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The National Gold Medal Award Program is governed and administered by the American Academy for Park and Recreation Administration in partnership with NRPA. The National Gold Medal Award honors public park and recreation agencies and state park systems throughout the United States and armed forces recreation programs worldwide that demonstrate excellence in long-range planning, resource management and innovative approaches to delivering superb park and recreation services with fiscally sound business practices.

The Fairfax County Park Authority in Northern Virginia (FCPA) is a nationally acclaimed, award-winning organization that has received the Gold Medal Award numerous times over past decades of operation and growth.

Fairfax County, Virginia, is an urban-suburban community that maintains 420 parks across 23,632 acres in the County (the Parks). County Parks receive about 12 to 16 million visitors each year, a quarter of whom are children. In 2022, more than 100,000 individuals under the age of 18 participated in events registered with the County in the Parks, as did more than 83,000 in 2023. These numbers made up most of the more than 43,000 registrants for 1,372 different summer camps hosted in County Parks. In 2023, more than 47,000 students participated in 830 school field trips and sports activities in County Parks.

FCPA runs several popular amusements in the Parks, including minigolf, a carousel and a train ride. FCPA also operates eight golf courses in the Parks, which together generated more than $16 million in 2023.

Firearms Prohibition Ordinance

In the case of Lafave v. County of Fairfax, 2024 U.S. Dist. LEXIS 152000 (E.D. Va. 8/23/2024), Plaintiffs with valid concealed handgun permits challenged a Fairfax County Ordinance that restricted their ability to carry firearms in Fairfax County Parks.

On September 16, 2020, Fairfax County adopted Fairfax County Code § 6-2-1 (the Ordinance) which, in pertinent part, prohibited the “possession, carrying, or transportation of any firearms, ammunition, or components or combination thereof” in “any public park owned or operated by the County, or by any authority or local government entity created or controlled by the County.”

Notice of the ordinance was required to be posted “at all entrances of any public park owned or operated by the County.” In addition, if an officer encountered someone with a firearm and verified proper signage, the ordinance required the officer to “first seek voluntary compliance” before “initiating any citation or arrest.” Violations of the ordinance would “constitute a Class 1 misdemeanor.”

Second Amendment Complaint

On November 22, 2023, Plaintiffs filed a civil action in federal district court challenging the Ordinance under the Second Amendment of the Constitution of the United States. In their complaint, Plaintiffs alleged the Ordinance violated their Second Amendment right to bear arms in the Parks. In so doing, Plaintiffs alleged the County Parks have “vast acreage” that “do not constitute sensitive places.” Moreover, Plaintiffs claimed the Parks Restriction deprived them of “acting in self-defense in the places identified in the Ordinance,” in particular County Parks.

The federal district court found Plaintiffs who otherwise possess valid licenses to carry firearms in public had legal standing to challenge the Parks Restriction Ordinance because they faced a credible threat of arrest based upon their intent to carry their firearms in County Parks.

Second Amendment Case Law

The issue before the federal district court was the constitutionality of the Parks Restriction Ordinance under the Second Amendment. As cited by the federal district court, the Second Amendment states, in its entirety: “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.”

According to the court, a series of Supreme Court cases since 2008 have guided the analysis of the Second Amendment’s right to bear arms. In particular, the court cited the opinion of the Supreme Court in District of Columbia v. Heller, 554 U.S. 570, 635 (2008), which had held the Second Amendment protected “the rights of ordinary, law-abiding citizens to possess handguns inside the home for self-defense” and this right did “not depend on the citizen’s service in the militia.” The Heller decision, however, recognized that this right to bear arms was “not limitless and expressly recognized that history supported a limit on the right to bear arms in ‘sensitive spaces,’ like schools and government buildings.”

In 2022, the Supreme Court decided New York State Rifle and Pistol Association v. Bruen, 597 U.S. 1, which held the Second Amendment “protected an individual’s right to carry a handgun for self-defense outside the home.” In Bruen, the Supreme Court established the following analysis that centered on the Second Amendment’s text and history:

[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct, at which point the challenged regulation is unconstitutional unless the government can show that the regulation is consistent with this Nation’s historical tradition of firearm regulation. 

While Bruen had recognized “the Second Amendment guarantees a general right to public carry for self-defense,” including handguns which “were in common use for self-defense,” the federal district court acknowledged “the Ordinance governs the activity of carrying guns in County Parks which are public places.”

Applying Bruen jurisprudence, the federal district court would, therefore, first require Plaintiffs to establish that the Second Amendment’s text presumptively protected the conduct the County seeks to regulate with the Ordinance, i.e., carrying guns in County Parks. In this particular case, the court characterized the Plaintiffs as three “ordinary, law-abiding, adult citizens,” who wish to carry their “concealed handguns” in the Parks for self-protection.

Accordingly, in the opinion of the federal district court, “the Second Amendment’s ‘right to keep and bear arms’ presumptively guarantees Plaintiffs’ right to bear arms in County Parks for self-defense.” Consistent with Bruen, the County would, therefore, have to “bear the burden of showing that the Parks Restriction in the Ordinance is consistent with this Nation’s historical tradition of firearm regulation.”

