Sensitive Places under the Second Amendment

A Conversation with Second Amendment Scholar, Prof. Joseph Blocher

Joel Cohen: The Second Amendment to the United States Constitution enshrines the right to keep and bear arms and limits the state's ability to restrict that right. One exception that has been recognized in judicial doctrine involves something called sensitive places. Today, we'll discuss. Hello, and welcome to Talks on Law. I'm Joel Cohen. We're joined remotely by a constitutional scholar, a Second Amendment expert, and the co-director of the Duke Center for Firearms Law, Joseph Blocher. Welcome back to TalksOnLaw.

Joseph Blocher: Thanks so much for having me, Joel.

What are "sensitive places?"

Joel Cohen: Professor, what do we mean when we talk about sensitive places under the Second Amendment?

Prof. Joseph Blocher: At a top line, sensitive places are those locations where guns can be prohibited without violating the Second Amendment. They are the sort of locations, if you like, that can be designated gun-free without violating anybody's right to keep and bear arms. And I think one way to just kind of think about them is that gun laws come in lots of different categories. There are laws that restrict who can have weapons, like prohibitions on possession by people who've been convicted of felonies or who've been adjudicated mentally ill, those are kind of "who" prohibitions. There are those that restrict the kinds of weapons you can carry, like restrictions about high-capacity magazines, for example, that some states have. And sensitive places restrictions are the proverbial "where," you know, where can you carry your guns, and there are some places that the Supreme Court and lower courts have recognized can be designated gun-free.

Examples of Sensitive Places

Joel Cohen: The first thing that jumps to my mind is an airplane. Here we have this metallic bubble floating thousands of feet above the earth. And firing a gun in that little tube might result in a depressurized cabin and, at the very least, an early landing.

Prof. Blocher: Yeah, I think the answer to that one is no; that's a question I'd have any doubt saying the answer is no. I mean, the hard questions really are about that. One is a good example is like how to justify, like, what are the concerns that make it okay to prohibit, as federal law does, a loaded gun in an airplane cabin? And there are lots of different underlying reasons we can imagine. It's because they're really dangerous. It's because the cabin is pressurized. And we know what happens if somebody were to fire a gun and puncture a hole in that flying tube. But Supreme Court cases, some of them seem to take off the table that kind of policy-based rationale and direct us back into history, and that makes it a little harder to get around to like, why is it okay to prohibit guns in airplane cabins, although at least from my view, it's not only sensible but very clearly constitutional.

Supreme Court Cases That Established Sensitive Place Jurisprudence

Joel Cohen: Let's talk about the Supreme Court cases that established this doctrine. First off is the groundbreaking landmark Supreme Court case District of Columbia v. Heller, a case that you were actually involved with.

Prof. Blocher: So the case where we get the phrase is District of Columbia v. Heller, which is sort of the foundational case for the modern Second Amendment. And the challenge there didn't actually have to do with any particular location. The challenger in that case, Dick Heller, just wanted to have a handgun in his home for self-defense. But in the course of recognizing that Heller did have that right, the Supreme Court went on to say nothing we've decided here should cast any doubt on other long-standing prohibitions, including restrictions on guns in sensitive places, such as schools and government buildings. So Heller points to those two, but the case didn't really have to go into more detail, because it wasn't really a challenge about those two things.

Joel Cohen: Do you think judges were immediately sensitive to, "Let's not have guns in the courtroom?"

Prof. Blocher: You know, it's interesting you say that, because when the Supreme Court came back to the Second Amendment and its next really thorough engagement, which was the 2022 decision in New York State Rifle and Pistol Association versus Bruen, it again recognized the legitimacy of locational restrictions, but it gave a slightly different list. So instead of saying schools and government buildings, the majority in Bruen said legislative assemblies, polling places, and courthouses. So there they got slightly different, but you can imagine maybe what was on the justices' minds. So again, after Bruen, we know some locational restrictions are okay, which ones and how we justify them is a little harder.

Joel Cohen: You mentioned Bruen; that was the second case that I was hoping to touch on. Bruen did expand that articulated list of sensitive places, but it did something else. What other impact on Second Amendment sensitive place doctrine did Bruen have?

