Petition for Writ of Certiorari — Wes Moore, Governor of Maryland, et al., Petitioners v. Susannah Warner Kipke, et al.
Supreme Court briefApr 20, 2026
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No. 25-____
IN THE
Supreme Court of the United States
————
WES MOORE, et al.,
Petitioners,
v.
SUSANNAH WARNER KIPKE, et al.,
Respondents.
————
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
————
PETITION FOR WRIT OF CERTIORARI
————
ANTHONY G. BROWN
Attorney General of Maryland
JULIA DOYLE
Solicitor General
RYAN R. DIETRICH*
Assistant Attorney General
200 Saint Paul Place
20th Floor
Baltimore, Maryland 21202
(410) 576-7648
rdietrich@oag.maryland.gov
April 2026
*Counsel of Record
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
QUESTION PRESENTED
Did the court of appeals err in concluding that
Maryland’s private building consent rule, which
prohibits individuals from carrying firearms into
buildings on private property without first obtaining
permission from the owner (or the owner’s agent), is
unconstitutional?
(i)
ii
PARTIES TO THE PROCEEDINGS
This case arises from four consolidated appeals in
the Fourth Circuit. The petitioners from Nos. 24-1799
and 24-1834 are Wes Moore, in his official capacity as
Governor of Maryland; and Michael Jackson, in his
official capacity as Maryland Secretary of State
Police.1 The petitioners in Nos. 24-1827 and 24-1836
are, in addition to Governor Moore and Secretary
Jackson, Ivan Bates, in his official capacity as State’s
Attorney for Baltimore City; Alison Healey, in her
official capacity as State’s Attorney for Harford County;
Joshua Kurtz, in his official capacity as Maryland
Secretary of Natural Resources; Scott Shellenberger,
in his official capacity as State’s Attorney for Baltimore
County; and Kathryn Thomson, in her official capacity
as Maryland Secretary of Transportation.2
The respondents from Nos. 24-1799 and 24-1834 are
Susannah Warner Kipke and the Maryland State Rifle
and Pistol Association, Inc. The respondents from
Nos. 24-1827 and 24-1836 are Katherine Novotny, Sue
Burke, Esther Rossberg, Maryland Shall Issue, Inc.,
the Second Amendment Foundation, and the Firearms
Policy Coalition.
1
At the time that the litigation was initiated, Roland Butler
was the Maryland Secretary of State Police. Secretary Jackson
has served in this capacity since February 17, 2026.
2
At the time that the litigation was initiated, Paul Wiedefeld
was the Maryland Secretary of Transportation. Secretary
Thomson has served in this capacity since March 20, 2026.
iii
STATEMENT OF RELATED PROCEEDINGS
Kipke v. Moore, Nos. 24-1799, 24-1827, 24-1834, 241836 (4th Cir.) (judgment entered Jan. 20, 2026)
Kipke v. Moore, Nos. GLR-23-1293, GLR-23-1295
(D. Md.) (judgment entered Aug. 2, 2024)
TABLE OF CONTENTS
Page
QUESTION PRESENTED ..................................
i
PARTIES TO THE PROCEEDINGS ..................
ii
STATEMENT OF RELATED PROCEEDINGS ...
iii
TABLE OF AUTHORITIES ................................
vi
OPINIONS BELOW ............................................
1
JURISDICTION ..................................................
1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ..............................
1
STATEMENT ......................................................
1
Factual Background .......................................
1
Procedural History .........................................
2
REASONS FOR GRANTING THE PETITION....
6
CONCLUSION ....................................................
7
APPENDIX
APPENDIX A: Opinion, U.S. Court of Appeals
for the Fourth Circuit (Jan. 20, 2026) .........
1a
APPENDIX B: Memorandum Opinion, U.S.
District Court for the District of Maryland
(Aug. 2, 2024) ................................................ 104a
APPENDIX C: Order, U.S. District Court for
the District of Maryland (Aug. 2, 2024)....... 119a
APPENDIX D: Constitutional and Statutory
Provisions Involved ...................................... 122a
(v)
vi
TABLE OF AUTHORITIES
CASES
Page(s)
Lawrence v. Chater,
516 U.S. 163 (1996) ...................................
6
Wolford v. Lopez,
116 F.4th 959 (9th Cir. 2024) ...................
5-7
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. II ............................... 1, 2, 5, 7
STATUTES
28 U.S.C. § 1254(l) ........................................
1
28 U.S.C. § 2101(c) .......................................
1
Haw. Rev. Stat. § 134-9.5 .............................
6
Md. Code Ann., Crim. Law § 4-111(a)(2)
(LexisNexis Supp. 2023) ..............................
1-2
Md. Code Ann., Crim. Law § 4-111(a)(8)
(LexisNexis Supp. 2023) ..............................
2
Md. Code Ann., Crim. Law § 4-111(d)(2)
(LexisNexis Supp. 2023) ..............................
2
Md. Code Ann., Crim. Law § 6-411(a)(6)
(LexisNexis Supp. 2023) ..............................
2
Md. Code Ann., Crim. Law § 6-411(c)
(LexisNexis Supp. 2023) ..............................
2
Md. Code Ann., Crim. Law § 6-411(d)
(LexisNexis Supp. 2023) ..............................
2
PETITION FOR WRIT OF CERTIORARI
Petitioners seek a writ of certiorari to review the
judgment of the United States Court of Appeals for the
Fourth Circuit.
OPINIONS BELOW
The opinion of the court of appeals is reported at 165
F.4th 194 (4th Cir. 2026) and is reproduced at
App. 1a-103a. The district court’s August 2, 2024
opinion is unreported and is reproduced at App. 104a118a.
JURISDICTION
The court of appeals entered its judgment on
January 20, 2026. This petition is timely filed on April
20, 2026. See 28 U.S.C. § 2101(c). This Court has
jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
The Second Amendment to the United States
Constitution and relevant portions of the Maryland
Code are reproduced at App. 122a-124a.
STATEMENT
Factual Background
On May 16, 2023, Governor Wes Moore signed into
law Senate Bill 1, which restricted where individuals
could carry firearms in Maryland. Building on longstanding restrictions at locations such as mass transit
facilities, state parks, and public demonstrations,
Senate Bill 1 first prohibited individuals from carrying
firearms in three categories of locations: (1) “area[s] for
children and vulnerable individuals” (encompassing
schools, daycares, and health care facilities), Md. Code
2
Ann., Crim. Law § 4-111(a)(2) (LexisNexis Supp. 2023);
(2) “government or public infrastructure area[s]”
(encompassing government buildings, polling places,
universities, and power plants), id. § 4-111(d)(2); and
(3) “special purpose area[s]” (encompassing certain
places where the public gathers for entertainment,
educational enrichment, or other collective social
pursuits, such as museums and stadiums), id.
§ 4-111(a)(8).
Second, and pertinent to this petition, Senate Bill 1
prohibited individuals (with exceptions for active
members of law enforcement and the military) from
entering buildings on private property while carrying
firearms without first obtaining permission to do so
(the “private building consent rule”). These provisions
apply only to buildings and expressly exclude “the land
adjacent to a building.” Crim. Law § 6-411(a)(6).
With regard to any private building other than a
dwelling, 1 an individual carrying a firearm may not
“enter or trespass” at such a building “unless the
owner or the owner’s agent” (1) “has posted a clear and
conspicuous sign indicating that it is permissible to”
carry a firearm in the building; or (2) “has given the
person express permission” to carry a firearm in the
building. Id. § 6-411(d).
Procedural History
On the same day that Senate Bill 1 was signed into
law, two sets of plaintiffs filed lawsuits challenging the
law’s constitutionality, primarily on Second Amendment
grounds, against a series of State officials (collectively,
Plaintiffs have not challenged Senate Bill 1 to the extent that
the law prohibits individuals from entering another’s dwelling
while armed without permission to do so. Crim. Law § 6-411(c).
1
3
“the State”). App. 107a. Together, the two suits
challenged restrictions applying to (1) state parks and
forests; (2) mass transit facilities and vehicles;
(3) school property (but not school buildings themselves);
(4) health care facilities; (5) property under the
jurisdiction of the Maryland Department of General
Services; (6) entertainment facilities such as stadiums,
racetracks, amusement parks, and casinos; (7) property
operated as a museum by the Maryland Department
of Planning; (8) buildings owned or leased by a unit of
state or local government (but not legislative assemblies,
polling places, or courthouses); (9) locations selling
alcohol for on-site consumption; and (10) public
demonstrations (and areas within 1,000 feet thereof).
App. 107a-108a.
The plaintiffs also challenged the private building
consent rule, but not as to dwellings. App. 41a, 108a.
Each set of plaintiffs moved for a preliminary
injunction and for summary judgment. App. 41a, 108a.
The State also moved for summary judgment as to all
claims. App. 108a. After consolidating the cases, the
district court denied injunctive relief as to the bulk of
the plaintiffs’ claims, including those challenging
restrictions at museums, health care facilities, mass
transit facilities and vehicles, state parks,
entertainment facilities, school grounds, and
government buildings. App. 109a-110a. The district
court enjoined the private building consent rule,
however, as well as the restrictions at public
demonstrations and locations that sell alcohol for onsite consumption. App. 109a-110a.
The court also denied all summary judgment
motions without prejudice. App. 110a. The parties
then renewed those motions, which the court granted
in part and denied in part in a manner corresponding
4
to its disposition of the preliminary injunction
motions. App. 113a-114a. All parties timely appealed.
The United States Court of Appeals for the Fourth
Circuit, which consolidated the appeals, affirmed in
part and reversed in part. The court affirmed the
district court’s judgment as it related to all the
locational firearms restrictions that the district court
had upheld (i.e., restrictions at government buildings,
mass transit facilities, school grounds, state parks and
forests, health care facilities, and places of amusement). App. 8a-10a. The court of appeals reversed the
district court’s judgment as it related to the two
locational restrictions that the district court had
struck down (i.e., restrictions at public demonstrations
and locations that serve alcohol). App. 9a-10a.
With regard to the private building consent rule, the
Fourth Circuit affirmed the district court’s conclusion
that the restriction was unconstitutional. App. 10a,
38a-41a. The court first rejected the State’s contention
that the plaintiffs lacked standing. App. 39a-40a. The
court concluded that (1) the plaintiffs had
demonstrated an injury-in-fact because, if they
continue to carry firearms onto private property, they
will face prosecution under the law; (2) there is a
causal connection between the burden on the
plaintiffs’ right to carry and the law’s prohibitions; and
(3) any injury would be redressable by an injunction
against enforcement of the law. App. 39a-40a.
The court next ruled for the plaintiffs on the merits.
It rejected the State’s argument that the private
building consent rule was consistent with the State’s
power to alter property law and that the rule did
nothing more than “merely operate to ‘arrang[e] the
default rules that apply specifically to the carrying of
5
firearms onto private property.’” App. 40a (quoting
Wolford v. Lopez, 116 F.4th 959, 995 (9th Cir. 2024)).
The Fourth Circuit also rejected the State’s contention that the private building consent rule is
consistent with the Nation’s historical tradition of
firearm regulation. The court concluded that the
historical laws cited by the State either (1) were
inapposite because they related only to hunting and
did “not support a broader tradition of excluding all
weapons for all purposes from the private property of
others without express permission”; or (2) “appear[ed]
to be outliers.” App. 40a-41a. The court noted that,
because “Maryland’s rule would effectively declare
most public places ‘gun-free zones,’” “that likely stretches
the sensitive places doctrine too far.” App. 41a.
Judge Agee concurred in part and dissented in part.
Judge Agee joined the majority in concluding that the
private building consent rule was unconstitutional.
App. 44a. And although Judge Agee joined the
majority in affirming the constitutionality of some
of the locational restrictions (such as government
buildings, school grounds, and health care facilities),
he concluded that other locational restrictions (such as
parks, places of amusement, locations that serve
alcohol, and public demonstrations) were violative of
the Second Amendment. App. 44a.
6
REASONS FOR GRANTING THE PETITION
This case presents the question of whether a State
may enact a law that prohibits the carrying of a
firearm on private property without the permission of
the landowner or occupant. This Court is currently
considering a substantively identical question in
Wolford v. Lopez, No. 24-1046, in which oral argument
was held on January 20. The Court should hold the
petition for a writ of certiorari in this case pending
disposition of Wolford. If that disposition so warrants,
the Court should then grant certiorari in this case,
vacate the court of appeals’ judgment, and remand the
case for further consideration.
That course is appropriate because there is a
“reasonable probability that the decision below rests
upon a premise that the lower court would reject if
given the opportunity for further consideration” in
light of Wolford. Lawrence v. Chater, 516 U.S. 163, 167
(1996) (per curiam). Specifically, the decision below
rests on the dual premises that (1) Maryland’s law is
not rooted in its inherent authority to “arrang[e] the
default rules that apply specifically to the carrying of
firearms onto private property,” App. 40a (quoting
Wolford, 116 F.4th at 995); and (2) Maryland’s law is
inconsistent with this Nation’s historical tradition of
firearm regulation, App. 40a-41a.
In Wolford, the State of Hawai’i is defending the
constitutionality of a substantively identical statute
that prohibits a person from entering onto the private
property of another while armed “unless the person
has been given express authorization to carry a
firearm on the property by the owner, lessee, operator,
or manager of the property.” Haw. Rev. Stat. § 134-9.5.
Much as Maryland argued below, Hawai’i argues in
Wolford that its private building consent rule does not
7
implicate the Second Amendment because it is a
regulation of default property rules. See Br. of Hawai’i
at 13-27, Wolford (No. 24-1046). Hawai’i also argues
that, even if its law did implicate the Second
Amendment, the law is consistent with the Nation’s
tradition of regulating firearms on private property.
See id. at 27-44. If this Court accepts either of those
arguments, the Fourth Circuit would need to revisit its
analysis.
CONCLUSION
The petition for a writ of certiorari should be held
pending this Court’s disposition of Wolford v. Lopez,
No. 24-1046. If that disposition so warrants, the Court
should then grant the petition, vacate the court of
appeals’ judgment, and remand the case for further
consideration in light of Wolford.
Respectfully submitted,
ANTHONY G. BROWN
Attorney General of Maryland
JULIA DOYLE
Solicitor General
RYAN R. DIETRICH*
Assistant Attorney General
200 Saint Paul Place
20th Floor
Baltimore, Maryland 21202
(410) 576-7648
rdietrich@oag.maryland.gov
*Counsel of Record
APPENDIX
APPENDIX TABLE OF CONTENTS
Page
APPENDIX A: Opinion, U.S. Court of Appeals
for the Fourth Circuit (Jan. 20, 2026) ..........
1a
APPENDIX B: Memorandum Opinion, U.S.
District Court for the District of Maryland
(Aug. 2, 2024) ................................................ 104a
APPENDIX C: Order, U.S. District Court for
the District of Maryland (Aug. 2, 2024) ....... 119a
APPENDIX D: Constitutional and Statutory
Provisions Involved ....................................... 122a
1a
APPENDIX A
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
————
No. 24-1799
————
SUSANNAH WARNER KIPKE; MARYLAND STATE
RIFLE AND PISTOL ASSOCIATION, INC.,
Plaintiffs – Appellants,
v.
WES MOORE, IN HIS OFFICIAL CAPACITY AS
GOVERNOR OF MARYLAND; ROLAND L. BUTLER, JR.,
IN HIS OFFICIAL CAPACITY AS MARYLAND STATE POLICE
SUPERINTENDENT AND SECRETARY; JOSHUA KURTZ,
IN HIS OFFICIAL CAPACITY AS SECRETARY
OF NATURAL RESOURCES,
Defendants – Appellees.
————
EVERYTOWN FOR GUN SAFETY; BRADY CENTER TO
PREVENT GUN VIOLENCE; GIFFORDS LAW CENTER TO
PREVENT GUN VIOLENCE; DISTRICT OF COLUMBIA;
ILLINOIS; CALIFORNIA; COLORADO; CONNECTICUT;
DELAWARE; HAWAII; MAINE; MASSACHUSETTS;
MINNESOTA; NEVADA; NEW JERSEY; NEW YORK;
OREGON; PENNSYLVANIA; RHODE ISLAND;
VERMONT; WASHINGTON,
Amici Supporting Appellees.
————
2a
No. 24-1827
————
KATHERINE NOVOTNY; SUE BURKE; ESTHER ROSSBERG;
MARYLAND SHALL ISSUE, INC.; SECOND AMENDMENT
FOUNDATION; FIREARMS POLICY COALITION,
Plaintiffs – Appellants,
v.
WESLEY MOORE, IN HIS OFFICIAL CAPACITY AS
GOVERNOR OF MARYLAND; ALISON M. HEALEY, IN HER
OFFICIAL CAPACITY AS STATES ATTORNEY FOR HARFORD
COUNTY, MARYLAND; SCOTT D. SHELLENBERGER, IN HIS
OFFICIAL CAPACITY AS STATES ATTORNEY FOR
BALTIMORE COUNTY, MARYLAND; IVAN J. BATES,
IN HIS OFFICIAL CAPACITY AS STATES ATTORNEY FOR
BALTIMORE CITY, MARYLAND; COL. ROLAND L. BUTLER,
JR., IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF
THE MARYLAND STATE POLICE; PAUL J. WIEDEFELD,
IN HIS OFFICIAL CAPACITY AS SECRETARY OF
TRANSPORTATION; JOSHUA KURTZ, IN HIS OFFICIAL
CAPACITY AS SECRETARY OF NATURAL RESOURCES,
Defendants – Appellees.
EVERYTOWN FOR GUN SAFETY; BRADY CENTER TO
PREVENT GUN VIOLENCE; GIFFORDS LAW CENTER TO
PREVENT GUN VIOLENCE; DISTRICT OF COLUMBIA;
ILLINOIS; CALIFORNIA; COLORADO; CONNECTICUT;
DELAWARE; HAWAII; MAINE; MASSACHUSETTS;
MINNESOTA; NEVADA; NEW JERSEY; NEW YORK;
OREGON; PENNSYLVANIA; RHODE ISLAND;
VERMONT; WASHINGTON,
Amici Supporting Appellees.
————
No. 24-1834
————
3a
SUSANNAH WARNER KIPKE; MARYLAND STATE
RIFLE AND PISTOL ASSOCIATION, INC.,
Plaintiffs – Appellees,
v.
WES MOORE, IN HIS OFFICIAL CAPACITY AS
GOVERNOR OF MARYLAND; ROLAND L. BUTLER, JR.,
IN HIS OFFICIAL CAPACITY AS MARYLAND STATE
POLICE SUPERINTENDENT AND SECRETARY;
JOSHUA KURTZ, IN HIS OFFICIAL CAPACITY AS
SECRETARY OF NATURAL RESOURCES,
Defendants – Appellants.
