Originally published on Reason.com
As the U.S. Supreme Court gets ready to hear New York State Rifle and Pistol Association v. Bruen, the Court may consider whether to elaborate on its statement in District of Columbia v. Heller that bearing arms may be prohibited “in sensitive places such as schools and government buildings.” In this post, I will describe the legal history of laws against bearing arms in “sensitive places,” and will suggest some guidelines for courts to use.
Some of the citations for the discussion below can be found in my article The “Sensitive Places” Doctrine: Locational Limits on the Right to Bear Arms, 13 Charleston Law Review 205 (2018), coauthored with Joseph Greenlee. The Office of the Solicitor General of the United States cited the article in its Bruen brief, regarding the University of Virginia’s 1824 ban on firearms for students.
This post will first discuss some general issues about sensitive places. Then it will describe the legal history of arms bans in places that have sometimes been said to be sensitive places. Finally, the post will suggest some guidelines for addressing sensitive places issues.
Predictions about judicial burdens
In Bruen, some amici argue that recognizing the right to bear arms would overwhelm the courts. As a section header of the amicus brief led by retired Fourth Circuit Judge Michael Luttig puts it, “The Second Amendment Interpretation Urged by Petitioners Would Either Invalidate the Multiple-Location Restrictions On Public-Places Carry In Dozens of States Or Require Decades of Case-By-Case, Location-By-Location Judicial Balancing.”
The warning is likely mistaken. First of all, the right to bear arms is already enforced in forty-two states, the District of Columbia, and Puerto Rico, fully denied in three (N.J., Md., Haw.), and respected in some but not all jurisdictions in five states. Thus, the courts in most states already have plenty of experience deciding constitutional issues of where peaceable carry may be forbidden. Almost all of these states have have a state constitutional right to bear arms, and they have not been deluged with cases on locational limits.
My Charleston article described every reported case we could find involving locational limits on bearing arms. Before the Supreme Court’s Heller (2008) (D.C. cannot ban handguns) and McDonald v. City of Chicago (2010, making Second Amendment enforceable against state and local governments), there weren’t a lot cases on the issue. The same was true after the Supreme Court cases.
It’s true that any time the Court decides that a particular enumerated right must be enforced, there will be resulting questions about the exceptions to the right. For example, Heller recognized the individual Second Amendment right. As a result, lower courts had to hear cases about whether certain types of persons (e.g., convicted felons, convicted domestic violence misdemeanants, persons under domestic violence restraining orders) could be prohibited from keeping arms. With only sketchy guidance from the Supreme Court, the lower courts have done so. Heller and McDonald have generated vastly more cases on prohibited persons than on sensitive places.
In the First Amendment, once the Court got serious in the 1930s about protecting the freedom of speech and the right of peaceable assembly, cases did have to address locational limits. Today, these are called “time, place, and manner” regulations. The judiciary seems to have found the task to be manageable.
The exception that swallows the rule
Some amicus briefs argue that the “sensitive places” exception to the right to bear arms proves there is no right. After all, defensive gun carrying can be prohibited in a sensitive place, even though a person might need a firearm for defense in such a place. Therefore, the fact that people might need guns for defense in public generally does not mean that they have a right to bear arms.
Similar reasoning was not accepted by the Supreme Court in Heller. Besides the “sensitive places” exception to the Second Amendment, the Court stated another exception: “felons and the mentally ill” could be prohibited from keeping arms at all. This was true even though some convicted felons and mentally ill persons may need defensive arms.
The existence of exceptions to the right to keep arms does not negate the Second Amendment’s text that Americans in general have a right to keep arms. Likewise, the Court’s statement that some places can be placed off-limits to arms bearing does not negate the Second Amendment’s text that Americans generally have a right to bear arms.
Let’s now take a look at the American legal history of locational limits on the right to bear arms. I will focus on laws that applied to particular places. The issue of laws that (some briefs claim) banned arms carrying everywhere are discussed elsewhere, such as in my amicus brief in the current case, and my National Constitution Center debate with Judge Luttig.
The American colonies
By the time of American independence, the right to carry was broadly recognized in England. But not in Ireland, where arms possession by Irish Catholics was generally forbidden. In England, there were laws against armed assemblies. There were no parallels in America as of 1776.
