The sensitive places issue in New York Rifle

The Court should take care not to allow an exception to the right to bear arms swallow the rule

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).

For clarity, I am the research director of the Independence Institute, a think tank in Denver. Steve is a senior fellow at the Independent Institute, a think tank in Oakland.

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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.

Comments

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I have seen no mention of the scrutiny level required for the Second Amendment. I'd think all enumerated rights would require strict scrutiny, but lots of appeals court decisions have settled for intermediate scrutiny, and I have no doubt rational basis would be the most many would want to consider if they thought they could get away with it. Heck, I'd think every government action should require strict scrutiny, but that bird has flown the coop long ago.

Did any briefs or oral arguments touch on the subject?

[Brett Bellmore]

Well, Heller did explicitly reject the minority's proposed "interest balancing" standard, (Which, amazingly, would have been more lax than rational basis!)

They also rejected rational basis, by noting that the DC law would pass rational basis scrutiny, and then striking it down anyway.

Unfortunately, they didn't say anything more about that, because, as they said, the law would fail under any level of scrutiny more exacting than rational basis.

Sometimes it looks to me like they're deliberately slow walking these things.

[Rev. Arthur L. Kirkland]

" Sometimes it looks to me like they're deliberately slow walking these things. "

Perhaps they are attempting to spare gun nuts a severe reckoning imposed by the modern American mainstream?

[LiborCon]

Every state has concealed carry and 21 have Constitutional carry Thanks to leftist imposed lockdowns, police stand downs and refusal to prosecute criminals, millions of new gun owners have joined our ranks, and we’ve pushed the number of firearms in citizen's hands to over 450 million.

We’re winning the fight to protect our right to keep and bear arms. Even Democratic politicians are starting to realize gun control is a lost cause.

[Rev. Arthur L. Kirkland]

How quaint -- a clinger who figures the conservative electoral coalition (and the associated old-timey positions with respect to guns, abortion, superstition, and the like) will survive the American culture war.

Losing has consequences. Better Americans will demonstrate them.

Until then, you keep doin' that thinkin' Ol' Neil is singing about. Try to figure whether the guy in that song survived.

Carry on, clingers. So far as your betters permit, anyway.

[LiborCon]

"your betters"

So you're racist too. Makes sense, racists started gun control, racists want to perpetuate it.

[Rev. Arthur L. Kirkland]

People who favor reason, education, progress, freedom, tolerance, science, work, and inclusiveness are better than people who prefer ignorance, backwardness, bigotry, superstition, insularity, dogma, indolence, and authoritarianism. They have better ideas and judgment and tend, in my judgment and experience, to be better people.

I do not understand the lurch toward an assertion of racism in this context.

If you do not like bigots or bigotry, I expect to learn that you disfavor the current Republican-conservative electoral coalition. Welcome to the liberal-libertarian mainstream, victors in the American culture war and shapers of modern American progress!

[Armchair Lawyer]

"People who favor reason, education, progress, freedom, tolerance, science, work, and inclusiveness are better than people..."

"I do not understand the lurch toward an assertion of racism in this context."

Ever hear of the "White Man's Burden" Rev? And the argument for why it was? It's basically your argument for why some people are better than other people....

[Rev. Arthur L. Kirkland]

Reason, education, tolerance, science, inclusiveness, effort, freedom, progress . . . doesn't sound much like a list associated with race.

Ever hear of the White Male Blog, Armchair Lawyer? You're reading it now.

[Armchair Lawyer]

"doesn't sound much like a list associated with race."
And yet...That's exactly what it was used to justify.

Here, have a read.
https://www.litcharts.com/poetry/rudyard-kipling/the-white-man-s-burden

[Rev. Arthur L. Kirkland]

If you quarrel with the assertion that some people are better than others, I disagree.

Good luck with your attempts to persuade others to view it your way.

[Armchair Lawyer]

Oh Rev,

There are two schools of thought. The first, to which I ascribe, is that everyone is equal. Different, but equal. We may have different skills or attributes, and some of those skills or attributes may be better than someone else's. But that doesn't make us a better person. I may be smarter than you. But that doesn't make be better than you. I may be richer than you, or more educated. But that doesn't make me a better person than you. Everyone is equal.

The second school of thought is that some people are better than other people. Some people are smarter, or more cultured, or more educated, and that makes them a "better class of person" than those who are not as smart, or less cultured, or less educated. Those who are less educated, or less cultured are "lesser people".

The issue with the second school of thought, is that it directly leads to racism, bigotry, sexism and more. As an Englishman visiting Africa in the 1800's, what else are you to think? You're more cultured, more educated, more refined, more wealthy, more powerful, just everything "important" is better about you and your class of people, compared to those dark-skinned natives to Africa. Because of this, you and your white-skinned brethren are just "better people" and those natives are "lesser people.

[Rev. Arthur L. Kirkland]

On one side, three people: an illiterate African or South American tribesman who builds a water system for his village and works ceaselessly to maintain it; an Ivy-educated surgeon who volunteers 1,000 hours each year to perform cleft palate surgery on destitute children across the globe; a woman who overcomes a terrible childhood to become a good mother whose children become educated and good citizens.

On the other side: a Harvard-educated televangelist who bilks gullible hayseeds and cheats the government; a father who insists on homeschooling his children, despite the point that neither he nor his wife graduated from high school, because he believes a deity commands homeschooling; a man who attended Berkeley and has untold riches yet selfishly lies and flouts a virus because he lacks character and judgment.

I have no problem deciding which group constitutes better people.

Educated people can be racists and gay-bashing losers. Poor people can be virtuous community leaders. Rural people can be generous and accomplished. City-dwellers can be selfish jerks. Etc. Etc. Etc.

But education is superior to ignorance. Freedom is better to authoritarianism. Reason, tolerance, and modernity are superior to superstition, bigotry, and backwardness. Science trumps dogma. And people who are on one side of the divide are generally better than people on the other.

Judgment is valuable.

[Kazinski]

Kavenaugh addressed that in the oral arguments (page 53 of the transcript).

He basically said there was no level of scrutiny that was appropriate because scrutiny is just balancing policy arguments, which is not the proper approach when first Text, then history, and tradition have already settled the matter.

You wouldn’t go to a balancing test to decide if someone’s free speech rights could be curtailed for arguing against a vaccine mandate. I’m sure it’s easy to make an argument that the government has a compelling interest to get everyone vaccinated, but who cares? They lose the case before a judge would even get to the point of deciding which factors should be balanced and what level of scrutiny applies.

[David Nieporent]

In fact, Roberts expressly addressed that in Stevens:

The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.

[Commenter_XY]

That is a great quote from CJ Roberts. Dead on, too.

[Kazinski]

I’m sure Roberts just made that quote up just to goof on us, because no lawyer who would represent the US in court in a free speech case could possibly have written this sentence: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”

[David Nieporent]

Not only didn't he make it up, but a Supreme Court justice was listed as the lead author on the brief that included it! (Obviously she wasn't a justice then.)

[Bubba Jones]

Where does "least restrictive means" testing come into play? I should be able to go about my day without having to map out a circuitous route to avoid buildings I'm not even planning to enter.

[Stephen Lathrop]

Indeed, Bubba. And you could travel with complete assurance if all the boroughs of New York were declared sensitive places, and you simply took off your gun. Do likewise in all the other high-density populated areas of the nation, and there would still remain probably ~95% or more within the area of the nation in which to carry however you wanted.

More good news: if that became the standard, you would probably have de facto the closest approximation to late-colonial/founding-era practice you could prove with the historical record. Arguments paraded to the contrary by non-historian gun advocates are bunk.

Best of all, you might that way create a gun rights regime with staying power, by giving up 4 or 5 percent of the nation to the majority of citizens who display an actually-intelligent sensitivity. They reasonably object to continuous encounters with strangers carrying guns in crowds, apparently armed against no more specific hazard than contingency—and thus, under standards of reason the majority sensibly practice, at unacceptably high risk of carrying for some less-than-legitimate purpose. There can be no basis at all to deny that if you make gun carrying in densely-populated areas normative, you then create normative camouflage for criminally motivated gun carriers to move about at pleasure. What is unreasonable about fearing that as an outcome?

