The 'Sensitive Places' Doctrine: Locational Limits on the Right to Bear Arms

Abstract

Where may the government prohibit the bearing of arms? In District of Columbia v. Heller, the U.S. Supreme Court offered a short answer: “in sensitive places such as schools and government buildings.” This Article examines the historical foundation and the modern application of the sensitive places doctrine.

Heller’s terse “sensitive places” dicta was part of a list of three types of “presumptively lawful regulatory measures.” The Court promised that “there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.”

Since the 2008 Heller opinion, the Court has not elaborated on the meaning of “sensitive places.” Thus, lower courts have been required to find their own answers.

This Article is the first to analyze the full scope of the sensitive places doctrine. Part I examines English history, starting with a 1313 law that forbade bringing arms to Parliament. Protecting government deliberation from violent interference is the core of the sensitive places tradition.

Part II looks at colonial America and the Founding. Several colonial and early state laws safeguarded government deliberation by barring arms from courts or polling places. Some scholars have argued that in England and Early America, arms carrying was prohibited everywhere. Parts I and II address that argument.

Part III covers the nineteenth century, when more states enacted laws for protection of government deliberation. A few states enacted laws against carrying arms at most public or private gatherings.

Part IV surveys the twentieth century and the pre-Heller portion of the twenty-first.

Post-Heller precedent is covered in part V, as courts have tried to decide what places are “like” schools and government buildings.

Finally, Part VI consolidates the rules of the “sensitive places” doctrine, based on text, history, tradition, and precedent.

Keywords: sensitive places, Second Amendment, right to bear arms, District of Columbia v. Heller

JEL Classification: K14, K39, K42