Amicus Briefs Filed in Challenge of Montgomery County Sensitive Places'

USCA4 Appeal: 23-1719 Doc: 32-1 Filed: 08/28/2023 Pg: 1 of 41
No. 23-1719
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MARYLAND SHALL ISSUE, INC.; ENGAGE ARMAMENT, LLC; ANDREW RAYMOND;

CARLOS RABANALES; BRANDON FERRELL; DERYCK WEAVER; JOSHUA EDGAR; I.C.E.
FIREARMS & DEFENSIVE TRAINING, LLC; RONALD DAVID; NANCY DAVID; and
ELIYAHU SHEMONY,
Plaintiffs-Appellees,
v.
MONTGOMERY COUNTY, MARYLAND,
Defendant-Appellee.
On Appeal from the United States District Court

For the District of Maryland
Case No. 8:21-cv-01736
District Judge Theodore D. Chuang
BRIEF OF AMICUS CURIAE STATE OF MONTANA AND

18 OTHER STATES SUPPORTING PLAINTIFFS-APPELLEES
AND REVERSAL
AUSTIN KNUDSEN CHRISTIAN B. CORRIGAN
Montana Attorney General Solicitor General
MONTANA DEPARTMENT OF JUSTICE PETER M. TORSTENSEN, JR.
215 North Sanders Assistant Solicitor General
P.O. Box 201401 Counsel for Amicus Curiae
Helena, MT 59620-1401 State of Montana
Phone: (406) 444-2026
[email protected]
[email protected]
TABLE OF CONTENTS
TABLE OF AUTHORITIES...............................................................................ii
INTERESTS OF AMICI CURIAE ....................................................................... 1
SUMMARY OF ARGUMENT ............................................................................ 2
ARGUMENT.................................................................................................. 4
I. The County fails to show that its places-of-public-assembly
restrictions align with this Nation’s historical tradition of
firearm regulations. ......................................................................... 7
A. The County’s limited historical evidence, far removed from the
founding, fails to establish a historical tradition of similar
place-of-worship restrictions. ...................................................... 9
B. The County’s reliance on late-nineteenth century statutes and

local ordinances fails to support a historical tradition of public-
carry bans in public parks. ........................................................ 16
C. The County fails to produce relevantly similar historical public

carry restrictions in recreational and multipurpose exhibition
facilities and public libraries. .................................................... 23
D. Buffer zones surrounding non-“sensitive places” are

categorically unconstitutional, and the constitutionality of
those surrounding “sensitive places” is dubious. ...................... 29
CONCLUSION ............................................................................................. 31
CERTIFICATE OF COMPLIANCE ................................................................... 35
CERTIFICATE OF SERVICE .......................................................................... 35
i
TABLE OF AUTHORITIES
CASES
Andrews v. State,
50 Tenn. 165 (1871) ...................................................................... 25-26
Atkinson v. Garland,
70 F.4th 1018 (7th Cir. 2023) ...................................................... 10, 18
District of Columbia v. Heller,
554 U.S. 570 (2008) ................................................................... passim
English v. State,
35 Tex. 473 (1872) ............................................................ 13, 26, 28-29
Gamble v. United States,
139 S. Ct. 1960 (2019) .................................................................. 31-32
Heller v. District of Columbia,
670 F.3d 1244 (D.C. Cir. 2011) ..................................... 8, 12, 13-14, 26
Hill v. State,
53 Ga. 472 (1874) ............................................................................... 13
Konigsberg v. State Bar of Cal.,
366 U.S. 36 (1961) ............................................................................... 4
Koons v. Platkin,
2023 U.S. Dist. LEXIS 85235 (D.N.J. May 16, 2023) ................. 17-18
McDonald v. City of Chi.,
561 U.S. 742 (2010) ....................................................................... 1, 32
N.Y. State Rifle & Pistol Ass’n v. Bruen,
142 S. Ct. 2111 (2022) ............................................................... passim
Range v. Att’y Gen.,
69 F.4th 96 (3d Cir. 2023) ................................................................. 14
United States v. Daniels,
2023 U.S. App. LEXIS 20870 (5th Cir. Aug. 9, 2023) ....................... 22
ii
Wolford v. Lopez,
2023 U.S. Dist. LEXIS 138190 (D. Haw. Aug. 8, 2023) .................... 21
Young v. Hawaii,
896 F.3d 1044 (9th Cir. 2018) ..................................................... 13, 26
STATUTES AND ORDINANCES

Acts of Assemb. Relating to Fairmont Park,
§21.II (1870) ........................................................................... 18, 20-21
A Digest of the Ordinances of Town Council of
the Borough of Phoenixville, §1(4) (1906) ........................................ 20
A Digest of the Laws & Ordinances, Reading,
Pa. §20(8) (1897) ............................................................................... 19
Amends. to Chi. Revised Mun. Code, ch. XLV,
art. I, §1562 (1905) ............................................................................. 19
Annual Reps. of the City Officers & City Boards
of the City of Saint Paul, Minn., §7 (1888) ....................................... 20
Ariz. Terr. Sess. Laws, Act No. 13, §3 ........................ 14-15, 24-25, 28
Charter of the City of Wilmington, Del.,
pt. VII, §7 (1893) ................................................................................ 20
City of Trenton, N.J., Charter & Ordinances,
§8 (1903) ............................................................................................ 20
Code of the City of Birmingham, Ala., ch. XLIV,
§1544 (1917) ...................................................................................... 19
Code of the City of Staunton, Va., ch. II, §135 (1910) ..................... 19
First Annual Rep. on the Improvement of the
Central Park, New York (1857 .................................................... 16, 20
Ga. Acts & Resolutions, Gen. Assemb., Sess.,
Act No. 285, §1 (1870) ........................................................................ 11
Gen. Digest of Ordinances & Resolutions, New
Orleans, La., art. 1 (1831)) ............................................................... 24
iii
Gen. Mun. Ordinances of the City of Oakland,