In general, Americans did not seem to mind people coming armed to attend or participate in legislative matters. The United States Congress had no rules against legislative armament, and through at least the mid-nineteenth century, it was common for Congressmen to be armed. Maryland was an exception. Statutes in 1647 and 1650 forbade arms carrying in either house of the legislature.
Delaware’s 1776 Constitution included an article to prevent intimidation of polling places: no-one could take arms to them. Militias could not assemble within one mile of a polling place, starting 24 hours before the opening of the polls, and until 24 hours after the polls closed. Del. Const., art. 28 (1776).
Some colonies reinforced the common law against trespass by providing specific penalties for people who hunted on other people’s land without permission. Pennsylvania 1721, 1760; New Jersey 1741, 1771; Maryland 1715. The 1760 Pennsylvania law also forbade firearms discharge while hunting near highways—a safety restriction that remains common in modern American hunting law. Later, Texas (1873) and Oregon (1893) enacted trespass-based laws against arms carrying on private lands without permission.
Boston had an unusual fire safety law, discussed by the Heller majority and by Justice Breyer’s dissent, that forbade bringing loaded guns into buildings. The fire safety ordinance was not about “sensitive places,” since it applied to all buildings.
Some polling place restrictions after the Civil War
Louisiana in 1870 prohibited arms carrying on election day when the polls were open. The ban apparently had no geographical limit, and thus was more of a “time” restriction than a “sensitive places” restriction. Voter registration only took place on certain days; on those days, there was a ban on arms carrying within a half-mile of registration sites.
Maryland’s laws focused on two troublesome counties. An 1874 law banned arms carrying on election day in Kent County. An 1886 statute outlawed bearing arms within 300 yards of the polls on election day in Calvert County. Texas in 1873 outlawed carrying arms within a half-mile of a polling place during polling hours.
The polling place laws have a First Amendment parallel. Encouraging people to vote a particular way is a core First Amendment right in almost all public places. Yet states may prohibit electioneering activity at polling places, as well as in small zones around polling places.
Churches
Unlike in England, churches in America are not government property. In 1686 in Bristol, England, Sir John Knight carried a defensive gun into services at St. Michael, a building belonging to the established Church of England, of which King James II was the supreme head. Knight was acquitted, explained the presiding judge–the Chief Justice of the King’s Bench–because the jury thought he had not been carrying “in malo animo” (with bad intent).
In America, not carrying to church might cause legal trouble. Many but not all colonies required arms carrying to church. Some also required carrying guns to all public assemblies, to court, when traveling, or when working in the field.
“Blue laws” against recreation on Sunday (the Christian sabbath day) became especially common in the latter decades of the nineteenth century. The purpose was to inhibit secular activities on the day when people were supposed to be reflecting on religious matters. A Kentucky blue law forbade hunting on someone else’s land (apparently, even with the landowner’s permission) on the sabbath. North Carolina banned Sunday hunting everywhere, and, as a prophylactic measure, forbade gun carrying outside one’s property on Sundays. As of 2016, eleven eastern states still had blue laws against Sunday hunting. See Allie Humphreys, Note, Has Blue Overshadowed Green?: The Ecological Need to Eradicate Hunting Blue Laws, 40 Wm. & Mary Envtl. L. & Pol’y Rev. 623 (2016).
Virginia in 1877 went even further. It forbade all arms carrying at places of worship where religious meetings were being conducted. (E.g., Wednesday evening Bible study at church.) Virginia also forbade all arms carrying outside of one’s premises on Sunday “without good and sufficient cause therefor.” The statute seemed to presume that arms-carrying was lawful on other days of the week.
The blue laws were not public safety laws. They were religious coercion laws and were at least inconsistent with the spirit of the First Amendment.
In my view, because churches are private property, they should have discretion about whether to allow arms carrying on their property or not. Laws should neither mandate nor forbid it. The case law on the Bill of Rights is most vigorous about restraining government intrusion into homes; next to the home, houses of worship should enjoy strong protection from government micromanagement.
Diverse denominations have diverse views about defensive force. Some forbid it; others mandate it; and still others have intermediate positions. For the government to impose any particular policy for all churches could be contrary to the Free Exercise clause. See John M.A. DiPippa, God And Guns: The Free Exercise of Religion Problems of Regulating Guns in Churches and Other Houses of Worship, 98 Marquette L. Rev. 1103 (2015).