Why is that gun carriers are not satisfied unless they can use their guns in public to intimidate bystanders, with not a bit of refuge left for the majority whom that carrying oppresses? And on what principle can the law assert that intimidation of non-carriers is an illegitimate basis for regulation? Historical evidence is available to show that public intimidation as a basis for regulation has indeed been included in past practice.

All that stuff Halbrook and Kopel want you to misunderstand, and keep arguing against from the the 14th century onward—about aggression and people terrorized—is exactly the language used at the time to describe intimidation. Indeed, if the basis of the present argument were simply to be applied retroactively, with pro-gun advocates put on their mettle to show a founding era precedent that gun carrying could not then be prohibited anywhere, the entire pro-gun argument would collapse. There is no such precedent to be found in the historical record of the colonies, of the United States, or of pre-founding-era Great Britain.

There is nothing at all in history to prove a legal regime prohibiting local powers to govern arms carrying everywhere in the U.S. What pro-gun advocates demand now is entirely unprecedented.

[Rev. Arthur L. Kirkland]

" Why is that gun carriers are not satisfied unless they can use their guns in public to intimidate bystanders, with not a bit of refuge left for the majority whom that carrying oppresses? "

They're selfish, antisocial, obsolete dopes who will experience the consequences of being on the wrong end of a culture war soon enough.

[Gandydancer]

Your posing is so far past boring, Asshole.

[Rev. Arthur L. Kirkland]

Instead of being so cranky, why not be grateful my boring observations from the liberal-libertarian mainstream are accompanied, in the marketplace of ideas, by the exciting material contributed from the disaffected right-wing fringe by Prof. Volokh and Prof. Blackman?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Oh, if only followed his own advice and kept his yap shut!

[Jason Cavanaugh]

"And you could travel with complete assurance if all the boroughs of New York were declared sensitive places, and you simply took off your gun."

So he can not worry about the exercising of his constitutional right, by simply not exercising said right? Brilliant!

Where's your 'historical evidence' you claim exists? Where's your evidence-based rebuttal to the claim that Kopel wants us to "misunderstand" something?

"Arguments paraded to the contrary by non-historian gun advocates are bunk."

Strong conclusion from someone who provides nothing but a partisan rant to support it. Your argument is nothing more than "I'm afraid of guns so the 2A should only exist for people who don't live around other people."

How embarrassing for you.

[Stephen Lathrop]

The embarrassment is all yours, Cavanaugh. That, "afraid of guns," crap is a bad habit. Folks like you ought to wonder whether they know what they are talking about. They whip out, "afraid of guns," because they have nothing better. They think, foolishly, that "afraid of guns," is some kind of all-purpose magic to discredit gun policy advocacy they disfavor.

For all you know, the people you use that on have notably more experience owning guns, carrying guns, and especially using them to kill, than you do. A fair number of them may also have the experience of being shot at, seeing others shot, or losing friends and loved ones to gun violence. That is an unfortunately commonplace experience in today's America.

Of course, it should not take someone with extensive gun experience to cherish a healthy, respectful fear of what guns can do, and to mobilize that fear as an aid to safety, and as an encouragement to humility about the limits of gun prowess. It usually takes a knucklehead with thin gun experience to think the contrary. Of course, those are in plentiful supply.

Mostly, extensive experience using guns chastens confidence. (I'm not talking about gun range experience, which too often instills dangerous complacency.) After real-world gun experience, only an absolute fool is likely to continue with false confidence about guns. But some of the pro-gun commentary on this blog pretty clearly comes from that latter class of fool.

A great deal more of it comes from folks too inexperienced to realize that most of what they think they know they got vicariously. Those are often gun owners whose actual experience with guns is quite casual. Guns are easy to buy, so they buy one. They go to the movies. They watch TV. They read gun mags when they feel ambitious about topping each other as amateur ballistics experts. They love to spout gun pedantry in online debates, and to denounce more thoughtful people—including more-experienced gun users—who don't bother with pedantry.

I know that because I have spent plenty of time among folks with extensive real-world gun-carrying experience, and extensive real-world shoot-to-kill experience (military and hunting both)—more time than most of these VC nut cases have. I was not in the military. I have hunted plenty. I have been shot at, more than once, on purpose and by accident.

From that time around experienced gun users, I Iearned that very few actual gun experts talk like these pro-gun blog commenters do. Not only that, the ones who do talk that way scare the others, who try to avoid being around the big talker if he has a gun handy.

Do you actually suppose that a combat veteran, or someone with thousands of hours carrying guns in the field to kill game, would never advocate restrictions on gun carrying in New York? If you do, that suggests to me you do not know many folks with much real-world gun experience.

[Jason Cavanaugh]

Nonsense.

(I'm still waiting to see any evidence of your previous argument contradicting whatever you think Kopel wants us to "misunderstand" by the way.)

You allege that the mere carrying of a firearm is intimidating, and indeed meant to be so.

You claim someone can 'get around' the issue of prohibited-carry areas by simply not exercising their 2A right.

You denigrate the desires of your fellow citizens to exercise that right because you don't think it's necessary.

The rest of your goalposts aren't worth remarking upon, other than I'm glad you believe that having friends who own guns, and having hunted before somehow absolves the complete lack of evidence for your argument and that we should all just trust your instincts on the issue.

But that dog don't hunt.

[Stephen Lathrop]

Cavanaugh, if you are like most people, you think history is just something anyone can do, is entitled to do, and does according to taste. You learn a bit or two about the past, and then based on what you learned, you make up any story you please. The usual standard applied is plausibility. If the story sounds plausible to the guy making it up, he figures that is as good as anyone can do, and concludes also that any critique of his own views is based on the same essentially arbitrary methods he uses himself.

Typically, the people doing that are most pleased by stories made up to confirm points they want to make about the present—and especially about present policies they want to promote or undermine. That should sound familiar to you.

That is history as almost every lawyer practices it, and indeed, as almost everyone not trained in academic history practices it. It is also what people not trained in academic history presume actual historians do.

Thinking that, people untrained in academic history feel free to critique the work of purported historians, based on how well or how poorly the would-be historians' work supports those aforementioned preferences for presently-useful narratives. Narratives found most useful get high praise from those eager to use them. There is nothing in a process like that which tends to make such narratives reliable accounts of what happened in the past.

A person proceeding that way doesn't have a clue that there are historical methods and standards of reasoning—practiced by professional historians—which have been developed through collegial efforts now stretching over more than 2 centuries. All along, the aim has been to find methods of research and reasoning which later research tends to confirm, and to eliminate other such methods which later research tends to disprove.

Taken together, that body of knowledge is called historiography. People who want to practice history professionally get trained in those methods. That kind of training is a principal focus of a first year graduate history seminar.

A great deal of that systematized methodology is counter-intuitive, and thus a bit difficult to learn, at least at first. Folks who get into history with an idea to make it useful to present-day arguments tend to get weeded out. Any such focus on present-day usefulness almost invariably sorts poorly with the actual content of the historical record. If you find yourself fighting the historical record, you are wasting your time as a would-be historian.

If you are talking about anything except the recent past (recent being back maybe a 100 years or less), and think you have discovered in some long-ago era extensive support for arguments which people engage in today, then you need to stop and think. That interval between then and now—however long it stretches, with longer intervals more daunting—was filled with occurrences which shape our thinking today—shape it more, in fact, than anything from the more distant past. And none of those occurrences, which together form the sum and substance of our present style of thought, could have had any influence on what happened in any era preceding them.

