'A Map Is Not The Territory': The Theory and Future of Sensitive Places Doctrine

15 Pages Posted: 18 Jan 2023 Last revised: 2 Jan 2024

See all articles by Joseph Blocher

Joseph Blocher

Duke University School of Law

Jacob D. Charles

Pepperdine University - Rick J. Caruso School of Law

Darrell A. H. Miller

The University of Chicago Law School; Duke University School of Law

Date Written: January 16, 2023

Abstract

In the wake of the Supreme Court’s transformative decision in New York State Rifle & Pistol Association v. Bruen, courts are now confronted with new questions about where guns can be restricted and what justifications support those regulations. This Essay urges that the development of the doctrine governing location-based prohibitions should focus as much on the why as the where. Instead of simply isolating each location and considering the historical pedigree of gun restrictions in that place, judges should evaluate the reasons behind the sensitive places doctrine itself. We aim to recenter these first order questions to avoid haphazard doctrinal development that threatens to leave Second Amendment law incoherent and unpredictable.

Judges developing the doctrine will need to avoid several pitfalls. Among them: historical analogies pitched too narrowly, neglect of sensitive location mobility, and excessive focus on locational features rather than regulatory justifications. Whatever values ultimately underpin the doctrine, they should direct the shape of location-based challenges. Whether the doctrine is grounded in safeguarding the exercise of other constitutional rights, protecting the vulnerability of specific populations, recognizing the inhibited judgment or discretion of those gathered, or other values altogether, this Essay shows why justificatory and constitutional foundations must be set before the doctrinal structure is completely built.

Keywords: Bruen, Second Amendment, sensitive places, gun violence, firearms law, Heller

Suggested Citation

Blocher, Joseph and Charles, Jacob D. and Miller, Darrell A. H., 'A Map Is Not The Territory': The Theory and Future of Sensitive Places Doctrine (January 16, 2023). 98 N.Y.U. L. Rev. Online 438 (2023), Duke Law School Public Law & Legal Theory Series No. 2023-01, Pepperdine University Legal Studies Research Paper No. 2023/6, Available at SSRN: https://ssrn.com/abstract=4325454

Joseph Blocher

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Jacob D. Charles (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

Darrell A. H. Miller

The University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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