When analyzing the Nation’s historical tradition of firearm regulation, the Bruen decision held “a modern firearms regulation need not be a dead ringer for historical precursors.” Instead, in the opinion of the Supreme Court, modern firearm regulations would “pass constitutional muster so long as it is ‘analogous enough’ to historical tradition.” Bruen further noted “a proper analogue for a distinctly modern firearm regulation would require a determination of whether the two regulations are relevantly similar”:

In applying this analogical, relevantly similar approach, courts should uphold a modern law if, in comparison to historical regulations, the law imposes a comparable burden on the right of armed self-defense and the burden is comparatively justified.

Under Bruen, the Supreme Court had further held “silence in the historical record does not automatically render a modern law unconstitutional under the Second Amendment.” Rather, in addressing a Second Amendment issue, the Supreme Court directed federal courts to “consider how and why a modern law burdens the right to self-defense.”

Controlling Historical Period

In conducting the required historical analysis, Bruen acknowledged an “ongoing scholarly debate” whether “the most controlling period for the historical analysis” was “1791, when the Second Amendment was first adopted as a constraint on the federal government” or “1868, when the Fourteenth Amendment made the Second Amendment applicable to state and local governments.”

In this case, Plaintiffs had proposed restricting the historical analysis “to the Founding Era, when the Second Amendment was enacted.” The federal district court, however, found the required historical analysis under Bruen “favored a more flexible approach” that would examine “a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification.” In particular, Bruen had noted “public-carry restrictions proliferate” after “the ratification of the Second Amendment in 1791.” Accordingly, in deciding Bruen, the Supreme Court had “analyzed both Founding Era and Reconstruction Era history and tradition.”

Founding Era Tradition

In the opinion of the federal district court, this “nuanced approach to analyzing the Founding Era firearm regulations” under Bruen supported “the Parks Restriction because a historical tradition exists of restricting firearms in places where citizens gather in public.”

In so doing, Bruen had cited the 1323 Statute of Northampton prohibition against guns in fairs and markets, which had been adopted in the Founding Era by firearm prohibitions in Virginia and North Carolina. Similarly, the federal district court found “Reconstruction Era prohibitions on guns in public forums and places of assembly in Texas, Tennessee, and Missouri”:

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.

Accordingly, in the opinion of the federal district court, the “Founding Era history” supported “the Ordinance in how it restricts the use of firearms in gathering spaces like public parks.” Moreover, the court found the “why behind the Parks Restriction also adheres to history and tradition.” As described by the court, “colonial laws showed a history of accepting harsh gun restrictions based on popular opinions on what was frightening or dangerous”:

The Virginia 1786 Statute prohibited going armed “in other places, in terror of the County.” This language was evidence that, during the Founding Era, citizens believed a prohibition on armed carry was necessary to prevent terror among Virginia residents — just as Defendants seek to prevent terror among park visitors.

Unprecedented Societal Concerns

According to the court, these “historical burdens on the right to bear arms during the Founding Era” were unrelated to “an unprecedented social issue that did not exist during the Founding Era.” For “cases implicating unprecedented societal concerns,” Bruen would, therefore, require a more nuanced approach” to the required historical inquiry:

If a societal condition did not exist in the relevant period a court is examining, then self-evidently there will be no historical firearms laws addressing that condition in that period, making the consideration of later history particularly crucial. Thus, firearms prohibitions about societal conditions that did not exist at the founding, like with the County’s Parks, demand a more expansive approach to historical analogy.

In this case, the federal district court found evidence of a “historical analogue of preventing terror in the community.” In particular, according to the court, a 2022 County survey had illustrated the “chilling effects” of guns in County Parks on the County’s citizens use of those spaces.

As result, the federal district court found the County had shown that “the Parks Restriction relates to an unprecedented social issue that did not exist during the Founding Era.” The court, therefore, held the County had “otherwise satisfied its burden of proving that the Ordinance satisfies this Nation’s history and tradition from the Founding Era of prohibiting firearms in areas for public gatherings, such as parks.”

Historical Evidence

In determining the Park Restriction Ordinance was consistent with the Nation’s history and tradition, the federal district court cited the following evidence concerning “prohibitions on guns in parks in the 19th century”:

Beginning in 1858, regulations in Central Park and in Brooklyn Prospect Park prohibited guns…. Next, in 1868, Philadelphia enacted legislation prohibiting firearms in Fairmount Park… San Francisco followed suit in 1872… in Golden Gate Park. In 1873, the city of Chicago forbade “all persons” from “carrying firearms within any one of the public parks.”

Later, throughout the 1870s, Buffalo, New York; St. Louis, Missouri; Phoenixville, Pennsylvania; and Danville, Illinois, all enacted legislation prohibiting, in some way or another, guns in parks. Gun restrictions in parks continued to proliferate in the 1880s and 1890s.

