Firearms and Forums: Constructing Public Carry Doctrine

This post is based on a paper that was presented at the 2024 Firearms Law Works-In-Progress Conference. The Conference is held each year on a home-and-away basis with the University of Wyoming Firearms Research Center. This post also appears on the FRC’s Forum.

One of the most important issues concerning the scope of the Second Amendment involves the right to carry firearms in public places. The project I presented at the Firearms Law Works-in-Progress Conference in May concerns the construction or development of public carry doctrine.

Constructing a constitutional doctrine about the public exercise of a right is not a novel endeavor. To better understand the challenges and contours of public carry doctrine, my article will turn to the Court’s experience developing First Amendment permitting, public forum, and time, place, and manner doctrines. The point of the comparison is not to argue that Second Amendment public carry doctrine should imitate or track the First Amendment’s doctrine relating to public expression. Despite its oft-stated affinity for First Amendment standards, the Supreme Court is not inclined to develop public carry doctrines that align with limits on public expression. Nor is it clear those doctrines would make sense for public carry.  Instead, I will ask what lessons, positive and negative, courts and policymakers might learn from the general experience of developing permitting, public forum, and time, place and manner standards in the First Amendment context.

There are several general lessons or observations. One is that it will take more than a single concept, whether it is “public forum” in the First Amendment context or “sensitive places” in the Second Amendment area, to fully establish standards for the public exercise of a fundamental right. So far commentators have focused primarily on the Supreme Court’s references in Heller and Bruen to “sensitive places,” where the Court has indicated firearms bans are presumptively valid. Reading the same signals, state legislatures have enacted a host of locational bans and restrictions To be sure, sensitive places will be an important part of the doctrine. However, that concept will not – indeed cannot – define the doctrine in total. In addition to sensitive place determinations, courts will need to develop standards relating to carry licensure and time, place, and manner regulations. Together, these three aspects will define the scope of the right to carry firearms in public.  Another general lesson is that constructing the public carry doctrine will take years and perhaps decades to accomplish. The Supreme Court worked out the concepts and details of public expression doctrine from the 1930s to the 1970s. Moreover, like expressive doctrine, public carry doctrine will likely develop in fits and starts. Although the text, history, and tradition standard will provide the baseline, Rahimi suggests the baseline is somewhat fluid. Finally, doctrinal and external forces will help determine what public carry doctrine will ultimately become, just as these things shaped public expression doctrine.

The First Amendment experience speaks in more specific terms to the development of all three aspects of public carry doctrine. Once the Supreme Court recognized a right to use at least some public properties for the exercise of speech and assembly rights, it immediately faced questions about the government’s authority to require licenses or permits. Similarly, Bruen recognized a right to carry firearms in public places but did not settle the scope of the government’s authority to require concealed carry permits. Just as the Court has upheld certain permitting requirements for public expression, Bruen suggested that objective “shall issue” requirements are valid. Courts will now need to determine which requirements are objective and whether, alone or in combination, they violate the right to public carry. As the First Amendment experience shows, the fate of these restrictions will have a significant impact on the scope of public carry rights.

The First Amendment’s time, place, and manner doctrine authorizes governments to impose a variety of limits on the public exercise of expressive rights. Like the First Amendment’s public expression doctrine, the Second Amendment public carry doctrine will include a significant time, place, and manner component. Regarding Second Amendment rights, early laws and judicial decisions recognized that legislatures could restrict the time, place, and manner of public carry (sometimes in those precise terms). Bans on concealed carry, prohibitions on armed assemblies, laws criminalizing going armed to the terror of the public, and restrictions on the types of arms one could carry in public are all regulations that do not rely on the sensitive places concept. Even if an individual has a right to carry firearms in a location, the right is limited by these kinds of regulations.

This aspect of the doctrine will focus on burdens that fall short of outright bans on public carry, which may be easier to defend than blanket sensitive place prohibitions. The Court’s recent decision in U.S. v. Rahimi suggests the Court will review history with an eye toward whether current regulations are “consistent with the principles that underlie our regulatory tradition” and “fit comfortably” within that tradition (emphasis added). Thus, the Second Amendment allows regulations that “fit comfortably” within public carry’s time, place, and manner regulatory tradition. Experience with such regulations in the First Amendment context suggests courts will focus, in part, on whether such regulations effectively extinguish or preserve the right. 

The “sensitive places” concept most closely resembles the idea of the public forum. The two are mirror images, in the sense that sensitive places are locations where governments can presumptively restrict the right whereas public forum doctrine establishes where First Amendment rights attach. However, both concepts significantly affect public exercise of the respective rights. Construction of the First Amendment’s public forum doctrine offers several cautionary lessons for the development of the Second Amendment sensitive places doctrine.  

As others have observed, the Supreme Court did not develop or explain the justification for the public forum concept when adopted. Among other things, this failure or lost opportunity produced a lack of conceptual clarity and significant doctrinal incoherence. One aspiration for public carry doctrine is that the Court will pay greater ex ante attention to the justifications for sensitive place restrictions (along with licensure and time, place, and manner regulations).

Rahimi emphasizes that firearms laws are not “trapped in amber” and that “common sense” matters. Here, then, is a chance to improve on public forum doctrine, which is indeed partly “trapped in amber” and in various respects lacks common sense. Forum doctrine is based on the premise that public places are inert, static properties or resources. In fact, they are constantly changing, dynamic venues relied on by individuals and groups for a multitude of social and political functions. Courts and policymakers should ground sensitive place laws in the “principles that underlie our regulatory tradition” relating to preservation of public peace, tranquility, and safety in these places. A broad, although not absolute, police power would “fit comfortably” within that tradition. Just as Rahimi recognizes the commonsense principle that certain dangerous people can be disarmed, so too should courts recognize how lawmakers have responded to factors such as increased access to weaponry, changing social norms relating to being armed in public, greater reliance on the public square for political and social purposes, and changes in population density. In sum, unlike public forum doctrine, sensitive places doctrine should be based on a coherent account of the tradition of preserving the public square through principled locational restrictions on public carry.     

Public forum doctrine offers other potential lessons for those who will be developing public carry doctrine. One observation is that a doctrine’s spatial constructs need to be flexible enough to incorporate changes to the character and uses of public places. Forum doctrine is incapable of recognizing that “new” places are as or more important to the scope of First Amendment rights as are old or “traditional” ones. In contrast, Bruen builds flexibility into sensitive place doctrine, by making clear that lawmakers can justify firearms restrictions in “new” places based on analogous early laws. As Rahimi suggests, the category of sensitive places is not forever frozen in time or “trapped in amber.”

The “sensitive places” concept can also improve on public forum doctrine’s flawed underlying supposition that there are only three types or categories of public fora for purposes of analyzing rights to speak and assemble in public places. This is a wild oversimplification of place and its relationship to public expression. Forum categorization is a blunt instrument that fails to properly account for both expressive rights and governmental interests in managing public properties. Rather than treat all public parks and streets precisely the same, as forum doctrine does, sensitive place doctrine could designate a public park or street as “sensitive” only during certain times. Similarly, sensitive place doctrine could recognize that a firearms ban is valid in a specific place only when the location is being used for certain events or functions. Whether one views these as sensitive place restrictions or time and place regulations, they offer a more flexible way to account for both public carry rights and governmental safety and other interests.

There are likely many other lessons the First Amendment can teach us about constructing a Second Amendment doctrine concerning public exercise of a fundamental right. As this process unfolds, courts and policymakers should be thinking holistically about the doctrine and about what, beyond constitutional doctrine, they are constructing.