In short, before you can begin studying the past, you have to begin by noticing that you will be bringing with you an enormous burden of presumption which taken together amounts to an almost entire world view, formed on the basis of experiences which came after the era you intend to study. It is thus a world view which dominates your thinking, and which your historical subjects did not share in the slightest. One of your first and most daunting tasks as a would-be historian of a particular era is to learn what it is that you presume, but which your subjects of study could not think about at all. To do that, you have to know that era as if you had lived in it.

Thus does a would-be historian learn the need to discover in almost limitless detail the historical record of the times and places on which he focuses. That requires from a historian a willingness to narrow his scope to a frame compact enough to master. Mastery implies reading from the record of the times and places under study enough to enable the would-be historian to give himself an education of the sort an exceptionally well-educated person in that time and place would have got.

Note that all that reading must be done from sources which were contemporaneous with the era studied, or which preceded it. As mentioned, almost nothing which comes afterward is relevant. Occurrences and records which post-date the era under study cannot have influenced what happened before them, or influenced the thinking of anyone for whom those occurrences happened in an unknowable future.

I have barely scratched the surface, but perhaps have laid a foundation to cut this short. If you compare what you get from Kopel and Halbrook with my remarks on historical methods, you should seen enough to make you cautious.

Kopel and Halbrook pretend to historical interpretations which no one could make reliably. Academic historians from the modern era of historical practice—post-Gibbon—do not begin to command narratives of time and place anywhere near as expansive as Halbrook and Kopel have done. If their work were reliable, they would be the greatest historians who ever lived, and unrivaled. It would be a marvel past ordinary comprehension that they accomplished so much more than anyone else, and all without relevant training. If for no other reason, you can tell simply by the scope of their pretension that they do not know—and could not know—what they are talking about.

Their actual achievement is to pretend so much that it would take a platoon or more of actual historians, mustering each a lifetime of experience, to refute their claims with specifics. I will not attempt that by myself. If pressed I could certainly point to a few bits about pre-founding-era colonial history—the little bit of the record which I read in graduate school—that they clearly misconstrue, or do not appear know about at all. I should note that I am not myself a professional historian, nor did I ever become one, although I got a good deal of high-quality training before changing my focus.

Because I doubt you want to trust me at all on any of this, I am not going to give it more time now. Let me suggest that if you were actually interested, you could begin by reading an essay by Michael Oakeshott, called, "The Activity of Being an Historian." It is available in a larger collection of essays by him titled, Rationalism in Politics. The entire book is superb. Start with that, and we could have a better discussion later.

[David Nieporent]

Blah blah blah. Historians read and analyze sources.

[Stephen Lathrop]

Nieporent, analyze by what methods, and according to what standards? Your heedless presumption is apparently that historians use methods and standards which you yourself might bring to the task—as if the historical record is something you can read like a newspaper. Nothing like that happens.

We are all brought up present-minded. The activity of historical research cannot be practiced successfully by present-minded people. Would-be historians cannot remain so. That has implications. To understand, read Oakeshott, for a start.

[Jason Cavanaugh]

This may shock you, but I'm actually quite aware of how history is to be analyzed.

What I'm not aware of is what your sources are for your claim that Kopel wants us to 'misunderstand' anything.

I don't need a short-story on the history of the Historian profession - I need you to ante-up and provide a primary or secondary source for your claims.

You know - like Historians do.

[Stephen Lathrop]

Cavanaugh, your notion is mistaken that history is analyzed using dueling present-minded interpretations, backed by cherry-picked citations, with victory going to whomever gets in an un-refuted claim.

Good historians decline all invitations to play that game. They know it has everything to do with present-minded outcomes, and nothing to do with what happened in the past.

Such contrasting modes of analysis cannot converse. The great historian Edmund Morgan was once offered an invitation to do something similar. A sociologist requested Morgan to fill out a form. Morgan was to provide to present-minded questions answers in the voices of various of America's founders.

Morgan's reply was simple. "You can't do that," he said.

He did not mean it was against the rules, or contrary to custom, or even that it would be bad history. He meant it was impossible.

Needless to say, what Morgan could not do, Kopel and Halbrook cannot do either. But they pretend to do it. From what you get from them, you convince yourself that you understand how history is analyzed. No, you don't, not if you believe Kopel and Halbrook.

Once again, read Oakeshott to get started.

[Jason Cavanaugh]

"Such contrasting modes of analysis cannot converse."

So having asked for the third time for evidence of your argument, your response is best understood as:

"I can say he's wrong, but I can't/won't provide any evidence to support my POV, because historians don't argue like that.

But he's wrong."

You expect that argument to be taken seriously? SMH.

[Stephen Lathrop]

Cavanaugh, no. I do not expect any argument to be taken seriously by you, unless you suppose it confirms your prejudices. You have no idea what you are talking about. You insist that you do. You have not yet bothered to read an authoritative work which could at least begin to set you straight. I put Oakeshott before you as someone better qualified than I am, and far more persuasive. What you will not try to take from him, I remain powerless to help you with.

If you actually have any interest in the past, which I doubt, there is a world of discovery available. But maybe you ought to start from a premise that the object of the study of history is the transformation of the historian. That begins with forthright curiosity. Give it a try.

[David Nieporent]

That, "afraid of guns," crap is a bad habit. Folks like you ought to wonder whether they know what they are talking about. They whip out, "afraid of guns," because they have nothing better. They think, foolishly, that "afraid of guns," is some kind of all-purpose magic to discredit gun policy advocacy they disfavor.

That was literally your argument!

"Why is that gun carriers are not satisfied unless they can use their guns in public to intimidate bystanders, with not a bit of refuge left for the majority whom that carrying oppresses? And on what principle can the law assert that intimidation of non-carriers is an illegitimate basis for regulation? Historical evidence is available to show that public intimidation as a basis for regulation has indeed been included in past practice."

Either you completely misunderstood the "historical evidence" and the discussion, or you said that people being scared of guns was justification for abrogating the right to bear arms. The historical evidence cited was that carrying arms for the purpose of intimidating could be regulated, but that carrying arms in and of itself could not be regulated as inherently intimidating.

[David Nieporent]

I know that because I have spent plenty of time among folks with extensive real-world gun-carrying experience, and extensive real-world shoot-to-kill experience (military and hunting both)—more time than most of these VC nut cases have. I was not in the military. I have hunted plenty. I have been shot at, more than once, on purpose and by accident.

From that time around experienced gun users, I Iearned that very few actual gun experts talk like these pro-gun blog commenters do. Not only that, the ones who do talk that way scare the others, who try to avoid being around the big talker if he has a gun handy.

"No True Scotsman."

[ThomasD]

"No True Scotsman."

More like "How could Nixon have won if nobody I know voted for him?"

[Kazinski]

Well it seems to me that ACB, Roberts, Alito, and Kavenaugh spent so much time on “sensitive places” because they wanted to nail it down and keep it from being abused.

Roberts didn’t seem sympathetic at all to the notion that the highest crime areas could be the places where you had the weakest gun rights. Alito explored the idea of limiting sensitive places to places where access is already restricted, courts, schools, government buildings, stadiums, and perhaps campuses, but maybe just buildings on publicly accessible campuses.

But certainly not whole areas of the city, and I certainly hope not public transport.

People who generally care about public safety will want to keep gun free zones to a minimum, if the Washington Post is admitting that 86% of mass shootings are happening in gun free zones, which are probably less than 1/2% of public places, then it’s clear that they should be kept to an absolute minimum.

[Sebastian Cremmington]

Mass shooters are suicidal and want to die so more guns out in public makes mass shootings more likely. Furthermore, the Rittenhouse case shows how suicidal people are attracted to people open carrying because they want to get shot and don’t care about their lives or the lives of bystanders.

[Jason Cavanaugh]

"Mass shooters are suicidal and want to die so more guns out in public makes mass shootings more likely."

How incredibly odd then that they overwhelmingly choose "Gun-Free Zones" as their targets. Almost as though they want to commit their crimes WITHOUT opposition.

Your conclusion is laughable.

[SimonP]

But certainly not whole areas of the city, and I certainly hope not public transport.

