Petition for Writ of Certiorari — Katherine Novotny, et al., Petitioners v. Wes Moore, Governor of Maryland, et al.

Supreme Court briefApr 15, 2026

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No. _________

In the

Supreme Court of the United States

__________________________________________

KATHERINE NOVOTNY AND SUSANNAH KIPKE, et al.,

Petitioners,

WESLEY MOORE, 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

__________________________________________

JOHN PARKER SWEENEY

JAMES W. PORTER, III

WILLIAM C. LAMAR, JR.

1900 K Street, NW

Suite 800

BRADLEY ARANT BOULT

CUMMINGS LLP

Washington, DC 20006

May 20, 2026

DAVID H. THOMPSON

Counsel of Record

PETER A. PATTERSON

WILLIAM V. BERGSTROM

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com

Additional counsel listed on inside cover

Counsel for Petitioners

Susannah Warner Kipke

and Maryland State Rifle and Pistol Association, Inc.

Mark W. Pennak

LAW OFFICES OF MARK

W. PENNAK

7416 Ridgewood Ave.

Chevy Chase, MD 20815

Counsel for Petitioners

Katherine Novotny, Sue

Burke, Esther Rossberg,

Maryland Shall Issue,

Inc., Second Amendment

Foundation, and Firearms Policy Coalition

QUESTION PRESENTED

Whether Maryland’s numerous prohibitions on

carrying firearms in many places frequented by the

general public violate the Second and Fourteenth

Amendments.

PARTIES TO THE PROCEEDING

Petitioners Katherine Novotny, Sue Burke, Esther Rossberg, Maryland Shall Issue, Inc., Second

Amendment Foundation, Inc., Firearms Policy Coalition, Inc., Susannah Warner Kipke, and Maryland

State Rifle & Pistol Association, Inc. were plaintiffs

before the District Court and were Appellants/CrossAppellees before the Court of Appeals.

Respondents Wes Moore, in his official capacity as

the Governor of Maryland, Michael Jackson, in his official capacity as Maryland Secretary of State Police,

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, were Defendants

in the District Court and Appellees/Cross-Appellants

in the Court of Appeals.

iii

CORPORATE DISCLOSURE STATEMENT

Maryland Shall Issue, Inc. has no parent corporation and there is no publicly held corporation that

owns 10% or more of its stock.

Second Amendment Foundation, Inc. has no parent corporation and there is no publicly held corporation that owns 10% or more of its stock.

Firearms Policy Coalition, Inc. has no parent corporation and there is no publicly held corporation that

owns 10% or more of its stock.

Maryland State Rifle & Pistol Association, Inc.

has no parent corporation and there is no publicly held

corporation that owns 10% or more of its stock.

STATEMENT OF RELATED PROCEEDINGS

This case arises from the following proceedings:

•

Kipke v. Moore, No. 24-1799 (4th Cir. Jan. 20,

2026)

•

Novotny v. Moore, No. 24-1827 (4th Cir. Jan.

20, 2026)

•

Kipke v. Moore, No. 24-1834 (4th Cir. Jan. 20,

2026)

•

Novotny v. Moore, No. 24-1836 (4th Cir. Jan.

20, 2026)

•

Kipke v. Moore, No. 23-cv-1293 (GLR) (D. Md.

Aug. 2, 2024)

•

Novotny v. Moore, No. 23-cv-1295 (GLR) (D.

Md. Aug. 2, 2024)

•

Moore v. Kipke, No. 25-1206 (U.S.) (petition

pending)

There are no other proceedings in state or federal

court, or in this Court, directly related to this case under Supreme Court Rule 14.1(b)(iii).

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED........................................... i

PARTIES TO THE PROCEEDING ........................... ii

CORPORATE DISCLOSURE STATEMENT .......... iii

STATEMENT OF RELATED PROCEEDINGS........ iv

TABLE OF AUTHORITIES......................................vii

PETITION FOR WRIT OF CERTIORARI ................. 1

OPINIONS BELOW .................................................... 3

JURISDICTION .......................................................... 3

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ..................................................... 4

STATEMENT .............................................................. 4

Maryland’s Locational Restrictions. ........... 4

II.

Procedural History ...................................... 6

REASONS FOR GRANTING THE PETITION ....... 12

The lower courts are eviscerating the Second Amendment protected right to carry

arms in public. ........................................... 12

II.

The courts of appeals are divided over how

to assess locational restrictions on the right

to bear arms............................................... 17

III.

The courts below ignore the importance of

security in the historical sensitive-places

tradition. .................................................... 26

IV.

This case is a good vehicle for addressing

this important issue. ................................. 33

CONCLUSION .......................................................... 34

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH

CIRCUIT, FILED JANUARY 20, 2026 .................... 1a

APPENDIX B — MEMORANDUM OPINION OF

THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF MARYLAND, FILED AUGUST

2, 2024 .................................................................... 107a

APPENDIX C — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE DISTRICT

OF MARYLAND, FILED AUGUST 2, 2024 ........ 123a

APPENDIX D — MEMORANDUM OPINION OF

THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF MARYLAND, FILED SEPTEMBER 29, 2023 ......................................................... 126a

APPENDIX E — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE DISTRICT

OF MARYLAND, FILED SEPTEMBER 29,

2023 ........................................................................ 172a

