Citation

Charles JD, Blocher J, Miller DAH. N. Y. Univ. Law Rev. 2024; 99: 438-452.

Copyright

(Copyright © 2024, New York University School of Law)

DOI

unavailable

PMID

unavailable

Abstract

In the wake of the Supreme Court's transformative decision in New York State Rifle & Pistol Association v. Bruen, courts are now confronted with new questions about where guns can be restricted and what justifications support those regulations. This Essay urges that the development of the doctrine governing location-based prohibitions should focus as much on the why as the where. Instead of simply isolating each location and considering the historical pedigree of gun restrictions in that place, judges should evaluate the reasons behind the sensitive places doctrine itself. We aim to recenter these first order questions to avoid haphazard doctrinal development that threatens to leave Second Amendment law incoherent and unpredictable.

Judges developing the doctrine will need to avoid several pitfalls. Among them: historical analogies pitched too narrowly, neglect of sensitive location mobility, and excessive focus on locational features rather than regulatory justifications. Whatever values ultimately underpin the doctrine, they should direct the shape of location-based challenges. Whether the doctrine is grounded in safeguarding the exercise of other constitutional rights, protecting the vulnerability of specific populations, recognizing the inhibited judgment or discretion of those gathered, or other values altogether, this Essay shows why justificatory and constitutional foundations must be set before the doctrinal structure is completely built.

Available at SSRN: https://ssrn.com/abstract=4325454