Urban Parks’ Tradition of Firearm Regulation

March 28, 2024, Department, by James C. Kozlowski, J.D., Ph.D.

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In the case of Antonyuk v. Chiumento, 2023 U.S. App. LEXIS 32492 (2nd Cir. 12/8/2023), the United States Court of Appeals for the Second Circuit had to determine whether a public parks provision in newly enacted New York Concealed Carry Improvement Act (“CCIA”) violated the Second Amendment. Plaintiffs included several individuals who had previously been issued a concealed-carry license for their firearms.

The Second Amendment in the U.S. Constitution provides: “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.” The Supreme Court of the United States has held the Second Amendment protects the “individual right to keep and bear arms for self-defense in case of confrontation,” which was “not limited to service in an organized militia.” The Second Amendment is “fully applicable to the States” through the 14th Amendment.

The Bruen Rule

In the case of New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022) the Supreme Court of the United States held the Second Amendment required the government to justify the regulation of firearms by “demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” In effect, the Second Amendment, therefore, protects the right of individuals to keep and bear weapons in common use and “fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons.” Accordingly, in Bruen, the Supreme Court set out a new “test rooted in the Second Amendment text, as informed by history.” In so doing, the Court noted: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.”

That being said, the Supreme Court in Bruen acknowledged: “courts must be particularly attuned to the reality that the issues we face today are different than those faced in medieval England, the Founding Era, the Antebellum Era, and Reconstruction.” The Second Amendment was adopted in 1791 and the 14th 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 were only two statutes. Moreover, in the opinion of the district court, these two statutes were not representative of an established tradition because the combined population of these two states was only 6.6 percent of the U.S. population at the time.

In addition, the district court noted that neither cited state statute specifically prohibited carriage in public parks. While both states had “presumably contained at least some public parks at the time of the statute’s passing,” the district court held “this lack of a specific prohibition weighed against finding a tradition of firearm regulation in public parks.”

Assuming the city ordinances cited by the State “established any tradition of regulation at all,” the district court would further limit this tradition of firearm regulation to “public parks in a city not those outside of cities.” While acknowledging numerous city ordinances did “lend support to prohibiting the carriage of firearms in urban public parks,” the district court held these ordinances “did not set forth a well-established or representative tradition because the total population of the five cities in question accounted for only 6.8 percent of the population of the Nation at the time.”

Accordingly, the district court rejected “the idea that the ordinances, when combined with the state statutes, could together demonstrate a well-established and representative tradition of prohibiting firearms in urban public parks” because “the combined populations of the cities and states (13.4 percent) was under 15 percent of the national population.”

As a result, the district court held the State had failed to “locate § 265.01-e’s prohibition on carriage in public parks” within “the Nation’s tradition of firearm regulation” as required by Bruen. The district court, therefore, issued a preliminary injunction which enjoined enforcement of this state law in public parks. The State appealed this decision.

Federal Appeals Court

On appeal, the State argued its analogues did indeed show a history and tradition consistent with § 265.01-e. As characterized by the State, the cited historical analogues demonstrated “the well-established tradition of regulating firearms in quintessential public forums, such as fairs and markets.” Accordingly, the State claimed the government was justified in “regulating firearms in public parks, which today often serve as public forums.” As cited by the State, this tradition “reaches as far back as a 1328 British statute forbidding going or riding armed by night or by day, in fairs, markets.”

In addition, the State referenced “at least two Founding-era states [Virginia 1786 and North Carolina 1792] and several Reconstruction-era states [that] replicated this type of law,” including: Texas 1870, Missouri 1883, Tennessee 1869, Arizona 1889 and Oklahoma 1890. According to the State, “where challenged, these laws and subsequent amendments were upheld as constitutional by state courts.” In addition, the State cited “eight city ordinances prohibiting firearms in city parks which were passed shortly after the time that parks emerged as municipal institutions.”

The State further contended § 265.01-e(2)(d) was analogous to “the same state laws establishing a tradition of firearm regulation in public forums” that were “quintessentially crowded places such as fairs and markets.” In addition, the State claimed § 265.01-e(2)(d) “endeavors to protect children who often frequent public parks from firearms and is thus consistent with the tradition of regulating firearms in areas frequented by children.”

