The Volokh Conspiracy
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Second Amendment Roundup: Bruen's Citations on Sensitive Places
Enhanced government security is required when a location is made a gun free zone.
The Second Amendment creates the default rule that, absent a narrow exception, keeping and bearing arms is a right that may not be infringed. The ongoing debate on the nature of the "sensitive places" where firearms may be prohibited boils down to whether, if individuals may have no arms for self-defense, the government must provide comprehensive or enhanced security. If not, the disarmed place is just the perfect location for criminals to attack victims.
The Supreme Court has not decided a case on "sensitive places," but has referred to their existence, most recently in Bruen. There, the Court set forth the following two-step rule: "[W]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation, … the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation." A modern restriction must be shown to be analogous to laws (either statutes or the common law) that were considered permissible at the Founding.
To illustrate reasoning by analogy, Bruen recalled Heller's dicta alluding to "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings." The Bruen Court explained:
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. See D. Kopel & J. Greenlee, The "Sensitive Places" Doctrine, 13 Charleston L. Rev. 205, 229–236, 244–247 (2018); see also Brief for Independent Institute as Amicus Curiae 11–17. We therefore can assume it settled that these locations were "sensitive places" where arms carrying could be prohibited consistent with the Second Amendment.
As I've recently posted, the most comprehensive study of Founding-era sensitive places with enhanced security has been authored by Dr. Angus McClellan and posted on SSRN. However, the first published article on the subject was the Kopel-Greenlee piece cited above by the Court. Most of the article is devoted to identifying the places that, historically, are or are not sensitive. But it makes clear that "when a building, such as a courthouse, is protected by metal detectors and guards, the government shows the seriousness of the government's belief that the building is sensitive…. Conversely, when the government provides no security at all— such as in a Post Office or its parking lot—the government's behavior shows that the location is probably not sensitive…."
The Brief for Independent Institute as Amicus Curiae in support of the Bruen petitioners, on the same pages cited by the Court (pages 11-17), makes the point about security emphatically. Here are some of the passages:
"From the time of the Statute of Northampton through the American Founding, the principle that weapons-free zones must accompany increased sovereign security remained consistent. Indeed, "[b]y the first half of the seventeenth century, it was thus established that," although "a subject may not carry arms in a manner to terrorize other subjects or in a place like a palace where the Justices of the King's Bench were assembled," "[p]eaceably carrying arms
in public was not proscribed." STEPHEN P. HALBROOK, THE RIGHT TO BEAR ARMS: A CONSTITUTIONAL RIGHT OF THE PEOPLE OR A PRIVILEGE OF THE RULING CLASS? 35 (2021).
"To be certain, the colonial era saw few restrictions on the right to carry weapons. "The settlers had the liberty to carry their privately-owned arms openly or concealed in a peaceable manner …. The few New World restrictions on the right to carry arms in certain areas, however, were limited in a way similar to the Statute of Northampton—i.e., no weapons in areas near certain core government operations in which security was assured by the government."
"With America's Declaration of Independence from Britain, gun-free zones expanded slightly to meet the changing times. They were, however, still limited to areas in which the government provided the requisite security to compensate for the deprivation of the self-defense right. Accordingly, polling places developed into areas in which the government could appropriately limit the right of individuals to carry weapons."
"The careful balance drawn by these limited gun free zones—i.e., the self-defense right decreases only to the extent that the government's protective ability increases—sounds in the philosophy of Cesare Beccaria, an Italian philosopher who was highly regarded by the Founding generation…. Thomas Jefferson, for instance, copied entire passages from Beccaria in his Commonplace Book, which has been called "the source-book and repertory of Jefferson's ideas on government." Stephen P. Halbrook, A Right to Bear Arms 50 (1989) (citation omitted). See Mark W. Smith, Enlightenment Thinker Cesare Beccaria and His Influence on the Founders: Understanding the Meaning and Purpose of the Second Amendment's Right to Keep and Bear Arms, 2020 PEPP. L. REV. 71."
Beccaria's timeless words (albeit not on the pages of the brief cited by the Court) referred to a regime that "disarm[ed] those only who are not disposed to commit the crime which the laws mean to prevent," which "certainly makes the situation of the assaulted worse, and of the assailants better, and rather encourages than prevents murder, as it requires less courage to attack armed than unarmed persons."
Neither party in Bruen briefed the issue of sensitive places, although New York suggested that "sensitive places [are] where people typically congregate – settings like courthouses, airports, subways, sports arenas, bars, gaming facilities, houses of worship, and schools." The Court made no comment on these expanded places, but rejected New York's proposed rule that "sensitive places" include "all places of public congregation that are not isolated from law enforcement." "Put simply, 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." Here, the Court is recognizing that the government must provide comprehensive security or a location cannot be deemed "sensitive," thus permitting the government to deny one's right to bear arms in that spot. By stating that having police "generally" available in an area is insufficient to permit an exception from the Second Amendment's "unqualified command," the Court is signaling that some form of "specific" or "targeted" police presence must be on hand before a location can even be considered a "sensitive place" carve out from the Second Amendment.
Look for more discussion on "sensitive places" as the appellate cases continue to percolate with the growing possibility of a circuit split.
