Scholarship Highlight: Sensitive Places, Public Health Emergencies, and Technological Innovation

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

Today’s post highlights three new articles relating to the Second Amendment and firearms.  In a piece that is forthcoming in the University of Illinois Law Review, Patrick Charles analyzes the question of how courts might square Heller’s endorsement of locational firearm restrictions in certain sensitive locations with Bruen’s history and tradition test.  Charles performs an extensive historical survey of state and local sensitive-place prohibitions and, ultimately, argues that applying Bruen to Heller’s sensitive-place carveouts reveals “a clear and identifiable history and tradition of prohibiting firearms and other dangerous weapons in so-called ‘sensitive places.’”

In a new article in the Denver Law Review, Amy Swearer and Paul Larkin evaluate “the broader constitutional implications of reenvisioning gun control restrictions as responses to a public health emergency,” focusing in particular on New Mexico Governor Michelle Lujan Grisham’s September 2023 executive order invoking public health to restrict gun carrying in public.  Swearer and Larkin argue that, as a legal matter,

there may well be some utility to the “public health emergency” framing, but only insofar as a public health emergency is rendered synonymous with an acute public safety crisis that is on par with the rebellions and riots that historically justified the imposition of significant but time-limited emergency gun restrictions.

Finally, Center faculty director Joseph Blocher and co-author Christopher Buccafusco have published an article in the Texas Law Review on firearm technology.  Blocher and Buccafusco catalogue successes and failures of technological innovation in firearm safety technology, and they offer legal and policy suggestions for reform.

Patrick Charles, The Second Amendment and Heller's "Sensitive Places" Carve-Out Post Rahimi: A Historiography, Analysis, and Basic Framework, 58 U.I.C. L. Rev. 813 (forthcoming 2025)

Abstract:

In United States v. Rahimi, the Supreme Court noted that Bruen’s test for examining the history and tradition of firearm regulation must not be applied too rigidly. Rather, Bruen’s history and tradition test must be applied flexibly —that is leverage the past in a way that “permits a historical inquiry calibrated to reveal something useful and transferable to the present day…” This requires the courts to weigh whether the modern firearm regulation being challenged is “consistent with the principles that underpin our regulatory tradition.” To achieve this, the courts must first ascertain whether the regulation is “relevantly similar” to historical laws and regulations through analogy—that is “faithfully” apply the “balance struck by the founding generation to modern circumstances”—and second compare “how” and “why” the regulation burdens one’s Second Amendment right to armed self-defense with that of history. Additionally, the Rahimi majority noted that although history and tradition must principally guide how the lower courts adjudicate Second Amendment questions and controversies, following precedent is equally, if not more important.

But how should the courts apply this historically principled approach to Heller’s “sensitive places” carve out? This Article seeks to provide some answers, all the while providing a historiography of Heller’s “sensitive places” carve out. The objective of this Article is three-fold and is divided into four parts. Parts I and II seek to provide a historiography of Heller’s “sensitive places” carve out, from pre-Heller to the Supreme Court’s recent decision in Rahimi. This includes outlining where the carve out came from, how it was initially received, and its development and evolution in the courts from its inception to the present. Part III seeks to contextualize the history of so-called “sensitive places” be examining the totality of the evidence. This includes examining and weighing all the historical evidence pertaining to so-called “sensitive places,” as well as conducting a thorough history-in-law analysis—that is a study of how the law pertaining to “sensitive places” has evolved, what events caused it to evolve; and how, if at all, this history is important when adjudicating future “sensitive places” challenges. And lastly Part IV seeks to provide the courts with a basic framework on how to weigh and analyze the history and tradition of “sensitive place” firearm prohibitions post-Rahimi.

Amy Swearer & Paul J. Larkin, Public Health Emergencies and the Second Amendment, 102 Denver L. Rev. 327 (2025)

Abstract:

For many decades, gun control advocates, hoping to shift the terms of the debate to more favorable terrain, have argued that gun violence should be viewed primarily through the lens of public health. In September 2023, New Mexico Governor Michelle Lujan Grisham and New Mexico Secretary of Health Patrick Allen pushed that rationale to its extreme and beyond. Under the auspices of the state’s public health emergency laws, they issued an executive order and agency directive that effectively eliminated the right of ordinary citizens to bear arms in public in the state’s most populous county. That attempt to circumvent the Second Amendment by wrapping itself in the flag of a public health emergency suffers from a host of statutory and constitutional defects.

In the ongoing battle to reframe gun violence as a public health emergency, the governor’s order offers litigants and courts an important opportunity to start unveiling any new and hoped-for national tradition of restricting Second Amendment rights based on the declaration of a public emergency—health or otherwise. In the end, loose applications of Bruen’s history-based test might offer governments in times of acute crisis, widespread disorder, and violent crime a fair—but not unlimited—amount of authority to impose temporary albeit severe restrictions on core aspects of the right to bear arms in public. But whatever the outcome might be in other cases, not even these loose applications of historical analogues would be sufficient to save Governor Grisham’s order and her secretary’s directive from a Second Amendment challenge

Joseph Blocher & Christopher Buccafusco, Technologies of Violence: Law, Markets, and Innovation for Gun Safety, 103 Tex. L. Rev. 1195 (2025)

Abstract:

Violence in the United States is distinctive in many ways, perhaps none more visceral and fundamental than the technologies with which it is practiced. American violence disproportionately involves guns, and because guns are such an effective tool of violence, confrontations involving them are disproportionately deadly. Decades of research confirm this “instrumentality effect,” and it is reflected in the broad, bipartisan agreement that the nation has a gun violence problem. The deep disagreement, of course, remains about how to address it, with most of the debate focused on regulating who can carry which guns, where, and how.

But fully understanding, let alone addressing, the problem of violence requires accounting for not only regulation but the economic and legal forces shaping the instruments that inflict and resist it—what we call the technologies of violence. Just as violence itself can be permissible and even desirable (as in cases of justified self-defense) or not (as in cases of criminal misuse), innovations in violence technology can simultaneously improve and threaten public safety. As the most prominent form of that technology, guns illustrate the point particularly clearly. Historically, innovation has made guns more lethal—a change whose overall impact on public safety is contested—but it also has the potential to make them safer, for example through better reliability, safety switches, smart gun technology, microstamping, and other technological enhancements.

In this Article, we identify and evaluate the complex and intertwined roles of markets and law in driving—and in some cases deterring—gun safety innovation. For a variety of reasons, legal efforts to incentivize certain safety innovations have failed, even as markets have taken off for innovations designed to cope with gun violence, such as gun detection cameras and bulletproof backpacks. At the same time, statutory and constitutional law stifle and in some cases forbid safety innovations, for example by broadly immunizing gun manufacturers from regulatory and tort liability and through Second Amendment doctrines that protect increasingly powerful weapons while limiting government’s ability to enact new rules regulating them.

We hope that bringing together previously separate scholarly discourses on innovation and public law can help generate new insights into their complex interactions, as well as possible solutions to the problem of American gun violence. We conclude with some possibilities for reform that could facilitate the role of markets and innovation in providing public safety.