The new law also bans carrying firearms on public transportation, in a city where some 3 million people ride the subway on weekdays. Can we say how the Supreme Court might view such a sweeping restriction? We know gun rights advocates have already filed a legal challenge.
The sensitive locations with respect to public transportation, it’s really an issue I’m watching. On the one hand, people need to travel within the city, and this is obviously going to impair their ability to carry a gun. On the other hand, the interior of a jet aircraft is also a sensitive place, and I can’t believe that the court will end up saying that you can carry a loaded gun onto a jet airplane. These are two forms of transportation where people are densely packed, and the distinction that the court might have to make will be somewhat difficult, especially on the transportation sensitive locations.
The new law also assumes that firearms are prohibited on private property — that is, unless the owner posts clear and conspicuous signs allowing firearms. How common is that – a kind of default assumption that firearms are not welcome?
Well, in some ways it simply codifies what the general default rule is in many states: The property owner can exclude, unless the category is forbidden — such as excluding somebody on the basis of race or religion or some other protected class. The private property owner can say you have to wear shoes or a shirt to come into this property, and if you don’t wear shoes or a shirt, you’re not allowed to be in the property – and if you stay on the property , you’re committing a trespass. It’s just the default on firearms is being switched: If you want guns on the property, you have to advertise that, as opposed to what other states do, which is to say quite the opposite, which is, you have to ban the guns or declare that the place is not suitable for having guns.
You recently wrote in the New York Times that the fate of gun laws across the country will depend more than ever on the whims of federal judges. What do you mean by that? And where do you see this debate going?
The court has said that you can figure out what places can be designated sensitive locations where guns are prohibited by analogizing to historical regulation. For example, in the majority opinion in the New York gun case, courthouses and polling places are considered sensitive by historical analogy. But going back to the jet airplane example, I’m not sure in what way a jet airplane is sensitive in the same way that a polling place or a courthouse is. And so, it’s going to be a kind of rule by analogy that might be inscrutable to 300 million people that these decisions are going to govern.
Professor Miller, thank you for joining us.