EVERYTOWN FOR GUN SAFETY; BRADY CENTER TO
PREVENT GUN VIOLENCE; GIFFORDS LAW CENTER TO
PREVENT GUN VIOLENCE; DISTRICT OF COLUMBIA;
ILLINOIS; CALIFORNIA; COLORADO; CONNECTICUT;
DELAWARE; HAWAII; MAINE; MASSACHUSETTS;
MINNESOTA; NEVADA; NEW JERSEY; NEW YORK;
OREGON; PENNSYLVANIA; RHODE ISLAND;
VERMONT; WASHINGTON,
Amici Supporting Appellants.
————
No. 24-1836
————
KATHERINE NOVOTNY; SUE BURKE; ESTHER ROSSBERG;
MARYLAND SHALL ISSUE, INC.; SECOND AMENDMENT
FOUNDATION; FIREARMS POLICY COALITION,
Plaintiffs – Appellees,
v.
4a
WESLEY MOORE, IN HIS OFFICIAL CAPACITY AS
GOVERNOR OF MARYLAND; ALISON M. HEALEY, IN HER
OFFICIAL CAPACITY AS STATES ATTORNEY FOR HARFORD
COUNTY, MARYLAND; SCOTT D. SHELLENBERGER, IN HIS
OFFICIAL CAPACITY AS STATES ATTORNEY FOR
BALTIMORE COUNTY, MARYLAND; IVAN J. BATES,
IN HIS OFFICIAL CAPACITY AS STATES ATTORNEY FOR
BALTIMORE CITY, MARYLAND; COL. ROLAND L. BUTLER,
JR., IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF
THE MARYLAND STATE POLICE; PAUL J. WIEDEFELD, IN
HIS OFFICIAL CAPACITY AS SECRETARY OF
TRANSPORTATION; JOSHUA KURTZ, IN HIS OFFICIAL
CAPACITY AS SECRETARY OF NATURAL RESOURCES,
Defendants – Appellants.
EVERYTOWN FOR GUN SAFETY; BRADY CENTER TO
PREVENT GUN VIOLENCE; GIFFORDS LAW CENTER TO
PREVENT GUN VIOLENCE; DISTRICT OF COLUMBIA;
ILLINOIS; CALIFORNIA; COLORADO; CONNECTICUT;
DELAWARE; HAWAII; MAINE; MASSACHUSETTS;
MINNESOTA; NEVADA; NEW JERSEY; NEW YORK;
OREGON; PENNSYLVANIA; RHODE ISLAND;
VERMONT; WASHINGTON,
Amici Supporting Appellants.
————
Appeals from the United States District Court for
the District of Maryland, at Baltimore. George L.
Russell, III, Chief District Judge. (1:23-cv-01293GLR; 1:23-cv-01295-GLR; 1:23-cv-01293-GLR;
1:23-cv-01295-GLR)
————
5a
————
Argued: May 7, 2025
Decided: January 20, 2026
————
Before DIAZ, Chief Judge, GREGORY, and AGEE,
Circuit Judges.
————
Affirmed in part and reversed in part by published
opinion. Judge Gregory wrote the opinion, in which
Chief Judge Diaz joined. Judge Agee wrote a separate
opinion concurring in part and dissenting in part.
————
ARGUED: Peter A. Patterson, COOPER & KIRK,
PLLC, Washington, D.C.; John Parker Sweeney,
BRADLEY ARANT BOULT CUMMINGS LLP,
Washington, D.C., for Appellants/Cross-Appellees.
Ryan Robert Dietrich, OFFICE OF THE ATTORNEY
GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellees/Cross-Appellants. ON BRIEF: James
W. Porter, III, William Chadwick Lamar, Jr.,
BRADLEY ARANT BOULT CUMMINGS LLP,
Washington, D.C., for Appellants/Cross-Appellees
Susannah Warner Kipke and Maryland State Rifle
and Pistol Association, Inc. David H. Thompson,
Megan Marie Wold, William V. Bergstrom, COOPER
& KIRK, PLLC, Washington, D.C., for Appellants/
Cross-Appellees Katherine Novotny, Sue Burke,
Esther Rossberg, Maryland Shall Issue, Inc., Second
Amendment Foundation, and Firearms Policy
Coalition. Mark W. Pennak, LAW OFFICES OF
MARK W. PENNAK, Chevy Chase, Maryland, for
Appellants/Cross-Appellees Katherine Novotny; Sue
Burke; Esther Rossberg; Maryland Shall Issue, Inc.;
6a
Second Amendment Foundation; and Firearms Policy
Coalition. Anthony G. Brown, Attorney General,
Jessica M. Finberg, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Baltimore, Maryland, for Appellees/
Cross-Appellants. Janet Carter, William J. Taylor,
Jr., New York, New York, Sana S. Mesiya,
EVERYTOWN LAW, Washington, D.C., for Amicus
Everytown for Gun Safety. Kelly M. Percival, Esther
Sanchez-Gomez, GIFFORDS LAW CENTER TO
PREVENT GUN VIOLENCE, San Francisco, California, for Amicus Giffords Law Center to Prevent
Gun Violence. Melanie R. Hallums, New York, New
York, Thomas M. Bondy, Holly J. Boux, ORRICK,
HERRINGTON & SUTCLIFFE LLP, Washington,
D.C.; Douglas N. Letter, Shira Lauren Feldman, Tess
M. Fardon, BRADY CENTER TO PREVENT GUN
VIOLENCE, Washington, D.C., for Amicus Brady
Center to Prevent Gun Violence. Brian L. Schwalb,
Attorney General, Caroline S. Van Zile, Solicitor
General, Ashwin P. Phatak, Principal Deputy
Solicitor General, Anne A. Deng, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL
FOR THE DISTRICT OF COLUMBIA, Washington,
D.C., for Amicus District of Columbia. Kwame Raoul,
Attorney General, Jane Elinor Notz, Solicitor
General, Sarah A. Hunger, Deputy Solicitor General,
OFFICE OF THE ATTORNEY GENERAL OF
ILLINOIS, Chicago, Illinois, for Amicus State of
Illinois. Rob Bonta, Attorney General, OFFICE OF
THE ATTORNEY GENERAL OF CALIFORNIA,
Sacramento, California, for Amicus State of
California. William Tong, Attorney General, OFFICE
OF THE ATTORNEY GENERAL OF CONNECTICUT, Hartford, Connecticut, for Amicus State of
Connecticut. Anne E. Lopez, Attorney General,
7a
OFFICE OF THE ATTORNEY GENERAL OF
HAWAII, Honolulu, Hawaii, for Amicus State of
Hawaii. Andrea Campbell, Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF
MASSACHUSETTS, Boston, Massachusetts, for
Amicus Commonwealth of Massachusetts. Aaron D.
Ford, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NEVADA, Carson City, Nevada,
for Amicus State of Nevada. Letitia James, Attorney
General, OFFICE OF THE ATTORNEY GENERAL
OF NEW YORK, New York, New York, for Amicus
State of New York. Michelle A. Henry, Attorney
General, OFFICE OF THE ATTORNEY GENERAL
OF PENNSYLVANIA, Harrisburg, Pennsylvania, for
Amicus Commonwealth of Pennsylvania. Charity R.
Clark, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VERMONT, Montpelier,
Vermont, for Amicus State of Vermont. Philip J.
Weiser, Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF COLORADO, Denver,
Colorado, for Amicus State of Colorado. Kathleen
Jennings, Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF DELAWARE, Wilmington, Delaware, for Amicus State of Delaware. Aaron
M. Frey, Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF MAINE, Augusta,
Maine, for Amicus State of Maine. Keith Ellison,
Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF MINNESOTA, St. Paul, Minnesota,
for Amicus State of Minnesota. Matthew J. Platkin,
Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF NEW JERSEY, Trenton, New Jersey,
for Amicus State of New Jersey. Ellen F. Rosenblum,
Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF OREGON, Salem, Oregon, for Amicus
State of Oregon. Peter F. Neronha, Attorney General,
8a
OFFICE OF THE ATTORNEY GENERAL OF
RHODE ISLAND, Providence, Rhode Island, for
Amicus State of Rhode Island. Robert W. Ferguson,
Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF WASHINGTON, Olympia, Washington, for Amicus State of Washington.
————
GREGORY, Circuit Judge:
Plaintiffs challenged numerous Maryland regulations prohibiting guns in various places as violative
of the Second Amendment. Maryland defends each
prohibition by invoking the sensitive place exception
to the Second Amendment, first identified in District
of Columbia v. Heller, 554 U.S. 570, 626–27 (2008).
The Court splits on the constitutionality of many of
the regulations so, for ease of reference, we
summarize our holdings here, noting which parts of
each of our respective opinions are controlling.
As to the proper sensitive place framework, Judge
Gregory writes for the court. Chief Judge Diaz agrees
and Judge Agee writes separately.
We unanimously hold that Maryland’s prohibition
on guns in government buildings is constitutional
and affirm the district court. See Md. Code, Crim.
Law § 4-111(a)(4)(i); Code of Md. Regs. § 04.05.01. 1
Judge Gregory, joined by Chief Judge Diaz and Judge
Agee, writes for the Court on this question.
We hold that Maryland’s prohibition on guns in
public transportation is constitutional and affirm the
district court. See Md. Code, Transp. § 7-705(b)(6).
Any citations to Maryland’s regulations reference the version current at the time of the parties’ briefing.
1
9a
Judge Gregory, joined by Chief Judge Diaz, writes for
the Court on this question, and Judge Agee dissents.
We unanimously hold that Maryland’s prohibition
on guns on school grounds is constitutional and
affirm the district court. See Md. Code, Crim. Law
§§ 4-102(b), 4- 111(a)(2)(i)–(ii). Judge Gregory, joined
by Chief Judge Diaz and Judge Agee, writes for the
Court on this question.
We hold that Maryland’s prohibition on guns
within 1,000 feet of a public demonstration is
constitutional and reverse the district court. See Md.
Code, Crim. Law § 4-208. Judge Gregory, joined by
Chief Judge Diaz, writes for the Court on this
question, and Judge Agee dissents.
We hold that Maryland’s prohibition on guns in
state parks, see Code of Md. Regs. § 08.07.06.04(B),
is constitutional and that Maryland’s prohibitions on
guns in state forests, see Code of Md. Regs.
§ 08.07.01.04(B), and Chesapeake Forest Lands, see
Code of Md. Regs. § 08.01.07.14(B), are likewise
constitutional. Judge Gregory, joined by Chief Judge
Diaz, writes for the Court on this question. Judge
Agee would hold that Maryland’s restriction on guns
in state parks and forests is unconstitutional.
We hold that Maryland’s prohibition on guns in
museums is constitutional and affirm the district
court. See Md. Code, Crim. Law § 4-111(a)(8)(iii).
Judge Gregory, joined by Chief Judge Diaz, writes for
the Court, and Judge Agee dissents.
We unanimously hold that Maryland’s prohibition
on guns in healthcare facilities is constitutional and
affirm the district court. See Md. Code, Crim. Law
§ 4-111(a)(2)(iii). Judge Gregory, joined by both Chief
Judge Diaz and Judge Agee, writes for the Court.
10a
We hold that Maryland’s prohibitions on guns at
stadiums, racetracks, amusement parks, and casinos
are constitutional and affirm the district court. See
Md. Code, Crim Law § 4-111(a)(8)(ii), (iv), (v), (vi);
Code of Md. Regs. §§ 14.25.02.06, 36.03.10.48. Judge
Gregory, joined by Chief Judge Diaz, writes for the
Court, and Judge Agee dissents.
We hold that Maryland’s prohibition on guns in
locations that sell alcohol is constitutional and
reverse the district court. See Md. Code, Crim. Law
§ 4-111(a)(8). Judge Gregory, joined by Chief Judge
Diaz, writes for the Court, and Judge Agee dissents.
We hold that Maryland’s prohibition on carrying
guns on private property held open to the public is
unconstitutional and affirm the district court. See
Md. Code, Crim. Law § 6-411(d). Judge Gregory,
joined by Chief Judge Diaz, writes for the Court, and
Judge Agee joins. With respect to property not held
open to the public, however, we hold that Plaintiffs
lack standing. Judge Gregory, joined by Chief Judge
Diaz, writes for the Court, and Judge Agee joins.
In sum, all sections of Judge Gregory’s opinion are
controlling.
I.
In this consolidated cross-appeal, two sets of
plaintiffs challenge various Maryland regulations
prohibiting guns in certain locations. As relevant
here, both sets of plaintiffs challenge firearm
restrictions related to: 1) government buildings; (2)
mass transit facilities and vehicles; (3) school
grounds; (4) public demonstrations (and areas within
1,000 feet thereof); (5) state parks and forests; (6)
healthcare facilities; (7) places of amusement, including museums, stadiums, racetracks, video lottery
11a
facilities, amusement parks, and casinos; (8) locations
that sell alcohol; and (9) private property.
Both sets of plaintiffs moved for preliminary injunction and summary judgment. The State also moved
for summary judgment as to all claims. After consolidating the cases, the district court denied injunctive
relief to the majority of Plaintiffs’ claims, including
those with regards to restrictions at museums, health
care facilities, mass transit facilities and vehicles,
state parks and forests, places of amusement, school
grounds, and government buildings. The district
court granted injunctive relief as to the private
building restriction, as well as the restrictions at
public demonstrations and locations that sell alcohol
for on-site consumption.
The district court denied all summary judgment
motions without prejudice. The parties then renewed
those motions, which the district court granted in
part and denied in part. All parties timely appealed.
II.
“We review de novo the district court’s decision on
the parties’ cross-motions for summary judgment”
and summary judgment may be granted “only if the
movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to
judgment as a matter of law.” Maryland Shall Issue,
Inc. v. Moore, 116 F.4th 211, 220 (4th Cir. 2024) (en
banc) (quoting Fed. R. Civ. P. 56(a)) (internal
quotation marks omitted).
III.
Plaintiffs argue that Maryland’s regulations violate
the Second Amendment. The Second Amendment
states: “A well regulated Militia, being necessary to
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the security of a free State, the right of the people to
keep and bear Arms, shall not be infringed.” U.S.
Const. Amend. II.
With the exception of the Kipke Plaintiffs’ challenge to Maryland’s government buildings prohibition,
see infra at § III.B.1, Plaintiffs’ challenge to the
prohibition of guns at schools, see infra at § III.B.3,
and the Kipke Plaintiffs’ challenge to the private
property restriction, see infra at § III.B.9, all other
claims are facial challenges. “[A] facial challenge ‘is
the most difficult challenge to mount successfully,
because it requires [the challenger] to establish that
no set of circumstances exists under which the Act
would be valid.’” United States v. Nutter, 137 F.4th
224, 229 (4th Cir. 2025) (quoting United States v.
Rahimi, 602 U.S. 680, 693 (2024)) (internal quotation
marks omitted). To prevail on a facial Second Amendment challenge, “the Government need only demonstrate that [the challenged regulation] is constitutional in some of its applications.” Id. (quoting
Rahimi, 602 U.S. at 693).
In defense of each restriction, Maryland argues
that they apply to “sensitive places.” See, e.g., Heller,
554 U.S. at 626–27. To date, we have not addressed
the proper sensitive place analysis following the
Supreme Court’s clarification of the scope of the
Second Amendment right to bear arms in New York
State Rifle & Pistol Association, Inc. v. Bruen, 597
U.S. 1 (2022). This case, therefore, requires us to
clarify the sensitive place doctrine and its role within
the broader Bruen analysis. This opinion proceeds by
first addressing the sensitive place framework and
then conducts a location-by-location analysis.
13a
A. Framework
When interpreting the Second Amendment, “we are
guided by the principle that the Constitution was
written to be understood by the voters; its words and
phrases were used in their normal and ordinary as
distinguished from technical meaning.” Heller, 554
U.S. at 576. Precedent interpreting the Second Amendment was relatively limited as litigation regarding its meaning and application was infrequent until
2008 when the Supreme Court issued its decision in
Heller. Over a decade later, the Court issued its
decision in Bruen, articulating a two-part test meant
to guide lower courts in assessing Second Amendment challenges.
At Bruen step one, our job is to construe the Second
Amendment’s plain text according to its original
public meaning. See Bruen, 597 U.S. at 34 (“Constitutional rights are enshrined with the scope they
were understood to have when the people adopted
them.”) (quotation omitted). We do so by answering
three questions: (1) whether the petitioner is “part of
the people whom the Second Amendment protects”;
(2) whether the weapons at issue are “in common use
for a lawful purpose”; and (3) whether the Second
Amendment protects the “proposed course of conduct.” United States v. Price, 111 F.4th 392, 400 (4th
Cir. 2024) (en banc) (cleaned up). Once those three
questions have been answered affirmatively, the step
one inquiry is at an end, and the court must proceed
to step two. Bruen, 597 U.S. at 24.
At Bruen step two, our job is different, we must
determine whether “a firearm regulation is consistent
with this Nation’s historical tradition.” Bruen, 597
U.S. at 17 (emphasis added). Why and how the
regulation burdens the right are central to this
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inquiry. Rahimi, 602 U.S. at 692. “For example, if
laws at the founding regulated firearm use to address
particular problems, that will be a strong indicator
that contemporary laws imposing similar restrictions
for similar reasons fall within a permissible category
of regulations.” Id. However, “[e]ven when a law
regulates arms-bearing for a permissible reason, . . .
it may not be compatible with the right if it does so to
an extent beyond what was done at the founding.” Id.
“And when a challenged regulation does not precisely
match its historical precursors, it still may be
analogous enough to pass constitutional muster.” Id.
(internal quotation marks omitted). The law must
comport with the principles underlying the Second
Amendment, but it need not be a “dead ringer” or a
“historical twin.” Id. In other words, “unprecedented
societal concerns or dramatic technological changes”
can prompt new kinds of regulations that are
constitutional. Bruen, 597 U.S. at 27.
The Court has made clear that the Second Amendment does not impose “a law trapped in amber” and
allows for regulations beyond “ones that could be
found in 1791.” Rahimi, 602 U.S. at 691. Accordingly,
we look beyond the Founding Era to determine
whether our national tradition of firearm regulation
supports a government’s restriction today. See Rocky
Mountain Gun Owners v. Polis, 121 F.4th 96, 114
(10th Cir. 2024) (noting that “the burden at step one
differs from step two’s history and tradition test in
that it does not necessitate bringing forth evidence of
historical practice”).
