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XXX
GUIDED BY HISTORY: PROTECTING THE
PUBLIC SPHERE FROM WEAPONS THREATS
UNDER BRUEN
JOSEPH BLOCHER
†
& REVA B. SIEGEL
‡
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
Essay 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.
INTRODUCTION ......................................................................................... 102
† Lanty L. Smith ‘67 Professor of Law, Duke Law School.
‡
Nicholas deB. Katzenbach Professor of Law, Yale Law School. For comments on the draft,
we thank Jack Balkin, Jacob Charles, Patrick Charles, Saul Cornell, Laura Edwards, Mark
Frassetto, Jamal Greene, Darrell Miller, Brennan Rivas, Eric Ruben, and Andrew Willinger. For
exceptional research help, we thank Josh Hochman and Connor Bell. Copyright © 2023 by Joseph
Blocher & Reva B. Siegel.
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102 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:6
I. BRUEN’S IMPACT ON SENSITIVE PLACES ....................................... 106
II. THE HISTORICAL WHY AND HOW OF SENSITIVE PLACES ............. 108
A. Why ......................................................................................... 109
B. How......................................................................................... 115
III. BRUEN AND ANALOGICAL METHOD .............................................. 119
A. Building Democratic Community in New Places ................... 121
B. “Fairs and Markets”: Community, Commerce, and
Transportation ........................................................................ 125
C. Building Democratic Community for New Rights-Holders, and
in New Ways ........................................................................... 128
CONCLUSION ............................................................................................. 134
INTRODUCTION
Does the Supreme Court’s decision in New York State Rifle & Pistol
Ass’n v. Bruen
1
prohibit legislators from enacting gun laws that differ from
those at the time of the Second Amendment’s ratification? Some
conservative judges enforcing Bruen and some liberal critics protesting the
decision reason as if Bruen mandated antiquarianism.
2
But Bruen’s
analogical method breaks with originalist premises and authorizes regulatory
change.
3
In this Article we show that Bruen’s analogical method looks to the
past to guide regulatory change rather than to prevent it, enabling
government to protect the public against weapon threats of the twenty-first
century. To illustrate, we apply the analogical method to locational
restrictions that protect “sensitive places” of public gathering, a previously
obscure area of Second Amendment law that has now become central to
litigation.
In District of Columbia v. Heller,
4
the Supreme Court noted that
“nothing in our opinion should be taken to cast doubt on . . . laws forbidding
1
142 S. Ct. 2111 (2022).
2
For judicial decisions see infra notes 1646–56 and accompanying text. For examples of
critics who condemn Bruen for mandating antiquarianism, see Albert W. Alschuler, Twilight-Zone
Originalism: The Supreme Court’s Peculiar Reasoning in New York State Pistol & Rifle
Association v. Bruen, 32 W
M. & MARY BILL RTS. J. (forthcoming Oct. 2023),
ssrn.com/abstract=4330457 [https://perma.cc/HK68-JSXP]; Jacob D. Charles, The Dead
Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History, 73
DUKE L.J. (forthcoming
2023) (manuscript at 7), ssrn.com/abstract=4335545 [https://perma.cc/HQ8J-UJLB] (“The
test the Court announced remains underspecified on key metrics . . . : what it means to identify the
existence of tradition; whether the endurance of that tradition matters; how, if it all, the enforcement
of the tradition changes the analysis; and what role the evolution of tradition plays in the inquiry.”).
3
See Sherif Girgis, Living Traditionalism, 98 N.Y.U.
L. REV. (forthcoming 2023)
(manuscript at 19), ssrn.com/abstract=4366019 [https://perma.cc/SN8G-MP4P] (“Post-
ratification practices have guided both major cases defining the rights to keep and bear arms under
the Second Amendment.”).
4
554 U.S. 570, 626 (2008).
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the carrying of firearms in sensitive places such as schools and government
buildings . . . .”
5
Bruen affirmed the constitutionality of such locational
restrictions, while announcing a new historical test for evaluating modern
gun laws, including those involving additional “sensitive places.”
6
Applying
that test, district courts have already struck down—for supposed lack of
historical support—prohibitions on guns in places of worship,
7
in libraries,
museums, and bars,
8
and in subways, domestic violence support centers,
summer camps, and zoos.
9
Why? Does Bruen condemn every gun regulation that deviates from
past practice? Bruen explains that history is an anchor,
10
yet cautions that
Americans are not limited to copying the past. The Constitution is not a script
for Groundhog Day.
11
Through its analogical method, Bruen sanctions gun
regulations not within the understanding or practice of those who ratified or
incorporated the Second Amendment. It extends constitutional protection to
classes of weapons whose lethality was unfathomed by its framers,
12
as well
as to shall-issue licensing regimes that did not exist at the time of the Second
Amendment’s ratification.
13
In short, the Court has explained that the Second
5
Id.
6
142 S. Ct. at 2133–34.
7
Hardaway v. Nigrelli, No. 22-CV-771, 2022 WL 11669872, at *1 (W.D.N.Y. Oct. 20, 2022).
8
Koons v. Reynolds, No. CV 22-7464, 2023 WL 128882, at *13–14 (D.N.J. Jan. 9, 2023).
9
The challenge to New York’s post-Bruen law has generated a series of opinions striking
down some restrictions and upholding others. Antonyuk v. Bruen, No. 22-CV-0734, 2022 WL
3999791, at 33–35, 37 (N.D.N.Y. Aug. 31, 2022) (dismissing claims regarding the Concealed
Carry Improvement Act’s list of sensitive locations, 2022 N.Y. Sess. Laws ch. 371, § 4, for lack of
subject-matter jurisdiction but concluding that statutory challenges would likely succeed on the
merits); Antonyuk v. Hochul, No. 22-CV-0986, 2022 WL 5239895, at *24–25 (N.D.N.Y. Oct. 6,
2022) (temporarily restraining the application of the ban in most of the listed “sensitive places”);
Antonyuk v. Hochul, No. 22-CV-0986, 2022 WL 16744700, at 2, 86 (N.D.N.Y. Nov. 7, 2022)
(preliminary enjoinder from enforcing eight of the “sensitive locations” provisions).
10
See infra Part II.
11
Groundhog Day is a movie in which a television weatherman becomes trapped in a time
loop forcing him to relive February second repeatedly. Synopsis of Groundhog Day, I
NTERNET
MOVIE DATABASE, www.imdb.com/title/tt0107048/synopsis [https://perma.cc/9FYN-JSJ4]
(last visited May 15, 2023).
12
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2132 (2022) (“[E]ven though the
Second Amendment’s definition of ‘arms’ is fixed according to its historical understanding, that
general definition covers modern instruments that facilitate armed self-defense.”). Accord District
of Columbia v. Heller, 554 U.S. 570, 582 (2008) (“Some have made the argument, bordering on
the frivolous, that only those arms in existence in the 18
th
century are protected by the Second
Amendment” but concluding that “[w]e do not interpret constitutional rights that way . . . . Just as
the First Amendment protects modern forms of communications, . . . the Second Amendment
extends, prima facie, to all instruments that constitute bearable arms, even those that were not in
existence at the time of the founding.”).
13
See Bruen, 142 S. Ct. at 2138 n.9 (“[N]othing in our analysis should be interpreted to suggest
the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes.”); id. at 2162 (Kavanaugh,
J., concurring) (underscoring that “shall-issue licensing regimes are constitutionally permissible”);
see also Lawrence Rosenthal, Nonoriginalist Laws in an Originalist World: Litigating Original
Meaning from Heller To Bruen, 73 A
M. U. L. REV. at 17-19 (forthcoming 2023),
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104 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:6
Amendment protects forms of weaponry and forms of community, that did
not exist at the time of its ratification.
14
Judges need not find “historical
twin[s].”
15
We show how Bruen’s analogical method can extend the
longstanding tradition of restricting weapons in government buildings and
schools to other places of public gathering that play an important role in
maintaining and sustaining democratic community.
Bruen’s historical-analogical method asks whether modern locational
restrictions are “relevantly similar” to historical forebears.
16
As we argue in
Part II, to identify “new and analogous sensitive places,”
17
Bruen requires
the analogizer to demonstrate that these places are similar to antecedents
with regard to (1) why the government has regulated weapons in the past and
(2) how government has burdened the right to bear arms in self-defense in
those past cases.
Under the analogical method, might any of the sensitive-places
restrictions thus far invalidated be relevantly similar to those enumerated in
Heller and Bruen? The method requires understanding why governments
traditionally imposed locational restrictions at the sites the Court has
specifically approved as sensitive: “schools and government buildings” in
Heller
18
and “legislative assemblies, polling places, and courthouses” in
Bruen.
19
The principle that connects these places cannot be limited to formal
actions of governance like voting and lawmaking, given that Justice Scalia’s
opinion in Heller specifically includes “schools” as well.
20
Rather, we argue,
excluding weapons from these places of public gathering protects a public
sphere for democratic dialogue, democratic governance, and the
reproduction of democratic community in which people can relate freely
without intimidation or coercion. In prior work we have demonstrated that
Heller recognizes government’s common law prerogative to “protect valued
civic activities and the ability of all citizens to live free of terror and
intimidation.”
21
The “sensitive places” laws vindicate these very concerns as
papers.ssrn.com/sol3/papers.cfm?abstract_id=4425067 (May 1, 2023); Adam M. Samaha,
Is Bruen Constitutional? On the Methodology that Saved Most Gun Licensing, 98 N.Y.U.
L. REV.
(forthcoming 2023) (noting the apparent inconsistency between Bruen’s historical method and its
approval of shall-issue licensing).
14
See infra Part III.
15
Bruen, 142 S. Ct. at 2133.
16
Id. at 2132 (quoting Cass R. Sunstein, On Analogical Reasoning, 106 H
ARV. L. REV. 741,
773 (1993)); see also Sunstein, supra, at 745 (“The major challenge facing analogical reasoners is
to decide when differences are relevant.”).
17
Bruen, 142 S. Ct. at 2133–34 (emphasis omitted).
18
District of Columbia v. Heller, 554 U.S. 570, 626 (2008).
19
Bruen, 142 S. Ct. at 2133 (citing these locations as examples of the few historical “sensitive
places”). In Bruen the Court reiterated that schools and government buildings were sensitive places.
Id.
20
Heller, 554 U.S. at 626.
21
Joseph Blocher & Reva B. Siegel, When Guns Threaten the Public Sphere: A New Account
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they protect not only individual lives but the public sphere on which a
democracy depends—domains of public gathering that extend beyond
legislative assemblies, polling places, and courthouses. For example, we
show that there are historical antecedents for using locational restrictions to
protect commerce and transportation, which are essential to creating and
sustaining democratic community.
22
In sum, the Article builds on our prior work to show how sensitive-
places laws have long protected democratic community; it provides evidence
of that tradition across time and place; and it illustrates how, under Bruen,
government can analogize from these historical antecedents to enact
locational restrictions that protect democratic community against weapons
threats in new circumstances. The Article demonstrates—contrary to those
who invoke constitutional memories of the nation as a land of unconstrained
gun rights
23
—that we have always been a nation of gun rights and gun
regulation, even if experience at the time of the Constitution’s founding and
the Fourteenth Amendment’s ratification differed in fundamental particulars
from our own day.
24
As importantly, the Article shows that Bruen’s analogical method
provides for even-handed rather than selective and asymmetric updating.
The Bruen decision recognizes change in weapons employed in self-
defense,
25
and, through its analogical method, allows gun regulation to
evolve on terms that are consistent with tradition—with the “why” and
“how” of historical antecedents.
26
In short, Bruen does not require gun
of Public Safety Regulation Under Heller, 116 NW. U. L. REV. 139, 176 (2021).
22
See infra Section III.B.
23
See e.g., Randy E. Barnett & Nelson Lund, Implementing Bruen, L
AW & LIBERTY (Feb. 6,
2023), lawliberty.org/implementing-bruen [https://perma.cc/8LSS-NXNR] (arguing that
Bruen itself “engag[ed] in result-oriented manipulation of history[] . . . when it reaffirmed Heller’s
approval of bans on guns in ‘sensitive places’” because “there was no tradition of such bans in
America during the Founding Era”); David B. Kopel & Joseph G.S. Greenlee, The “Sensitive
Places” Doctrine: Locational Limits on the Right to Bear Arms, 13
CHARLESTON L. REV. 205, 289
(2018) (“It is difficult to create a rationale for extending the ‘sensitive places’ doctrine to places
that are not schools or government buildings. . . . [T]here are few ‘longstanding’ restrictions on
other locations.”).
24
See also Reva B. Siegel, Memory Games: Dobbs’s Originalism as Anti-Democratic Living
Constitutionalism—and Some Pathways for Resistance, 101 T
EX. L. REV. 1127, 1134 (2023)
(“Originalist judges ventriloquize historical sources.”).
