late nineteenth century are less compelling for Second Amendment purposes, as they have

a diminished ability to shed light on the public understanding of either the Second or Fourteenth

Amendments.

48

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modernized version of the Statute of Northampton,49

applicable to Wales.50 Kopel & Greenlee,

supra, at 218 (citing 26 HEN. 8, c. 6, § 3 (1534)). Part of his enactment “prohibited not only

arms in court, but also arms within two miles of a court.” Id. 

Since this Nation’s Founding, polling places have often been viewed as sensitive places.51

Kopel & Greenlee, supra, at 235-36. In fact, the Delaware Constitution of 1776 prohibited any

private person from coming armed to an election, and it specifically stated that “Militias could not

assemble within one mile of a polling place, starting 24 hours before the opening of the polls, and

until 24 hours after the polls closed.” Id. (quoting DEL. CONST. art. 28 (1776)); Miller, supra,

at 473. The purpose of the restriction was plainly stated: “To prevent any violence or force being

used at the said elections.” Miller, supra, at 473 (quoting DEL. CONST. art. 28 (1776)). 

In the nineteenth century, even more states enacted laws prohibiting guns in polling places. 

Kopel & Greenlee, supra, at 244. In the Reconstruction era, “[a]rmed terrorist organizations,

such as the Ku Klux Klan, tried to prevent blacks or white Republicans from voting,” thus

49

 “In 1328, the Statute of Northampton was propounded (nominally by Edward III).” Kopel &

Greenlee, supra, at 218. “The preeminent purpose was to prohibit arms carrying around the king’s

officials.” Id. In part, the statute provided that “no man great nor small . . . be so hardy to come before

the King’s justices, or other of the King’s ministers doing their office, with force and arms, nor bring no

force in affray of the peace.” Id. 

50 The court notes King Henry VIII’s version of the Statute of Northampton only to illustrate the

point that “buffer zones” are not a new phenomenon, not to demonstrate the Founders’ understanding of

the Second Amendment. Bruen, 142 S. Ct. at 2139 (determining that the medieval Statute of Northampton

was too old to significantly affect the Founders’ understanding of the Second Amendment).

51 The following discussion relating to “buffer zones” should not be confused with the court’s

earlier sensitive places analysis. To be sure, in the court’s view, a “buffer zone” is not a sensitive place

as contemplated in Heller and Bruen. See Kopel & Greenlee, supra, at 290 (“Buffer zones are not

sensitive places. Heller allows for carry bans ‘in’ sensitive places--not bans ‘around’ or ‘near’ sensitive

places. Accordingly, buffer zones are not sensitive places.”). For a statute prohibiting the possession of

a firearm in an area around a sensitive place to be permissible, the prohibition must comport with Bruen’s

two-step analysis. 

49

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necessitating, in some states, a zone around polling places where weapons were prohibited. Id.

(citation omitted). Louisiana, in particular, experienced severe campaigns of violence. Over the

summer of 1868, in St. Landry Parish, groups “such as the Knights of the White Camelia and the

Seymour Guards . . . carried out acts of violence and intimidation against African Americans.” 

Tara Laver, Civil War Treasures: Party Planning: St. Landry Parish, Radical Republicans, and

the Vote for the 1867 Constitutional Convention, CIVIL WAR BOOK REV. (Summer 2014), at 3-4,

https://digitalcommons.lsu.edu/cwbr/wol16/iss3/28. In late September, after such provocation,

“freedmen . . . t[ook] up arms and rush[ed] . . . Opelousas,” the largest city in St. Landry Parish. 

Id. at 4. “Shots were fired, and a massacre ensued as over three days whites pursued the African

Americans across the countryside, killing at least 150 black Republicans.” Id. In 1870, Louisiana

prohibited the carrying of firearms on election day when the polls were open. Kopel & Greenlee,

supra, at 245 (citing 1870 LA. ACTS 159-60); Miller, supra, at 473. Louisiana’s ban “apparently

had no geographical limit,” and, thus, created a vast zone in which firearms could not be carried

on election days. Kopel & Greenlee, supra, at 244. Moreover, on “any day of registration or

revision of registration,” individuals were prohibited from carrying firearms and other weapons

“within a distance of one-half mile of any place of registration or revision of registration.” Id.; 

1870 LA. ACTS 159-60.52

52

 In relevant part, 1870 LA. ACTS 159-60 stated:

That it shall be unlawful for any person to carry any gun, pistol, bowie knife or other

dangerous weapon, concealed or unconcealed, on any day of election during the hours the

polls are open, or on any day of registration or revision of registration, within a distance

of one-half mile of any place of registration or revision of registration; any person

violating the provisions of this section shall be deemed guilty of a misdemeanor and on

conviction shall be punished by a fine of not less than one hundred dollars, and

imprisonment in the parish jail not less than one month . . . .