In the New York case, an amicus brief from the Presiding Bishop of the Episcopal Church and other religious leaders argues that there should be no right to bear arms, in churches or anywhere else. Some of the organizations filed a similar brief in Heller, against any right of individuals to keep arms. As the Presiding Bishop’s amicus brief explains, serious crimes, including mass murder, are sometimes perpetrated at houses of worship. The brief explains also explains why the amici do not want their staff or members to have defensive arms; they believe that defensive armament is inconsistent with the values of their denominations. While this is their right, the amici do not have the right to impose their views on denominations that have different values.
On December 10, 2007, a deranged young man entered the lobby of a crowded megachurch, the New Life Church in Colorado Springs, Colorado. The criminal carried two handguns, a rifle, and more than a thousand rounds of ammunition. He had murdered four people in the previous twelve hours—two of them in the church parking lot minutes before. Jeanne Assam, a member of the church and former police officer, was the church’s security volunteer that day. She drew and fired, preventing the criminal from perpetrating what might otherwise have been the largest mass murder in U.S. history. Pastor Brady Boyd said that she had saved over a hundred lives.
On December 29, 2019, in Texas, an armed churchgoer shot a mass killer who was attacking the West Freeway Church of Christ. The defender stopped the criminal six seconds after the criminal began shooting. Presidential candidate Michael Bloomberg criticized the defensive action: “But it’s the job of law enforcement to have guns and to decide when to shoot. You just do not want the average citizen carrying a gun in a crowded place.”
Governments not forbid churches and other houses of worship to choose defend themselves.
Schools
The first known arms ban at an American university was at the University of Virginia in 1824. The students had driven Thomas Jefferson, founder of the University, to despair with their spoiled and violent behavior. They rioted and caroused, fired guns in the air, and shot at each other.
So the Board of Visitors—which included Jefferson and James Madison—cracked down. They banned students, but not faculty or other employees, from keeping on school premises any alcohol, chewing tobacco, or weapon, and also forbade students from having servants, horses, or dogs. Similar rules were adopted at Dickinson College(private, 1832, Pennsylvania); Waterville College (private, 1832, Maine, today Colby); the University of Nashville (private, 1837); the University of North Carolina (public, 1838), and Kemper College (private, 1840, St. Louis). Gun bans for students only, and not for faculty, staff, and campus visitors, were less about “sensitive places” than about schools’ in loco parentis authority.
To the north, the students at the College of New Jersey (today, Rutgers University) were apparently easily distracted. In 1853, the state did not ban guns at school, nor did it attempt to prohibit students from hunting. But the state did outlaw certain places of amusement within three miles of campus. The law forbade facilities for billiards, tennis, bowling, shuffleboard, faro, cock-fighting, and pistol shooting. An 1874 statute created a three-mile anti-entertainment zone around Drew University, in Madison, N.J. This was undoubtedly a hardship on commercial operators of bowling alleys, tennis clubs, and pistol ranges, but the law imposed no restriction on the ability of Drew students (or anyone else) to keep and carry arms on campus and everywhere else.
Mississippi in 1878 banned students from carrying concealed weapons at any university, college, or school. The law did not apply to open carry, nor did it apply to faculty or staff. However, faculty or staff could be punished for knowingly allowing students to carry concealed.
General bans on guns in schools are mostly of recent vintage. For the greater part of the twentieth century, students brought guns to school, stored them in their lockers or automobiles, and then went hunting or target shooting after school. When Antonin Scalia was growing up in New York City in the 1950s, he carried a rifle on the subway on his way to school, for use as a member of his school’s rifle team. Associated Press, Scalia Says Don’t Link Guns Only to Crime, Seattle Times, Feb. 27, 2006 (Scalia’s speech to annual meeting of National Wild Turkey Federation).
But in the late 1980s and early 1990s, violent crime was rising sharply. Some scholars, such as Harvard’s Jeffrey Miron, suggest that the crime surge was in part a consequence of the “War on Drugs.” Almost all states enacted laws against guns in schools. The laws varied, and had had exceptions for instructional or sporting purposes, or for uses authorized by the school administration.