APPENDIX F — RELEVANT STATUTORY PROVISIONS .................................................................... 175a

vii

TABLE OF AUTHORITIES

CASES

PAGE

Antonyuk v. James,

120 F.4th 941 (2d Cir. 2024) ............. 18, 20, 22,

23, 24, 25

Chiles v. Salazar,

607 U.S. ---, 146 S. Ct. 1010 (2026) ................ 17

Christian v. James,

--- F.4th ---, 2026 WL 1378796

(2d Cir. May 18, 2026) .............................. 22, 25

District of Columbia v. Heller,

554 U.S. 570 (2008)................... 2, 12, 13, 18, 21

Frey v. City of New York,

157 F.4th 118 (2d Cir. 2025) .............. 18, 22, 23

Koons v. Att’y Gen. N.J.,

156 F.4th 210 (3d Cir. 2025) ............. 14, 17, 18,

19, 20

Koons v. Att’y Gen. N.J.,

162 F.4th 100 (3d Cir. 2025) .......................... 14

Matter of Rounds,

255 Md. App. 205

(Md. Ct. Spec. App. 2022) ................................. 6

McDonald v. City of Chicago,

561 U.S. 742 (2010)................................... 12, 13

National Rifle Ass’n v. Bondi,

133 F.3d 1108 (11th Cir. 2025) ...................... 26

New York State Rifle & Pistol Ass’n, Inc. v. Bruen,

597 U.S. 1 (2022) ........................... 1, 12, 13, 16,

17, 22, 23, 24, 25, 26

viii

Schoenthal v. Raoul,

150 F.4th 889 (7th Cir. 2025) ............. 14, 15, 18

Schoenthal v. Raoul,

No. 25-541, 2026 WL 922526 (Apr. 6,

2026) ................................................................ 14

State v. Huntly,

25 N.C. (1 Ired.) 418 (1843) ............................ 25

Timbs v. Indiana,

586 U.S. 146 (2019)......................................... 26

United States v. Hemani, 146 S. Ct. 326 (Oct. 20,

2025) (No. 24-1234)......................................... 34

United States v. Hunt,

123 F.4th 697 (4th Cir. 2024) ........................... 8

United States v. Rahimi,

602 U.S. 680 (2024)................................... 13, 33

Wolford v. Lopez,

116 F.4th 959 (9th Cir. 2024) ...... 10, 15, 18, 19,

20, 22, 25, 26, 33

Wolford v. Lopez,

125 F.4th 1230 (9th Cir. 2025) ....................... 15

Wolford v. Lopez,

146 S. Ct. 79 (2025) .................................. 10, 34

STATUTES

MD. CODE, CRIM. LAW

§ 4-102(b)....................................................... 5, 9

§ 4-111(a)(2)(i) ............................................... 5, 9

§ 4-111(a)(2)(ii).............................................. 5, 9

§ 4-111(a)(2)(iii) ................................................ 5

§ 4-111(a)(4)(i) ........................................... 5, 8, 9

§ 4-111(a)(8)(i) ................................................... 5

§ 4-111(a)(8)(ii).................................................. 5

§ 4-111(a)(8)(iii) ................................................ 5

§ 4-111(a)(8)(iv) ................................................. 5

§ 4-111(a)(8)(v) .................................................. 5

§ 4-111(a)(8)(vi) ................................................. 5

§ 4-203(a)(1)(i) ................................................... 4

§ 4-203(a)(1)(ii).................................................. 4

§ 4-203(b)(1) ...................................................... 4

§ 4-203(b)(2) ...................................................... 4

§ 4-203(c) ........................................................... 4

§ 4-208 ............................................................... 5

§ 6-411(d)........................................................... 5

MD. CODE, PUB. SAFETY

§ 5-306(a)(6) .................................................. 5, 6

§ 5-307 ............................................................... 4

MD. CODE, TRANSP.

§ 7-705(b)(6) ..................................................... 4

1786 Va. Acts 35, ch. 9 ........................................ 24, 32

HAW. REV. STAT.

§ 134-9.1 .......................................................... 34

§ 134-9.5 .......................................................... 34

MD. CODE REGS.

§ 04.05.01.03(B) ................................................ 5

§ 08.01.07.14(B) ................................................ 5

§ 08.07.01.04(B) ................................................ 5

§ 08.07.06.04(B) ................................................ 5

§ 14.25.02.06 ..................................................... 5

§ 36.03.10.48 ..................................................... 5

MD. CONST. art. 1

§ 3 (1776) ......................................................... 30

§ 14 (1776) ....................................................... 30

Statute of Northampton 1328, 2 Edw. 3, c.3

(Eng.) ............................................................... 32

OTHER AUTHORITIES

2023 Maryland Session Laws, Ch. 651

(House Bill 824) ............................................ 5, 6

2023 Maryland Session Laws, Ch. 680

(Senate Bill 1) ................................................... 5

A COLLECTION OF ALL SUCH ACTS OF THE GENERAL

ASSEMBLY OF VIRGINIA (Richmond, Samuel

Pleasants & Henry Pace 1803)....................... 30

A JOURNAL OF THE PROCEEDINGS OF THE HONORABLE

SENATE OF THE STATE OF NEW-HAMPSHIRE

(Amherst, Joseph Cushing 1808),

https://perma.cc/Y7VF-UYV4 ......................... 29

A MANUAL OF THE LAWS OF NORTH-CAROLINA (Raleigh, J. Gales ed., 3d. ed. 1814) ..................... 31

About the Sergeant at Arms: Historical Overview,

U.S. SENATE, https://perma.cc/GA5J-Q5F9 ... 29

ABRIDGEMENT OF THE PUBLIC PERMANENT LAWS OF

VIRGINIA (Richmond, Augustine Davis ed.,

1796) ................................................................ 30

ACTS AND RESOLVES OF MASSACHUSETTS, 1786–87

(Bos., Adams & Nourse eds., 1893) ................ 31

An Act Concerning the Circuit Courts, in 1 LAWS OF

THE STATE OF NEW YORK (Albany, Charles R.

