Guided By History: Protecting the Public Sphere From Weapons Threats Under Bruen
35 Pages Posted: 15 Feb 2023 Last revised: 14 Aug 2023
Date Written: July 10, 2023
Since the Founding era, governments have banned guns in places where weapons threaten activities of public life. The Supreme Court reaffirmed this tradition of “sensitive places” regulation in District of Columbia v. Heller, and locational restrictions on weapons have become a central Second Amendment battleground in the aftermath of New York State Rifle & Pistol Association v. Bruen. Liberals have criticized Bruen for requiring public safety laws to mimic founding practice, while conservatives have criticized it for licensing regulatory change not within the original understanding. In this Article we argue that Bruen’s analogical method looks to the past to guide change in weapons regulation, not to foreclose change. We illustrate the kinds of sensitive place regulations Bruen authorizes with examples spanning several centuries and close by demonstrating—contrary to recent court decisions—that a 1994 federal law prohibiting gun possession by persons subject to a domestic violence restraining order is constitutional under Bruen.
Where some imagine the past as a land of all guns and no laws, this Article shows how weapons regulation of the past can guide public safety regulation of the present. Governments traditionally have protected activities against weapons threats in sites of governance and education: places where bonds of democratic community are formed and reproduced. We argue that Bruen’s historical-analogical method allows government to protect against weapons threats in new settings—including those of commerce and transportation—so long as these locational restrictions respect historical tradition both in terms of “why” and “how” they burden the right to keep and bear arms.
At the heart of this Article is a simple claim: That Bruen’s analogical method enables public safety laws to evolve in step with the gun-related harms they address. Bruen does not require the asymmetrical and selective approach to constitutional change practiced by some in its name. Just as Bruen extends the right of self-defense to weaponry of the twenty-first century, it also recognizes democracy’s competence to protect against weapons threats of the twenty-first century.
We apply these principles to demonstrate the constitutionality of the federal law prohibiting gun possession by people subject to a domestic violence restraining order, which the Supreme Court is currently considering in United States v. Rahimi.
Keywords: Second Amendment, Heller, Bruen, Rahimi, originalism, analogical reasoning, tradition, sensitive places, race, domestic violence, democracy, community, commerce, mass transit
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