The defendants in Schoenthal v. Raoul, No. 25-541 — a cert petition now before the U.S. Supreme Court — just filed a brief opposing review that may go down as one of the most self-defeating submissions in recent Second Amendment history. Cook County State’s Attorney Eileen O’Neill Burke filed it on behalf of Cook County, arguing the Court should deny cert and leave the Seventh Circuit’s ruling intact. Instead, her brief handed the Second Amendment community two gifts it did not need to ask for.
Cook County Concedes Parks Are Not Sensitive Places
Start with the concession that should terrify every anti-gun jurisdiction in America. On pages 15–16 of her brief to the Supreme Court, Cook County State’s Attorney Burke writes:
The sensitive places recognized by the Supreme Court tend to be discrete, confined places, usually specific buildings. That makes analytical sense. As Bruen explained, larger open places like cities, sidewalks, and parks cannot be considered sensitive places because it would effectively nullify the Second Amendment right to categorically exclude them from its coverage.
Read that again. The county that contains Chicago has just conceded before the U.S. Supreme Court that cities, sidewalks, and parks are not sensitive places. That concession directly undercuts categorical gun bans in Maryland, New York, California, Massachusetts, and parts of Virginia — states that have been arguing exactly the opposite. Cook County apparently did not think about what their own attorneys were typing. That concession is now in the Supreme Court record.
The “Novel Theory” That Comes Straight from Bruen Itself
The brief also attacks what it calls the “novel comprehensive security theory” — the argument, central to the Schoenthal petition, that gun-free zones are only constitutional when the government provides compensating security: armed guards, metal detectors, and limited entry and exit points.
Burke’s brief calls this a fringe idea with no support in the law. I found that curious, because the theory’s pedigree runs directly through the opinion she is asking the Court to defer to. In New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), the Supreme Court specifically cited pages 11–17 of an amicus brief filed by the Independent Institute. Here is what those pages say:
From the time of the Statute of Northampton through the American Founding, the principle that weapons-free zones must accompany increased sovereign security remained consistent.
And a few pages later:
The few New World restrictions on the right to carry arms in certain areas were limited in a way similar to the Statute of Northampton — i.e., no weapons in areas near certain government operations in which security was assured by the government.
And again:
They were, however, still limited to areas in which the government provided the requisite security to compensate for the deprivation of the self-defense right.
The Supreme Court read those pages. The Supreme Court cited those pages. Calling the comprehensive-security principle a “novel theory” in a brief directed at the Supreme Court — the Court that cited the exact source of that principle — is a remarkable oversight.
Why Metal Detectors Are Not an Anachronism
One objection I want to address: critics say the comprehensive-security doctrine cannot require metal detectors because they did not exist at the Founding. That misunderstands how Heller and Bruen work together.
In District of Columbia v. Heller, 554 U.S. 570 (2008), the Court acknowledged that at the time of the Founding, handguns were relatively rare — long guns like the Brown Bess musket and the Kentucky long rifle were the common arms. You cannot hide a musket under your coat. A firearm brought into a government building in 1791 was visible to anyone watching the door.
Today, handguns are in common use and Heller held they cannot be banned. But their concealability is precisely what makes a metal detector the functional equivalent of visible-inspection at the door. The principle is the same; the technology matches the era. Federal regulations under 49 CFR § 1562.29 already require armed security at TSA checkpoints — the government knows this, even if Cook County’s brief pretends otherwise.
Beccaria, the Bruen Brief, and a Familiar Name on Page 17
The brief also footnotes an attack on the petitioners for citing Cesare Beccaria (1738–1794), calling it “passing strange.” Let’s go back to page 17 of the Independent Institute’s amicus brief — the same brief the Supreme Court cited in Bruen:
The careful balance drawn by these limited gun-free zones sounds in the philosophy of Cesare Beccaria, an Italian philosopher who was highly regarded by the founding generation. Thomas Jefferson, for instance, copied entire passages from Beccaria in his commonplace book, which has been called the “sourcebook and repertory of Jefferson’s ideas on government.”
That passage cites Stephen P. Halbrook and my own article, Enlightenment Thinker Cesare Beccaria and His Influence on the Founders, 2020 Pepperdine L. Rev. 71. The Supreme Court cited the brief that cites that article. The petitioners are following the Court’s own roadmap. Cook County’s attorneys either missed page 17 of the brief their opposition depends on, or they hoped the justices would.
What Comes Next
The cert petition in Schoenthal v. Raoul, No. 25-541, asks the Supreme Court to settle the sensitive-places doctrine once and for all — to confirm that transit systems with no armed security, no metal detectors, and no controlled entry points do not qualify as sensitive places, and that Illinois cannot strip a licensed carrier of her right to self-defense the moment she boards a CTA bus.
The Firearms Policy Coalition and the Second Amendment Foundation backed the plaintiffs from the district court through the Seventh Circuit’s reversal, and now up to SCOTUS. Whether or not the Court grants cert here, the record Cook County has now built — conceding parks, cities, and sidewalks while inadvertently validating the comprehensive-security principle — is already in place. Gun-control advocates just put it there themselves.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.