This two-pronged approach to the use of history is
how this Court resolved Bianchi v. Brown, 111 F.4th
438, 472 (4th Cir. 2024) (en banc). There, we
explained that at Bruen step one, the scope of the
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Second Amendment is based on its “particular
meaning in the ratifying public’s consciousness, with
baked-in prerogatives and qualifications alike.”
Bianchi, 111 F.4th at 447. Accordingly, we looked at
only Founding Era common law to understand the
scope of “the individual right to keep and bear arms.”
Id. at 448–50. Our conclusion that modern militarystyle weapons fall beyond the Second Amendment’s
protections as a textual matter was based on our
reading that Founding Era common law did not
prevent the government from banning dangerous and
unusual weapons. We also engaged in a step two
analysis that looked at historical sources from
throughout American history, including well beyond
the Reconstruction Era. See id. at 446 (referencing
the aims of the drafters of the Fourteenth Amendment). That analysis allowed us to take a “long view”
of history to situate restrictions on modern militarystyle weapons within our national tradition of
firearm regulation. Id. at 471. Hence, the historical
sources we look to at Bruen step one are limited to
the Founding Era, and the sources we look to at
Bruen step two can come throughout American
history.
When analyzing the sensitive places doctrine and
determining where it fits within the Bruen framework and the three step one questions discussed in
Price, we hold that this doctrine goes to the “proposed
course of conduct,” namely, the carrying of guns in
public, which the Second Amendment protects. See
Bruen, 597 U.S. at 70–71; see also United States v.
Gould, 146 F.4th 421, 427 (4th Cir. July 29, 2025)
(holding that a law “bar[ring] an individual who is
otherwise law-abiding from possessing a weapon in
common use for a common purpose” regulates con-
16a
duct “covered by the Second Amendment’s plain text”
at step one).
Sensitive-place laws “directly impact the right to
bear” arms and are therefore, as the Fifth Circuit
concluded, “subject to Bruen’s historical analysis” at
step two. McRorey v. Garland, 99 F.4th 831, 838 (5th
Cir. 2024). Moreover, “Bruen used . . . sensitive-place
regulations to exemplify the analogical approach
it envisioned” in the historical tradition analysis,
“impl[ying] that sensitive-place regulations are
justified by historical tradition at step two, not by
plain text at step one.” Price, 111 F.4th 392, 417 n.2
(4th Cir. 2024) (en banc) (Quattlebaum, J.,
concurring). As such, this very approach will guide
our analysis.
B. Location-by-Location Analysis
Against this backdrop, and having determined the
proper framework for sensitive place analyses, we
now address the district court’s ruling with respect to
the following ordinances: (1) government buildings;
(2) mass transit facilities and vehicles; (3) school
grounds; (4) public demonstrations (and areas within
1,000 feet thereof); (5) state parks and forests; (6)
healthcare facilities; (7) places of amusement, including museums, stadiums, racetracks, video lottery
facilities, amusement parks, and casinos; (8) locations
that sell alcohol; and (9) private property.
1. Government Buildings
Maryland bans the carrying of firearms in “a
building or any part of a building owned or leased by
a unit of State or local government,” Md. Code, Crim.
Law § 4-111(a)(4)(i), and “[e]xcept for official purposes and by authorized personnel, an individual on
[State public buildings, improvements, grounds, and
17a
multiservice centers under the jurisdiction of
the Department of General Services] may not carry
open or concealed firearms,” Code of Md. Regs.
§§ 04.05.01.01, 04.05.01.03.
We uphold Maryland’s government building provision. The Supreme Court has expressly recognized,
first in Heller, and then again in Bruen, that
government buildings are sensitive places. See Heller,
554 U.S. at 626 (noting that “nothing in our opinion
should be taken to cast doubt on . . . laws forbidding
the carrying of firearms in sensitive places such as
. . . government buildings”); Bruen, 597 U.S. at 31
(stating, in the context of schools and government
buildings, that “[w]e therefore can assume it settled
that these locations were ‘sensitive places’ where
arms carrying could be prohibited consistent with the
Second Amendment”). This guidance from the
Supreme Court is more than sufficient to uphold
Maryland’s prohibition of firearms in government
buildings.
2. Mass Transit
Maryland law states: “[i]t is unlawful for any
person” to “[c]arry or possess any . . . concealed
weapons” “in any transit vehicle or transit facility,
designed for the boarding of a transit vehicle, which
is owned or controlled by the [Mass Transit]
Administration [“MTA”] or a train owned or controlled by the Administration or operated by a railroad company under contract to the Administration
to provide passenger railroad service.” Md. Code,
Transp. § 7-705(b)(6).
We uphold Maryland’s public transportation provision under the proprietary property doctrine. The
Supreme Court has “long held the view that there is
18a
a crucial difference, with respect to constitutional
analysis, between the government exercising the
power to regulate or license, as lawmaker, and
the government acting as proprietor, to manage its
internal operation.” Engquist v. Or. Dep’t of Ag., 553
U.S. 591, 598 (2008) (cleaned up); see also United
States v. Kokinda, 497 U.S. 720, 725 (1990) (“The
Government’s ownership of property does not
automatically open that property to the public” and it
is “long-settled” “that governmental actions are
subject to a lower level of . . . scrutiny when . . . [the
government is functioning] as proprietor.”). This is
because “the government—like other property
owners—has power to preserve the property under its
control for the use to which it is lawfully dedicated.”
Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505
U.S. 672, 679–80 (1992) (cleaned up). So, in contrast
to when it regulates the use of “open spaces, []
meeting hall[s], park[s], street corner[s], or other
public thoroughfare[s],” id. at 725 (cleaned up), “a
State generally may ‘manage its own property when
it pursues its purely proprietary interests . . . where
analogous private conduct would be permitted,’”
Wolford v. Lopez, 116 F.4th 959, 971 (9th Cir. 2024)
(quoting Bldg. & Constr. Trades Council v. Assoc.
Builders & Contractors of Mass./R.I., Inc., 507 U.S.
218, 231–32 (1993)). This includes when the
government is engaging in commerce, rather than in
regulation. Kokinda, 497 U.S. at 725 (discussing
Lehman v. City of Shaker Heights, 418 U.S. 298, 303
(1974) (plurality)). The Ninth and D.C. Circuits have
extended the propriety function doctrine to the
Second Amendment context and today we join them.
Wolford, 116 F.4th at 970–71, 1000; United States v.
Class, 930 F.3d 460, 464 (D.C. Cir. 2019), abrogated
on other grounds by Bruen, 597 U.S. 1. We hold that,
19a
when the government is acting in its proprietary
capacity or as a market participant, rather than as a
steward of public land, it may prohibit guns without
offending the Second Amendment.
To determine when the government is operating a
space in its propriety capacity, we turn to the First
Amendment. In doing so, we are in good company.
The Supreme Court has recognized the similarities
between First and Second Amendment doctrine,
emphasizing that the Bruen history and tradition
test “accords with how we protect . . . the freedom of
speech in the First Amendment, to which Heller
repeatedly compared the right to keep and bear
arms.” Bruen, 697 U.S. at 24. The D.C. Circuit also
analogized to the First Amendment framework to
determine whether the government acted in its
proprietary capacity in banning guns near the
Capitol Building. Class, 930 F.3d at 464.
In the First Amendment context, the Supreme
Court has held that the proprietary property doctrine
applies to other mass transit systems. See, e.g., Int’l
Soc. for Krishna Consciousness, Inc., 505 U.S. at 682
(the government may prohibit solicitation in airport
terminals); Lehman, 418 U.S. at 301 (city operated
street cars are not public forums). In the Lehman
plurality opinion, the Court explained that, by
operating a streetcar, “the city is engaged in
commerce” and that its purpose was to “provide
rapid, convenient, pleasant, and inexpensive service
to [its] commuters.” Id. (plurality). In other words, by
operating a streetcar system, the government acts in
its proprietary function. So, the Court concluded that,
so long as its policies survived rational basis review,
the city could prohibit certain types of advertisements in its streetcars. Id. at 303–04 (plurality); see
20a
also White Coat Waste Proj. v. Greater Richmond
Transit Co., 35 F.4th 179, 197 (4th Cir. 2022) (“[A]s
the Supreme Court and our sister circuits have
concluded, transit advertising space is a nonpublic
forum.”). This reasoning is not limited to transit
advertising. For example, the Second Circuit held
that the entire New York City subway system was
not a public forum for First Amendment purposes.
Young v. N.Y.C. Transit Auth., 903 F.2d 146, 161 (2d
Cir. 1990). We think it proper to import this
reasoning from the First to the Second Amendment
here. Just like the city in Lehman acted in its
proprietary capacity when it ran its streetcars,
Maryland acts in its proprietary capacity when it
runs the MTA.
The dissent contends that Maryland’s law reaches
well beyond State-owned buildings devoted to transit.
Certainly, the propriety property doctrine does not
extend to property not owned or controlled by the
State. We think, however, that the provision is
cabined to exclude such property, as the provision
applies only to items “owned or controlled by the
[MTA] or . . . operated by a railroad company under
contract to the [MTA].” Md. Code Ann., Transp. § 7705(b)(6). To be sure, the term “control” could be
interpreted more broadly than is appropriate under
the Second Amendment. But courts generally interpret statutes to avoid constitutional difficulties. Off.
of Senator Mark Dayton v. Hanson, 550 U.S. 511, 514
(2007). If the statute is improperly applied to
facilities not owned or properly controlled by the
State, that would be an issue of statutory interpretation for another time.
Additionally, Maryland’s prohibition on carrying
guns in mass transit comports with our history and
21a
tradition. The dissent argues that our holding
conflicts with Founding Era laws permitting the
carry of firearms on transportation. But as Professor
Saul Cornell, one of Maryland’s historical experts,
explained, at the time of the Founding “[t]here was
no modern-style mass transportation” and “forms of
transport were privately owned.” J.A. 153, Declaration of Saul Cornell (“Cornell Decl.”), ¶ 13. Indeed,
“[u]ntil the twentieth century, transportation services
were typically operated by private companies vested
with the authority to fashion their own rules and
regulations for customers.” J.A. 353–54, Declaration
of Brennan Gardner Rivas (“Rivas Decl.”), ¶ 13.
As such, to understand the scope of the Second
Amendment and our historical tradition of firearm
regulations on public transportation, we turn to the
policies of privately-owned historic railroad companies. This was the approach adopted by Ninth Circuit
in Wolford, where the court explained that these
companies “were providing essentially a public
service and were more properly characterized as
mixed public-private entities.” 116 F.4th at 1001.
Thus, railroad regulations are a useful source in
determining the scope of our historical tradition of
regulations. Id.; see generally Joshua Hochman, The
Second Amendment on Board, 133 Yale L. J. 1676
(2024) (urging courts to look at private companies’
regulations to determine our historical tradition).
Early railroad companies routinely prohibited
travelers from carrying loaded or improperly stored
guns. By one scholar’s count, “at least six U.S.
railroads between 1835 and 1900—including at least
three of the nation’s dominant players—. . .
regulate[d] firearm carriage in passenger cars.” Id. at
22a
1690; see also Wolford, 116 F.4th at 1001. 2 “Generally, these rules barred passengers from carrying
loaded or uncased firearms, or firearms not inspected
by the company.” Hochman, supra, at 1690. For
example, by 1835, the South Carolina Canal and Rail
Road Company stated, “No Gun or Fowling Piece
shall be permitted to enter the car unless examined
by the Conductor.” Id. at 1692. Likewise, both the
North Pennsylvania Railroad Company (by 1875) and
the Albany Railway (by 1900) prohibited passengers
from taking guns into the rail cars. Id. at 1693, 1695.
Looking to these regulations, the Ninth Circuit found
“a historical tradition of prohibiting the carry of
loaded firearms or the carry of firearms not properly
stored.” Wolford, 116 F.4th at 1001.
Despite identifying this tradition, the Ninth Circuit
struck down a California ban on carrying firearms in
“[a] bus, train, or other form of transportation paid
for in whole or in part with public funds.” Wolford,
116 F.4th at 1000 (discussing Cal. Penal Code
§ 26230(a)(8)). The Ninth Circuit found California’s
ban that prohibited all firearms too broad because
“most of the [historic railroad] companies” allowed
passengers to check unloaded firearms as part of
their luggage. Id. at 1001.
But passengers using the MTA system cannot
“check” luggage in most cases. As the MTA Director
of Treasury explained, MTA operates “buses, a
subway, light rail system and commuter trains”
throughout the state. J.A. 371, Declaration of
We note that “companies did not necessarily choose to keep
their older records” of past regulations. J.A. 358 (Rivas Decl.).
So, our archival record is admittedly slim. But we think it
reasonable to assume that other companies adopted similar
regulations.
2
23a
Thomas Randall, ¶ 3. Unlike traditional longdistance rail service, passengers do not part with
their luggage on a bus or subway. Nor do commuter
trains have separate luggage cars—all cars are
passenger cars. So for the most part, guns carried on
the MTA system are readily accessible; the only way
to prevent passengers from accessing guns is to
prohibit them altogether. As Plaintiffs have brought
only a facial challenge to this regulation and it is
permissible in at least some types of transportation
that MTA operates, Maryland’s prohibition falls
within our historical tradition. See e.g., Nutter, 137
F.4th at 229 (recognizing that, to succeed on a facial
challenge, plaintiffs must demonstrate that “no set of
circumstances exists under which the Act would be
valid”) (cleaned up).
In a last attempt to convince us otherwise,
Plaintiffs cite to nineteenth-century state laws
excepting travelers from concealed carry laws. But,
as Dr. Rivas, another one of Maryland’s historical
experts, explains, the travel exceptions did not
describe “the everyday movement through public
spaces like town squares and commercial districts, or
the kind of travel associated with modern public
transportation.” J.A. 350 (Rivas Decl.). “Instead,” the
traveler exceptions “encompassed a type of travel
that separated a person, small group, or family from
the protections of the law that went hand-in-hand
with organized society.” Id. For example, the
Supreme Court of Arkansas explained that “[t]he
exception in the [concealed carry] statute [for individuals on a journey] is to enable travelers to protect
themselves on the highways, or in transit through
populous places—not to allow them the privilege of
mixing with the people in ordinary intercourse, about
the streets, armed in a manner which, upon a sudden
24a
fit of passion, might endanger the lives of others.”
Carr v. State, 34 Ark. 448, 449 (1879). The Supreme
Court of Tennessee likewise explained that its
concealed carry exception for “person[s] who are on a
journey” did not “embrace a mere ramble in one’s own
neighborhood across the lines of contiguous counties.”
Smith v. State, 50 Tenn. 511, 513 (1872). Because
MTA provides commuter and short-distance travel,
the historical tradition of allowing travelers to carry
guns does not apply.
Looking to the why (preventing public transportation passengers from accessing guns) and how
(prohibiting passengers from carrying readily accessible guns in passenger compartments) of the regulations, we hold that—even independent of the
proprietary property doctrine—Maryland’s prohibition of guns on mass transit comports with our
historical tradition.
3. School Grounds
Maryland prohibits the “carry[ing] or possess[ing
of] a firearm . . . on public school property[,]” Md.
Code, Crim. Law § 4-102(b), and, separately, bans the
carrying of guns at “a preschool or prekindergarten
facility or the grounds of the facility” and at “a
private primary or secondary school or the grounds of
the school.” Md. Code, Crim. Law § 4-111(a)(2)(i)–(ii).
While not challenging “Maryland’s prohibition of
firearms inside school buildings,” Plaintiffs bring an
as-applied challenge, arguing that the district court
erred in upholding Maryland’s law “banning firearms
on the grounds of schools[.]” Opening Br. at 51–52
(emphasis removed).
We hold that Maryland’s prohibition of guns on
school grounds is constitutional. The Supreme Court
25a
has noted (albeit in dicta) that schools are sensitive
places, and “courts can use analogies” to the
historical regulation of schools “to determine that
modern regulations prohibiting the carry of firearms
in . . . analogous sensitive places are constitutionally
permissible.” See Bruen, 597 U.S. at 31. 3 Here, we
hold that school grounds are analogous to school
buildings. Like schools themselves, school grounds
serve children through many school activities and
places, such as recess and drop-off and pickup locations. In addition, the purposes underlying firearms
restrictions, namely, to protect children and to preserve a peaceful learning environment, are comparable between schools and school grounds and the
burden on the right to self-defense is the same.
Accordingly, school grounds are considered sensitive
for the same reasons schools are considered sensitive,
and Maryland’s prohibition is constitutionally
permissible.
4. Public Demonstrations
Under Maryland law, a “person may not have a
firearm in the person’s possession or on or about the
person at a demonstration in a public place or in a
vehicle that is within 1,000 feet of a demonstration in
a public place after: (i) the person has been advised
by a law enforcement officer that a demonstration is
occurring at the public place; and (ii) the person has
been ordered by the law enforcement officer to leave
the area of the demonstration until the person
disposes of the firearm.” Md. Code, Crim. Law § 4We adopted the Supreme Court’s dicta as to schools in
LaFave v. The County of Fairfax, 149 F.4th 476 (4th Cir. 2025).
There, we rejected a facial challenge to the County’s ban on
possessing and carrying firearms in county parks because four
of the parks had preschools on park property.
3
26a
208(b)(2). We hold that, while Plaintiffs have
standing to bring their challenge, their claim fails on
the merits.
4
To establish Article III standing, plaintiffs must
show (1) an injury in fact; (2) a causal connection
between the injury and the conduct complained of;
and (3) a likelihood that the injury will be redressed
by a favorable decision. See Lujan v. Defs. of Wildlife,
504 U.S. 555, 560–61 (1992). With respect to the
injury-in-fact element, in particular, the injury must
be “concrete and particularized[,]” Susan B. Anthony
List v. Driehaus, 573 U.S. 149, 158 (2014) (internal
citation omitted), though “it is not necessary that
petitioner first expose [her]self to actual arrest or
prosecution to be entitled to challenge a statute that
[s]he claims deters the exercise of [her] constitutional
rights.” Steffel v. Thompson, 415 U.S. 452, 459 (1974).
“[O]nce it is established that at least one party has
standing to bring the claim, no further inquiry is
required as to another party’s standing to bring that
claim.” Maryland Shall Issue, Inc. v. Hogan, 971 F.3d
199, 209 (4th Cir. 2020), as amended (Aug. 31, 2020).
While Maryland contends that Plaintiffs failed to
satisfy the injury-in-fact requirement, we disagree.
Plaintiff Kipke, for example, demonstrated an intent
to engage in conduct proscribed by the statute. In her
The provision defines a demonstration as “one or more
persons demonstrating, picketing, speechmaking, marching,
holding a vigil, or engaging in any other similar conduct that
involves the communication or expression of views or grievances
and that has the effect, intent, or propensity to attract a crowd
or onlookers” and clarified that a demonstration “does not
include the casual use of property by visitors or tourists that
does not have the intent or propensity to attract a crowd or
onlookers.” Md. Code, Crim. Law § 4-208(a)(2).
