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In the case of New York State Rifle and Pistol Association v. Bruen, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022), the United States Supreme Court held the Second Amendment would require the government to demonstrate the firearm regulation is “consistent with the Nation’s historical tradition of firearm regulation.” In so doing, the Supreme Court did not provide clear guidance to the lower federal courts regarding what laws would constitute relevant evidence to establish the required “historical tradition of firearm regulation” in the nation’s public parks. As a result, until the Supreme Court provides such clear guidance, as described herein, one can expect continued disagreement among the lower federal courts whether existing firearm regulations in public parks are consistent with the Second Amendment.

Second Amendment Jurisprudence

Ratified in 1791, the Second Amendment reads: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. CONST. amend. II.

In 2008, the Supreme Court in District of Columbia v. Heller held that the Second Amendment “guarantees the individual right to possess and carry weapons in case of confrontation.” 554 U.S. 570, 592, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). The Supreme Court, however, emphasized that “the right secured by the Second Amendment is not unlimited,” including “longstanding prohibitions on the possession of firearms” in “sensitive places such as schools and government buildings.” In 2010, the Supreme Court in McDonald v. City of Chicago held the Second Amendment rights recognized in Heller were incorporated against the States through the Fourteenth Amendment. 561 U.S. 742, 791, 130 S. Ct. 3020, 177 L. Ed. 2d 894.

In the case of New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111, 213 L. Ed. 2d, 387 (2022), the issue before the U.S. Supreme Court was “whether a firearm regulation is consistent with the constitutional protection of the Second Amendment to carry handguns publicly for self-defense.” In Bruen, the Supreme Court held the Constitution presumptively protects conduct that is covered by the plain text of the Second Amendment. Moreover, to justify governmental regulation of Second Amendment conduct, “the burden is on the government to establish that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Bruen, however, acknowledged a constitutional gun regulation exception for an exclusion of firearms in traditionally “sensitive places.”

Further, in determining whether a regulation is consistent with this Nation’s historical tradition of firearm regulation, a federal court would analyze how the government’s historical evidence applies to new circumstances within the context of “the Second Amendment’s historically fixed meaning.” In so doing, the federal court would determine “whether a historical regulation is a proper analogue for a distinctly modern firearm regulation,” which burdens ‘a law-abiding citizen’s right to armed self-defense’” under the Second Amendment:

Analogical reasoning requires only that the government identify a well-established and representative analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.

Hawaii Parks’ Gun Prohibition

On June 2, Hawaii Governor Josh Green, M.D., had signed into law Hawaii Senate Bill No. 1230 — a bill for an act relating to firearms. The Act was passed “to clarify, revise, and update Hawaii’s firearms laws to mitigate the serious hazards to public health, safety, and welfare associated with firearms and gun violence, while respecting and protecting the lawful exercise of individual rights.”

In pertinent part, the Act prohibited a person with a state or federal firearm license to “intentionally, knowingly, or recklessly carry or possess a loaded or unloaded firearm, whether the firearm is operable or not, and whether the firearm is concealed or unconcealed” while in any of the following locations and premises within the State, in particular:

[a]ny beach, playground, park, or adjacent parking area, including any state park, state monument, county park, tennis court, golf course, swimming pool, or other recreation area or facility under control, maintenance, and management of the State or a county, but not including an authorized target range or shooting complex.

In the case of Wolford v. Lopez, 2023 U.S. Dist. LEXIS 138190 (Dist. Haw. 8/8/2023), Plaintiffs, individuals who had been issued a permit to possess and carry a firearm under state law, sought a temporary restraining order (TRO) to enjoin the State of Hawaii from enforcing certain provisions of this recently enacted statute, which included a handgun prohibition in parks and beaches and their adjacent parking areas. Haw. Rev. Stat. § 134-A(a)(9). Any person in violation of the law would be “guilty of a misdemeanor.” To enjoin enforcement of the Act, Plaintiffs would have to establish a likelihood of success in upcoming trial proceedings on the merits of their Second Amendment claim.

Federal Court Opinion Disagreement

In support of the Act, the State had argued “there is a robust historical tradition of restricting guns in places like parks and beaches” citing a very recent District of Maryland case, Maryland Shall Issue, Inc. v. Montgomery County, Civil Action No. TDC-21-1736, 2023 U.S. Dist. LEXIS 117902, 2023 WL 4373260 (D. Md. July 6, 2023).

As described by the federal district, the opinion in “Maryland Shall Issue” had found a historical basis for “a Maryland regulation prohibiting the carrying of firearms at public parks, recreational facilities, and multipurpose exhibition facilities”:

After reviewing some historical laws, the district court concluded that those laws “demonstrate that there is ‘historical precedent’ from before, during, and after the ratification of the Fourteenth Amendment that ‘evinces a comparable tradition of regulation’ of firearms in parks.”