25
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2132 (2022). The Court speaks
in parallel terms: “Much like we use history to determine which modern ‘arms’ are protected by
the Second Amendment, so too does history guide our consideration of modern regulations that
were unimaginable at the founding.” Id.
26
Id. at 2133 (explaining that gun regulations must be consistent with the balancing inquiry
struck by the founding generation, and “Heller and McDonald point toward at least two metrics:
how and why the regulations burden a law-abiding citizen’s right to armed self-defense”). Bruen’s
analogical method thus authorizes change in regulation. We contrast this account with another
reading of Bruen that diverts attention from its concern with analogical reasoning in an effort to
characterize the decision as conforming to a particular form of originalist method. See infra notes
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106 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:6
regulation to match practices in the distant past, as judges and scholars often
claim.
A case the Supreme Court has accepted for review illustrates how
judges weaponize Bruen to invalidate laws that are consistent with the
nation’s traditions of weapons regulation. In United States v. Rahimi, the
Fifth Circuit applied Bruen’s analogical method to strike down the federal
law prohibiting those subject to a domestic violence restraining order from
possessing a gun, declaring the law an “outlier[] that our ancestors would
never have accepted.”
27
As we demonstrate, this conclusion is compelled
neither by the Constitution nor the Court’s decision in Bruen, for at least two
reasons: First, there are historical analogues for the modern domestic
violence law—as we show, guns and gun rights have always been regulated
to prevent both violence and terror. Second, no principled approach to
originalism would license a court to engage in selective updating through its
analogical reasoning, for example by expanding the class of modern “Arms”
while limiting legislatures’ efforts to expand the class of persons who are
protected from gun harms.
The Article’s structure is straightforward. Part I explains how Bruen has
increased the practical importance of location-based restrictions and
describes the Court’s new historical-analogical approach to evaluating their
constitutionality. Part II explores the two primary principles of similarity
identified by the Court—the “why” and “how” of historical restrictions—
and shows that the historical record of place-based restrictions supports
broad regulatory authority to protect not just individuals’ lives but
democratic community itself. Finally, in Part III, we employ Bruen’s
analogical method to show that sensitive-places regulation is not limited to
sites of governance and education but could extend to other places where
those bonds are formed and strengthened, such as sites of commerce and
transportation. Just as Bruen extends the right of self-defense to weaponry
of the twenty-first century, Bruen recognizes democracy’s competence to
protect places of public gathering against weapons threats of the twenty-first
century.
I
B
RUEN’S IMPACT ON SENSITIVE PLACES
In Bruen, the Court struck down a New York law requiring that
individuals seeking concealed-carry permits for handguns demonstrate that
they have “proper cause.”
28
In doing so, the Court called into question
similar laws in other states that together governed about a quarter of the
103-119 and accompanying text.
27
United States v. Rahimi, 61 F.4th 443, 454 (2023) (quoting Bruen, 142 S. Ct. at 2132).
28
Bruen, 142 S. Ct. at 2122, 2156.
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country’s population.
29
But the Court also emphasized that states can utilize
other contemporary forms of gun regulation, including “shall-issue”
licensing laws that rely on more objective criteria.
30
By striking down good-cause permit requirements, Bruen increased the
relevance of locational regulations: rules that restrict where guns can be
carried. In a world where the class of concealed carriers has expanded
beyond those who have shown “good cause,”
31
some states might conclude
that the risks of allowing guns in certain public places—bars, for example—
are correspondingly higher. A similar dynamic unfolded after Heller struck
down Washington, D.C.’s municipal handgun ban, as the District responded
in part by enacting a variety of locational restrictions, including a prohibition
against firearms on public transportation (which is the subject of a post-
Bruen Second Amendment challenge).
32
Unsurprisingly, then, the regulatory response to Bruen—and ensuing
Second Amendment litigation
33
—has largely focused on enumerating
locations where guns are forbidden. Soon after Bruen, New York amended
its laws to remove the good cause requirement, provide new application
requirements, and list additional gun-free zones.
34
The latter now include not
only polling places, courts, and schools, but also businesses serving alcohol,
museums, places of public transportation, libraries, health care facilities, and
Times Square.
35
New Jersey followed suit a few months later, significantly
expanding its own list of gun-free locations.
36
How should courts evaluate the constitutionality of these restrictions?
As Bruen recognized, after Heller “the Courts of Appeals . . . coalesced
around a ‘two-step’ framework for analyzing Second Amendment
challenges that combines history with means-end scrutiny.”
37
In fact, that
framework was adopted by every federal court of appeals to consider the
question,
38
and under it, “historical meaning enjoy[ed] a privileged
29
Adam Liptak, Supreme Court Strikes Down New York Law Limiting Guns in Public, N.Y.
TIMES (June 23, 2022), www.nytimes.com/2022/06/23/us/supreme-court-ny-open-carry-
gun-law.html [https://perma.cc/R7QM-F3BB].
30
See supra note 13 and sources cited therein.
31
Bruen, 142 S. Ct. at 2125 n.2 (listing statutory language of other states’ proper cause laws).
32
Paul Duggan, Gun Owners Sue D.C., Demanding to Carry Firearms on Metro, W
ASH. POST
(June 30, 2022), www.washingtonpost.com/dc-md-va/2022/06/30/lawsuit-guns-dc-metro-
buses [https://perma.cc/2LBN-MSHT].
33
See supra notes 7–9 and sources cited therein.
34
Concealed Carry Improvement Act, ch. 371, 2022 N.Y. Sess. Laws 1447 (McKinney).
35
Id.
36
Tennyson Donyéa, New Jersey Gov. Murphy Signs Law Upping Requirements for
Concealed Carry, WHYY (Dec. 22, 2022), whyy.org/articles/new-jersey-concealed-carry-
restrictions-law-murphy [https://perma.cc/DZS5-R6JY].
37
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2125 (2022).
38
See, e.g., Worman v. Healey, 922 F.3d 26, 33 (1st Cir. 2019), cert. denied, 141 S. Ct. 109
(2020); Libertarian Party of Erie Cnty. v. Cuomo, 970 F.3d 106, 127 (2d Cir. 2020), cert. denied,
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108 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:6
interpretive role.”
39
Existing sensitive-places doctrine evolved under this
two-part framework.
But Bruen held that a privileged interpretive role for history is not
enough, and that whenever a challenged restriction falls within the
Amendment’s coverage, that restriction must be tied to antecedent traditions
of firearm regulation:
To justify its regulation, the government may not simply posit that the
regulation promotes an important interest. Rather, the government must
demonstrate that the regulation is consistent with this Nation’s historical
tradition of firearm regulation. Only if a firearm regulation is consistent
with this Nation’s historical tradition may a court conclude that the
individual’s conduct falls outside the Second Amendment’s “unqualified
command.”
40
As the majority recognized—indeed, repeatedly emphasized—application of
this new methodology requires not simply identifying historical examples
but making analogies.
41
II
T
HE HISTORICAL WHY AND HOW OF SENSITIVE PLACES
The Bruen Court suggested some principles of relevant similarity to
guide its historical-analogical approach: “While we do not now provide an
exhaustive survey of the features that render regulations relevantly similar
under the Second Amendment, we do think that Heller and McDonald point
toward at least two metrics: how and why the regulations burden a law-
abiding citizen’s right to armed self-defense.”
42
Citing Heller and
McDonald’s emphasis on individual self-defense as the central component
of the right to keep and bear arms, the Court said that “whether modern and
historical regulations impose a comparable burden on the right of armed self-
defense, and second, whether that regulatory burden is comparably
justified. . . . are ‘“central”‘ considerations when engaging in an analogical
141 S. Ct. 2797 (2021); Ass’n of N.J. Rifle & Pistol Clubs v. Att’y Gen. N.J., 974 F.3d 237, 241–
42 (3d Cir. 2020), cert. granted, 142 S. Ct. 2894 (2022) (reciting the district court’s application of
the test); Harley v. Wilkinson, 988 F.3d 766, 769 (4th Cir. 2021); Nat’l Rifle Ass’n of Am. v.
Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 194 (5th Cir. 2012); United
States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Kanter v. Barr, 919 F.3d 437, 441–42 (7th Cir.
2019); Young v. Hawaii, 992 F.3d 765, 783–84 (9th Cir. 2021), vacated, 142 S. Ct. 2895; United
States v. Reese, 627 F.3d 792, 800–801 (10th Cir. 2010); GeorgiaCarry.Org v. Georgia, 687 F.3d
1244, 1260 n.34 (11th Cir. 2012); United States v. Class, 930 F.3d 460, 463 (D.C. Cir. 2019); see
also United States v. Adams, 914 F.3d 602, 610 (8th Cir. 2019) (Kelly, J., concurring).
39
See United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011).
40
Bruen, 142 S. Ct. at 2126 (citation omitted); see also id. at 2129–30 (reiterating this test).
41
Id. at 2132–33.
42
Id. (emphasis added).
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inquiry.”
43
In conducting this comparison, the Court emphasized, the laws
do not have to be “twin[s]”
44
: So “even if a modern-day regulation is not a
dead ringer for historical precursors, it still may be analogous enough to pass
constitutional muster.”
45
To know the range of the government’s authority to enact locational
restrictions then, we must consult the historical record to distill both the
reasons for such restrictions (the “why”) and their effect (the “how”). The
precise contours of Bruen’s analogical test remain unclear—the Court
appears to formulate different versions of the test—but the opinion identifies
why and how as “‘central’ considerations,”
46
and so we focus on them here.
That task, rather than the simple enumeration of specific locations, is the
heart of the sensitive-places inquiry.
A. Why
The first of Bruen’s analogical metrics focuses on “why” historical and
modern gun laws burden the right to self-defense.
47
Obviously the prevention
of physical harm is one reason, as the majority seems to recognize.
48
But it is also important to note that weapons laws—including sensitive-
place restrictions—historically were used not only to preserve life but, as we
have shown in prior work, to protect the public peace and thus the freedom
of all people to participate in democratic community without terror and
intimidation.
49
As the Georgia Supreme Court put it in an 1874 decision
involving that state’s locational restrictions: “The preservation of the public
peace, and the protection of the people against violence, are constitutional
duties of the legislature, and the guarantee of the right to keep and bear arms
43
Id. at 2118 (emphasis omitted) (quoting McDonald v. City of Chicago, 561 U.S. 742, 767
(2010)).
44
Id. at 2133.
45
Id.
46
Id. (emphasis omitted) (quoting McDonald, 561 U.S. at 767).
47
Id. at 2133.
48
See id. at 2148–49 (contrasting historical surety laws requiring carriers to post a bond only
where there was a known risk of harm with the more stringent New York statute).
49
Blocher & Siegel, When Guns Threaten the Public Sphere, supra note 21, at 163–72(“In the
Anglo-American tradition, governments have regulated guns to preserve public peace and public
order, not only to prevent violence and save lives[,] . . . through laws that prohibited armed
members of the community from inflicting terror on others.”); see generally Reva B. Siegel &
Joseph Blocher, Why Regulate Guns?, 48 J.L.
MED. & ETHICS 11, 11 (2020) (“‘Public safety’ . . .
includes the public’s interest in physical safety . . . as a foundation for community and for the
exercise of many of our most cherished constitutional liberties. . . . [G]un laws protect the physical
safety of citizens to free them to participate, without intimidation, in a wide variety of domains and
activities . . . .”); Joseph Blocher & Reva Siegel, Guns Are a Threat to the Body Politic, A
TLANTIC
(Mar. 8, 2021, 1:03 PM), www.theatlantic.com/ideas/archive/2021/03/guns-are-threat-
body-politic/618158 [https://perma.cc/T4U7-ZS3J] (emphasizing the importance of gun regulation
“to protect . . . citizens’ equal freedoms to speak, assemble, worship, and vote without fear”).
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110 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:6
is to be understood and construed in connection and in harmony with these
constitutional duties.”
50
As this passage illustrates, the Georgia court construed the right to bear
arms in connection with the legislature’s duty to regulate weapons not only
against violence but in the interest of preserving public peace. Regulating
weapons was not a limitation on freedom, but instead was an expression of
collective self-governance
51
and a prerequisite of democracy itself.
Legislatures enacted sensitive-place restrictions protecting against weapons
threats the areas where people met or mingled to form democratic
community.
This principle finds wide-ranging expression in the historical record.
For example, public carry restrictions have applied in government buildings
since at least the mid-seventeenth century. In 1647, the Maryland state
legislature prohibited armed individuals from coming “into the howse of
Assembly (whilst the howse is sett) . . . uppon perill of such fine or censure
as the howse shall thinke fit.”
52
About a century later, Virginia enacted a
statute barring most individuals from “com[ing] before the Justices of any
court, or either of their Ministers of Justice, doing their office, with force and
arms . . . .”
