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The United States Supreme Court, in the case of New York State Rifle and Pistol Association v. Bruen, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022), held a New York statute requiring a showing of a special need to obtain a license to carry firearms was unconstitutional. While the Second Amendment protected “an individual’s right to carry a handgun for self-defense outside the home,” the Supreme Court recognized “the right secured by the Second Amendment is not unlimited.” In determining whether a firearm regulation is justified under the Second Amendment, Bruen would require the government to demonstrate the firearm regulation is “consistent with the Nation’s historical tradition of firearm regulation.”

In the case of Maryland Shall Issue, Inc. v. Montgomery County, 2023 U.S. Dist. LEXIS 117902 (Dist Md. 7/6/2023), Plaintiffs, individuals who have been issued permits to carry a handgun by the Maryland State Police, alleged provisions of Section 57-1.1 of the Montgomery County Code (Section 57-11) restricting the possession of firearms in or near places of public assembly violated the Second Amendment of the United States.

The regulations at issue defined “a place of public assembly” as any “place where the public may assemble, whether the place is publicly or privately owned,” including “a park; place of worship; school; library; recreational facility; hospital; community health center; long-term facility; or multi-purpose exhibition facility.” A “place of public assembly” also would include “all property associated with the place, such as a parking lot or grounds of a building.” In addition, Section 57-11 as amended would prohibit firearm possession within 100 yards of a “place of public assembly.”

Second Amendment Standing

Plaintiffs petitioned the federal district court for preliminary injunction to temporarily prohibit enforcement of Section 57-1.1 “against individuals who have been issued permits to carry a handgun by the Maryland State Police” within 100 yards of a “place of public assembly,” including parks and recreational facilities. To obtain a preliminary injunction, Plaintiffs would have to establish a likelihood of success at an upcoming trial on their Second Amendment claims. In addition, Plaintiffs were required to establish legal standing to assert their Second Amendment claims in federal district court.

Montgomery County (the County) had argued Plaintiffs lacked standing because they had not shown a sufficiently “credible threat of imminent prosecution” under Section 57-1.1. The federal district court, however, noted the County “had declined to commit to refraining from prosecuting Plaintiffs or others for violations of these restrictions.”

As described by the federal district court, standing would require Plaintiffs to demonstrate an “injury in fact”; i.e., “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” In this particular instance, Plaintiffs claimed a “concrete injury” in “violation of their Second Amendment right to carry a firearm for self-defense” because “most of the Individual Plaintiffs have Maryland firearm permits and regularly travel to, or come within 100 yards of, one or more of the ‘places of public assembly.’” As a result, Plaintiffs claimed they “face a risk of prosecution” while carrying a firearm in a park or recreational facility.

The federal district court agreed that Plaintiffs sufficiently had alleged “an actual and well-founded fear that the law will be enforced against them and thus an imminent, impending injury based on a reasonable fear of prosecution.” The court, therefore, held “Plaintiffs have established standing to challenge the restrictions on carrying firearms in public parks.”

Established Historical Analogue

In Bruen, the U.S. Supreme Court had acknowledged that present-day firearm regulations were “unimaginable at the founding,” given “unprecedented societal concerns or dramatic technological changes.” That being said, Bruen still would uphold present-day firearm regulations if consistent with the historical tradition of firearm regulation based on “reasoning by analogy.”

In applying such “analogical reasoning,” Bruen would uphold a modern firearm regulation if the government could “identify a well-established and representative historical analogue,” not necessarily a “historical twin.” In determining whether a modern firearm regulation is “relevantly similar” to an analogous historical regulation, Bruen would have federal courts consider “how and why the regulations burden a law-abiding citizen’s right to armed self-defense”:

Central to this inquiry is whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified. Analogical reasoning under the Second Amendment is neither a regulatory straitjacket nor a regulatory blank check.… 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.

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.

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 Montgomery County, in states all over the United States, prohibited 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 fire-arms” 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), Williamsport, Pennsylvania (1891), Wilmington, Delaware (1893), Reading, Pennsylvania (1897), Boulder, Colorado (1899), Trenton, New Jersey (1903), Phoenixville, Pennsylvania (1906), Oakland, California (1909), Staunton, Virginia (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.