Cal., §9 (1909) ................................................................................... 20
Gen. Ordinances of Columbia, Mo., ch. XVII,
§163 (1890) ......................................................................................... 16
Laws & Ordinances, Williamsport, Pa., §1(21) (1891) ..................... 19
Mich. Local Acts, Reg. Sess., §44 ................................................ 18, 22
Minn. Laws, ch. 344, § 53 (1905) ..................................................... 18
Mont. Gen. Laws, ch. XXXV, §3 (1903 ........................................ 28, 29
Montgomery Cnty. Code § 57-1 (2022) ................................................ 2
Montgomery Cnty. Code § 57-11(a) (2022) .......................................... 2
Mo. Gen & Local Laws, 28th Gen. Assemb.,
Reg. Sess. §1 (1875) ........................................................................... 11
Mo. Rev. Stats., 30th Gen. Assemb., vol. 1, ch. 24,
art. I, §1274 (1879) ....................................................................... 28, 29
N.C. Sess. Laws, Pub. Laws Extra Sess., ch. 6,
§3 (1921) ...................................................................................... 19, 22
N.M. Terr. Laws, Second Legis. Assemb., §3 (1852) ................. 24, 25
Revised Ordinances, Boulder, Colo., §511 (1899) ............................. 19
Revised Ordinances of Huntsville, Mo., §1 (1894) ............................ 16
Okla. Terr. Stats., ch. 25, art. 47, §§1, 2, 7 (1890) .................... 15, 25
Okla. Terr. Stats., ch. 25, art. 45, §7 (1893) ..................................... 28
Tex. Gen. Laws, 12th Leg., Called Sess., ch. XLVI,
§1 (1870) ................................................................................ 11, 24, 28
Tenn. Acts, 36th Gen. Assemb., First Sess., ch. XXII,
§2 (1870) ............................................................................................ 24
Va. Acts & Joint Resolutions, Gen. Assemb., 2d Sess.,
ch.7, §21 ............................................................................................. 11
iv
Wis. Sess. Laws, ch. 668, §29.57(4) (1917)) ................................. 18-19
Publications
David B. Kopel & Joseph G.S. Greenlee, The ‘Sensitive
Places’ Doctrine, 13 Charleston L. Rev. 205, 289 (2018) ........ 7, 27, 29-30
Eugene Volokh, State Constitutional Rights to Keep
and Bear Arms, 11 Tex. Rev. L. & Pol. 191, 215 (2006) ....................... 14
William Baude, Constitutional Liquidation,
71 Stan. L. Rev. 1, 13–14 (2019) .......................................................... 8-9
v
INTERESTS OF AMICI CURIAE
Just over a year ago, the Supreme Court again reminded lower
courts that the right to keep and bear arms “is not ‘a second-class right,
subject to an entirely different body of rules than the other Bill of Rights
guarantees.’” N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111,
2156 (2022) (quoting McDonald v. City of Chi., 561 U.S. 742, 780 (2010)
(plurality op.)). Even so, district courts across the country, including the
district court here, continue to defer to legislative “judgments regarding
firearm regulations” despite Bruen’s declaration that “judicial deference
to legislative interest balancing … is not [the] deference that the Consti-
tution demands.” Id. at 2131. Rather, “‘the right of law-abiding, respon-
sible citizens to use arms’ for self-defense” stems from a balance struck
by the American people that demands courts’ “unqualified deference.” Id.
(quoting District of Columbia v. Heller, 554 U.S. 570, 635 (2008)).
To be sure, courts may 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 constitution-
ally permissible.” Id. at 2133. And that analogical inquiry requires
courts to determine whether a modern and historical regulation are

“relevantly similar”—that is, whether they impose a comparable burden
and are comparably justified. Id. at 2132–33. To ensure that courts
properly employ the “nuanced approach” that Bruen’s analogical inquiry
requires, the States of Montana, Alabama, Alaska, Arkansas, Georgia,
Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Mis-
souri, Nebraska, South Carolina, South Dakota, Texas, West Virginia,
and Wyoming (“Amici States”) submit this amicus brief in support of
Plaintiffs-Appellants. Amici States urge this Court to reverse the deci-
sion below.
SUMMARY OF ARGUMENT
In its current form, Section 57 of the Montgomery County Code pro-
hibits the sale, transfer, or possession of firearms “[i]n or within 100
yards of a place of public assembly.” Montgomery Cnty. Code §57-11(a)
(2022). As relevant here, Section 57 defines “place of public assembly” as
a list of enumerated locations, including a publicly or privately owned
“park,” “place of worship,” “school,” “library,” “recreational facility,” “mul-
tipurpose exhibition facility,” or “childcare facility.” Id. §57-1. And each
“place[] of public assembly” includes “all property associated with the
place, such as a parking lot or grounds of a building.” Id.
2
Plaintiffs Maryland Shall Issue, Inc. (“MSI”), Engage Armament,
LLC, I.C.E. Firearms & Defensive Training, LLC, and eight individuals,1
allege that these place-of-public-assembly restrictions violate their “con-
stitutional right to bear arms in public for self-defense.” Bruen, 142 S.
Ct. at 2156.2 The district court denied MSI’s motion for preliminary in-
junction in its entirety, finding either that MSI lacked standing to assert
certain claims or that it was unlikely to succeed on the merits. JA834–
864.
Contrary to the district court, the County failed to “affirmatively
prove that its [place-of-public-assembly] regulation [s are] part of the his-
torical tradition that delimits the outer bounds of the right to keep and
bear arms.” Bruen, 142 S. Ct. at 2127. Bruen demonstrated that the his-
torical record supports a broad right to carry a firearm in public, subject
to well-defined restrictions on the manner of carry and permissible arms,
as well as some longstanding “sensitive locations” where firearms could
1For ease of reference, the brief refers to all plaintiffs as “MSI” and to
defendant as the “County” unless otherwise indicated.
2The brief omits discussion of the prior procedural history in the case—
thoroughly summarized in the district court opinion, see JA828–832—
and instead focuses on the background relevant for this Court’s review.
3
be largely prohibited. See id. at 2133, 2138, 2150, 2156. But apart from
a handful of state laws, local ordinances, and territorial statutes enacted
during the late nineteenth century—often more than a century removed
from the founding—the historical record doesn’t show an “enduring
American tradition” of restricting the right to carry in places of worship,
public parks, recreational and multipurpose exhibition facilities, public
libraries, or in buffer zones surrounding those locations. Id. at 2155–56.
ARGUMENT
After Bruen, courts must determine whether “the Second Amend-
ment’s plain text covers an individual’s conduct.” Id. at 2126. If it does,
“the Constitution presumptively protects that conduct.” Id. And here,
the Amendment’s plain text “protects [MSI]’s proposed course of con-
duct—carrying handguns publicly for self-defense.” Id. at 2134. To jus-
tify its place-of-public-assembly restrictions, or “sensitive place” re-
strictions, the County “must demonstrate that the regulation[s are] con-
sistent with this Nation’s historical tradition of firearm regulation”—only
then “may a court conclude that [MSI’s proposed] conduct falls outside
the Second Amendment’s ‘unqualified command.’” Id. at 2126 (quoting
Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).
4
Bruen’s historical inquiry varies based on whether a challenged reg-
ulation addresses a longstanding “societal problem” or “unprecedented
societal concerns or dramatic technological changes.” Id. at 2131–32. In
both cases, courts must compare modern regulations with similar histor-
ical regulations, but the difference is the fit necessary to show that a
modern regulation aligns with our Nation’s historical tradition of firearm
regulation. See id. When a modern regulation addresses an issue that
has persisted since the eighteenth century, the modern and historical
regulations should be a close fit. See id. at 2131 (explaining that, in these
“straightforward” cases, the “lack of … distinctly similar historical regu-
lation[s]” addressing the same problem or the presence of regulations ad-
dressing it “through materially difference means” is relevant evidence
that the modern regulation is unconstitutional).
But when evaluating regulations “that were unimaginable at the
founding,” courts must employ “a more nuanced approach.” See id. at
2132. In these cases, the fit need not be so close: the government must
identify a “well-established and representative historical analogue, not a
historical twin.” Id. at 2133. Even so, Bruen’s analogical inquiry requires
courts to determine that a modern regulation is “relevantly similar” to a
5
proposed historical analogue—that is, that the “modern and historical
regulations impose a comparable burden on the right of armed self-de-
fense and … [are] comparably justified.” Id. at 2133.
Whether the modern regulation addresses longstanding or new so-
cietal problems, discerning “the original meaning of the Constitution” re-
mains the guiding light of Bruen’s analogical inquiry. Id. at 2162 (Bar-
rett, J., concurring).
To be sure, Bruen assumed that “it [was] settled” that certain loca-
tions—including schools, government buildings, and polling places—
were “sensitive places” where carrying a firearm “could be prohibited con-
sistent with the Second Amendment.” Id. at 2133. But Bruen’s list of
“settled” sensitive places omits places of worship, parks, recreational fa-
cilities, multipurpose exhibition facilities, public libraries, and buffer
6
zones, so the County must still show that these regulations are part of an
enduring American tradition of firearm regulation. 3
I. The County fails to show that its places-of-public-assembly

