History of Gun Regulations Takes Center Stage at Fourth Circuit

The Second Amendment right to carry a gun applies in places where security isn’t provided by the government, the Fourth Circuit was told by gun rights advocates Wednesday in a case challenging Maryland restrictions.

But, in a second case argued before the same panel of the appeals court, a local Virginia government said that interpretation of the right isn’t supported by the historical record, because US Supreme Court Second Amendment precedent allows gun regulation in places where there isn’t any government security.

The US Court of Appeals for the Fourth Circuit heard two arguments—one involving Maryland’s restrictions on carrying concealed weapons and the other involving a local ordinance in Northern Virginia prohibiting guns in parks—that turned on the nation’s history and tradition of regulating guns in certain places.

Peter A. Patterson, of Cooper & Kirk PLLC, told the appeals court that Maryland’s law runs contrary to principles of self-defense established by the Supreme Court, adding that some colonial Americans were required to take guns into public places. Any rule that eviscerates the right carry a gun in public violates the Second Amendment, he argued.

Patterson acknowledged that the Supreme Court has never defined what “sensitive places” means, but said that a sensitive place is where people are already protected by the government.

John Parker Sweeney, of Bradley Arant Boult Cummings LLP, also argued for the gun rights advocates that the government can only restrict an individual’s Second Amendment rights where the government provides sufficient security. He added that there is no founding-era evidence showing that guns were banned at public demonstrations.

Maryland Restrictions

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court said that the Second Amendment right to carry a gun for self-protection may be regulated in “sensitive places.” For a restriction to be valid, there must be a history and tradition of prohibiting guns in the place sought to be regulated, it said.

A concurrence by Justice Brett Kavanaugh stressed that nothing in Bruen touched on “‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.’”

The US District Court for the District of Maryland upheld Maryland’s restrictions on carrying guns in museums, healthcare facilities, mass transit, state parks, entertainment facilities, the grounds of schools, and all government buildings.

Maryland Assistant Attorney General Ryan R. Dietrich told the Fourth Circuit Wednesday that Maryland’s various restrictions are valid because they aren’t a wholesale ban on guns. But he didn’t articulate a particular test for determining when a place is “sensitive.”

Dietrich did say that Bruen is nuanced and the government security test offered by the plaintiffs is ahistorical. Bruen allows laws that prohibit guns at polling places where there is little government security, he said.

When Dietrich was pressed again about what makes a place “sensitive” under the Second Amendment, he responded that they’re places where guns aren’t compatible with the location or the people present, like schools.

Northern Virginia Ordinance

Fairfax County, Va.'s ordinance prohibits carrying firearms in public parks and places used for public events, provided proper notice is given.

The US District Court for the Eastern District of Virginia upheld Fairfax’s regulations, saying that they bore little resemblance to regulations invalidated by the Supreme Court. The district court said that there are many regulations restricting guns in parks and that the practice extends back to the founding era. It also said that the events restriction was consistent with founding-era tradition of prohibiting guns in public-gathering places.

But, Stephen P. Halbrook of Fairfax, Va., told the Fourth Circuit that Fairfax’s ordinance is overbroad. The county has 24,000 acres of parkland with hundreds of miles of trails, which are mostly wooded areas, he said. People walking on the trails have a Second Amendment right to protect themselves, he said.

He said that the parks are mostly woods and if that’s a “sensitive place,” there’s no restriction on the rule.

Halbrook also told the appeals court that the county didn’t provide sufficient analogues, or comparator laws, dating to adoption of the Second Amendment in 1791. Any analogue dating from 1868, when the 14th Amendment was adopted making the Second Amendment applicable to the states, must relate back to 1791, he argued.

Representing Fairfax, Janet Carter of Everytown Law, said that banning guns from parks “precisely matches” over 100 laws and that the practice has historical underpinnings. The green spaces where guns were permitted during the founding period weren’t parks, she said.

Chief Judge Albert Diaz, and Judges Roger L. Gregory and G. Steven Agee comprised the panel.

Everytown Law represented Fairfax, Co. Everytown for Gun Safety, which advocates gun-safety measures, is backed by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The cases are Kipke v. Moore, 4th Cir., No. 24-1799, oral argument 5/7/25; Lafave v. Fairfax Cty., 4th Cir., No. 24-1866, oral argument 5/7/25.