Key Takeaways
- Sensitive places are locations where the government may ban guns without violating the Second Amendment, such as schools, government buildings, legislative assemblies, polling places, and courthouses.
- Under Bruen, a location-based gun ban must be consistent with the nation's historical tradition of firearm regulation, so courts look for older laws with a similar purpose and effect rather than an exact historical twin.
- Bruen held that a state cannot declare an entire city like Manhattan a sensitive place, and courts continue to sort out which specific locations qualify.
Can the government keep guns off airplanes, out of polling places, and away from subways? And if so, what makes one place "sensitive" and another not?
In this TalksOnLaw Brief, Joseph Blocher, the Lanty L. Smith '67 Distinguished Professor of Law at Duke Law School and faculty director of the Duke Center for Firearms Law, explains the sensitive places doctrine: the idea that some locations can be designated gun-free without violating anyone's right to keep and bear arms.
The Where of Gun Regulation
Professor Blocher sorts gun laws into who, what, and where. Sensitive places are the "where." The phrase comes from District of Columbia v. Heller, which said nothing in its opinion should cast doubt on bans on guns in sensitive places such as schools and government buildings. In New York State Rifle & Pistol Association v. Bruen, the Court gave a slightly different list: legislative assemblies, polling places, and courthouses. Both confirm some locational restrictions are permissible, without fully explaining which or why.
History and Analogy After Bruen
The larger change, he says, is method. After Bruen, a modern gun law is judged by whether it is consistent with historical tradition, not by its costs and benefits. That creates a puzzle for places like airplanes, subways, sports stadiums, and daycare centers that did not exist in 1791. Courts must reason by analogy, looking for a relevantly similar law with the same purpose or effect rather than a historical twin. One principle is heightened danger where crowds gather or tempers run high. Another, which he has explored with Yale's Reva Siegel, concerns democratic life: restrictions near legislatures, polling places, and government buildings date back centuries and targeted violence and intimidation. Duke's Repository of Historical Gun Laws, he notes, contains more than 150 sensitive place restrictions.
The Awful Symmetry
Professor Blocher points to a recurring tension: the same features that make a place dangerous enough to justify a ban are reasons some people want to carry there for protection. One proposed solution, raised by Justice Alito at the Bruen argument, is to allow bans where the government provides security, such as metal detectors at courthouses, though that would not explain gun-free national parks. He doubts that rights can never be traded off, noting that political speech is also restricted at polling places. He also flags the aggregation problem: individually valid sensitive places, clustered in a city like Manhattan, can add up to most of the map, though Bruen held that a city cannot declare itself a sensitive place as a whole.
What to Know Now
The analogical approach Professor Blocher describes is now firmly part of the law. In United States v. Rahimi (2024), the Court confirmed that modern laws need only be consistent with the principles underlying the historical tradition, not identical to an older law. Lower courts have since upheld many location-based restrictions: the Second Circuit sustained much of New York's post-Bruen law in Antonyuk v. James, and the Supreme Court declined review in 2025; the same court later rejected a preliminary challenge to bans in Times Square and on the subway. In 2026, the Supreme Court struck down Hawaii's rule barring permit holders from carrying on private property open to the public without the owner's consent in Wolford v. Lopez. Carry-rights supporters see that ruling as a check on expansive gun-free zones; regulation supporters stress that traditional sensitive places were left untouched. Which modern locations qualify remains an active question.
