My last article explained how the Second Circuit Antonyuk v. James (2024) relied on a false North Carolina citation of a nonexistent law as a supposed Founding-era analogue to enforce New York’s restrictions on “sensitive locations” where firearms cannot be possessed. (He also cited a 1786 Virginia law as analogous, but admitted that it had an element of “terrorism.”) On September 10, at Koons v. Attorney General of New Jerseythe Third Circuit followed the Second Circuit off the cliff, making the same mistake. The false “law” cited was the “NC Statute of Northampton (1792)”, which was in reality nothing more than a privately published text. Collection English laws that a certain François-Xavier Martin believed were applied in North Carolina.
On the other hand, the Ninth Circuit, in Wolford c.Lopez (2024), was not prepared to oppose the Supreme Court’s decisions so openly. The court found:
Defendant also points to the colonial laws of Virginia and North Carolina that succeeded the Statute of Northampton. But the Supreme Court explained that these laws prohibited the carrying of firearms only to “terrorize” the population or for “malicious purposes”; legal transportation was permitted. Bruen597 US, p. 49-51, 142 S. Ct. 2111; see also Rahimi144 S.Ct. to 1901 (describing these laws).
And now another Second Circuit panel says they were joking Antoniouk. In Frey v. City of New York (2025), issued September 19, the court included a footnote that began: “We are not so certain that the Northampton law, or the Virginia and North Carolina laws that replicated it, completely prohibited transportation.” ” Actually, “Bruen this undermines this interpretation. » Bruen read Northampton law to apply to carrying weapons only if it is done to terrify others. Frey continued that, as Bruen noted, the North Carolina Supreme Court in State vs. Huntly (1843) ruled that “the carrying of a firearm ‘for a lawful purpose’in itself constitutes no offense” and “(o)only transportation for an “evil purpose” with a “malicious result… constitutes a crime.”
But it doesn’t matter. Both Wolford And Frey got rid of any real analogues of the Founding Era and still maintained the broad restrictions of “sensitive locations” – those of California and Hawaii for the former, and New York City for the latter. Frey tried to have it both ways, “remaining confident in AntonioukThe conclusion that we have a well-established tradition of banning guns in crowded places. Laws from Virginia and North Carolina, dating from the founding era, show that legislators were sensitive to the potential chaos that handling firearms could cause in crowded places….” This is not accurate. Whether in a crowded or isolated place, both states required being armed to “terrorize” others, otherwise it was not a crime.
From there, Wolford And Frey return to AntonioukThe use of certain Reconstruction laws until the end of the 19th century. Remember that Antoniouk found that the non-existent “North Carolina model” somehow “evolved” into late 19th century restrictions, which were further analogues to justify the current ban in New York. But these restrictions were too few and too late to establish a historical tradition.
Specifically, Antoniouk refers to the banning of firearms in certain confined places, including “a fair, racetrack, or other public gathering of people” (Tennessee, 1869); assembled for “educational, literary, or scientific purposes, or in a ballroom, social party, or other social gathering” (Texas 1870); and “where people are assembled for educational, literary, or social purposes” (Missouri 1883).
Antoniouk asserted that state courts had upheld these provisions as constitutional, but that conclusion was unwarranted with one partial exception. These specific locations were not even a problem in the cases cited. The case of Tennessee Andrews v. State (1871) upheld the ban on carrying a small belt pistol or certain other weapons, but found the law unconstitutional when applied to a military-style revolver. The case of Texas English v. State (1871) upheld convictions for carrying a pistol while intoxicated and carrying a butcher knife to a religious assembly; as for the latter, the court ruled that this knife was not a “weapon” protected by the Constitution. The case of Missouri State v. Shelby (1886) addressed concealed carry and intoxicated carry.
In short, aside from the Texas case involving a butcher knife in a church, none of these decisions have examined and upheld the constitutionality of any of the prohibitions on gun possession in specific locations, such as those listed by Antoniouk.
