My last post discussed how the Second Circuit in Antonyuk v. James (2024) relied on a fake North Carolina citation to a non-existent law as the supposed Founding-era analogue to uphold New York's "sensitive place" restrictions where firearms may not be possessed. (It also cited a 1786 Virginia law as an analogue, but admitted that it had a "terror" element.) On September 10, in Koons v. Attorney General New Jersey, the Third Circuit followed the Second Circuit off the cliff by making the same error. The fake "law" cited was the "N.C. Statute of Northampton (1792)," which was actually nothing but a privately published Collection of English statutes that one François-Xavier Martin thought applied in North Carolina.
In contrast, the Ninth Circuit, in Wolford v. Lopez (2024), wasn't willing to buck the Supreme Court's rulings that openly. The court found:
Defendant also points to colonial laws in Virginia and North Carolina that were successors to the Statute of Northampton. But the Supreme Court has explained that those laws prohibited the carry of firearms only to the "terror" of the people or for a "wicked purpose"; lawful carry was permitted. Bruen, 597 U.S. at 49–51, 142 S. Ct. 2111; see also Rahimi, 144 S. Ct. at 1901 (describing these laws).
And now, a different panel of the Second Circuit says that they were just kidding in Antonyuk. In Frey v. City of New York (2025), rendered on September 19, the court included a footnote that began: "We are not so certain that the Northampton statute, or the Virginia and North Carolina laws that replicated it, prohibited carriage altogether." In fact, "Bruen undermines that interpretation." Bruen read the Northampton statute to apply to arms carrying only if done so to terrify others. Frey continued that, as Bruen noted, the North Carolina Supreme Court in State v. Huntly (1843) held that "the carrying of a gun" for a lawful purpose "per se constitutes no offence," and "[o]nly carrying for a 'wicked purpose' with a 'mischievous result … constitute[d a] crime.'"
But no matter. Both Wolford and Frey dispensed with any actual Founding-era analogues and upheld the broad "sensitive place" restrictions anyway – those of California and Hawaii for the former, and New York City for the latter. Frey tried to have it both ways, "remain[ing] confident in Antonyuk's conclusion that we have a well-established tradition of banning firearms in quintessentially crowded places. The Founding-era Virginia and North Carolina laws evince that lawmakers were sensitive to the potential mayhem gun-wielding may cause in crowded locations…." Not accurate. Whether in a crowded or a lonely place, both states required going armed to be "in terror" of others, otherwise it was not a crime.
From there, Wolford and Frey revert to Antonyuk's reliance on selected laws from Reconstruction through the end of the 19th century. Recall that Antonyuk found that the non-existent "North Carolina model" somehow "evolved" into late 19th century restrictions, which were further analogues to justify today's New York ban. But those restrictions were too few and too late to establish a historical tradition.
Specifically, Antonyuk referred to gun bans at certain confined places, including a "fair, race course, or other public assembly of people" (Tennessee 1869); assemblies for "educational, literary or scientific purposes, or into a ball room, social party or other social gathering" (Texas 1870); and "where people are assembled for educational, literary or social purposes" (Missouri 1883).
Antonyuk claimed that the state courts upheld these provisions as constitutional, but that conclusion was unwarranted with one partial exception. These specific locations were not even issues in the cited cases. The Tennessee case of Andrews v. State (1871) upheld a ban on carrying a small belt pistol or certain other weapons, but held the law unconstitutional as applied to an army-type revolver. The Texas case of English v. State (1871) upheld convictions for wearing a pistol while intoxicated and for carrying a butcher knife in a religious assembly; as to the latter, the court held such knife not to be a constitutionally-protected "arm." The Missouri case of State v. Shelby (1886) addressed carrying concealed and carrying while intoxicated.
In short, other than the Texas case involving a butcher knife in church, none of these decisions considered and upheld the constitutionality of any of the prohibitions on possession of arms at specific places, such as those listed by Antonyuk.
Antonyuk further relied on laws of the territories of Arizona (1889) and Oklahoma (1890) as showing the tradition of banning firearms in "quintessentially crowded places." But Bruen cited another 1889 Arizona law, and another section of the same 1890 Oklahoma law, in explaining that "late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence." The Court pointed to the facts that the territorial populations were "miniscule," "territorial laws were rarely subject to judicial scrutiny," and the territorial governments were "short lived."
