Georgia Law Banning the Carrying of Guns to Church, Unless One Notifies and Gets Permission from Church Management

Today’s v. Georgia (11th Cir. July 20, 2012) upholds the ban against a challenge under the Free Exercise Clause and the Second Amendment. An excerpt (some paragraph breaks added):

[A.] In 2010, the Georgia legislature, apparently concerned that the carrying of [knives and handguns] and long guns would likely present an unreasonable risk of harm to people who assemble in eight specific locations [including “place[s] of worship”], enacted a statute barring the unrestricted carrying of weapons or long guns in those locations. This statutory bar does not apply, however, to a [concealed carry] license holder if, on arriving at one of the eight locations, such person “approaches security or management personnel upon arrival … and notifies such security or management personnel of the presence of the weapon or long gun and explicitly follows the security or management personnel’s direction for removing, securing, storing, or temporarily surrendering such weapon or long gun.” The refusal to approach security or management personnel or to comply with management’s direction is a misdemeanor….

[B.] We conclude that the Amended Complaint fails to state a Free Exercise Clause challenge because Plaintiffs omit any factual matter showing how the Carry Law burdens a sincerely held religious belief. Plaintiffs argue that such an allegation is unnecessary if a law is subject to strict scrutiny because it is not neutral or generally applicable. The problem with that argument is that it misconstrues clear, well-established First Amendment precedent from both the Supreme Court and this court….

At various points, Plaintiffs allege that they would like to carry a handgun in a place of worship for the protection either of themselves, their family, their flock, or other members of the Tabernacle. Plaintiffs conclude by alleging that the Carry Law interferes with their free exercise of religion by prohibiting them from engaging in activities in a place of worship when those activities are generally permitted throughout the State. That Plaintiffs “would like” to carry a firearm in order to be able to act in “self-defense” is a personal preference, motivated by a secular purpose….

[C.] We view the Second Amendment challenge as essentially raising only a facial challenge. As we stated with respect to Plaintiffs’ Free Exercise claim, Plaintiffs must show that the Carry Law is unconstitutional in all applications to prevail in their facial challenge. See United States v. Salerno, 481 U.S. 739 (1987).

One common application of the Carry Law would be when a license holder wants to carry a firearm in a place of worship where management of the place of worship prohibits carrying. To state a facial challenge, therefore, Plaintiffs must take the position that the Second Amendment protects a right to bring a firearm on the private property of another against the wishes of the owner…. In short, we read Plaintiffs’ claim to assume the following: management of a place of worship is likely to bar license holders from carrying an unsecured firearm on the premises; the license holders are unlikely to comply with management’s instructions; management is likely to report such conduct to law enforcement; the license holders are likely to be arrested by for their refusal to comply with management’s instructions; and the arrest establishes a Second Amendment violation….

[P]roperty law, tort law, and criminal law provide the canvas on which our Founding Fathers drafted the Second Amendment. A clear grasp of this background illustrates that the pre-existing right codified in the Second Amendment does not include protection for a right to carry a firearm in a place of worship against the owner’s wishes. Quite simply, there is no constitutional infirmity when a private property owner exercises his, her, or its — in the case of a place of worship — right to control who may enter, and whether that invited guest can be armed and the State vindicates that right. This situation, being a likely application of the Carry Law, illustrates that Plaintiffs cannot show that all or most applications of the Carry Law are unconstitutional. See United States v. Salerno.

This strikes me as correct. I can imagine an Establishment Clause argument that the law is unconstitutional because it singles out “place[s] of worship” for a special rule that doesn’t apply to comparable secular institutions. Given the Court’s unclear rule related to religion-specific laws, it’s not clear how such an argument would fare, but my sense is that it would probably lose, on the theory that the government has an interest in protecting religious worship — whether or not one agrees that such laws ultimately do end up protecting religious worship — that justifies enacting such special rules. (A similar theory has been used by lower courts to uphold special laws and sentencing enhancements for attacks on places of worship.) In any event, though, this does not seem to be the argument challengers made.

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