The Volokh Conspiracy
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Last week, the U.S. Supreme Court heard oral argument in New York State Rifle and Pistol Association v. Bruen. The issue is whether the Second Amendment right to "bear arms" can be denied to everyone except persons who prove that they have an unusual need for self-defense. Based on the questions during argument, six Justices seemed skeptical that an enumerated right could be limited so that only a tiny percentage of the people can exercise it. A secondary question during argument was where lawful carry can be banned.
The Supreme Court first addressed the issue in 2008 in District of Columbia v. Heller, when the Court stated that bearing arms could be prohibited "in sensitive places such as schools and government buildings." In a VC post last week, I surveyed the legal history of sensitive places, and offered some thoughts on doctrinal development. Below, leading Second Amendment lawyer and scholar Stephen Halbrook provides some post-argument analysis of sensitive places issues. Steve and I have coauthored several works, including Miller versus Texas: Police Violence, Race Relations, Capital Punishment, and Gun-toting in Texas in the Nineteenth Century—and Today, 9 Journal of Law and Policy 737 (2001).
by Stephen Halbrook
A surprising issue dominated Paul Clement's time at the lectern on November 3 in New York State Rifle & Pistol Association v. Bruen. The Justices are considering whether New York's limitation of handgun carry licenses to atypical citizens violates the Second Amendment. Clement, representing the challengers, was subject to a barrage of questions about the scope of the so-called "sensitive places" exception to the Second Amendment. This exception comes from Heller, which cabined its decision by stating that "[t]he Court's opinion should not be taken to cast doubt on … laws forbidding the carrying of firearms in sensitive places such as schools or government buildings."
The Court's focus on this issue was surprising because no one in the case disputes Heller's dicta on this subject and therefore, as Justice Kavanagh indicated, the Court does not "have to answer all the sensitive places questions." Indeed, the petitioners are challenging only the provision of New York's licensing scheme limiting licenses to atypical citizens; they are not challenging the separate provisions of New York law specifying certain places where even licensed individuals are not allowed to carry.
While the sensitive places issue is not essential to resolution of Bruen, it is important. Too loose a conception of "sensitive places" could essentially gut the right to carry. For example, if following a loss in Bruen New York were to enact a law prohibiting carry within 1,000 feet of any school, government building, or public park, it would be extremely difficult to carry lawfully in populated areas. Therefore, if the Supreme Court is going to reiterate the existence of a sensitive places exception in deciding Bruen, as it seems likely to do based on the Justices' questioning, it should be careful to specify some guardrails.
Where should the Supreme Court look for principles to guide the sensitive places analysis? To text and history, which Heller deemed key in Second Amendment analysis. First, the text of the Second Amendment—protecting the right to bear arms—indicates that the government cannot use the pretext of designating sensitive places to effectively eliminate the right altogether. That means that sensitive places must be defined in a way to preserve a meaningful right to carry even in big cities.
Second, history demonstrates that the sensitive places exception is strictly limited. For a full analysis, see the amicus brief submitted by the Independent Institute in Bruen, which focuses exclusively on the sensitive places issue. (I am a Senior Fellow at the Independent Institute but did not contribute to the brief.) As the Independent Institute indicates, sensitive places in the Colonial and Founding Eras were few and far between. A small number of laws barred bringing firearms to legislative and judicial proceedings and polling places. At the tail end of the founding era, in the 1820s, some colleges and universities began to restrict the possession of firearms by students on campus.
Heller tells us to judge contemporary laws by the "historical justifications" for the limits on the scope of the right it identified. And the types of laws in place at the Founding tell us that sensitive places are limited, and they are areas where the government has taken on a particular responsibility for providing for the care and safety of individuals in the location. This is plainly true of legislative assemblies, court houses, and polling places. And given that arms restrictions at colleges and universities were limited to students, those limitations appear to have been based on the broad authority colleges and universities were understood to have over their students and not readily translatable to place-based restrictions where such a relationship is not present today.
The historical record therefore supports Justice Alito's statements at oral argument: "Could we analyze the sensitive place question by asking whether this is a place where the state has taken alternative means to safeguard those who frequent that place? If it's a … place like courthouse, for example, a government building, where everybody has to go through a magnetometer and there are security officials there, that would qualify as a sensitive place."
Structuring the sensitive places analysis in this way would substantially limit the risk of government abuse and would comport with Heller. Heller derived from the Founding the principle that the arms protected by the Second Amendment are those in common use by law-abiding citizens. The Court should similarly derive from the Founding the principle that the sensitive places exception is limited to places where the government has taken on the responsibility to protect those present with concrete steps like access restrictions and security. Thus, an airport terminal on the other side of TSA screening could be deemed a sensitive place. A public park could not. And note there were no buffer zones at the time of the Founding — presumably because the government was not ensuring safety outside courthouses and government buildings.
This result is further compelled by what Heller determined to be the "central component" of the Second Amendment right: self-defense. Enacting a statute prohibiting firearms in a particular location will have little effect on criminals absent rigorous screening and security protocols. As the Framers well knew from their familiarity with Cesare Beccaria, the founder of the social science of criminology, laws prohibiting the possession of firearms make law-abiding citizens worse off because violent criminals will ignore them and have a greater advantage over their disarmed victims.
It therefore is not surprising that one study found that 94% of mass public shootings from 1950 to 2016 occurred in so-called "Gun-Free Zones." A Washington Post fact check put the figure at 86% for 2009 to 2016. As the Washington Post article explained, much depends on which places are considered "gun free." The 86% figure includes stateside military bases, where ordinary soldiers are generally forbidden to possess firearms.
It is inconsistent with a fundamental right to armed self-defense for the government to strip individuals of their right to arms in a location where the government itself does not pick up the slack. Indeed, some have suggested that the government should have an affirmative duty to protect individuals in locations where they have been prohibited from possessing guns and be liable when it fails to do so. See, e.g., Carl Rizzi, A Duty to Protect: Why Gun-Free Zones Create a Special Relationship Between the Government & Victims of School Shootings, 25 Cornell J.L & Pub. Pol'y 499, 513 (2015) (arguing that "courts should find a special duty to protect civilians in gun-free zones").
To avoid misunderstandings and litigation over abuse of the sensitive places doctrine, the Court should make clear that the government's ability to create gun free zones is balanced by a duty of the government to ensure such places truly are safe and gun-free through screening protocols and security.