53
During Reconstruction and the late nineteenth century, Georgia
and Missouri imposed similar restrictions in courthouses.
54
All of these can
be understood as protecting sites of self-government.
Polling places and other electoral sites have a particularly significant
50
Hill v. State, 53 Ga. 472, 477 (1874) (emphasis added).
51
See generally W
ILLIAM J. NOVAK, THE PEOPLE’S WELFARE: LAW & REGULATION IN
NINETEENTH-CENTURY AMERICA 10–16 (1996) (observing that self-government “was part of a
broader, more substantive understanding of the freedoms and obligations accorded citizens . . . .
No community was deemed free without the power and right of members to govern themselves,
that is, to determine the rules under which the locality as a whole would be organized and regulated”
and chronicling the “deluge of laws and ordinances passed by states and municipalities regulating
American life between 1787 and 1877”).
52
Assembly Proceedings, Jan.-Mar., 1647/8, 1647 Md. Laws 216; see Brief for The
Independent Institute as Amicus Curiae Supporting Petitioners at 11–12, N.Y. State Rifle & Pistol
Ass’n v. Bruen, 142 S. Ct. 2111 (2022) (No. 20-843) (associating the Maryland law with the Statute
of Northampton’s purpose of sovereign security). The state revised this statute three years later to
cover “eyther of the houses,” once the unicameral legislature separated into two houses. Assembly
Proceedings, Apr. 1650, 1650 Md. Laws 273.
53
An Act Forbidding and Punishing Affrays, 1786 Va. Acts 35.
54
Georgia’s statute prohibited deadly weapons at “any Court of justice.” Deadly Weapons Not
to Be Carried to Public Places, 1873 Ga. Laws 818. Missouri’s prohibited concealed carriage “into
any court room during the sitting of court . . . .” An Act to Amend Section 1274, Article 2, Chapter
24 of the Revised Statutes Of Missouri, entitled “Of Crimes and Criminal Procedure,” §1, 1883
Mo. Laws 76. Broader restrictions were adopted for the same purpose, including General Sickle’s
well-known General Order No. 10. See Headquarters Second Military District, General Orders No.
10 (Apr. 11, 1867), in A
POLITICAL MANUAL FOR 1867, at 202–04 (Edward McPherson ed., 1867)
(“The practice of carrying deadly weapons, except by officers and soldiers in the military service
of the United States, is prohibited. The concealment of such weapons on the person will be deemed
an aggravation of the offence.”).
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history of gun prohibition. Many restrictions were adopted amid concerns
about violence and intimidation in the democratic process—whether
between Loyalists and Patriots in the Revolutionary era or between white
supremacists and Black citizens during Reconstruction.
As early as 1776, Delaware’s Constitution provided: “To prevent any
Violence or Force being used at the said Elections, no Persons shall come
armed to any of them.”
55
This provision was enacted against a backdrop of
conflict between Loyalists and Patriots that made elections highly unstable
and, at times, violent.
56
Other states soon followed Delaware. In 1787, New
York provided that “no person by force of arms nor by malice or menacing
or otherwise presume to disturb or hinder any citizen of this State to make
free election . . . .”
57
In 1797, New Jersey passed a law barring “any
candidate” at “any such election, or previous thereto” from “appear[ing] at
such election with any weapons of war, or staves, or bludgeons, or use any
threats, that may tend to put any of the candidates or voters in fear of personal
danger . . . .”
58
During Reconstruction, at least four more states passed similar statutes.
In 1870, following major incidents of racialized political violence,
59
Louisiana prohibited the carrying of a “dangerous weapon, concealed or
unconcealed, on any day of election during the hours the polls are open, or
55
DEL. CONST. art. 28 (1776).
56
H
AROLD B. HANCOCK, THE LOYALISTS OF REVOLUTIONARY DELAWARE 48–50 (1977)
(describing an insurrection leading up to the constitutional convention, the convention’s lenient
policy toward the loyalists, and response to an allegation of weapons seizure).
57
An Act Concerning the Rights of the Citizens of this State, ch.1, 1787 N.Y. Laws 344, 345.
58
An Act to Regulate the Election of Members of the Legislative Council and General
Assembly, Sheriffs and Coroners, in this State, XII, 1797 N.J. Laws 229, 231.
New Jersey’s law came amid both fabricated and credible threats of election maladministration and
corruption, particularly in the state’s first elections under the new U.S. Constitution in 1789, widely
believed to be marred by fraud. C
ARL E. PRINCE, NEW JERSEY’S JEFFERSONIAN REPUBLICANS:
THE GENESIS OF AN EARLY PARTY MACHINE 1789–1817, at 8 (1967); see also Campbell Curry-
Ledbetter, Note, Women’s Suffrage in New Jersey 1776-1807: A Political Weapon, 21 G
EO. J.
GENDER & L. 705, 717 (2020) (“Election and voter fraud were rampant in early New Jersey
elections. . . . [E]lections were frequently overturned after allegations of corruption.”); Richard P.
McCormick, New Jersey’s First Congressional Election, 1789: A Case Study in Political
Skulduggery, 6 W
M. & MARY Q. 237, 244 (1949) (noting “reports of . . . voters being pressured at
the polls”).
59
See Lorraine Boissoneault, The Deadliest Massacre in Reconstruction-Era Louisiana
Happened 150 Years Ago, S
MITHSONIAN MAG. (Sept. 28, 2018),
www.smithsonianmag.com/history/story-deadliest-massacre-reconstruction-era-louisiana-
180970420 [https://perma.cc/GCN5-477] (recounting the lead-up to the Opelousas massacre);
James G. Dauphine, The Knights of the White Camelia and the Election of 1868: Louisiana’s White
Terrorists; A Benighting Legacy, 30
J. LA. HIST. ASS’N 173 (1989) (outlining violent voter
intimidation perpetuated by the Knights of the White Camelia, a white terrorist organization similar
to the Ku Klux Klan); Michael Stolp-Smith, New Orleans Massacre (1866), B
LACKPAST (Apr. 7,
2011), www.blackpast.org/african-american-history/new-orleans-massacre-1866
[https://perma.cc/UCA4-BJB] (describing the New Orleans Massacre, also called the New Orleans
Race Riot).
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112 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:6
on any day of registration or revision of registration, within a distance of
one-half mile of any place of registration or revision of registration.”
60
Tennessee forbade “any qualified voter or other person attending any
election” to “carry about his person, concealed or otherwise” any “deadly or
dangerous weapon,”
61
and Texas prohibited weapons at “any election
precinct.”
62
In Texas’s case, the restrictions came amid concerns from
Republicans about intimidation of Black voters.
63
In 1873, Georgia prohibited deadly weapons at “any election ground,
or precinct.”
64
After Reconstruction, Missouri and Maryland passed similar
statutes. In a statute specific to Calvert County, Maryland banned the
carriage of firearms “on the days of election and primary election, within
three hundred yards of the polls, secretly or otherwise.”
65
Missouri
prohibited the carriage of concealed weapons at “any election precinct on
any election day . . . .”
66
Missouri’s Supreme Court upheld that law in State
v. Wilforth, invoking the “weight of authority” of state court opinions that
had previously upheld restrictions on concealed carry.
67
Another traditional set of locational restrictions that Heller, McDonald,
and Bruen all recognize is those governing schools.
68
Education is an
activity, like voting and legislating, in which the bonds that constitute
democratic community are formed and reproduced. This link between
education and democracy was one that the founding generation recognized.
69
60
An Act to Regulate the Conduct and to Maintain the Freedom of Party Election, § 73, 1870
La. Acts 159–60. Texas had a similarly broad half-mile restriction that applied when polls were
open. Carrying Arms About Elections, ch. 4, art. 163, 1879 Tex. Crim. Stat. 24.
61
An Act to Amend the Criminal Laws of the State, ch. 22, § 2, 1869 Tenn. Pub. Acts 23–24.
62
An Act Regulating the Right to Keep and Bear Arms, ch. 46, § 1, 1870 Tex. Gen. Laws 63.
Intermediate appellate courts in Texas reviewed convictions under this statute and its later iterations
and did not contest its constitutionality. See Cooper v. State, 10 S.W. 216, 216 (Tex. Ct. App. 1888);
Burns v. State, 38 S.W. 204 (Tex. Ct. App. 1896).
63
See Brennan Gardner Rivas, An Unequal Right to Bear Arms: State Weapons Laws and
White Supremacy in Texas, 1836-1900, 121 S
W. HIST. Q. 285, 299 (2018) (“Many local special
elections in the years leading up to 1873 overwhelmingly favored Democrats because armed, white,
paramilitary groups took over polling places and intimidated black . . . voters . . . .”).
64
Deadly Weapons Not to Be Carried to Public Places, § 4528, 1873 Ga. Laws 818.
65
Act of 1886, ch. 189, § 71, 1888 Md. Laws 604.
66
An Act To Amend Section 1274, Article 2, Chapter 24 of the Revised Statutes Of Missouri,
entitled “Of Crimes and Criminal Procedure,” §1, 1883 Mo. Laws 76.
67
74 Mo. 528, 531 (1881); see also State v. Shelby, 2 S.W. 468, 469 (Mo. 1886) (declining to
disturb that precedent).
68
See, e.g., supra note 18 and accompanying text.
69
J
OHANN N. NEEM, DEMOCRACY’S SCHOOLS: THE RISE OF PUBLIC EDUCATION IN AMERICA
(2017) (tracing development of public school system to the antebellum era and connecting it to
goals of national democratic identity); Osamudia James, Risky Education, 89 G
EO. WASH. L. REV.
667, 719 (2021). Many of the Founders—including John Adams (who wrote the preamble of the
Massachusetts Constitution), Benjamin Franklin, Thomas Jefferson, James Madison, and George
Washington—explicitly connected education and democracy. See, e.g., M
ASS. CONST. pmbl.
(“Wisdom and knowledge, . . . diffused generally among the body of the people [are] necessary for
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December 2023] GUIDED BY HISTORY 113
And crucially, many schools were privately operated, and thus the relevant
records for these restrictions—which, again, Heller specifically
approved
70
—were generally imposed by the educational bodies themselves
rather than by legislatures.
That history of gun regulation in schools traces back to at least the mid-
seventeenth century. In 1655, Harvard College barred students from having
a “[g]un in his or theire chambers or studies, or keepeing for theire use any
where else in the town . . .”
71
As early as the mid-eighteenth century, Yale
College had a similar prohibition on students “keep[ing] a Gun or Pistol, or
Fir[ing] one in the College-Yard or College . . . .”
72
The University of
Virginia’s rule book from 1825 was little different.
73
A variety of other
educational institutions, from women’s colleges to public universities to
private schools, did the same.
74
Oakland College’s prohibition is notable for
its inclusion of language establishing the purpose of its rule. It noted its aim
the preservation of their rights and liberties . . . .”); Letter from James Madison to W.T. Barry (Aug.
4, 1822) (on file with the Library of Congress),
www.loc.gov/resource/mjm.20_0155_0159/?sp=1&st=text [https://perma.cc/9PLS-V7L]
(“[A] people who mean to be their own Governors, must arm themselves with the power which
knowledge gives.”); see also Brief of the League of Women Voters as Amicus Curiae Supporting
Respondents at 3–4, N.Y. Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022) (No. 20-843)
(noting that schools and government buildings are both “public settings that house activities vital
to a functioning democratic society, including election-related activities”).
70
See supra text accompanying note 18.
71
Allen Rostron, The Second Amendment on Campus, 14 G
EO. J.L. & PUB. POL’Y 245, 255
(2016) (quoting A
COPY OF THE LAWS OF HARVARD COLLEGE 1655, at 10 (1876)).
72
2 F
RANKLIN BOWDITCH DEXTER, BIOGRAPHICAL SKETCHES OF THE GRADUATES OF YALE
COLLEGE WITH ANNALS OF THE COLLEGE HISTORY MAY 1745–MAY 1763, at 8 (1896).
73
Meeting Minutes of University of Virginia Board of Visitors, 4–5 Oct. 1824, 4 October 1824,
U
NIV. OF VA. PRESS: AM. HIST. COLLECTION,
rotunda.upress.virginia.edu/founders/default.xqy?keys=FOEA-print-04-02-02-4598
[https://perma.cc/5WCL-FLAH] (last visited May 18, 2023) (“No student shall, within the
precincts of the University, introduce, keep or use any spirituous or vinous liquors, keep or use
weapons or arms of any kind, or gunpowder.”).