Prof. Blocher: I think the really major thing that Bruen did, and it's true for sensitive places doctrine just like lots of other areas of Second Amendment law, was to change the methodology. They changed how we know what gun laws are okay and which ones aren't. So what Bruen said was, from now on, the legitimacy of modern gun laws is based on whether they are consistent with historical tradition. So, in other words, we're not supposed to look directly at things like costs and benefits or maybe even risk. I mean, to go back to your airplane example, right? The arguments that we were talking about there are really arguments about sort of like modern risk, empirical risk, or common sense. Yeah, common sense is not the test, except in as much as it is reflected in historical tradition. Now, the really hard thing is that some of these locations, like airplanes, just didn't exist in 1791. As far-sighted as the framers were in some ways, they really didn't have a conception of manned air flight. That was not on their agenda. And so, you know, we're not going to find in 1791 exactly a law restricting guns in airplanes or, for that matter, subways or sports stadiums, daycares – lots of places that we have today where guns might be restricted that didn't exist then. So what we have to do post-Bruen is kind of analogize, like, how are the modern ones relevantly similar to the historical ones? And there are, to be clear, a lot of historical place-based restrictions. We just have to figure out which ones are relevant to the kinds of things we might want to restrict today.

The Supreme Court Test for Sensitive Places

Joel Cohen: Yeah, maybe you could do some quick Second Amendment jujitsu and make the argument based on text, history, and tradition for why guns shouldn't be allowed on airplanes, or at least not loaded guns.

Prof. Blocher: Yeah, I mean, so the way I think it will work, and the way we're actually seeing it work out a little bit in lower courts is that courts are saying, okay, look, it would be a mistake, and Bruen says it would be a mistake, to look only for a historical twin. It doesn't have to be that there's a long-standing historical law specifically regulating airplanes or subways or daycares or any of those places. What we want to know is, is there a kind of relevantly similar law, right, maybe a law that had the same purpose or the same basic effect, right. And so what that means is you kind of have to back up a little bit, like, jump up a level of generality, if you like, don't look just for airplanes; look for, you know, what is it about airplanes that we're worried about, you know, what's the reason underlying the regulation, not just the specific location? And there's lots of different principles that one could draw, and scholars, litigators, and courts disagree about this, but I'll just give you a couple. One is, some people say sensitive places are those where physical danger is heightened? Because you have a lot of people together, or tempers are high, or inhibitions are lowered, you know, you could think about bars, maybe packed sports stadiums, maybe, you know, political assemblies, you know, maybe those kind of fit in that under that principle.

Joel Cohen: So we might be thinking of, you know, the antiquated Market Square, I'm just trying to think of 1700s life, what would be a particularly dangerous place?

Prof. Blocher: This is a great, great question because actually, you know, as I mentioned, there are a lot of historical place-based restrictions. And they reflect, I think, some of these concerns that today to us maybe sound intuitive. So, Heller, I said, mentioned schools; well, there are gun prohibitions in schools going back to the mid-17th century in the United States. Another place where there are a lot of restrictions is places having to do with democratic life, small d. My co-author, Riva Siegel of Yale Law School, and I have been working on this and sort of recent scholarship coming out in the NYU Law Review. One of the things we tried to illustrate, and other historians have shown, is that if you go back to consider legislative assemblies and polling places and, for that matter, government buildings, you'll find restrictions, again from the 17th century onwards, and the concern that seemed to animate them was exactly the risk of both violence and intimidation. Now, what kind of violence and intimidation has changed, you know, in the late 1700s, it was, you know, loyalists against revolutionaries in the context of the Revolutionary War; in reconstruction, it was white supremacists against black Americans, like there are different ways in which guns near polling places can harm. And today, maybe we have different kinds of concerns about people who patrol polling places with guns, but it's the same kind of concern that I think can apply in a lot of other contexts. And so that's the kind of reasoning I guess I think one should do, which is like figure out the underlying reasons and then see if those map on to more modern places that kind.

Joel Cohen: I love the idea of you sitting at your office reading laws from the 1700s. Is this what you thought your career would be like when you were in law school back in the day?

Prof. Blocher: It's really not, and sometimes I look up and look out the window, like what is going on? What am I doing? This feels so far removed from the actual costs and benefits of gun use today and from talking to historians, I think they often have the same reaction, like what are we doing? But I will say, I mean, with regard to these historical restrictions, we at Duke host something called the Repository of Historical Gun Laws, which is a free online collection of historical gun regulations. I was just looking at it yesterday. And there are more than 150 sensitive place restrictions in there. So if anybody else gets the bug and wants to sit and flip through some old laws, you can flip through and see, oh, you know, they restricted guns, you know, within a half mile of a polling place in Texas and Louisiana in the late 1800s. And, you know, the historical context of that might be interesting.

