Two days after an ISIS-inspired attacker murdered ROTC instructor Lt. Col. Brandon A. Shah at Old Dominion University — a campus operating under a weapons-free zone policy so broad it would have banned the knife ROTC students used to stop the killing — I sat down with constitutional attorney Stephen P. Halbrook to work through the hard legal question underneath the tragedy: what does it actually take for a government-mandated gun ban to survive constitutional scrutiny?
The answer Halbrook has been developing in his “Second Amendment Roundup” columns at The Volokh Conspiracy is bracing in its clarity: calling a place “sensitive” is not a constitutional incantation. It is a legal commitment — and governments are breaking it everywhere.
What Heller and Bruen Actually Said
Start with District of Columbia v. Heller, 554 U.S. 570 (2008). The issue before Justice Scalia was whether the Second Amendment protects an individual right and whether D.C.’s handgun ban survived that right. “Sensitive places” never appeared in the case’s core holding. Scalia mentioned in dicta that laws forbidding firearms in schools and government buildings are “presumptively lawful” — and as Halbrook correctly notes, “presumptively” is doing real legal work there. Presumptions can be rebutted. The list was not exhaustive. It was throat-clearing, not a ruling.
New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), authored by Justice Clarence Thomas, moved from throat-clearing to a formal constitutional test. Once a modern regulation implicates the Second Amendment right, the burden shifts to the government to demonstrate a historical tradition of analogous regulation at the time of the Founding. The Court identified three places where that historical record clearly supports arms prohibitions: legislative assemblies, polling places, and courthouses. That short list is not a springboard for novel expansions. It is the ceiling until the government provides the historical evidence to go higher.
The Security Principle: What Halbrook Actually Found
Here is where the historical record becomes dispositive, and where Dr. Angus McClellan’s 83-page empirical study on SSRN — “The Second Amendment, Sensitive Places, and Comprehensive Government Security” — fills in what the Supreme Court’s opinions assumed. McClellan documented that throughout the original states, in the period when the Bill of Rights was adopted, the Founding-era governments that declared a place “sensitive” backed that declaration with comprehensive armed security. The gun ban and the guard were a package deal.
The courthouse example is oldest and clearest. The English tradition of prohibiting arms before the King’s justices traces back to the Statute of Northampton (1328), which forbade going armed “to the terror of the people.” The operative interpretation from Sir John Knight’s Case (1686) was not a broad ban on peaceful carry — it was a prohibition on going armed in a manner calculated to terrorize. And courts, then and at the Founding, had bailiffs, sheriffs, and deputies precisely because they had stripped that personal security option from the parties appearing before them.
Halbrook put the principle plainly: “If it’s a true sensitive place, you’ve got to have security being provided by the government — not just the ability to call 911 if somebody’s trying to rape you. That doesn’t get it. That’s not security.”
The Modern Abuse: Parks, Beaches, and Business Lobbies
That constitutional exchange — your right to self-defense, traded for government-provided security — is exactly what anti-gun jurisdictions have refused to honor. Halbrook walked through the pattern: 300-acre wooded parks posted as gun-free zones. Beaches. Any indoor space open to the public.
The pending case Wolford v. Lopez, No. 24-1046, crystallizes the problem. Hawaii enacted Act 52, which presumptively bars concealed carry permit holders from carrying on any private property open to the public unless the owner posts affirmative permission. Oral argument was held January 20, 2026, and from the questions put to Hawaii’s counsel, virtually the entire conservative bloc appeared skeptical of the state’s position. The Court’s decision is expected by the end of the October 2025 Term.
The Hawaii law perfectly illustrates the abuse Halbrook describes. The state provides no security at these private businesses. It simply strips the individual’s right to self-defense and calls the resulting location “sensitive.” That is not a historical tradition. It is a label.
The Polling Place Lesson the Founders Understood
One piece of the historical record that doesn’t get enough attention: why polling places were treated as sensitive in the first place. Halbrook pointed to Delaware as a case study. During and after the Revolution, the violent conflict between patriots and Tories — burnings, killings, genuine communal warfare — created real security needs at places where those factions had to share a space. Gun restrictions at polling places were responses to documented violence, backed by the sheriff’s physical presence.
The public-voting context matters here. At the Founding, there was no secret ballot — that arrived with the Australian ballot model, first adopted in American states in the late 1880s. Voters publicly declared their choices. A polling place was a civic assembly under political tension, and the security arrangements were calibrated to that reality.
That is the constitutional model: documented threat + government-provided security = valid sensitive place. Strip out either element and you have a gun ban dressed up in legal language.
The Stakes at Old Dominion
I keep coming back to ODU. That campus maintained a weapons-free zone. No firearms. No weapons. A policy comprehensive enough, on paper, to prohibit the knife that saved lives on March 12, 2026. What the policy did not provide — what it could not provide — was an armed government presence in every classroom, every hallway, every outdoor space where Lt. Col. Shah and his students encountered their attacker.
That gap is not a policy failure. It is a constitutional failure. A government that disarms its citizens and then fails to replace that protection with genuine security has not created a sensitive place. It has created a killing field with a sign on the door.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.