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NYSRPA v. Bruen and the Future of the Sensitive Places Doctrine

By and on June 22, 2022 Categories: , , , , ,

As we await the Supreme Court’s decision in NYSRPA v. Bruen—which will address the extent to which states can regulate public carry through licensing—the question of whether states can prohibit firearms in specific locations has become increasingly salient. During the Bruen oral argument, the justices posed hypothetical questions as to whether states could restrict firearms on university campuses or the New York City subway, at sports stadiums or bars, or in Times Square on New Year’s Eve. These questions referred to what is known as the “sensitive places” doctrine, which originated in a passage in Heller stating that “nothing in our opinion should be taken to cast doubt on . . . laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” Based on this passage, the lower courts have upheld firearms restrictions in locations that they have determined to be particularly sensitive, relying on factors including the presence of children or large crowds, historical prohibitions in those locations, or potential conflicts with other constitutional rights.

If the Court’s decision in Bruen strikes down New York’s law and limits states’ ability to restrict public carry, state and local governments are likely to pass more sensitive place restrictions, with Second Amendment challenges to these laws likely to follow. In anticipation of this litigation, some conservative groups and writers are now advocating for an extremely restrictive approach to sensitive places that looks only at whether the government has provided strict security measures, such as metal detectors and security guards, in a particular location. This argument appeared in the right-leaning Independent Institute’s amicus brief in Bruen, as well as a recent Volokh Conspiracy blog post, both of which suggested that only locations with the level of security of an airport terminal could be labeled as sensitive. Concerningly, this narrow view appeared to gain traction with Justice Alito, who asked petitioners’ counsel at oral argument whether courts should “analyze the sensitive place question by asking whether this is a place where the state has taken alternative means to safeguard those who frequent that place,” citing as an example courthouses “where everybody has to go through a magnetometer and there are security officials.”

Our article, NYSRPA v. Bruen and the Future of the Sensitive Places Doctrine: Rejecting the Ahistorical Government Security Approach, recently published in the Boston College Law Review Electronic Supplement, responds to these arguments and demonstrates that the “metal detector and security guard” approach to sensitive places is inconsistent with our nation’s history of regulating public carry and both historical and present-day case law, including Heller.

As a historical matter, location-based firearms restrictions existed at the Founding alongside already restrictive public carry laws. For example, in 1776 Delaware and Maryland prohibited firearms at election grounds. Shortly after, public universities such as the University of Georgia and University of Virginia prohibited students from possessing firearms on campus. These restrictions expanded during the Reconstruction era: a number of states enacted prohibitions in locations such as churches, schools, polling places, ballrooms, or other social gatherings or public assemblies. Notably, none of these places had heightened government security measures. And in fact, state courts upheld several of these laws against constitutional challenges, emphasizing that carrying firearms in these locations would be “improper” and “shocking to all sense of propriety” due to the nature of the location, rather than considering the level of government security.

The government security approach also fails to comport with the post-Heller case law on sensitive places in state and federal courts. The D.C. Circuit in United States v. Class explicitly rejected this approach, explaining that it would be contrary to Heller itself. As Class explained, “[m]any ‘schools’ and ‘government buildings’—the paradigmatic ‘sensitive places’ identified in Heller I—are open to the public, without any form of special security or screening.” Instead, when considering whether a location is a sensitive place, courts should consider “the people found there” or the “activities that take place there.” Since Heller, courts have examined a variety of factors that could make a location particularly unsuitable for public carry, such as the likelihood that children are present, the density of people in a location or the use of a location for large public gatherings, the presence of alcohol, whether the property is publicly or privately owned, or whether it is a location where people gather to engage in expressive or other constitutionally-protected conduct.

Ultimately, a singular theory for identifying sensitive places is difficult to articulate. The concerns supporting firearms prohibitions in, for example, bars, are obviously very different from those justifying prohibitions at public parks or election precincts. That said, and as our article discusses in more detail, the history and case law clearly show that a sensitive places doctrine based solely on the presence of enhanced security measures––such as metal detectors and security guards–is inconsistent with both the historical understanding of the Second Amendment and the approach taken by modern courts.