& George Webster eds., 2d ed. 1802) ....... 30, 31

An Act Constituting Courts for the Trial of Small

Causes, in LAWS OF THE STATE OF NEW JERSEY

(Trenton, James J. Wilson ed., 1811)....... 30, 31

An Act Directing the Election of a Representative for

this State in the Congress of the United

States, in 2 LAWS OF THE STATE OF DELAWARE

(Samuel & John Adams eds., 1797) ............... 30

An Act Establishing and Regulating Fees, in THE

PUBLIC LAWS OF THE STATE OF RHODE-ISLAND

AND PROVIDENCE PLANTATIONS (Providence,

Carter & Wilkinson ed., 1798) ....................... 28

An Act for Erecting an High Court of Errors and Appeals, in 10 THE STATUTES AT LARGE OF PENNSYLVANIA FROM 1682 TO 1801 (Wm. Stanley

Ray ed., 1904) ........................................... 30, 31

An Act for Regulating and Establishing Fees, in 2

LAWS OF THE STATE OF DELAWARE (Samuel &

John Adams eds., 1797) .................................. 28

An Act for Regulating Fees, in ACTS AND LAWS OF

THE STATE OF CONNECTICUT (New London,

Timothy Green ed., 1784) ............................... 31

An Act for Regulating and Fixing the Salaries of Federal Officers, in THE PUBLIC LAWS OF THE

STATE OF SOUTH CAROLINA (Phila., R. Aitken &

Son ed., 1790) ............................................ 28, 30

An Act for the Better Regulating and Conducting

Elections in the Federal Counties of this State,

in A DIGEST OF THE LAWS OF THE STATE OF

GEORGIA (Phila., R. Aitken ed., 1800) ............ 30

An Act for the Support of Government, and the Administration of Justice, in 10 THE STATUTES AT

LARGE OF PENNSYLVANIA FROM 1682 TO 1801

(Wm. Stanley Ray ed., 1904) .......................... 28

xii

An Act for the Support of Government, in 1 LAWS OF

THE STATE OF NEW YORK (Albany, Charles R.

& George Webster eds., 2d ed. 1802) ............. 28

An Act for Vesting Certain Powers in the Commissioners of the Court House, in A DIGEST OF

THE LAWS OF THE STATE OF GEORGIA (Phila., R.

Aitken ed., 1800) ............................................. 31

An Act Regulating Fees, in THE LAWS OF THE STATE

OF NEW HAMPSHIRE (Portsmouth, John

Melcher ed., 1797)........................................... 31

An Act Regulating Fees, in 1 LAWS OF THE STATE OF

VERMONT (Randolph, Sereno Wright ed.,

1808) ................................................................ 28

An Act Regulating Fees, in 2 LAWS OF THE STATE OF

VERMONT (Randolph, Sereno Wright ed.,

1808) .......................................................... 30, 31

An Act Respecting the Sherriff of Talbot County, in 2

THE LAWS OF MARYLAND, ch. 25 (Annapolis,

Frederick Green ed., 1800) ............................. 31

An Act to Appropriate Monies for the Political Year

1808, § 2, in A COMPILATION OF THE LAWS OF

THE STATE OF GEORGIA (Augusta, Adams &

Duyckinck eds., 1812) ..................................... 28

An Act to Regulate the Courts in this State, in 2

LAWS OF THE STATE OF DELAWARE (Samuel &

John Adams eds., 1797) .................................. 30

Benjamin Boyd, Take Your Guns to Church: The Second Amendment and Church Autonomy, 8 LIBERTY UNIV. L. REV. 653 (2014) ........................ 21

Brief for the Independent Institute as Amicus Curiae

Supporting Petitioners, New York State Rifle

xiii

& Pistol Ass’n v. Bruen, No. 20-843 (July 20,

2021) ................................................................ 27

Chesapeake Forest Lands, MD. DEP’T OF NAT. RES.,

https://perma.cc/4WTN-UPQ8. ...................... 16

Clayton E. Cramer, Colonial Firearm Regulation,

16 J. FIREARMS & PUB. POL’Y 1 (2004) ............ 21

William Hakewell, MODUS TENENDI PARLIAMENTUM:

OR, THE OLD MANNER OF HOLDING PARLIAMENTS IN ENGLAND (1671),

https://perma.cc/4MZA-4M4Y ........................ 29

Stephen P. Halbrook, Faux Histoire of the Right to

Bear Arms, Young v. Hawaii (9th Cir.), SSRN

(2021), https://perma.cc/AXF3-PHTF ...... 24, 25

Thomas Jefferson, A Manual of Parliamentary Practice. For the Use of the Senate of the United

States § XVIII (1801), https://perma.cc/MC7JJ7FJ................................................................. 29

THOMAS JEFFERSON, JEFFERSON’S LEGAL COMMONPLACE BOOK 521 (David Thomas Konig et al.

eds., Princeton Univ. Press 2019) ............ 20, 21

NICHOLAS JOHNSON ET AL., FIREARMS LAW & THE SECOND AMENDMENT (3d ed. 2022)....................... 21

David Kopel & Joseph Greenlee, The “Sensitive

Places” Doctrine: Locational Limits on the

Right to Bear Arms, 13 CHARLESTON L. REV.

203 (2018)........................................................ 21

LAWS OF THE STATE OF NEW JERSEY (Trenton, James

J. Wilson ed., 1811)......................................... 30

Maryland’s State Forests, MD. DEP’T OF NAT. RES.,

https://perma.cc/4UEH-S9KL. ....................... 16

xiv

PROVINCIAL CONGRESS, JOURNAL OF THE VOTES AND

PROCEEDINGS OF THE PROVINCIAL CONGRESS OF

NEW JERSEY (Burlington, Isaac Collins ed., reprinted by Woodbury, Joseph Sailer 1835) .... 28

RAPHAEL SEMMES, CAPTAINS AND MARINERS OF EARLY

MARYLAND (1937), https://perma.cc/7T7C8WA4 ......................................................... 29, 30

Reply Br. of Appellees/Cross-Appellants, Kipke v.

Moore, No. 24-1799, 2025 WL 692388 (4th Cir.