Antonyuk also pointed to mostly-late 19th century restrictions in some cities, such as regulations banning firearms in so-called urban public parks. However, recognizing the need for some foundation in the Founding era, it claimed that such restrictions were "enshrined in the law books" of Virginia and North Carolina, which simply is not accurate. As with the state laws, no Founding-era cities enacted any such restrictions.
Without any Founding-era analogue, Bruen does not countenance restrictions when the Fourteenth Amendment was adopted in 1868 or later as historical analogues to justify today's gun prohibitions. Bruen flatly states that "individual rights enumerated in the Bill of Rights and made applicable against the States through the Fourteenth Amendment have the same scope as against the Federal Government," and that the Court "has generally assumed that the scope of the protection applicable to the Federal Government and States is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791."
Bruen noted "an ongoing scholarly debate" on whether the understanding in 1868 defines the scope of the right, but stated that it "need not address this issue" because the public understanding of the right to carry in public was the same in 1791 and 1868. Antonyuk misread this to say that Bruen "expressly declined to decide" whether courts should rely on the understanding in 1868.
As Justice Amy Coney Barrett stated in her Bruen concurrence: "But if 1791 is the benchmark, then New York's appeals to Reconstruction-era history would fail for the independent reason that this evidence is simply too late (in addition to too little)." As the Court had recently held in Espinoza v. Montana Dept. of Revenue, a practice that "arose in the second half of the 19th century … cannot by itself establish an early American tradition" to inform the meaning of the First Amendment. Bruen thus does not "endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights."
Notwithstanding the above, Antonyuk sought to stretch the time period for determining the understanding of the scope of the Second Amendment to 1868 and beyond, stating: "It would be incongruous to deem the right to keep and bear arms fully applicable to the States by Reconstruction standards but then define its scope and limitations exclusively by 1791 standards." There is nothing incongruous about that at all, given that the Supreme Court has relied on Founding-era understandings to interpret the scope of other incorporated provisions of the Bill of Rights, including the First, Fourth, Fifth, Sixth, and Eighth Amendments. See Mark W. Smith, "Attention Originalists: The Second Amendment Was Adopted in 1791, Not 1868."
But the Antonyuk court does not suggest that the understanding of the Second Amendment may be based solely on 1868 and thereafter, and instead sought to trace that understanding to the Founding-era Virginia and North Carolina laws, but then dropping the Virginia law with its "terror" element as "the outlier among the national tradition." But as shown in my last post, North Carolina also recognized the "terror" element in the common-law offense of going armed offensively.
That brings us back full circle. Bruen had rejected New York's claim that the Statute of Northampton originated the tradition of banning arms in public places. What Antonyuk did was to refine the argument to support banning arms not everywhere in public, but in expansive "sensitive places." The Statute mentioned "fairs and markets," North Carolina supposedly enacted the Statute in 1792, and that's the analogue for today's gun bans in "quintessentially crowded places notwithstanding behavior."
Regardless, Antonyuk made a grave error when it attempted to find Founding-era analogues in a Virginia law and a North Carolina "law," dropped the Virginia law because of its "terror" element, based the North Carolina "law" on a private publication never approved by the legislature, ignored actual North Carolina statutes, disregarded North Carolina judicial precedents, and then voilà – found the North Carolina "law" to be the basis for a handful of late nineteenth century laws. Each flawed step of this supposed logical train suggests a judicial agenda of reaching a preconceived result devoid of historical reality. To say that these historical contortions demonstrate that New York's prohibition on possession of firearms at many public places "is consistent with the Nation's historical tradition of firearm regulation" per Bruen is seriously mistaken.
This matter is not about a single, erroneous citation with no consequence. Antonyuk is built on a house of cards to uphold onerous restrictions on the Second Amendment, it has influenced two other circuits covering three states to do the same, and more are sure to follow. These decisions seriously undermine and criminalize rights protected by the Second Amendment. If the circuits will not correct themselves, once again the Supreme Court should step in.
