The court said lawmakers can continue to identify sensitive areas. But because the Brown the majority did not explain what is considered “sensitive”, we can expect places as varied as college campuses, sports stadiums, bars, airports, domestic violence support centers and the sidewalks in front of legislators’ homes become the next battlegrounds in dispute over the right to own and bear arms.
In Brown, Judge Clarence Thomas, writing for the majority, delivered the expected judgment: the Second Amendment protects “the right of an individual to carry a handgun in self-defence outside the home.” But as Justice Brett M. Kavanaugh and Chief Justice John G. Roberts Jr. noted in a concurring opinion, “Properly interpreted, the Second Amendment allows for a ‘variety’ of gun regulations,” including including “laws prohibiting the carrying of firearms in sensitive places like schools and government buildings,” restrictions the court had approved in two previous rulings.
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But how do lower courts determine if a location is “sensitive” enough to ban guns? According to Thomas, history and analogical reasoning will provide an answer. Because gun bans near “legislatures, polling places, and courthouses” were not controversial in the past, he wrote, “courts can use analogies to these historical regulations” to determine which areas in the 21st century are “sensitive” enough to ban firearms.
These are extremely thin guidelines from which to build a Second Amendment doctrine. The cabin of a commercial airliner seems quite “sensitive” to most Americans, although it is nothing like “legislature, polling place and courthouse”. Of course, that doesn’t mean there aren’t historical resources from which to draw analogies. The well of English and American law that forms the source of this “pre-existing” Second Amendment law is deep. Harvard University banned firearms on campus as early as 1655, as did public institutions like the University of Virginia in 1825 and the University of North Carolina in 1829. In the 1800s, Missouri, the Texas and Oklahoma Territory kept guns and other weapons. where people gathered for educational, literary, scientific or social purposes. These American laws have their roots in the Anglo-Saxon prohibitions on weapons in “fairs” and “markets” which date back to the reign of King Edward III.
Before Brownlower courts had ruled that national parks and rural post office parking lots were sensitive and had indicated that libraries, museums, hospitals and day care centers could also ban guns.
As Timothy Zick and Diana Palmer recently wrote in the Atlantic: Red and blue states have created an archipelago of “hot spots,” such as “public transportation, polling places…sports facilities, swimming pools public, river casinos, school bus stops. , pharmacies, corporate parking lots, public roads, amusement parks, zoos, liquor stores, airports, parades, demonstrations, financial institutions, theaters, hotel lobbies, tribal lands and even gun shows. All of these designations of sensitive locations are today challenged as insufficiently analogous to the regulations that existed in the past.
Lower courts have found, unnecessarily, that what makes a place sensitive are “the people there” or the “activities that take place there”. The implication is that guns may be banned from areas for reasons separate from personal safety, a point I have discussed elsewhere. Long-standing historic bans on firearms on election day, or in polling places, or in schools, ballrooms, fairs, markets and public assemblies, for example, suggest that the concern of our ancestors was not only, if not primarily, physical security, but also with the promotion of a robust civic life that is difficult to achieve in the presence of private arms.
On the other hand, some gun rights advocates insist that physical security is the only legitimate reason for designating a sensitive location. And relatedly, these advocates say, a place can only ban private guns if it provides physical security through means such as guards or metal detection devices. Otherwise, firearms must be allowed.
Because Brown gave little guidance as to why the locations are sensitive, lower courts are left with plenty of historical water to make analogies, but no predictable way to decide if the analog is relevantly similar. Judge Stephen G. Breyer aptly asks in his dissent, “What about subways, nightclubs, movie theaters and sports stadiums? The comparison between a 130-year-old regulation of guns at a public display and a ban on guns at a 21st-century music concert is not at all apparent. Even less how much a criminal ban on firing guns from the decks of riverboats resembles one banning loaded guns in the overhead compartments of jet planes. Where there is a lack of clarity, there will be disputes.
I don’t believe the court intended to assign every federal judge to act as the firearms zoning authority for every city and town in every state. I do not believe that the court wants to assess block by block, street by street, the sensitivity of each district of the country. But until the judges provide more clarity on why guns may be banned in sensitive places, and what makes those places sensitive, maybe that’s what we’re getting.