restrictions align with this Nation’s historical tradition of
firearm regulations.
Heller and Bruen chart the course for determining whether modern
firearm regulations are consistent with the Second Amendment’s text
and history. And that course requires courts to compare the County’s
historical evidence with the “‘historical precedent’ from before, during,
and even after the founding” to see if those historical materials show “a
comparable tradition of regulation.” Id. at 2131–32.
Even though the County’s obligation to respect MSI’s right to keep
and bear arms flows from the Fourteenth Amendment, not the Second,
3 Bruen’s (and Heller’s) omission of these locations from the list of “sensi-
tive places” suggests that they haven’t historically been viewed as “sen-
sitive places.” And some scholars are skeptical that there is a persuasive
“rationale for extending the ‘sensitive places’ doctrine to places that are
not schools or government buildings.” David B. Kopel & Joseph G.S.
Greenlee, The ‘Sensitive Places’ Doctrine, 13 CHARLESTON L. REV. 205,
289 (2018). As for schools, the historical record is unclear as to the reason
for treating schools as “sensitive places,” but it’s likely because they are
“places where most persons therein are minors (K-12 schools).” Id. at
289–90. So the district court’s conclusion that public institutions of
higher education are “sensitive places” is suspect because, unlike public
primary and secondary schools, the student population at these institu-
tions aren’t composed mostly of minors. See JA846–847.
7
the rights enumerated in the Bill of Rights and incorporated against the
States after the Fourteenth Amendment’s adoption “have the same scope
as against the Federal Government.” Id. at 2137. And the scope of that
right is generally “pegged to the public understanding of the right when
the Bill of Rights was adopted in 1791.” Id.; see also id. at 2136 (“Consti-
tutional rights are enshrined with the scope they were understood to
have when the people adopted them.” (internal quotations omitted) (em-
phasis in original)).
Bruen cautioned courts “against giving postenactment history more
weight than it can rightly bear.” Id. at 2136. So while a regular course
of conduct can sometimes “liquidate and settle the meaning of disputed
or indeterminate terms and phrases in the Constitution,” id. (cleaned up),
“postratification adoption or acceptance of laws that are inconsistent with
the original meaning of the constitutional text obviously cannot overcome
or alter that text,” id. at 2137 (quoting Heller v. District of Columbia,
670 F.3d 1244, 1274 n.6 (D.C. Cir. 2011) (Kavanaugh, J., dissenting)); see
also William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 13–
14 (2019) (liquidation requires indeterminacy because “[i]f first-order
8
interpretive principles make the meaning clear in a given context, there
is no need to resort to liquidation”).
To determine whether the County has carried its burden to “affirm-
atively prove that its [place-of-public-assembly] regulation[s are] part of
the historical tradition that delimits the outer bounds of the right to keep
and bear arms,” Bruen, 142 S. Ct. at 2127, this Court must evaluate the
historical evidence the County offered in support of its restrictions, in-
cluding in places of worship, public parks, recreational and multipurpose
exhibition facilities, public libraries, and buffer zones.
A. The County’s limited historical evidence, far removed