Well, look - you can take the "self-defense" rationale for Heller seriously, when devising what constitutes a "sensitive place," or you can continue to just make ad hoc decisions about it, in whatever way happens to suit your preconceived biases.

If Kopel is right, then any state or municipal government that wants to limit gun-carrying in "sensitive places" need only devise an alternative means of providing for the defense of the spaces to be covered. So: at every subway turnstile, they need only require people to go through metal detectors, be subject to random search, etc. Presto, you've got a "no guns on the subway" rule that is consistent with the Second Amendment's non-existent "sensitive places" clause.

[Birdog357]

Chicago bans carry on public transportation. The state of IL bans carry in the oasis on I-294 along with many other places.

[DavidWH]

Missouri bans carry on public transportation, and it is not just a trespassing threat, but an arrestable crime.

[Longtobefree]

The second applies everywhere the first, third, fourth, fifth, sixth, seventh, eighth, ninth and tenth apply.
It says "shall not be infringed"; it doesn't say "shall only be infringed a little bit in a few places, sort of"

[Dilan Esper]

That's a dumb argument. The Second Amendment is a very different right than the others. There are plenty of places (such as libraries) where it is safe to have people carrying guns but we can restrict people from speaking, and plenty of other places (such as airports) where people are welcome to speak but guns would be a danger.

[Currentsitguy]

I'm sure you can point to the exception clause for the 2nd?

If not, sorry. The 2nd Amendment is no different than any of the other 9. If you exercise your 1st Amendment Rights somewhere, you can exercise your 2nd.

After all, the 2nd is the only reason we still have the 1st.

[Sebastian Cremmington]

So you believe guns should be allowed on domestic flights?

[JSinAZ]

They are allowed on domestic flights, as checked baggage.

[Currentsitguy]

Why not? If a majority on any given flight were armed, the chances a lone nut could take over would be greatly reduced.

I'd feel a heck of a lot more comfortable, just like I do in any public situation, knowing a good chunk of the people around me are armed.

I am always very wary in any situation where I know people have been disarmed.

[Rev. Arthur L. Kirkland]

"If a majority on any given flight were armed, the chances a lone nut could take over would be greatly reduced. I'd feel a heck of a lot more comfortable, just like I do in any public situation, knowing a good chunk of the people around me are armed."

Please stay in the can't-keep-up, uneducated, emptying backwaters with the other shoot-'em-up fans. Thank you.
Sincerely,
Residents of successful, modern, educated, reasoning, improving, growing America

[Currentsitguy]

If you think what you spout passes for being "educated" I'd ask for my money back and leave any important decisions to the adults.

[Rev. Arthur L. Kirkland]

How far do you need to drive to find more than one advanced degree from a reputable institution on a block, or a street?

[JSR2]

That's a dumb argument. The First Amendment does not prohibit a library from preventing all speech. It does prohibit a library from limiting speech only to that approved by the library (assuming it's a government library). And why are guns dangerous at an airport while not at a library?

[NOVA Lawyer]

Well, for starters, there are generally more people in airports than in libraries. Also, guns in airports makes it more likely to get on an airplane. Presumably, you don't need it explained why allowing the general public to carry loaded guns on their person on airplanes is a bad idea.

And the First Amendment does allow content neutral regulation of speech in a library. There is no real "content neutral" (i.e., some is permitted, but not all) analogue to the Second Amendment, it's more a can/can't thing by necessity. I guess you could say shotguns but not pistols is similarly only partially inclusive, but that doesn't really meet the quite reasonable objections to guns in airports.

I predict with near certainty that the Supreme Court will rule in favor of the gun owners in Bruen and will foreshadow that sensitive place restrictions are permissible, with the contours to be defined via future cases.

Now, what will all the pro-SB 8 people say when New York issues concealed carry permits, but puts a private bounty on any gun owner carrying within the state of NY unless, as an affirmative defense, the gun owner proves they had special need for self-defense at the time they were carrying and otherwise modeled SB 8's due process and avoidance of judicial review pre-enforcement and, for good measure, retroactivity.

[Absaroka]

FWIW, in my state at least it is perfectly legal for permit holders to carry in airports if they aren't going through the TSA checkpoints, e.g. when picking up or dropping off people. It doesn't cause any problems.

[NOVA Lawyer]

I think that's a fair point. Driving through, certainly, should not be a problem. I am not outraged if inside the actual building but outside TSA screening is deemed a sensitive place, but also not outraged if it isn't.

[Gandydancer]

...what will all the pro-SB 8 people say when New York issues concealed carry permits, but puts a private bounty on any gun owner carrying within the state of NY unless, as an affirmative defense, the gun owner proves they had special need for self-defense at the time they were carrying and otherwise modeled SB 8's due process and avoidance of judicial review pre-enforcement and, for good measure, retroactivity.

To be akin to SB8 the law oroviding for a private bounty on gun carrying would have to include a provision banning awarding bounties unless Heller is overturned. In other words it would be a nothingburger.

Further, what you call "retroactivity" isn't.

[Absaroka]

FWIW, a bit of history: Washington state has had shall issue permits since the early 1960's.

Then one day, maybe ??20?? years ago an estranged husband (??significant other??) killed his wife in the courthouse parking garage as she arrived for a hearing (I don't remember if it was for a divorce or abuse proceeding). Not surprisingly, there was an immediate push to a)ban guns in courthouses and b)install metal detectors. Surprisingly, our distinguished solons did some second order thinking, noticing that the proposed bans not only would not have prevented the murder - she was killed in the parking lot, outside the proposed secured areas - but would have prevented her from protecting herself from her dangerous ex.

They came up with RCW 9.41.300 1b:

"...In addition, the local legislative authority shall provide either a stationary locked box sufficient in size for pistols and key to a weapon owner for weapon storage, or shall designate an official to receive weapons for safekeeping, during the owner's visit to restricted areas of the building."

This is eminently sensible. Putting up a sign doesn't stop people with bad intent from entering. Having metal detectors and guards does. Providing storage means that the vengeful ex or whoever can't take advantage of knowing that his intended victim will be unarmed at a specified place and time.

This has been working well for a number of years.

(apologies for the vagueness about the original incident - various attempts googling for it just got pages of generalized results about courthouse carry)

[jimc5499]

A few years ago, locally, we had a woman who's ex-husband was making threat to her. She went the whole PFA routine and talked to the Police. Finally she bought a pistol, took training and got a CCP. Her place of employment had a "no weapons policy", so she would leave her pistol locked in her car. One morning she picked up a coworker and gave them a ride to work. During the ride her glove box popped open and her pistol was visible. Her coworker told HR that she had a weapon in her car. She was told that they had the right to search her car at any time and if a weapon was found her employment would be terminated. So she stopped carrying her weapon when she was going to and from work. A few months later her ex-husband runs her off the road, shoots and kills her. If the Government is supposed to protect "sensitive places", Shouldn't a business have the same obligation if they declare their premises "Gun Free Zones"? Wouldn't this also prevent employers from demanding that employees not have weapons in their personal vehicles?

[Dilan Esper]

As the Independent Institute indicates, sensitive places in the Colonial and Founding Eras were few and far between.

So what? The reason for a sensitive place exception is because there are some places where allowing people with weapons would increase the danger.

Take a situation I suspect nobody disagrees about: the White House. Given there are always, no matter who is President, a number of crazy, violent people out there who maintain fantasies of assassinating him, it's not safe to allow people to carry their weapons into the White House. That's the justification for the sensitive place exception. It's about places where the danger is specifically higher than it is in an ordinary situation. It's exactly the sort of balancing that gun rights types hate, but it is clearly that.

In other words, it's NOT based on a strict situation of "only these places in history where gun rights were restricted are sensitive places". It's "whatever places where allowing unrestricted carry would result in a significant threat".

To put it another way, the restriction on guns at the White House is constitutional even if historically, guns WERE allowed in the White House. So what? We're not going to allow someone to get close to the President with a gun just because of some historical argument.