Feb. 26, 2025).................................................... 6

Saturday, December 20, 1783, JOURNAL OF THE

HOUSE OF DELEGATES OF THE COMMONWEALTH

OF VIRGINIA (Richmond, Thomas W. White ed.,

1828) ................................................................ 28

RAPHAEL SEMMES, CAPTAINS AND MARINERS OF EARLY

MARYLAND (1937), https://perma.cc/7T7C8WA4 ......................................................... 29, 30

R. Sheardown, THE DUTY OF CONSTABLES (1790),

https://perma.cc/4EYV-2T5Q.......................... 31

Mark W. Smith, Enlightenment Thinker Cesare Beccaria and His Influence on the Founders: Understanding the Meaning and Purpose of the

Second Amendment’s Right to Keep and Bear

Arms, 2020 PEPP. L. REV. 71 (2020) ......... 20, 21

JACOB R. STRAUS, CONG. RSCH. SERV., 98-748, SERGEANT AT ARMS AND DOORKEEPER OF THE SENATE: LEGISLATIVE AND ADMINISTRATIVE DUTIES

(2011), https://perma.cc/D9HY-8WAF ........... 29

THE PUBLIC LAWS OF THE STATE OF RHODE-ISLAND

AND PROVIDENCE PLANTATIONS (Providence,

Carter & Wilkinson ed., 1798) ....................... 31

VOTES AND PROCEEDINGS OF THE HOUSE OF DELEGATES OF THE STATE OF MARYLAND, NOVEMBER

SESSION, 1791 (1791) ...................................... 29

VOTES AND PROCEEDINGS OF THE SENATE OF THE

STATE OF MARYLAND, NOVEMBER SESSION, 1791

(1791)............................................................... 29

PETITION FOR WRIT OF CERTIORARI

This Court should grant review to provide much

needed guidance to lower courts that have struggled

to define the historical limitations on the right to

carry firearms in public against a burgeoning trend of

location-specific restrictions enacted by states, such

as Maryland, that are openly hostile to the exercise of

that right. The constitutionality of these so-called

“sensitive place” bans is among the most critical questions facing the judiciary in the wake of this Court’s

decision in New York State Rifle & Pistol Association,

Inc. v. Bruen, 597 U.S. 1 (2022). Indeed, the Court’s

answer to this question will determine whether Bruen

establishes a meaningful right to public carry at all.

If, as Maryland maintains and the Fourth Circuit below held, the right to carry a firearm “in public” does

not include public locations that are owned by the government, or where First Amendment protected activity is being carried out, or where people go to eat and

to drink or gather for amusement and recreation, then

it is hard to know what the right to carry a firearm “in

public” actually protects.

This case highlights the conflict that pervades

the lower courts on this issue, and it demonstrates the

deep disagreements that prevent consensus on any of

these issues from emerging, necessitating this Court’s

review.

This Court’s previous discussions of the history

of laws such as those at issue in this case, while preliminary and incomplete, pointed to a “narrow exception to allow governments to restrict individuals’ Second Amendment rights in ‘sensitive places.’ [But]

Maryland’s laws would convert that exception into a

broad license to prohibit firearms in locations where

people gather for almost any purpose so long as those

purposes are separately listed to give the appearance

of limited scope.” Cross.App.105a–06a (Agee, J., concurring in part and dissenting in part). The lower

courts have embraced a dizzying array of disparate

historical principles which, they claim, justify upholding pieces of state laws enacted in reaction to this

Court’s decision in Bruen. In doing so, the lower courts

have expressed deep frustration with their own analyses and have diverged both in result and in rationale,

creating an incoherent morass.

The central point of agreement among almost

every lower court opinion to address these restrictions

in the wake of Bruen, including the decision below, is

the conclusion that firearms can be banned in

“crowded” spaces. But that specific rationale was considered and definitively rejected by this Court in

Bruen. The lower courts’ intransigence on the point is

justification enough to grant certiorari and reverse

the decision below.

Beyond that, because this case addresses a wide

variety of locations, it is an ideal vehicle for this Court

to clarify the narrow scope of the historical “sensitive

places” limitation on the right to keep and bear arms.

There is no historical tradition of banning carrying

firearms in “crowded” places or places where “vulnerable” people are present. Quite the opposite is true, as

Heller noted in recognizing that many colonies “required individual arms bearing for public-safety reasons” in such places. District of Columbia v. Heller,

554 U.S. 570, 601 (2008) (emphasis added). By contrast, there is historical support for banning firearms

in secured places. Where the government takes upon

itself the burden to prevent unlawful entry with arms

into a place frequented by the general public, then,

and only then, may the individual right to armed selfdefense be subject to a temporary restriction. Today,

such security—familiar to anyone entering a federal

courthouse—typically takes the form of armed guards

and magnetometers.

Unfortunately, the decision below failed to recognize the narrow historical scope of the “sensitive

places” exception and, joining several other courts of

appeals in defiance of this Court’s precedents and of

the lessons of our history, approved restrictions on unsecured places where ordinary citizens’ self-defense

needs are acute. This Court should grant certiorari to

correct this evisceration of the Second Amendment

right to carry.

OPINIONS BELOW

The opinion of the court of appeals is reported at

165 F.4th 194 (2026) and is reproduced at

Cross.App.1a–106a. The memorandum opinion of the

district court is unpublished but can be found at 2024

WL 3638025 and is reproduced at Cross.App.107a–

122a.

JURISDICTION

The court of appeals issued its judgment on January 20, 2026. Cross.App.1a. On April 17, 2026, the

Chief Justice extended the time to file a petition for

certiorari to May 20, 2026. This Court has jurisdiction

under 28 U.S.C. § 1254(1). The defendants below filed

a petition for certiorari on April 20, 2026. Moore v.

Kipke, No. 25-1206. Because this cross-petition is filed

within the time allowed for an initial petition, it is not

a conditional cross-petition.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The texts of the Second Amendment and Section

One of the Fourteenth Amendment to the United

States Constitution and relevant provisions of the

Maryland Code and Code of Maryland Regulations

are reproduced in the appendix beginning at

Cross.App.175a.

STATEMENT

Maryland’s Locational Restrictions.

It is a crime in Maryland to “wear, carry, or

transport a handgun, whether concealed or open, on

or about the person,” or “in a vehicle traveling on a

road or parking lot,” unless the individual possesses a

Maryland carry permit or is otherwise (as in the case

of law enforcement officers, for example) exempt from

the permitting requirement. MD. CODE, CRIM. LAW, §

4-203(a)(1)(i)–(ii), (b)(1)–(2). Carrying a handgun outside of these exceptions is a misdemeanor, punishable

upon first offense with up to five years of imprisonment. Id. § 4-203(c). Permit holders must carry concealed. MD CODE, PUB. SAFETY, § 5-307.