4
27a
affidavit, Kipke asserted that, “each year for the past
several years[,]” she has attended an annual public
demonstration in Annapolis, Maryland and “intend[s]
to continue doing so.” J.A. 83, Declaration of
Susannah Kipke (“Kipke Decl”), ¶ 7. She further
stated that “but for [her] fear of prosecution [she]
would not leave the area [of the public demonstration] even after being advised by a law enforcement officer that a demonstration is occurring and
being ordered by the law enforcement officer to leave
the areas of the demonstration until [she] dispose[d]
of [her] firearm.” J.A. 100, Supplemental Declaration
of Susannah Kipke, ¶ 2. Thus, Kipke’s course of
conduct is “arguably affected with a constitutional
interest.” Susan B. Anthony List, 573 U.S. at 159
(citing Babbitt v. Farm Workers, 442 U.S. 289, 298
(1979)); see Bruen, 597 U.S. at 8 (“[T]he Second and
Fourteenth Amendments protect an individual’s right
to carry a handgun for self-defense outside the
home.”). As such, Kipke has sufficiently demonstrated an injury-in-fact and has standing to
challenge the public demonstration ban.
Turning to the merits, we hold that Maryland’s
prohibition on carrying guns near public demonstrations is consistent with our national historical
tradition of promoting peaceful assemblies, particularly given the interaction between the rights the
First and Second Amendments preserve.
To start, the First Amendment protects “the right
of the people peaceably to assemble.” U.S. Const.
amend. I (emphasis added). By including the
“peaceably” caveat, the Founders made clear that not
all assemblies are lawful, and that the government
may constitutionally disperse assemblies that threaten the public peace. As the Supreme Court explained,
28a
“violence has no sanctuary in the First Amendment,
and the use of weapons, gunpowder, and gasoline
may not constitutionally masquerade under the guise
of ‘advocacy.’” N. A. A. C. P. v. Claiborne Hardware
Co., 458 U.S. 886, 916 (1982) (citation omitted). So,
we must read the right to bear arms in conjunction
with the First Amendment’s protection of the right to
peaceably assemble. Though the right to bear arms
surely is “not a second-class right,” Bruen, 597 U.S.
at 70 (citation omitted), neither are the rights to free
speech and free assembly.
Second, our history, both before and after the
ratification of the Second Amendment, demonstrates
a long-standing tradition of government regulating
permissible assembles, including regulating arms at
public assemblies. Beginning with the reign of King
Edward IV in the fifteenth century, and subject to
only minor alterations, “[t]he riotous assembling of
twelve persons, or more, and not dispersing upon
proclamation,” was a criminal offense under English
law up until the Revolution. 2 Blackstone’s Commentaries: With Notes of Reference 142–43 (St.
George Tucker ed. 1803) [hereinafter “Tucker’s
Blackstone”]. As Blackstone concluded, “our ancient
law . . . seems pretty well to have guarded against
any violent breach of the public peace; especially as
any riotous assembly on a public or general account
. . . .” Id. at 147. The American colonies built on this
tradition, enacting unlawful assembly statutes that
ordered dispersal of assemblies, particularly where
individuals were armed with weapons. 5
See, e.g., Act of 1786, ch. 8, 1786 Mass. Acts 502–503.
Pennsylvania likewise adopted an unlawful assembly statute in
1771. See Act of 1771, ch. 618, in 8 Statutes at Large of
Pennsylvania from 1682-1801, at 5. Virginia followed suit in
5
29a
So, evidence from the time of the Founding demonstrates that the Founders had a tradition of limiting
and carefully scrutinizing any threats of violence at
public assemblies and saw the presence of weapons
as a greater threat to the public peace than unarmed
assemblies. Justices of the Peace were entrusted with
broad authority to arrest groups of citizens who
threatened the peace. One action that was considered
to threaten that peace was to show armor––in other
words, showing an intention, or “at least an apparent
tendency,” to engage in violence. Hening, New
Virginia Justice at 383. As states enacted statutes
codifying this tradition, they lowered the number of
individuals necessary to constitute a riot if those
individuals were armed, demonstrating an anxiety
around armed assemblies. And the oft-included
requirements that Justices of the Peace must first
order a dispersal is akin to the Maryland provision
requiring a police officer to first instruct an
individual with a gun to leave before that individual
can be found in violation of the statute. Md. Code,
Crim. Law § 4-208(b)(2)(ii).
Continuing into the 19th century, numerous jurisdictions, including Tennessee, Texas, Arizona, Oklahoma, and Missouri, historically prohibited carrying
firearms at places of public assembly or gathering.
J.A. 392–421. Maryland’s bans on firearms are
consistent with these historical traditions.
As such, we hold that Maryland’s prohibition on
carrying guns is constitutionally permissible.
1786, as did New (Continued) Jersey in 1797. See Act of 1792,
ch. 103, VA. CODE ANN. §§ 8–9 (1792); Act of 1797, 1797 Laws
of New-Jersey 234.
30a
5. State Parks and Forests
Maryland prohibits the carrying of firearms in
state parks (Code of Md. Regs. 08.07.06.04(B)), state
forests (Code of Md. Regs. 08.07.01.04(B)), and
Chesapeake Forest Lands (Code of Md. Regs.
08.01.07.14(B)). 6 Because “as soon as modern parks
arose, municipalities and states enacted laws prohibiting the carrying of firearms into parks,” Wolford,
116 F.4th at 982, we join the reasoning of the Second
and Ninth Circuits and hold that Maryland’s prohibition on carrying guns in urban public parks is
constitutional. Antonyuk, 120 F.4th at 1025–26. We
likewise hold that Maryland’s prohibitions on guns in
state forests and Chesapeake Forest Lands are
constitutional.
As an initial matter, “[t]here were no modern-style
parks in the era of the Second Amendment.” J.A. 176,
Cornell Dec., ¶ 54; see Wolford, 116 F.4th at 982
(explaining that “green spaces began to take the
shape of a modern park, in the middle of the 19th
century”); Antonyuk, 120 F.4th at 1024–1025 (same).
So, though green spaces existed during the Founding
era, today’s modern public parks—more akin to
“municipal institutions”—are distinct. Antonyuk, 120
F.4th at 1022. See Wolford, 116 F.4th at 982
(explaining that the Boston Common was “used
primarily for grazing animals and for holding
military exercises and was not akin to modern
parks.”); Antonyuk, 120 F.4th at 1024 (recognizing
that “[t]he modern idea of the park emerged in the
nineteenth century, before which open spaces that
Maryland does, however, allow hunting and target shooting
on certain state lands. See, e.g., Code of Md. Regs.
§ 08.01.07.14(D).
6
31a
were not privately owned . . . consisted of grazing
areas open to all”) (internal citation and quotation
marks omitted). As parks did not appear in their
modern form until the middle of the nineteenth
century, “one way that Defendants can show a
historical tradition is by establishing that, when
[parks] . . . first arose in modern form, states and
municipalities began to regulate the possession of
firearms [in parks], the regulations were considered
constitutional at the time, and the regulations were
comparable to a tradition of regulating a similar
place or places in the earlier years of the Nation.”
Wolford, 116 F.4th at 981.
Defendants made that showing here: “As soon as
green spaces began to take the shape of a modern
park, . . . municipalities and other governments
imposed bans on carrying firearms into the parks.”
Id. at 982. See Antonyuk, 120 F.4th at 1022 (“The
proliferation of these urban public park regulations
between 1861 and 1897 coincides with the rise of
public parks as municipal institutions over the latter
half of the 19th century.”). For example, New York
banned the carrying of firearms in Central Park,
“perhaps the Nation’s first modern public park,” in
1858, the year the park opened. Wolford, 116 F.4th at
982. The Ninth Circuit identified “similar prohibitions as parks emerged across the Nation” and
noted that “[m]any municipalities, including major
cities, prohibited the carry of firearms at all parks
. . . .” Id. at 982–83. See id. (summarizing prohibitions in several states). In addition, as Professor
Cornell explained, the nation’s five largest cities
(New York, Chicago, Philadelphia, St. Louis, and
Boston) all adopted prohibitions on carrying firearms
in public parks between 1861 and 1886. J.A. 177,
Cornell Decl., ¶ 56. Put simply, then, the how
32a
(banning all guns in urban parks) and the why
(preserving the tranquility of parks) of these
regulations mirror Maryland’s prohibitions. 7
The same logic applies to Maryland’s limitations on
guns in forests. Here, we rely on the Supreme Court’s
teaching that a challenged regulation can survive a
Second Amendment challenge even where it does not
precisely match its historical precursors.
Maryland’s state forests and lands have evolved
from being viewed principally as resources for commercial exploitation to places that promote a balanced emphasis on economic, social, and environmental goals. See A Brief History of the Forest
Service, Md. Dep’t of Nat. Resources Forest Serv.,
https://dnr.maryland.gov/forests/pages/aghistory.aspx
; https://perma.cc/U7R3-KUDP (last visited November 18, 2025). To that end, many of Maryland’s
forests offer diverse and substantial recreational and
educational opportunities. See Maryland’s State
Forests, Md. Dep’t of Nat. Resources Forest Serv.,
https://dnr.maryland.gov/forests/Pages/mdforests.asp
x; https://perma.cc/5J5A-3U5Y (last visited November
18, 2025). In that way, they are sufficiently
analogous to state parks so as to require us to reject
the Plaintiffs’ facial challenge to the ban on firearms.
Separately, the Second and Ninth Circuits have not found
evidence that courts questioned the constitutionality of these
laws. Wolford, 116 F.4th at 983 (“Plaintiffs have not pointed
to—and we have not found—any evidence that those laws were
questioned as unconstitutional.”); Antonyuk, 120 F.4th at 1022
(“[T]he ordinances were not merely adopted by legislative bodies
in the respective cities in which they applied—they were
apparently accepted without any constitutional objection by
anyone.”). Nor have we.
7
33a
And while there is a robust historical tradition
of protecting hunting rights in rural lands,
Maryland’s statute falls within that tradition because
it permits regulated hunting within state forests and
Chesapeake Forest Lands. See Code of Md. Regs.
§ 08.07.06.04(B), 08.07.06.03, 08.01.07.04. As such,
this regulation does not run afoul of, or impede upon,
one’s Second Amendment rights.
Accordingly, we hold that Maryland’s prohibitions
on carrying guns in urban public parks, state forests
and Chesapeake Forest Lands are constitutional.
6. Health Care Facilities
Maryland prohibits the carrying of firearms in “a
health care facility.” Md. Code, Crim. Law § 4–
111(a)(2)(iii). 8 We unanimously hold that this
prohibition is constitutional.
“[M]odern hospitals and medical facilities do not
resemble the hospitals at the Founding.” Wolford,
116 F.4th at 999. Nevertheless, Maryland’s health
care facilities prohibition falls within our historical
tradition of proscribing guns in places that serve
vulnerable populations. Hospitals serve medical
patients, a vulnerable population, and there is a
“tradition of prohibiting firearms in locations where
vulnerable populations congregate . . . .” Antonyuk,
The Code defines a “health care facility” as “(1) a hospital
. . . ; (2) a related institution . . . ; (3) an ambulatory surgical
facility or center which is any entity or part thereof that
operates primarily for the purpose of providing surgical services
to patients not requiring hospitalization and seeks reimbursement from third party payors as an ambulatory surgical facility
or center; [and] (4) a facility that is organized primarily to help
in the rehabilitation of disabled individuals.” Md. Code, Ins.
§ 15-10B-01(g)(1)–(4).
8
34a
120 F.4th at 1012. In addition, a subset of medical
patients—including “the intellectually disabled,
mentally ill,” and “those with substance use disorders”—have “historically been considered a vulnerable population justifying firearm regulation.” Id.
There is also a historical tradition of banning guns in
places used for scientific purposes. Id. at 1020.
Health care facilities fall well within that historical
tradition.
In light of our historical tradition of prohibiting the
carrying of guns in places that serve vulnerable
populations and engage in scientific pursuits, the
why and the how of Maryland’s regulation match
that of historic regulations. We therefore uphold
Maryland’s prohibition of firearms in healthcare
facilities.
7. Places of Amusement
Maryland prohibits the carrying of firearms in
various places of amusement: “a stadium,” “an
amusement park,” “a racetrack,” and a “video lottery
facility.” Md. Code Crim Law § 4-111(a)(8)(ii), (iv),
(v), (vi). It also bans the carrying of firearms at
Camden Yards, a baseball stadium, Code of Md.
Regs. § 14.25.02.06, in casinos, Code of Md. Regs.
§ 36.03.10.48, and in museums, Md. Code, Crim. Law
§ 4-111(a)(8)(iii). We hold that these statutes and
regulations are constitutional.
First, various places of amusement, including
stadiums, racetracks, casinos, and amusement parks
did not exist in modern form in 1791. See Wolford,
116 F.4th at 987 (noting that “casinos, stadiums,
[and] amusement parks . . . did not exist in modern
form at the Founding”). Though gambling existed
during the Founding, many states banned gambling,
35a
and the casinos that did exist were often privately
operated. See Hochman, supra, at 1721. Also, sporting venues did not have modern stadium-esque
facilities, and amusement parks did not exist in the
United States until 1846. See Horse Racing, Britannica, https://www.britannica.com/sports/horse-racing;
https://perma.cc/35X2-BBG4 (last visited, July 21,
2025); Roster of the World’s Oldest 50 Amusement
Parks, Nat’l Amusement Park Historical Ass’n,
https://www.napha.org/Resources/Facts-Figures/Worl
ds-Oldest-Operating-Parks; https://perma.cc/8X79-Q4
Q2 (last visited, July 21, 2025). Finally, although
museums and historical societies existed around the
time of the Founding, they “were private institutions,” while today’s museums are crowded municipal
spaces that are frequented by children. J.A. 153,
Cornell Decl., ¶ 13. Even though “all places where
people gather are necessarily sensitive places,”
locations that serve an educational purpose, or serve
children, are historically protected. Wolford, 116
F.4th at 981 (emphasis added); see Antonyuk, 120
F.4th at 1026–27 (stating that there is a “tradition of
regulating firearms in places of educational and
scientific opportunity”). As such, we look to the
historical record for more analogous regulations of
those places. And the record “supports the conclusion
that prohibitions on firearms at places of amusement
fall within the national historical tradition of
prohibiting firearms at sensitive places.” Wolford,
116 F.4th at 987.
“Both before and shortly following the ratification
of the Fourteenth Amendment,” states, cities, and
territories alike prohibited firearms at a “wide range
of places for social gathering and amusement that are
analogous to modern casinos, stadiums, amusement
parks, zoos,” and museums. Id. The Ninth Circuit
36a
discussed several examples in Wolford, including
New Orleans’ prohibition of firearms at any public
ballroom in 1817 and Missouri’s ban of firearms at
any gathering for educational, literary, or social
purposes in 1875. Id.
This extensive set of historical regulations banning
firearms at places of amusement and social gathering
“justifies the conclusion” that modern-day places of
amusements such as stadiums, amusement parks,
racetracks, video lottery facilities, casinos, and museums “fall within the national historical tradition of
prohibiting firearms at sensitive places.” Wolford,
116 F.4th at 988. In other words, the how of these
regulations (a complete ban) mirrors Maryland’s,
and the why is likewise the same. Consistent with
that tradition, Maryland’s prohibitions are constitutionally permissible.
8. Locations that Sell Alcohol
Maryland prohibits firearms at “location[s] licensed
to sell or dispense alcohol . . . for on-site consumption[.]” Md. Code, Crim. Law § 4-111(a)(8)(i). We
uphold Maryland’s prohibition of firearms at these
locations. Restricting firearms at locations that sell
alcohol is consistent with the historical tradition of
banning firearms in sensitive places. Specifically,
there is a historical tradition of regulations recognizing the inherent dangers of mixing alcohol and
firearms; prohibiting guns at social gatherings; and,
starting in the mid-nineteenth century, prohibiting
firearms in places that sell liquor.
First, in the Founding Era, several states enacted
legislation aimed at the mixing of firearms and
liquor. Some states prohibited the sale of liquor to
members of the militia. J.A. 216–217, Declaration of
37a
Patrick J. Charles (compiling statutes); see also
Wolford, 116 F.4th at 985 (citing, e.g., a “1746 New
Jersey law prohibit[ing] the sale of liquor to members
of the militia while on duty”). The Supreme Court
used similar regulations as an example in Rahimi,
recognizing “[a]t the founding, the bearing of arms
was subject to regulations ranging from rules about
firearm storage to restrictions on gun use by drunken
New Year’s Eve revelers.” 602 U.S. at 691 (citing Act
of Mar. 1, 1783, 1783 Mass. Acts and Laws ch.13, pp.
218–219; 5 Colonial Laws of New York ch. 1501, pp.
244–246 (1894)). Virginia had a broader version of
this rule that prohibited intoxicated individuals from
using firearms in nearly all circumstances. See Act of
Mar. 10, 1655-6, 1 Stat. at Large of Va. 401–02 (1808)
(prohibiting persons from “shooting any gunns at
drinkeing (marriages and ffunerals onely excepted))”
(errors in original).
Later, “[s]ome cities, for example, Chicago in 1851
and St. Paul, Minnesota in 1858[,] prohibited
retailers of liquor from keeping gunpowder.” Wolford,
116 F.4th at 985. And, between 1867 and 1889, three
states “prohibited intoxicated persons from carrying
firearms.” Antonyuk, 120 F.4th at 1030. 9 These
regulations show that “from before the Founding and
continuing throughout the Nation’s history, governments have regulated in order to mitigate the
dangers of mixing alcohol and firearms.” Wolford, 116
F.4th at 986.
The three states discussed by the Second Circuit were
Kansas, Wisconsin, and Missouri. Antonyuk, 120 F.4th at 1030.
See, e.g., id. (citing Wis. Stat. Ann. § 4379(b) (West 1889) (“It
shall be unlawful for any person in a state of intoxication to be
armed with any pistol or revolver.”)).
9
38a
Second, there is a “well-established tradition of
prohibiting firearms at crowded places.” Id.; see
Antonyuk, 120 F.4th at 1019 (recognizing a national
tradition of “regulating firearms in public forums and
quintessentially crowded places”). For example, in
1817, New Orleans prohibited firearms in ballrooms.
Wolford, 116 F.4th at 986. Texas did the same in
1870. Id. And, in 1875, Missouri prohibited firearms
at public assemblies. Id. To be sure, ballrooms and
public assemblies are not identical to locations that
sell liquor. But at their core, these places share the
same characteristics. See id; Antonyuk, 120 F.4th at
1019.