So I really don't think the courts should care what the history is. They have to simply assess danger to determine what the sensitive places are. Sorry, Prof. Kopel, but that's the only way this can work.

[Kevin Smith]

Here's an idea: If the place is sensitive enough to require metal detectors, security checkpoints, and armed guards, it is sensitive and guns can be banned. If it does not have those things clearly it is not particularly sensitive and guns cannot be banned there

[KevinP]

I agree with this, particularly the minimum of "armed guards".

If there are no armed guards on the premises, then the location isn't particularly sensitive.

[Dilan Esper]

That's one possible approach- note, though, it isn't a historical one. I was critiquing the historical argument.

[Rossami]

I'm not so sure about that. All the historical examples I can think of did in fact have armed guards. Legislatures, for example, still have a position called the Sergeant at Arms - and historically, he actually was armed. What historically sensitive places can you think of where there were restrictions against weapons but no armed guards?

[Dilan Esper]

The comment I was responding to said armed guards, metal detectors, security checkpoints.

You can't get THAT test from history.

If the test is just armed guards, I bet a lot of gun rights people would argue that's underprotective of the right.

[Brett Bellmore]

I think the basic rule is that, if you're not doing anything to keep bad guys, (Who don't CARE if it's illegal to bring a gun, remember.) from entering a place, then forget what you might claim, you obviously don't actually think it's a 'sensitive' place.

The details of the measure you use to bar criminals from entering armed may differ, but relying on the honor system is, facially, an admission the place isn't sensitive enough to justify disarming the law abiding.

[Kevin Smith]

I'm not sure what "gun rights people" you are talking to, but if you have enough armed guards to render a place safe from criminals, any gun rights people I know would be OK with disarming before entering

[Kazinski]

Schools mostly don’t have armed guards and metal detectors and I’m quite comfortable with schools being “sensitive places, as long as it doesn’t apply to private vehicles dropping off and picking up students.

[Toranth]

Who, exactly, do you want to prevent having guns at schools?
Students (with a few exceptions) are too young to possess them.
Teachers are adults, and as they are in positions of authority and trust, should be capable of handling a gun. If they categorically cannot be trusted to be armed, why can we trust them around the children at all?

Are visiting parents attempting to enter the school for meetings the only people you want to ban?

[NOVA Lawyer]

I've known too many teachers to take this seriously. There is a difference between trusting Ms. Mulder with kids (she's great!) and trusting her to: a. ensure the gun is secured against students obtaining it, b. has the wherewithal and practiced skill to be of any use in a situation needing an armed response. In other words, the majority of teachers I have known I would trust with kids and their eduction, but I would also expect they would be orders of magnitude to be involved in an unfortunate gun accident than playing.

[NOVA Lawyer]

Somebody needs to proofread before posting:

In other words, the majority of teachers I have known I would trust with kids and their education, but I would also expect they would be orders of magnitude more likely to be involved in an unfortunate gun accident than playing hero using lethal force.

(Conversely, I would likely intuitively trust Seal Team 6 with guns, but would not just assume they'd be good for the kids. Oddly, competence and even skill in one area does not translate into other areas. It's almost like teaching children and the beneficial use of lethal force involve skill sets that, if they overlap, overlap only in the most general (are you not a psychopathic maniac) sense.

[Michael P]

Nobody is proposing forcing teachers to carry guns, much less have a duty to use them to defend anyone else. If teachers were allowed to carry, it is likely that those who choose to carry would be more competent and conscientious with their carry weapons.

[NOVA Lawyer]

You're right. Nobody is proposing forcing teachers to carry guns.

"it is likely that those who choose to carry would be more competent and conscientious with their carry weapons."

Um, definitely not the most likely outcome (or, if so, maybe as a rough average but with many, significant outliers). People are generally really bad at assessing their own competence on these sorts of issues. How many drivers do you know who think they are a below average driver? Yeah, me either. How many do you know who are overconfident in their abilities and/or frequently careless even if they have the underlying skills when paying adequate attention? Too high to count for me too.

And this is people self-evaluating something they do almost every day, or at least hundreds of hours a year on average. Whereas, it is highly atypical for anyone to have used a self-defense weapon in an actual self-defense situation. So most of us are just guessing about how competently we'd actually respond if it became necessary.

[Gandydancer]

Students (with a few exceptions) are too young to possess them.

Really? Recent blog post:

JOSH BLACKMAN | 11.8.2021 7:00 AM
11/8/1994: U.S. v. Lopez argued.

I looked up the case. Why don't you?

[Toranth]

Lopez was one of those few students that turn 18 during their senior school year - the members of the "few exceptions" group I mentioned, and you quoted.

[Brett Bellmore]

I grew up in an era when high schools had rifle teams, and students might have guns in their cars for going deer hunting after school. People would fly on hunting trips with their guns in carry on baggage. Minor children could be sent to the hardware store to buy ammo.

I think a lot of us have gotten used to a degree of gun control which is historically quite recent, and forgotten that within living memory guns were a routine part of life in places where we've been trained to be shocked at them showing up.

[SimonP]

What possible distinction would you draw between school grounds and the car drop-off area for students, in terms of what's a "sensitive place"? Kids can't get shot, or shoot each other, there?

[NOVA Lawyer]

Well, although I think drop-off areas at schools are generally considered sensitive areas (though I don't necessarily have a problem with parents concealed carrying as they drop off), several pretty obvious differences:

1. student density,
2. the availability of large, dense items to put between yourself and a shooter,
3. multiple avenues of escape (often with trees!) rather than, as in many if not most schools, densely packed classrooms opening onto one hallway that, unfortunately, works pretty well as a shooting gallery, and, of course,
4. the possibility of driving to safety in a relatively protected enclosure.

I don't think it is an accident that most school shootings, as I am aware, were in the school rather than in the "drop-off zone."

[SimonP]

Yes, and drop-off areas are unlikely to have colorful depictions of the alphabet, as well.

Amateur hour over here.

So, no, this doesn't work. What we're trying to decide is whether the "right to self-defense" ought to penetrate into a putative "sensitive place." The kind of analysis that David has outlined, as a way of deciding this question, turns on whether there is enough control over the environment that the need for "self-defense" is adequately addressed by those controls, such that the need to carry guns in the relevant sphere is minimized.

Maybe that's the right analysis, maybe it's not. But if it is, certainly pointing to opportunities to use environmental conditions to promote one's own self-defense without the use of firearms is exactly the opposite of a relevant factor for deeming something to be other than a "sensitive place." You're basically admitting we don't need guns at student drop-off areas, either, so there's no issue with deeming them to be a "sensitive place."

[Gandydancer]

I agree that the possible availability of routes to run away that don't offer clear fields of fire is insufficient to make student drop-off areas non-"sensitive" places. But I see little about student drop-off areas so different from other public areas as to make them so "sensitive" as to bar parents from having guns in their cars.

nb: Examination of the WI statute (in the Kyle Rittenhouse case) reveals that long guns can be openly carried there at the age of 17 (though the prosecutors evidently can't be relied upon to read and understand the statute, perhaps because judges have had similar problems and there's caselaw getting it wrong). But perhaps the school parking lot scuffle not allowed into evidence at the trial is evidence that that age is too young for the current rule. But that's an argument for general application, not merely to "sensitive" areas.

[NOVA Lawyer]

SimonP,

"So, no, this doesn't work."

Why? You say: "The kind of analysis that David has outlined, as a way of deciding this question, turns on whether there is enough control over the environment that the need for "self-defense" is adequately addressed by those controls, such that the need to carry guns in the relevant sphere is minimized."