Possessing a permit to carry, however, only modestly enlarges the places where an individual can lawfully carry in the state. Even a permitted individual

cannot carry in a host of public places. In proceedings

below, Petitioners challenged bans in or on:

•

Mass transit facilities and vehicles, MD. CODE,

TRANSP., § 7-705(b)(6);

•

Public demonstrations (including any area

within 1,000 feet of a demonstration), MD.

CODE, CRIM. LAW, § 4-208;

State parks and forests, MD. CODE REGS.

§§ 08.01.07.14(B), 08.07.01.04(B),

08.07.06.04(B);

Four types of healthcare facilities, MD. CODE,

CRIM. LAW, § 4-111(a)(2)(iii);

“Places of amusement,” including museums,

stadiums, racetracks, video lottery facilities,

amusement parks, and casinos, MD. CODE,

CRIM. LAW, § 4-111(a)(8)(ii)–(vi); MD. CODE

REGS. §§ 14.25.02.06, 36.03.10.48;

Locations that sell alcohol for on-site consumption, MD. CODE, CRIM. LAW, § 4-111(a)(8)(i);

Government buildings, MD. CODE, CRIM. LAW,

4-111(a)(4)(i);

MD.

CODE

REGS.

§ 04.05.01.03(B); and

School grounds, MD. CODE, CRIM. LAW, §§ 4102(b), 4-111(a)(2)(i)–(ii).

Maryland also effectively bans firearms even at places

not otherwise swept in by these capacious restrictions

by flipping the ordinary default rule to presumptively

forbid carrying on all private property held open to the

public. MD. CODE, CRIM. LAW § 6-411(d).

The bans on firearms on public transit, at public

demonstrations, and in State parks and State forests

predate this Court’s decision in Bruen. The rest are

new carry limitations that were enacted as part of the

sweeping “Gun Safety Act of 2023.” 2023 Maryland

Session Laws, Ch. 680 (Senate Bill 1). Companion legislation enacted during that same legislative session

removed the requirement that licenses to carry only

be granted upon a showing of a “good and substantial

reason,” 2023 Maryland Session Laws, Ch. 651 (House

Bill 824), amending MD. CODE, PUB. SAFETY, § 5306(a)(6), as Maryland courts had held that requirement unconstitutional in light of Bruen, see Matter of

Rounds, 255 Md. App. 205, 212 (Md. Ct. Spec. App.

2022). As Maryland forthrightly admitted below, the

two developments were directly related: “there was

little practical need for broad locational restrictions”

as long as Maryland was able to “significantly restrict[] the number of people who were able to obtain

public carry permits.” See Reply Br. of Appellees/Cross-Appellants at *6 n.1, Kipke v. Moore, No.

24-1799, 2025 WL 692388 (4th Cir. Feb. 26, 2025). But

“when it generally became easier to carry firearms in

Maryland” because of Bruen, that changed. See id.

II.

Procedural History

Petitioners are plaintiffs in two separate cases

below which were consolidated both before the district

court and the court of appeals. Petitioners filed their

suits on May 16, 2023, in the District of Maryland, the

same day the Senate Bill 1 was signed into law.

Cross.App.111a. In both cases, Petitioners sought declaratory and injunctive relief, alleging, as relevant

here, that the locational restrictions identified above

and the private property default rule violated their

rights protected under the Second and Fourteenth

Amendments to the United States Constitution.

Cross.App.111a–112a. 1 The district court consolidated the cases on July 13, 2023. Cross.App.112a. The

1 The Kipke and Novotny Petitioners challenged overlap-

ping but slightly different subsets of Maryland’s locational restrictions, but the differences are immaterial to the present joint

Petition.

district court had jurisdiction over these suits under

28 U.S.C. § 1331.

A. Petitioners moved for a preliminary injunction

against enforcement of the challenged restrictions and

for summary judgment. Cross.App.112a–113a. The

State responded by cross-moving for summary judgment. Id. The district court granted the motions for

preliminary injunction in part, enjoining enforcement

of the private property default rule and the locational

restrictions on locations selling alcohol and at public

demonstrations. Cross.App.172a–174a. In all other

respects it denied Petitioners’ motions and denied,

without prejudice, the dispositive motions on both

sides, inviting the parties to “refile dispositive motions after having the opportunity to supplement

them and participate in discovery prior to a trial on

the merits.” Cross.App.170a.

B. After entry of the preliminary injunction order, the parties informed the district court that they

did not intend to seek any discovery and requested

that the court renew their dispositive motions.

Cross.App.114a. The district court, noting that there

had been no factual development in the case, held “for

the same reasons stated in the [preliminary injunction decision]” it reached the same result, and converted the preliminary injunction into a permanent

injunction with respect to the private property default

rule and the ban on carrying in locations selling alcohol for on-site consumption and at public demonstrations. Cross.App.117a, 123a–125a. In all other respects, it granted summary judgment to Maryland.

Cross.App.124a–125a.

C. A partially divided panel of the court of appeals affirmed in part and reversed in part. A majority

of the panel, joined in part by Judge Agee, approved

all of Maryland’s challenged locational bans but unanimously held that the presumptive ban on carry on

private property open to the public violated the Second Amendment.

1. Writing for the majority, Judge Gregory

acknowledged that “[t]o date, we have not addressed

the proper sensitive place analysis following” this

Court’s decision in Bruen. Cross.App.10a. The majority therefore undertook “to clarify the sensitive place

doctrine and its role within the broader Bruen analysis.” Id. Concluding that Petitioners’ “ ‘proposed

course of conduct,’ namely, the carrying of guns in

public,” fell within the Second Amendment’s plain

text, the Fourth Circuit concluded the question before

it was whether the “sensitive place” restrictions before

it could be “justified by historical tradition.”

Cross.App.14a (cleaned up). In so holding, the majority stated that “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.” Cross.App.13a. 2

The majority upheld each of the “sensitive place”

bans challenged by Petitioners for different reasons.