Third, various jurisdictions in this period enacted
laws that are “directly on point” with Maryland’s
prohibition. Wolford, 116 F.4th at 986. For example,
in 1853, New Mexico banned firearms at any “room
adjoining [a ball or fandago] where [l]iquors [were]
sold,” and in 1890, Oklahoma banned firearms in
“any place where intoxicating liquors [were] sold.”
Wolford, 116 F.4th at 986.
Taking these three types of regulations together,
we, like the Ninth Circuit, “conclude that those laws
establish that bars and restaurants that sell alcohol
are among the Nation’s ‘sensitive places’ where
firearms may be prohibited.” Id. As such, Maryland’s
prohibition of firearms at alcohol locations is constitutionally permissible.
9. Private property without permission
Under Maryland law, “[a] person wearing, carrying, or transporting a firearm may not: (1) enter or
trespass on property unless the owner or the owner’s
agent has posted a clear and conspicuous sign indicating that it is permissible to wear, carry, or
39a
transport a firearm on the property; or (2) enter or
trespass on property unless the owner or the owner’s
agent has given the person express permission to
wear, carry, or transport a firearm on the property.”
Md. Code, Crim. Law § 6-411(d).
We hold that Plaintiffs have standing to challenge
Maryland’s rule on private property held open to the
public and their claim succeeds on the merits.
However, Plaintiffs lack standing to challenge the
rule for property not held open to the public.
We begin with Plaintiffs’ challenge to Maryland’s
rule on private property held open to the public. As
mentioned previously, to establish Article III standing, plaintiffs must show (1) an injury in fact; (2) a
causal connection between the injury and the conduct
complained of; and (3) a likelihood that the injury
will be redressed by a favorable decision. See Lujan,
504 U.S. at 560–61. Plaintiffs have made the
required showing.
First, Plaintiffs have adequately alleged injury-infact. Namely, Plaintiffs allege that they intend to
continue carrying firearms on private property open
to the public, J.A. 80, 82–83, 85, 86–87, 88–89, 92, 94,
96–97, 102, 104, 107, and the law requires that they
seek permission before doing so, placing a new
burden on their right to carry. If Plaintiffs carry
firearms on private property without first seeking
consent, they will violate Maryland’s law and face the
threat of criminal prosecution. As for causation, there
is a causal connection between the injury—Plaintiffs’
burden on their right to carry—and the conduct complained of—Maryland prohibiting firearms on private
property without permission. Finally, “the relevant
injury for standing purposes is the credible threat of
arrest and prosecution that Plaintiffs face” if they
40a
carry firearms onto private property “without first
receiving permission” and “that injury is clearly
redressable by an injunction against enforcement of
the private-property restriction.” Antonyuk, 120 F.4th
at 1043. As such, Plaintiffs have established Article
III standing.
Plaintiffs also succeed on the merits of their claim,
as Maryland’s restriction on bringing firearms onto
private property held open to the public without
express consent is unconstitutional. Maryland’s prohibition is directed at gun owners, not property
owners. It is a criminal statute that nowhere
references the right of the property owner to exclude
a gun owner. See Md. Code, Crim. Law § 6-411(c)–(d).
With or without the private-property consent rule,
Maryland property owners have the right to exclude
unwanted people (including those with guns) from
their property. And we see nothing in the rule that
alters Maryland property law. Therefore, Maryland’s
reliance on the trespass tradition is inapposite, and
we diverge from the Ninth Circuit’s conclusion that
similar statutes merely operate to “arrang[e] the
default rules that apply specifically to the carrying of
firearms onto private property.” Wolford, 116 F.4th at
995.
Maryland’s other support for the prohibition is also
wanting. Many of the historical statutes Maryland
cites appear to regulate hunting on others’ property
without permission, as the Second Circuit concluded.
See Antonyuk, 120 F.4th at 1046. The statutes do not
support a broader tradition of excluding all weapons
for all purposes from the private property of others
without express permission. And the other statutes
Maryland cites (a 1771 New Jersey statute, an 1865
Louisiana statute, an 1866 Texas statute, and an
41a
1893 Oregon statute) appear to be outliers. Appellees’
Br. at 56–57.
Maryland’s rule would effectively declare most
public places “gun-free zones.” But that likely
stretches the sensitive places doctrine too far. See
Bruen, 597 U.S. at 31 (holding that “the island of
Manhattan [is not] a ‘sensitive place’”). In short,
there is no relevant historical tradition supporting
Maryland’s private-property consent rule, at least on
this record and as to property held open to the public.
With respect to property not held open to the
public, however, Plaintiffs lack standing to challenge
Maryland’s regulation.
The Kipke Plaintiffs did not bring a facial challenge to the regulation; they instead only challenge
Maryland’s rule as to property held open to the public
(i.e., not dwellings). The Novotny Plaintiffs did bring
a facial challenge to Maryland’s regulation, but they
lack standing to challenge the restriction as to
property not held open to the public.
A close reading of the Novotny Plaintiffs’ standing
declarations shows that they attest only to their
intent to bring guns to “stores and other privately
owned buildings that are otherwise open to the
public” and the sensitive places that give rise to
Plaintiffs’ other challenges. E.g., J.A. 104, Declaration of Sue Burke, ¶ 6. No Plaintiff states that they
wish to bring a firearm into a dwelling. Without such
a statement, Plaintiffs have not alleged a “concrete
intention to (arguably) violate” that portion of the
restriction, as required to bring a pre-enforcement
challenge. Hogan, 971 F.3d at 218. Plaintiffs
therefore lack standing for their claim related to
property not held open to the public.
42a
IV.
To sum up, we:
• Affirm the district court’s grant of summary
judgment to Maryland regarding firearm carry
restrictions in
(1) government buildings, Md. Code, Crim. Law
§ 4-111(a)(4)(i), Code of Md. Regs.
§§ 04.05.01.03, 04.05.01.01;
(2) mass transit facilities, Md. Code, Transp.
§ 7-705(b)(6);
(3) schools and school grounds, Md. Code, Crim.
Law §§ 4-102(b), 4- 111(a)(2)(i)–(ii);
(4) state parks, Code of Md. Regs. § 08.07.06.04
(B), State Forests Code of Md. Regs.
08.07.01.04(B), and Chesapeake Forest
Lands, Code of Md. Regs. 08.01.07.14(B);
(5) museums, Md. Code, Crim. Law § 4-111(a)
(8)(iii);
(6) healthcare facilities, Md. Code, Crim. Law
§ 4-111(a)(2)(iii); and
(7) stadiums, racetracks, amusement parks, and
casinos, Md. Code Crim Law §§ 4-111(a)(8)(ii),
(iv), (v), (vi); Code of Md. Regs. §§ 14.25.02.06,
36.03.10.48;
• Reverse the district court’s grant of summary
judgment to Plaintiffs and reverse the district
court’s order enjoining Maryland from enforcing
the prohibition on guns within 1,000 feet of a
public demonstration, Md. Code, Crim. Law
§ 4-208;
•
43a
Reverse the district court’s grant of summary
judgment to Plaintiffs and the district court’s
order enjoining Maryland from enforcing the
regulation regarding firearms carrying restrictions in locations selling alcohol for on-site
consumption, Md. Code, Crim. Law § 4111(a)(8)(i); and
• Affirm the district court’s grant of summary
judgment to Plaintiffs and enjoin Maryland
from enforcing the regulations regarding firearms carrying restrictions in private buildings
or property without the owner’s consent. Md.
Code, Crim. Law § 6-411(d).
AFFIRMED IN PART AND REVERSED IN PART
44a
AGEE, Circuit Judge, concurring in part and
dissenting in part:
I join the majority opinion’s conclusion that the
firearms restrictions pertaining to government
buildings (Maj. Op. III.B.1) and school grounds
(Maj. Op. III.B.3) are constitutional. I also join in full
the majority’s articulation of why Plaintiffs have
standing to challenge the statute that flips the
presumption that firearms are permitted on private
property held open to the public and that this
provision is unconstitutional (Maj. Op. III.B.9). I also
join in full the view that Plaintiffs lack standing to
challenge the presumption-flipping statute insofar as
it regulates private property not held open to the
public (Maj. Op. III.B.9). In addition, with respect to
healthcare facilities, I concur in the majority’s
judgment that the prohibition is permitted, but write
separately to explain my reasoning on this point
(Maj. Op. III.B.6).
As to all the other challenged Maryland provisions,
however, I would hold that they violate the Second
Amendment. In my view, the majority opinion simply
fails to follow how the Supreme Court has directed
courts to consider the historical tradition of firearm
regulation when examining whether a particular law
violates the Second Amendment right to carry arms
in public. Accordingly, I write separately to articulate
the proper approach adhering to the Supreme Court’s
direction and applying it to the challenged provisions
of Maryland law.
I therefore respectfully concur in part and dissent
in part.
45a
I.
The Second Amendment sets a high barrier for
when the government can prohibit its citizenry from
possessing and bearing firearms: “A well regulated
Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms,
shall not be infringed.” U.S. Const. amend. II
(emphasis added). Its protections are “among the
‘fundamental rights necessary to our system of
ordered liberty.’” United States v. Rahimi, 602 U.S.
680, 690 (2024) (quoting McDonald v. City of
Chicago, 561 U.S. 742, 778 (2010)). 1 In light of this
clear mandate, courts should approach all firearms
regulations skeptically.
In New York State Rifle & Pistol Association v.
Bruen, 597 U.S. 1 (2022), the Supreme Court
articulated a two-part framework for analyzing
So fundamental is the Second Amendment to the other
rights enshrined in the Bill of Rights that Founding-era
constitutional legal scholar at the College of William & Mary,
St. George Tucker, said it “may be considered as the true
palladium of liberty”:
1
The right of self-defence is the first law of nature: in most
governments it has been the study of rulers to confine this right
within the narrowest limits possible. Wherever standing armies
are kept-up, and the right of the people to keep and bear arms
is, under any colour or pretext whatsoever, prohibited, liberty, if
not already annihilated, is on the brink of destruction.
Stephen P. Halbrook, St. George Tucker’s Second Amendment:
Deconstructing “the True Palladium of Liberty”, 3 Tenn. J. L. &
Pol’y 120, 125 (quoting St. George Tucker, View of the Constitution of the United States, in 1 Blackstone’s Commentaries: With
Notes of Reference, to the Constitution and Laws, of the Federal
Government of the United States; and of the Commonwealth of
Virginia app. D at 300 (William Young Birch & Abraham Small
1803)).
46a
Second Amendment challenges to firearms restrictions. At step one, courts “look[] to the text of the
Second Amendment to see if it encompasses the
desired conduct at issue.” Bianchi v. Brown, 111
F.4th 438, 445–46 (4th Cir. 2024) (en banc). If the
conduct in question does fall within the scope of the
right, then “the Constitution presumptively protects
that conduct.” Bruen, 597 U.S. at 24. If it does not,
“that conduct falls outside the ambit of the Second
Amendment, and the government may regulate it.”
Bianchi, 111 F.4th at 446.
When a court finds that the text of the Second
Amendment does cover the regulated conduct, then
“the analysis moves to the second step,” where the
government bears the burden to “justify its regulation by demonstrating that it is consistent with the
Nation’s historical tradition of firearm regulation.”
Id. (quoting Bruen, 597 U.S. at 24). “Only if such
consistency is shown can a court conclude that the
regulation is constitutionally permissible.” Id.
I agree with the majority that the challenged
Maryland provisions rise or fall at step two of the
Bruen framework. See Maj. Op. at 13. That is to say,
the Bruen step-one inquiry shows that each provision
regulates a “‘proposed course of conduct,’ namely, the
carrying of guns in public, which the Second
Amendment protects.” Maj. Op. at 13 (quoting Bruen,
597 U.S. at 32). Therefore, Maryland’s restrictions
are presumptively unconstitutional unless the State
can carry its burden of showing that regulating
firearms at each challenged location “is consistent
with the Nation’s historical tradition of firearm
regulation.” Bruen, 597 U.S. at 24.
Throughout its Second Amendment cases, the
Supreme Court has identified as one category of
47a
firearms laws that withstands scrutiny at step two
prohibitions on the possession and carriage of
firearms in so-called “sensitive places.” District of
Columbia v. Heller, 554 U.S. 570, 626 (2008) (stating,
in dicta, that nothing about its decision “should be
taken to cast doubt on . . . laws forbidding the
carrying of firearms in sensitive places”); McDonald,
561 U.S. at 786 (reiterating Heller’s “assurances” that
“longstanding regulatory measures” such as laws
forbidding the carrying of firearms in “sensitive
places” do not violate the Second Amendment). But
the Supreme Court has offered scant guidance on
what constitutes a “sensitive place” beyond identifying a handful of examples: “places such as schools
and government buildings,” Heller, 554 U.S. at 626,
as well as “legislative assemblies, polling places, and
courthouses,” Bruen, 597 U.S. at 30. These delineated
sensitive places are not exhaustive, Heller, 554 U.S.
at 627 n.26, leaving some legislatures eager to label
scores of locations “sensitive” and prohibit the
carrying of firearms in them. But labels alone do not
suffice to demonstrate that a particular restriction
aligns with what the Supreme Court had in mind.
Courts must instead consider on a case-by-case basis
whether such “sensitive place” restrictions align
with the Nation’s history and tradition of firearms
regulation, and it is up to the State to prove that is
so.
In Bruen, the Supreme Court made it clear that
whether a place qualifies as a “sensitive place[]”
depends on the standard step-two analysis that case
describes, fixing this question firmly to its more
dynamic discussion of the nation’s “longstanding”
history of certain constitutionally permitted firearms
restrictions. 597 U.S. at 30. Thus, for example, the
New York restriction “disarm[ing] law-abiding citi-
48a
zens” in “all places where people typically congergate” throughout Manhattan relied on a “far too
broad[]” concept of a sensitive place and would “in
effect exempt cities from the Second Amendment and
[] eviscerate the general right to publicly carry arms
for self-defense[.]” Id. at 31 (cleaned up). Instead, the
Supreme Court instructed that the first point of inquiry is whether firearms were historically restricted
in such places and, if so, whether disputes arose
“regarding the lawfulness of such prohibitions.” Id. at
30. If not, then courts can “assume it settled that
these locations [are] ‘sensitive places’ where arms
carrying could be prohibited consistent with the
Second Amendment.” Id. In addition, the Supreme
Court recognized that courts can “use analogies to
those historical regulations of ‘sensitive places’ to
determine that modern regulations prohibiting the
carrying of firearms in new and analogous places are
constitutionally permissible.” Id. (second emphasis
added).
Thus, the Court’s guidance on “sensitive places”
leads to its general discussion of the step-two inquiry
as to whether a particular restriction has authentic
and well-grounded roots in the Nation’s historical
tradition of regulating firearms. At this stage, courts
are to consider “how and why the regulations burden
a law-abiding citizen’s right to armed self-defense.”
Id. at 29. A “fairly straightforward” inquiry can take
place “when a challenged regulation addresses a general societal problem that has persisted since the
18th century.” Id. at 26. In that event, the absence or
existence of relevant Founding-Era analogues will
drive the Court’s analysis as “the lack of a distinctly
similar historical regulation addressing that problem
is relevant evidence that the challenged regulation is
inconsistent with the Second Amendment.” Id. “Like-
49a
wise, if earlier generations addressed the societal
problem, but did so through materially different
means, that also could be evidence that a modern
regulation is unconstitutional.” Id. at 26–27. So too if
“some jurisdictions actually attempted to enact analogous regulations during this timeframe, but those
proposals were rejected on constitutional grounds,
that rejection surely would provide some probative
evidence of unconstitutionality.” Id. at 27. 2 Conversely, “if laws at the founding regulated firearm
use to address particular problems, that will be a
strong indicator that contemporary laws imposing
similar restrictions for similar reasons fall within a
permissible category of regulations.” Rahimi, 602
U.S. at 692. But “[e]ven when a law regulates armsbearing for a permissible reason, . . . it may not be
compatible with the right if it does so to an extent
beyond what was done at the founding.” Id. As these
examples demonstrate, when undertaking the Bruen
step-two inquiry, it’s important to remember that
Plaintiffs urge the Court to adopt a more exacting standard
for what constitutes a sensitive place, arguing that the Supreme
Court’s list of examples share the common trait of either being a
place where the Government acts in loco parentis over students
(schools) or provides its own substantial security over the
location (government buildings, legislative assemblies, polling
places). While this argument rests on questionable factual
support, it more fundamentally lacks foundation in the Supreme
Court’s cases. Nothing in Heller, McDonald, or Bruen tethers
the “sensitive places” construct to these features. Instead, Bruen
reasons that firearms restrictions in sensitive places are
constitutional because they are “longstanding” and undisputed,
597 U.S. at 30, concepts that align with the step-two inquiry.
For this reason, I do not accept Plaintiffs’ concept of when a
place-based restriction survives a Second Amendment challenge. See Schoenthal v. Raoul, 150 F.4th 889, 908–10 (7th Cir.
2025).
2
50a
“[t]he question is not whether the new regulation is
broadly analogous to an older regulation at a high
level of generality, but whether it ‘comport[s] with
the principles underlying the Second Amendment.’”
Koons v. Att’y Gen. N.J., 156 F.4th 210, 278 (3d Cir.
2025) (Porter, J., concurring in part and dissenting in
part) (quoting Rahimi, 602 U.S. at 692), reh’g en banc
granted and opinions vacated by Koons v. Att’y Gen.
N.J., Nos. 23-1900 & 23-2043, 2025 WL 3552513
(Dec. 11, 2025). 3
Relatedly, when looking to the Nation’s historical
regulation of firearms, “not all history is created
equal.” Bruen, 597 U.S. at 34. “Constitutional rights
are enshrined with the scope they were understood to
have when the people adopted them.” Id. (quoting
Heller, 554 U.S. at 634–35). Firearms laws that come
too early or too late do not aid in understanding what
the right meant to those who enacted the Second
Amendment.
Significantly, the Second Amendment codified a
preexisting right, one “inherited from our English
ancestors.” Heller, 554 U.S. at 599 (quoting Robertson
v. Baldwin, 165 U.S. 275, 281 (1897)). But “the
English common law ‘is not to be taken in all respects
to be that of America.’” Bruen, 597 U.S. at 39
On December 11, 2025, the Third Circuit granted rehearing
en banc in Koons, an act that vacated the opinions and
judgment that had, inter alia, upheld many New Jersey
(Continued) firearms restrictions enacted under the auspices of
their regulating firearms in “sensitive places.” Because I am
persuaded by the reasoning of one aspect of the panel majority
(rejecting the proprietary actor construct) and several components of the separate opinion of Judge Porter concurring in part
and dissenting in part regardless of their continued force of law
within the Third Circuit, I continue to cite those opinions in this
opinion.