Um, then it's even more bleeding obvious why the inside of a school, which tend to be pretty highly controlled relatively to other places (and are certainly capable of such), particularly including parking lots/drop-off zones which necessarily involve people driving cars into the area in which they may or may not have a weapon of self-defense (or, criminally, offense). But this aspect is so obvious, I assumed you couldn't mean that. Apparently, you did. So, yeah, that works that a building with limited access points, strict controls on who is permitted inside, a condensed and vulnerable (under age) population, and, in some cases, metal detectors, is very nearly a quintessential "sensitive place" whereas parking lots (drop-off areas), almost anywhere, are pretty much exactly the opposite of that due to the nearly impossible task of implementing any practical or meaningful controls.

If you didn't see that, glad you asked.

[SimonP]

But this aspect is so obvious, I assumed you couldn't mean that. Apparently, you did.

You're trying to be snarky, but you don't seem to recall your prior comment. The distinctions you drew cut directly against David's analysis. You're saying that "sensitive places" are "sensitive" because the people in them are especially vulnerable to attack - they're "sitting ducks." But David's point is to say precisely that they're not "sitting ducks"; we don't need to carry guns in these places because we're protected in other ways.

Do you follow? You can't now claim that you took David's distinction for granted, when your prior comment demonstrated a completely different frame for thinking about "sensitive places."

Like I said in my response to you. But I guess that went over your head.

Again, amateur hour.

[NOVA Lawyer]

You're just avoiding the fact that your initial comment makes no sense (whether as you claim, it was limited to the highly controlled aspect of David's framework or, as it appears, you were asking Kazinski what possible reason he could have for differentiating schools from school parking lots:

"What possible distinction would you draw between school grounds and the car drop-off area for students, in terms of what's a "sensitive place"? Kids can't get shot, or shoot each other, there?"

Whether kids "can't get shot" raises the issue of vulnerability of the people in those places. The point remains that, in fact, kids can get shot (in large numbers, especially) more easily in school than in the parking lot. So, yeah, perfectly valid response to your comment. Moreover, that is an issue the Justices themselves discussed when talking about sensitive places, so the likelihood of mass casualty events in a given location is, they at least suggested, a relevant consideration as to what places are sensitive. Both your comment in particular and the broader discussion raised the vulnerability aspect of determining what places were sensitive.

Then you say, you just meant to focus on the aspect (which is not the only aspect) of David's post dealing with "whether there is enough control over the environment that the need for 'self-defense' is adequately addressed by those controls."

So, I pointed out that that criteria for a sensitive area, as that aspect of David's proposed framework is set out, also obviously makes inside schools much more like regulable "sensitive areas" than drop-off zones or parking lots.

Just to reiterate:

"Um, then it's even more bleeding obvious why the inside of a school, which tend to be pretty highly controlled relative[] to other places."

And, I gave as examples of the control that they are shut off from the outside, there are generally strict criteria as to who is allowed in and, in some of them, there are metal detectors. You can't have misunderstood that. So, your original point was garbage on that count too.

In addition, schools were an example David raised of places that, in the founding era, had restrictions on bringing guns into them. Not a word on drop-off zones in the historical record. Drop-off zones are different from schools for a multitude of reasons. And they are obvious.

[Kevin Smith]

If its a sensitive place why would you rely on the honor system for keeping it gun-free? If its sensitive enough that guns shouldn't be brought in, isn't it sensitive enough that we should *make sure* guns aren't being brought in?

[Bored Lawyer]

You need to define better what you mean by "increase the danger." What makes a gun in the White House more dangerous than in a Wal-Mart parking lot? It is not something inherent in the place. A gun in either place can kill someone.

So why is the former more dangerous? Is it that nutcases are drawn to the former more than the latter? That the potential victim(s) are more sensitive? Something else? Some combination of those?

[Dilan Esper]

That's why we have courts. They will have to figure this out- and history is going to be only of limited use to them.

[Bored Lawyer]

That's a dodge. You are trying to limit an enumerated right. The plaintiff, quite reasonably, wants to know what the limitation is, otherwise it will be so broadly defined as to exclude an entire city, rendering the Second Amendment a nullity.

[Dilan Esper]

Oh stop it. If you want to participate in this discussion, don't make cheap, brainless attacks like "you are trying to limit an enumerated right". You know damned well how constitutional interpretation works so stop pretending you don't.

"Sensitive places" is going to work no differently than "exigent circumstances" or "necessity" or "dangerousness of the detainee" or any number of other legal concepts that are used to define the scope of constitutional rights.

[Bored Lawyer]

No, because "sensitive places" has the danger of becoming circular and swallowing up the right, while the examples you give don't.
If some law enforcement wants to look at the files on my computer, and I am not about to erase them, it needs a warrant or a subpoena. That is clear no matter how many exceptions to the 4th Amendment you want to conjure up.
Here, in contrast, if "sensitive places" is undefined, then an entire state can be "sensitive" and the Second Amendment is a nullity.
The fact that new cases present new problems does not mean that you can start with a completely vague standard. That's what you are doing, and it won't work.
Any more than saying that the government can restrict free speech "in an emergency."

[Dilan Esper]

No, because "sensitive places" has the danger of becoming circular and swallowing up the right, while the examples you give don't.

Really? You don't think that courts can find a detainee "too dangerous to let out" in a wide variety of circumstances? Have you seen some of the bail decisions on 1/6 people?

Here, in contrast, if "sensitive places" is undefined, then an entire state can be "sensitive" and the Second Amendment is a nullity.

No, because courts wouldn't do that.

The fact that new cases present new problems does not mean that you can start with a completely vague standard.

Lots of constitutional rights turn on vague standards.

[Bored Lawyer]

"No, because courts wouldn't do that."

ROFL. Courts would certainly do that. There have been quite a few courts that have decided they can simply ignore Heller and treat it as a nullity. Give them this finger ("sensitive places") and they will take the whole hand, arm, shoulder and the rest of the body.

Really, you have posted half a dozen times, and have yet to proffer any definition of "sensitive places."

And why would that not work in other contexts? Suppose that a group of Neo-Nazis decide that they want to march in a neighborhood heavily populated by Jews, many of whom are either Holocaust survivors, or children of same. That is certainly "sensitive." Can they be banned?

[Dilan Esper]

Courts would certainly do that. There have been quite a few courts that have decided they can simply ignore Heller and treat it as a nullity. Give them this finger ("sensitive places") and they will take the whole hand, arm, shoulder and the rest of the body.

If you really truly believe this statement, you should probably get yourself checked out. Nobody's "treating Heller as a nullity". And constitutional interpretation does not work by saying "we're going to allow some serious gun massacre to happen because Bored Lawyer is too afraid of courts drawing lines".

[jimc5499]

I'm siding with Bored Lawyer. We already have the "by any means necessary" crowd. I've seen a County District Attorney state that in her opinion there is no such thing as self-defense. That she would prosecute no matter what the situation was. If she did it, it would probably get overturned, but, at how much expense to the Defendant? I'm not even going into the joke that the Prosecution in the Rittenhouse trial has become.

[Gandydancer]

New York State is absolutely treating Heller as a nullity.

[Sarcastr0]

...You want courts to make policy based on the idea that courts are not trustworthy to make policy?!

[Currentsitguy]

I assume anyone, in any capacity, who is involved in government on any level, is a corrupt, lying, dictatorial, power hungry madman, until proven otherwise. That goes from the White House right down to City Dog Catcher irrespective of party or platform.

[jimc5499]

Hell of a Catch-22 there Sarcastro. One one has to look at the changes made to Pennsylvania's election laws, by the Governor and Secretary of State to answer that.

[Bored Lawyer]

No, I want a definitive standard that does not depend on the idiosyncratic feelings of a district judge. "Sensitive places" is not that.
Put differently, I want a standard that an appellate court can reverse a judge on, not something so vague that anyone can declare some geographic area a gun-free zone based on feelings.

[Gandydancer]

I absolutely want SCOTUS to be sensible enough to make decisions based on the proper understanding of reality that courts cannot be trusted to get things right, just as I am glad that the Founders wrote the Constitution based on the proper understanding of reality that legistatures, executives and courts cannot be trusted to get things right. It's of course maybe a fatal problem that OUR SCOTUS can't be trusted to do that, but it is nonetheless a standard that should be striven for.