The federal appeals court agreed with the State that § 265.01-e(2)(d) was indeed “within the Nation’s history of regulating firearms in quintessentially crowded areas and public forums, at least insofar as the regulation prohibits firearms in urban parks, though not necessarily as to rural parks”:

Considering, then, that the law has a plainly legitimate sweep as to urban parks, the facial challenge fails notwithstanding doubt that there is historical support for the regulation of firearms in wilderness parks, forests, and reserves.

Contrary to the district court’s conclusion, the federal appeals court, therefore, held the following:

[T]he State has made a robust showing of a well-established and representative tradition of regulating firearms in public forums and quintessentially crowded places, enduring from medieval England to Reconstruction America and beyond.

History of Public Forum Protection

In reaching its conclusion, the appeals court noted “regulations ensuring peaceable assembly have a long history in Anglo-American jurisprudence,” including “a history of general prohibitions on armaments in public forums.” That being said, “in interpreting our own Constitution,” the appeals court acknowledged “it is better not to go too far back into antiquity.” The appeals court, however, found this particular case was one in which the “evidence shows that medieval law survived to become our Founders’ law”:

Here, the State has shown that at least two states, Virginia and North Carolina, passed statutes at the Founding that replicated the medieval English law prohibiting firearms in fairs and markets, i.e., the traditional, crowded public forum.

Moreover, the appeals court noted: “The tradition of regulating firearms in quintessentially crowded places was continued throughout the history of our Nation in Reconstruction.”

In addition to the “territories of Oklahoma and Arizona,” the appeals court further recognized three states (Texas, Missouri and Tennessee), which had “passed laws prohibiting weapons in public forums and crowded places, such as assemblies for educational, literary or scientific purposes, or into a ball room, social party or other social gathering.” Further, the appeals court took particular note of the fact that “the state courts of all three states that had such laws upheld this type of statute as constitutional.”

As characterized by the appeals court, these state courts had, therefore, effectively held “the Nation not only tolerated the regulation of firearms in public forums and crowded spaces, but also found it aberrational that a state would be unable to regulate firearms to protect the duties and proprieties of social life in such spaces.”

Accordingly, in the opinion of the appeals court: “This long, unbroken line, beginning from medieval England and extending beyond Reconstruction, indicates that the tradition of regulating firearms in often-crowded public forums is part of the immemorial custom of this nation.”

Municipal Parks Firearm Tradition

In addition to showing that there existed a well-established and representative state tradition of firearm regulation in public spaces, the State also had referenced eight municipal examples in Chicago; Detroit; New York City; Philadelphia; Pittsburgh; Salt Lake City, Utah; St. Paul, Minnesota; and St. Louis, Missouri. The appeals court agreed that the State had indeed demonstrated a “municipal tradition of regulating firearms in urban public parks” in these eight cities:

The proliferation of these urban public park regulations between 1861 and 1897 coincides with the rise of public parks as municipal institutions over the latter half of the 19th century. While only 16 parks were created before 1800, following the success of New York’s Central Park, cities across the United States began building parks to meet recreational needs of residents.

Moreover, during the second half of the 19th century, the appeals court noted “Frederick Law Olmsted and his partners who planned Central Park designed major parks or park systems in thirty cities.” As these “urban public parks took root as a new type of public fo rum,” the appeals court found “cities continued the tradition of regulating firearms in historical public forums, such as fairs and markets, to likewise keep these new public spaces, urban parks, peaceable.”

In addition, the appeals court noted: “None of those city ordinances were invalidated by any court; indeed, we have not located any constitutional challenges to any of them.” Having found “no disputes regarding the lawfulness of such prohibitions,” the appeals court concluded it was “settled that these locations were ‘sensitive places’ where arms carrying could be prohibited.”

Urban Population Percentages

As described by the appeals court, “the overwhelming evidence of an otherwise enduring American tradition” was also apparent in “the percentage of the urban population that was governed by city park restrictions” on firearms:

By 1890, four of the five most populous cities prohibited firearms in their urban parks, and Brooklyn’s incorporation into New York City in 1896 would result in all five of the most populous cities having such prohibitions. (New York, Chicago, Philadelphia, Brooklyn, and St. Louis).