All the state laws applied to K-12 public schools, and many of them also covered K-12 private schools. Some also applied to public institutions of higher education, and a few even to private higher education.
As more and more states have enacted “shall issue” laws for concealed carry handgun permits, states have adjusted their school laws for permit holders. For example, the permit-holder may be allowed to have a loaded gun inside a car on school property, but not to take the handgun out of the car.
Redundantly, Congress in 1990 enacted the federal Gun-Free School Zone Act (GFSZA). The law sharply restricted guns at K-12 schools and within a one-thousand-foot radius around the schools.
The thousand-foot radius is large enough to encompass much unsensitive land in populated areas. If there were no exceptions, the GFSZA would facially run afoul of the Second Amendment. However, the ban does not apply on private property. Nor does it cover transportation of guns that are locked in containers, or for hunting. Even in school buildings themselves, carrying is allowed under federal law if the carrier has a state-issued handgun carry permit.
In 1995, the U.S. Supreme Court held the GFSZA unconstitutional as an exercise of Congress’s interstate commerce power, since guns in school zones had no meaningful connection to interstate commerce. United States v. Lopez, 514 U.S. 549 (1994). See also David B. Kopel & Glenn H. Reynolds, Taking Federalism Seriously: Lopez and the Partial Birth Abortion Ban Act, 30 Conn. L. Rev. 59, 68–70 (1997). In 1996, Congress re-enacted the statute, this time slightly limiting non-interstate application. 18 U.S.C. § 922(q)(applying only to a “firearm that has moved in or that otherwise affects interstate or foreign commerce”).
Courthouses
The Georgia Supreme Court in 1874 upheld a statute against carrying weapons into a court of justice. As the Georgia court acknowledged, state precedent plainly protected the right to open carry handguns. However, the court pointed out the equally important right of free access to the courts:
[T]he right to go into a court-house and peacefully and safely seek its privileges, is just as sacred as the right to carry arms, and if the temple of justice is turned into a barracks, and a visitor to it is compelled to mingle in a crowd of men loaded down with pistols and Bowie-knives, or bristling with guns and bayonets, his right of free access to the courts is just as much restricted as is the right to bear arms infringed by prohibiting the practice before courts of justice.
Hill v. State, 53 Ga. 472, 477–78 (1874).
The 1868 Georgia Constitution declared: “A well regulated militia being necessary to the security of a free’ state, the right of the people to keep and bear arms shall not be infringed; but the general assembly shall have power to prescribe by law the manner in which arms may be borne.” The 1870 Georgia statute at issue in Hill stated: “No person in said state shall be permitted or allowed to carry about his or her person any dirk, Bowie-knife,, pistol or revolver, or any kind of deadly weapon, to any court of justice or any election ground or precinct, or any place of public worship, or any other public-gathering in this state, except militia muster grounds.”
The Hill court expressed its approval of the whole statute. The federal Second Amendment did not apply to the states, said the court. As for the Georgia Constitution, Hill said it was militia-centric. People could acquire the arms familiarity necessary for the militia by carrying in places not subject to the statute: “If the general right to carry and to use them exist; if they may at pleasure be borne and used in the fields, and in the woods, on the highways and bye-ways, at home and abroad, the whole declared purpose of the provision is fulfilled.” Carrying guns to churches or public gatherings did nothing to improve militia skills, and so was irrelevant to the purpose of the constitutional right, especially in light of the express power for the legislature to regulate the “manner” of carrying.
The legacy of slavery
Before the Civil War and in the decades thereafter, the slave states were the center of the gun control movement. Although the Equal Protection Clause of the Fourteenth Amendment forbade gun laws that expressly discriminated on race, the racial subtext of Southern gun control was obvious. The Ohio case State v. Nieto, 130 N.E. 663 (Ohio 1920), involving a Mexican employee of a railroad, upheld a complete ban on concealed carry, even in one’s own home. A dissenting justice wrote:
I desire to give some special attention to some of the authorities cited, supreme court decisions from Alabama, Georgia, Arkansas, Kentucky, and one or two inferior court decisions from New York, which are given in support of the doctrines upheld by this court. The southern states have very largely furnished the precedents. It is only necessary to observe that the race issue there has extremely intensified a decisive purpose to entirely disarm the negro, and this policy is evident upon reading the opinions.
