Third Circuit to Benefit from New Research Linking Arms Bans to Broad Government Security
Dr. Angus McClellan has just published a substantial 151-page study titled Additional Research on Comprehensive Security and Sensitive Places. The work demonstrates that, at the time of the Founding, armed security was connected to each of Bruen’s three designated sensitive locations where the carrying or possession of arms could be restricted. Historical practice from the colonial era through the early states shows that the justification for prohibiting public access to weapons at courthouses, legislative assemblies, and polling places rested on the government’s obligation to provide genuine protection in fact. This new research complements Dr. McClellan’s broader compilation The Second Amendment, Sensitive Places, and Comprehensive Government Security, which I previously discussed.
In Wolford, the Supreme Court ruled that Hawaii’s prohibition on firearms on private property that is open to the public, unless the owner consents, commonly known as the “Vampire Rule,” violated the Second Amendment. The Court acknowledged—but did not resolve—the proposition that “on a large portion of the land within the State’s boundaries, possession of a firearm is now flatly prohibited.” That issue remains active in several states seeking to limit Bruen’s assertion that carrying permits cannot be restricted to a privileged few or denied on the basis of a claimed lack of “need.” One of those states is New Jersey, and earlier this year the Third Circuit, sitting en banc, heard oral argument on the ban in Koons v. Attorney General. A post addressing that matter can be found here.
The foundational idea behind these bans is that any location can be deemed “sensitive” if the legislature declares it so. It is often argued that mere crowding suffices, but this position collapses under the reality that many bans cover vast expanses of wooded parkland inhabited by deer and squirrels. Bruen, however, expressly rejected prohibitions on arms based on crowding and explicitly cited Manhattan as an example. Bruen did not delve into the factual historical tradition justifying gun bans in the three sites it named, because that issue had not been before the Court. This is precisely where McClellan’s research supplies the missing context.
In the introduction to Additional Research, McClellan explains the project’s aims: first, to determine whether all thirteen original colonies or early states employed armed government security personnel at the entryways of the sensitive places—courthouses and courtrooms, legislative buildings and chambers, and polling places. A secondary aim is to verify that these sites were indeed “sensitive,” in the sense that governments forbidden weapon possession there. The methodology rests on four hallmark elements in the historical record for establishing whether a site enjoyed comprehensive security: a government official assigned to the site; duties that included upholding security; the official guarding a doorway; and the official bearing a weapon. Finally, a “sensitive place” is defined as one in which arms were prohibited. The study gathers sources showing where bans were enacted and provides evidence that those places were secured.
McClellan’s work is, indeed, expansive and is supported by hundreds of footnotes. Weapons were not universally banned at every such site, but they could be prohibited; the central point is that these locations were safeguarded by government personnel. To illustrate the findings, the following entries serve as representative examples for each sensitive site.
Courthouses. During the Aaron Burr trial, General James Wilkinson was disarmed inside the courtroom by the U.S. marshal to prevent him from intimidating the jury. This incident signals that weapon bans in courtrooms were possible or actual, and that government officers were present to enforce them. Wilkinson, a high-ranking U.S. Army officer, had previously conspired with Burr to raise an army to seize Spanish territory, but later turned against Burr and testified against him. At the grand jury hearing, the foreman, John Randolph of Roanoke, alerted the marshal upon seeing Wilkinson bearing a sword (1807).
Legislative assemblies. The Philadelphia Convention was inaccessible to civilians, with armed sentinels directing access to the hall from both inside and outside. It is also noted that it was standard practice for legislative bodies to convene in secret (1787).
Polling places. In Delaware, sheriffs acted as judges of elections, with other officers charged with maintaining order and preserving the peace. Inspectors announcing votes would loudly call out the elector’s name and then deposit the ballots into a ballot box (1772).
The pattern is consistent: when the government required citizens to lay down their arms, it also supplied protection in return. There were times when the government compelled citizens to arm themselves, such as in colonial times when attending church.
“Sensitive places” were not intended to function as an unbounded license. In Koons, Judge Paul Matey challenged the New Jersey counsel to consider whether the phrase “sensitive places” in Heller should be treated as a broad, doctrinal label—comparable to terms like large-capacity magazines or assault weapons—that regulators might loosely apply to justify historical claims. Instead, the remaining principle drawn from history is the existence of government-provided security. As Judge Matey framed it: “at least one example of what it means could be places where government provided comprehensive security, right. And so we would know that that courthouse, a military base, these are places where … going armed was severely restricted. I mean, isn’t that a helpful way of thinking about this?” The State’s position was that such history simply does not exist, but the record suggests otherwise.
Without a security-limiting principle, there is neither security nor a guiding norm. The Fourth Circuit in Kipke v. Moore sustained Maryland’s prohibitions on carrying in transit spaces, parks, hospitals, museums, stadiums, and casinos on theories of “crowdedness” and “vulnerability”—the very rationales Bruen rejected when applied to Manhattan. Judge Agee, in dissent, labeled the sensitive-places exception as “narrow” and warned that the majority was effectively turning it into a license.
Comprehensive security makes sense. If the government does nothing to stop armed aggressors from entering a site, calling it a “sensitive” place loses its meaning and becomes a reckless joke. In that light, the exercise of the Second Amendment right remains the constitutionally default position.
