Second Amendment Sensitive Places: Protecting Democratic Community and Commerce

Abstract

Governments have long 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 it has become a central Second Amendment battleground in the aftermath of New York State Rifle & Pistol Association v. Bruen.

This Article surveys the historical practice of restricting weapons in sensitive places as it considers the modern locational restrictions that Bruen authorizes. 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 show how Bruen’s analogical method allows government to protect against weapons threats in new settings, so long as these location restrictions respect historical tradition both in terms of “why” and “how” they burden the right to keep and bear arms. The tradition of locational restrictions to preserve the bonds of democratic community is not limited to sites of governance and education, but could encompass other places where those bonds are formed, sustained, and strengthened, including sites of commerce and transportation.

Bruen focuses on past practice for guidance in determining the scope of Second Amendment rights and regulation, while—by principle and by example—sanctioning change in weapons and the laws that regulate them. Bruen does not require the selective approach to constitutional change that both proponents and critics attribute to the decision. Just as Bruen extends the right of self-defense to weaponry of twenty-first century, we show that the decision also recognizes democracy’s competence to protect places of public gathering against weapons threats of the twenty-first century. The history this Article surveys illustrates that this nation has long regulated weapons to protect public life; it counters the selective constitutional memory advocates invoke to justify arguments for protecting gun rights expansively while striking down most gun regulation.

A concluding section extends the Article’s reading of Bruen beyond locational restrictions to cases striking down the law that prohibits persons subject to a domestic violence restraining order from possessing a weapon. These cases illustrate how judges employ the analogical method to strike down gun regulations they could uphold under Bruen, and justify their decisions by appeal to a constitutional memory of the founding as a time devoid of weapons regulation. This Article challenges this constitutional memory as a contemporary construction that legitimates a deregulatory Second Amendment of recent invention.

Keywords: Second Amendment, Heller, Bruen, originalism, analogical reasoning, tradition, sensitive places, race, domestic violence, democracy, community, commerce, mass transit