Id. at 669 (Wanamaker, J., dissenting). While Nieto was a “manner” case, and not a “location” case, Justice Wanamaker’s point has broader application: laws and cases based on racial animus are of lesser value as precedent. The U.S. Supreme Court said the same in its 2020 decision Ramos v. Louisiana, holding that laws allowing criminal convictions by non-unanimous juries were unconstitutional because their purpose had been to increase convictions for black defendants.
A new article in the Virginia Law Review, Race, Ramos, and the Second Amendment Standard of Review, by Justin Aimonetti and Christian Talley, argues that racist anti-gun laws cannot be exempted from the Ramos rule. This is bad news for gun control advocates, since many of their strongest precedents come from the period of Jim Crow.
Aimonetti and Talley examine Southern statutes against concealed carry, show that the laws were motivated by hostility to the former slaves, and demonstrate that the concealed carry laws were enforced much more vigorously against blacks than against whites. Are the modern descendants of such laws valid guides to the scope of the right to bear arms, so long as the laws are enforced equally for all races? Not according to Ramos, say Aimonetti and Talley:
Ramos tells us that it is illegitimate to conclude that the modern ‘bear’ right is susceptible to copious restrictions because racist Southern authorities restricted Black citizens’ past exercise of that right. Such evidence may be powerfully probative of historical racism, but its probative weight regarding history’s true verdict on the scope of the Second Amendment should be considered slim. Otherwise, courts risk laundering past racist restrictions to validate modern burdens on constitutional rights.
In the Ramos case, the Court did not find that the Louisiana and Oregon non-unanimous jury laws were currently being used because the legislatures wanted to discriminate against blacks. Rather, the Court held that the racist origins of the anti-jury laws disqualified those laws from being informative about the true scope of the Sixth Amendment. The same point applies to the Second Amendment.
Aimonetti and Talley follow Ida B. Wells and Frederick Douglass in the describing how concealed carry laws were written and enforced with racial animus. Does it seems likely that other arms carry laws in the same state were neutrally intended and neutrally enforced? Perhaps sometimes they were, but not necessarily always or usually.
Tennessee in 1869 outlawed carrying certain arms to polling places; in this regard, the statute was nothing novel. But the statute went further, and also applied to “any fair, race course, or other public assembly of the people.” Two years later, the Supreme Court of Tennessee expressed approval of such restrictions, while holding unconstitutional other statutory language banning handgun carry in general:
While the private right to keep and use such weapons as we have indicated as arms, is given as a private right, its exercise is limited by the duties and proprieties of social life, and such arms are to be used in the ordinary mode in which used in the country, and at the usual times and places. Such restrictions are implied upon their use as are thus indicated.
Therefore, a man may well be prohibited from carrying his arms to church, or other public assemblage, as the carrying them to such places is not an appropriate use of them, nor necessary in order to his familiarity with them, and his training and efficiency in their use.
Andrews v. State, 50 Tenn. 165, 181–82 (1871). Like the 1874 Hill case from Georgia, Andrews believed the constitutional purpose of people carrying handguns outside private property was to acquire familiarity so they would be able to serve well in the militia.
An 1870 Texas statute covered both handguns and long guns. They were banned at election places, “any other place where people may be assembled to muster or to perform any other public duty, or any other public assembly,” churches, schools, and even private social events: “any church or religious assembly, any school room or other place where persons are assembled for educational, literary or scientific purposes, or into a ball room, social party or other social gathering composed of ladies and gentlemen.”
The next year, Texas banned handgun carrying, open or concealed, with a few exceptions. The year after that, the Texas Supreme Court upheld the ban. English v. State, 35 Tex. 473 (1872). The court said the Second Amendment did not apply to the states. The Texas Constitution was interpreted to allow Texas to progress above its earlier culture related to the Spanish colonial heritage of arms carrying:
We will not say to what extent the early customs and habits of the people of this state should be respected and accommodated, where they may come in conflict with the ideas of intelligent and well-meaning legislators. A portion of our system of laws, as well as our public morality, is derived from a people the most peculiar perhaps of any other in the history and derivation of its own system. Spain, at different periods of the world, was dominated over by the Carthagenians, the Romans, the Vandals, the Snovi, the Allani, the Visigoths, and Arabs; and to this day there are found in the Spanish codes traces of the laws and customs of each of these nations blended together in a system by no means to be compared with the sound philosophy and pure morality of the common law.
