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9 Historically, “sensitive places” have never been limited to locations where the government has searched everyone entering the location. This standard is inconsistent with our nation’s history of regulating public carry and both historical and present-day case law, including Heller. 7 Under Halbrook’s proposal, only areas like “ an airport terminal on the other side of TSA screening” would qualify as sensitive places. In a recent Volokh Conspiracy blog post, NRA-affiliated scholar Stephen Halbrook similarly advocated for a sensitive-places standard based on metal detectors and security guards. Now that doesn’t provide a mechanical answer to every question, and-but it-would that be a way of analyzing-of beginning to analyze this? 6 So starting with that, could we analyze the sensitive place question by asking whether this is a place where the state has taken alternative means to safeguard those who frequent that place? If it’s a-if it’s a place like a courthouse, for example, a government building, where everybody has to go through a magnetometer and there are security officials there, that would qualify as a sensitive place. This narrow view appeared to gain traction with Justice Alito, who posed the following question to petitioners’ counsel at oral argument: 5 Under this extremely high standard, this brief argued that the government must provide a level of security similar to that of airport terminals in order to designate a location as sensitive. In anticipation of future litigation over sensitive places, the right-wing Independent Institute filed an amicus brief in Bruen, arguing that a location should only be deemed sensitive if the government provides strict security measures such as metal detectors and security guards. If the Court’s decision in Bruen strikes down New York’s law and limits states’ ability to restrict public carry, questions about the scope of the sensitive places doctrine would move to the fore, as a wave of Second Amendment challenges to location-based firearms restrictions are almost certain to follow. 4 Still, in the more than a decade since Heller, doctrinal development of the sensitive places standard has been fairly limited. These cases have relied upon various factors in determining whether a place is sensitive, such as the presence of vulnerable people, historical prohibitions, or potential conflicts with other constitutional rights. laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” 3 Based on this passage, the lower courts have upheld firearms restrictions in locations that they have determined to be particularly sensitive. 2 Although Heller involved a firearms restriction within the home, the Court provided some guidance as to firearms restrictions in public, stating that “ nothing in our opinion should be taken to cast doubt on. These questions referred to what is known as the “sensitive places” doctrine, which originated in the Court’s decision in District of Columbia v. For example, the justices posed several hypotheticals to counsel as to whether the state could restrict firearms on university campuses or in the New York City subway, sports stadiums, bars, or Times Square. 1 The justices’ questions focused not only on who may obtain a license to carry a firearm in public, but also where those with a license may or may not bring their weapons. Bruen, a Second Amendment case challenging New York’s concealed carry licensing system. On November 3, 2021, the Supreme Court heard oral arguments in New York State Rifle & Pistol Ass’n v. This article demonstrates that such an approach is inconsistent with our nation’s history of regulating public carry and both historical and present-day case law, including Heller. However, in anticipation of a wave of sensitive places litigation following the Bruen decision, several conservative scholars now seek to limit the doctrine to only those locations protected by strict government security measures, such as metal detectors and security guards. In the fourteen years since Heller, state and federal courts have upheld firearms restrictions in a number of locations under the sensitive places doctrine. Heller provided a carveout for firearms restrictions in “sensitive places,” providing “schools and government buildings” as just two examples. These questions acknowledged that the Court’s decision in District of Columbia v. The justices’ questions focused not only on who may obtain a license to carry a firearm in public, but also where those with a license may or may not bring their weapons. Bruen and the Future of the Sensitive Places Doctrine: Rejecting the Ahistorical Government Security ApproachĪbstract: On November 3, 2021, the Supreme Court heard oral arguments in New York State Rifle & Pistol Ass’n v.
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