April 2024 – Parks & Recreation - 30

LAW REVIEW
such as fairs and markets, to likewise
keep these new public spaces,
urban parks, peaceable. "
In addition, the appeals court
noted: " None of those city ordinances
were invalidated by any
court; indeed, we have not located
any constitutional challenges to
any of them. " Having found " no
disputes regarding the lawfulness
of such prohibitions, " the appeals
court concluded it was " settled
that these locations were 'sensitive
places' where arms carrying could
be prohibited. "
Urban Population
Percentages
As described by the appeals court,
" the overwhelming evidence of an
otherwise enduring American tradition "
was also apparent in " the
percentage of the urban population
that was governed by city park restrictions "
on firearms:
By 1890, four of the five most
populous cities prohibited firearms
in their urban parks, and Brooklyn's
incorporation into New York
City in 1896 would result in all five
of the most populous cities having
such prohibitions. (New York,
Chicago, Philadelphia, Brooklyn,
and St. Louis).
Those cities alone numbered
over 4.9 million people, at a
time when only 14 million
Americans lived in a city with
more than 25,000 inhabitants,
resulting in at least 37.7% of
the urban population living in
cities where firearms were prohibited
in their parks.
Accordingly, the federal appeals
court held " the State's wealth of
evidence " was indicative of " a
well-established,
representative,
and longstanding tradition of reg30
Parks & Recreation | APRIL 2 0 2 4 | PARK S ANDRECRE AT ION . OR G
Consistency With Tradition
While
the
analogues "
State had demonstrated
a " well-established and
representative
for
regulating firearms in parks, the
federal appeals court acknowledged
" the contemporary regulation
it seeks to defend must also
be 'consistent' with the tradition
established by those analogues. "
Accordingly, the " straightforward
inquiry " before the federal
appeals court was whether " §
265.01-e's
prohibition on firearms
in urban parks is consistent
with this Nation's tradition. " In
the opinion of the federal appeals
court, § 265.01-e did indeed
demonstrate a " consistency
with the Second Amendment " :
It is obvious that § 265.01-e burdens
Second Amendment rights in
a distinctly similar way (i.e., by
prohibiting carriage) and for a distinctly
similar reason (i.e., maintaining
order
in often-crowded
public squares) as do the plethora
of regulations provided by the
State, many of which specifically
applied to urban public parks.
Militia in Boston Commons
In response, Plaintiffs had argued
" the former use of Boston Commons
and similar spaces as gathering
grounds for the militia undermines
a tradition of regulating
firearms in urban public parks. "
The federal appeals court rejected
this argument:
[T]he use of the Boston Commons
for organized and disciplined
militia exercises and mustering
hardly supports the notion
ulating firearms in places that serve
as public forums and, as a result,
tend to be crowded. "
that public recreational parks (to
the extent the Commons can be
so characterized) were considered
appropriate places for ordinary
citizens to be armed outside the
context of such military purposes.
In so doing, the federal appeals
court also rejected Plaintiffs' description
of the Boston Commons
as " the Nation's first urban public
park. " At the time of its origin in
1633, the appeals court characterized
the Boston Commons as
a " kind of grazing park space. "
Moreover, the appeals court recognized
" our 18th century forebears
would have considered commons
and greens to be public grazing
areas and not places of social recreation. "
According to the court,
it was not until 1859 when the
" modern idea of the park emerged
in the 19th century " that the Boston
Commons was finally considered
a " public park. "
Rural Parks
In this particular instance, the
federal appeals court noted " the
State's justification for § 265.01-e
appears to be the same for rural
as for urban parks. " The appeals
court, however, found " the State's
historical analogues " for justifying
§ 265.01-e resembled " oftencrowded
public squares, i.e., fairs,
markets, and urban public parks, "
but not necessarily " rural parks, "
which " much more resemble the
commons of yore. "
Rural parks do not as neatly
resemble quintessential public
squares in that they are not primarily
designed for peaceable assembly.
As opposed to fairs, markets,
or the new, urban parks of
the mid-19th century, i.e., quintessential
and often-crowded public
April 2024 – Parks & Recreation

Table of Contents for the Digital Edition of April 2024 – Parks & Recreation
