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Abstract

When the Supreme Court invalidated Washington, D.C.’s restrictive gun laws six years ago in District of Columbia v. Heller, it signaled an intention to leave at least a portion of the debate over gunfree zones to the political process. In a now familiar passage, the Court stressed that while the Second Amendment confers an individual right to keep and bear arms, the Court’s decision should not “be taken to cast doubt on . . . laws forbidding the carrying of firearms in sensitive places such as schools and government buildings . . . .” The Court strongly suggested that the right to bear arms extends beyond the home, but it nevertheless reaffirmed the presumptive validity of gun-free zones in “sensitive places” two years later when it incorporated the Second Amendment in McDonald v. City of Chicago. This Article focuses on Heller’s enumerated sensitive places— “schools” and “government buildings”—and begins with the premise that these terms allow some room for interpretation. In affirming the likely constitutionality of laws prohibiting the carrying of firearms in schools, did the Court intend to leave undisturbed gun bans in primary and secondary schools only or also on university campuses? In its reference to government buildings, did the Court mean to suggest that the government may act with impunity whenever it bans the carry of firearms on its property, or are there some types of public property—particularly national parks and remote lands home to dangerous wildlife—where a combination of low security risks and historical practices limits the government’s authority as property owner? This Article further assumes that the historical record will not fully resolve these interpretive issues. Indeed, as several commentators have noted, the historical pedigree of even Heller’s most noncontroversial “presumptively lawful” regulations—“prohibitions on the possession of firearms by felons”—can fairly be disputed. Perhaps Heller’s reference to the longstanding nature of certain presumptively constitutional gun laws was meant to convey the notion that when the American people reach a wide and longstanding consensus on the propriety of a given legislative solution, their judgment is entitled to great deference, even if their consensus occurs after the ratification of the relevant constitutional provision. This Article offers no speculation as to how long such a consensus must exist to be considered longstanding and, recognizing also that originalism’s historical inquiry has its limits, proceeds on the assumption that lower courts will need to look to established constitutional doctrines from other areas of law for additional guidance. Ultimately, this Article concludes that lessons from First Amendment doctrine counsel in favor of a narrow interpretation of Heller’s schools and government buildings. Part II summarizes the Supreme Court’s decisions in Heller and McDonald and describes how they strongly imply a robust right to armed self-defense outside the home. Part III surveys how the lower federal courts have begun to develop Second Amendment doctrine after Heller and McDonald, focusing on the different treatment they have given to Heller’s presumptively valid regulations and the right to bear arms outside the home. Part IV focuses on those courts that have classified Heller’s presumptively valid regulations as categorical Second Amendment exceptions, arguing that while this analogy to First Amendment unprotected speech carries some intuitive force, an expansive view of Heller’s exceptions threatens to swallow Heller’s general rule in favor of armed self-defense. In the First Amendment context, categories of speech that receive no constitutional protection have been kept to a very small number of well-defined exceptions in an effort to preserve the broad scope of the guarantee as it was understood by the ratifying public. It should be the same with Heller’s sensitive places exception to the Second Amendment right of armed self-defense outside the home. Finally, Part V demonstrates how broad themes from existing First Amendment doctrines support a restrained interpretation of even Heller’s enumerated sensitive places—schools and government buildings. Specifically, Part V argues that student speech cases observe a line between the First Amendment rights of secondary and post-secondary students, and these cases indicate that college campuses generally are less sensitive than primary and secondary school classrooms. Courts therefore should not interpret Heller’s schools to encompass college campuses. Furthermore, Part V argues that, as with First Amendment forum doctrine, the scope of the government’s authority to regulate the carry of firearms on its property should depend on the character of the property at issue, and just as some government property has historically hosted public assembly and debate, some government properties—particularly national parks and remote lands home to dangerous wildlife—have historically accommodated an armed citizenry. Courts therefore should not interpret Heller to stand for the sweeping proposition that the government may act with impunity whenever it bans the carry of firearms on its property. In sum, Part V concludes that courts should subject broad gun bans on university campuses, national parks, and remote public lands to some form of heightened scrutiny, rather than regard them as burdening conduct that is categorically unprotected under the Second Amendment.

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