74
T
HE STATUTES OF DICKINSON COLLEGE 22–23 (1830) (prohibiting students from keeping
any “gun, firearms or ammunition, sword-dirk, sword-cane, or any deadly weapon whatever”); T
HE
LAWS OF KEMPER COLLEGE, NEAR ST. LOUIS, MISSOURI 9 (1840) (“No Student shall keep arms
of any sort, or keep or fire powder on the College premises.”); T
HE MINUTES OF THE SENATUS
ACADEMICUS, 1799–1842, at 86 (transcribed by Leslye Seltzer, University of Georgia Libraries)
(“[N]o student shall be allowed to keep any gun, pistol, Dagger, Dirk sword cane or any other
offensive weapon in College or elsewhere . . . .”); A
MERICAN ANNALS OF EDUCATION AND
INSTRUCTION FOR THE YEAR 1837, at 185 (Wm. A. Alcott & William C. Woodbridge, eds.) (1837)
(outlining the rule prohibiting dangerous weapons at the University of Nashville); A
CTS OF THE
GENERAL ASSEMBLY AND ORDINANCES OF THE TRUSTEES, FOR THE ORGANIZATION AND
GOVERNMENT OF THE UNIVERSITY OF NORTH CAROLINA 15 (Univ. of N.C. 2005) (1838)
(prohibiting students to “carry, keep, or own at the College, a sword, . . . , or any deadly weapon”);
L
AWS OF WATERVILLE COLLEGE, MAINE 11 (1832) (“No Student shall keep firearms, or any
deadly weapon whatever.”); L
AWS AND REGULATIONS OF THE COLLEGE OF WILLIAM AND MARY,
IN
VIRGINIA 19 (1830) (forbidding its students “to keep, or to have about their person, any dirk,
sword or pistol”).
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114 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:6
to bar “immoral conduct” and “[n]eglect of study,” and as part of its mission
of ensuring students would “consider themselves and each other as young
gentlemen associated for purposes of mutual improvement,” they must
“avoid[] all turbulence, rudeness and violence.”
75
States also passed laws in the late nineteenth century barring public
carriage of firearms in schools. The first of these was in Texas in 1870, which
prohibited weapons at “any church or religious assembly, any school room
or other place where persons are assembled for educational, literary or
scientific purposes, or into a ballroom, social party or other social gathering
composed of ladies and gentlemen, or to any election precinct . . . or any
other public assembly.”
76
The Texas Supreme Court upheld the statute.
77
Similar prohibitions followed in Mississippi in 1878, Missouri in 1879,
Oklahoma in 1893, and Arizona in 1901.
78
Municipalities enacted similar
laws. Huntsville, Missouri, for example, barred individuals from going
armed into “any school room or place where people are assembled for
educational, literary or social purposes . . . .”
79
The foregoing history demonstrates the centrality of protecting
democratic community as a reason for regulating guns in specific places—a
why, in Bruen’s framework. This value is served by all the historical
antecedents recognized in Bruen and Heller, linking the protection of
“legislative assemblies, polling places, and courthouses”
80
against weapons
threats to the protection of “schools and government buildings.”
81
In the
framers’ day and in our own times, governments seeking to protect
democratic community against weapons threats have enacted locational
restrictions to secure the public at these and other sites.
We do not suggest that sustaining democratic community is the only
value that can validate location-based gun restrictions to protect places of
public gathering. Prior to Bruen, some scholars and judges pointed to the
75
CONSTITUTION & LAWS OF THE INSTITUTION OF LEARNING UNDER THE CARE OF THE
MISSISSIPPI PRESBYTERY 10 (1831) (prohibiting “duelling, or aiding or abetting it” and “wearing
or carrying a dirk or other deadly weapon”).
76
An Act Regulating the Right to Keep and Bear Arms, ch. 46, § 1, 1870 Tex. Gen. Laws 63.
77
English v. State, 35 Tex. 473, 480 (1871).
78
An Act to Prevent the Carrying of Concealed Weapons and for Other Purposes, ch. 46, § 4,
1878 Miss. Laws 176; § 1030, 1892 Miss. Laws 327; Carrying Deadly Weapons, etc., M
O. REV.
STAT. § 1274 (1879); An Act To Amend Section 1274, Article 2, Chapter 24 of the Revised Statutes
Of Missouri, entitled “Of Crimes and Criminal Procedure,” §1, 1883 Mo. Laws 76; Carrying
Certain Weapons to Church, § 387, 1901 Ariz. Sess. Laws 1252; Public Buildings and Gatherings,
ch. 25, § 7, 1893 Okla. Sess. Laws 504.
79
Huntsville, Mo., Ordinance in Relation to Carrying Deadly Weapons, § 1 (June 11, 1894);
see also Darrell A.H. Miller, Institutions and the Second Amendment, 66 D
UKE L.J. 69, 101–03
(2016) (recounting gun restrictions in schools).
80
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2133 (2022).
81
Id. (quoting District of Columbia v. Heller, 554 U.S. 570, 626 (2008)).
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government’s role as a proprietor,
82
or to places where the government has
effectively taken over the role of security guard.
83
Our account is compatible
with these other explanations, especially those that focus on whether a given
place is central to certain governmental or constitutionally protected
activities.
84
B. How
The second part of Bruen’s historical-analogical test directs attention to
“how” historical gun laws burdened the right to armed self-defense. That
burden must then be compared to that imposed by the modern gun regulation.
Analyzing sensitive-place restrictions through this lens presents some
conceptual challenges. After all, within a sensitive place where guns are
prohibited, the burden on armed self-defense is total.
85
But that cannot be
dispositive, since Heller, McDonald, and Bruen all agree that such burdens
are permissible in sensitive places.
86
What principles, then, can be gleaned
from the historical record?
A first principle is that legislatures enacted, and courts accepted,
sensitive-place restrictions that burdened the right to the extent needed to
effectuate the regulatory interest. In some cases burdens on individual gun-
owners were of short duration—as might arguably be true of a polling place
restriction that requires persons to give up their gun while voting—while
82
See, e.g., Bonidy v. U.S. Postal Service, 790 F.3d 1121, 1126 (10th Cir. 2015) (highlighting
the relevance of the government as a market participant in the First Amendment context and how
that distinction applies here as well); United States v. Class, 930 F.3d 460, 464 (D.C. Cir. 2019)
(explaining the significance of the government acting as a proprietor); Eugene Volokh,
Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a
Research Agenda, 56 U.C.L.A.
L. REV. 1443, 1475 (2009) (noting that there is “both precedent and
reason for allowing the government acting as proprietor extra power to restrict the exercise of many
constitutional rights on its property”).
83
See, e.g., Volokh, supra note 82, at 1526. But see Carina Bentata Gryting & Mark Anthony
Frassetto, NYSRPA v. Bruen and the Future of the Sensitive Places Doctrine: Rejecting the
Ahistorical Government Security Approach, 63 B.C.L.
REV. E-SUPP. I.-60, I-62 (2022) (arguing
that “the ‘metal detector and security guard’ principle for identifying sensitive places is inconsistent
with the original public understanding of the Second Amendment”).
84
See Darrell A.H. Miller, Constitutional Conflict and Sensitive Places, 28
WM. & MARY BILL
RTS. J. 459, 466 (2019) (noting that “part of the answer” of what makes places sensitive is that
“they are the locus of the production of other kinds of public goods protected by other kinds of
constitutional rights, and that the protection of the character of these types of institutions justifies
limits on private firearms”); see also Brief of the League of Women Voters as Amicus Curiae
Supporting Respondents, supra note 67, at 17. (“[T]his Court and others have upheld laws that
maintain the public’s confidence in core governmental objectives . . . .”).
85
To be clear, sensitive-place restrictions are not prohibitions on self-defense itself, and only
a small proportion of self-defense incidents involve the use of a weapon. See Eric Ruben, Law of
the Gun: Unrepresentative Cases and Distorted Doctrine, 107 I
OWA L. REV. 173, 201–02 (2021)
(discussing the rarity of lawful defensive gun uses).
86
Heller, 554 U.S. at 626; McDonald v. City of Chicago, 561 U.S. 742, 786 (2010); N.Y. State
Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2133–34 (2022).
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116 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:6
other laws concerned activities that could extend for much longer periods.
The school restrictions above,
87
for example, disarmed students on campus.
Several laws forbade weapons carrying in places of public speech, assembly,
and worship generally, as well as in several specific places where democratic
community is formed and strengthened. Georgia, for example, forbade
weapons at “any place of public worship, or any other public gathering in
this State.”
88
Several other states and territories followed in the later
nineteenth century. Oklahoma Territory, for example, listed “any . . . place
where persons are assembled for public worship, for amusement, or for
educational or scientific purposes, or into any circus, show or public
exhibition of any kind, or into any ball room, or to any social party or social
gathering . . . .”
89
Consider the many settings of public gathering protected from weapons
threats by Oklahoma, Arizona, and Missouri in the nineteenth century. Given
the breadth of these precedents, what were and are the limits on the burdens
that locational restrictions can impose on gun owners? Bruen rules out
locational restrictions that would “eviscerate” the right, such as a declaration
that an entire metropolitan area is “sensitive”:
[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. Respondents’ argument would
in effect exempt cities from the Second Amendment and would eviscerate
the general right to publicly carry arms for self-defense that we discuss in
detail below. Put simply, there is no historical basis for New York to
effectively declare the island of Manhattan a “sensitive place” simply
because it is crowded and protected generally by the New York City Police
Department.
90
This suggests that the burden should be evaluated against a much larger
denominator, and that prohibitions in particular places are permissible so
long as, in the aggregate, they do not “eviscerate” the right to armed self-
defense and the right to public carry in a particular community or
jurisdiction.
A second principle that emerges from these cases is that courts and
legislatures balanced burdens on armed self-defense with public safety
interests, rather than treating individual self-defense as a trump. This
87
See supra Section II.0
88
Deadly Weapons Not to Be Carried in Public, § 4528, 1873 Ga. Laws 818.
89
Public Buildings and Gatherings, ch. 25, § 7, 1893 Okla. Sess. Laws 504. For further
examples, see, e.g., Carrying Certain Weapons to Church, § 387, 1901 Ariz. Sess. Laws 1252
(banning guns at a similar set of public gatherings); An Act To Amend Section 1274, Article 2,
Chapter 24 of the Revised Statutes Of Missouri, entitled “Of Crimes and Criminal Procedure,” §1,
1883 Mo. Laws 76 (same);
Carrying Deadly Weapons, etc., MO. REV. STAT. § 1274 (1879) (same).
90
Bruen, 142 S. Ct. at 2134 (internal citation omitted).
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historical interest-balancing is precisely what Heller and Bruen direct courts
to consider under the analogical method, instead of engaging in their own
“independent means-end scrutiny.”
91
According to the Court, “the Second
Amendment is the ‘product of an interest balancing by the people,’ not the
evolving product of federal judges. Analogical reasoning requires judges to
apply faithfully the balance struck by the founding generation to modern
circumstances . . . .”
92
This is a direction to consider the balance struck by
our forebears, not to reject the concept of balancing altogether.
93
In other
words, though the Bruen Court disclaims modern “interest-balancing,” the
analogical method is an instruction to consider how our predecessors
coordinated the values served by regulating guns and the burdens they
imposed on the right of self-defense.
Evaluating the constitutionality of location restrictions in the nineteenth
century, some courts characterized gun-owners’ interest in carrying guns
into sensitive places as minimal, and perhaps even illegitimate—implying
that any legally relevant “burden” was minor or negligible. For example, in
1871, the Supreme Court of Texas upheld the state’s sensitive places law on
the grounds that it was “in conflict with no higher law.”
94
The court
continued:
[I]t appears to us little short of ridiculous, that any one should claim the
right to carry upon his person any of the mischievous devices inhibited by
the statute, into a peaceable public assembly, as, for instance into a
church, a lecture room, a ball room, or any other place where ladies and
gentlemen are congregated together.
95
In another case, the Texas Court of Appeals upheld the statute’s
categorical prohibition on arms in schools, even where danger was imminent
91
Bruen, 142 S. Ct. at 2133 n.7.
92
Id. (quoting District of Columbia v. Heller, 554 U.S. 570, 635 (2008)).
93
Many commentators have questioned Bruen’s own use of the history on this point. See e.g.,
Will Baude, Of Course the Supreme Court Needs to Use History. The Question is How., W
ASH.
POST (Aug. 8, 2022), www.washingtonpost.com/opinions/2022/08/08/supreme-court-use-
history-dobbs-bruen [https://perma.cc/9UXZ-YZJ8] (“[T]he [Bruen] court refused to allow any
kind of ‘interest balancing’ . . . . [yet] historical research might support such balancing . . . . At the
Founding and during Reconstruction, many constitutional rights were subject to regulation in the
name of the public good . . . [supporting] regulation of Second Amendment rights . . . .”); Saul
Cornell, Cherry-Picked History and Ideology-Driven Outcomes: Bruen’s Originalist Distortions,
SCOTUS
BLOG (June 27, 2022), www.scotusblog.com/2022/06/cherry-picked-history-and-
ideology-driven-outcomes-bruens-originalist-distortions [https://perma.cc/LB5W-YAZ]; George
F. Will, The Supreme Court’s Gun Ruling Is a Serious Misfire, W
ASH. POST (June 23, 2022),
www.washingtonpost.com/opinions/2022/06/23/supreme-court-gun-ruling-misfire
[https://perma.cc/3MNT-N3UR] (“[T]here is an American tradition even older than the nation of
striking a ‘delicate balance between the Second Amendment’s twin concerns for self-defense and
public safety.’” (quoting an amicus brief filed in Bruen by former federal appellate Judge J. Michael
Luttig and others supporting the constitutionality of New York’s law on originalist grounds)).