50

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Maryland, too, had laws prohibiting the possession and carrying of firearms on election

days in two particular counties. “An 1874 law banned arms carrying on election day in Kent

County,” and “[a]n 1886 statute outlawed bearing arms within 300 yards of the polls on election

day in Calvert County.” Kopel & Greenlee, supra, at 245 (citing 2 PUBLIC LOCAL LAWS OF

MARYLAND, ARTICLES 11-24, at 1457 (King Bros, ed. 1888); 1886 MD. LAWS 315). In 1873,

Texas also prohibited a person from carrying a firearm “within a half-mile of a polling place

during polling hours.”53Id. (citing 2 A DIGEST OF THE LAWS OF TEXAS, CONTAINING THE LAWS

IN FORCE, AND THE REPEALED LAWS ON WHICH RIGHTS REST, FROM 1754 to 1874, at 1317-18

(4th ed. 1874)). In the years before this enactment, the 1869 Texas Gubernatorial Race—in which

Davis was elected—was “marred by violence against blacks seeking access to the polls.”54

Frassetto, supra, at 102. 

Thus, it is clear from these nineteenth-century enactments that this Nation is no stranger

to prohibiting individuals from possessing or carrying firearms, or other weapons for that matter,

within a certain proximity of sensitive places. These restrictions were borne out of the states’ need

to hold safe and fair elections. 

53

 In relevant part, the 1887 Texas law stated: 

Riots and Unlawful Assemblies at Elections Violence Used Towards Electors: (1) It shall

be unlawful for any person to carry any gun, pistol, bowie knife, or other dangerous

weapon, concealed or unconcealed, on any day of election, during the hours the polls are

open, within a distance of one half mile of any place of election. (2) Any person violating

the provisions of this section shall be deemed guilty of a misdemeanor, and on conviction

shall be punished by a fine of not less than one hundred dollars, and by imprisonment in

the county jail for not less than one month . . . .

54 Although in a context distinct from polling places, it is worth noting that “Minnesota banned

guns in state parks and in a zone a half-mile around their edges.” Kopel & Greenlee, supra, at 262.

“Guns could be possessed therein only if they had been ‘sealed’ by a park employee.” Id. (citing 1905

MINN. LAWS 620). The seal was presumably some type of wax or other cap indicating that the owner had

not fired the gun on park property. Id. 

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f. Section 922(q)(2)(A) is Consistent with this Nation’s History of

Firearms Regulation

As noted above, there is no historical precursor to § 922(q)(2)(A) that is a “twin” or “dead

ringer.” Nonetheless, this court is of the opinion that late nineteenth-century prohibitions on

possessing firearms in schools and within the vicinity of polling places constitute relevantly similar

historical analogues that compel the court to find § 922(q)(2)(A) constitutional. 

Today, our Nation’s schools face threats that were unfathomable to the Founders. The

justification that now exists for prohibiting firearms within the immediate vicinity of a school

plainly did not exist in 1791, nor did it exist one hundred years later. It was nearly two hundred

years after our Bill of Rights was drafted that this problem became evident and subsequently

increased. Therefore, the court is faced with a situation for which Bruen contemplates a “more

nuanced approach.” 142 S. Ct. at 2132. Although courts have significantly diverged with respect

to how similar an analogue must be when faced with a problem that has plagued this Nation since

its Founding, when faced with a new societal problem, courts do not demand a “distinctly similar”

analogue. See Charles, supra, at 56. In light of recent societal changes, a perfectly analogous

historical precursor to § 922(q)(2)(A) would not be expected to exist in this Nation’s history. 

