October 2023 - Parks & Recreation - 34

LAW REVIEW
Fourteenth Amendment 1868
Upon the ratification of the Fourteenth
Amendment in 1868, Bill
of Rights
protections
applicable
to the federal government were extended
to the States. Accordingly,
in 1868, the Second Amendment
became applicable to state firearm
restrictions through the Fourteenth
Amendment to the Constitution.
As a result, when defining individual
Second Amendment rights
applicable to the states under the
Fourteenth
Amendment, Bruen
" acknowledged that there is an ongoing
scholarly debate on whether
courts primarily should rely on the
prevailing understanding of an individual
right when the Fourteenth
was ratified in 1868 when defining
its scope. " An " open question " under
Bruen was, therefore, " whether
courts may consider only historical
sources from the time period of the
ratification of the Second Amendment
in 1791, " or primarily consider
" historical sources from the time
period of the ratification of the
Fourteenth Amendment " in 1868.
In this particular case, the federal
district
court concluded:
" [H]istorical sources from the time
period of the ratification of the
Fourteenth Amendment are equally
if not more probative of the
scope of the Second Amendment's
right to bear arms as applied to the
states by the Fourteenth Amendment. "
In reaching this conclusion,
the court found Bruen had
held, " strictly speaking, " states are
" bound to respect the right to keep
and bear arms because of the Fourteenth
Amendment. "
The federal district court, therefore,
would " consider historical
sources from the time period of
the ratification of the Fourteenth
Amendment " in 1868.
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Park Firearm Restrictions
Post 1868
In considering Plaintiffs' challenge
to Section 57-11's restrictions on
carrying firearms in public parks,
the federal district court found " the
historical record provided by the
County demonstrates a history of
restricting firearm possession and
carrying in public parks and at locations
where large numbers of
people engaged in recreation. "
As to public parks, the court noted
that " numerous historical statutes
and ordinances from the time period
before and following the ratification
of the Fourteenth Amendment
imposed such restrictions in relation
to parks. " As described by the court,
" numerous local governments similarly
situated
to
prohibited
Montgomery
County,
in states all over the United
States,
firearms in
parks " following ratification of the
Fourteenth Amendment. The court
cited the following restrictions and
prohibitions on carrying firearms in
major American cities, including:
an 1870 law enacted by the Commonwealth
of Pennsylvania stating
that " no persons shall carry firearms "
in Fairmount Park in Philadelphia,
Pennsylvania; an 1895
Michigan state law providing that
" No person shall fire or discharge
any gun or pistol or carry firearms,
or throw stones or other missiles "
within a park in the City of Detroit;
and a 1905 ordinance in Chicago,
Illinois, stating " all persons are forbidden
to carry firearms or to throw
stones or other missiles within any
of the Parks of the City. "
In addition, the court acknowledged
similar restrictions were enacted
to prohibit the carrying of firearms
in the following jurisdictions:
Saint Paul, Minnesota (1888),
Pennsylvania
Williamsport,
| PARK S ANDRECRE AT ION . OR G
(1891), Wilmington,
(1893),
Delaware
Reading, Pennsylvania
(1897), Boulder, Colorado (1899),
Trenton, New Jersey (1903), Phoenixville,
Oakland,
California
Staunton,
Virginia
Pennsylvania (1906),
(1909),
(1910) and
Birmingham, Alabama (1917)
Similarly, the federal district
court found the following state statutes
had a historic tradition of regulating
firearms within state parks:
[I]n 1905, Minnesota prohibited
the possession of firearms within
state parks unless they were unloaded
and sealed by a park commissioner.
In 1917, Wisconsin prohibited
bringing a " gun or rifle " into any
" wildlife refuge, state park, or state
fish hatchery lands " unless it was
unloaded and in a carrying case.
As characterized by the federal district
court, like Section 57-11, these
laws " categorically bar the carrying
of firearms in parks. " In the opinion
of the court, as required by Bruen,
these state and local laws demonstrated
a " historical precedent from
before, during, and after the ratification
of the Fourteenth Amendment
that evinces a comparable tradition
of regulation of firearms in parks. "
In response, Plaintiffs had claimed
" some of these historical statutes
should be discounted because their
purpose may have been to protect
waterfowl or wildlife. " The federal
district court rejected this argument.
In the opinion of the federal district
court, this legislation provided a
" clear historical example of the exact
same type of regulation " on carrying
firearms in parks. As a result, consistent
with Bruen, the federal district
court was not required to " reason
by analogy in order to uphold a new
form of restriction that did not exist
at the time of the ratification " of the
Fourteenth Amendment.
October 2023 - Parks & Recreation

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