Key Takeaways
- Heller named schools and government buildings as sensitive places where guns can be banned, and Bruen added legislative assemblies, polling places, and courthouses, without fully explaining why those places qualify.
- Under Bruen, a gun-free zone must be relevantly similar to historical location-based restrictions, which makes modern places like subways and stadiums hard cases.
- The same danger that justifies banning guns in a crowded place is a reason some people want to carry there, a tension courts continue to address.
Can a state ban guns in Times Square on New Year's Eve, at a football stadium, or on the subway? After the Supreme Court expanded the right to carry, that question moved to the center of Second Amendment law.
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 where governments may restrict guns after New York State Rifle & Pistol Association v. Bruen, and why the answer was unsettled when the decision came down.
A Sleepy Area Wakes Up
The phrase "sensitive places" comes from District of Columbia v. Heller, which said nothing in its opinion cast doubt on bans on guns in places such as schools and government buildings. Heller did not say why those places qualified. For years, Professor Blocher notes, the area saw little litigation; he points to a D.C. Circuit ruling upholding a ban on the Capitol grounds and parking lots, and a Tenth Circuit case, Bonidy, upholding a ban at a post office and its parking lot.
The Bruen Argument and Opinion
At oral argument, he says, several justices pressed Paul Clement, the challengers' lawyer, about campuses, football stadiums, and Times Square on New Year's Eve. Professor Blocher sees a packed Times Square as a modern version of the fairs and markets where medieval law barred weapons. The opinion itself added legislative assemblies, polling places, and courthouses to Heller's list and told courts to look for analogous historical laws, without more guidance. Within days, he notes, a challenge was filed to a ban on guns in D.C.'s mass transit.
The Terrible Symmetry
Professor Blocher describes the gun-rights view: the same features that make a crowded place dangerous are why someone would want a gun there. Public safety arguments cut both ways, as Justice Breyer noted in Heller about handguns. Justice Alito suggested one way out, allowing bans where the government takes over protection, such as with magnetometers, but that would not make all of Manhattan a sensitive place. Professor Blocher expects more legislation once states can no longer screen who carries through discretionary permits. He doubts that asking how 1800s courts treated guns in saloons will yield useful lessons, since the answer depends on how a judge frames the history.
What to Know Now
Much of the litigation Professor Blocher anticipated has arrived. New York enacted a long list of sensitive places, and the Second Circuit upheld most of it in Antonyuk v. James; 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 United States v. Rahimi (2024), the Court confirmed that modern laws need not have a historical twin. In Wolford v. Lopez (2026), it struck down Hawaii's rule barring permit holders from carrying on private property open to the public without the owner's consent, while leaving traditional sensitive places in place. Gun rights advocates and supporters of regulation continue to disagree over where the lines should fall, and courts are still drawing them.
