Gun Owners of America won a significant victory in Hughes v. Lee — the Gibson County Chancery Court struck down Tennessee Code Annotated §§ 39-17-1307 and 39-17-1311, which banned carry of handguns in public parks for unlicensed individuals. Now Tennessee’s Attorney General Jonathan Skrmetti has filed his appeal brief before the Tennessee Court of Appeals in Jackson, and I have to be blunt: the Second Amendment analysis in that brief is a mess. My focus here is the sensitive-places argument, because that is where the errors are most glaring.
Tennessee’s Entire Historical Case Rests on Post-Civil War Laws
On page 21 of its brief, the state of Tennessee trots out its historical analogues to justify keeping parks gun-free. Here is what they cite: an 1869 Tennessee law, the 1858 Central Park firearms prohibition by the Board of Commissioners of the Central Park, an 1875 Mackinac National Park regulation, Yellowstone’s 1894 ban under the Lacey Act, a 1936 National Park Service regulation, a 1909 Memphis parks ordinance, and a 1922 Chattanooga ordinance.
Not one of those examples predates 1791. Not one of them comes anywhere close. And that is fatal to the argument under the Bruen framework.
The rule is not complicated. When a court interprets a provision of the Bill of Rights — whether the First Amendment or the Second — the controlling question is what the American people understood that right to mean when they ratified it. For the Second Amendment, that is 1791. Post-ratification laws can be cited as confirmatory evidence if they line up with a 1791 understanding. They cannot be used to narrow that understanding or to contradict the original public meaning.
Chief Justice John Roberts made this crystal clear in Espinoza v. Montana Department of Revenue, 591 U.S. 464 (2020). Approximately 37 states had enacted Blaine Amendment laws in the late 19th century — Roberts still refused to let that post-Civil War wave shrink the Free Exercise Clause. A cluster of late-arriving laws carries no weight regardless of how many states passed them. Tennessee is asking the Court of Appeals to do exactly what Roberts said cannot be done.
Bruen Narrowed Sensitive Places — Tennessee Pretends Otherwise
Tennessee’s brief also leans heavily on District of Columbia v. Heller, 554 U.S. 570 (2008), for the proposition that the government can ban guns in schools and government buildings, and then argues by extension that parks — especially parks frequented by children — fall within the same category.
This misreads what the Supreme Court actually did in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). The Heller language about schools and government buildings was a passing observation — dicta — offered to reassure readers that the decision would not destabilize existing law. Bruen, where the Court was forced to confront the sensitive-places doctrine head-on because New York had tried to use it to justify a sweeping permit regime, narrowed that category considerably. Justice Thomas’s majority opinion identified the historically grounded sensitive places as three: polling places, legislative chambers, and courthouses. That is the list drawn from founding-era practice. Tennessee’s brief treats Bruen as if it added categories on top of Heller. The reality is the opposite — Bruen made the analysis more precise and more demanding.
The “Children in Parks” Argument Proves Too Much
Tennessee’s backup theory is that because Heller acknowledged gun bans at schools — where children are present — any public space frequented by children can be treated as a gun-free zone. This argument should be rejected on first principles.
As I see it, the founding-era tradition regarding firearms at schools banned students from possessing guns — not the general public, not faculty, not administrators. The reason is in loco parentis: when young men like Alexander Hamilton enrolled at King’s College (now Columbia University) at roughly 16 or 17, the school stood in the place of the parent. That is the actual tradition. It has nothing to do with the physical presence of children in a location.
If Tennessee’s logic held, firearms bans at grocery stores, gas stations, and department stores would all be constitutional. Children are everywhere. That cannot be the rule, and the historical record does not support it.
Boston Common and Lexington Green Refute the “No Founding-Era Parks” Premise
Underlying Tennessee’s whole argument is a factual claim: that there were essentially no public parks in American life before the post-Civil War urban parks movement associated with landscape architect Frederick Law Olmsted. This is wrong, and it matters.
Thomas Jefferson sketched open public spaces into his plans for Washington, D.C. He was also a man who explicitly advised carrying a gun as one of the best forms of outdoor exercise. Boston Common — a public green that colonial militias used for mustering — is a textbook example of a founding-era park where firearms were not only present but central. Lexington Green was another. The first shots of the Revolution were fired on these kinds of public greens, which were the 18th-century version of a municipal park.
The Frederick Law Olmsted parks of the 1850s onward were a deliberate departure from that tradition — refined, aristocratic spaces where guns, swearing, and political protest were all banned. That late-19th-century cultural movement says nothing about how ordinary Americans understood public outdoor spaces in 1791.
What Comes Next
The appeal in Hughes v. Lee now heads to the Tennessee Court of Appeals in Jackson. I give the state’s procedural arguments more credit than its constitutional ones. But on the Second Amendment question, the brief’s dependence on post-Civil War analogues and its misreading of the Bruen sensitive-places framework are serious weaknesses.
Gun Owners of America and Gun Owners Foundation won a real victory in the Gibson County Chancery Court. Tennessee’s brief to undo it relies on a methodology the Supreme Court has already rejected. That will be a hard sell before any court that takes Bruen seriously.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.