Government as Proprietor, and the Second Amendment

United States v. Dorosan (unpublished), decided Wednesday by the Fifth Circuit, upholds a ban on bringing handguns onto U.S. Postal Service property. Here’s the key legal discussion:

First, the Postal Service owned the parking lot where Dorosan’s handgun was found, and its restrictions on guns stemmed from its constitutional authority as the property owner. See U.S. Const. art. IV, § 3 cl. 2; United States v. Gliatta, 580 F.2d 156, 160 (5th Cir. 1978). This is not the unconstitutional exercise of police power that was the source of the ban addressed in Heller. See 128 S. Ct. at 2787-88 (noting the laws in question “generally prohibit[ed] the possession of handguns” anywhere in the city).

Moreover, the Postal Service used the parking lot for loading mail and staging its mail trucks. Given this usage of the parking lot by the Postal Service as a place of regular government business, it falls under the “sensitive places” exception recognized by Heller. See Heller, 128 S. Ct. at 2816-17 (holding that “nothing in our opinion should be taken to cast doubt on … laws forbidding the carrying of firearms in sensitive places such as schools and government buildings ….”).

Finally, the Postal Service was not obligated by federal law to provide parking for its employees, nor did the Postal Service require Dorosan to park in the lot for work. If Dorosan wanted to carry a gun in his car but abide by the ban, he ostensibly could have secured alternative parking arrangements off site. Thus, Dorosan fails to demonstrate that § 232.1(l) has placed any significant burden on his ability to exercise his claimed Second Amendment right.

The reasoning, I’m afraid, is pretty sketchy; it may well be, for instance, that the Second Amendment rule applicable to the government acting as proprietor should be less protective than the rule applicable to the government acting as sovereign, controlling behavior on private property. That’s certainly so in large measure for the First Amendment, the Fourth Amendment, and substantive due process. But it doesn’t follow that there’s no protection offered by the Second Amendment there; that, I think, should take more argument. Nor is it clear that the “sensitive places” exception from Heller should cover parking lots as well as buildings — Heller itself, of course, was quite opaque about the scope of this exception, but I wish that courts applying it went into somewhat more analysis about what makes a place “sensitive” enough to justify gun bans. (For my further, though inconclusive, thinking on this sort of restriction, see Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1529-33 (2009) (PDF pages 87-91). For my criticism of appeal to the federal government’s constitutional powers as a justification for restricting constitutional rights, see here.)

This is an unpublished opinion, and unpublished opinions are often sketchy because they’re not intended to be precedential. But these days unpublished opinions are often quite influential, especially in the absence of published opinions on point. Plus I would think that the question of the Second Amendment on government property, which has not been discussed much by circuit courts, and in particular by the Fifth Circuit, is the sort of new issue that should indeed merit a published opinion.

Note that the last paragraph I quoted from the opinion suggests that the Fifth Circuit might well be open to the claim that the Second Amendment protects a right to carry on public streets and sidewalks, or at least in one’s car on public streets. The court’s conclusion here is simply that this right is not materially burdened by requiring gun carriers to park off property (and thus walk unarmed from their car to the lot).