94
English v. State, 35 Tex. 473, 480 (1871).
95
Id. at 478–79.
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118 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:6
and self-defense interests might be thought to trump: “Nor does it matter how
much or with what good reason I may be in dread of an immediate and
pressing attack upon my person from a deadly enemy; the imminence of such
danger affords no excuse in my wearing deadly weapons” in places like
churches, ballrooms, and schoolrooms.
96
Similarly, Georgia’s state supreme court upheld that state’s prohibition
on deadly weapons at “any election ground, or precinct,”
97
effectively
minimizing the legitimacy of a gun owner’s interest in carrying a gun at such
places:
The practice of carrying arms at courts, elections and places of worship,
etc., is a thing so improper in itself, so shocking to all sense of propriety,
so wholly useless and full of evil, that it would be strange if the framers
of the constitution have used words broad enough to give it a
constitutional guarantee.
98
The court stated that in “concerts, and prayer-meetings, and elections,”
“the bearing of arms of any sort, is an eye-sore to good citizens, offensive to
peaceable people . . . and a marked breach of good manners.”
99
On the other side of the ledger, courts recognized that other people’s
rights and interests are in play in sensitive places, and that locational
restrictions on guns are a way to coordinate various public goods.
100
In the
same Georgia case, the court emphasized:
The right to go into a court-house and peacefully and safely seek its
privileges, is just as sacred as the right to carry arms, and if the temple of
justice is turned into a barracks, and a visitor to it is compelled to mingle in
a crowd of men loaded down with pistols and Bowie-knives, or bristling with
guns and bayonets, his right of free access to the courts is just as much
restricted as is the right to bear arms infringed by prohibiting the practice
before courts of justice.
101
These historical examples confirm that legislatures have long had
authority to impose burdens—sometimes significant ones—on gun-owners
in particular places.
102
In doing so, legislatures and courts struck a balance
96
Owens v. State, 3 Tex. Ct. App. 404, 407 (1878); see also Alexander v. State, 11 S.W. 628,
628 (Tex. Ct. App. 1889) (“The law does not in terms accord to them such a privilege, and, without
a clearly expressed exception in such case, this court will not sanction a defense the effect of which
would be to authorize every school-teacher in the state to carry prohibited weapons upon his person
in our school-rooms.”).
97
Deadly Weapons Not to Be Carried in Public, § 4528, 1873 Ga. Laws 818.
98
Hill v. State, 53 Ga. 473, 475 (1874).
99
Id. at 476.
100
Miller, supra note 84, at 465–66.
101
Hill, 53 Ga. at 477–78.
102
The fact that these prohibitions were total is particularly notable given that legislatures could
have written locational rules that restricted but did not ban guns—and indeed did so in other
contexts. See infra notes 134–35 and accompanying text.
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between the right to armed self-defense and important regulatory interests
like public safety.
III
B
RUEN AND ANALOGICAL METHOD
Having derived these principles to guide sensitive-places analysis under
Bruen, in this final Part we show how the government, employing analogical
reasoning, could enact locational restrictions beyond the specific locations
of formal governance and education already enumerated in Heller and
Bruen, extending to places of civic life such as parades and sites of
commerce and mass transportation. In doing so, we demonstrate the
fundamental point that Bruen reasons from history not as a limit, but instead
as a guide to define the scope of gun rights and regulation in circumstances
where the kinds of weapons and conditions of democratic community have
evolved beyond those in the experience of the Constitution’s ratifiers.
Others read Bruen differently, and contrasting our positions illuminates
the methodological stakes. As we have been writing this article, Professors
Randy Barnett and Lawrence Solum—both leading originalists—have
posted evolving drafts of a forthcoming article that seeks to characterize
Bruen’s use of history and tradition as conforming to an approved form of
originalism.
103
During this time, they have revised their article in ways that
minimize the role of analogical reasoning under Bruen. In their first reading
of Bruen, Professors Barnett and Solum concluded that the opinion’s
“‘historical analogue test’ is an implementing rule that is not justified by
originalist reasoning.”
104
But in subsequent drafts, they repudiated their
initial reading, in favor of one they could approve as originalist.
In tacit acknowledgement of the hybrid character of the Court’s method
in Bruen, Professors Barnett and Solum identified five possible roles for the
“historical traditions test”
105
; they then claimed that Bruen engages in
originalist interpretation and that the historical tradition test provides the
content of a preexisting common law right to bear arms.
106
They hedged this
claim on all sides—emphasizing that they were not expressing views on the
validity of Heller’s historical conclusions,
107
nor “affirming or rejecting the
103
See Randy E. Barnett & Lawrence B. Solum, Originalism after Dobbs, Bruen, and Kennedy:
The Role of History and Tradition, 118 N
W. U. L. REV. (forthcoming 2023), pa-
pers.ssrn.com/sol3/papers.cfm?abstract_id=4338811.
104
Id (Jan. 27, 2023 version) at p. 23 (“Bruen involves both originalist and nonoriginalist ele-
ments. The core holding of Bruen rests on an originalist foundation, but the historical analogue
test is an implementing rule that is not justified by originalist reasoning.”).
105
See id. Barnett & Solum (April 23, 2023) at 31.
106
Id. (April 23, 2023) at 35 (“On this reading, historical analogues, or the lack thereof, are being
offered as evidence of the content of the preexisting right that constitutes the original meaning of
the right to keep and bear arms.”)
107
See id. Barnett & Solum (April 23, 2023) at 28.
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120 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:6
preexisting legal rights approach; nor are we arguing that the historical
tradition test does, in fact, accurately identify the content of the preexisting
legal rights.”
108
After explaining that they would not take a position on
whether the Court’s analysis or their own was supported by the historical
record, they defended their reading of the decision with a claim about Justice
Thomas, without discussing the other Justices in the majority: “It would be
quite odd indeed for Justice Thomas to view the assignment to write the
majority opinion in Bruen as an opportunity to undermine the originalist
framework of Heller and move the constitutional jurisprudence of the Court
in the direction of constitutional pluralism and living constitutionalism.”
109
They escalated this open appeal to methodological—and political—
polarization in the conclusion of the article where they cautioned about the
types of constitutional interpreters who can be trusted: “[O]riginalists should
be wary of the use of history and tradition by nonoriginalists, whether they
be progressive living constitutionalists or conservative constitutional
pluralists.”
110
The Barnett/Solum account fails to grapple with Bruen’s explicit and
sustained discussion of the analogical method, which itself authorizes
change over time so long as that change is consistent with how and why past
practice burdened exercise of the right.
111
Similarly, their reading of Bruen
as originalist does not and cannot explain why the Court affirmed shall-issue
licensing regimes.
112
More generally, they do not explain how a judge
following their account decides whether laws are constitutional. How are
courts to determine how to enforce a “pre-existing legal right” in the kinds
of real-world cases we discuss below, and can it be by resort to analogical
reasoning?
Notably, Barnett and Solum do not test their reading against the views
expressed by other members of the Bruen majority. In his Heller II dissent—
generally credited as the first prominent statement of the “text, history, and
tradition” test—then-Judge Brett Kavanaugh wrote “when legislatures seek
to address new weapons that have not traditionally existed or to impose new
108
See id. Barnett & Solum (April 23, 2023) at 36.
109
Barnett & Solum (April 23, 2023) at 38.
110
Barnett & Solum (April 23, 2023) at 56.
111
See infra Part II.
112
By contrast, in another paper co-authored with Professor Nelson Lund, Professor Barnett sug-
gests that “[r]ather than relying on specious historical traditions, courts could evaluate gun laws
against the purpose of protecting the right to keep and bear arms: facilitating the exercise of the
fundamental right of personal and collective self-defense.” Barnett & Lund, supra note 23. This
approach, too, is consistent with originalism, but recognizes the need for construction as well as
interpretation. See Randy E. Barnett & Evan Bernick, The Letter and the Spirit: A Unified Theory
of Originalism, 107 G
EO. L.J. 1 (2018) (describing an approach of “good faith” construction fo-
cusing on the original function or purpose of the particular clauses and general structure of the
text).
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gun regulations because of conditions that have not traditionally existed,
there obviously will not be a history or tradition of banning such weapons or
imposing such regulations.”
113
He emphasized that while the Second
Amendment might apply to such situations, that does not “mean that the
government is powerless to address those new weapons or modern
circumstances. Rather, in such cases, the proper interpretive approach is to
reason by analogy from history and tradition.”
114
In his Bruen concurrence
(joined by Chief Justice Roberts), Justice Kavanaugh quoted at length from
the portions of Heller that authorize regulation of guns consistent with the
Anglo-American common law tradition.
115
In Kanter v. Barr,
116
then-Judge Barrett reasoned from the common law
tradition that Justice Scalia invoked in Heller and concluded that “the
legislature may disarm those who have demonstrated a proclivity for
violence or whose possession of guns would otherwise threaten the public
safety.”
117
Judge Barrett explained that ancient practices would change in
form under the American constitutional order.
118
The point, she explained,
quoting Chief Justice Roberts, is that just as there were “lineal descendants
of the arms . . . presumably there are lineal descendants of the restrictions as
well.”
119
What these accounts have in common is that they authorize gun
regulation to change when guided by history—a kind of legal change that
can be implemented through the analogical method that Bruen explicitly and
repeatedly authorizes. In the following Sections, we show how that method
can apply to a variety of contemporary gun regulations responsive to
technological and other forms of change.
A. Building Democratic Community in New Places
Roughly two weeks after Bruen was decided, residents of Highland
Park, Illinois, gathered for a July Fourth parade. At 10:15 that morning, a
gunman began firing on them with a semiautomatic rifle. Seven people were
killed, dozens more physically injured, and countless more traumatized by
the carnage, including a toddler orphaned by the murder of both parents.
120
113
Heller v. District of Columbia, 670 F.3d 1244, 1275-76 (D.C. Cir. 2011) (Heller II).
114
Id. at 1276 (emphasis added)
115
New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 213 L. Ed. 2d 387, 142 S. Ct. 2111, 2162
(2022) (Kavanaugh, J., concurring). For a more extensive discussion of this part of Heller, see
Blocher & Siegel, When Guns Threaten the Public Sphere, supra note 21, at 163-180.
116
919 F.3d 437 (7th Cir. 2019).
117
Id. at 454 (Barrett, J., dissenting).
118
Id. at 456 n.4; see also id. at 458 n.7 (observing that “[i]t should go without saying that [his-
toric] race-based exclusions [from the right to bear arms] would be unconstitutional today).
119
Id. at 465 (quoting Transcript of Oral Argument at 77, District of Columbia v. Heller, 554 U.S.
570 (2008) (No. 07-290)).
120
These Are the Victims of the Fourth of July Parade Shooting in Highland Park, C
HI. TRIB.
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122 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:6
Illinois prohibits firearms at “any public gathering” licensed by the
government.
121
Assume a gun-owner wishing to carry a gun at next year’s
July Fourth parade argues that this restriction violates his right to armed self-
defense. How should the constitutionality of this sensitive place restriction
be resolved under Bruen?
No sensible reading of the Second Amendment would require the
grieving and traumatized community of Highland Park to permit guns at its
next July Fourth parade.
122
Analyzing the constitutionality of such a
restriction through the lens of sensitive-places doctrine opens various
interpretive possibilities.
One approach would be to uphold the Highland Park restriction on the
basis of historical antecedents restricting guns at public assemblies.
Georgia’s representative law, for example, prohibited guns at “any . . . public
gathering in this State.”
123
And in a 1905 case the Georgia Supreme Court
upheld the conviction of an individual who brought a firearm to a Fourth of
July gathering, finding that “[t]he wholesome purpose of this statute would
be much limited by putting a narrow construction upon the expression ‘any
other public gathering.’ A barbecue on the 4th of July, at which the public is
assembled in considerable numbers, constitutes a public gathering within the
meaning of the statute.”
124
Whether this would be sufficient is hard to say,
given the substantial uncertainty that Bruen has introduced. The historical
research necessary to identify these examples might not be possible,
especially on a briefing schedule,
125
or a judge might require a higher
quantity of laws to demonstrate a “tradition.”
