Second Amendment Roundup: "Sensitive Places" Issue Coming to a Head?
Third Circuit will benefit from latest research tying arms bans with comprehensive security.
Dr. Angus McClellan has just posted 151 pages of "Additional Research on Comprehensive Security and Sensitive Places" showing that at the Founding armed security was tied to each of Bruen's three sensitive places where arms could be restricted. Historical tradition from the American colonies and early states demonstrates that the predicate for banning weapons by the public at courts, legislative assemblies, and polling places was the government's provision of real protection in fact. That research supplements Dr. McClellan's compendium "The Second Amendment, Sensitive Places, and Comprehensive Government Security" which I summarized here.
In Wolford, the Supreme Court found Hawaii's law banning firearms on private property open to the public without affirmative consent of the owner – aka, the "Vampire Rule" – to violate the Second Amendment. The Court took notice of, but did not resolve, the issue that, "On a large portion of the land within the State's boundaries, possession of a firearm is now flatly prohibited." That issue has been pending in the several states that sought to nullify Bruen's holding that firearm carry permits may not be restricted to a privileged few or denied for purported lack of "need." One of those states is New Jersey, and early this year the Third Circuit en banc held oral argument about that ban in Koons v. Attorney General. See my post here.
The premise of these bans is that any place is "sensitive" if the legislature so declares. While it is often argued that being crowded suffices, that is belied by the fact that the bans include vast acreage of wooded parklands inhabited primarily by deer and squirrels. But Bruen explicitly rejected an arms prohibition based on being crowded, explicitly mentioning Manhattan as an example. Bruen did not go into the factual historical tradition justifying gun bans in the three locations it mentioned, as the issue was not before the Court. And that's where the research by Dr. McClellan fills the gap.
As prefaced in his "Additional Research," McClellan states: "The primary purpose of this additional research is to determine whether all 13 original colonies or early states had armed, government security personnel assigned to doorways at the sensitive places of courthouses/courtrooms, legislative buildings/chambers, and polling places." A secondary purpose, he continues, is to confirm that courthouses, legislatures, and polling places were indeed "sensitive," i.e., governments could or did ban weapons there. As for the method of research: "There are four sought-after elements in the historical material for determining whether a place had comprehensive security: a government agent was assigned to the place; his duties included maintaining security; he guarded a doorway; he carried a weapon." Finally, a "sensitive place" was "one where arms were prohibited." The research compiles sources showing where bans were enacted with evidence that such places were secured.
McClellan's research is truly overwhelming and is supported by hundreds of footnotes. Weapons were not necessarily always banned in the subject places, but they could be; the ultimate point is that these places were secured by government agents. I will mention only one entry illustrative of each of the identified sensitive places.
Courthouses. At the trial of Aaron Burr, General James Wilkinson was disarmed in the court by the U.S. marshal to prevent him from intimidating the jury, indicating at least that (1) weapons were or could be banned in court, (2) government officers were present in court to disarm people. Wilkinson was a senior U.S. Army officer who had conspired with Burr to raise an army to seize Spanish territory. He turned against Burr and served then as the prosecutor's chief witness. At the grand jury proceeding, the jury foreman was John Randolph of Roanoke, who upon seeing Wilkinson with a sword, alerted the marshal (1807).
Legislative assemblies. The Philadelphia Convention was off-limits to civilians entirely. Armed sentinels guarded the doorway to the hall, both inside and out. Note also that "it was standard procedure for legislative bodies to meet in secret" (1787).
Polling places. Delaware: Sheriffs shall be judges of elections, and he and other officers shall be required to preserve good order and keep the peace. Inspectors shall, when taking the [voice] votes or tickets, call out loud the name of the elector, and shall then place the tickets into a ballot box (1772).
The pattern was consistent: where the government required citizens to disarm, it supplied the protection itself. At other times, the government required citizens to arm themselves, such as in colonial times when going to church.
"Sensitive places" was never meant to be a blank check. At the Third Circuit's en banc argument in Koons, Judge Paul Matey asked New Jersey counsel whether courts should "really be overreading Heller's colorful use of the phrase 'sensitive places' as actually creating a doctrine," likening it to "large capacity magazines or assault weapons" — "a regulatory term that could be applied to anything that a regulator wants to regulate and then used as a claim for historical justification."
The one principle that does come from history is government-provided security. As Judge Matey put it: "at least one example of what it means could be places where government provided comprehensive security, right. And so we would know that that courthouse, a military base, these are places where … going armed was severely restricted. I mean, isn't that a helpful way of thinking about this?" The State's reply was that "the history is just not there." The record says otherwise.
Without a security limiting principle, there is neither security nor a principle. The Fourth Circuit in Kipke v. Moore upheld Maryland's gun bans on transit, parks, hospitals, museums, stadiums, and casinos on "crowded" and "vulnerable" theories — the very rationales Bruen rejected for Manhattan. Judge Agee, dissenting, called the sensitive-places exception "narrow" and warned that the majority had turned it into a license.
Comprehensive security makes sense. If the government takes no steps to prevent armed aggressors from entering a place, calling it a "sensitive" location is meaningless and reckless joke. Exercise of the Second Amendment right then remains the constitutionally-mandated default.