April 2024 – Parks & Recreation - 27

Amendment in 1868. Accordingly,
the Bruen Court recognized
" the lack of a distinctly similar
historical regulation, although
relevant, may not be reliably dispositive
in Second Amendment
challenges to laws addressing
modern concerns. " The Bruen
Court would, therefore, require
a " more nuanced approach " in
considering Second Amendment
challenges to governmental firearm
regulations wherein the " historical
inquiry that courts must
conduct will often involve reasoning
by analogy " :
When reasoning by analogy, a
court should ask whether the challenged
regulation and the proposed
historical analogue are " relevantly
similar " ....
[W]hether
modern
and historical regulations impose
a comparable burden on the right
of armed self-defense and whether
that burden is comparably justified
are " central " considerations when
engaging in an analogical inquiry.
The Bruen Court, however, emphasized
that " analogical reasoning "
would not require a court
to " search in vain for a historical
twin, " rather " a well-established
and representative historical analogue "
would be sufficient. Moreover,
in determining whether
" modern regulations
prohibiting
the carry of firearms in new and
analogous
'sensitive
places'
are
constitutionally permissible, " Bruen
would allow federal courts to
" use analogies to those historical
regulations of sensitive places. "
Federal District Court
In response to Bruen, the New York
state legislature enacted the New
York's CCIA, amending various
firearms-related provisions of New
York's Penal Law for " sensitive locations. "
Signed into law on July 1,
2022, the CCIA made it a crime,
even for those individuals with
concealed-carry licenses, to carry
a firearm in a number of " sensitive
locations, " including public parks.
N.Y. Penal L. § 265.01-e (1).
Plaintiffs subsequently brought
a lawsuit in federal district court
which, in part, alleged the public
park provision in the CCIA violated
the Second Amendment. The
federal district court held the conduct
proscribed by § 265.01-e(2)
(d), i.e., carriage of a firearm in
public parks, was within the plain
text of the Second Amendment.
Accordingly, under the Supreme
Court's interpretation of the Second
Amendment in Bruen, the
district court " placed the burden
on the State to establish the regulation's
consistency with the Nation's
history and tradition. "
To meet this burden, the federal
district court noted the State had
cited the following historical analogues
offered by the State:
(1) an 1870 Texas law prohibiting
firearms in " place[s] where
persons are assembled for educational,
literary or scientific purposes, "
(1870 Tex. Gen. Laws
63, ch. 46);
(2) an 1883 Missouri Law prohibiting
carriage in places where
people assembled for " educational,
literary or social purposes " and
" any other public assemblage of
persons met for any lawful purpose, "
(1883 Mo. Sess. Laws 76);
(3) an 1889 Arizona law and
1890 Oklahoma law prohibiting
carriage in any " place where persons
are assembled for amusement
or for educational or scientific purposes, "
(1889 Ariz. Sess. Laws 17,
§ 3) and (1890 Okla. Terr. Stats.,
Art. 47, § 7);
(4) ordinances in New York
City, Philadelphia, St. Paul, Detroit,
Chicago, Salt Lake City, St.
Louis, and Pittsburgh adopted between
1861 and 1897 prohibiting
carriage in public parks.
Before proceeding to the individual
history and analogue test for
public parks, the district court indicated
it would afford little weight
to territorial laws and city ordinances
that did not correspond to
sufficiently similar state laws. Likewise,
it discounted laws from the
past decade of the 19th century because
of their distance in time from
the Founding and Reconstruction.
Given these parameters, the district
court only considered: the 1870
Texas law, 1883 Missouri law, and
" to a lesser extent " the New York,
Philadelphia, Chicago, St. Louis
and St. Paul ordinances.
As characterized by the district
court, the purpose of the analogous
regulations " appears to have
been to protect people from the
danger and disturbance that may
accompany firearms. " Moreover,
the district court found these statutes
and
ordinances
burdened
Second Amendment rights by prohibiting
the carrying of firearms
" when people frequent an outdoor
location for purpose of recreation
or amusement (or travel through
such a location), especially when
children are present. "
The federal district court rejected
the State's claim that its historical
analogues supported banning carriage
in public parks. In so doing,
the district court determined that
the 1870 Texas and 1883 Missouri
laws did not demonstrate " an established
tradition " because they
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April 2024 – Parks & Recreation

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