126
(Aug. 3, 2022, 11:35 AM), www.chicagotribune.com/news/ct-highland-park-victims-
20220705-tgcgdx5bqbfzrakhzf6jian634-list.html [https://perma.cc/E4KD-ATP2].
121
Unlawful Use of Weapons, 720 I
LL. COMP. STAT. 5/24-1(a)(8) (2012).
122
For an account of this trauma in Highland Park and elsewhere see Julie Bosman, A Year After
July 4 Parade Shooting, Some Americans Rethink Big Gatherings, N.Y.T
IMES, July 4, 2023,
www.nytimes.com/2023/07/04/us/parades-safety-highland-park-anniversary.html. See also
Alex Leeds Mathews & Dakin Adone, July Fourth and Fifth Have the Most Mass Shootings of
Any Days of the Year, CNN, July 5, 2023, www.cnn.com/2023/07/04/us/july-4-holiday-
mass-shootings-dg/index.html (reviewing data on mass shootings in the Gun Violence Archive
since 2014).
123
Deadly Weapons Not to Be Carried to Public Places, § 4528, 1873 Ga. Laws 818; see also
supra notes 88–89 and accompanying text (discussing Georgia’s law and similar restrictions in
other states and territories).
124
Wynne v. State, 51 S.E. 636, 637 (Ga. 1905); id. (“The purpose of Pen. Code 1895, § 342,
is to protect the public against the danger arising from allowing persons to carry deadly weapons
to courts of justice, or election grounds or precincts, or places of public worship, or any other public
gathering in this state.”).
125
Def. Distributed v. Bonta, No. CV 22-6200-GW-AGRx, 2022 WL 15524977, at *6 n.9
(C.D. Cal. Oct. 21, 2022) (“[T]here is no possibility this Court would expect Defendants to be able
to present the type of historical analysis conducted in Bruen on 31 days’ notice (or even 54 days’
notice).”), adopted, No. CV 22-6200-GW-AGRX, 2022 WL 15524983 (C.D. Cal. Oct. 24, 2022).
126
See, e.g., Firearms Pol’y Coal. v. McCraw, No. 4:21-CV-1245-P, 2022 WL 3656996, at *11
(N.D. Tex. Aug. 25, 2022) (“[T]he historical record before the Court establishes (at most) that
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But public assembly laws—or those specifically addressing parades, for
example—are not the only historical basis to which Highland Park might
turn. Bruen admonishes courts not to look for “historical twin[s],”
127
but to
instead compare modern and historical laws based on why and how they
restricted the right to keep and bear arms. Such an analysis must also be
conducted with respect to how the modern and historical laws were
“justif[ied],”
128
and not with a singular focus on where they applied. We have
illustrated one such justification in detail above: Many location-based
historical gun restrictions protected democratic community and the
formation of a shared civic life, not simply individual, physical lives.
Precisely because those laws played a similar role to the Highland Park
restriction, they, too, can be mustered to support its constitutionality. For
example, the Court has specifically approved as constitutional the tradition
(described above
129
) of prohibiting guns in schools,
130
which it has recently
described as “nurseries of democracy.”
131
Restricting guns in such places can
thus be understood as an effort to protect and promote democratic
community itself—the same values that are at stake in a July Fourth parade,
since recalling and honoring the nation’s war of independence cultivates a
sense of pride and belonging that connects present and past generation.
132
The point is that schools and parades are, to borrow Bruen’s analogical
framework, relevantly similar with respect to the “why”—of interest served
by restricting guns.
133
Protecting public places has a special role in preserving democratic
community because those spaces are a prerequisite to democracy.
134
They
between 1856 and 1892, approximately twenty jurisdictions (of the then 45 states) enacted laws
that restricted the ability of those under 21 to ‘purchase or use firearms.’”); Antonyuk v. Hochul,
No. 22-CV-0986, 2022 WL 5239895, at *9 (N.D.N.Y. Oct. 6, 2022) (“[T]he Court generally has
looked to instances where there have been three or more such historical analogues . . . .”).
127
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2133 (2022).
128
Id. at 2126.
129
See supra notes 69–79 and accompanying text.
130
District of Columbia v. Heller, 554 U.S. 570, 626 (2008).
131
Mahanoy Area Sch. Dist. v. B. L., 141 S. Ct. 2038, 2046 (2021); see also Brown v. Bd. of
Educ., 347 U.S. 483, 493 (1954) (noting that education is “the very foundation of good
citizenship”).
132
Celebrating public holidays transmits stories of the nation’s birth and values across
generations. Benedict Anderson famously described nations as “imagined communities” that
served as a “way of linking fraternity, power and time meaningfully together.” B
ENEDICT
ANDERSON, IMAGINED COMMUNITIES: REFLECTIONS ON THE ORIGIN AND SPREAD OF
NATIONALISM 36 (2006). These communities are constituted through forms of collective memory,
“stories about the nation’s past experience to clarify the meaning of the nation’s commitments, to
guide practical reason, and to help express the nation’s identity and values.” Reva B. Siegel, The
Politics of Constitutional Memory, 20 G
EO. J.L. & PUB. POL’Y 19, 21 (2022).
133
Bruen, 142 S. Ct. at 2132–33.
134
See John R. Parkinson, Does Democracy Require Physical Public Space?, in D
OES TRUTH
MATTER?: DEMOCRACY AND PUBLIC SPACE 101–02 (Raf Geenens & Ronald Tinnevelt eds., 2009)
(arguing “public space matters because of the functional necessity of physical arenas for democratic
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124 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:6
are the places where individuals from different walks of life can come
together, break down or understand lines of difference, and build a common
belief in a shared civic life. They are the spaces where voluntary associations
conduct their business, where “social and civic skills are learned—’schools
for democracy.’”
135
They might also be the places where people gather to
communicate concerns, to advocate, and to mobilize.
136
History suggests that
armed crime and terror in these vital public spaces can directly or indirectly
suppress voter turnout and other forms of democratic participation.
137
The
protection of these spaces is therefore critical to democracy, just like the
protection of a legislative assembly itself. The analogical method allows
sensitive place restrictions to evolve and form as democratic community
does.
Crucially, Bruen’s analogical method enables government to employ
locational restrictions to protect places of public gathering from weapons
threat whether or not there are identical antecedent restrictions. The
government must “identify a well-established and representative historical
analogue, not a historical twin.”
138
Indeed, the Court made plain its
understanding that sensitive-places restrictions can continue to evolve. That
does not mean that anything goes, of course—the Court asserted that, for
example, it would be unconstitutional to permanently designate all of
Manhattan a sensitive place.
139
But the hypothetical the Court discussed is
wildly more expansive than imposing gun restrictions at a public gathering.
A court could well characterize the why of the Highland Park regulation as
limiting guns at public events and places that build community ties, bringing
it within the tradition of sensitive-places regulation discussed above—
including the restriction of guns in school buildings. The antecedent statute
for a sensitive place restriction for the Highland Park Fourth of July parade
could therefore be a law or tradition of restricting weapons at public
gatherings or schools or both.
action”); see also ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF
AMERICAN COMMUNITY 337 (2001) (quoting John Dewey) (“Democracy must begin at home, and
its home is the neighborly community.”).
135
P
UTNAM, supra note 134, at 338.
136
J
OHN R. PARKINSON, DEMOCRACY AND PUBLIC SPACE: THE PHYSICAL SITES OF
DEMOCRATIC PERFORMANCE 149 (2012) (arguing that democracy requires physical public space
and exploring the different kinds of spaces where democratic action can occur).
137
See, e.g., Brennan Gardner Rivas, The Deadly Weapon Laws of Texas: Regulating Guns,
Knives, and Knuckles in the Lone Star State, 1836–1930 (May 2019) (Ph.D. dissertation, Texas
Christian University) (manuscript at 73) (on file with author) (stating that the kinds of locations
and events protected by the Texas 1871 law were the very ones that most frequently became targets
of Klan or other white vigilante intimidation and violence for the purpose of Black voter
suppression).
138
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2133 (2022).
139
See supra note 90 and accompanying text.
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B. “Fairs and Markets”: Community, Commerce, and Transportation
Historical analysis of weapons regulations often begins,
chronologically, with the Statute of Northampton, enacted in 1328 during the
reign of Edward III:
[N]o Man great nor small, of what Condition soever he be, except the
King’s Servants in his presence, and his Ministers in executing of the
King’s Precepts, or of their Office, and such as be in their Company
assisting them, and also [upon a Cry made for Arms to keep the Peace,
and the same in such places where such Acts happen,] be so hardy to come
before the King’s Justices, or other of the King’s Ministers doing their
office, with force and arms, nor bring no force in affray of the peace, nor
to go nor ride armed by night nor by day, in Fairs, Markets, nor in the
presence of the Justices or other Ministers, nor in no part elsewhere, upon
pain to forfeit their Armour to the King, and their Bodies to Prison at the
King’s pleasure.
140
The degree to which the Statute broadly prohibited public carrying of
weapons has been the subject of long-running scholarly and legal debate,
141
but for purposes of sensitive-place restrictions we think it particularly
notable that “fairs” and “markets”—places of significant community life at
the time—were singled out for protection alongside political figures like
justices and ministers. Some colonial governments incorporated this
language directly into their statutes.
142
Security of commerce is an element of democratic community, as our
forebears clearly appreciated.
143
“The Framers of the 1787 Constitution . . .
believed that commercial relations between different parts of the country
would foster national connection and social cohesion,” and viewed
“commerce as intercourse that produces social cohesion.”
144
Although we do not thoroughly explore the matter here, we suspect that
protecting commerce from weapons threats was an important part of “this
Nation’s historical tradition of firearm regulation.”
145
Some states had
140
Statute of Northampton, 2 Edw. 3, c. 3 (1328) (Eng.).
141
See Blocher & Siegel, supra note 21, at 165–67 (describing the debate about Northampton).
142
See An Act Forbidding and Punishing Affrays, ch. 21, 1786 Va. Acts 33; F
RANCOIS XAVIER
MARTIN, A COLLECTION OF STATUTES OF THE PARLIAMENT OF ENGLAND IN FORCE IN THE STATE
OF
NORTH CAROLINA 60-61 (Newbern ed., 1792) (proclaiming “no man great nor small” shall “ride
armed by night nor by day, in fairs, markets nor in the presence of the King’s Justices . . . .”).
143
See Jack M. Balkin, Commerce, 109 M
ICH. L. REV. 1, 17 (2010) (“[M]any eighteenth-
century thinkers believed that commercial relations fostered tolerance and understanding, smoothed
over social, religious, and cultural differences, brought refinement of manners, and, in the long run,
political and social peace.”).
144
Id.
145
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022); see also id. at 2129–
30 (“When the Second Amendment’s plain text covers an individual’s conduct, the Constitution
presumptively protects that conduct. The government must then justify its regulation by
demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only
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126 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:6
statewide locational restrictions that prohibited weapons in places “where
persons are assembled for amusement”—with that location listed alongside
bans on weapons in the vicinity of a polling place.
146
Tennessee restricted guns at fairs, with these places of commerce
represented as places of “public assembly”; its sensitive-place restriction
prohibited gun possession at “any fair, race course, or other public assembly
of the people.”
147
Fairs and places of public assembly feature people gathered
in physically crowded circumstances, and in circumstances of exchange and
intercourse that sustain social bonds of community.
148
Elsewhere, we see
places of commerce treated as public places in Maupin v. State, where the
Tennessee Supreme Court affirmed conviction under a statute prohibiting
arms at a mill despite the fact that the defendant worked and slept at the mill,
because “[t]he mill was a public place[]—a place to which customers were
constantly invited and daily expected to go. In such a place a man, though he
be the proprietor, may not lawfully carry pistols concealed about his
person.”
149
Many historical restrictions on gun displays and use (not carriage per
se) specifically singled out various places of commerce like hotels, saloons,
groceries, and the like, such as an 1886 New Mexico law imposing special
penalties on those who “unlawfully draw, flourish or discharge a rifle, gun
or pistol within the limits of any settlement in this territory, or within any
saloon, store, public hall, dance hall or hotel, in this territory.”
150
To be clear,
then may a court conclude that the individual’s conduct falls outside the Second Amendment’s
‘unqualified command.’”).
146
See Carrying Certain Weapons to Church,
§ 387, 1901 Ariz. Sess. Laws 1252 (prohibiting
firearms at any “church or religious assembly, any school room, or other place where persons are
assembled for amusement or for educational or scientific purposes . . . or to any election precinct,
on the day or days of any election . . . or to any other public assembly”); Public Buildings and
Gatherings, ch. 25, § 7, 1893 Okla. Sess. Laws 504 (prohibiting guns at “any church or religious
assembly, any school room or other place where persons are assembled for public worship, for
amusement, or for educational or scientific purposes . . . or to any election . . . or to any other public
assembly”).
