November 2023 - Parks & Recreation - 31

ordinance and one state law is
sufficient to find that there was a
national historical tradition of prohibiting
the carrying of firearms in
parks at the time of the Fourteenth
Amendment's ratification. "
Additionally, the court
noted
" the ten most populated cities reviewed
by the Maryland district
court, New York City, Chicago,
Philadelphia,
Detroit,
Wilmington, Trenton,
Birmingham,
quire the State to produce " analogies
to those historical regulations
of 'sensitive places,' " including
" firearms to be prohibited in parks
and beaches. "
St. Paul,
Oakland,
and Williamsport,
amounted to roughly 9.3 [percent]
of the total population of the United
States in 1900. "
Sensitive Locations
The State had argued further " the
nature of public parks and beaches
clearly demonstrates that they are
sensitive locations " because " children
and families congregate at
parks and beaches. " Similarly, the
State contended " parks and beaches
often host crowded gatherings,
like concerts, fairs, competitions,
and cultural exhibitions, and they
are places where important expressive
activities occur. "
In the opinion of the federal district
court, " beaches, parks, and
their adjacent parking areas are
public areas " in which " the carrying
of firearms in those areas is
covered by the plain text of the Second
Amendment. " As a result, under
Bruen, the court acknowledged
" the burden shifts to the State to
offer evidence that § 134-A(a)(9) is
consistent with this Nation's historical
tradition of gun regulation. "
The federal district
court acknowledged
the Supreme Court
in Bruen had recognized " firearms
can be prohibited in 'sensitive
places' consistent with the Second
Amendment. " To do so, however,
the Second Amendment would reAnalogous
Sensitive
Locations
Accordingly, the federal district
court noted the State had tried to
draw an analogy to modern gun
regulations with a history of gun
regulations in parks. In so doing,
however, the State had conceded
" there were no modern-style parks
in the era of the Second Amendment "
because the " creation of
parks " began in " the middle of the
nineteenth century. "
In the absence of Second
Amendment-era parks,
the
federal
district court would then
" determine whether modern regulations
prohibiting the carry of
firearms in new and analogous
sensitive places are constitutionally
permissible. " In so doing, the
court would ascertain " whether
modern and historical regulations
impose a comparable burden on
the right of armed self-defense
and whether that burden is comparably
justified. " In particular,
the court would consider whether
there was " a historical tradition of
gun regulation, at the time of the
Second Amendment's ratification,
limiting public carry at parks " in a
manner similar in modern parks.
In the opinion of the federal
district court, " parks around 1791
were not comparable to modern
parks. " Further, the federal district
court found the State had failed
to produce evidence that " there
was a historical tradition of prohibiting
the carrying of firearms
in parks " during the time of the
Second Amendment's ratification
in 1791, which is " sufficiently
analogous " to parks today.
State Population
Percentage
In the opinion of the federal district
court, the public understanding
of the right to carry firearms
in public was similar in both 1791,
when
the
Second
Amendment
right to keep and bear arms was
adopted, and 1868 when the Second
Amendment was applied to
the States through adoption of the
Fourteenth Amendment. Further,
the
court acknowledged: " Laws
restricting the carrying of firearms
have been described by some legal
scholars as being 'widely enacted'
by 1867. " The court, however, noted
many of these " widely enacted "
laws were enacted in " territories
rather than States. " As a result, the
federal district court indicated it
might reasonably " discount these
laws because the majority national
population resided in the States
and not in the territories " :
Bruen seems to dismiss any
law enacted unless it was done in
a State where a significant percentage
of the people, insofar as
they counted as living in the United
States, resided at the time that
the Fourteenth Amendment was
enacted.
In determining " a national historical
tradition
of prohibiting
carrying firearms in parks, " the
federal district court, however, acknowledged
Bruen had not considered
" what percentage that must
be reached to find national representation
and whether the general
population of the United States
must be considered when, presumably,
there were at least some states,
cities, or counties that did not have
parks at the time. "
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November 2023 - Parks & Recreation

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