April 2024 – Parks & Recreation - 28

LAW REVIEW
were only two statutes. Moreover,
in the opinion of the district court,
these two statutes were not representative
of an established tradition
because the combined population
of these two states was only
6.6 percent of the U.S. population
at the time.
In addition, the
district court
noted that neither cited state statute
specifically prohibited carriage
in public parks. While both states
had " presumably contained at least
some public parks at the time of
the statute's passing, " the district
court held " this lack of a specific
prohibition weighed against finding
a tradition of firearm regulation
in public parks. "
Assuming the city ordinances
cited by the State " established any
tradition of regulation at all, " the
district court would further limit
this tradition of firearm regulation
to " public parks in a city not those
outside of cities. " While acknowledging
numerous city ordinances
did " lend support to prohibiting
the carriage of firearms in urban
public parks, " the district court
held these ordinances " did not
set forth a well-established or representative
tradition because the
total population of the five cities
in question accounted for only 6.8
percent of the population of the
Nation at the time. "
Accordingly, the district court
rejected " the idea that the ordinances,
when combined with
the state statutes, could together
demonstrate a well-established
and representative tradition of
prohibiting firearms in urban public
parks " because " the combined
populations of the cities and states
(13.4 percent) was under 15 percent
of the national population. "
As a result, the district court held
the State had failed to " locate §
265.01-e's prohibition on carriage
in public parks " within " the Nation's
tradition of firearm regulation "
as required by Bruen. The
district court, therefore, issued a
preliminary injunction which enjoined
enforcement of this
state
law in public parks. The State appealed
this decision.
Federal Appeals Court
On appeal, the State argued its
analogues did indeed show a
history and tradition consistent
with § 265.01-e. As characterized
by the State, the cited historical
analogues demonstrated " the
well-established tradition of regulating
firearms in quintessential
public forums, such as fairs and
markets. " Accordingly, the State
claimed the government was justified
in " regulating firearms in public
parks, which today often serve
as public forums. " As cited by the
State, this tradition " reaches as far
back as a 1328 British statute forbidding
going or riding armed by
night or by day, in fairs, markets. "
In addition, the State referenced
" at least two Founding-era states
[Virginia 1786 and North Carolina
1792] and several Reconstruction-era
states [that] replicated
this type of law, " including: Texas
1870, Missouri 1883, Tennessee
1869, Arizona 1889 and Oklahoma
1890. According to the State,
" where challenged, these laws
and subsequent amendments
were
upheld
as
constitutional
by state courts. " In addition, the
State cited " eight city ordinances
prohibiting firearms in city parks
which were passed shortly after
the time that parks emerged as
28 Parks & Recreation | APRIL 2 0 2 4 | PARK S ANDRECRE AT ION . OR G
History of Public
Forum Protection
In reaching its conclusion, the
appeals court noted " regulations
ensuring peaceable assembly have
municipal institutions. "
The State further contended §
265.01-e(2)(d) was analogous to
" the same state laws establishing a
tradition of firearm regulation in
public forums " that were " quintessentially
crowded places such
as fairs and markets. " In addition,
the State claimed § 265.01-e(2)
(d) " endeavors to protect children
who often frequent public parks
from firearms and is thus consistent
with the tradition of regulating
firearms in areas frequented by
children. "
The federal appeals court agreed
with the State that § 265.01-e(2)(d)
was indeed " within the Nation's
history of regulating firearms in
quintessentially crowded areas and
public forums, at least insofar as
the regulation prohibits firearms in
urban parks, though not necessarily
as to rural parks " :
Considering, then, that the law
has a plainly legitimate sweep as
to urban parks, the facial challenge
fails notwithstanding doubt
that there is historical support for
the regulation of firearms in wilderness
parks, forests, and reserves.
Contrary to the district court's
conclusion,
the federal appeals
court, therefore, held the following:
[T]he State has made a robust
showing of a well-established and
representative tradition of regulating
firearms in public forums
and quintessentially crowded
places, enduring from medieval
England to Reconstruction America
and beyond.

https://advance-lexis-com.mutex.gmu.edu/document/?pdmfid=1516831&crid=7e6df27c-ea50-494a-9731-f74ab73147f4&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A69TS-4CW1-JK4W-M2WK-00000-00&pdcontentcomponentid=6386&pdshepid=urn%3AcontentItem%3A69V5-W9F3-CGX8-01Y1-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=tmnyk&earg=sr0&prid=a6b66f30-d63b-4051-89c1-c48611d1ef7b

April 2024 – Parks & Recreation

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