Those cities alone numbered over 4.9 million people, at a time when only 14 million Americans lived in a city with more than 25,000 inhabitants, resulting in at least 37.7% of the urban population living in cities where firearms were prohibited in their parks.

Accordingly, the federal appeals court held “the State’s wealth of evidence” was indicative of “a well-established, representative, and longstanding tradition of regulating firearms in places that serve as public forums and, as a result, tend to be crowded.”

Consistency With Tradition

While the State had demonstrated a “well-established and representative analogues” for regulating firearms in parks, the federal appeals court acknowledged “the contemporary regulation it seeks to defend must also be ‘consistent’ with the tradition established by those analogues.” Accordingly, the “straightforward inquiry” before the federal appeals court was whether “§ 265.01-e’s prohibition on firearms in urban parks is consistent with this Nation’s tradition.” In the opinion of the federal appeals court, § 265.01-e did indeed demonstrate a “consistency with the Second Amendment”:

It is obvious that § 265.01-e burdens Second Amendment rights in a distinctly similar way (i.e., by prohibiting carriage) and for a distinctly similar reason (i.e., maintaining order in often-crowded public squares) as do the plethora of regulations provided by the State, many of which specifically applied to urban public parks.

Militia in Boston Commons

In response, Plaintiffs had argued “the former use of Boston Commons and similar spaces as gathering grounds for the militia undermines a tradition of regulating firearms in urban public parks.” The federal appeals court rejected this argument:

[T]he use of the Boston Commons for organized and disciplined militia exercises and mustering hardly supports the notion that public recreational parks (to the extent the Commons can be so characterized) were considered appropriate places for ordinary citizens to be armed outside the context of such military purposes.

In so doing, the federal appeals court also rejected Plaintiffs’ description of the Boston Commons as “the Nation’s first urban public park.” At the time of its origin in 1633, the appeals court characterized the Boston Commons as a “kind of grazing park space.” Moreover, the appeals court recognized “our 18th century forebears would have considered commons and greens to be public grazing areas and not places of social recreation.” According to the court, it was not until 1859 when the “modern idea of the park emerged in the 19th century” that the Boston Commons was finally considered a “public park.”

Rural Parks

In this particular instance, the federal appeals court noted “the State’s justification for § 265.01-e appears to be the same for rural as for urban parks.” The appeals court, however, found “the State’s historical analogues” for justifying § 265.01-e resembled “often-crowded public squares, i.e., fairs, markets, and urban public parks,” but not necessarily “rural parks,” which “much more resemble the commons of yore.”

Rural parks do not as neatly resemble quintessential public squares in that they are not primarily designed for peaceable assembly. As opposed to fairs, markets, or the new, urban parks of the mid-19th century, i.e., quintessential and often-crowded public spaces, the more proper analogue for rural parks based on the record before us appears to be “commons” and “wilderness areas.”

In this case, the appeals court noted the State “did not distinguish between rural and urban parks in its arguments to this Court.” The federal appeals court was, therefore, doubtful that “the evidence presently in the record could set forth a well-established tradition of prohibiting firearm carriage in rural parks.” On the other hand, the appeals court acknowledged “the State’s proffered analogues” had “set forth a well-established and representative tradition of firearm regulation in often-crowded public squares such as urban parks.”


To the extent “§ 265.01-e(2)(d) applied to urban parks,” the federal appeals court, therefore, held the State had demonstrated the challenged regulation was “within a National tradition of regulating firearms in often-crowded public squares, including, specifically, city parks.” Having found § 265.01-e(2)(d) was consistent with the Second Amendment under the Bruen rule, the federal appeals court vacated the district court’s preliminary injunction, thus allowing enforcement of the CCIA in public parks pending further trial proceedings.

SEE ALSO: Uncertain Firearm Tradition in Nation’s Parks, James C. Kozlowski, Parks & Recreation, November 2023, Vol. 58, Iss. 11; Historical Tradition of Firearm Regulation in Public Parks, James C. Kozlowski, Parks & Recreation, October 2023, Vol. 58, Iss. 10; Does History Justify ‘Gun Free’ Public Park Resources?, James C. Kozlowski, Parks & Recreation, May 2023, Vol. 58, Iss. 5; Gun Permitees Challenge Park Firearm Regulations, James C. Kozlowski, Parks & Recreation, March 2017, Vol. 52, Iss. 3.

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