November 2023 - Parks & Recreation - 32

LAW REVIEW
Regardless, in the opinion of
the federal district court, the
State's reliance on Maryland Shall
Issue was " unpersuasive " in establishing
" a national historical tradition
prohibiting carrying firearms
in parks " :
Based on the record before it, this
Court cannot find that the laws
and ordinances cited in Maryland
Shall Issue, which covered,
at most, less than ten percent of
the United States' population, are
sufficient to restrict this Nation's
history and tradition of an individual's
right to carry firearms in
public.
Ordinances, Not State Law
In an attempt to " demonstrate a
historical tradition of gun regulation
prohibiting the carrying
of firearms in public spaces that
were relevantly similar to parks, "
the State also had relied on an
1858 ordinance adopted by the
Board of Commissioners of New
York's Central Park prohibiting
people
from
carrying
firearms
within the park. In addition, the
State had cited an 1866 ordinance
adopted by the Commissioners
of Prospect Park in the City of
Brooklyn, New York, with a similar
prohibition as the 1858 ordinance
in New York City.
The federal district court, however,
noted: " The 1858 and 1866
ordinances were local ordinances,
not state laws, passed by the respective
board of commissioners,
both within New York. " As characterized
by the court: " Local ordinances
reflect the citizenry's values
in the most basic and essential
way. " That being said, the court,
however, noted " state laws were
silent about permissible conduct
in the parks " at that time since
32 Parks & Recreation | NOVEMBER 2 0 2 3
" the parks were under local, not
state, governance. "
Moreover, as described by the
court, the State also had cited
these two New York ordinances
to establish " a historical tradition
of prohibiting carrying firearms
in parks. " The court, however,
noted these two ordinances were
" enacted by one of the most populous
states at the time " and " the
two ordinances reflect only New
York's historical tradition of gun
regulations " in New York City
and Brooklyn.
The State also had referenced
an 1868 Pennsylvania law prohibiting
people from carrying or
shooting birds in Fairmount Park
in Philadelphia. While these ordinances
may have " established
a tradition of regulating carrying
firearms in certain parks in Pennsylvania
and New York, " the federal
district court could not conclude
that " these laws sufficiently
establish this Nation's historical
tradition of gun regulation in
parks by 1868 " :
Taking these [New York] laws
into account along with the 1868
Pennsylvania law, the State's evidence
establishes that, at the time
of the Fourteenth Amendment's
ratification in 1868, only about
4 [percent] of this Nation had a
historical tradition of prohibiting
carrying firearms in parks.
The federal district court noted
the State also had cited numerous
local ordinances that regulated
firearms in parks from 1872
through 1886. Since these local
ordinances were passed after the
Fourteenth Amendment's ratification
in 1868, the federal district
court found itself " constrained "
by Bruen in " giving post enactment
history more weight than it
| PARK S ANDRECRE AT ION . OR G
can rightly bear " in determining
" the Nation's historical tradition
of gun regulation at the time of
either the Second Amendment's
ratification
or
the
Fourteenth
Amendment's ratification. "
As a result, the federal district
court concluded " the State has
offered few relevant laws " to meet
the government's Second Amendment
" burden in establishing that
§ 134-A(a)(4) is consistent with
this Nation's historical tradition
of gun regulation. "
Public Safety Concerns
The State also had argued " the
interest in protecting public safety
strongly weighs against issuing
a TRO because of the dangers
and safety concerns associated
with firearms. " In response,
Plaintiffs had provided " statistics
of people with concealed carry
permits to support the proposition
that people with concealed
carry permits are significantly
less likely to commit gun-related
crimes. " While acknowledging
" the State raises important safety
concerns, " the federal district
court found the State had failed
to " demonstrate that the public
safety
concerns
overcome
the
public's interest in preventing
constitutional violations " :
The public has an interest in
preventing constitutional violations,
and the State has not established a
factual basis for the public safety
concerns regarding permit-carrying
gun-owners who wish to exercise
their Second Amendment right to
carry a firearm in public.
Conclusion
Having found the State had not
provided " any evidence that prohibiting
carrying firearms in park
November 2023 - Parks & Recreation

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