from the founding, fails to establish a historical tradi-
tion of similar place-of-worship restrictions.
Heller found that the Second Amendment, ratified in 1791, “codified
a preexisting right” that “was … rooted in ‘the natural right of resistance
and self-preservation.’” Id. at 2157 (Alito, J., concurring) (quoting Heller,
554 U.S. at 594). So historical evidence close in time to the Amendment’s
adoption provides the most relevant insight into its original meaning.
See id. at 2137 (quoting Heller, 554 U.S. at 614). Yet the County offers
no evidence of any historical place-of-worship regulation between 1791
and 1868. None. Because the County bears the burden to rebut MSI’s
9
presumptively constitutional right to bear arms in public, including at
places of worship, its failure to produce evidence of similar laws during
this period strongly suggests no such tradition existed. See id. at 2150
(not the court’s burden “to sift the historical materials for evidence to
sustain” the challenged regulations).
But even if the district court is correct that historical evidence
closer in time to the ratification of the Fourteenth Amendment is “equally
if not more probative of the scope of the Second Amendment’s right to
bear arms as applied to the states,” 4 see JA844, the County’s historical
evidence still fails to support the existence of a historical tradition of sim-
ilar place-of-worship restrictions. Rather, the County cobbles together a
handful late nineteenth-century state and territorial statutes and local
4 The district court’s conclusion here is shaky at best. See Bruen, 142 S.
Ct. at 2137 (explaining that “because post-Civil War discussions of the
right to keep and bear arms ‘took place 75 years after the ratification of
the Second Amendment, they do not provide as much insight into its orig-
inal meaning as earlier sources’” (quoting Heller, 554 U.S. at 614)); see
also Atkinson v. Garland, 70 F.4th 1018, 1020 (7th Cir. 2023) (explaining
that “the pertinent question … is what the Founders understood the Sec-
ond Amendment to mean” and noting that Bruen “cautioned against giv-
ing too much weight to laws passed [long] before or after the Founding”).
But the County’s evidence fails to show a relevant historical tradition in
either period, so this Court need not resolve that thorny question.
10
ordinances that shed little if any light on the original understanding of
the scope of the public-carry right.
State Statutes. The County identified four place-of-worship re-
strictions, enacted between 1870 and 1878, in Georgia, Texas, Missouri,
and Virginia. JA849. In 1870, both Georgia and Texas enacted laws pro-
hibiting the possession of pistols, revolvers, and other dangerous weap-
ons in churches or other places of worship. Ga. Acts & Resolutions, Gen.
Assemb., Sess., Act No. 285, §1 (1870) (JA544); Tex. Gen. Laws, 12th
Leg., Called Sess., ch. XLVI, §1 (1870) (JA557). And between 1875 and
1878, Missouri and Virginia enacted substantially similar prohibitions.
Mo. Gen & Local Laws, 28th Gen. Assemb., Reg. Sess., at 50, §1 (1875)
(JA562); Va. Acts & Joint Resolutions, Gen. Assemb., 2d Sess., ch.7, §21
(1878) (JA569).
But four statutes passed between 1870 and 1878 provide little in-
sight into whether place-of-worship restrictions, like the County’s, align
with the Second Amendment’s original scope. See Bruen, 142 S. Ct. at
2136 (cautioning courts “against giving postenactment history more
weight than it can rightly bear”). As Bruen explained, the historical evi-
dence supported the existence of a broad right to carry firearms in public
11
for self-defense. See id. at 2156. So “the bare existence of [some] localized
restrictions cannot overcome the overwhelming evidence of an otherwise
enduring American tradition permitting public carry.” See id. at 2154.
So too here. And the “postratification adoption or acceptance of laws that
are inconsistent with the original meaning of the constitutional text”—
like the handful of laws identified in Texas, Georgia, Missouri, and Vir-
ginia—is insufficient to “overcome or alter that text.” Id. (quoting Heller,
670 F.3d at 1274 n.6).
The district court erroneously discounted MSI’s evidence that some
states, including Georgia and Virginia, required individuals to carry fire-
arms to places of worship because both Georgia and Virginia later
amended those laws to prohibit public carry in places of worship. 5 JA864.
But at that time, Georgia courts made clear that they understood the
Second Amendment to secure, not an individual right, but a collective
5 The district court assumed MSI needed to rebut the County’s evidence
of analogous place-of-worship restrictions. See JA863–864 (stating that
there was no evidence in the record “that during the relevant historical
time period … [similar] restrictions … were ‘rejected on constitutional
grounds’” (quoting Bruen, 142 S. Ct. at 2131)). Not so. The burden to
“affirmatively prove that these [place-of-worship] regulation [are] part of
the historical tradition that delimits the outer bounds of the right to keep
and bear arms,” see Bruen, 142 S. Ct. at 2127 (emphasis added), rests on
the County’s shoulders. This Court should ensure it stays there.
12
right to keep and bear arms tied to militia service. See, e.g., Hill v. State,
53 Ga. 472, 475 (1874) (“In what manner the right to keep and bear these
pests of society [dirks, bowie knives, and more], can encourage or secure
the existence of a militia, and especially of a well regulated militia, I am
not able to d[i]vine.”). Likewise, Texas courts during that time also un-
derstood the Second Amendment to secure a collective, and not individ-
ual, right to keep and bear arms. English v. State, 35 Tex. 473, 476 (1872)
(“The word ‘arms’ in the connection we find it in the Constitution of the
United States, refers to the arms of a militiaman or soldier, and the word
is used in its military sense.”). 6 But Heller and Bruen both soundly re-
jected that conception of the right. See, e.g., Young v. Hawaii, 896 F.3d
1044, 1057–58 (9th Cir. 2018) (explaining that “Heller knocks out the
load-bearing bricks in the foundation” of cases holding that the Second
Amendment was only a right to be exercised in connection with a militia).
Because these cases reflect a conception of the Second Amendment that’s
“inconsistent with the original meaning of the constitutional text” they
6 English even appears to concede that the law under review “was an
innovation upon the customs and habits of the people.” 35 Tex. at 479
(emphasis added). It justified that “innovation” because “the latter half
of the nineteenth century is not too soon for Christian and civilized States
to legislate against any and every species of crime.” Id. at 479–80.
13
provide no historical support for the County’s place-of-worship re-
striction. See Bruen, 142 S. Ct. at 2154 (quoting Heller, 670 F.3d at 1274
n.6).
Nor does Virginia’s decision in 1878 to prohibit public carry in
places of worship support the existence of a historical tradition of similar
restrictions. It wasn’t until 1971 that Virginia enacted an analogous pro-
vision in its state constitution to safeguard the right to keep and bear
arms. See Eugene Volokh, State Constitutional Rights to Keep and Bear
Arms, 11 Tex. Rev. L. & Pol. 191, 215 (2006). And because Virigina had
provided no state constitutional protection for that right when it passed
its place-of-worship restriction in 1878, “it’s unclear what [that] law[]
prove[s] about the contours of the Second Amendment right.” Range v.
Att’y Gen., 69 F.4th 96, 108 (3d Cir. 2023) (en banc) (Porter, J., concur-
ring); see also Bruen, 142 S Ct. at 2162 (Barrett, J., concurring) (discern-
ing “the original meaning of the Constitution” is the focus of the inquiry).
Territorial Statutes. The County also identified late nineteenth-
century place-of-worship restrictions from two western territories—Ari-
zona and Oklahoma. JA849. In 1889, Arizona barred persons from car-
rying pistols or other firearms “into any church or religious assembly.”
14
Ariz. Terr. Sess. Laws, 15th Legis. Sess., Act No. 13, §3 (1889) (JA597).
The next year, Oklahoma did the same. Okla. Terr. Stats., ch. 25, art.
47, §§1, 2, 7 (1890) (JA603–604).
For the same reasons Bruen identified, these restrictions provide
little support for the County’s place-of-worship restriction. See 142 S. Ct.
at 2154–56. First, this Court should not “stake [its] interpretation on
[two] temporary territorial laws that were enacted nearly a century after
the Second Amendment’s adoption, [that] governed less than 1% of the
American population,” and that conflict with “‘the overwhelming weight’
of other, more contemporaneous historical evidence” regarding the right
to carry firearms in public for self-defense. Id. at 2154–55. Second,
“these territorial laws were rarely subject to judicial scrutiny,” so “the
basis for their perceived legality is unclear.” Id. at 2155. Third, many
territorial laws were short-lived, so they “appear more as passing regu-
latory efforts by not-yet-mature jurisdictions on the way to statehood, ra-
ther than part of an enduring American tradition of state regulation.” Id.
at 2155. Bruen found these territorial statutes to be of little instructive
value, and so should this Court.
15
Local Ordinances. The County also pointed to two late nine-
teenth century local ordinances in Missouri—in Columbia and Hunts-
ville—that prohibited carrying firearms or other dangerous weapons into
churches or places of religious assembly. Gen. Ordinances of Columbia,
Mo., ch. XVII, §163 (1890) (JA601); Revised Ordinances of Huntsville,
Mo., at 58–59, §1 (1894) (JA624–625). But these local ordinances—
passed more than two decades after Reconstruction and a century after
the founding—shed little light on the meaning of the Second Amendment,
especially against the backdrop of a broad right to carry firearms in pub-
lic for self-defense.
B. The County’s reliance on late-nineteenth century stat-

