Sensitive Places Doctrine

Constitutional Foundation

Historical Precedent

The concept that certain places could restrict weapons predates the Constitution:

• English Common Law: Prohibited weapons in courts and Parliament
• Colonial Practice: Restricted firearms at polls, public assemblies
• Early State Laws: Banned weapons in schools, courthouses
• 19th Century: Expanded restrictions to universities, legislative grounds

Constitutional Rationale

The doctrine rests on several principles:

1. Some locations have historically prohibited arms
2. The right to bear arms is not unlimited
3. Government may protect essential functions
4. Property rights allow some restrictions

Heller's Recognition

The Heller Dictum

DC v. Heller (2008) explicitly acknowledged sensitive places:

"Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the carrying of firearms in sensitive places such as schools and government buildings."

— Justice Scalia, DC v. Heller, 554 U.S. 570, 626 (2008)

Initial Categories

Heller identified two examples without defining the full scope:

• Schools: Educational institutions
• Government Buildings: Places of official government business

The Court characterized these as "presumptively lawful regulatory measures," suggesting they would likely survive constitutional challenge.

Open Questions After Heller

Heller left several questions unanswered:

• What makes a place "sensitive"?
• Can new sensitive places be designated?
• How broadly can categories be defined?
• What level of scrutiny applies?

Bruen's Refinement

Rejecting Expansive Definitions

NYSRPA v. Bruen (2022) warned against expanding sensitive places too broadly:

"[E]xpanding the category of 'sensitive places' simply to all places of public congregation that are not isolated from law enforcement defines the category of 'sensitive places' far too broadly."

— Justice Thomas, NYSRPA v. Bruen, 597 U.S. 1, 30 (2022)

Historical Analogue Requirement

Bruen requires that new sensitive place designations be justified by historical analogues:

1. Government must identify historical precedent for the restriction
2. Analogues must be relevantly similar, not identical
3. Focus on why the place was sensitive historically
4. Consider how and why the regulation burdens the right

The Manhattan Problem

Bruen specifically rejected New York's argument that all of Manhattan was "sensitive":

"It is true that people sometimes congregate in 'sensitive places,' and it is likewise true that law enforcement professionals are usually presumptively available in those locations. But extending that reasoning to the public streets or public parks would eviscerate the general right to publicly carry arms for self-defense."

— Justice Thomas, NYSRPA v. Bruen, 597 U.S. 1, 31 (2022)

Established Sensitive Places

Universally Recognized

Courts consistently recognize these locations as sensitive:

Generally Accepted

Most courts also recognize:

• Airports: Secure areas beyond TSA checkpoints
• Mental Health Facilities: Hospitals and treatment centers
• Correctional Facilities: Jails, prisons, detention centers
• Nuclear Facilities: Power plants and weapons facilities

Disputed Locations

Active Litigation Areas

Courts are divided on whether these qualify as sensitive places:

Factors Courts Consider

When evaluating new sensitive place claims, courts examine:

1. Historical Analogues: Similar restrictions in founding era
2. Vulnerability: Presence of vulnerable populations
3. Government Function: Essential government operations
4. Confined Space: Ability to escape threats
5. Security Presence: Availability of protection
6. Tradition: Longstanding restrictions

Historical Analysis Required

The Bruen Methodology

Post-Bruen, governments must demonstrate historical tradition through:

Examples of Historical Analysis

Schools - Strong Historical Support

• 1824 University of Virginia prohibition
• Multiple state laws from 1800s
• Consistent tradition of restriction
• Courts uniformly uphold

Public Transit - Mixed Historical Support

• Some railroad restrictions existed
• But many states allowed carry
• Analogues not perfectly aligned
• Courts reach different conclusions

Modern Challenges

New York's Response to Bruen

After Bruen, New York enacted expansive sensitive place designations:

• Times Square and all public transportation
• All healthcare facilities
• Places of worship (unless permitted)
• Entertainment venues and bars
• Public parks and zoos
• Protests and public assemblies

Federal courts have struck down many of these as lacking historical support.

The Default Rule Problem

Some states attempted "default prohibition" approaches:

• Private property presumptively off-limits
• Requires explicit permission to carry
• Reverses traditional presumption
• Courts generally reject as too broad

Technology and Modern Venues

Courts struggle with locations that lack founding-era analogues:

• Airports: No 18th-century equivalent
• Mass transit systems: Limited historical parallels
• Entertainment complexes: Scale unprecedented historically
• Online spaces: Virtual "places" raise new questions

State Law Variations

Statutory Approaches

States use different methods to designate sensitive places:

Enforcement Variations

Interstate Recognition Issues

Travelers face challenges with varying state laws:

• Different sensitive place definitions
• Reciprocity doesn't cover location restrictions
• Signage requirements vary
• Penalties differ significantly