[Sarcastr0]

Guys, you don't make policies assuming bad faith. It's pretty easy to see why such a paranoid posture would be a bad idea.
You don't stop a madman by being super constraining, you just centralize power at the highest level with a one size fits all policy. It's actually kinda collectivist!

You all have warped worldviews wherein disagreeing with you means lying. I'm just glad none of you are in charge.

[SimonP]

Obviously, it comes down to who's liable to get shot.

Assassinating the president? Well, we can't have that!

Shooting some unlucky chumps who went grocery shopping at the wrong time? Just the price of freedom!

[Bored Lawyer]

Oh, and by the way, once we define a "sensitive place," we then have to decide how large the, err, penumbra of a sensitive place is. Let's assume, arguendo, that a school qualifies. How far can the State extend the no-gun zone from school grounds? 100 feet? 1000 feet? 5 miles?

[rsteinmetz]

Has a president ever been shot in the White House? I can't think of one.

Most who have been shot were out in public. JFK in Dallas, Regan in DC, TR in Milwaukie, Lincoln at Ford's Theater, Garfield at the Train Station and McKinley in Buffalo NY.

There appear to have been two attempts on Clinton at the White House, one by crashing a plane into a tree at the White House (Clinton wasn't there) and another by a guy firing at the White House, he was stopped by some tourists.

Another guy fired at the White House during Obama's presidency, the Obama's weren't home. He was arrested and sent to jail.

[Dilan Esper]

That's not the point.

I'll put this another way- any argument that allows guns in the White House is a nonstarter. In a sense, that's WHY there's a sensitive places doctrine. The question is what constitutes a sensitive place?

[Bored Lawyer]

Anywhere the president might go. Which is everywhere on earth. So the entire earth is a "sensitive place."

Why is that wrong?

[Dilan Esper]

If the President is there and it is in the jurisdiction of the United States? That's one example, but not the only one, of a sensitive place.

I'm not sure what you are getting at. You seem to be pretending you don't understand how constitutional adjudication works.

[Brett Bellmore]

"If the President is there and it is in the jurisdiction of the United States? "

Screw that. Presidents are not mobile Bill of Rights free zones. We've gone too far in the direction of making them temporary royalty already.

[David Nieporent]

The funny thing is, you like to play all cynical and sophisticated, as if you understand how the real world works differently than on paper, and then you come up with stupid arguments like this.

Let me explain something to you: if you go to court and argue that there is a RKBA and that it allows you to bear arms in front of the president, the judge(s) will laugh at you. They will rule against you. You will have succeeded only in convincing a court to issue a decision restricting the RKBA. One wins court cases by telling the courts that they can issue narrow rulings in one's favor that won't work absurdities, not by telling them that one is a crazy unreasonable person.

[Brett Bellmore]

What part of "too far already" don't you grasp? I'm perfectly aware this argument wouldn't be a winning one in a court. That's the problem! We've transformed our office holders into an aristocracy, and Presidents into temporary royalty, with all the obnoxious consequences of that, such as ordinary civil rights being suspended if the President decides to walk down your street. Some idiot President decides he wants to play a round of golf, and everybody gets kicked off the course. Streets get shut down when they drive on them.

This isn't how things are supposed to be in a democracy, this is how things work in a monarchy! It's madness!

You can rage about horrible precedents, and still be aware the courts are not going to back down on them.

[Absaroka]

There are parts of the imperial presidency that bother me. I recall an account of some state visit to the U.K. some years ago that mentioned they took along a staff of White House chefs. Jokes about British cooking aside, you don't think the Queen can put up an adequate spread?

But. Of the 46 presidents to date, 4 have been assassinated. That's 8.7%. Two more were wounded. That's a level of risk that justifies a pretty extraordinary level of security.

[David Nieporent]

Not wanting to see heads of state (/heads of government) assassinated is not treating them like monarchs.

[Gandydancer]

That's not what his complaint was, and you know it, stupid.

[Armchair Lawyer]

Actually, plenty of guns are allowed at the White House.

[Absaroka]

"Has a president ever been shot in the White House? I can't think of one."

FWIW, some Puerto Rican separatists made a pretty good attempt to get Truman at Blair House, where he was staying during White House renovations.

[MatthewSlyfield]

"TR in Milwaukie"

Milwaukee, not Milwaukie.

[Gandydancer]

IIRC an attempt was made to shoot Truman in his residence, which I guess was in the White House. A security guard was killed.

[Gandydancer]

...I see Absaroka has a better memory than mine.

[Brett Bellmore]

I think it would be reasonable to say that no place where people not being armed is on the honor system can be seriously asserted to be a "sensitive" place. If you're not going to exert any effort to keep bad actors from entering with guns, then you can't really be all that concerned about law abiding and presumed innocent actors, now, can you?

Put up barriers and metal detectors, (And provide lockers for those carrying who wish to enter.) or admit it's not about safety, it's just about infringing the right.

[Rossami]

I dislike the direction that this "trade" is going. We already have metal detectors and other security theater in too many places. Even TSA consistently fails in controlled tests of their ability to keep weapons out of airports. Yet we continually sacrifice our rights and subject ourselves and our family members to repeated abuse in the face of the demonstrated ineffectiveness of those controls.

Schools are no better. Shoot, they can't even keep weapons and drugs out of prisons.

I do not want to give anyone the impression that they can extend that same broken model to anyplace just by calling it "sensitive" and slapping up a few metal detectors.

[Bored Lawyer]

"Shoot"

Was the meant to be ironic?

[Longtobefree]

Probably auto-correct from "shit" - - - - - - -

[Rossami]

Neither intentionally ironic nor auto-correct. Maybe my subconscious trying to be punny?

[BadLib]

Although I don't like the TSA security theater, some of that theater seems to be working.

I'm pretty sure that if we had never instituted any screening beyond the "honor system" to get on an airplane we would have seen many more hijackings over the past 40 years. The screening process seems to be serving as an effective deterrent at least.

The important question is not does the TSA ever fail to catch a weapon, it is what percentage of the time do they fail to do so. If they fail 10% of the time, that's probably enough to be an effective deterrent. If they fail 90% of the time, that's probably not enough to be a very effective deterrent.

[Absaroka]

They see to be improving:

"...more than 70 percent of the time, undercover officers were able to get through TSA checkpoints with mock knives, guns and explosives, ... Just two years ago, testing found a 95 percent failure rate"

[jimc5499]

None of the 9/11 hijackers had guns, they had cheap knives (box cutters). If I'm totally serious about doing something on a plane, I can find a weapon on the aircraft. 99% of what TSA does is to make people feel better. The other 1% is notifying the Police when someone is carrying a bunch of money.

[Brett Bellmore]

Right, the 9-11 style attack became obsolete part-way through the attack. Once people knew what a hijacking might imply, hijackers were subjected to human wave attacks in the planes.

The only reason it had ever been feasible is that the airlines had spent years telling people not to be heroes, just let the hijacker get what he wants.

[David Nieporent]

None of the 9/11 hijackers had guns, they had cheap knives (box cutters).

Just to be clear, we don't actually know that. We have very limited information. The claim about box cutters is from Barbara Olson on Flight 77 (the one that hit the Pentagon). Firearms weren't reported, but we don't know whether the hijackers had them.

[Gandydancer]

Hijacker bodies were found, but not in the immediate vicinity of firearms, IIRC. Is there some reason to disbelieve Olson? It would be an odd thing to come up with if not true.

[David Nieporent]

What? How on earth did you get from my statement that I was disbelieving Barbara Olson? She reported that she saw them with boxcutters, and I have no reason to doubt her. But setting aside that she was on only one of four hijacked flights and we don't know that all hijackers were armed in the same fashion, she did not say, "None of them have guns."

[Stephen Lathrop]

If you're not going to exert any effort to keep bad actors from entering with guns, then you can't really be all that concerned about law abiding and presumed innocent actors, now, can you?