utes and local ordinances fails to support a historical
tradition of public-carry bans in public parks.
The County points to one local ordinance in New York City’s Cen-
tral Park, enacted in 1857 by the Park’s board of commissioners, that
prohibited “carry[ing] firearms or … throw[ing] stones or other missiles”
in the Park. First Annual Rep. on the Improvement of the Central Park,
New York, at 106 (1857) (JA526). But “the bare existence of [a single]
localized restriction[]” between 1791 and 1868 “cannot overcome the over-
whelming evidence of an otherwise enduring American tradition
16
permitting public carry.” Bruen, 142 S. Ct. at 2154. For similar reasons
to those discussed above, see Sect.I.A, the County’s failure to point to
more than a single local ordinance during this time falls far short of af-
firmatively establishing a historical tradition of restricting public carry
in public parks.
Even so, the district court found that County established a “histor-
ical precedent” of a “comparable tradition of regulation” by pointing to
state laws and local ordinances passed after 1868. JA852 (quoting Bruen,
142 S. Ct. at 2131–32); see also JA850–852. Yet even a cursory look at
the County’s so-called “historical precedent” reveals at most only feeble
support for a historical tradition of categorically banning public carry in
public parks.
Bruen directs courts to canvas the period around the founding and
through Reconstruction for similar regulations, always with an eye to
“what the Founders understood the Second Amendment to mean.” At-
kinson, 70 F.4th at 1020. And because public parks have existed, in some
form or another, since the founding, see, e.g., Koons v. Platkin, 2023 U.S.
Dist. LEXIS 85235, at *250–55 (D.N.J. May 16, 2023) (tracing historical
evidence for parks, or their historical analogues, to the establishment of
17
Boston Common in 1634), the County must point to “distinctly similar
regulation[s] addressing that problem.” Atkinson, 70 F.4th at 1020 (em-
phasis added).
State Statutes. The County identified public-carry restrictions in
public parks—passed between 1870 and 1921—in Pennsylvania, Michi-
gan, Minnesota, Wisconsin, and North Carolina. In 1870, Pennsylvania
prohibited persons from “carry[ing] fire-arms[] or shoot birds in [Fair-
mont] Park.” Acts of Assemb. Relating to Fairmont Park, at 18 §21.II
(1870) (JA552). A quarter-century later, Michigan restricted public carry
in Detroit’s public parks, providing that “[n]o person shall fire or dis-
charge any gun or pistol or carry firearms, or throw stones or other mis-
siles within said park … without the permission of said commissioners.”
Mich. Local Acts, Reg. Sess., at 596 §44 (1895) (emphasis added) (JA633).
Ten years later, Minnesota banned hunting and trapping in “state public
park[s]” and thus prohibited carrying firearms in “any such park” unless
the firearm was unloaded and sealed by a park commissioner. Minn.
Laws, ch. 344, §53 (1905) (JA658). Twelve years later, Wisconsin banned
hunting and trapping in “any wild life refuge, state park, or state fishery
lands” and thus barred possessing a “gun or rifle” unless it was unloaded
18
and secured in a carrying case. Wis. Sess. Laws, ch. 668, §29.57(4) (1917)
(JA676–677). And in 1921, North Carolina required people to first obtain
written permission from the owner or manager of a public park before
carrying a firearm into that park. N.C. Sess. Laws, Pub. Laws Extra
Sess., at 54, ch. 6, §3 (1921) (JA679).
Local Statutes and Ordinances. Along with the 1857 Central
Park ordinance, the County pointed to eleven other local statutes and
ordinances—passed between 1888 and 1921—that imposed public-carry
restrictions in public parks. These restrictions applied either to specific
parks or to public parks in those cities. See, e.g., Laws & Ordinances,
Williamsport, Pa., at 141, §1(21) (1891) (Brandon Park) (JA608); A Digest
of the Laws & Ordinances, Reading, Pa., at 240, §20(8) (1897) (Penn’s
Common) (JA638); Revised Ordinances, Boulder, Colo., at 157, §511
(1899) (public parks in Boulder) (JA642); Amends. to Chi. Revised Mun.
Code, ch. XLV, art. I, §1562 (1905) (city parks in Chicago) (JA655); Code
of the City of Staunton, Va., ch. II, §135 (1910) (city parks in Staunton)
(JA671); Code of the City of Birmingham, Ala., ch. XLIV, §1544 (1917)
(city parks in Birmingham) (JA673–674).
19
Yet many of the local ordinances prohibited people from “carry[ing]
firearms or shoot[ing] birds” in public parks. Annual Reps. of the City
Officers & City Boards of the City of Saint Paul, Minn., at 689 §7 (1888)
(emphasis added) (JA592); see also Charter of the City of Wilmington,
Del., pt. VII, §7 (1893) (similar) (JA613); City of Trenton, N.J., Charter
& Ordinances, at 390 §8 (1903) (similar) (JA651); A Digest of the Ordi-
nances of Town Council of the Borough of Phoenixville, at 135 §1(4)
(1906) (similar) (JA666); Gen. Mun. Ordinances of the City of Oakland,
Cal., at 15 §9 (1909) (similar) (JA669).
For three reasons, the County fails to establish a historical tradi-
tion of “relevantly similar” regulations. First, nearly all of the seventeen
state statutes and local ordinances the County points to were enacted
more than 20 years after Reconstruction—in some cases, more than 40
years—so even if Reconstruction-era evidence is more probative, the dis-
trict court still erred by giving that evidence “more weight than it can
rightly bear.” Bruen, 142 S. Ct. at 2136. The only pre-1868 evidence was
an 1857 ordinance restricting public carry in Central Park. JA526. And
the only other close-in-time restriction was an 1870 Pennsylvania statute
that banned public carry and shooting birds in Fairmont Park—a
20
restriction apparently drawn to prevent hunting in the public park.
JA552. Every other statute or local ordinance that the County identified
was passed between 1888 and 1921—20 to 53 years following Reconstruc-
tion. Even if these regulations were relevantly similar, they are far too
late-in-time to establish the existence of a historical tradition of public-
carry restrictions in parks. See Wolford v. Lopez, 2023 U.S. Dist. LEXIS
138190, *65–68 (D. Haw. Aug. 8, 2023) (rejecting the district court’s reli-
ance here on “one local ordinance and one state law … to find that there
was a national historical tradition of prohibiting the carrying of firearms
at parks at the time of the Fourteenth Amendment’s ratification”).
Second, the state statutes and local ordinances applied to a narrow
cross-section of the population, so the County’s evidence fails to establish
the existence of a national tradition of similar regulations. See Bruen,
142 S. Ct. at 2154. The County identified laws in five states—Pennsyl-
vania, Michigan, Minnesota, Wisconsin, and North Carolina—but the
Pennsylvania law applied only to a single park and the Michigan law ap-
plied only to Detroit public parks. Even if all these laws applied broadly
across all five states, they would still fail to establish a national tradition
of similar regulations. Nor do the twelve local ordinances change the
21
calculus—at most, it suggests that twelve local communities had a tradi-
tion of regulating public carry in parks, but that still leaves the rest of the
country under a presumed right of public carry. See United States v.
Daniels, 2023 U.S. App. LEXIS 20870, *12 (5th Cir. Aug. 9, 2023) (finding
that Bruen requires courts to construe “silence” in the historical record
“as evidence that the public did not approve of such a regulation” so long
as “the public experienced the harm the modern-day regulation attempts
to address”).
Third, many of these statutes and local ordinances either didn’t im-
pose a comparable burden on the public carry right or weren’t comparably
justified. See Bruen, 142 S. Ct. at 2133. For example, the Michigan and
North Carolina statutes both permitted public carry in the parks if the
person obtained permission beforehand, see Mich. Local Acts, §44 (no
public carry in Detroit parks “without the permission of said commission-
ers”) (JA633); N.C. Sess. Laws, ch. 6, §3 (no public carry in parks without
prior written permission) (JA679), so these statutes imposed less of bur-
den on the right than §57-11’s complete ban. And many of the state stat-
utes—in Pennsylvania and Minnesota—and local ordinances—in Saint
Paul, Minnesota; Wilmington, Delaware; Trenton, New Jersey;
22
Phoenixville, Pennsylvania; and Oakland, California—were enacted to
prevent unlawful hunting in public parks, so they were not designed to
address the same public safety interest that §57-11 targets. These dif-
ferences substantially diminish the weight of the County’s evidence.
C. The County fails to produce relevantly similar historical