For instance, it conducted no historical analysis with

respect to the restrictions placed on “a building or any

part of a building owned or leased by a unit of State

2 The Fourth Circuit effectively conducts dual historical in-

quiries. First, at the putatively “plain text” stage, where challengers bear the burden to show their conduct does not fall

within “the limitations on the scope of the Second Amendment

right identified in Heller,” and one at the historical inquiry, approximately along the lines outlined in Bruen. See United States

v. Hunt, 123 F.4th 697, 705 (4th Cir. 2024) (citation omitted).

or local government,” MD. CODE, CRIM. LAW, § 4111(a)(4)(i), or with respect to the ban on “public

school property” or the “grounds” of “private ...

school[s],” Id. §§ 4-102(b), 4-111(a)(2)(i)–(ii), because it

took statements from Heller and Bruen regarding

those locations to be “more than sufficient to uphold

Maryland’s prohibition of firearms in government

buildings.” Cross.App.15a (government buildings); see

also Cross.App.24a (“[S]chool grounds are analogous

to school buildings.”).

As to the ban on carrying on public transit and at

public transit facilities, the majority upheld the “provision under the proprietary property doctrine,” concluding that Maryland, as proprietor of public transit

operated or controlled by the Mass Transit Administration, was free to ban firearms there.

Cross.App.16a. And furthermore, the court concluded

that the transit restriction “comports with our history

and tradition.” Cross.App.19a. Although it could find

no historical legal restrictions on the right, the court

credited historical restrictions imposed by private

railroads on “carrying loaded or improperly stored

guns.” Cross.App.19a–20a.

As to the ban on carrying at or near public

demonstrations, the court held it “is consistent with

our national historical tradition of promoting peaceful

assemblies,” and with the history of barring “riotous

assembl[ies].” Cross.App.26a–27a. The court deemed

the ban on carrying in state parks and forests justified

because “modern-style” urban parks purportedly had

first come into existence in the mid-19th century and

several urban parks at that period (most prominently,

Central Park in New York) had rules forbidding the

carrying of firearms. Cross.App.30a–31a. As for state

forests and non-urban parks, the majority “rel[ied] 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.” Cross.App.31a. Because state forests,

like urban parks, “offer diverse and substantial recreational and educational opportunities,” the court concluded that they were similar enough to justify extending the ban on carrying firearms to them.

Cross.App.32a.

The court found the constitutionality of the ban

in health care facilities was justified by both a “historical tradition of proscribing guns in places that serve

vulnerable populations” and a tradition of “banning

guns in places used for scientific purposes.”

Cross.App.33a. As for the ban on various “places of

amusement” such as amusement parks, racetracks,

and museums, the court concluded that there existed

an “extensive set of historical regulations banning

firearms at places of amusement and social gathering,” relying on the Ninth Circuit’s identification of

“several examples in” Wolford v. Lopez, 116 F.4th 959

(9th Cir. 2024), cert. granted in part, 146 S. Ct. 79

(2025) (mem.), to substantiate that claim.

Cross.App.35a–36a. Finally, in upholding the ban on

firearms at places that sell alcohol for on-site consumption, the court credited both a tradition of banning firearms in “crowded places,” as well as a history

of “legislation aimed at the mixing of firearms and liquor,” including colonial era laws restricting sale of liquor to on-duty militiamen, and laws restricting the

use of firearms while intoxicated, to conclude that

Maryland’s prohibition “is constitutionally permissible.” Cross.App.36a–38a.

Turning to the presumptive ban on carry on private property, the court agreed with every court to

consider the issue except for (in part) the Ninth Circuit in Wolford, that, at least as to private property

held open to the public, no relevant historical tradition supported the ban, holding that portion of Maryland’s ban unconstitutional. Cross.App.41a.

2. Judge Agee concurred in the judgment with respect to several of the locational restrictions but dissented with respect to the bans affecting public

transit, public demonstrations, state parks and forests, places of amusement, museums, and places selling alcohol for on-site consumption. More broadly, he

argued that “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.”

Cross.App.44a.

Specifically, Judge Agee was critical of the majority’s indiscriminate reliance on historical restrictions of whatever type and from whatever time in

our nation’s history. The majority, Judge Agee reasoned, “grossly misread[s] Bruen” by allowing “a

smattering of mid-to-late 19th century and later laws

[to] serve as the only historical analogues on which the

majority opinion pins its analysis.” Cross.App.57a.

Judge Agee urged instead a more focused analysis on

“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.” Cross.App.52a. And he noted that, unlike the majority, this Court has “never relied exclusively or even to any substantial degree on laws from

1868 or later to identify a historical tradition of firearms regulation” that could sustain a modern restriction. Cross.App.54a.

Judge Agee stressed that a focus on the Founding

era meant that both the absence of restrictions and

the “enactment of contemporary provisions permitting

or even requiring possession of firearms in analogous

public

spaces

must

drive

the

analysis.”

Cross.App.62a. For example, he noted that while

trains did not exist at the Founding, there were forms

of public transportation such as ferries and stagecoaches and Maryland had no evidence to suggest that

firearms were banned on those, decrying the majority’s fig-leaf excuse for looking later in time as an

“end-run around what can be gleaned from the Founding Era[]” evidence. Cross.App.70a. He also dismissed

the majority’s “crowding” rationale as directly contrary to Bruen and antithetical to “the core purpose

behind the Second Amendment.” Cross.App.71a–72a.

On Petitioners’ motion the Fourth Circuit stayed its

mandate pending disposition of this petition for writ

of certiorari.

D. On April 20, 2026, Maryland filed a petition

for writ of certiorari challenging the panel’s decision

with respect to the presumptive ban on carrying firearms on private property.

REASONS FOR GRANTING THE PETITION

The lower courts are eviscerating the

Second Amendment protected right to

carry arms in public.