Moreover, the court found these state wildlife provisions “restrict the carrying of firearms in the exact same way by barring the carrying of a firearm in a park regardless of what self-defense concerns might exist, and they do so for apparently similar reasons”:

Though some of the historical statutes may have prohibited firearms from parks in order to protect wildlife and property, many plainly served to advance public safety and the peaceful enjoyment of parks, such as those that also prohibited the throwing of objects in parks, including the laws that applied to parks in densely populated urban areas, such as New York, Philadelphia, Detroit and Chicago.

Accordingly, the federal district court concluded: “Plaintiffs are unlikely to succeed on the merits of their challenge to Section 57-11’s restriction on carrying firearms in parks in Montgomery County, which is also a densely populated area.”

Recreational and Exhibition Facilities

In addition, the federal district court found these historical statutes applicable to parks were similar to “Section 57-11’s restriction on carrying firearms in recreational facilities and multipurpose exhibition facilities.” In so doing, the court determined these restrictions on carrying firearms in recreational facilities and multipurpose exhibition facilities were “fairly deemed to be well-established and representative historical analogues because such facilities, like parks, are locations at which large numbers of people gather to engage in recreation.”

As cited by the federal district court, there were “historical statutes and regulations from states and territories that directly restricted the carrying of firearms in recreational facilities and multipurpose exhibition facilities”:

In the early 1800s, New Orleans, Louisiana, prohibited individuals from entering “into a public ballroom with any cane, stick, sword, or any other weapon.” (1831). Similarly, in 1852, the Territory of New Mexico prohibited firearms or other deadly weapons at balls or dances. In 1870, Tennessee prohibited the carrying of a pistol or other “deadly or dangerous weapon” at “any fair, racecourse, or other public assembly of the people.”

In 1870, Texas prohibited firearms, including “a six shooter, gun or pistol of any kind” in “a ball room, social party or other social gathering composed of ladies and gentlemen.” In 1889, the Territory of Arizona banned firearms in any “place where persons are assembled for amusement...or into any circus, show or public exhibition of any kind, or into a ball room, social party or social gathering.” In 1890, the Territory of Oklahoma prohibited arms in any “place where persons are assembled for amusement...or any circus, show or public exhibition of any kind, or into any ball room, or to any social party or social gathering.”

Accordingly, whether viewed as direct historical precedent or historical analogues, the federal district court held “these statutes and ordinances demonstrate a historical tradition of restricting the carrying of firearms in places where individuals gather for recreation or social activities such as the recreational facilities and multipurpose exhibition facilities covered by Section 57-11.”

Like Section 57-11, the federal district court found this historic tradition of laws and ordinances, in general, imposed “a comparable burden on the right to bear arms” by prohibiting “the carrying of firearms in these locations, with no exception relating to possible self-defense needs.”

As described by the court, the apparent “reasons for these historical restrictions” were to “protect individuals engaged in these recreational and social activities from confrontations and encounters involving firearms or other dangerous weapons.” Similarly, the court found the legislative intent for the prohibitions of Section 57-11 was “to address possible gun violence in or near places of public assembly.”

Accordingly, in the opinion of the federal district court, there was a “distinct foundation of historical precedent demonstrating that prohibitions on carrying firearms in public parks, places of recreation, and social gatherings” consistent with the “Nation’s historical tradition of firearm regulation” requirement in Bruen.

The court, therefore, concluded: “Plaintiffs are not likely to succeed on the merits of their challenges to Section 57-11’s prohibitions on carrying firearms in public parks, recreational facilities, and multipurpose exhibition facilities.”

100-Yard Buffer Zones

The definition of “place of public assembly” in Section 57-11 included “all property associated with the place, such as a parking lot or grounds of a building.” As a result, Plaintiffs claimed “the 100-yard buffer zone necessarily includes land outside the boundary of a parking lot or grounds” associated with a place of public assembly. Plaintiffs had, therefore, argued: “Section 57-11’s prohibition on carrying a firearm within 100 yards of a place of public assembly violates the Second Amendment right to bear arms for self-defense.”