3
51a
(quoting Van Ness v. Pacard, 27 U.S. 137, 144 (1829)
(Story, J., for the Court)). And that’s particularly true
for the right to bear arms, which the American
colonies intentionally and robustly protected in marked contrast to some restrictions they disliked in the
English tradition. “Post-independence, Americans
were contemptuous of what they considered to be the
constricted nature of the English right to arms.”
David B. Kopel & Joseph G.S. Greenlee, The
“Sensitive Places” Doctrine: Locational Limits on the
Right to Bear Arms, 13 Charleston L. Rev. 205, 230
(2018). As but one example, St. George Tucker
annotated Blackstone’s legal texts to highlight “when
and how American law differed from British law,”
and quite pointedly “denounced statutory infringements of the English right to arms, particularly the
English game laws, which he thought had disarmed
almost the entire population.” Id. at 231 & n.105; see
Halbrook, supra, at 126–28. Thus, the Supreme
Court has cautioned that historical evidence long
predating the Second Amendment’s enactment often
does not reflect the contemporary view of the scope of
the right as it existed at the time the amendment
was adopted. Bruen, 597 U.S. at 34–35.
Firearms laws post-dating 1791 constitute an even
more problematic recourse because the Supreme
Court has made clear that, “to the extent later history contradicts what the text says, the text controls,”
and “post-ratification adoption or acceptance of laws
that are inconsistent with the original meaning of the
constitutional text obviously cannot overcome or alter
that text.” Id. at 36 (quoting Heller v. District of
Columbia, 670 F.3d 1244, 1274 n.6 (D.C. Cir. 2011)
(Kavanaugh, J., dissenting)).
52a
The force of this directive is that, rather than
relying indiscriminately on enactments throughout
the Nation’s history, courts must look first to the text
followed by any “public meaning” at the Founding, as
exemplified by regulations adopted around the time
of the Second Amendment’s enactment in 1791. To
the extent earlier or later laws confirm the original
understanding, the Supreme Court has noted that
this consistency only adds additional support to the
already-fixed public understanding of the amendment’s scope at the Founding, which is the lodestar of
the inquiry. Id. at 35–36; see also id. at 37 (stating
that in Heller, “19th-century evidence was treated as
mere confirmation of what the Court thought had
already been established” (cleaned up)). But where
later-enacted regulations diverge from the enactment-era record, the Supreme Court has instructed
that such provisions do not support the constitutionality of the challenged law. E.g., id. at 58 n.28
(“As with their late-19th-century evidence, the 20thcentury evidence presented by respondents and their
amici does not provide insight into the meaning of
the Second Amendment when it contradicts earlier
evidence.”). 4 Focusing on the Founding Era understanding is, of course, not unique to the Second
Amendment context; the Supreme Court has looked
to the same era—and discounted the relevance of
As reflected by my joining the dissent in Bianchi, I disagree
with the Bianchi majority’s distinction—which the majority in
this case now doubles down on—that a broader array of
historical evidence could be used at step two than at step one.
Compare Majority Op. at 12–13, with Bianchi, 111 F.4th at 500–
16 (Richardson, J., dissenting). Regardless of what historical
evidence the en banc Court determined it could rely on in
Bianchi, I must adhere to the narrower approach directed by
the Supreme Court.
4
53a
later enactments much more numerous than any
proffered in this case—when interpreting other rights
enshrined in the Bill of Rights. E.g., Espinoza v.
Mont. Dep’t of Revenue, 591 U.S. 464, 482 (2020)
(rejecting Montana’s argument “that a tradition
against state support for religious schools arose in
the second half of the 19th century, [with] more than
30 States—including Montana—adopt[ing] no-aid
provisions,” because “[s]uch a development, of course,
cannot by itself establish an early American
tradition”).
As was true in Bruen, while Plaintiffs assert a
“Second Amendment” challenge to the Maryland
laws, “[s]trictly speaking, [a state] is bound to respect
the right to keep and bear arms because of the
Fourteenth Amendment, not the Second.” Bruen, 597
U.S. at 37. Although the Supreme Court has
recognized that an “open scholarly debate” is ongoing
as to whether state firearms regulations should
account for both 1791 and 1868 “public meaning” (as
evidenced by regulations of the day) to determine the
scope of the Second Amendment as incorporated to
the States via the Fourteenth Amendment, the Court
has only noted its existence within academia, not set
further precedent. See id. at 37–38. 5 When undertaking the Bruen step-two analysis itself, the
Supreme Court has relied only on the understanding
Not only has the Supreme Court twice expressly declined to
address this debate in its decisions in Bruen and Rahimi, but
over the past year, it has repeatedly declined to grant certiorari
in petitions directly seeking guidance on this point. See, e.g.,
Antonyuk v. James, 120 F.4th 941 (2d Cir. 2024), cert. denied,
145 S. Ct. 1900 (2025); Wolford v. Lopez, 116 F.4th 959 (9th Cir.
2024), cert. granted on other grounds, --- S. Ct. ---, 2025 WL
2808808 (Oct. 3, 2025) (limiting grant of certiorari to a different
question presented).
5
54a
of the right to carry as it was understood in 1791, and
it has never relied exclusively or even to any
substantial degree on laws from 1868 or later to
identify a historical tradition of firearms regulation
as the historical analogue of a modern-day regulation. E.g., Heller, 554 U.S. at 614 (observing that
post-Civil War authority “do[es] not provide as much
insight into [the Second Amendment’s] original
meaning as earlier sources”); Bruen, 597 U.S. at 35
(cautioning “against giving postenactment [i.e., post1791] history more weight than it can rightly bear”);
Samia v. United States, 599 U.S. 635, 655 (2023)
(Barrett, J., concurring) (“[E]vidence . . . from the late
19th and early 20th centuries [is] far too late to
inform the meaning of [the scope of a constitutional
right enumerated] at the time of the founding.”).
Nor would doing so comport with the Court’s statements in which it recognized that it 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, 597 U.S. at 37;
see Lara v. Comm’r Penn. State Police, 125 F.4th 428,
439–40 (3d Cir. 2025) (quoting this language as being
a “strong hint” that a state firearms regulation
technically governed by the Fourteenth Amendment
is to be analyzed based on the “public meaning of the
right when the Second Amendment was ratified”).
That is particularly true in the specific context of
when the right to carry is at issue, because the
Supreme Court has repeatedly observed that “the
public understanding of the right to keep and bear
arms in both 1791 and 1868 was, for all relevant
55a
purposes, the same with respect to public carry.”
Bruen, 597 U.S. at 38. 6
Somewhat removed from the concern of pure time
is the concern of whether a particular state law can
truly serve as a model of the contemporary understanding of the Second Amendment’s scope, given
that states were not subject to the Second Amendment until it became incorporated via the Fourteenth
Amendment. Until then, and unless a state’s
constitution protected a right to bear arms—some did
not—its citizens were subject to a host of laws that
may have restricted the right to carry in a way
fundamentally at odds with the Second Amendment.
See Koons, 156 F.4th at 286 (Porter, J., concurring in
part and dissenting in part); accord id. at 286–87.
And “[e]ven after ratification of the Fourteenth
Amendment, ‘the laws of the ratifying states
frequently fell far short of the standards of the first
eight amendments, and ratification produced no
effort to bring those laws into conformity with the
Bill of Rights.’” Id. at 287 (quoting L. Rosenthal, The
Reasons beyond simply following what the Supreme Court
has said to date also support the conclusion that an 1868
understanding of the scope of the right to carry is substantively
the same as the 1791 understanding. Judge Porter fleshes these
out in his separate opinion in Koons, and I won’t belabor those
same points here. 156 F.4th at 289– 95 (Porter, J., concurring in
part and dissenting in part). Briefly, put, Judge Porter cites,
among other things, contemporary statements from those who
enacted the Fourteenth Amendment to demonstrate that they
believed their actions to be guaranteeing the rights originally
espoused in the Bill of Rights—including the Second Amendment—not expanding on those rights. Id. at 290–93. In other
words, advocates of the Fourteenth Amendment did not claim to
“redefine fundamental rights” but rather “protect the preexisting rights and freedoms enumerated in the Constitution.”
Id. at 292–93 (cleaned up).
6
56a
New Originalism Meets the Fourteenth Amendment:
Original Public Meaning and the Problem of
Incorporation, 18 J. Contemp. Legal Issues 361, 390
(2009)). Accurately understanding the Second Amendment’s scope requires more than merely identifying a state law’s existence.
For these reasons, as is true with the Second
Amendment in general, “post-ratification history [of
the Fourteenth Amendment] can confirm a court’s
understanding of Founding-Era public meaning,” but
the Supreme Court has drawn “a firm line where
later evidence ‘contradicts earlier evidence[.]’” Lara,
125 F.4th at 441 (quoting Bruen, 597 U.S. at 66)
(emphasis added). And “[i]n that circumstance,
[where] ‘later history contradicts what the text says,
the text controls.’” Id. (quoting Bruen, 597 U.S. at
36). For all these reasons, it is unnecessary—and,
absent a heretofore undiscovered, unique, and
extraordinary post-Founding factor, always inappropriate—to look beyond the public meaning of the
Second Amendment’s scope that existed in 1791
when considering the constitutionality of a state
firearm regulation.
At bottom, the Supreme Court has made clear that
the historical analogues from which courts discern
the principles on which the how and why of firearms
regulations are compared originate in the Founding
Era, not later. The district court’s decision and the
majority opinion grossly misread Bruen to treat
Reconstruction-era and later firearms regulations as
relevant historical analogues to assess whether the
modern challenged laws are constitutional. See
Koons, 156 F.4th at 280 (Porter, J., concurring in part
and dissenting in part) (describing this approach as
“methodological error” because “while mid- or late-
57a
19th century evidence might reinforce an earlyAmerican tradition, it cannot create one in the first
place”).
More troubling still, for many of the challenged
Maryland provisions, a smattering of mid-to-late 19th
century and later laws serve as the only historical
analogues on which the majority opinion pins its
analysis. That diversion only further attenuates its
conclusions from Bruen’s mandate to understand the
Second Amendment’s scope based on its widespread
meaning at the Founding. See, e.g., Bruen, 597
U.S. at 46 (seeking the “early American practice of
regulating public carry by the general public”
(emphasis added)); see also id. at 65–66 (rejecting as
“outliers” a duly enacted law from the 1870s because
it “contradict[ed] the overwhelming weight of other
evidence regarding the right to keep and bear arms
for defense in public”) (cleaned up)).
That said, the State need not come forward with a
precise “historical twin” from the Founding Era for
its modern-day restrictions to be constitutional. See
Lara, 125 F.4th at 441 (“Rahimi teaches that public
meaning is not just those regulations that could be
found in 1791, but rather the principles underlying
the Second Amendment, with historical regulations
providing evidence of those principles.” (cleaned up)).
But it must be “well-established and representative.”
Bruen, 597 U.S. at 30.
The Bruen Court recognized that some cases
“implicating unprecedented societal concerns or
dramatic technological changes may require a more
nuanced approach.” Id. at 27. While the Second
Amendment’s “meaning is fixed according to the
understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond
58a
those the Founders specifically anticipated.” Id. at
28. “So even if a modern-day regulation is not a dead
ringer for historical precursors, it still may be
analogous enough to pass constitutional muster.” Id.
at 29–30. However, “courts should not uphold every
modern law that remotely resembles a historical
analogue, because doing so risks endorsing outliers
that our ancestors would never have accepted.” Id. at
30 (cleaned up).
How the Supreme Court has undertaken this
historical inquiry demonstrates that the absence of
Founding-Era regulations appropriately analogous to
a challenged law means that the challenged law is
unconstitutional, regardless of the later historical
record. In Heller, the District of Columbia had
enacted a “flat ban on the possession of handguns in
the home” to redress the scourge of “firearm violence
in densely populated communities.” Bruen, 597 U.S.
at 27. As the Supreme Court observed, this same
problem existed in the Founding Era such that “the
Founders themselves could have adopted [a comparable prohibition] to confront that problem,” so the
fact they did not do so was dispositive. Id. Therefore,
when looking at the historical record, the Court
considered “‘founding-era historical precedent,’ including ‘various restrictive laws in the colonial period,’
and [found] that none was analogous to the District’s
ban.” Id. (quoting Heller, 554 U.S. at 631). That was
enough for the Court to deem the provision unconstitutional. “19th-century evidence was ‘treated as mere
confirmation of what the Court thought had already
been established.’” Id. at 37 (quoting Gamble v.
United States, 587 U.S. 678, 702 (2019)).
So too in Bruen. There, the Supreme Court deemed
the historical inquiry “relatively simple to draw,” ob-
59a
serving that the challenged law sought to address
“the same alleged societal problem addressed in
Heller: ‘handgun violence,’ primarily in ‘urban
area[s].’” Id. at 27 (quoting Heller, 554 U.S. at 631).
The Court looked to the “‘historical precedent’ from
before, during, and even after the founding” and
concluded that it reflected no “tradition of regulation”
comparable to the challenged New York licensing
regime, id. (quoting Heller, 554 U.S. at 631), which
required citizens to demonstrate “proper cause” to
secure a license to carry a firearm outside the home,
id. at 12. So once again, the absence of a proper
historical analogue from the Founding Era determined the outcome of the case and the Court never
referenced later evidence when undertaking the steptwo analysis.
Most recently in Rahimi, although the Supreme
Court upheld the federal criminal provision at issue,
“it did not include a single source dating from the
Civil War onwards” as a basis for its decision. Koons,
156 F.4th at 284 (Porter, J., concurring in part and
dissenting in part). Instead, it “looked exclusively to
pre-Revolution, Founding-era, and early antebellum
sources” as the only historical analogues on which to
hinge its analysis. Id. at 284–85.
These cases reinforce that the Supreme Court has
practiced what it has preached and grounded its
Second Amendment analysis in the public meaning of
the right to carry that existed in the Founding Era.
Neither Heller nor Bruen used post-Founding-Era
regulations to rehabilitate a challenged law that falls
within the Second Amendment’s plain text and for
which no comparable Founding-Era regulations existed. And Rahimi did not deem Reconstruction-era or
later regulations relevant at all to its identification of
60a
a historical analogue. Instead, when faced with an
absence of analogous restrictions on the right to
public carry from the Founding Era, the Supreme
Court ended its analysis and deemed modern regulations on that right unconstitutional. That approach
makes constitutional sense under Bruen’s burdenshifting framework. “Unlike cases where challenged
laws enjoy the presumption of constitutionality, a
modern gun prohibition at Bruen step two is presumptively unconstitutional unless the government can
show that it fits within a relevant tradition of
historical firearms regulation.” Koons, 156 F.4th at
286 (Porter, J., concurring in part and dissenting in
part). So, “the absence of analogous regulations from
the Founding and antebellum periods is highly relevant, because they are the best available source of”
identifying that “tradition of historical firearms
regulation.” Id. at 285, 286.
Moreover, these first principles dictate that to
prevail at step two of Bruen, Maryland must come
forward with proof that each of its regulations
prohibiting firearms in a place it has designated as
“sensitive” find relevant historical analogues either
(a) in the non-exhaustive list of delineated places that
the Supreme Court has specifically recognized, or (b)
in the commonly understood public meaning of the
Second Amendment at the time of its enactment.
Earlier and later regulations—in particular, Reconstruction-era and later laws—may only confirm a
particular understanding of the pre-existing right to
public carry at the Founding, but they cannot serve
as an analogue when they contradict it.
This approach differs markedly from that taken by
the majority opinion (and the district court), which
treats later-19th- and 20th-century evidence on par
61a
with evidence from the Founding Era when considering the Bruen step-two analysis. E.g., Maj. Op. 12–13.
That perspective is erroneous and contravenes
Supreme Court authority in three significant ways.
First, it improperly includes laws from the wrong
timeframe when ascertaining historical analogues to
compare with today’s regulations. Second, by taking
the “long view of history,” the majority opinion
misdirects attention away from the recognition of
what the Second Amendment encompassed around
1791 and thereby ignores the significance of that
era’s context. Maj. Op. 13. Founding-Era silence as
well as enactment of contemporary provisions permitting or even requiring possession of firearms in
analogous public spaces must drive the analysis.
Third, the majority opinion improperly expands the
scope of the inquiry by looking to laws from outliers
such as individual municipalities and territories that
Bruen said are not “instructive” to the step-two
inquiry. Bruen, 597 U.S. at 67; see id. at 66–68
(discussing why territorial and municipal restrictions
do not “overcome the overwhelming evidence of an
otherwise enduring American tradition of permitting
public carry,” noting that “miniscule territorial
populations . . . would have lived under them” as
compared to the population of the nation as a whole).
Relatedly, in the context of mass transit, the majority
strays even further, looking not to any duly enacted
law at all in its quest to conjure support for Maryland’s law, but rather to private companies’ rules
about firearm carriage adopted in the mid-to-late
19th century. Such rules are too removed in both
kind (private, not governmental) and time (too late)
to be appropriate Bruen analogues.
62a
Unsurprisingly, a focused understanding of what
the Supreme Court has directed courts to consider
when undertaking this analysis leads to a different
result than the amorphous and atextual approach the
majority opinion uses, as explained in the locationby-location analysis that follows.
II.
At the outset, when approaching the specific challenged places at issue here, it’s important to recognize
that we are not free to second-guess the locations the
Supreme Court has identified as falling within its
concept of “sensitive places.” For that reason, as the
majority opinion sets out, we readily dispose of
Plaintiffs’ challenges to Maryland’s prohibitions of
firearms on “school grounds” and “government buildings.” See Maj. Op. III.B.1 and 3. Simply put, there’s
no daylight between the delineated place “schools”
and the remaining property on which they sit, which
often perform identical functions and serve the
same populations as the school buildings themselves.
Similarly, “government buildings”—while potentially
capacious—have similarly been identified by the
Supreme Court as places where governments have
historically been able to control access to firearms. If
the Supreme Court later wishes to narrow those
locations, that is within their province to do so. But it
is not within ours as a lower court.