As previously indicated, § 922(q)(2)(A)’s “why” for its 1,000-foot zone prohibition relates

to providing an additional layer of protection around school property in an effort to shield school

children and school staff from an increased risk of harm from gun violence—whether that violence

presents itself as a threat from outside or within—in an effort to provide safety and promote the

students’ education. Phrased more generally, the “why” relates to providing an additional layer

of protection around a sensitive place, due to an increased risk of harm to the people required to

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be in such a location.55 Accordingly, because there is no clear historical analogue to

§ 922(q)(2)(A) and it does not address a general societal problem that has persisted since the

eighteenth-century, the court will utilize a “more nuanced approach” and consider both the late

nineteenth-century prohibitions on carrying firearms in schools and the prohibitions on carrying

firearms around polling places.

The late nineteenth-century prohibitions on carrying firearms in schools reflect a similar

purpose as that of § 922(q)(2)(A). These school-carry prohibitions were ostensibly enacted to keep

firearms out of schools—even if in some cases they extended only to concealed firearms—and to

protect the children and the teachers therein. Additionally, the late nineteenth-century prohibitions

on carrying firearms around polling places also possess a similar purpose as that of

§ 922(q)(2)(A). These polling place restrictions were justified by states’ need to protect citizens

from firearm violence or the threat of firearm violence in and around polling places. Once these

states recognized that some of their citizens were being threatened and harmed on their way to and

at polling places, the states’ respective legislatures took action. These states reacted to a new

threat to the political process, just as Congress reacted to a new threat to our Nation’s schools. 

The “how” related to § 922(q)(2)(A)’s 1,000-foot-zone prohibition involves prohibiting

persons from carrying firearms near a school under certain circumstances. As discussed above,

it is not a total prohibition on all persons carrying any firearm in the vicinity of a school under all

circumstances. The late nineteenth-century polling place restrictions prohibited carrying firearms

55 The court phrases § 922(q)(2)(A)’s “why” in this way not only because a school is a sensitive

place, but also because of the specific risk that has come to threaten this specific sensitive place over the

past few decades. Accordingly, the court does not view late nineteenth century prohibitions on carrying

firearms around polling places to be relevant historical analogues for any prohibition on carrying firearms

in a buffer zone around some other sensitive place. 

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within a certain area around a polling place or registration site on election and registration days. 

The states’ polling place restrictions did not have carve-outs similar to those contained in

§ 922(q)(2)(B); they were complete prohibitions. Furthermore, even though the states’ polling

place restrictions were limited in time and § 922(q)(2)(A)’s prohibition is not, that difference is

not determinative. In the late nineteenth century, the threats that the polling place restrictions

were intended to remedy occurred only on those days that the polls or registration sites were open. 

The threats that schools face are not so temporally limited. Accordingly, our Nation’s history of

firearms regulation is not antithetical to prohibiting firearms in a zone around a particular sensitive

place. 

Although, on first glance, some courts could deem late nineteenth-century analogues “too

remote” to inform the Second Amendment analysis, in the context of sensitive places and areas

around sensitive places, Bruen seems to acknowledge the propriety of applying a different

approach under these circumstances, where unprecedented societal concerns have arisen. See 142

S. Ct. at 2133. Bruen, in discussing “sensitive places,” seemed to find the “relatively few 18thand 19th-century” prohibitions on firearms in schools and polling places to be compelling evidence

supporting modern prohibitions. See id. The court finds those same statutes, as well as statutes

prohibiting firearms around polling places from the same time period, to be relevant analogues

for purposes of a Second Amendment analysis. Furthermore, the lack of numerous precursors

prohibiting firearms around sensitive places is not dispositive. Bruen noted that, in the context

of sensitive place prohibitions, “the historical record yields relatively few” of these historical

precursors. Id. Nonetheless, Bruen seemed to view these few precursors to be compelling. Id. 

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Accordingly, taken together, the late nineteenth-century prohibitions on carrying firearms

in schools and in and around polling places have a similar justification and impose “a comparable

burden on the right of armed self-defense” as § 922(q)(2)(A), even if they burden the right in

slightly different ways. See id. at 2133; Rahimi, 61 F.4th at 460; Posada, 2023 WL 3027877,

at *6. 

III. Conclusion

As detailed above, § 922(q)(2)(A)’s prohibition on the possession of firearms within 1,000

feet of school property is not “an ‘outlier[ ] that our ancestors would never have accepted.’” 

Rahimi, 61 F.4th at 460 (quoting Bruen, 142 S. Ct. at 2133). Therefore, the statute is

constitutional, and both Allam’s facial and as-applied challenges fail. Accordingly, Allam’s

Motion to Dismiss the Indictment (#22) is DENIED. 

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