How Sensitive Is Your Park?


Yesterday a federal judge rejected a constitutional challenge to Seattle's ban on guns in city parks, noting that the U.S. Supreme Court has not said that the Second Amendment applies to cities and states as well as the federal government. That will almost certainly change after the Court decides McDonald v. Chicago, the handgun ban case it heard last week. But since McDonald involves a blanket ban rather than restrictions on where guns can be kept or carried, the Court's ruling still will not resolve the question of whether regulations like Seattle's are consistent with the Second Amendment.

Even the challenge to the District of Columbia's ban on carrying guns in public, which I discussed in my column last week, concedes that governments may bar guns from "sensitive places such as schools and government buildings," a policy the Supreme Court has indicated is "presumptively lawful." Are parks "sensitive places," and does a ban on carrying guns in them qualify as a reasonable limitation on the right to keep and bear arms? Robert C. Warden, the Kent, Washington, attorney who challenged the Seattle ban, argues that "the purported interest, to protect children from gun violence, has no substance and no objective facts behind it." I agree that the policy seems half-baked and gratuitous. But the Court has not begun to address issues like this, and it will be interesting to see how the case law develops: What level of scrutiny will the Court apply to gun regulations, and what sort of justifications will it deem adequate?

This is like being around when the federal courts started to define the contours of the First Amendment right to freedom of speech. Eventually a whole body of law developed that indicated, among other things, which restrictions were most odious, what kind of danger was necessary to justify punishing people for speech, and what "time, place, and manner" regulations were constitutional. This is the sort of guidance George Mason law professor Dan Polsby had in mind back in 1996, when he wrote an article for Reason about what it would mean to treat the Second Amendment "as normal constitutional law." Since it was only two years ago that the Supreme Court clearly stated for the first time that the Second Amendment protects an individual right to arms, we are only beginning to find out.

The Seattle ban, in any case, is inoperative. Last month a King County judge ruled that it violates a state law pre-empting local gun controls. More on the challenge to the ban here.

[Thanks to Paul in Seattle for the tip.]