147
An Act to Amend the Criminal Laws of the State, ch. 22, § 2, 1869-70 Tenn. Pub. Acts 23–
24.
148
New Jersey and New York invoked similar lines of argument in litigation over their
sensitive-place restrictions on certain transportation vehicles. See Defendants’ Brief in Opposition
to Plaintiffs’ Motion for a Temporary Restraining Order at 37, Siegel v. Platkin, No. 22-CV-7463,
2023 WL 185512 (D.N.J. Dec. 30, 2022) (“The concerns that animate regulating firearms-carry on
a crowded bus are not relevantly different from those supporting prohibitions on firearms-carry
at . . . ‘[f]airs’ . . . .”); State Defendants’ Memorandum of Law in Opposition to Plaintiffs’ Motion
for a Preliminary Injunction at 65, Antonyuk v. Hochul, No. 22-CV-986, 2022 WL 16744700
(N.D.N.Y. Oct. 13, 2022) (“A subway, bus, or airport is sensitive in the same way as a ‘fair or
market[],’” or “a ‘fair, race course, or other public assembly of the people’ . . . .” (internal citations
omitted)).
149
17 S.W. 1038, 1039 (Tenn. 1890).
150
An Act to Prohibit the Unlawful Carrying and Use of Deadly Weapons, ch. 30, § 4, 1886
N.M. Laws 56; see also Act to Revise, Consolidate and Amend the Charter of the City of Neenah,
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these particular restrictions were not total prohibitions—their how, as it
were, was different from the bans discussed above.
151
But they do potentially
suggest a common why—a special focus on protecting sites of the
commercial activity that itself is an element of democratic community.
As with some of the school examples recounted above, we would expect
that private actors imposed many of the locational restrictions on weapons
in places of commerce.
152
Evidence of such restrictions should still be
probative under Bruen’s historical-analogical test, especially considering the
degree to which the relevant sites—the historical antecedents—were
privately controlled. We expect that many historical analogues for locational
restrictions on weapons in transportation were, as with the school limitations
discussed above,
153
likely private—for example, sites of mass transit,
154
which have been the subject of Second Amendment litigation in the wake of
Bruen.
155
Certainly it is crucial to have further historical research regarding
specific public and private restrictions of guns in sites of transit—omnibuses,
railways, ferries, depots, stations, and the like. Evidence of locational
restrictions in these transit settings could be extended via analogical
reasoning to support contemporary locational restrictions on weapons in
such places as subways, trains, and airplanes.
156
Even as research on these transit antecedents is ongoing, we think that
some public authorities might argue for extending sensitive-place
restrictions via analogical reasoning from government buildings and schools
vol. 2, ch. 184, tit. 12, § 162, Approved March 14, 1873, and the Several Acts Amendatory Thereof,
1883 Wis. Sess. Laws 841 (referring to “any saloon, shop, store, grocery, hall, church, school house,
barn, building or other place within said city”); F
ORT WORTH, TEX., REVISED ORDINANCES OF THE
CITY OF FORT WORTH, TEXAS, No. 85, § 3 (1879) (referring to “any public road, street or alley,
inn, tavern, store, grocery, workshop, or any place to which people resort for purposes of business,
recreation, or amusement”).
151
See supra notes 65–79 and accompanying text.
152
See, e.g., Austin Charles Rhodes, Good Saloon, Bad Saloon: Saloons in Wichita, Kansas
1865–1881 (May 2014) (M.A. thesis, Wichita State University) (on file with Shocker Open Access
Repository, Wichita State University) (“[A] saloon would not have stayed in business very long if
there were bar fights that smashed bottles and glasses every day. Furthermore, it was rare for a
person to start a fight or pull a gun in a saloon and make it out without being arrested.”).
153
See supra notes 71–79 and accompanying text.
154
See George M. Smerk, Urban Mass Transportation: From Private to Public to
Privatization, 26 T
RANSP. J. 83, 83 (1986) (“The transit industry . . . started in 1830 with the advent
of the first omnibus service in New York City. From the beginnings of the horse-drawn omnibus
and, shortly thereafter, the development of street railways, transit in the United States was a private,
competitive enterprise.”); D
AVID E. NYE, ELECTRIFYING AMERICA: SOCIAL MEANINGS OF A NEW
TECHNOLOGY, 1880–1940, at 90 (1990) (“How were the hundreds of American street railways
built? The majority were private, not public, ventures.”).
155
See supra note 9.
156
See Josh Hochman, Note, The Second Amendment on Board: Public and Private Historical
Traditions of Firearm Regulation, Y
ALE L.J. (forthcoming)
papers.ssrn.com/sol3/papers.cfm?abstract_id=4522818 (recounting gun control on railroads
in the nineteenth century).
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128 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:6
directly to subways, trains, and airplanes. Freedom of travel and confidence
in the security of transportation is necessary to sustain the bonds of
community. Locational restrictions on weapons in government buildings and
schools are relevantly similar to locational restrictions in subways, trains,
and airplanes in why and how they burden the right to bear arms. Both build
bonds of democratic community, and only temporarily burden the right to
bear arms.
157
C. Building Democratic Community for New Rights-Holders, and in
New Ways
What kind of deference to the past does fidelity to the Constitution
require? Bruen’s analogical method understands the Second Amendment
through an historical lens, yet allows government to recognize and act on
change in many ways: “Fortunately, the Founders created a Constitution—
and a Second Amendment—’intended to endure for ages to come, and
consequently, to be adapted to the various crises of human affairs.’”
158
The
analogical method can coordinate these very concerns.
Just as the means of self-defense evolves in history,
159
so do a society’s
methods of sustaining community. How did the founding generations
achieve these ends, and how might our own? The practices a society employs
to strengthen community ties are likely to vary from the founding era, just as
the technology of weapons employed in self-defense does.
160
Legislators
must be able to take this kind of change into account. Nothing in the
Constitution denies legislators modern means to protect and strengthen
community bonds any more than the Constitution denies individuals modern
means to defend themselves and their families.
In short, while the Court has interpreted the Second Amendment as
mandating fidelity to tradition, it did not require blind deference to specific
past practices. Traditions are living. We observe that the Court’s embrace of
change under the Second Amendment includes technological change,
regulatory change, and change in understandings of community.
Consider race. The Court’s recent gun rights cases have reasoned that
157
See supra Section II.0(explaining in the context of Bruen’s “how” metric that many
sensitive-place restrictions impose a total prohibition on arms-bearing, albeit one that applies only
when one is in a restricted location).
158
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2132 (2022) (quoting McCulloch
v. Maryland, 4 Wheat. 316, 415 (1819)). On translation across contexts in fidelity to the original
understanding, see generally Lawrence Lessig, Fidelity in Translation, 71 T
EX. L. REV. 1165
(1993).
159
See Bruen, 142 S. Ct. at 2132 (recounting the Court’s holding in Heller that “even though
the Second Amendment’s definition of ‘arms’ is fixed according to its historical understanding,
that general definition covers modern instruments that facilitate armed self-defense”).
160
See id.
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the rights of Black people to bear arms are equal to the rights of white people,
and have shown little interest in tying access to guns to the racially
discriminatory history and traditions of the American people during slavery
or Reconstruction.
161
Justice Thomas, for example, employed originalist
interpretation to protest an American history and tradition of racism in the
regulation of arms, not to venerate and entrench it.
162
The Court has
recognized that as We the People evolves in history, who counts as a rights-
bearing member of the community under the Second Amendment evolves as
well.
163
Imagine if Bruen restricted the right to bear arms only to those kinds
of persons the framers thought fit—or restricted the Amendment’s
protections only to those kinds of weapons the framers possessed. It does
not.
How then does Bruen recognize change in weapons regulation? This
question is at the heart of the Supreme Court’s decision to review the Fifth
Circuit’s decision declaring unconstitutional 18 U.S.C.§ 922(g)(8), the 1994
federal law prohibiting gun possession by persons subject to a domestic
violence restraining order.
164
Strikingly, in neither of the two most prominent
decisions striking down 18 U.S.C.§ 922(g)(8) did judges attempt to
determine whether license afforded to violence within family relations at the
founding and during American history was the kind of social relationship
that the Constitution should entrench and protect against change.
In United States v. Perez-Gallan, Judge David Counts reasoned that that
the general societal problem of intimate partner violence has existed from
before the founding and asserted that, until the 1970s, the American legal
161
See, e.g., CAROL ANDERSON, THE SECOND: RACE AND GUNS IN A FATALLY UNEQUAL
AMERICA 25–39 (2021) (recounting the history of the Second Amendment’s adoption as “steeped
in anti-Blackness, swaddled in the desire to keep African-descended people rightless and
powerless”); Patrick J. Charles, Racist History and the Second Amendment: A Critical
Commentary, 43 C
ARDOZO L. REV. 1343, 1367–68 (2022) (describing Bruen petitioners’ citation
to historically racist gun rights frameworks); Mark Anthony Frassetto, The Nonracist and Antiracist
History of Firearms Public Carry Regulation, 74 SMU
L. REV. F. 169, 180 (2021) (arguing for the
Court to “reject consideration of the racist laws of the antebellum and early Reconstruction South,”
and look to broader traditions as the basis for gun regulation).
162
See McDonald v. City of Chicago, 561 U.S. 742, 855–58 (2010) (Thomas, J., concurring)
(urging the Court to overrule major parts of the Slaughter-House Cases, 83 U.S. (16 Wall.) 36
(1873), and United States v. Cruikshank, 92 U.S. 542 (1875), and holding out the right to bear arms
as a symbolic repudiation of the history of racist mob violence that spanned the Reconstruction era
to the 1960s, in the process recounting lynchings from 1882 to 1968).
163
This kind of updating is apparent in a recent case striking down the federal law forbidding hand-
gun sales to people under the age of 21. The district court there concluded that: “(1) taken to its
logical extent, the Government's argument would remove Second Amendment protections for vast
swaths of the American population; and (2) Heller and Bruen support adopting a modern under-
standing of the definition of ‘the people.’” Fraser v. Bureau of Alcohol, Tobacco, Firearms & Ex-
plosives, No. 3:22-CV-410, 2023 WL 3355339, at *11 (E.D. Va. May 10, 2023).
164
United States v. Rahimi, 61 F.4th 443, 450 (5th Cir. 2023); United States v. Combs, No. CR
5:22-136, 2023 WL 1466614, at *1 (E.D. Ky. Feb. 2, 2023); United States v. Perez-Gallan, No.
PE:22-CR-00427, 2022 WL 16858516, at *12 (W.D. Tex. Nov. 10, 2022).
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130 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:6
system rarely took formal legal action in response.
165
The judge recognized
that legislatures historically disarmed “dangerous” people, but found that
domestic abusers were not regarded as such.
166
For Judge Counts, that meant
that under the history-and-tradition method espoused by Bruen, the domestic
violence prohibitor was unconstitutional because it broke with the nation’s
traditional response of inaction.
167
(Observe that the tradition of inaction
Judge Counts celebrates depended on women’s disfranchisement;
168
§
922(g)(8) was enacted only after women had the political voice to secure its
passage.)
A few months later, in United States v. Rahimi, a panel of the Fifth
Circuit including Judges Cory Wilson, James Ho, and Edith Jones also struck
down § 922(g)(8), invoking our “ancestors”
169
while minimizing the social
dimension of domestic violence. Though purporting to apply the analogical
method, their interpretation of Bruen, filed on Groundhog Day,
170
reads the
Constitution as a script for Groundhog Day.
171
In Rahimi, the Fifth Circuit considered a variety of historical analogues
both inside and outside the domestic violence context. First, the court
recognized that laws at the time of ratification disarmed “dangerous” people
(for example, those unwilling to take an oath of allegiance, slaves, and
Native Americans)
172
but held that § 922(g)(8) was not relevantly similar
because the he purpose of those laws “was ostensibly the preservation of
political and social order, not the protection of an identified person from the
threat of domestic gun abuse, posed by another individual.”
173
In effect, the
court said that the “how” was similar (disarmament) but the “why” was
different (preserving social order rather than preventing individual threat).
The court also recognized that historical surety laws had a similar “why”
(protecting an individual from a risk of harm) and even a similar procedural
165
Perez-Gallan, 2022 WL 16858516, at *4.
166
Id. at *11.
167
Id. at *10 (“Bruen is clear: if a challenged regulation addresses a ‘general societal problem
that has persisted since the 18th century,’ and ‘earlier generations addressed the societal problem,
but did so through materially different means, that also could be evidence that a modern regulation
is unconstitutional.’”) (quoting N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2131
(2022))).
168
See State v. Philpotts, 194 N.E.3d 371, 373 (Ohio 2022) (Brunner, J., dissenting) (“[T]he
glaring flaw in any [historic] analysis . . . is that no such analysis could account for what the United
States’ historical tradition of firearm regulation would have been if women and nonwhite people
had been able to vote for the representatives who determined these regulations.”).
