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.

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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

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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

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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-

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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

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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.

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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

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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’

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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

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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

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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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Petition for Writ of Certiorari — Wes Moore, Governor of Maryland, et al., Petitioners v. Susannah Warner Kipke, et al. | Frix