That is bunk. The capacity to do that is in no way commensurate with the reasonable need to do it.

And of course, the pro-gun dodge of, "presumed innocent actors," is by now Kabuki-grade question begging by tradition.

[Stephen Lathrop]

First two lines should have been in quotes. It's a reply to Bellmore.

[Brett Bellmore]

"The capacity to do that is in no way commensurate with the reasonable need to do it."

I don't even know what you're trying to express here.

It's simple enough: You've got this area you claim needs to be protected from people bearing arms. You don't lift a finger to stop anybody from walking in with a gun, you just put up a sign.

My conclusion is that you don't really think the area needs protecting, because a sign isn't protection. Nobody who was intent on doing evil, who was even mulling it over, would even be slowed down by a sign.

If I go down the the local traffic court, I have to pass through a metal detector. Clearly the people in charge consider it important enough to keep unauthorized people with guns out that they'll actually make an effort to do so.

The local park has a sign. That's all, just a sign. Equally clearly, they don't actually give a damn if gang bangers or muggers enter the park armed. They just want to inconvenience people with concealed carry permits.

It's an easy heuristic: If you think it's important people with guns stay out of an area, show you think that by doing something.

[Michael P]

Of course, the leftist dodge of, "guilty until abasement," rears its head. Again.

I've got a news flash for you about presumptions of innocence.

[QuantumBoxCat]

"The issue is whether the Second Amendment right to "bear arms" can forbidden to everyone except persons who prove that they have an unusual need for self-defense."

The Court's docket states: "Granted limited to the following question: Whether the State's denial of petitioner's applications for concealed-carry licenses for self-defense violated the Second Amendment."

Kopel should go back and reread the case docket.

[Jjh_Esq]

Those two mean the same thing.

Simplified, the issue is: does a NY law prohibiting all citizens from carrying guns in NY (except those with a really good reason) violate the right to “bear” arms codified in the second amendment?

Another way of saying that is: “Whether the State's denial of petitioner's applications for concealed-carry licenses for self-defense violated the Second Amendment."

The answer is: yes.

Generally speaking (with limited exceptions) ordinary citizens don’t have to get the government’s permission to exercise the “rights” defined by the bill of rights. We don’t need a permit to go to church, or to prevent officers from searching our house, or to refuse to house soldiers.

There are limited times we can require a permit to exercise a right ( like a large gathering).

Because guns can kill, we may be able to screen who can have guns to prohibit the intellectually deficient or violent felon from having guns by a process of licensing. But outside that, everyone else can exercise their rights to bear arms.

NY’s permit system effectively denied everyone in NY their rights and this it violates the 2nd Amendment.

[David Nieporent]

No; those two don't mean the same thing. A court could find that the denial of the petitioners' specific applications violated their rights without finding that the NY regime itself is unconstitutional.

[Gandydancer]

No it can't, absent some showing that the "regime" was not appled as intended, which it was, or a complete fuck-up by said court.

[Kazinski]

I’m sure the holding is going to be a simple striking of the “good cause” requirement and that allowing a discretionary test over who can exercise their 2nd amendment rights is unconstitutional, and will essentially be a shall issue requirement.

But I’m sure the dicta is going to lay out some pretty explicit rules about sensitive places that the court can point to and the shadow docket is going to be busy with a lot of GVR’s telling the lower courts to read the decision and apply it consistently. Otherwise I don’t think they would have spent so much time discussing the issue if it wasn’t on the table.

I don’t think we will see it, but I’d love to see some dicta about how constitutional rights don’t stop at the state border and allowing each state to have its own licensing regime that excludes law abiding citizens of other states also won’t pass muster.

[dwb68]

idk if I want the opinion to have any dicta about sensitive places or not. The issue was not adequately briefed and examined. Anything the court says would be cursory. It could be too broad, or like a lot of Heller, vague and too easily misconstrued. On the other hand, I do want it clear that NYC cannot simply declare 1 kilometer buffer zones around everything.

[great Unknown]

Note that the "sensitive places" pronouncement is not the only place where 2A will be attacked: see, e.g., https://reason.com/volokh/2021/10/23/ventury-county-jacobson-and-not-traditional-constitutional-review-governs-second-amendment-claims/

[John F. Carr]

Since what the challengers want is a license to carry anywhere people with political connections can carry, the court should avoid even mentioning sensitive places. If important people can carry on Fifth Avenue, so can the challengers. If not even Donald Trump could shoot a man there, neither can the challengers. If New York responds by expanding gun-free zones (and maybe selectively enforcing them), a new lawsuit will be needed to put the sensitive places doctrine in the crosshairs.

[Bored Lawyer]

But police can carry anywhere, even "sensitive places." Not sure what your solution achieves.

[dwb68]

The flip side is that carrying "concealed" means exactly that.

[jimc5499]

If you add "or their armed security guards". I'm in favor. Notice I said "guards".

[Rev. Arthur L. Kirkland]

The most interesting thing I have learned at the Volokh Conspiracy is that John Wayne, when as sheriff collecting guns from the visitors for safekeeping until they slept it off or left town, was a godless, gun-grabbing, no-good commie bastard committing outrage against the constitutional rights of those fine law-abiding, God-fearing sovereign citizens at the door of the saloon.

(The Duke threatened to sue over that one . . . a humorless clinger quite at home in the '40s and '50s. Steve McQueen, to the contrary, was quite the good sport.)

[reasonable]

I would like to see a duty to protect the safety of individuals anywhere they are denied the right of self-defense. I hope a disincentive to over-designation would provide a natural limit.

[Brett Bellmore]

Sounds good: The Court has ruled that the police have no affirmative obligation to protect individuals. Make gun free zones an exception to that doctrine.

You want to make an area a gun free zone? Great: You now have strict liability for the safety of the people within it. Enjoy!

[branford]

Wasn't there a case already, possibly in Illinois, Indiana, or NY, where the local government tried to ban firearms around X feet of a school or house of worship, and it effectively banned guns in about 80%+ of the city?

Without a strict, limited, and seemingly objective "sensitive place" standard, areas that oppose gun ownership will pass laws like the above, and hope for the best in the courts during years of litigation.

I also expect if SCOTUS effectively mandates a "shall issue" firearm licensing regime, we should expect a lot more laws that limit classes of firearms, magazine ammunition capacity, monthly gun and ammo purchase limits, and proficiency standards well above law enforcement.

Even a win at SCOTUS now leave lots of potential litigation.

[dwb68]

"I also expect if SCOTUS effectively mandates a "shall issue" firearm licensing regime, we should expect a lot more laws that limit classes of firearms, magazine ammunition capacity, monthly gun and ammo purchase limits, and proficiency standards well above law enforcement."

ANJRPC v. Bruck (https://www.supremecourt.gov/docket/docketfiles/html/public/20-1507.html) about magazine bans is on hold, presumably for this case. If the SC ends up saying "grant vacate and remand in light of NYSRPA" - which seems likely - magazine bans will be thrown out, as will gun bans.

[Doug Huffman]

Not within 1,000 feet of a school is the current concealed carry prohibition in Wisconsin. My Main Road passes within << 1,000 feet of our schoolhouse. I know of no one that disarms or takes the 3 mile bypass.

[BillyG]

I think any X feet rule is BS. Past the edge of the property, it's either a public venue or someone else's property. If a gov wants to control it, it's a taking.

Limiting carry in limited access facilities is one thing. Limiting carry in unrestricted access areas/facilities is another.

[Brett Bellmore]

That was the distance in the '95 federal gun free school zone act, that got struck down in Lopez.

On commerce clause grounds, though, not 2nd amendment, as this was before Heller, and the Court was still ducking 2nd amendment cases.

[tkamenick]

I think "you can only ban guns in locations where government officials have undertaken an affirmative duty to protect everyone and accept strict liability for any crime that occurs" is reasonable. If the government wants to designate such a space "sensitive" they should assume responsibility.