Bloomberg Opinion columnist Noah Feldman thinks it’s “absurd” that a federal judge in Illinois has ruled that the state is violating the Second Amendment rights of four concealed carry licensees by prohibiting them (and other legally armed citizens) from bearing arms on public transportation. According to Feldman, any government (be it local, state, or federal) has the power to curtail the exercise of any constitutionally-protected right on its property; an argument that U.S. District Judge Iain Johnston considered and rejected in his ruling. 

As the judge explained, despite Cook County State’s Attorney Kim Foxx’s position that the Bruen test shouldn’t apply to the Chicago Transit Authority’s ban on lawful carry because the government is merely exercising its managerial authority, “it would turn Bruen on its head to default to rational basis review when the government asserts an interest that it isn’t required to demonstrate was part of the historical tradition of firearm regulation.” 

Feldman, however, claims that prohibiting those who depend on public transportation from legally carrying a concealed firearm doesn’t infringe on their Second Amendment rights at all.

The judge’s analysis was wrong in at least two ways. First, the doctrine of government-as-employer isn’t the kind of interest-balancing precluded by the Bruen case. It is, rather, a recognition that when the government acts as an employer, it must necessarily have the power to define the conditions of employment and make sure its employees carry them out. That’s why the government can make it a condition of employment that postal workers not carry guns — because the government-as-employer can define the nature of the job.

Second, when the government controls property and decides what kinds of speech can occur there, it isn’t engaging in interest-balancing. In a public forum like a park, the government must allow all speech subject to time, place and manner limits. In a government building, the government can exclude the public altogether or, yes, prohibit the public from speaking. That’s why I can’t just walk into the White House and start speaking to the president in the Oval Office. In between, there are the spaces known as limited or designated public forums. In those spaces, there is no interest-balancing, just a rule that the government can’t pick and choose what speech it allows based on viewpoint.

So when the government decides what you can and can’t do on public transportation, it isn’t infringing on your fundamental rights. It’s setting rules in space that it controls. It’s the height of absurdity to say that the government may stop you from occupying two seats on the train but can’t stop you from carrying a concealed Glock.

Feldman’s argument misses one obvious point: the government could impose some regulations on the manner of carry, but it’s instead chosen to prohibit it altogether. That’s not the same as barring the public from entering the Oval Office and having a chat with the president. It’s the equivalent of prohibiting all speech from the public square. If the CTA wanted to limit carry to those who possess a valid CCL, while prohibiting gun possession for those who are illegally carrying a firearm, it would be on solid legal footing. But it’s downright silly to argue that banning legal gun owners from using public transportation while carrying is no imposition or infringement on their Second Amendment rights. 

In his column, Feldman calls Johnson’s ruling “a chilling juxtaposition” to the shooting of four people on a Chicago Transit Authority Blue Line train just a couple of days later. But the fact that shooting took place is just another piece of a mountain of evidence that the CTA and its facilities are “gun-free” in name only. And what Feldman didn’t say is that the suspect in that shooting didn’t possess a FOID card or CCL. What’s more, he was apparently arrested for carrying a gun on CTA property five years ago, but the case was dropped by Cook County prosecutors. 

Shootings, stabbings, and robberies are all too common on Chicago’s trains and buses even though the CTA bans riders from possessing guns and knives. The CTA’s current policy only puts good folks at risk, and it’s absurd for Feldman to claim it’s beneficial or constitutional.