In my view, “government buildings” is particularly
notable because it brings within its scope many
places that may also fall within other categories of
the places challenged here. 7 Because governments
Although some circuit courts of appeals have noted in dicta
that the Supreme Court may not have literally meant that every
government building is a sensitive place, that is what the Court
7
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can therefore generally control firearm possession in
such buildings, Maryland remains free under this
principle to prohibit possession of firearms in those
places. And that is true of any state-controlled
building that might also fall within one of the other
challenged provisions of state law here. For example,
as discussed later, nothing in my conclusion that the
State cannot prohibit firearms in all museums
because museums are not per se “sensitive places”
would prevent the State from prohibiting entrants
from possessing firearms in a government building
operated as a museum. 8
Even more broadly, nothing in the analysis that
precedes or follows prevents private property owners
from exercising their long-standing entrenched right
to prohibit individuals on their property from
has said—and repeated. Compare Schoenthal, 150 F.4th at 917
(“The Supreme Court has recognized that ‘government
buildings’ have maintained a longstanding tradition of firearm
restriction, although we do not read Bruen to necessarily situate
all government buildings within the category of widely-accepted
sensitive places.” (quoting Bruen, 597 U.S. at 30)), and Koons,
156 F.4th at 250, with McDonald, 561 U.S. at 786 (“We made it
clear in Heller that our holding did not cast doubt on such
longstanding regulatory measures as . . . laws forbidding
carrying of firearms in sensitive places such as (Continued)
schools and government buildings[.] . . . We repeat those
assurances here.” (cleaned up)). So until the Supreme Court
clarifies a different meaning, I would take its reference to
“government buildings” to mean exactly what it says, no more
and no less.
My view stems directly from the Supreme Court’s previous
recognition that its sensitive place doctrine extends to “government buildings” and not from the proffered basis that the State
can ban firearms in spaces in which it acts as a proprietor. I
address why it is inapt to rely on that doctrine later, in the
section addressing Maryland’s mass transit restriction.
8
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possessing firearms. Cedar Point Nursery v. Hassid,
594 U.S. 139, 149 (2021) (“The right to exclude is ‘one
of the most treasured’ rights of property ownership
. . . . [It] is ‘universally held to be a fundamental
element of the property right,’ and is ‘one of the most
essential sticks in the bundle of rights that are
commonly characterized as property.’” (citations
omitted)). Thus, regardless of the government’s limited regulatory authority under the Second Amendment, private owners remain free to prohibit entrants
from possessing firearms in their healthcare facilities, parks, museums, places of amusement, establishments where alcohol is sold, and the like.
The sole question before the Court is whether a
government can categorically interfere with the
Second Amendment right to carry firearms in public
in the challenged locations. My conclusion that many
of these provisions do not withstand a proper Second
Amendment “sensitive places” inquiry means only
that Maryland cannot act in the sweeping way it has
attempted.
A. Healthcare Facilities
With exceptions that are not at issue in this facial
challenge, the Maryland law states that “[a] person
may not wear, carry, or transport a firearm in”
certain healthcare facilities. Md. Code Ann., Crim.
Law §§ 4-111(a)(2)(iii), (c). A cross-referenced provision defines covered healthcare facilities as: hospitals and their related institutions (each of which has
their own further statutory definition); ambulatory
surgical facilities or centers “that operate[] primarily
for the purpose of providing surgical services to
patients not requiring hospitalization and seek[]
reimbursement from third party payors as an
ambulatory surgical facility or center”; and facilities
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primarily focused on the rehabilitation of disabled
individuals. Md. Code Ann., Ins. Law §§ 15-10B01(g)(1)–(4).
The covered healthcare facilities exist for purposes
of the assembly of individuals seeking medical treatment, including those in intensive care units, undergoing surgeries, and needing rehabilitation due to
physical impediments. I can conceive of few places
more holistically devoted to the gathering and protection of a defenseless and vulnerable population
group and those who are attending to them than
healthcare facilities. Put simply, however sensitive
places are defined beyond the current delineations
from the Supreme Court, healthcare facilities would
fall within that scope. Bruen, 597 U.S. at 30. That’s
sufficient, in my view, to support the constitutionality
of the Maryland prohibition. See Rahimi, 602 U.S. at
693 (reiterating that facial challenges are the “‘most
difficult challenge[s] to mount successfully,’ because
[they] require[] a defendant to ‘establish that no set
of circumstances exists under which the Act would be
valid,’” and that, “to prevail, the Government need
only demonstrate that [the statute] is constitutional
in some of its applications” (quoting United States v.
Salerno, 481 U.S. 739, 745 (1987))). I therefore concur
in the judgment of the majority affirming the district
court’s grant of summary judgment as to the claim
based on §§ 4-111(a)(2)(iii), (c).
B. Mass Transit
Maryland also prohibits individuals from carrying
or possessing “concealed weapons” “in any transit
vehicle or transit facility, designed for the boarding of
a transit vehicle, which is owned or controlled by the
[Mass Transit] Administration [(“MTA”)] or a train
owned or controlled by the [MTA] or operated by a
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railroad company under contract to the [MTA] to
provide passenger railroad service.” Md. Code Ann.,
Transp. § 7-705(b)(6). A division of the Maryland
Department of Transportation, the MTA operates a
variety of local transit services (e.g., bus, light rail,
and metro subway systems) as well as statewide
transit services (such as the Maryland Area Regional
Commuter (“MARC”) train service connecting Washington, D.C., and a paratransit system for individuals
with disabilities). “About Us,” http://mta.maryland
.gov/about [https://perma.cc/3677-8XXG] (last visited
Jan. 13, 2026). Maryland statutes further define the
terms used in this Second Amendment restriction as
follows:
• “Transit vehicle” means “a mobile device used in
rendering transit service,” Md. Code Ann.,
Transp. § 7-101(s);
• “Transit service” means “the transportation of
persons and their packages and baggage and of
newspapers, express, and mail in regular route,
special, or charter service by means of transit
facilities” (but not to include vanpool or railroad
services), Id. § 7-101(q); and
• “Transit facility” means “any one or more or
combination of tracks, rights-of-way, bridges,
tunnels, subways, rolling stock, stations, terminals, ports, parking areas, equipment, fixtures,
buildings, structures, other real or personal
property, and services incidental to or useful or
designed for use in connection with the rendering of transit service by any means, including
rail, bus, motor vehicle, or other mode of
transportation, but does not include any
railroad facility.” Id. § 7-101(o).
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These provisions reflect that Maryland’s law
reaches well beyond State-owned buildings devoted to
transit. As noted earlier, I conclude that the Supreme
Court’s designation of “government buildings” as sensitive places would be sufficient grounds to conclude
that Maryland can prohibit arms in “government
buildings” devoted to transit purposes. But a “building” does not encompass the massive infrastructure
or “vehicles” that this prohibition includes. Nor are
they sufficiently analogous in purpose or type to
“government buildings” or any other Heller- or
Bruen-delineated “sensitive place” to end the inquiry
there. Instead, for each of those “places,” it’s necessary to consider the broader historical tradition to
determine whether similar or analogous restrictions
existed at the Founding.
While the Founding-Era record is limited, it does
not support Maryland’s ban on firearms while in
transit. From the late 1600s through the Founding
Era, ferries transported individuals between “major
port cities.” Joshua Hochman, Note, The Second
Amendment on Board: Public & Private Historical
Traditions of Firearm Regulation, 133 Yale L.J. 1676,
1685 & n.40 (2024); see Free Public Library of Jersey
City, From Canoe to Tunnel: A Sketch of the History
of Transportation between Jersey City and New York,
1661–1909 6 (3d ed. 1909) (discussing ferry service
running several times a week from 1661 forward,
with routes expanding over the next two centuries,
and including a 1783 ferry service that “would take
passengers from Communipaw to connect with the
stage running to Newark and Philadelphia”); Jay
Young, Infrastructure: Mass Transit in 19th- and
20th-Century Urban America 1–2 (2015) (discussing
regular ferry service connecting urban centers in the
early 1800s).
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Stagecoaches and Stage wagons for hire also arose
throughout the colonies in the early 18th century and
continued until overtaken by the railroad over a
century later. E.g., Ron Vineyard, Stage Waggons
and Coaches, Colonial Williamsburg Found. Library
Rsch. Rept. Series–00380 (Aug. 2002), available at
https://research.colonialwilliamsburg.org/DigitalLibr
ary/view/index.cfm?doc=ResearchReports%5CRR0380
.xml [https://perma.cc/JMY9-VQGX] (last visited Jan.
13, 2026); see George A. Thrupp, The History of
Coaches 97–125 (1887) (discussing the prevalence of
“public carriages” in the colonial era).
Yet Maryland has not come forward with any
evidence that firearms were regulated—let alone
prohibited by the Government—on any of these
conveyances. Nor is there evidence of any national
tradition from the Founding Era of preventing
individuals from carrying firearms while traveling
from place to place, whatever their means of traveling. Quite the opposite: many colonies required
travelers to arm themselves when traveling. See, e.g.,
Kopel & Greenlee, supra, at 234 & nn.109–11
(compiling laws from 17th-century Virginia, Massachusetts Bay, Plymouth, Rhode Island, and Maryland); Clayton E. Cramer, Colonial Firearm
Regulation, 16 J. Firearms & Pub. Pol. 1, 15–16
(2004). So while the Founding-era evidence is scant,
it all skews firmly against Maryland being able to
show a national tradition of prohibiting commuters or
travelers from carrying firearms while assembled for
that purpose. That immediately casts doubt on its
constitutionality under Bruen.
Even accepting that forms of public mass transit
were less numerous and transported fewer people
than in the modern era still does not permit an end-
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run around what can be gleaned from the Founding
Era’s allowance of firearms in analogous contexts. We
are, in fact, required under Bruen to consider the
hows and whys of past regulations to determine the
constitutionality of modern restrictions. When it
comes to types of public mass transportation—and,
indeed, many of the other challenged regulations—
much of the majority opinion’s focus ignores that
people gathered together for all sorts of purposes
throughout the Founding Era, yet there’s no evidence
of contemporaneous efforts to regulate the mere
possession of firearms as a consequence of them
doing so. Indeed, as Bruen recognized, “the historical
record yields relatively few 18th- and 19th-century
‘sensitive places’ where weapons were altogether
prohibited.” 597 U.S. at 30.
Relatedly, Bruen repudiated the notion that a place
could be designated as “sensitive” based solely on
concerns about people congregating there in close
proximity to one another. Id. at 31. Just as there was
“no historical basis for New York to effectively
declare the island of Manhattan a ‘sensitive place’
simply because it is crowded and protected generally
by the New York City Police Department,” so too
there is no historical basis for Maryland to declare all
manner of places within its jurisdiction as “sensitive”
simply because they are areas where a cross-section
of the population gathers in crowded spaces and are
generally protected by transit police. Id. 9 In short,
While some may attempt to distinguish the island of
Manhattan from a transit vehicle, we dismiss their similarities
at our peril. Transit vehicles featured in Justice Kagan and
Justice Alito’s questioning of counsel during oral argument in
Bruen, demonstrating the connection between the State’s justification for the ban at issue there and its logical extension to
other spheres. See Tr. of Oral Argument at 28, Bruen, 597 U.S. 1
9
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the mere congregation of individuals in a defined
space is insufficient to support a place being deemed
“sensitive” so as to justify a location-specific ban of
this sort.
Nor are the “going armed” or “affray” laws adopted
in many colonies and new states appropriate analogues to Maryland’s mass transit prohibition. Such
regulations “barr[ed] people from misusing weapons
to harm or menace others” through brandishing or
discharge. Rahimi, 602 U.S. at 693. They did not
prohibit mere public carriage in crowded spaces. Id.
at 693–94; see Eugene Volokh, The First and Second
Amendments, 109 Columbia L. Rev. Sidebar 97, 101
(2009) (quoting Founding-era commentaries describing such “going armed” laws as “covering ‘a man
arming himself with dangerous and unusual weapons, in such a manner, as will naturally diffuse a
terrour among the people’” (cleaned up)). Accordingly,
these laws are not helpful historical analogues for
resolving this case, which challenges the ability to
carry for the classic Second Amendment protected
activity of self-defense in delineated mass transit
spaces purely because of their designation as
“sensitive.” 10 Moreover, other laws—not challenged
(2022) (No. 20-843); see also Hochman, supra, at 1678 (discussing these exchanges).
Related exemplars from England like the Statute of
Northampton of 1328 are distinguishable on the same grounds.
See Rahimi, 602 U.S. at 693–98 (discussing same). Indeed, “the
most famous application of Northampton at common law
rejected the idea that merely bearing arms in [populated] places
constituted unlawful behavior. Sir John Knight’s Case, 90 Eng.
Rep. 330 (K.B. 1686).” Koons, 156 F.4th at 288 (Porter, J.,
concurring in part and dissenting in part). In short,
“Northampton-inspired going-armed laws were about dangerous
10
71a
here—address when an individual who “disrupts the
public order” or “poses a clear threat of physical
violence to another” may be disarmed consistent with
the Second Amendment. Rahimi, 602 U.S. at 695–98.
But those concerns are not in play in this case. And
regardless, they’re not a relevant analogue for
deciding whether the State may disarm individuals
simply because some quantity of other people are in
the same location.
Maryland’s position—incorporated into the majority opinion—also ignores the core purpose behind the
Second Amendment—the right of public carry for
self-defense. People regularly exercise their Second
Amendment right to protect themselves when they
are out in society, and they do so with documented
success. E.g., Don B. Kates & Alice Marie Beard,
Murder, Self-Defense, and the Right to Arms,
45 Conn. L. Rev. 1685, 1693–94 (2013) (“Overwhelmingly when victims draw guns, criminals flee.
Criminals flee armed citizens because they want
helpless victims, not gunfights with armed ones. . . .
A statistician for the U.S. Justice Department’s
National Crime Victimization Study estimates that
when defending against rape, robbery, or assault,
guns help 65% of the time and make things worse
about 9% of the time. . . . Criminological studies
conclude that “[r]esistance with a gun appears to be
[the] most effective [response to criminal attack] in
preventing serious injury [and] preventing property
loss.”); James M. Manley, Defining the Second
Amendment Right to Carry: Objective Limits on a
Fundamental Right, 14 Thomas M. Cooley J.
Practical & Clinical Law 81, 99 (2012) (“Statistical
and threatening conduct, not general prohibitions on public
carry in sensitive places.” Id.
72a
evidence of past crimes would provide little justification for carry restrictions, because those statistics
would simply show that the need for self-defense is
greater in crime-ridden areas.”).
The ability to exercise this right is no less necessary just because the space in question transports
large numbers of people. According to the Congressional Research Service, “[c]rime on public transportation systems has been generally worse since the
beginning of the COVID-19 pandemic. According to
[Department of Transportation] data, in the five
years from 2020 through 2024, homicides in transit
systems were more than double on average than in
the five years before the pandemic, 2015 through
2019. Assaults increased on average by about 80%.”
William J. Mallett, Cong. Rsch. Serv., R48644,
Surface Transportation Reauthorization: Public
Transportation 16 & n.78 (2025), Available at https://
www.congress.gov/crs_external_products/R/PDF/R48
644/R48644.2.pdf [https://perma.cc/L7TT-Y8C5]. Without the ability to arm themselves, travelers in the
modern era, no less than those at the Founding, find
themselves particularly defenseless and vulnerable.
A further weakness in the justification for the mass
transit vehicle and infrastructure firearm prohibition: Maryland—and the majority opinion—rely on
the policies of private companies restricting firearms
carriage in transit conveyances, arguing that because
public transportation did not generally exist until the
1900s, such private companies were “providing
essentially a public service” in the 19th century. Maj.
Op. 16 (quoting Wolford v. Lopez, 116 F.4th 959, 1001
(9th Cir. 2024), cert. granted on other grounds, --S. Ct. --- , 2025 WL 2808808 (Mem.) (Oct. 3, 2025)).
But private companies are free to impose whatever
73a
restrictions they wish regarding firearms carriage
without transgressing the Second Amendment.
Accordingly, any historical record as to their policies
is irrelevant to the question before us, which is
whether there’s support for the conclusion that
governments—consistent with the Second Amendment—prohibited persons from carrying firearms in
this sphere. 11 Cf. Ortega v. Grisham, 148 F.4th 1134,
1150 n.8 (10th Cir. 2025) (distinguishing privatemarket limitations on firearms possession because
only “[g]overnment-erected barriers to possession . . .
are covered by the Second Amendment’s text”
(emphasis added)).
It’s also necessary to address the majority opinion’s
flawed alternative ground for affirming this provision: reliance on the proprietary property doctrine.
Paramount to rejecting that approach is that the
Supreme Court has never suggested that the
Even if one were to accept the premise that what private
companies did is somehow relevant to the Bruen inquiry, I find
persuasive the Ninth Circuit’s discussion in Wolford that any
such private rules tended to focus on how and where firearms
were carried and did not impose the sort of sweeping prohibition
across local and statewide transit for both commuting and
traveling that the Maryland provision imposes. See 116 F.4th at
1001 (“[M]ost of the companies appeared to prohibit only
carriage without pre-boarding inspection, carriage in the
passenger cars (the firearms had to be checked as luggage),
carriage of loaded firearms, or carriage of ‘dangerous’ weapons,
such as rifles with bayonets attached. Moreover, several States
enacted a ‘traveler’s exception,’ whereby persons traveling
longer distances could carry their firearms on board.” (citing
Hochman, supra, at 1696–97)). Thus, even when consulted,
these private rules created in the 19th century as railroads were
built do not provide an adequate historical analogue because
how they regulated firearms fundamentally differs from
Maryland’s sweeping prohibition.
11
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necessary historical analysis becomes inapplicable
when the government acts in its proprietary rather
than sovereign capacity. The Court certainly could
have done so as a basis for explaining why some of
the so-called “sensitive places” exist as exceptions to
the general right to carry identified in Heller. But it
did not. And when it fashioned Bruen’s historical
framework, it discussed the sensitive-places exception solely within that construct.
The Supreme Court’s unqualified adoption of a
historical approach in Bruen is sufficient reason to
negate any legitimacy of the majority’s alternative
explanation for finding the mass transit prohibitions
constitutional. But the majority’s other justifications
are also inapt. Reasoning from First Amendment
principles isn’t particularly persuasive. Plenty of
principles apply in one context—say, the First
Amendment—but are not then carried over to
interpret an entirely different constitutional right—
say, the Second Amendment. Nor is the Ninth
Circuit’s decision to adopt a proprietary property
doctrine relevant. See Wolford, 116 F.4th at 970–71.
As noted, our sister circuits have adopted contrary
views on this issue, so it’s ultimately a matter of
determining which is most consistent with Bruen. As
the Koons panel majority had recognized, “the
prospect of enabling the government, in its proprietary capacity, to prohibit the possession or carry of
firearms on property it owns would work great
damage to individuals’ Second Amendment rights[.]
