Under Second Amendment jurisprudence, states are permitted to restrict guns in "sensitive places." This traces back to the landmark Supreme Court opinion of D.C. v. Heller (2008). In that decision, the majority opinion explains that "sensitive places" could provide justification for gun restrictions, and provided examples of "schools and government buildings." The 2022 decision NYSRPA v. Bruen returned to the legal concept of sensitive places, so we asked Second Amendment scholar Prof. Joseph Blocher to provide his analysis of what can be included in the list, what cannot be, and what sensitive places doctrine means for Second Amendment jurisprudence going forward.
Joseph Blocher is a leading Second Amendment scholar and a professor at Duke Law School. He serves as Co-Director of the Duke Center for Firearms Law.
A Conversation with Second Amendment Scholar, Prof. Joseph Blocher
“Sensitive Places” under the Second Amendment?
Joel Cohen (Host): Hello and welcome to TalksOnLaw. I'm Joel Cohen. Today we're joined remotely by a Second Amendment scholar, a law professor at Duke Law School, my alma mater, and the co-director of the Duke Firearms Law Center, Professor Joseph Blocher. Let's talk about “sensitive areas,” and I don't mean any innuendo there. We're talking about areas where states can come in and say, “look we have a special concern here.” Is there a test? Is there a way to discover or to mete out what a “sensitive area” is?
Professor Joseph Blocher: This is one of the big challenges after Bruen, and I should say that that phrase that you're using, “sensitive places,” has an origin. It comes from Heller – that same paragraph we keep talking about – where the court says “nothing in our opinion shall cast doubt on prohibitions on guns in sensitive places like schools and government buildings.” So in other words, Heller says you can declare those gun-free zones. You can prohibit guns in schools and in government buildings. Heller doesn't tell us why. Why those places and not other places, and for most of the years since Heller, it's actually been kind of a sleepy area of Second Amendment doctrine. There hasn't been a ton of litigation here. There's only really been two prominent cases that I can think of. One involved the prohibition on guns on the Capitol grounds in D.C., and the D.C. Circuit said, “that's fine. You can prohibit guns on the Capitol grounds including the adjoining parking lots.” And then another case called Bonidy, which came from the 10th circuit where the court said, “you can prohibit guns at the post office and the post office parking lot,” even in rural areas. And so, that's kind of it. There's not a lot more, um, fact development.
A Test for Sensitive Places
Prof. Blocher: There's a couple great scholarly articles out there, but not a whole lot to answer the question of, “well why? What places are sensitive?” And this was an issue at oral argument. A bunch of the justices wrestled with – I think it was probably the hardest part of oral argument for Paul Clement – who was representing the petitioners here – who is an unbelievably brilliant Supreme Court advocate, but I think was a little bit on his back foot for these questions when the justices asked him, “well like what about prohibiting guns in on NYU campus?” It's not a great example because it's a private school, but you know, on a school campus or at a football stadium or Times Square on New Year's Eve. And Justice Barrett, Justice Thomas, Justice Kagan, and Justice Alito, they all seem to be kind of talking about, you know, “well we want there to be prohibitions in those places or for it to be permissible, maybe not Times Square but the others, we just don't really know why.” Is it because they're especially dangerous? Is it because the government owns some of them? You know–
Host: Wait, why did you say maybe not Times Square?
Prof. Blocher: So to me, I think yes, in fact, I think it is the modern equivalent of the fairs and markets where guns can be prohibited under medieval weapons law, um at least, Times Square on New Year's Eve, which is what –
Host: Right, right. When there's hundreds of thousands of people packed together.
Prof. Blocher: Drunken and revelry and fights and probably jostling breaking out. There's a hard question, I think, about how do you administer that law right at a place like Times Square, which is different than a school or government building where we can search everybody coming in. But what the court ends up doing in the opinion is not really giving us any more guidance on sensitive places. I mean, it wasn't directly before the court here. They didn't have to answer the question. What Justice Thomas does say is, “you can prohibit guns in not just schools and government buildings, but he adds to that list: legislative assemblies, polling places, and courthouses. So, some overlap there with government buildings, but basically said, “those places are also okay.” And again says, “well it's about what's analogous, you know, relevantly similar.” I don't know what that means about, um you know, suits involving Times Square or football stadiums, and in fact, just a few days after the court's opinion, a lawsuit was filed in D.C. challenging the prohibition on weapons in mass transit. I think we're going to see a lot of litigation on exactly that front. You know, the subway in New York.