public carry restrictions in recreational and multipur-
pose exhibition facilities and public libraries.
The district court found that the historical evidence supporting
public-carry restrictions in parks also lent historical support for §57-11’s
similar restrictions in recreational and multi-purpose exhibition facilities
because both “are locations at which large numbers of people gather to
engage in recreation.” JA853. But the district court’s analysis falters for
two reasons. For one, the County’s historical evidence fails to show a
historical tradition of regulating public parks as “sensitive places,” see
supra Sect.I.B, so that same evidence likewise fails to show a historical
tradition here. And another, Bruen rejected New York’s similar attempt
to broadly define sensitive places as “all places of public congregation that
are not isolated from law enforcement,” see 142 S. Ct. at 2133–34; this
Court should do the same here.
23
State Statutes. In 1870, Tennessee and Texas prohibited carrying
pistols, six-shooters, guns, and other dangerous weapons in various pub-
lic gatherings, including fairs, race courses, ball rooms, social parties,
and other public assemblies. Tenn. Acts, 36th Gen. Assemb., First Sess.,
ch. XXII, §2 (1870) (banning carry “for any person attending any fair, race
course, or other public assembly of the people”) (JA541–542); Texas Gen.
Laws, ch. XLVI, §1 (banning carry in “a ball room, social party or other
social gathering composed of ladies and gentlemen”) (JA557).
Local Ordinances. The County also pointed to a New Orleans
ordinance, adopted in 1817, that prohibited entering “a public ball-room
with any cane, stick, sword or any other weapon.” Gen. Digest of Ordi-
nances & Resolutions, New Orleans, La., at 371, art. 1 (1831) (JA507).
Territorial Statutes. In 1852, the Territory of New Mexico re-
quired persons “desiring to give a [b]all or [f]andango” to obtain a license,
which required the licensee to refuse entry to persons “with fire arms or
other deadly weapons” whenever alcohol was served. N.M. Terr. Laws,
Second Legis. Assemb., at 67–68, §3 (1852) (JA523–524). In 1889 and
1890, the Territories of Arizona and Oklahoma, respectively, banned fire-
arms in places “where persons are assembled for amusement,” including
24
“any circus, show or public exhibition of any kind, or into any ball room,
social party or social gathering.” Ariz. Terr. Sess. Laws, Act No. 13, §3
(JA597); Okla. Terr. Stats., ch. 25, art. 47, §7 (same) (JA604).
The County’s historical evidence suffers from many of the same de-
ficiencies plaguing its place-of-worship and public-park restrictions. See
supra Sect.I.A.–B. That is, it identifies only two pre-1868 restrictions—
an 1817 local ordinance and an 1852 territorial statute—one of which
only restricted public carry whenever alcohol was served. See N.M. Terr.
Laws, §3 (JA523–524). Only one of these two restrictions, the New Orle-
ans ordinance, imposed a comparable burden (complete ban), but a single
ordinance in one city is “too slender a reed on which to hang a historical
tradition of restricting the right to public carry” in similar recreational
facilities. See Bruen, 142 S. Ct. at 2149.
While the County identified two state laws, passed in 1870, that
restricted public carry in locations arguably analogous to recreational
and multipurpose exhibition facilities, both states—Tennessee and
Texas—understood the Second Amendment to secure only a militia-con-
nected right to keep and bear arms. See, e.g., Andrews v. State, 50 Tenn.
165, 177–78 (1871) (holding a state law unconstitutional to the extent
25
that it bars the public carry of a “soldier’s weapon”); see also English,
35 Tex. at 476 (“The word ‘arms’ in the connection we find it in the Con-
stitution of the United States, refers to the arms of a militiaman or sol-
dier, and the word is used in its military sense.”). But Bruen and Heller
soundly rejected that understanding of the Second Amendment right, so
those statutes fail to provide historical support for the County’s regula-
tion. See Bruen, 142 S. Ct. at 2154 (quoting Heller, 670 F.3d at 1274 n.6);
see also Young, 896 F.3d at 1057–58 (“Heller knocks out the load-bearing
bricks in the foundation [of cases holding that the Second Amendment
protects only militia-connected right].”).
Nor do the County’s remaining territorial statutes change the cal-
culus. For one, the Arizona and Oklahoma territorial statutes—passed
in 1889 and 1890, respectively—post-date Reconstruction by more than
20 years, so they shed little light on “the original meaning of the [Second
Amendment].” See Bruen, 142 S. Ct. at 2162 (Barrett, J., concurring).
And another, many territorial laws were short-lived and thus could not
claim any “part of an enduring American tradition of state regulation,”
see id. at 2155, so these laws provide little insight into the scope of the
public-carry right.
26
Turning to public libraries, the district court found that because “all
public libraries in Montgomery County are in government buildings,
which are ‘sensitive places’” under Bruen, §57-11’s public-carry re-
strictions in public libraries are permissible. JA854. But the district
court read Bruen’s (and by extension Heller’s) reference to government
buildings too broadly. See Bruen, 142 S. Ct. at 2133 (noting “‘longstand-
ing’ ‘laws forbidding the carrying of firearms in sensitive places such as
schools and government buildings’” (quoting Heller, 554 U.S. at 626)).
Bruen explained that the relevant historical record for “‘sensitive places’
where weapons were altogether prohibited” included “legislative assem-
blies, polling places, and courthouses.” Id.; see also Kopel & Greenlee,
supra note 3, at 289 (observing that “gun bans in certain government
buildings … have historical precedent, [but] bans that apply to all gov-
ernment buildings do not.”). So Bruen concluded that it “was settled that
these locations”—“e.g., legislative assemblies, polling places, and court-
houses”—“were ‘sensitive places’ where arms carrying could be regulated
consistent with the Second Amendment.” 142 S. Ct. at 2133 (emphasis
added). Thus, the County must show historical evidence for §57-11’s pub-
lic-library restriction.
27
State Statutes. In 1870, Texas prohibited carrying firearms into
“any school room or other place where persons are assembled for educa-
tional, literary or scientific purposes.” Texas Gen. Laws, ch. XLVI, §1
(JA557). And the County pointed to two other state laws—passed 11 to
35 years after Reconstruction—that banned concealed carry in “any
school room or place where people have assembled for educational, liter-
ary or social purposes.” Mo. Rev. Stats., 30th Gen. Assemb., vol. 1, ch. 24,
art. I, §1274 (1879) (JA573); Mont. Gen. Laws, ch. XXXV, §3 (1903)
(same) (JA648–649).
Territorial Statutes. Similarly, the Territories of Arizona and
Oklahoma—in 1889 and 1893, respectively—banned carrying firearms
into places where people were assembled for “educational or scientific
purposes.” Ariz. Terr. Sess. Laws, Act No. 13, §3 (JA597); Okla. Terr.
Stats., ch. 25, art. 45, §7 (1893) (JA616).
The County identifies no pre-1868 evidence of similar restrictions,
and they only point to three post-1868 state statutes possibly imposing
similar public-carry restrictions. But for the reasons discussed above,
the 1870 Texas statute is not a viable historical analogue because it relied
on a now-rejected understanding of the Second Amendment right. See
28
English, 35 Tex. at 476. And neither the Missouri nor the Montana stat-
utes—which were passed 11 to 35 years after Reconstruction—imposed a
comparable burden because they banned only concealed carry. See Mo.
Rev. Stats., vol. 1, ch. 24, art. I, §1274 (JA573); Mont. Gen. Laws,
ch. XXXV, §3 (JA648–649); see also Bruen, 142 S. Ct. at 2131 (“[I]f if ear-
lier generations addressed the societal problem, but did so through ma-
terially different means, that also could be evidence that a modern regu-
lation is unconstitutional.”). Nor do the Arizona and Oklahoma territo-
rial statutes move the needle—both were passed more than 20 years after
Reconstruction, so they provide little evidence that public-library re-
strictions are “part of an enduring American tradition of state regula-
tion.” Bruen, 142 S. Ct. at 2155.
D. Buffer zones surrounding non-“sensitive places” are cat-

