A First Amendment-inspired Approach to Heller's "schools" and "government Buildings"

• Publication year: 2021

92 Nebraska L. Rev. 537. A First Amendment-Inspired Approach to Heller's "Schools" and "Government Buildings"

A First Amendment-Inspired Approach to Heller's "Schools" and "Government Buildings"

Jordan E. Pratt(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 538

II. Heller, McDonald, and the Right to Bear Arms Outside the Home ............................................. 543
A. District of Columbia v. Heller: A Brief Review ...... 543
B. McDonald v. City of Chicago: A Brief Review ...... 549
C. Why Heller and McDonald Strongly Imply a Robust Right to Armed Self-Defense Outside the Home . . . . 551
1. Heller's Early American Commentary and Case Law ........................................... 552
2. Heller's "Sensitive Places" Passage ............. 554
3. Heller's and McDonald's Strong Emphasis on Self-Defense ................................... 554

III. Terra Incognita and Emerging Second Amendment Doctrine in the Lower Courts ......................... 556
A. Two-Step Analysis: Scope and Scrutiny ............ 558
B. Differing Treatment of Heller's Longstanding, Presumptively Lawful Regulations ................. 562
C. Different Approaches to the Right to Armed Self-Defense Outside the Home ........................ 564

IV. The Dangers Inherent in Analogies to Categorical First Amendment Exceptions ............................... 571

V. How First Amendment Doctrines Suggest a Cautious Approach to Heller's Enumerated Sensitive Places ..... 574
A. "Schools"-Student-Speech Jurisprudence and the Secondary-Post-Secondary Distinction ............. 575

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B. "Government Buildings"-First Amendment Forum Doctrine and the Government as Property Owner . . 579

VI. Conclusion ............................................ 584

I. INTRODUCTION

In America, few things evoke more political controversy than guns, and as with many contentious public policy issues, participants in the American gun debate tend to polarize into two camps.(fn1) Advocates of stricter regulations claim that high rates of gun ownership cause increases in violent crime and that allowing even law-abiding adults to carry firearms in public results in a net loss to public safety.(fn2) Proponents of more permissive gun laws disagree, arguing that lawful gun ownership and possession deter crime and that the primary effect of restrictions on the carry of firearms is to disarm the law-abiding and make them more vulnerable to attack by the violent.(fn3) This debate gained considerable attention during the late 1980s and early 1990s, when many states began to enact more permissive concealed carry laws,(fn4) and it intensified in recent years as the country witnessed

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several high-profile mass shootings.(fn5)

In the wake of these tragedies, discussion has often centered on the topic of so-called "gun-free zones"-places where persons other than sworn law enforcement officers are prohibited from carrying firearms, even if they are law-abiding adults and possess a concealed-weapons

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permit.(fn6) Supporters of gun-free zones argue that certain locations are especially sensitive, either because of the people or the activities they host, and that allowing the general public to carry firearms in those locations would cause an especially great threat to public safety.(fn7) Gun-rights proponents take exactly the opposite view, contending that gun-free zones actually attract violent crime (and especially mass killings) because violent criminals and grievance killers are undeterred by laws forbidding the carry of firearms and prefer unarmed targets when looking to carry out their sinister plots.(fn8) The pro-carry movement has gained traction in several states, leading to the legalization of concealed carry on college campuses and by teachers and administrators in primary and secondary schools.(fn9)

When the Supreme Court invalidated Washington, D.C.'s restrictive gun laws six years ago in District of Columbia v. Heller,(fn10) it signaled an intention to leave at least a portion of the debate over gun-free zones to the political process. In a now familiar passage, the Court stressed that while the Second Amendment confers an individual right to keep and bear arms, the Court's decision should not "be taken to cast doubt on . . . laws forbidding the carrying of firearms in sensitive places such as schools and government buildings . . . ."(fn11) The Court strongly suggested that the right to bear arms extends beyond

the home,(fn12) but it nevertheless reaffirmed the presumptive validity of gun-free zones in "sensitive places" two years later when it incorporated the Second Amendment in McDonald v. City of Chicago.(fn13)

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The Court's brief references to gun-free zones remain somewhat of a mystery. In neither Heller nor McDonald did the Court offer much explanation for its dicta, aside from the casual observations that gun-free zones in certain places are "longstanding" and have "historical justifications."(fn14) Perhaps the strongest clue lies in the decisional method of both opinions, which focused almost entirely on how the public likely understood the Second and Fourteenth Amendments when they were ratified in 1791 and 1868.(fn15) To date, however, the Supreme Court has offered no further guidance on the precise scope of the right to keep and bear arms, and lower courts have begun to fill the void.(fn16)

This Article focuses on Heller's enumerated sensitive places-"schools" and "government buildings"-and begins with the premise that these terms allow some room for interpretation. In affirming the likely constitutionality of laws prohibiting the carrying of firearms in schools, did the Court intend to leave undisturbed gun bans in primary and secondary schools only or also on university campuses? In its reference to government buildings, did the Court mean to suggest that the government may act with impunity whenever it bans the carry of firearms on its property, or are there some types of public property-particularly national parks and remote lands home to dangerous wildlife-where a combination of low security risks and historical practices limits the government's authority as property owner?

This Article further assumes that the historical record will not fully resolve these interpretive issues. Indeed, as several commentators have noted, the historical pedigree of even Heller's most noncontroversial "presumptively lawful" regulations-"prohibitions on the possession of firearms by felons"(fn17)-can fairly be disputed.(fn18) Perhaps

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Heller's reference to the longstanding nature of certain presumptively constitutional gun laws was meant to convey the notion that when the American people reach a wide and longstanding consensus on the propriety of a given legislative solution, their judgment is entitled to great deference, even if their consensus occurs after the ratification of the relevant constitutional provision.(fn19) This Article offers no speculation as to how long such a consensus must exist to be considered longstanding and, recognizing also that originalism's historical inquiry has its limits,(fn20) proceeds on the assumption that lower courts will need to look to established constitutional doctrines from other areas of law for additional guidance.

Ultimately, this Article concludes that lessons from First Amendment doctrine counsel in favor of a narrow interpretation of Heller's schools and government buildings. Part II summarizes the Supreme Court's decisions in Heller and McDonald and describes how they strongly imply a robust right to armed self-defense outside the home. Part III surveys how the lower federal courts have begun to develop Second Amendment doctrine after Heller and McDonald, focusing on the different treatment they have given to Heller's presumptively valid regulations and the right to bear arms outside the home. Part IV focuses on those courts that have classified Heller's presumptively valid regulations as categorical Second Amendment exceptions, arguing that while this analogy to First Amendment unprotected speech carries some intuitive force, an expansive view of Heller's exceptions threatens to swallow Heller's general rule in favor of armed self-defense. In the First Amendment context, categories of speech that receive no constitutional protection have been kept to a very small

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number of well-defined exceptions in an effort to preserve the broad scope of the guarantee as it was understood by the ratifying public. It should be the same with Heller's sensitive places exception to the Second Amendment right of armed self-defense outside the home.

Finally, Part V demonstrates how broad themes from existing First Amendment doctrines support a restrained interpretation of even Heller's enumerated sensitive places-schools and government buildings. Specifically, Part V argues that student speech cases observe a line between the First Amendment rights of secondary and post-secondary students, and these cases indicate that college campuses generally are less sensitive than primary and secondary school classrooms. Courts therefore should not interpret Heller's schools to encompass college campuses. Furthermore, Part V argues that, as with First Amendment forum doctrine, the scope of the government's authority to regulate the carry of firearms on its property should depend on the character of the property at issue...