Second Amendment Background Principles and Heller's Sensitive Places
51 Pages Posted:
Date Written: March 4, 2020
Judges and commentators have widely acknowledged that history enjoys a privileged status in Second Amendment cases, but its precise role is undertheorized and rarely controls case outcomes. In particular, courts have been unable to decide “sensitive places” cases—challenges to location-based gun laws—in a manner that adheres to Supreme Court precedent because existing Second Amendment doctrine lacks a test for sensitive places cases that makes use of history and tradition in a principled way. This Article proposes a solution to address that problem.
An untapped source of guidance is the Court’s takings jurisprudence. Interpreting their respective constitutional provisions, Justice Scalia observed that both property rights and the right to keep and bear arms are fundamental rights that prefigure ratification. Specifically, Scalia observed, both the Second Amendment and the Takings Clause rely upon bright-line rules subject to a location-based exception, require the use of history and tradition in their analysis, and deal with property interests. In a number of important cases—including Heller and McDonald—the Court has indicated that the right to keep and bear arms is animated by property-like principles. This suggests the Court’s well-established takings jurisprudence is a more germane source to inform its less-developed sensitive places doctrine than the sources scholars and judges currently look to, such as free speech doctrine.
This Article explores what the Court’s takings jurisprudence can teach us about the constitutionality of location-based gun laws. I propose a framework for courts to analyze sensitive places cases by borrowing from doctrine that is more familiar to courts, but similarly governs a pre-constitutional, individual right. My examination of the Court’s takings doctrine indicates that the role of history and tradition in analyzing a fundamental right, like the right to keep and bear arms, is more elastic than many assume—but that history and tradition should play a larger role than it currently does.
Keywords: Second Amendment, sensitive places, Heller, takings, common law, Scalia, borrowing, constitutional law, property law
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