Public Safety and Sensitive Places
Host: Didn't Thomas kind of muse about carrying a gun on the subway during oral arguments or did I have that wrong?
Prof. Blocher: Justice Alito, um, had painted a sort of a dark vision of a person coming home after a long day's work at night through a dangerous neighborhood, and the subway may have made an appearance there. I can't remember. I mean, the tricky thing here – again to give what I perceive to be the sort of the gun rights view of things – is that all the things that make a place, like let's say Times Square, you know dangerous, and therefore subject to prohibition, are exactly the reasons why you'd want a gun there to defend yourself. Right? That's the terrible symmetry of the arguments here right, like you want to prohibit guns in places where fights may break out –
Host: This is so true that the public safety argument is on both sides of this issue.
Prof. Blocher: So many issues in gun – in the gun argument – can be flipped back and forth so quickly. And I mean, in Heller this came up about. You know, that was a case involving handguns, and as Justice Breyer pointed out in his dissent, all the things that make handguns useful for self-defense, you know, they're easy to hold; they're easier, you know, you can put them wherever; it makes them attractive to criminals. You know, like that that's the, it just works in both directions. The ratchet does, and I think we'll see a lot of the same arguments with “sensitive places.” If a place is dangerous such that you don't want to have guns there, well, I want to have a gun there because you just told me it was dangerous. So there's ways out of that, and Justice Alito suggested one, which I don't think is a full principle for “sensitive places,” but one, which is if the government kind of takes over in some very special way, the role of protecting people like he refers to like amagnometer, whatever you call it –
Host: – magnetometer –
Prof. Blocher: – magnetometer, yeah I missed a syllable in there, but you have metal detectors right. If the government is taking over, especially the role of protecting people, then you can disarm them, but that doesn't get you to declaring Manhattan a “sensitive place” because the police are there. Like it's got to be more concentrated than that. So, I think we're going to have a lot still to kind of figure out about what makes places “sensitive,” and I should say, I do expect there to be more legislation on this because if you're a state like New York, and until now you've had a rule that, you know, in order to carry a gun in public at all you have to have proper cause, right that kind of limits the number of people who are out there. Then you might say, “okay, if a person has shown proper cause, they've gone through this licensing, whatever then fine, if they're going to be around in public, even if they're in bars and restaurants where alcohol is served, no big deal we think it's a safe population of people. That's why perhaps in New York right now it is legal to carry a gun into a bar, right, but if I’m a New York official –
Host: – like not many people are permitted to carry a gun here.
Prof. Blocher: Exactly. You're sort of screening the people in the first place, but if you can't do that, then you might say, “okay now we got to start picking out some places where, since we've got a bigger population of people, not all of whom have shown proper cause, then we got to start putting some limits on where they can go.” And so, I think there might be a lot more legislation, and then eventually, litigation, about these locational restrictions.
Sensitive Places under the Text, Tradition, and History Test
Host: And let's say there's a state that puts in their law that places that serve alcohol are off limits. The analysis would be, let's go back and look at how in the 1800s, how courts treated bringing guns into saloons. Is that, would that be the analysis?
Prof. Blocher: That's what Paul Clement suggested at oral argument. That's what one reading of the majority opinion suggests. I think that would be a nightmare. I just don't think there's any useful lessons that you're gonna get from history about the question if it's pitched that way. I mean, there's a lot. This is the tricky thing about these historical tests is they're, going back to what we were saying earlier, so manipulable right. You could phrase the question a different way and say, “let's look to history, did the framing generation prohibit guns in places where they were especially dangerous?” You know, and maybe they had a different view of what dangerous places were, just like they had a different view of what groups were dangerous. I mean, in the founding era they disarmed Native Americans, people who wouldn't take oaths to support the United States, like because they were thought to be dangerous. We don't do that anymore, thank goodness, but they also did not disarm domestic abusers, we do. Our understanding of what dangerous groups are has changed, and maybe the same is true for places.For place-based restrictions. I mean, there were restrictions back then on carrying guns around on election days and near polling places and near courthouses, and so you could kind of reason from that, but I don't know how you apply that to you know a subway challenge right. The founding generation had a lot of brilliant people in it, and they were far-seeing, but they didn't foresee that. That's going to require a level of generality that, I think, it's going to depend on how the judge decides to slice the historical record, frankly.