The federal district court disagreed with the Maryland district court’s finding in the “Maryland Shall Issue” opinion. In the opinion of the court, the laws reviewed in “Maryland Shall Issue” failed to demonstrate “a national historical tradition of prohibiting carrying firearms in parks,” which would “support § 134-A(a)(9)’s restriction on publicly carrying firearms in parks and on beaches.”

In this earlier case, the Maryland district court had relied on an 1857 ordinance that stated “all persons are forbidden to carry firearms or to throw stones or other missiles” within Central Park in New York City. A similar 1870 law enacted by the Commonwealth of Pennsylvania was cited, which stated that “no persons shall carry firearms” in Fairmount Park in Philadelphia. In addition, an 1895 Michigan state law provided: “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. Moreover, a 1905 ordinance in Chicago, Illinois, stated “all persons are forbidden to carry firearms or to throw stones or other missiles within any of the Parks of the City.”

The Maryland district court noted similar restrictions were enacted to bar the carrying of firearms in (1) Saint Paul, Minnesota; (2) Williamsport, Pennsylvania; (3) Wilmington, Delaware; (4) Reading, Pennsylvania; (5) Boulder, Colorado; (6) Trenton, New Jersey; (7) Phoenixville, Pennsylvania; (8) Oakland, California; (9) Staunton, Virginia; and (10) Birmingham, Alabama.

On a state level, the Maryland district court found Minnesota in 1905 had 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. In 1921, North Carolina enacted a law prohibiting the carrying of firearms in both private and public parks without the permission of the owner or manager of that park.

Insufficient Historical Evidence

As characterized by this Hawaii federal district court, the Maryland district court had concluded these cited laws and ordinances “demonstrated a national historical tradition of carrying firearms in parks. In so doing, however, the Hawaii district court found the Maryland district court had ‘relied on only one local ordinance that was in effect prior to the Fourteenth Amendment’s ratification.’” The court further noted “the other sixteen laws or ordinances were passed after the Fourteenth Amendment’s ratification, and nine of those laws were passed in the twentieth century”:

Of the sixteen laws and ordinances passed after the Fourteenth Amendment’s ratification, fifteen of those were passed at least twenty years after the Fourteenth Amendment’s ratification. Put another way: out of the seventeen laws the district court reviewed, only one local ordinance was enacted before the Fourteenth Amendment’s ratification and only one state law was enacted “during” the time of the Fourteenth Amendment’s ratification.

Accordingly, the Hawaii federal district court was “not convinced that evidence of one local 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, St. Paul, Wilmington, Trenton, Oakland, Birmingham, 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 require the State to produce “analogies to those historical regulations of ‘sensitive places,’” including “firearms to be prohibited in parks and beaches.”

Analogous 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.”

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 “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 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 parking areas adjacent to parks and beaches is consistent with this Nation’s history and tradition of gun regulation,” the federal district court concluded Plaintiffs were likely to succeed on the merits of their challenge to the portions of § 134-A(a)(9) that prohibited carrying firearms at beaches, parks and their adjacent parking areas. The federal district court, therefore, granted the Plaintiffs’ motion for a TRO. The TRO would enjoin (temporarily prohibit) the State from enforcing the challenged portions of § 134-A(a)(9) that prohibited carrying firearms at beaches, parks and their adjacent parking areas.

In granting Plaintiffs’ TRO motion, the federal district court noted, however, “the State’s failure to provide sufficient evidence as to some of the challenges at this stage is not necessarily fatal at the preliminary injunction stage” of the litigation. On the contrary, the court recognized “these rulings could be changed at the preliminary injunction stage because the State may be able to proffer adequate evidence to meet its burden as to any of the challenges.”

Going forward, the State would, therefore, have an opportunity during further proceedings to provide “more evidence” that would satisfy the legal standard established in Bruen that a prohibition on carrying firearms in parks was consistent with “this Nation’s historical tradition of firearm regulation.”

See also: History Justifies ‘Gun Free’ Public Park Resources?, James C. Kozlowski, Parks & Recreation, May 2023. Vol. 57, Iss. 5; Gun Permitees Challenge Park Firearm Regulations, James C. Kozlowski, Parks & Recreation, Mar. 2017 Vol. 51, Iss. 3; Right to Bear Arms Limited in ‘Sensitive’ Public Facilities, James C. Kozlowski, Parks & Recreation, Apr. 2011 Vol. 46, Iss. 4.

James C. Kozlowski, J.D., Ph.D., is an Attorney and Professor emeritus in the School of Sport, Recreation and Tourism Management at George Mason University. Archive of articles (1982 to present).