Joel Cohen: Is a trial of witches a sensitive place, you think?

Prof. Blocher: You would expect so, right, whether or not it happens in a courthouse to your earlier question. I would suspect that that's the answer. But again, I mean, to phrase the question, I think, is to capture what is so hard about doing this kind of analogy post-Bruen. I mean, there are pending challenges, as you and I are talking in the spring of 2023, pending challenges to the prohibition of guns on the DC metro, on the subway in New York, and judges are trying to evaluate those laws by reference to 1791 or 1868, which I think for a lot of us is just kind of a mind-bending way to think about constitutional law when I think both the challengers and the defenders are really more interested in, does this respect my right to keep and bear arms? And does this respect public safety? Like it's just very disconnected from what I think most people feel like are the real stakes.

Joel Cohen: You know, the thing about this particular topic, a lot of gun law, gun rights, gun regulation issues, which is just the same thing that makes the sensitive place dangerous to carry a gun is the same reason why you might want to carry one for your own protection. Can you speak to that?

Sensitive Places as Locations Where Guns Are Desirable?

Prof. Blocher: I think it's really, really important to emphasize that it is true, brought more broadly, I think, in the sort of gun rights and regulation debate that sort of like sometimes called, like the awful symmetry of this because it is, you know, the very same things that make handguns good for self-defense make them an attractive tool for would-be criminals, right, the very thing that might make a place sensitive, if we're thinking about it in terms of dangerousness, that is dangerous, and then subject to gun prohibition is also the reason that some gun owners might want to carry their guns in. So the question kind of becomes, well, how can you break that symmetry, right, is there a way to preserve people's sense of security while also disarming them when they enter into a particular place? And there are various solutions to this one that many proponents of broad gun rights put forward is, okay, you can disarm people only in those places where the government has taken on a kind of increased security role. So for example, Justice Alito raises this at the oral argument in the Brooklyn case, places where there are magnetometers, right where you have to walk through the metal detector, right? That might explain why courthouses are okay for guns to be prohibited because the government has ensured that everybody's disarmed. Maybe that works for sports stadiums and things like that, but it wouldn't explain necessarily a national park, right, or other kinds of places, some of which are designated as gun-free zones. And I think a lot of gun owners also say, "Look, why should I have to sacrifice my right to keep and bear arms when I enter into a place to exercise some other constitutional rights?" So polling places are an example. Right? People have a fundamental right to keep and bear arms and a fundamental right to vote. Why should they have to trade one to be able to exercise the other? And I think there's an intuitive appeal to that argument. I do think it is limited in terms of its actual payoff, you know, you have a fundamental right to engage in political speech as well. But you can't do that in a polling place. That's what anti-electioneering laws are about. I mean, you have a fundamental right to engage in consensual sex with another adult, you can't do that in a polling booth either, right? There are certain times and places where gun rights versus other rights can be exercised. And so I think the trade-off argument only gets us so far.

The Blurry Edges of Sensitive Places

Joel Cohen: You could certainly apply that on the other side, the other direction where you know, I have a fundamental right to interstate travel. So, maybe I want to carry my long rifle on the airplane. 

Prof. Blocher: That's where, I think, where post-Bruen, we're going to really see a lot of focus. What happens when you take many individual sensitive places, each of which is valid, and you aggregate them in a place like, let's say, Manhattan, where they might be all close to one another? So, I think many people, if not the vast majority, think it's permissible to prohibit guns in schools, right. And maybe government buildings since Heller already said that. If you take Manhattan or Washington, DC, and you put all the schools and government buildings, and maybe put a little buffer around each of them, and call all those sensitive, that's a lot of those cities. And if you're a gun owner trying to navigate your way through a city, it may be a patchwork of places where you can carry your guns, and that may feel like a real burden for the gun owner. So the tricky question we face is, well, which one gives way there? If each of these things individually is permissible, what do we do when they all happen to be closely designated? One thing I will say that Bruen tells us, and I think is sensible, is that a city can't designate all of itself as a sensitive place. New York City cannot say we are, as a whole, a sensitive place. The sensitive places inquiry is a little more fine-grained than that. But the challenge I put on the table is, what happens when the individual sensitive places add up to basically all of a city?

Joel Cohen: Joseph Blocher is a professor of law at Duke Law School and the co-director of the Duke Center for Firearms Law. Joseph, it is always a pleasure. So nice talking to you today.

Prof. Blocher: Thanks so much.