Are Political Conventions Sensitive Places?

This guest post does not necessarily represent the views of the Duke Center for Firearms Law.

Just days after a 20-year-old shooter fired at former President Trump with an AR-15, and with the country still processing the incident, the governor of Wisconsin has asked the Secret Service to prohibit firearms near the RNC political convention this week.

In the short run, such a ban appears unlikely to happen because the authority to enact the ban rests with the state, not the Secret Service (at least outside the “hard” security zone), and Wisconsin lawmakers have not acted to either ban firearms near the convention or permit municipalities to do so. The city of Milwaukee does not have the authority to enact a ban near the RNC due to Wisconsin’s state firearm preemption law, which generally prohibits local governments from regulating guns.

But even if the city or the state acts to restrict the carrying of firearms near the convention, there is the broader question of whether such a regulation would pass constitutional muster. The answer to that question, too, is far from clear and depends on how one construes the “sensitive places” language in the Court’s major substantive Second Amendment cases from the past sixteen years.

In Heller, the Supreme Court held that the Second Amendment guarantees an individual right to keep and bear arms. However, the Court noted that its holding did not extend to laws banning the carrying of guns in certain sensitive places, naming such laws “presumptively lawful.” Later, the Supreme Court’s decisions in Bruen and Rahimi required lower courts to engage in historical analyses. But it’s not clear whether or to what extent courts have to engage in historical analysis when evaluating presumptively lawful gun regulations.

Although there are many theoretical questions that courts confront when applying Bruen, it is worth emphasizing three here. First, do courts need to engage in historical analysis when evaluating presumptively lawful gun regulations? Second, are political conventions sensitive places? And third, assuming that political conventions are sensitive places, does that mean that there is also a buffer zone around those sensitive places where firearms can be banned?

The amount of historical justification that such categories of regulations require is controversial. The language in Heller is somewhat ambiguous, as it describes those regulations that are presumptively lawful as “longstanding.” Perhaps Heller meant that the laws are presumptively lawful because they are longstanding, or perhaps it simply meant that those categories of laws would be declared longstanding for purposes of historical analysis. One reading means that the historical analysis is still needed; the other reading means that it is not.

It should not be necessary to engage in the historical analysis, as I have argued here and here. Such a requirement obviates the doctrinal role of the categories.

But if history must still “confirm what common sense suggests” in the context of presumptively lawful regulations, it is likely that political convention centers are sensitive places. The historical record contains laws regulating firearms in polling places and legislatures since the Founding. As additional support, there are numerous laws dating from the Reconstruction era that regulate firearms in courthouses and places of public assembly, including a few that specifically reference “political convention[s], or [ ] any other public assembly[.]”

These analogues appear to support the principle that firearms may be banned near places with political significance. This coheres with what others have said about the permissibility of regulating firearms in “places where bonds of democratic community are formed and reproduced.” Political conventions are a quintessential example of a location with political salience.

Of course, it may be objected that political conventions, unlike courthouses and legislative buildings, are not always used in a political capacity. Frequently, they may be venues for all manner of public gatherings. History has an answer here too. Historical gun regulations frequently regulated the corollary to sensitive places – sensitive times. This includes bans on shooting firearms on holidays and throughout the night, and the historical record of such laws spans from the Colonial Era to the Reconstruction Era.

But the question at issue with the RNC convention is not whether firearms can be banned within the convention itself while it occurs. Firearms will be banned throughout the “hard” perimeter of the convention under Secret Service rules, which I argue are constitutional under the foregoing analysis.

The harder issue is whether firearms may be regulated in the area surrounding the convention, and if so, how far as a matter of distance those regulations may reach. Although some have persuasively argued that sensitive places do not have a buffer zone, based in part on the text of Heller, I think the stronger argument is that such buffer zones can exist.

In the same way that the designation of something as a sensitive place may or may not require historical analysis, whether sensitive places bring in buffer zones with a gravitational pull is an open question. It seems to me that if one question requires historical analysis, the other should as well, as both are key components of the hypothetical regulation.

If historical analysis is not needed, the policy-oriented reasons for buffer zones around sensitive places are clear. Bans within sensitive places may be ineffective if firearms can be openly carried across the street. Buffer zones are useful for allowing individuals to notice unusual circumstances regarding firearms and alert authorities, and the ability to do so for the sake of public safety is diminished if there is no distance between a location that permits firearms and a location that does not.

As my co-author and I argued in a recent article, if historical analogues are required for such a proposition they are available. Laws with buffer zones existed during the Colonial, Founding, and Reconstruction Eras. Some of these laws provide buffer zones of a quarter mile, such as an Ohio law from 1788 and a Delaware law from 1812. Another provides for a distance of ten rods, or approximately 165 feet. And a Rhode Island law from 1835 prohibited pistol galleries within two hundred feet of the city, subject to certain conditions.

Taken together with the other analogues in the linked document, these analogues show a historical pattern of banning firearms within several hundred to several thousand feet of a sensitive place. But as we learned in Rahimi, Bruen was not meant “to suggest a law trapped in amber.” As a result, modern governments should have the flexibility to regulate within greater buffer zones than were used historically.

This comports with Rahimi’s statements about allowing flexibility for regulations to respond to major developments in the technology of firearms, just as the Second Amendment also encompasses arms beyond muskets. Just as advances in the technological capacity of firearms that allow greater accuracy, distance, and damage do not necessarily exempt firearms from Second Amendment protection, they also do not limit the state’s ability to respond to such developments. The upshot is that if the Wisconsin legislature enacts a sensitive places statute to protect political conventions, they have ample historical support for doing so.