In addition, the federal district court noted the County had submitted historical evidence indicating numerous “prohibitions on guns in parks in the 19th century [which] were also enacted for similar reasons as the Ordinance”:

Citing over 116 prohibitions on guns in parks from 1858 to 1936, Defendants have met their burden of showing the Ordinance’s congruity with this Nation’s history and tradition of regulating firearms in modern parks.

Moreover, similar to the Park Restriction Ordinance, the court noted “all these firearm restrictions were adopted by local governments like the County” and “enacted for similar reasons as the Ordinance.”

Parks as “Recreational Refuge”

As described by the court, “modern parks were created partly because there were no spaces for relaxation available and that the idea of ‘passive recreation’ derived from Romanticism and urban expansion.” In response, the court found modern parks were designed to provide “safety, peace, and tranquility” in a “recreational refuge.” According to the court, “the development of the parks themselves came from the desire to retreat from the city, to be in touch with nature, and to cure societal problems”:

Parks became a haven for patrons from the cities that were believed to be filled with disease, poverty, crime, and other societal issues. Consequently, gun restrictions were part of a larger effort to protect these spaces for the betterment of society… [and] protect individuals engaged in these recreational and social activities from confrontations and encounters involving firearms.

As a result, the court found 19th century gun prohibitions were created to protect spaces for leisurely activities, which were analogous to a park’s gun prohibition. In the opinion of the federal district court, Fairfax County’s Parks were similarly “intended to serve as havens for its residents” and the reason “why guns are and were prohibited in parks” consistent with “the Nation’s history and tradition”:

The County Parks are used by children and adults for many activities, not limited to school field trips, sports activities, camping, hiking, Earth Day celebrations, election-related activities, protests, and more.

Accordingly, in the opinion of the federal district court the Park Restriction Ordinance, which restricted the right to bear arms in public parks designated for recreation, was aligned with how “the Nation has historically restricted the right to bear arms in public parks.” The federal district court, therefore, held Fairfax County had “satisfied its burden of proving that the Ordinance reflects this Nation’s history and tradition of prohibiting firearms in parks from the Reconstruction Era to the present.”

In making this determination, the federal district court noted the Park Ordinance did not restrict the right to bear arms throughout the County, only within County Parks. Accordingly, since the Ordinance only effected a gun ban, in particular, public places (i.e., County Parks), the federal district court found individuals would still be allowed “to preserve an undiminished right of self-defense by not entering those places.”

Parks as “Sensitive Places”

In Bruen, the Supreme Court had also instructed federal courts to “use analogies to historical regulations of ‘sensitive places’ to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.” In so doing, courts would consider whether a modern regulation would “cover a sensitive place consistent with spaces that are historically ‘sensitive’ as applied to the Second Amendment.”

The Supreme Court had identified well-settled “sensitive places” where gun prohibitions are consistent with the Second Amendment absent a history and tradition of gun regulation in these places, such as schools, government buildings, legislative assemblies, polling places and courthouses. In addition, the Supreme Court also has expressly permitted courts to evaluate new areas of firearm regulation through the lens of the approved sensitive places doctrine.

In this case, the federal district court found the Ordinance regulated firearms in County Parks, “which are analogous to recognized sensitive spaces,” in particular schools:

About 4 million children visited County Parks in 2023. Over 43,000 of the 4 million children registered for summer camps at the Parks. Summer camps have many of the same characteristics as schools, a well settled sensitive place. Summer camps have the same purpose of providing education and socialization to children and protecting children in those spaces.

The County also operates three preschools in County Parks, expressly making them sensitive places. Additionally, over 43,000 students participated in school trips to the Parks, reinforcing that the Parks are used as a space to educate and protect children.

In addition, the federal district court noted “the Parks Restriction narrowly restricts firearms in the Parks; it is not a general prohibition on the public right to carry, which right remains in 90.6 percent of the County.”

Since “the County’s Parks are analogous to schools and other sensitive places,” the federal district court concluded the Parks Restriction satisfied “constitutional muster” without regard for “analogues to the Nation’s history and tradition of gun regulation.” As a result, the federal district court held “the Parks Restriction fits within the constitutionally based sensitive places jurisprudence.”

Conclusion

Having found the Park Restriction Ordinance, Fairfax County Code § 6-2-1, to be constitutional under the Second Amendment, the federal district court granted the motion for summary judgment in favor of Defendant County of Fairfax, effectively dismissing Plaintiffs’ lawsuit.

SEE ALSO: “Urban Parks Tradition of Firearm Regulation,” James C. Kozlowski, Parks & Recreation, April 2024, Vol. 58, Iss. 4; “Uncertain Firearm Tradition in Nation’s Parks,” James C. Kozlowski, Parks & Recreation, November 2023, Vol. 57, Iss. 11; “Historical Tradition of Firearm Regulation in Public Parks,” James C. Kozlowski, Parks & Recreation, October 2023, Vol. 57, Iss. 10; “Does History Justify ‘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, March 2017, Vol. 51, 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).