This Court has, several times, pointed to historical regulations on the right to keep and bear arms in

discrete locations that it has called “sensitive place[]”

laws. See Heller, 554 U.S. at 626; McDonald v. City of

Chicago, 561 U.S. 742, 786 (2010); Bruen, 597 U.S. at

30–31. But as Judge Agee noted below, this Court so

far “has offered scant guidance on what constitutes a

‘sensitive place’ beyond identifying a handful of examples” of them, an unsettled position that has “le[ft]

some legislatures eager to label scores of locations

‘sensitive’ and prohibit the carrying of firearms in

them.” Cross.App.47a (Agee, J., concurring in part

and dissenting in part). Alongside those legislatures,

many courts have demonstrated an equal eagerness

to bless these restrictions. United States v. Rahimi

made clear that the historical analysis in Bruen is focused on distilling the “principles that underpin our

regulatory tradition.” 602 U.S. 680, 692 (2024). In this

case, the Fourth Circuit purported to find that various

historical principles supported allowing governments

to ban guns at or in a multitude of locations, including:

•

In buildings owned or controlled by the government. Cross.App.15a (government buildings).

Wherever the government acts as proprietor.

Cross.App.16a (mass transit).

On railways. Cross.App.20a (mass transit).

Places frequented by children. Cross.App.23a–

24a, 34a (school grounds; places of amusement).

Places that serve an educational purpose.

Cross.App.35a (school grounds; places of

amusement; museums).

Places of “social gathering.” Cross.App.35a

(places of amusement).

Where people peaceably assemble for demonstrative purposes. Cross.App.27a (public

demonstrations).

•

In “modern public parks.” Cross.App.30a (state

parks and state forest lands).

In places that serve vulnerable populations.

Cross.App.33a (health care facilities).

“[I]n places used for scientific purposes.”

Cross.App.33a (health care facilities).

In “public forums and quintessentially

crowded places.” Cross.App.38a (bars and restaurants).

The panel also found a general tradition of permitting

regulation “aimed at the mixing of firearms and liquor.” Cross.App.36a (places where alcohol is served for

on-site consumptions).

In its credulous acceptance of a multitude of possible historical justifications for banning firearms at

public locations, the panel was not alone. A panel of

the Third Circuit, in a recently vacated opinion addressing New Jersey’s similarly broad post-Bruen

“sensitive place” law, blessed effectively all of the restrictions by adopting twenty-three distinct “principles.” Koons v. Att’y Gen. N.J., 156 F.4th 210, 275–76

(3d Cir. 2025) (Porter, J., concurring in part and dissenting in part), reh’g en banc granted and opinions

vacated, 162 F.4th 100 (3d Cir. 2025) (mem.).

The indiscriminate acceptance of proffered historical justifications has done little to settle the law

for future litigants and legislatures, or even to suggest

that the law could ever be settled through the circuits’

current misguided approach. In Schoenthal v. Raoul,

150 F.4th 889 (7th Cir. 2025), cert. denied, No. 25-541,

2026 WL 922526 (Apr. 6, 2026) (mem.), for instance,

the Seventh Circuit dealt with just a single locational

restriction on public transportation. But the court upheld that one restriction by finding five relevant

features of the ban that it said made it (in the court’s

view) consistent with historical limitations, and the

court then went out of its way to stress that even those

features should not be used as a test in other Second

Amendment challenges. Schoenthal, 150 F.4th at 919.

The court concluded by openly questioning whether

the uncertainty of the law in this area was the result

of “legal growing pains that will subside with age” or

a sign of a “malady in need of a cure.” Id. at 923.

Similarly, in Wolford, the Ninth Circuit embraced a variety of historical principles to largely uphold California and Hawaii’s locational restrictions.

The court held that “Plaintiffs are likely to succeed on

their challenge to California’s prohibition of firearms

at hospitals and other medical facilities,” 116 F.4th at

1000, and rejected California’s complete ban of all firearms (loaded or unloaded) on mass transit, id. at 1001.

The court likewise held likely unconstitutional California’s ban on possession in places that require the

issuance of a permit, such as a “public gathering” or

“event.” Id. at 997–98. The court concluded its analysis by bemoaning that “the lists of places where a

State likely may ban, or may not ban, the carry of firearms appear arbitrary” and that “the lack of an apparent logical connection among the sensitive places is

hard to explain in ordinary terms.” Id. at 1003.

The arbitrary and irrational nature of Wolford’s

approach is evident throughout the majority’s decision below. For example, the majority below relied on

Wolford’s erroneous affirmance of Hawaii’s ban on

arms in State parks, see Wolford v. Lopez, 125 F.4th

1230, 1242–44 (9th Cir. 2025) (VanDyke, J., dissenting from the denial of rehearing en banc), to sustain

Maryland’s total ban on firearms carried for self-

defense by permit holders in hundreds of thousands of

acres of State forest lands. 3 Cross.App.31a–32a. The

majority’s rationale was that these State lands “promote a balanced emphasis on economic, social, and environmental goals” and “offer diverse and substantial

recreational

and

educational

opportunities.”

Cross.App.32a. That ban, the majority held, was constitutional even though Maryland “permits regulated

hunting within [S]tate forests.” Id.

That result and reasoning is impossible to reconcile with Bruen, where this Court explained that a

“sensitive place” is a location where “carrying of firearms” may be “altogether prohibited.” 597 U.S. at 30.

By that definition, hundreds of thousands of acres of

rural wilderness where hunting with firearms is permitted cannot be a “sensitive place.” Certainly, no law

or tradition from the Founding era banned firearms

carried for self-defense in the wilderness, much less

because of any “diverse … recreational and educational opportunities” afforded by such lands.

Cross.App.32a. As Judge Agee noted in dissent, “[t]he

signers of the Constitution and proponents of the Bill

of Rights would surely consider prohibitions on carrying firearms on such expansive and uninhabited public lands ludicrous.” Cross.App.94a. The majority’s

holding can only be explained as interest-balancing in

disguise. Bruen, 597 U.S. at 29 n.7 (noting that courts

may not engage in “means-end scrutiny under the

guise of analogical inquiry”).

3 Maryland has over 214,000 acres of State Forest. Mary-

DEP’T

NAT.