egorically unconstitutional, and the constitutionality of
those surrounding “sensitive places” is dubious.
To the extent that the County’s place-of-public-assembly re-
strictions apply to locations that are not “sensitive places” under Bruen
and its progeny, its prohibition on carrying firearms within 100 yards of
those locations violates the Second Amendment. See Kopel & Greenlee,
supra note 3, at 290 (explaining that “buffer zones are not sensitive
29
places” because “Heller allow[ed] for carry bans ‘in’ sensitive places,” not
“‘around’ or ‘near’ sensitive places”); see also Bruen, 142 S. Ct. at 2133
(referencing Heller’s discussing of laws “forbidding the carrying of fire-
arms in sensitive places” (emphasis added)). So, at a minimum, §57-11’s
100-yard buffer zone around places of worship, public parks,7 recrea-
tional and multipurpose exhibition facilities, and some government
buildings is unconstitutional. See supra Sect.I.A–C.
Nor does the County’s historical evidence support its broad buffer-
zone restriction. See JA856–857. At most, its historical evidence pro-
vides limited support for buffer zones around polling places and other
election sites. See JA856 (citing two Maryland laws imposing buffer
zones around polling places and election sites and a Louisiana law im-
posing a buffer zone around an election registration site). But like the
County’s other historical evidence, none of these laws pre-date
7 Because the County fails to show a historical tradition of public-carry

restrictions in public parks, see supra Sect.I.B, the historical evidence it
marshals in support of buffer zones around parks is irrelevant. See
JA857. But even if this Court were to consider that historical evidence,
it suffers from the same flaws as the County’s evidence supporting the
public-park restriction, see supra Sect.I.B—it includes only one re-
striction from 1870 and every other restriction was enacted 20 years or
more after Reconstruction, see JA857.
30
Reconstruction, so they provide little insight into whether such re-
strictions align with the Second Amendment’s original meaning. And
even if these laws were adequate historical analogues, it’s doubtful that
three laws covering four Maryland counties and the State of Louisiana
are enough to establish a historical tradition of similar regulations.
CONCLUSION
As Bruen explained, “when it comes to interpreting the Constitu-
tion, not all history is created equal.” 142 S. Ct. at 2136. Rather, “[c]on-
stitutional rights are enshrined with the scope they were understood to
have when the people adopted them.” Id. (quoting Heller, 554 U.S. at 634–
35 (emphasis in original)). So evidence closer in time to the Second
Amendment’s adoption is most relevant for understanding the Amend-
ment’s scope. Of course, evidence of historical regulations through the
end of the nineteenth (or even twentieth) century could be relevant, but
only to the extent that it confirms what prior evidence “already … estab-
lished.” Id. at 2137 (quoting Gamble v. United States, 139 S. Ct. 1960,
1976 (2019)). Otherwise, Gamble clarified “that Heller’s interest in mid-
to late-19th-century commentary was secondary.” Id.; Gamble, 139 S. Ct.
31
at 1975–76 (Heller considered this evidence “only after surveying what it
regarded as a wealth of authority for its reading”).
The Second Amendment protects the right to possess handguns,
both in the home and in public, for the purpose of self-defense. McDon-
ald, 561 U.S. at 767; Bruen, 142 S. Ct. at 2156. With few exceptions, the
County relies on proposed historical analogues passed more than 20
years after Reconstruction. Even if Reconstruction-era statutes and local
ordinances provide more probative evidence of the Second Amendment’s
original meaning, the County’s evidence still fails to identify relevantly
similar historical analogues for §57-11’s public-carry restrictions dis-
cussed above. Sweeping aside the County’s irrelevant evidence yields
only a handful of arguably relevant evidence supporting §57-11’s place-
of-public-assembly restrictions—“surely too slender a reed on which to
hang a historical tradition of restricting the right to public carry” in the
locations challenged here. See Bruen, 142 S. Ct. at 2149. This Court
should reverse.
32
DATED this 28th day of August, 2023.
AUSTIN KNUDSEN
Montana Attorney General
CHRISTIAN B. CORRIGAN
Solicitor General
s/Peter M. Torstensen, Jr.
PETER M. TORSTENSEN, JR.
Assistant Solicitor General
215 North Sanders
P.O. Box 201401
Helena, MT 59620-1401
Phone: (406) 444-2026
Fax: (406) 444-3549
Counsel for Amicus Curiae
State of Montana
33
ADDITIONAL COUNSEL
STEVE MARSHALL TREG TAYLOR

