The Second Circuit’s Misunderstanding of Founding-Era Law on Going Armed
My piece bearing that title has recently appeared online in the Journal of Law & Civil Governance at Texas A&M. The abstract is provided below:
This essay examines how a spurious citation has misled courts into upholding gun prohibitions in “sensitive places.” New York State Rifle & Pistol Ass’n v. Bruen held that the Second Amendment typically protects conduct described by its plain text. A state must justify its restriction by showing alignment with America’s historical tradition of firearm regulation. The original public understanding at the Founding is crucial to that inquiry.
Following Bruen, courts have attempted to sustain prohibitions on firearms in various “sensitive places” based on an erroneous reading of the Founding-era offense of going armed in a way that frightened the public. Antonyuk v. James sustained New York’s place restrictions by asserting that Founding-era Virginia and North Carolina laws prohibited going armed per se in fairs and markets. It conceded that Virginia only barred going armed “in terror of the Country,” but asserted that North Carolina lacked that element, and it added that late-19th-century place restrictions mirrored the North Carolina model. That historical tradition of regulation, the Second Circuit claimed, justifies New York’s current statute.
Yet Antonyuk has collapsed under the weight of ignoring actual North Carolina law and mistaking a privately published treatise for statutory authority. In 1792, François-Xavier Martin released 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 noted that the Statute “has little bearing on the Second Amendment adopted in 1791,” and it was interpreted to apply only to going armed in a manner to terrorize others.
Antonyuk did not bother to examine real North Carolina law. In 1741, the colony enacted a statute directing constables to arrest “all such Persons as, in your Sight, shall ride or go armed offensively”; by contrast, it also provided that “no Slave shall go armed with Gun, Sword, Club, or other Weapon.” That same language appeared in 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 offensively, while going armed per se was a crime if the person was a slave.
Antonyuk further overlooked North Carolina precedents. State v. Huntly recognized the common-law offense of going armed to terrify, but stated that “the carrying of a gun per se constitutes no offense.” That interpretation of the law was repeated repeatedly as late as 2024.
Courts have been misled by citing Martin’s Collection as a “law” at the highest level. In Bruen, Justice Breyer, dissenting, 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 strains credulity to imagine a state passing a law with several references to “the King” sixteen years after the Declaration of Independence.
It remains unclear where the rumor began that Martin’s book was a “law,” but the Duke Center for Firearms Law lists it in its Repository of Historical Gun Laws under the citation “ch. 3, N.C. Gen. Stat. (Francois X. Martin 1792).” Chapter 3 of the 1792 North Carolina General Statutes contained no such provision. Another erroneous citation for this supposed “law” that has appeared is “1792 N.C. Laws 60, 61 ch. 3,” which does not exist.
The Ninth Circuit, in Wolford v. Lopez, acknowledged that Bruen rejected the alleged place restrictions in North Carolina law, but nonetheless upheld them in the absence of any Founding-era tradition of regulation. By contrast, the Third Circuit accepted Antonyuk wholesale in Koons v. Attorney General of New Jersey, endorsing New Jersey’s expansive place bans and even repeating the mischaracterization that Martin’s book was a North Carolina “law.” Then a separate Second Circuit panel, in Frey v. City of New York, conceded that Bruen undermines Antonyuk’s reading, yet still sustained other components of New York’s “sensitive place” prohibitions despite the absence of a Founding-era regulatory tradition.
This issue is not about a single erroneous citation with negligible consequences. In Antonyuk, the Second Circuit built its entire theory of Founding-era analogs on shaky ground to comply with Bruen‘s directive to locate a historical tradition of regulation that could justify New York’s broad restrictions. That decision has since steered two other circuits, spanning three states, to adopt the same flawed approach—and others may follow. These rulings rest on a seriously mistaken reading of America’s historical tradition of firearm regulation and ought to be reversed.
[Note: The Third Circuit has granted rehearing en banc in Koons, thus vacating the panel decision.]