Antoniouk further relied on the laws of the territories of Arizona (1889) and Oklahoma (1890) as demonstrating the tradition of prohibiting firearms in “typically 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 emphasized that territorial populations were “tiny,” that “territorial laws were rarely subject to judicial review,” and that territorial governments were “short-lived.”
Antoniouk also pointed to restrictions dating mostly from the late 19th century 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, he claimed that such restrictions were “written in the law books” of Virginia and North Carolina, which is simply not accurate. As with state laws, no Founding-era city adopted such restrictions.
Without any analogue from the founding era, Bruen does not authorize restrictions when the Fourteenth Amendment was adopted in 1868 or later as historical analogues to justify current bans on firearms. Bruen states categorically that “the individual rights enumerated in the Bill of Rights and made enforceable against the states by the Fourteenth Amendment are of the same scope as against the federal government” and that the Court “has generally assumed that the scope of protection applicable to the federal government and the states is related to the public understanding of that right when the Bill of Rights was adopted in 1791.”
Bruen noted “an ongoing scholarly debate” over whether the 1868 agreement defines the scope of the right, but said it “need not address this question” because the public understanding of the right to carry in public was the same in 1791 and 1868. Antoniouk I misread this to say that Bruen “expressly declined to decide” whether the courts should rely on the 1868 agreement.
As Justice Amy Coney Barrett stated in her Bruen competition: “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 recently stated in Espinoza v. Montana Department of Revenuea practice that “originated in the second half of the 19th century… cannot by itself establish an ancient American tradition” to illuminate the meaning of the First Amendment. Bruen thus “does not endorse the total reliance on historical practice of the mid-to-late 19th century to establish the original meaning of the Bill of Rights.”
Notwithstanding the above, Antoniouk sought to extend the time needed to determine the scope of the Second Amendment to 1868 and beyond, stating: “It would be incongruous to hold the right to keep and bear arms fully applicable to the States by the standards of Reconstruction, but then to define its scope and limits exclusively by the standards of 1791.” There is nothing incongruous in this, given that the Supreme Court relied on the understandings of the time Founding Council to interpret the scope of other provisions incorporated into the Bill of Rights, including the First, Fourth, Fifth, Sixth, and Eighth Amendments. See Mark W. Smith, “Beware the originalists:The Second Amendment was adopted in 1791, not 1868.”
But the Antoniouk The court does not suggest that the understanding of the Second Amendment can be based solely on 1868 and thereafter, and instead sought to trace that understanding to founding-era Virginia and North Carolina laws, but then abandoned the Virginia law with its “terror” element as “the outlier among the national tradition.” But as I showed in my last post, North Carolina has also recognized the “terrorist” element in the common law offense of using an offensive weapon.
This brings us full circle. Bruen had rejected New York’s claim that the Northampton Statute was the origin of the tradition of banning weapons in public places. What Antoniouk What we have done is to refine the argument for banning weapons, not everywhere in public, but in large “sensitive places”. The Statute mentioned “fairs and markets,” North Carolina reportedly enacted the Statute in 1792, and it is the analogue of today’s gun bans in “places typically crowded, notwithstanding behavior.”
Regardless, Antoniouk made a grave error in attempting to find Founding Era analogues in a Virginia law and a North Carolina “law”, abandoned the Virginia law because of its “terrorist” element, based the North Carolina “law” on a private publication never approved by the legislature, ignored actual North Carolina statutes, ignored judicial precedent from North Carolina, and then There – found that the North Carolina “law” was the basis for a handful of late 19th century statutes. Each imperfect step in this so-called logical train suggests a judicial agenda aimed at achieving a preconceived outcome devoid of historical reality. Saying these historical contortions demonstrate that New York State’s ban on gun ownership in many public places “is consistent with the nation’s historic tradition of gun regulation,” according to Bruen is seriously mistaken.
This is not just an inconsequential misquotation. Antoniouk is built on a house of cards to enforce heavy restrictions on the Second Amendment, it has influenced two other circuits spanning three states to do the same, and others are sure to follow. These decisions seriously undermine and criminalize the rights protected by the Second Amendment. If the circuits do not correct themselves, once again the Supreme Court should intervene.