169
61 F.4th 443, 461 (5th Cir. 2023).
170
Rahimi was initially filed on February 2, see 2023 WL 1459240 (5th Cir. Feb. 2, 2023), but
was later withdrawn and replaced with an opinion featuring a lengthier concurrence from Judge
Ho.
171
Cf. supra note 11 and accompanying text.
172
Rahimi, 61 F.4th at 456.
173
Id. at 457 (internal quotation marks and citation omitted).
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“how” (a legal proceeding demonstrating threat), but that they did not fully
prohibit weapons possession and therefore were not sufficiently similar.
174
Rahimi Court thus struck down the law disarming those under protective
orders for domestic violence as an “outlier[] that our ancestors would never
have accepted.”
175
It takes a special kind of narrow legal mind to describe § 922(g)(8) as
protecting persons from threats but not as protecting “political and social
order.” To begin with, Rahimi (and Perez-Gallan) overstate the law’s
historical failure to protect women from abuse. The common law authorized
a man to “correct” subordinate members of the household, including his
wife. Blackstone’s Commentaries on the Laws of England
176
stated that
husbands could exercise over their wives “domestic chastisement, in the
same moderation that a man is allowed to correct his servants or children
. . . .”
177
But that power to “correct” did not contemplate death or threat of
death inflicted by modern firearms in the hands of an abuser.
As Laura Edwards has shown, at common law the system of “peace
warrants” allowed battered wives to “legally transform[] their husbands’
violence from personal conflicts into illegal acts that endangered the public
order.”
178
On complaint, a magistrate could issue a peace warrant marking
the actions of a perpetrator as a potential threat to public order; that
individual could post bond for good behavior without incurring criminal
penalty unless the individual broke the peace.
179
In other words, the common
law did view aggravated acts of domestic violence as a threat to “political
and social order.”
180
Yet this tradition of regulation has evolved in form, both because of
changes in the technology and availability of firearms and because of
changes in our understanding of women’s citizenship. At the founding, guns
were so cumbersome they were rarely used for domestic abuse; but as
weapons have become more numerous and deadly, they have amplified the
174
Id. at 459-60.
175
Id. at 461 (quoting N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2132 (2022)).
176
1 W
ILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND (Univ. Chi. Press
1979) (1765). On Blackstone’s authority, see Lea VanderVelde, Servitude and Captivity in the
Common Law of Master-Servant: Judicial Interpretations of the Thirteenth Amendment’s Labor
Vision Immediately After Its Enactment, 27 W
M. & MARY BILL RTS. J. 1079, 1079 (2019).
177
B
LACKSTONE, supra note 176, at 432.
178
LAURA F. EDWARDS, THE PEOPLE AND THEIR PEACE: LEGAL CULTURE AND THE TRANSFOR-
MATION OF
INEQUALITY IN THE POST-REVOLUTIONARY SOUTH at 180 (2009).
179
See id. at 73-74. For examples peace warrants for domestic violence, see id. at 180-83.
180
For other examples of law enforcement in the domestic violence context, see, for example, ELIZ-
ABETH
PLECK, DOMESTIC TYRANNY: THE MAKING OF AMERICAN SOCIAL POLICY AGAINST FAM-
ILY
VIOLENCE FROM COLONIAL TIMES TO THE PRESENT (1987); Carolyn B. Ramsey, Firearms in
the Family, 78 O
HIO ST. L.J. 1257, 1301 (2017); Carolyn B. Ramsey, Domestic Violence and State
Intervention in the American West and Australia, 1860-1930, 86 I
ND. L.J. 185, 207 (2011).
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132 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:6
threats, injuries, and lethality of domestic violence.
181
As importantly, over
the decades Americans have come to view the system of common law peace
warrants—which rooted legal action in harm to the social order instead of
the rights of the individual
182
—as inadequate, as were other enforcement
practices that failed to treat intimate partner violence with the same
seriousness as other forms of interpersonal violence.
183
By enacting § 922(g)(8) Congress acted to make clear the government’s
readiness to to intervene in intimate partner violence and to address the
critical role that guns now play in escalating threats and injury. The law thus
responded to changes in the use of guns and the status of women. Even after
law repudiated a husband’s prerogative to chastise, the criminal law
remained reticent to police violence between intimates as it did violence
between other persons.
184
The states’ reticence to intervene and disarm
abusers has long been tied to traditional gender status roles in which a
woman was viewed as a dependent of her abuser rather than an equal and
independent member of the community. Government response to violence
between intimates changed began to shift in the late twentieth century as this
system of gender hierarchy began slowly to break down.
185
The very goal of § 922(g)(8) is thus to protect not only persons but a
“political and social order”
186
in which women as well as men are entitled to
the equal protection of the civil and criminal law.
187
Does the Second
Amendment require Congress to reason about the sexes and respond to
dangerousness on the basis of the old common law assumptions “that a
181
Compare Randolph Roth, Why Guns Are and Are Not the Problem: The Relationship Between
Guns and Homicide in American History, in A
RIGHT TO BEAR ARMS? THE CONTESTED ROLE OF
HISTORY IN CONTEMPORARY DEBATES ON THE SECOND AMENDMENT 117 (Jennifer Tucker, Bar-
ton C. Hacker & Margaret Vining eds., 2019) (“Family and household homicides—most of which
were caused by abuse or simple assaults that got out of control—were committed almost exclu-
sively with weapons that were close at hand,” which were not loaded guns but rather “whips, sticks,
hoes, shovels, axes, knives, feet, or fists.”) with Elizabeth Richardson Vigdor & James A. Mercy,
Do Laws Restricting Access to Firearms by Domestic Violence Offenders Prevent Intimate Partner
Homicide?, 30 E
VALUATION REV. 313, 313 (2006) (concluding that roughly 60% of intimate-part-
ner homicides are committed with a firearm).
182
Id. at 183.
183
See infra note 180 and sources cited therein.
184
See Reva B. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy, 105
Y
ALE L.J. 2117, 2119 (1996) (“[A]s the nineteenth-century feminist movement protested a
husband’s marital prerogatives, the movement helped bring about the repudiation of chastisement
doctrine; but, in so doing, the movement also precipitated changes in the regulation of marital
violence that ‘modernized’ this body of status law.”).
185
See id. at 2118.
186
United States v. Rahimi, 61 F.4th 443, 457 (5th Cir. 2023).
187
See Robin West, Toward an Abolitionist Interpretation of the Fourteenth Amendment, 94
W. VA. L. REV. 111, 113 (1991) (connecting the mandate of the Fourteenth Amendment and equal
protection doctrine to eradicating inequalities); see also Blocher & Siegel, When Guns Threaten
the Public Sphere, supra note 21, at 190–93 (showing that DV-linked gun restrictions protect
against threats and intimidation as well as physical violence).
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husband, as master of his household, could subject his wife to corporal
punishment or ‘chastisement’ so long as he did not inflict permanent injury
upon her[]”?
188
The Fifth Circuit’s claim that § 922(g)(8) lacks antecedents is a classic
exemplar of courts hiding behind the analogical method to choose amongst
arms regulation in ways that are not compelled by Bruen itself and are
instead ventriloquizing historical sources with their own values.
189
True, the
Bruen Court’s ode to history and traditions encourages uncritical deference
to status-based reasoning of the past of the kind on display in Perez-Gallan
and Rahimi.
190
That said, there is nothing in Bruen that requires federal
judges to expose domestic partners—and others
191
—to this heightened risk
of gun violence.
192
Given how emphatically the Roberts Court has modeled
the importance of enforcing twenty-first century—rather than eighteenth- or
nineteenth-century—understandings of racial status in defining gun rights,
193
we think Perez Gallan and Rahimi are clearly wrong to insist on enforcing
the Second Amendment with traditional status-based understandings of
citizenship rights. Congress and the states can regulate guns with our twenty-
first century understanding of We the People. Bruen does not require
legislators to regulate guns based on premises of slavery, Jim Crow, the legal
doctrine of marital unity, or separate spheres any more than it limits the
Second Amendment’s protection of weapons of self-defense to muskets and
bayonets or weapons regulations to those existing at the time of the founding.
Bruen, after all, approved shall-issue licensing laws without even identifying
188
Siegel, supra note 184, at 2118 (citation omitted).
189
Judge Wilson, author of the opinion, made clear in an NRA questionnaire—filed as part of
a run for office in Mississippi—that he opposes most gun regulation, including universal
background checks. Cory Wilson, 2015 Mississippi Candidate Questionnaire, N
AT’L RIFLE ASS’N
OF
AM. POL. VICTORY FUND (May 21, 2015), afj.org/wp-content/uploads/2020/01/Wilson-
Attachments-p450-453.pdf [https://perma.cc/C353-ZT4A].
190
See Reva B. Siegel, How “History and Tradition” Perpetuates Inequality: Dobbs on
Abortion’s Nineteenth-Century Criminalization, 60 H
OUS. L. REV. (forthcoming 2023) (manuscript
at 101) (observing that the history-and-tradition methods the Court employed in Bruen and other
cases “tie the Constitution’s meaning to lawmaking from which women were excluded,” and
provide the Court “resources for expressing identity and value drawn from a culture whose laws
and mores were more hierarchical than our own”).
191
See Lisa B. Geller, Marisa Booty & Cassandra K. Crifasi, The Role of Domestic Violence in
Fatal Mass Shootings in the United States, 2014–2019, 8 I
NJ. EPIDEMIOLOGY 38, 43–44 (2021)
(finding that 59.1% of mass shootings between 2014 and 2019 were DV-related and that in 68.2%
of mass shootings the perpetrator either killed at least one partner or family member or had a history
of DV).
192
See Statistics, N
AT’L COAL. AGAINST DOMESTIC VIOLENCE,
ncadv.org/STATISTICS [https://perma.cc/RG22-KUQJ] (last visited Apr. 24, 2023) (“The
presence of a gun in a domestic violence situation increases the risk of homicide by 500%.”).
193
See Danny Li, Note, Bruen and the Antisubordinating Second Amendment, 132 Y
ALE L.J.
(forthcoming 2023) (showing how Bruen adopts racial justice claims made by gun rights scholars
and advocates over the past few decades).
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134 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:6
a historical antecedent.
194
These cases involving the domestic violence prohibitor show the range
of discretion that courts—including the Supreme Court—have when it
comes to recognizing or blocking change, including broadening social
equality. We may well learn that the Roberts Court only invokes values of
equality under the Second Amendment to serve the cause of expanding gun
rights,
195
but the Court has not yet decided a case making that crystal clear.
Until it does, it seems reasonable that legislators may premise weapons
regulation on an evolving understanding of equal citizenship, much as the
Court has reasoned from evolving understandings of race to uphold gun
rights.
CONCLUSION
We have shown here that, even under Bruen’s historical test,
governments retain broad authority to use locational gun restrictions to
protect both lives and democratic community. That authority to enact
sensitive-place restrictions is not limited narrowly to specific buildings
where elections and formal lawmaking take place. It extends to other sites of
democratic community, including schools, and could encompass other
locations where those bonds are formed and strengthened, such as sites of
commerce and transportation. There is a thick tradition of regulating places
in such a way as to protect democratic community. In some cases, these can
supply specific historical analogues; in others, they can be linked based on
Bruen’s “why” metric—a service of common ends that extends to places not
specifically enumerated.
We have shown that Bruen sanctions change in many ways: expressly
through its analogical method, by examples that extend the right to new
weapons and recognize new modes of regulation, and by principle as the
Court affirms contemporary understandings of equal citizenship that can
alter the shape of gun rights and regulation.
Yet it is already evident that some judges are using Bruen as a shield to
justify mix-and-match updating that extends rights protection to AR-15s and
other forms of high-powered weaponry while cabining the exercise of
democratic will to competencies and conceptions of equal citizenship that
are 250 years old. Neither the Constitution nor the Bruen decision mandates
194
See supra note 13 and sources cited therein.
195
See Khiara M. Bridges, The Supreme Court 2021 Term, Foreword: Race in the Roberts
Court, 136 H
ARV. L. REV. 23, 31 (2022) (“The Court ‘protects’ people of color only when it serves
conservative ends. In Dobbs and Bruen, the protectionist rationale justified the reversal of Roe and
an expansive interpretation of the Second Amendment; hence, the Court invoked it.”). Justice
Thomas has been particularly insistent about the expansion of Second Amendment rights as a
remedy for histories and traditions of racist violence. See, e.g., McDonald v. City of Chicago, 561
U.S. 742, 856 (2010) (Thomas, J., concurring).
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December 2023] GUIDED BY HISTORY 135
this reading, and judges who assert it are reasoning from their own twenty-
first century values.
Electronic copy available at: ssrn.com/abstract=4355024