The assassination attempt at the White House Correspondents’ Dinner on Saturday night at the Washington Hilton is not just a security story. It is a Second Amendment story, and it provides a compelling case study for my point that unless government locks down a location with comprehensive security of the type we saw at the Hilton on Saturday night, then Americans may not be denied the right and ability to carry firearms into any location in the country. Indeed, by labeling an area a “gun-free zone” without comprehensively securing it, politicians have converted the location into a magnet for want-to-be mass murderers.
When is a Gun-Free Zone Constitutional under 2A?
The U.S. Supreme Court has explained that government may designate specific locations as “sensitive places”, which is a euphemism for government-mandated gun free zones. In stating this, the Court identified in NYSRPA v. Bruen that at the founding the three constitutionally-acceptable gun free zones were legislative chambers, courthouses and polling places. The Court then noted that the island of Manhattan today may not be declared to be a “sensitive place” just because it is crowded and the NYPD is generally present there. So, these comments by the Court have generated a debate about what constitutes a sensitive place analogous to the three locations identified in Bruen.
I argue that there is only one coherent, history-grounded theory under which the government may potentially declare a place to be a “sensitive place” and thus disarm the law-abiding Americans inside it. That theory rests on the presence of three concrete items working together to create government-provided comprehensive security, which is necessary before a place can become a constitutionally-acceptable “gun free zone.”
Government must Satisfy Three Criteria Before it May Ban Guns in a Location
First, government must ensure that there are limited points of entry into the designed gun free zone. The government has to funnel everyone through a tightly-controlled choke point, not let crowds drift in from a dozen directions. Absent this criterion, government cannot ensure that bad guys with weapons are denied entry. And without this guarantee, I do not lose my right to defend myself with firearms.
Second, government must ensure that there are metal detectors and screening at those choke points. Concealed handguns are a fact of modern life as the Supreme Court itself recognized in DC v. Heller. If the government wants to stop me from bringing my firearm into a location, it must ensure a bad guy cannot bring his into there. Otherwise the “gun-free zone” sign is a target painted on the law-abiding and that designation will have the perverse effect of making the location actually more dangerous.
Third, government must ensure the presence of armed officers to defend the unarmed people inside. Sometimes overt, like uniformed officers at the door; sometimes covert, like a U.S. Marshal or a Federal Air Marshal in plain clothes. The state must step up and defend me with arms if it is preventing me from defending myself with weapons. And we know guns stop crime, which is why our political, religious and business elites surround themselves with men with guns.
Federal courthouses and TSA checkpoints are the clear illustrations of these three criteria being deployed to make a location a constitutionally-permissible government-mandated gun free zone: those locations have limited entry points, comprehensive weapons screening, and armed officers. When the government does not provide all three, it has no constitutional warrant to strip ordinary citizens of the means to defend themselves.
The Washington Hilton on Saturday provides another case study. The venue had those three elements in place, and the attacker was stopped at the perimeter rather than reaching the main dining room. It was that comprehensive security that thwarted the attack from becoming a mass casualty event. But if that location had been designated a “gun free zone” without providing for comprehensive security, all the attendees would have been placed at grave risk.
Justice Thomas, Marbled Halls, and our Two-Tiered Republic
A huge problem for 2A advocates in the context of the legal debate about what constitutes a “sensitive-place” analogous to those identified by the Supreme Court in Bruen is that the people writing the “gun free zone” laws already enjoy comprehensive security. Justice Clarence Thomas captured this point a decade ago in his dissent from the denial of certiorari in Peruta v. California (2017), the case that set the stage for the Court’s recognition five years later in Bruen, that the Second Amendment protects the right to carry in public for self-defense.
Justice Thomas wrote:
“For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous.”
That is the whole quarrel in one sentence. Justices, members of Congress, and the President move through buildings with limited entry, magnetometers, and armed officers as routine architecture. The woman walking to her car in a parking garage at midnight does not. When a politician or judge tells her she may not carry a firearm in some broad swath of public life, he is projecting his own armed bubble outward and assuming everyone else lives inside it. They do not. The Second Amendment was written for the people outside the marbled halls, not the few inside them.
Closing
Comprehensive security as outlined here is the only constitutional foundation for any “sensitive place.” When the government provides it, ordinary Americans are protected even when disarmed; when it does not, our right to bear arms is not optional and may not be denied. Without comprehensive security, legally designing an area “gun free” creates perverse incentives by ensuring that only criminals intent on ill deeds will possess firearms there.
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.