. . . [P]ermitting the government to end-run the
Second Amendment when it acts as a proprietor
brings with it the prospect of ‘eviscerat[ing] the
general right to publicly carry arms for self-defense’
75a
that Bruen articulated.” Koons, 156 F.4th at 250
(quoting Bruen, 597 U.S. at 31). 12
In sum, because Maryland has not met its burden
of showing a long-standing historical tradition of
governments regulating modes of mass transit for
similar purposes and in a similar method in the
Founding Era of the Republic, I would hold that the
Maryland mass transit prohibitions—to the extent
they cover something other than a government
building—violate the Second Amendment.
C. Public Demonstrations
Under Maryland law, individuals cannot possess a
firearm “at a demonstration in a public place or in a
vehicle that is within 1,000 feet of a demonstration in
a public place” after they have been “advised by a law
This is not to say that Government ownership is irrelevant
to the Second Amendment inquiry, but rather that it is relevant
only within Bruen’s historical analysis. On this point, the
Seventh Circuit aligned with the now-vacated panel majority in
Koons. In their views, endorsing the government’s proprietary
actor framework would “effectively withdraw[] firearm restrictions on government property from the Bruen framework”
when the approach called for by Bruen would be to consider it
“at Bruen’s second step as a guidepost for locating the public
transit restriction within our nation’s tradition.” Schoenthal v.
Raoul, 150 F.4th at 918; accord Koons, 156 F.4th at 250 n.104
(“Bruen accommodates questions of state versus private property ownership within its principles-based test by asking
whether excluding weapons from a particular locale comports
with ‘the Nation’s historical tradition of firearm regulation,’
meaning we must consider whether a regulation in each location
is analogous to laws protecting sovereign functions and
officials.” (citation omitted)). What I—and they—decline to do,
but which the majority opinion permits, “is [to] treat simple
governmental ownership of property as a shield against Second
Amendment scrutiny.” Koons, 156 F.4th at 250 n.104; see
Schoenthal, 150 F.4th at 918 & n.26.
12
76a
enforcement officer that a demonstration is occurring” at the scene and have “been ordered by the
law enforcement officer to leave the area of the
demonstration until the person disposes of the
firearm.” Md. Code Ann., Crim. Law § 4-208(b)(2).
State law further defines both “demonstration” and
“public place.” Id. § 4-208(a)(2), (6).
While I agree with the majority that Plaintiffs have
standing to challenge this provision and therefore
join that part of the majority opinion (Maj. Op. 23–
24.), I disagree on the merits and would instead
affirm the district court’s grant of injunctive relief to
Plaintiffs.
Maryland has not come forward with evidence
that—at the Founding—States enacted measures
prohibiting firearms at public demonstrations. On
the contrary, the historical record reflects quite the
opposite. As the district court observed, “[j]ust before
the ratification of the Second Amendment, ‘six out of
the thirteen original colonies required their citizens
to go armed when attending . . . public assemblies.’”
Kipke v. Moore, 695 F. Supp. 3d 638, 662 (D. Md.
2023) (emphasis added) (quoting Koons v. Platkin,
673 F. Supp.3d 515, 629 (D.N.J. 2023), aff’d in part,
rev’d in part, Koons, 156 F.4th at 210). Specifically, in
the 150 years before the Second Amendment’s
enactment, American colonies up and down the
Atlantic enacted laws requiring men to bring
firearms with them to church and other public
gatherings. E.g., Kopel & Greenlee, supra, at 233 &
n.108 (documenting 17th-century laws from Virginia,
Rhode Island, Georgia, Connecticut, Massachusetts
Bay, Maryland, and South Carolina); Cramer, supra,
at 12–15. For example, a 1643 Connecticut law cited
the possibility of attacks as the basis for each
77a
household to “‘bring a musket, pystoll or some peece,
with powder and shott to e[a]ch meeting.’” Cramer,
supra, at 12 & n.50 (cleaned up). And a 1642
Maryland law forbade able-bodied men from “go[ing]
to church or Chappell . . . without [a] fixed gunn and
1 Charge at least of powder and Shott.” Id. at 13
& n.55 (citation omitted). Given that the Second
Amendment codified a preexisting right, such colonial laws illuminate that our Founders would never
have commonly understood that right to permit the
government to prohibit carrying firearms at public
demonstrations.
These specific colonial-era laws also reinforce the
broader historical record from the Founding Era.
Americans owned firearms and they carried those
arms with them when they left home. See, e.g., Alexis
De Tocqueville, Journey to America 266 (J.P. Mayer
ed., George Lawrence trans., Faber & Faber Ltd.
1959) (describing from his famous travels in the new
country, a typical cabin in Kentucky or Tennessee as
containing “a fairly clean bed, some chairs, a good
gun, often some books and almost always a newspaper”); Robert H. Churchill, Once More Unto the
Breach, Dear Friends, 25 L. & Hist. Rev. 205, 212
(observing, with citations, that “[t]he available evidence of gun ownership in colonial probate inventories” supports the author’s conclusion that colonists
at the brink of the Revolution “were accustomed to
keeping arms”). To return to St. George Tucker’s
appraisal, “[i]n many parts of the United States, a
man no more thinks, of going out of his house on any
occasion, without his rifle or musket in his hand,
than a European fine gentleman without his sword
by his side.” Kopel & Greenlee, supra, at 234 n.110
(citation omitted). Put bluntly, “‘Americans certainly
did not think that bringing guns to town was a
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problem’—it ‘was normal.’” 156 F.4th at 304–05
(Porter, J., concurring in part and dissenting in part)
(quoting Kopel & Greenlee, supra, at 233–34 &
n.110).
The majority opinion dismisses such Founding-Era
evidence based on the misguided notion that laws
governing riotous assembly permit the regulation of
armed aseemblies. Maj. Op. 25–26. But that’s a red
herring—Bruen instructs courts to look to the
Founding Era to determine whether a modern-day
restriction is grounded in the Nation’s tradition of
restricting firearm carriage. As already discussed,
the affray laws did not address the sort of widespread
prohibitions on presence and possession of firearms
contemplated by Maryland’s modern prohibition.
When it comes to public demonstrations and firearms, the Founding-Era record reveals: (1) no
nationwide consensus of prohibiting the mere presence firearms at public gatherings, and (2) numerous
examples of firearms being required at public
gatherings. It’s the combined effect of these two
components of the historical record that compels the
conclusion the Second Amendment does not permit
governments to prohibit mere possession of firearms
at any public demonstration.
Additional considerations bolster this conclusion.
As observed elsewhere, Founding-Era required-carry
laws “establish[] an expectation that the person next
to you in the crowd is armed, thus undermining the
majority’s assumption that an armed person in the
assembly threatens the public good.” Koons, 156
F.4th at 304 (Porter, J., concurring in part and
dissenting in part). Put another way, the existence of
these Founding-Era examples illuminates the falsity
of the position that locations where the public
79a
gathers en masse carry a national tradition of being
inherently “sensitive” such that they fall within a
class of permissible firearms restrictions.
The majority’s prefatory observation about the
interplay of the First and Second Amendment further
obfuscates the analysis. No one disputes that the
First Amendment protects “the right of the people
peaceably assemble,” or that—consistent with the
Second Amendment—a state can prohibit firearms
from being used in a manner that disrupts the peace.
But Maryland’s law prohibits the mere presence of
firearms during public demonstration under circumstances unrelated to maintaining the peace. By
presuming that the mere presence of firearms somehow threatens peaceful public assembly, Maryland’s
law subjugates the Second Amendment right to
public carriage for lawful purposes to the First
Amendment right to assemble. It also ignores that
restricting open carry may itself have First Amendment implications. See, e.g., Timothy Zick, Arming
Public Protests, 104 Iowa L. Rev. 223, 241–53 (2018).
That’s precisely what the Supreme Court has
cautioned against by reminding courts and legislatures that the Second Amendment is “not a secondclass right.” Bruen, 597 U.S. at 70 (citation omitted).
Given the absence of Founding-Era regulations to
support Maryland’s broad prohibition of firearms at
and near public demonstrations, the majority opinion
instead cites a host of inapplicable laws as supposed
analogues. None meet Bruen’s exacting standards. As
previously discussed, “affray” and other prohibitions
on riotous or unlawful assembly targeted the manner
in which arms were carried, not their mere presence
or possession. The critical question for these jurisdictions was not whether an assembly was armed,
80a
but whether it constituted an “affray,” i.e., a
disturbance of the peace. E.g., Koons, 156 F.4th at
304 (Porter, J., concurring in part and dissenting in
part). And while a handful of states and territories
dating from 1869 to 1890 enacted broader assemblyoriented provisions, as explained above, the Supreme
Court deems such examples much too sparse—and
from a period much too late—to substantiate proof of
a nationwide understanding at the time of the
Founding. See Bruen, 597 U.S. at 66–67 (“[L]ate19th-century evidence cannot provide much insight
into the meaning of the Second Amendment when it
contradicts earlier evidence” and “the bare existence
of [a handful of] localized restrictions cannot overcome the overwhelming evidence of an otherwise
enduring American tradition permitting public
carry.”).
For these reasons, I agree with the district court
that Maryland failed to meet its burden at Bruen
step two as to Maryland’s public demonstration
firearms restriction, Md. Code, Crim. Law § 4208(b)(2), and would hold the provision unconstitutional.
D. State Parks and Forests
With certain exceptions not relevant here, Maryland prohibits individuals from possessing firearms
in its parks, Md. Code Regs. 08.07.06.04(B); possessing or using firearms in its forests, Md. Code
Regs. 08.07.01.04(B); and possessing or using firearms in the Chesapeake Forest Lands, Md. Code
Regs. 08.01.07.14(B). 13 The prohibitions contain
The Chesapeake Forest Lands is a defined number of acres
spanning six counties along the Eastern Shore of Maryland. Md.
Code Regs. 08.01.07.02.
13
81a
exceptions authorizing certain target shooting,
hunting, or possession while crossing state land to
hunt on private property. See Md. Code Regs.
08.07.06.04(C)–(D), 08.07.01.04(C)–(E), 08.01.07.14
(C)–(E).
1. State Parks
In considering the park restriction, the majority
opinion adopts an approach taken by several sister
circuits, bypassing any effort to locate a historical
analogue in the Founding Era before attempting to
justify the restriction. Maj. Op. 27–30. Instead, it
declares “modern-style parks” in urban settings an
innovation of the mid-19th-century that permits
courts to look strictly to mid-to-late-19th-century
firearms prohibitions as a basis for finding a
sufficient historical record of firearms regulations in
such spaces to justify Maryland’s broad prohibition.
Id.
As addressed elsewhere in this opinion, I believe
that the majority opinion’s approach to this historical
inquiry flouts Heller and Bruen, which direct our
focus to the Founding-Era understanding. Although
Bruen acknowledged that modern-day problems may
require a more “nuanced” approach when seeking a
historical analogue, 597 U.S. at 27, the majority
misapplies that directive in the context of Maryland’s
restriction on firearms in parks. When a problem
existed at the Founding, a lack of regulation at that
time strongly suggests the modern prohibition is
unconstitutional. E.g., id. at 26 (“[W]hen a challenged
regulation addresses a general societal problem that
has persisted since the 18th century, the lack of a
distinctly similar historical regulation addressing
that problem is relevant evidence that the challenged
regulation is
Amendment.”).
82a
inconsistent
with
the
Second
The majority opinion first errs by misrepresenting
the historical record to suggest that any problems
associated with open-aired recreational spaces is a
context known only to post-Reconstruction America.
Not so. Examples of Founding-Era urban and rural
public spaces abound; and all without any firearm
prohibitions. While “small cities and towns of the
new American Republic did not have public parks[,]”
that was because “[t]hey did not need them; their
inhabitants had only to walk a short distance
to reach nature.” Witold Rybczynski, Parks and
Landscape, in 1 Encyclopedia of the New American
Nation: The Emergence of the United States, 1754–
1829 154 (Paul Finkelman ed., 2006); Anne Beamish,
Before Parks: Public Landscapes in Seventeenth- and
Eighteenth Century Boston, New York, & Phila
delphia, 40 Landscape J. 1, 3 (2021) (“Before the
nineteenth century, the demand for large open green
space was low because most towns were relatively
compact, density was low, homes had their own
gardens and orchards, and residents had easy access
to the countryside.”); The Gardens of Colonial
Williamsburg, Colonial Williamsburg, at 7, https:
//www.colonialwilliamsburg.org/discover/resourcehub/timelines/gardens-of-cw/ [https://perma.cc/9MF7EK5N] (last visited Jan. 13, 2026) (“Never far from
wild landscapes, the colonists apparently did not feel
the need to recreate them in their gardens.”).
“Nevertheless, there were park-like urban spaces [in
the Founding Era]. Almost every New England
village had a turfed green at its center, used for
markets and other public gatherings. When villages
grew into towns, these greens were often enlarged, as
in the case of the Boston Common.” Rybczynski,
83a
supra, at 154; Beamish, supra, at 2 (“Before parks,
seventeenth- and eighteenth-century Boston, New
York, and Philadelphia had public urban landscapes
with many characteristics of parks[.]”) 14 Also prevBoston Common serves as a particularly apt analogue. See
A. Beamish, 40 Landscape J. at 3–7 (discussing the Boston
Common). Owned by the city, this “tract of land [has been] . . .
used as a place of public resort for the recreation of the people”
since “time immemorial.” Steele v. City of Boston, 128 Mass. 583,
583 (Mass. 1880); see Beamish, supra, at 3 (“[T]he treeless 45acre [Boston] Common was set aside as public open space in
1634[.]”). It was “traversed by divers footpaths, leading in
different directions,” Steele, 128 Mass. at 583, and individuals at
the Founding engaged in a wide range of activities there, from
walking and congregating to grazing cattle and drilling for the
militia, Carl Bridenbaugh, Cities in the Wilderness: The First
Century of Urban Life in (Continued) America 1625–1742 325 &
n.61 (Capricorn Books ed., 1964). An 18th-century English
traveler to Boston described the space as a place where “[e]very
afternoon, after drinking tea, . . . the gentlemen and ladies walk
. . . , and from thence adjourn to one another’s houses to spend
the evening. . . . [It] is a fine green common . . . with two rows of
young trees planted opposite to each other, with a fine footway
between, in imitation of St. James Park; and part of the bay . . .
forms a beautiful canal, in view of the walk.” Id. (citation
omitted). Put simply, the notion that Boston Common does not
serve as an appropriate analogue for Bruen purposes because of
the plethora of purposes of which it served is counterfactual and
nonsensical.
14
And Boston was not unique among American cities to have
designated cross-purpose and recreational green spaces. New
York City’s Common Council established Bowling Green Park in
1733 as “an early public-private partnership” designated for
“the Recreation & Delight of the Inhabitants of [the] City.” The
Earliest New York City Parks, N.Y. City Dep’t of Parks &
Recreation, https://www.nycgovparks.org/about/history/earliestparks [https://perma.cc/25VW-8FUY] (last visited Jan. 13,
2026); Bridenbaugh, supra, at 325 ( “In 1733 New York joined
the other northern towns in setting aside a tract of land for its
first public park.”). And in 1797, the City acquired its first
84a
alent in the Founding Era were public grass-laden
squares around which were built “important civic
buildings such as churches and courthouses.”
Rybczynski, supra, at 154; National Gallery of Art,
Square, History of Early American Landscape Design,
https://heald.nga.gov/mediawiki/index.php/Square
[https://perma.cc/BHC3-PPML] (last visited Jan. 13,
2026) (describing the development of the common
“square” in American cities, with historical examples
listed, and heralding the “opportunity [they] afforded
for recreation, light, fresh air, and a mixing of the
citizenry[, which] propelled these landscapes into
instruments of social reform”). As but a few notable
examples, New Haven, Connecticut; Philadelphia,
Pennsylvania; Annapolis, Maryland; Williamsburg,
Virginia; Charleston, South Carolina; and Savannah,
Georgia, all included such Founding-Era public green
spaces. Rybczynski, supra, at 154; see also Doreceta
E. Taylor, Conceptualizing Urban Parks, in The
Environment and the People in American Cities,
1600s–1900s 226–27 (2009) (providing examples to
support the proposition that, in the United States,
“gardens, squares, small parks, and commons were
beginning to appear in the seventeenth century as
forms of urban open space”); id. at 230 (“Private and
semiprivate open space became more common among
“triangle of land”—Duane Park—“on the condition that it be
fenced and landscaped ‘as promotive of health and recreation.’”
The Earliest New York City Parks, supra; see also Beamish,
supra at 7–10 (discussing New York’s earliest parks).
Additional examples throughout early American cities
abound, see Beamish, supra at 10–15, all with no indication that
firearms were regulated therein, see Wolford v. Lopez, 125 F.4th
1230, 1242 (9th Cir. 2025) (VanDyke, J., dissenting from the
denial of rehearing en banc), cert. granted, --- S. Ct. ---, 2025 WL
2808808 (Oct. 3, 2025).
85a
elites during the eighteenth century; their interest in
open space was fueled in part by their growing
interest in gentility and refinement. . . . Participation
in outdoor recreational activities, especially by men,
was one way to demonstrate refinement.”); see also
The Gardens of Colonial Williamsburg, supra, at 9–
12 (describing the city’s public gardens in the colonial
era). Maps from the era further confirm the existence
of open, green spaces within cities dedicated to public
gathering throughout the colonial era into the early
18th century, as well as the easy access to larger
undeveloped land. E.g., Beamish, supra, at 3
(“Eighteenth-century maps [of Boston] all show that
most residents could be outside of town and in nature
within a 15-minute walk.”); Michael J. Lombardi,
In Search of the Frenchman’s Map, Colonial
Williamsburg, https://research.colonialwilliamsburg.
org/Foundation/journal/Autumn07/map.cfm [https://p
erma.cc/XH4A-2KBK] (last visited Jan. 13, 2026)
(linking to copies of the map, which depicts the
Palace Green and other commons within Williamsburg, Virginia); The Earliest New York City Parks,
supra (observing that an array of now-extant parks
existed, including one that “appeared on Manhattan
maps as early as 1797”). And to this day, cities such
as Charleston, South Carolina, boast about their
oldest public parks in modern accounts of those
spaces. E.g., Lynda Edwards, “Charleston’s oldest
park restored for grand opening,” The Post & Courier
(July 30, 2024), https://www.postandcourier.com
/news/hampstead-mall-charleston-park-restoration/
article_bfbd70d8-3fb3-11ef-8d10-97688892c475.html
[https://perma.cc/56GG-RV3B] (last visited Jan. 13,
2026) (“Created in 1769, Charleston’s oldest public
park is older than America.”).
86a
While these outdoor green spaces may lack the
“modern” urban park landscaping envisioned by
Frederick William Olmsted and others, their
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