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Scholarship Highlight: Sensitive Places and Arkansas Gun Rights

  • Date:
  • January 19th, 2024

By: Andrew Willinger

The scholarship highlighted in this post does not necessarily represent the views of the Duke Center for Firearms Law.

In a new article in the Cornell Law Review Online, Julia Hesse and Kevin Schascheck explore the proper approach to locational firearm restrictions post-Bruen and compile potential historical analogues for regulating guns in places including railroads, highways, places of worship, and other places of public assembly.  Hesse and Schascheck suggest that “[l]ocation-based bans and regulations on firearms will likely replace, at least in part, permitting regimes that were common prior to Bruen.”

They propose two potential overlapping paths forward in this area.  The first option is a categorical test where courts rely on doctrinal “themes of sensitivity [including] (1) large numbers of defenseless people, (2) children and the value of young lives, (3) governmental proprietorship and functions, and (4) expectations of safety.”   Hesse and Schascheck also argue that, “[i]ndependent of whether courts accept the categorical test, doctrine and history reveal support for a 'gravitational pull' theory [that looks to] the physical penumbra of a sensitive place.” 

Robert Steinbuch, in an article recently published in the Texas Review of Law & Politics, traces the history of gun rights and regulation in Arkansas from the state’s first constitution in 1836, and its inclusion of a right to keep and bear arms limited to free white men, to the state’s adoption of permitless carry in 2013.  Steinbuch also examines recent litigation involving municipal enforcement of state firearms law, including over state-law exceptions that allow attorneys to carry firearms in court. 

 Julia Hesse & Kevin Schascheck II, The Expansive ‘Sensitive Places’ Doctrine: The Limited Right to ‘Keep and Bear’ Arms Outside the Home, 108 Cornell Law Review Online 218 (2024)

From the Abstract and Introduction:

 

In Bruen, the Supreme Court struck down New York’s “may-issue” licensing regime, recognized the right to carry arms outside the home, and announced the historical analogue method to analyze the constitutionality of modern gun laws. In doing so, the Court did not disavow the ‘sensitive places’ doctrine announced in Heller. In response, New York and other states enacted gun safety laws on the basis of location. 

This Article provides an account of the doctrinal and historical support for such regulations, proposes a list of locations where gun regulations will survive constitutional scrutiny, and offers a theory of gravitational pull whereby the places around ‘sensitive places’ become sensitive by virtue of their proximity to the core ‘sensitive place.’

We conclude that, as evidenced by the case law and historical analogues, the majority of places may be deemed sensitive and that states are therefore permitted to regulate or ban the use or carrying of firearms in most locations. While courts have not converged on a clear and uniform application of Heller’s sensitive places doctrine, we build on prior work, doctrine, and history to explain how courts should analyze the constitutional validity of location-regulating statutes.

Robert Steinbuch, Fighting for the Right to Carry: A Model Analysis of the History, Legislation, and Litigation of Arkansas’ Firearms Laws for Universal Application, 27 Texas Review of Law & Politics 487 (2023)

From the Introduction:

 

In this Article, I discuss Arkansas' turbulent history of gun rights. I begin by tracing each of the state’s constitutions’ approaches to gun rights and the case law interpreting them. Then I present the paradigm-changing recent legislation that produced a modern bundle of gun rights perhaps not seen since the early 1800s. And, in the capstone Part of the Article, I describe the three lawsuits that I have brought to enforce gun rights in the face of local governments’ and bureaucrats’ obstructionist efforts to undermine the will of the people as demonstrated through state law and the sad delaying efforts of the state’s supreme court.

The principal lesson of these lawsuits is that those who believe in the individual right to bear arms cannot rely on the legislative process alone to ensure those rights. More needs to be done. Not only does this Article explain what and how, it is my hope that this Article will serve as a roadmap for those throughout the country seeking to restore their previously diminished or extinguished right to self-defense.