Sensitive Places under the Second Amendment
The Second Amendment to the United States Constitution protects the right to keep and bear arms, but that right has been interpreted to have locational limitations under a judicial doctrine of “sensitive places.” Constitutional scholar and Second Amendment expert, Joseph Blocher, sheds light on where guns can be prohibited and what the Supreme Court means by sensitive places.
Sensitive places are locations where guns can be prohibited without violating the Second Amendment. Examples include schools and government buildings, as established in the landmark Supreme Court case District of Columbia v. Heller. The Court later expanded the list to enumerate legislative assemblies, polling places, and courthouses in New York State Rifle and Pistol Association v. Bruen.
Blocher explains that after Bruen, the legitimacy of modern gun laws is based on the law’s consistency with historical tradition. This means that courts have to look to historical examples to justify modern restrictions. For example, some historical place-based restrictions reflect concerns about physical danger in crowded areas, while others pertain to democratic life and the potential for violence and intimidation. Such historical laws can be used to justify comparable modern laws today.
One challenge in applying this historical approach is that certain modern locations, like airplanes, daycare centers, or subways did not exist at the time of the Constitution’s ratification. Courts must therefore evaluate the laws by drawing analogies between historical restrictions and modern concerns.
Prof. Blocher also points out that the debate around sensitive places highlights the "awful symmetry" of gun rights and regulation, where the same factors that make a place dangerous and warrant gun prohibition are the reasons some people may want to carry a gun for their own protection. A potential solution that some scholars have raised may be to disarm individuals only in locations where the government has taken on an increased security role, such as through the use of metal detectors.
As the debate on sensitive places continues, new cases are rising through the courts sharpening the edges of government power to restrict firearms and establishing the outer boundaries of where the Second Amendment applies.
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.