Jonathan Goldstein (University of Pennsylvania Carey Law School) has posted The Post Office Was the General Store: Sensitive Functions, Absent Premises, and the Post-Office Carry Ban on SSRN. Here is the abstract:
Modern law begins from an inverted premise: the armed citizen in the post office is treated as the problem, and the gun-free federal building as the timeless baseline. The history runs the other way. It is not that the post office sat inside a store and therefore could not be sensitive. At the founding, nearly everything sat inside a store or a tavern: the Congress of the Confederation sat in the French Arms Tavern, the War Office in Fraunces Tavern, and the Supreme Court above an open-air market. The building never carried the rule. What carried the rule was the function. The founding generation designated sensitive occasions rather than sensitive addresses—Delaware in 1776 disarmed “the said elections,” and Virginia in 1786 disarmed the man who came before “the justices of any court . . . doing their office”—and it never designated the mail. It could not have. The Post Office Acts of 1792 and 1825 gave the Postmaster General no premises to regulate; they required only that “every deputy postmaster shall keep an office,” a duty that ran to the man and not to the room. There would be no federal Supervising Architect until 1852 and no Division of Post Office Quarters until 1916. After New York State Rifle & Pistol Ass’n v. Bruen, the government bears the burden of producing a founding-era tradition that would justify disarming the law-abiding citizen at the post office. It must therefore produce a tradition of regulating premises the sovereign did not possess. This Article marshals the affirmative record—the Postal Service’s own institutional history, federal historic-site nominations, the surviving account books of merchant-postmasters, and the practice of a postal system that itself carried, mailed, and guarded arms—and shows that the post office is among the poorest available candidates for a founding-era “sensitive place.” The burden is the government’s, and on this record it cannot carry it.
Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum