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

Abstract

Although the Supreme Court in Heller strongly suggested that the Second Amendment protects a right to armed self-defense outside the home, it carved out an enigmatic exception to this right: the government may prohibit weapons in "sensitive places such as schools and government buildings." 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. By its mention of "schools," did the Supreme Court mean 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 armed self-defense 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? Building on a growing body of scholarship that has looked to the First Amendment as a guidepost for mapping out the boundaries of the post-Heller Second Amendment, this Article demonstrates how the Court's public-forum and student-speech doctrines caution against an expansive reading of Heller’s enumerated sensitive places. The Supreme Court has held that students do not forfeit the First Amendment's core protections when they step onto campus, and it has also suggested that adult college students enjoy broader free speech rights than do students in primary and secondary schools. The Supreme Court also has held that the government's ownership of property does not automatically entail the power to prohibit free speech activities, and on certain types of public property historically open for speech and expression, the public enjoys broad First Amendment rights. Moreover, even in nonpublic forums where the government enjoys broad discretion to curtail speech, it cannot engage in viewpoint discrimination. These First Amendment principles suggest that the Second Amendment's core right to armed self-defense, in some form, might be available to adult students at public universities and to the general public on certain types of public property where armed self-defense historically has been permitted, such as national parks and remote lands that are home to dangerous wildlife.