It is true that the Romans, Visigoths, Arabs, and Spanish sometimes recognized the right of self-defense and a right to use arms for self-defense. Perhaps the Texas court was especially concerned about arms carrying by Tejanos, the Hispanics who lived in South Texas before independence, and who have lived there ever since.
Later statutes
Missouri in 1874 banned concealed carry at a variety of locations, while not restricting open carry. This was consistent with the Missouri Constitution’s right to arms, which made an express exception for concealed carry.
The Oklahoma Territory’s 1890 statute applied to all forms of handgun carry, whether open or concealed. The areas covered were vast, and included private social events:
any church or religious assembly, any school room, or other place where persons are assembled for public worship, for amusement, or educational or scientific purposes, or into any circus, show or public exhibition of any kind, or into any ball room, or to any social party or social gathering, or to any election, or to any place where intoxicating liquors are sold, or to any political convention, or to any other public assembly. . .
While the Missouri statute merely regulated the manner of carrying, Texas, Oklahoma, and Tennessee had broad bans on carrying handguns in many locations. Similar laws in Arizona Territory (1901) and the State of Montana (1903) forbade firearms at public and social events. Such statutes nullified the Second Amendment whenever people exercised their First Amendment right to assemble.
Political demonstrations
In Bruen, the American Civil Liberties Union amicus brief, consistent with the organization’s longstanding view that individual Americans have no Second Amendment rights, argues against judicial recognition of the right to bear arms. Much of the brief focuses on the misuse of firearms at political demonstrations, and would be supportive of the argument that demonstrations are sensitive places.
Regarding the January 6 riot in the Capitol, Judge Michael Luttig’s amicus brief credits the District of Columbia’s strong gun laws for having prevented the criminals from bringing their guns into the District.
In that regard, it should be noted that the District is already a “shall issue” jurisdiction, thanks to the D.C. Circuit Court’s 2017 decision in Wrenn v. District of Columbia, for which the D.C. Solicitor General chose not to file a petition for a writ of certiorari. This suggests that a fair system for licensing, rather than prohibition, was effective. The plaintiffs in Bruen are only asking for a license, just as plaintiff Dick Heller was only asking to register his handgun pursuant to D.C.’s gun registration system.
Most jurisdictions allow some visitors to use carry licenses issued by the vistors’ home state, but there is wide variation in how many sister states’ licenses are recognized. The District, in contrast, recognizes none. The District does allow some nonresidents, such as commuters, to apply for a D.C. license, under the same standards as for D.C. residents.
While the ACLU brief does a good job of describing how armed miscreants can interfere with people’s right to assemble, the brief does not address how the right to bear arms can protect the right of assembly–including assemblies for criticizing law enforcement violence. For example, on the 1772 annual commemoration of the Boston Massacre, Bostonians attended Dr. Joseph Warren’s stirring oration. Expecting the speech to upset the Redcoats in attendance, “almost every man [in the audience] had a short stick, or bludgeon, in his hand; and . . . many of them were privately armed.” Frederick MacKenzie, A British Fusilier in Revolutionary Boston 37 (Allen French ed., 1926).
Community organizer Charles E. Cobb, Jr., discusses the role of offensive and defensive arms during the Civil Rights Movement in his book This Nonviolent Stuff’ll Get You Killed: How Guns Made the Civil Rights Movement Possible (2014).
On June 6, 1966, James Meredith (the first black student at the University of Mississippi) was shot and wounded while conducting a march to encourage voter registration. Leading civil rights organizations banded together to continue the “Meredith March against Fear,” from Memphis, Tennessee, to Jackson, Mississippi. With Dr. Martin Luther King’s consent, armed security was provided the entire way by the Deacons for Defense and Justice. Founded in 1965 in Klan-dominated southwestern Louisiana, the Deacons were an armed community defense organization that protected civil rights workers.