The federal district court rejected this argument. As described by the court, the “historical record provided by the County includes numerous examples of laws prohibiting firearms in buffer zones of a certain distance around a ‘sensitive place’ or other location at which the government could prohibit the carrying of firearms.”

Following the ratification of the Fourteenth Amendment, the court noted “many municipalities prohibited the carrying of firearms within 50 or 100 yards of their parks, squares, or common areas,” including:

Philadelphia, Pennsylvania (1870) (50 yards); St. Paul, Minnesota (1888) (50 yards); Pittsburgh, Pennsylvania (1893), (100 yards); (4) Reading, Pennsylvania (50 yards); and Trenton, New Jersey (1903) (50 yards).

The court, therefore, recognized “a historical tradition of firearm regulation consisting of restrictions on carrying a firearm within a certain reasonable buffer zone around ‘sensitive places’ and ‘other locations at which firearms could be restricted.’”

Plaintiffs had argued “these historical buffer zone laws are not relevantly similar historical analogues because they were not necessarily enacted to restrict the right to self-defense,” but “enacted to protect wildfowl and other wildlife.” The federal district court disagreed. In the opinion of the court, “the laws restricting the carrying of firearms in parks, and the corresponding buffer zone provisions, were not enacted solely to prevent poaching or hunting”:

Where several apply to parks in distinctly urban settings, and many specifically refer to prohibitions on both carrying a firearm and throwing any projectile or missile without regard to whether the action endangers birds or wildlife, it is clear that these laws were enacted in whole or in part to promote public safety and the ability of visitors to use the park for recreation without the potential for violence or other disturbances.…

Under the plain language of these statutes, individuals were prohibited from bringing a firearm into a park or carrying one within the identified buffer zone distance regardless of whether they had any intention to hunt or poach in the park.

According to the court, like Section 57-11, these historical regulations “imposed absolute restrictions on the right to carry a firearm for self-defense in such areas.” As characterized by the court, these “historical examples of buffer zone statutes” justified the “same burden on Second Amendment rights” as Section 57-11’s 100-yard buffer zones. As a result, the federal district court concluded, “Plaintiffs are unlikely to succeed on the merits of their challenge to Section 57-11’s 100-yard buffer zones.”

Sufficiency of Historical Record

In addition, Plaintiffs had argued the County has not identified a sufficient number of historical statutes in support of its argument because the historical record of statutes submitted was “from states or territories that encompass a low percentage of the total population of the United States.”

However, as noted by the federal district court: “Bruen did not establish a minimum threshold for the number of statutes that must be identified as part of the historical analysis to support the conclusion that a present firearm restriction is consistent with the Nation’s historical tradition of firearm regulation.” On the contrary, the court found the Supreme Court in Bruen had “acknowledged that certain locations are properly construed as ‘sensitive places’ at which the carrying of firearms may be prohibited based on only a limited number of historical examples.”

Accordingly, in this particular instance, the federal district court held “the number of statutes and ordinances identified by the County” was sufficient to be considered analogous under Bruen to many of the “places of public assembly” covered by Section 57-11. Moreover, the court noted Bruen “did not impose any specific requirement that the historical statutes considered must have applied to a certain number of states or a certain percentage of the relevant population.”

Conclusion

Having found Plaintiffs had not established “a likelihood of success on the merits of the claims” that the County’s ordinance violated the Second Amendment, the federal district court denied Plaintiffs’ motion for a Temporary Restraining Order and a Preliminary Injunction. As a result, the County could enforce Section 57-11 pending full trial proceedings to consider the merits of Plaintiffs’ claims.

On July 10, 2023, Plaintiffs filed an appeal of the federal district court’s decision in the United States Court of Appeals for the Fourth Circuit. On July 24, 2023, Montgomery County responded to Plaintiffs’ appeal motion.

See also: History Justifies ‘Gun Free’ Public Park Resources?, James C. Kozlowski, Parks & Recreation, May 2023, Vol. 57, Iss. 5; Gun Permittees 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).