Attorney General of Attorney General of
Alabama Alaska
TIM GRIFFIN CHRISTOPHER M. CARR

Arkansas Georgia
RAÚL R. LABRADOR THEODORE E. ROKITA

Idaho Indiana
BRENNA BIRD KRIS KOBACH

Iowa Kansas
DANIEL CAMERON JEFF LANDRY

Kentucky Louisiana
LYNN FITCH ANDREW BAILEY

Mississippi Missouri
MICHAEL T. HILGERS ALAN WILSON

Nebraska South Carolina
MARTY J. JACKLEY ANGELA COLMENERO

Attorney General of Provisional Attorney General of
South Dakota Texas
PATRICK MORRISEY BRIDGET HILL

West Virginia Wyoming
34
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitations of Fed. R.
App. P. 29(a)(5) and 32(a)(7)(B)(i) because, excluding the parts of the doc-
ument exempted by Fed. R. App. P. 32(f), this document contains 6,482
words.
2. This brief complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P 32(a)(6)
because it has been prepared in a proportionally spaced typeface using
Microsoft Word in 14-point Century Schoolbook font and is double-spaced
except for footnotes and for quoted and indented material.
/s/ Peter M. Torstensen, Jr.

CERTIFICATE OF SERVICE
I certify that on this date, an accurate copy of the foregoing docu-
ment was served electronically through the Court’s CM/ECF system on
registered counsel.
Dated: August 28, 2023 /s/ Peter M. Torstensen, Jr.

35

Amicus Briefs Filed in Challenge of Montgomery County Sensitive Places'

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Amicus Briefs Filed in Challenge of Montgomery County Sensitive Places'

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USCA4 Appeal: 23-1719 Doc: 32-1 Filed: 08/28/2023 Pg: 1 of 41

MARYLAND SHALL ISSUE, INC.; ENGAGE ARMAMENT, LLC; ANDREW RAYMOND;

MONTGOMERY COUNTY, MARYLAND,

On Appeal from the United States District Court

BRIEF OF AMICUS CURIAE STATE OF MONTANA AND

B. The County’s reliance on late-nineteenth century statutes and

C. The County fails to produce relevantly similar historical public

D. Buffer zones surrounding non-“sensitive places” are

STATUTES AND ORDINANCES

Gen. Mun. Ordinances of the City of Oakland,

Wis. Sess. Laws, ch. 668, §29.57(4) (1917)) ................................. 18-19

INTERESTS OF AMICI CURIAE

district court here, continue to defer to legislative “judgments regarding

firearm regulations” despite Bruen’s declaration that “judicial deference

to legislative interest balancing … is not [the] deference that the Consti-

tution demands.” Id. at 2131. Rather, “‘the right of law-abiding, respon-

by the American people that demands courts’ “unqualified deference.” Id.

(quoting District of Columbia v. Heller, 554 U.S. 570, 635 (2008)).

To be sure, courts may 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 constitution-

ally permissible.” Id. at 2133. And that analogical inquiry requires

courts to determine whether a modern and historical regulation are

“relevantly similar”—that is, whether they impose a comparable burden

and are comparably justified. Id. at 2132–33. To ensure that courts

properly employ the “nuanced approach” that Bruen’s analogical inquiry

requires, the States of Montana, Alabama, Alaska, Arkansas, Georgia,

Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Mis-

souri, Nebraska, South Carolina, South Dakota, Texas, West Virginia,

and Wyoming (“Amici States”) submit this amicus brief in support of

Plaintiffs-Appellants. Amici States urge this Court to reverse the deci-

In its current form, Section 57 of the Montgomery County Code pro-

hibits the sale, transfer, or possession of firearms “[i]n or within 100

yards of a place of public assembly.” Montgomery Cnty. Code §57-11(a)

(2022). As relevant here, Section 57 defines “place of public assembly” as

a list of enumerated locations, including a publicly or privately owned

“park,” “place of worship,” “school,” “library,” “recreational facility,” “mul-

tipurpose exhibition facility,” or “childcare facility.” Id. §57-1. And each

“place[] of public assembly” includes “all property associated with the

place, such as a parking lot or grounds of a building.” Id.

Plaintiffs Maryland Shall Issue, Inc. (“MSI”), Engage Armament,

allege that these place-of-public-assembly restrictions violate their “con-

stitutional right to bear arms in public for self-defense.” Bruen, 142 S.

certain claims or that it was unlikely to succeed on the merits. JA834–

Contrary to the district court, the County failed to “affirmatively

prove that its [place-of-public-assembly] regulation [s are] part of the his-

torical record supports a broad right to carry a firearm in public, subject

to well-defined restrictions on the manner of carry and permissible arms,

as well as some longstanding “sensitive locations” where firearms could

a handful of state laws, local ordinances, and territorial statutes enacted

during the late nineteenth century—often more than a century removed

from the founding—the historical record doesn’t show an “enduring

American tradition” of restricting the right to carry in places of worship,

public parks, recreational and multipurpose exhibition facilities, public

libraries, or in buffer zones surrounding those locations. Id. at 2155–56.

After Bruen, courts must determine whether “the Second Amend-

ment’s plain text covers an individual’s conduct.” Id. at 2126. If it does,

“the Constitution presumptively protects that conduct.” Id. And here,

the Amendment’s plain text “protects [MSI]’s proposed course of con-

duct—carrying handguns publicly for self-defense.” Id. at 2134. To jus-

tify its place-of-public-assembly restrictions, or “sensitive place” re-

sistent with this Nation’s historical tradition of firearm regulation”—only