Second Amendment Roundup: How a Fake Citation Misled Courts to Uphold "Sensitive Place" Gun Bans

The Second Circuit’s Misunderstanding of Founding-Era Law on Going Armed

My article with the above title has now been published online by the Journal of Law & Civil Governance at Texas A&M.  The following is the Abstract:

This article concerns how a fake citation has misled courts to uphold "sensitive place" gun bans. New York State Rifle & Pistol Ass'n v. Bruen held that the Second Amendment presumptively protects conduct covered by its plain text. A state must justify its restriction by showing it to be consistent with America's historical tradition of firearm regulation. The original public understanding at the Founding is key to that question.

Post-Bruen, courts have sought to uphold restrictions that ban firearms in various "sensitive places" based on a misunderstanding of the Founding-era offense of going armed in a manner that terrorized the public.  Antonyuk v. James upheld New York's place restrictions based on its claim that Founding-era Virginia and North Carolina laws banned going armed per se in fairs and markets. However, it conceded that Virginia only prohibited going armed "in terror of the Country," but maintained that North Carolina had no such element of the offense, adding that place restrictions in the late 19th century followed the North Carolina model. That historical tradition of regulation, the Second Circuit held, justifies New York's current law.

But Antonyuk has constructed a house of cards by ignoring actual North Carolina law and mistaking a privately published book for that law. In 1792, François-Xavier Martin published A Collection of the Statutes of the Parliament of England in Force in the State of North-Carolina, which included the 1328 Statute of Northampton. Bruen commented that the Statute "has little bearing on the Second Amendment adopted in 1791," and in any event it was interpreted to apply only to going armed in a manner to terrorize others.

Antonyuk did not bother to research actual North Carolina law. In 1741, the colony of North Carolina enacted a law directing constables to arrest "all such Persons as, in your Sight, shall ride or go armed offensively"; by contrast, it further provided that "no Slave shall go armed with Gun, Sword, Club, or other Weapon." That same language was approved by an act passed in 1791 and continued to reappear in the statutes at least as late as 1855. Going armed was not a crime unless done so offensively, while going armed per se was a crime if the person was a slave.

Antonyuk further ignored North Carolina precedents. State v. Huntly recognized the common-law offense of going armed to terrify, but said that "the carrying of a gun per se constitutes no offence." That reading of the law was repeated over and over as late as 2024.

Courts have been misled by the citation of Martin's Collection as a "law" at the highest level. Dissenting in Bruen, Justice Breyer cited Martin as the authority for the proposition that "North Carolina enacted a law whose language was lifted from the Statute of Northampton virtually verbatim (vestigial references to the King included)." It boggles the imagination to think that the state would enact a law with several references to "the King" sixteen years after the Declaration of Independence.

It is unclear where the rumor started that Martin's book was a "law," but the Duke Center for Firearms Law includes it in its Repository of Historical Gun Laws under the citation "ch. 3, N.C. Gen. Stat. (Francois X. Martin 1792)." Chapter 3 of N.C. General Statutes in 1792 included no such provision. Another fake citation for this "law" that has been cited is "1792 N.C. Laws 60, 61 ch. 3," which does not exist.

The Ninth Circuit, in Wolford v. Lopez, recognized that Bruen rejected the purported place restrictions in North Carolina law, but upheld them anyway despite no Founding-era tradition of regulation. Yet the Third Circuit swallowed Antonyuk hook, line, and sinker to uphold New Jersey's extensive place bans, including the misrepresentation that Martin's book was a North Carolina "law," in Koons v. Attorney General of New Jersey. And then a different panel of the Second Circuit, in Frey v. City of New York, admitted that "Bruen undermines" Antonyuk's interpretation, but upheld other parts of New York's "sensitive place" bans despite no Founding-era tradition of regulation.

This matter is not about a single, erroneous citation with no consequence. In Antonyuk, the Second Circuit built its entire theory of Founding-era analogs on sand in order to comply with Bruen's directive to find a historical tradition of regulation that supported New York's wide restrictions. That decision has since influenced two other circuits, covering three states, to adopt the same flawed approach—and others may soon follow. These decisions are based on a badly mistaken analysis of America's historical tradition of firearm regulation and should be overturned.

[Note: The Third Circuit has granted rehearing en banc in Koons, thus vacating the panel decision.]