In the Meredith March, four thousand new voters registered; fifteen thousand strode into Jackson, Mississippi, along with Dr. King, on June 26, the largest civil rights march in the state’s history. Deterrence worked, and, although there were confrontations with
aggressive Mississippi police during the Meredith March, nobody on either side fired a shot. (For more, see my review of Cobb’s book for the Cato Journal.)
Doctrinal considerations
The Heller opinion described “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” as “presumptively lawful regulatory measures” that were “longstanding.” Thus, sensitive places are not places where the right to arms ceases to exist. Rather, restrictions in sensitive places enjoy a presumption of legality. Presumptions are rebuttable.
Consider another “presumptively lawful” type of gun control: “conditions and qualifications on the commercial sale of arms.” Heller, 554 U.S. at 627. A statute requiring that when the owner of a retail gun store goes home for the night, the guns must be secured should be held lawful.
But suppose that the anti-theft rule is that every gun in the store must be disassembled before the store closes at night. Or that the gun store may only be open for business five hours per week. Or that only persons with a college degree may work in a gun store. All of these would be “conditions and qualifications on the commercial sale of arms.” These laws are manifestly oppressive, extreme, and unreasonable. They should be subject to heightened scrutiny and ruled unconstitutional. The more unreasonable, oppressive, or excessive the regulation, the better the argument that the presumption has been overcome.
According to Heller, it also matters whether the regulation is “longstanding.” A few laws that were later repealed and were not replaced by a similar statute do not make a particular gun control “longstanding.” Something that is “longstanding” has two characteristics: being “long” and being “standing.”1 Shorter Oxford English Dictionary 1625 (1993) (“adj. Of long standing; that has existed a long time, not recent.”). If a law has been repealed, it is not “standing.”
Thus, none of the laws against bearing arms in social gatherings or mixed company have modern precedential value. Although these laws were enacted long ago, none of them are longstanding, for every one of them has been repealed. Every state that had such a law has replaced it with laws allowing licensed concealed carry, or open carry, in public places, including in places of public assembly or social intercourse.
The “government buildings” phrase from Heller is under-inclusive and over-inclusive.The White House lawn is not a “government building,” but it is reasonable to prohibit visitors from carrying firearms there. Conversely, an outhouse at a trailhead of Bureau of Land Management (BLM) wasteland property in Nevada is not a sensitive place.
Buffer zones are usually not sensitive places. Heller allows for carry bans “in” sensitive places—not bans “around” or “near” sensitive places. Amy Hetzner, Comment, Where Angels Tread: Gun-Free School Zone Laws and an Individual Right to Bear Arms, 95 Marquette L. Rev. 359, 392 (2011) (“The Court’s decisions in Heller and McDonald used the preposition “in” when referring to schools, as opposed to using “around” or “near” (words that might have provided better constitutional protection to the 1000-foot perimeter established by the California and Illinois laws).”). Thus, the Illinois Supreme Court held unconstitutional a statute that prohibited licensed carry within a thousand feet of a public park. People v. Chairez, 2018 IL 121417.
The government’s behavior can demonstrate the true importance of the alleged government interest. Passing a statute declaring some place to be a “gun free zone” does nothing to deter criminals from entering with guns and attacking the people inside. In contrast, when a building, such as a courthouse, is protected by metal detectors and/or guards, the government shows the seriousness of the government’s belief that the building is sensitive.
Screening and armed guards reduce the burden that is inflicted on citizens by locational arms bans. Disarmed, the citizen in a sensitive place cannot defend herself. But when there are metal detectors, the citizen is assured that criminals cannot bring in guns. When armed guards are present, the government takes the responsibility for having armed force at the ready to protect citizens.
Conversely, when the government provides no security at all—such as at the outhouse at the trailhead of the BLM land—the government’s behavior shows that the location is probably not sensitive. Further, the disarmament burden inflicted on citizens is not mitigated by alternative protectors supplied by the government.
The rights of private property owners are not part of the sensitive places doctrine. The Second Amendment does not forbid a private property owner to prohibit guns. Some states have laws that forbid businesses from firing employees for lawfully possessing a firearm in a car parked in a company parking lot; this is a matter of labor law, which has long allowed states to regulate the employer-employee relationship. The Second Amendment in itself does not require a private property owner to prove that his or her property is “sensitive” in order to be able to exclude armed visitors.
