Second Amendment Roundup: Wolford and the government security principle for sensitive places

If a place is truly “sensitive,” the state must provide armed security.

Before the Supreme Court heard oral argument yesterday in Wolford v. Lopez, I covered a range of Second Amendment issues central and tangential to the dispute over Hawaii's no-carry default rule. In opposition to the Court's Bruen decision, Hawaii enacted a "Vampire Rule" requiring prior consent for a licensed armed person to enter private property open to the public.  Think stopping at a gas station or convenience store.

One issue that was alluded to several times in the argument is the scope of the so-called "sensitive places" limitation on the Second Amendment's protections. Wolford is not really a "sensitive places" case—it is actually about the handful of places Hawaii did not separately declare "sensitive," since the no-carry-default rule applies only to places that the state has not made no-carry-no-matter-what. Nevertheless, it is quite probable that in dealing with the issue the Court will touch on, and possibly explain, its previous statements on the issue.

The Court's "sensitive places" dicta have been the source of some significant confusion for courts and litigants alike. In District of Columbia v. Heller, as it struck down D.C.'s handgun ban, the Court cautioned that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on … the carrying of firearms in sensitive places such as schools and government buildings." Later, in NYSRPA v. Bruen, the Court explained its statement in part as a way of demonstrating its historical method, writing that "although the historical record yields relatively few 18th- and 19th-century 'sensitive places' where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions." But Bruen cautioned, "there is no historical basis for New York to effectively declare the island of Manhattan a 'sensitive place' simply because it is crowded and protected generally by the New York City Police Department."

This list of locations (which Bruen got from the article by David B. Kopel and Joseph Greenlee, The "Sensitive Places" Doctrine, Charleston L. Rev. 2018) -- legislatures, polling places, and courts -- has led to significant disagreement among judges and litigants, even litigants on the same side of the issue. What restrictions do those three places have in common?

In his article Dangerous, but Not Unusual, Georgetown JL&PP 2024, Mark W. Smith surveyed the variety of historical "principles" that were being advanced to unite these historical laws and to analogize to modern statutes. He catalogued and criticized arguments that defined "sensitive places" as (1) places where "core government functions" are carried out, (2) places that meet a "collateral damage test" because misuse of a firearm would seem to be particularly problematic there, (3) places where "vulnerable people" congregate (more an issue for the schools that Heller mentioned than the legislative assemblies mentioned in Bruen), and (4) places where people exercise other constitutional rights. Professor Smith rejected each of these principles with good reasons -- who is not "vulnerable" to the misuse of a firearm? and why should we make those targets softer? Instead, he suggests a fifth principle that fits the evidence better: the presence of comprehensive government security in those locations.

In addition to having certain objective benefits from a policy perspective—security at least minimizes the threat of an armed attack wherever the government disarms the law-abiding; it also allows the government to "put its money where its mouth is" when it comes to disarmament—this principle has the distinct advantage of fitting the historical facts. In the Ninth Circuit in Wolford (where the case really was a "sensitive places" challenge), historian Angus Kirk McClellan and a host of advocacy organizations filed an amicus brief in support of the government-security principle which laid out lengthy historical evidence that legislatures, courthouses and even polling places were provided with government security at the Founding.

McClellan will shortly be publishing on SSRN a compendium of additional research on this issue that provides further support for the government-security principle. McClellan has compiled evidence for all three locations demonstrating that everywhere "arms" were restricted in this way at the Founding, the restrictions were accompanied by security, usually armed security, from the government.

In a vivid demonstration of the principle, McClellan notes that while elected officials in the "Upper House" of Maryland's legislature in the 17th century could be armed with swords in their chambers, arms were even then prohibited in the "Lower House." That resulted, in an instance in 1682, in the Doorkeeper (i.e., guard) to the Lower House turning away members of the Upper House who were carrying both swords and a message from the governor, because entry with a sword "was contrary to the Antient rules & Custume of this house."

There are countless other compelling and illustrative anecdotes in McClellan's research, as well as a wealth of historical laws, all of which further solidifies the government-security principle. If the Court is going to wade into this issue in Wolford, they would do well to review this research.