RES.,

land’s

State

Forests,

MD.

https://perma.cc/4UEH-S9KL. Chesapeake Forest Lands are an

additional 75,376 acres. Chesapeake Forest Lands, MD. DEP’T OF

NAT. RES., https://perma.cc/4WTN-UPQ8.

What these varying approaches have in common

is a general destruction of individual’s right to carry

in public. In the First Amendment context, to which

this Court has often compared the Second Amendment analysis, this Court has “stress[ed] … that discrete traditions of content-based regulations cannot

be aggregated together to sustain some new and

broader category of lesser-protected speech.” Chiles v.

Salazar, 607 U.S. ---, 146 S. Ct. 1010, 1027 (2026). At

best that is what has happened here, as courts have

accepted a series of disparate alleged historical “traditions” to justify what amounts to an effective ban on

carrying in any public place. As Judge Porter explained in his panel dissent in Koons, “[v]irtually the

only places that are not ‘sensitive’ are locations where

people don’t care about assembling with others, eating

and drinking, commerce, divisive opinions, amusement, recreation, education, worship, public travel,

leisure, community, and where children or vulnerable

people are not normally present. In such wastelands,

the majority grudgingly allows, one may carry a firearm for self-defense.” 156 F.4th at 276 (Porter, J., concurring in part and dissenting in part).

As long as the lower courts are allowed to continue in this vein, confusion will only grow. Further

legislation designed to curtail the places where people

can lawfully carry arms will be encouraged; it is no

trick to fit new bans into the seemingly endless list of

“principles” courts are willing to create and embrace.

II.

The courts of appeals are divided over

how to assess locational restrictions on

the right to bear arms.

A. The decision below, and the decisions in Wolford, Schoenthal, Koons, Antonyuk v. James, 120

F.4th 941 (2d Cir. 2024), and Frey v. City of New York,

157 F.4th 118 (2d Cir. 2025), illustrate multiple stark

disagreements among the courts of appeals. With respect to mass transit bans, Wolford held that California’s public transportation ban was unconstitutional

because it provides no means to transport an arm in

inoperable condition on public transit. 116 F.4th at

1001–02. Similarly, Schoenthal and the Koons panel

upheld public transit carry bans as long as the bans

allowed for the transportation of inoperable firearms.

Schoenthal, 150 F.4th at 915; Koons, 156 F.4th at

270–71. In contrast, the Fourth Circuit below and the

Second Circuit in Frey both upheld a total ban on carrying on public transit without reference to whether

the ban provided a method for transporting an unloaded and secured firearm. In Frey, the court relied

on a purported “historical tradition of regulating firearms in quintessentially crowded places,” 157 F.4th at

135, while the majority below relied on the “proprietary property doctrine,” Cross.App.23a. All these restrictions preclude access to a firearm “for the purpose

of immediate self-defense.” Heller, 554 U.S. at 635.

Wolford and the majority below also diverged

with respect to medical facilities and public gatherings requiring a permit. Wolford held that restrictions

at hospitals were invalid because “medical facilities of

some sort have existed since colonial times,” and there

was no evidence of any historical restrictions in such

places. 116 F.4th at 999. By contrast, the court below

unanimously upheld Maryland’s ban at “health care

facilities,” because “[h]ospitals serve medical patients,

a vulnerable population” and because of a putative

“tradition of banning guns in places used for scientific

purposes.” Cross.App.33a. Similarly, Wolford rejected

California’s argument that there was “a national

tradition of banning firearms at public gatherings in

general.” 116 F.4th at 998. But the majority below

sustained Maryland’s ban on firearms within 1000

feet of a public demonstration, finding that there was

a “national historical tradition of promoting peaceful

assemblies.” Cross.App.26a.

These divergences are indicative of a fundamental incoherence among the courts of appeals. Consider,

for example, Wolford, which concluded that a ban on

firearms on public transit depends upon the ability to

transport one in an inoperable condition. Elsewhere,

Wolford embraced the rationale that the government,

acting as a proprietor, could ban firearms to the same

extent a private property owner could, noting that

while a broad ban on carrying firearms in all banks

was unconstitutional, a ban on carrying in a state-operated bank would likely be fine. 116 F.4th at 970–71.

In Koons, despite agreeing with Wolford on the public

transit restriction, the Third Circuit panel, in its nowvacated opinion, “respectfully part[ed] ways with the

Ninth Circuit,” concluding that there was no such government “proprietor” principle and that “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.” 156 F.4th at 250.

The Fourth Circuit below, by contrast, accepted Wolford’s “government proprietor” principle and used it to

reach the opposite result of Wolford with respect to total bans on arms on public transit. Cross.App.23a.

There is also a conflict concerning the “vulnerable.” The Fourth Circuit majority held that firearms

bans may be sustained “in places that serve vulnerable populations.” Cross.App.33a. Two other panels

have also invoked this rationale. See Koons, 156 F.4th

at 268; Antonyuk, 120 F.4th at 1010–11 (claiming a

broad tradition of “protecting vulnerable populations

from either misusing arms or having arms used

against them”). But Wolford rejected that rationale,

holding that “[w]e find it unlikely that Defendant will

establish a tradition of regulating firearms at all

places that contain a vulnerable population.” 116

F.4th at 1000.

Wolford got that part right. The contrary decision

of the majority below is premised on the false notion

that a state may disarm individuals (the “vulnerable”)

who may be most in need of arms for their own selfdefense. Disarming the vulnerable does nothing to

prevent “arms [being] used against them.” Antonyuk,

120 F.4th at 1011. Indeed, disarming people for their

protection, without providing security for them, is

anathema to the right itself. The Founders well understood that disarming people in public places without providing security to prevent unlawful use of

weapons in those places would only “make things

worse for the assaulted and better for the assailants.”

Mark W. Smith, Enlightenment Thinker Cesare Beccaria and His Influence on the Founders: Understanding the Meaning and Purpose of the Second Amendment’s Right to Keep and Bear Arms, 2020 PEPP. L.

REV. 71, 83 (2020) (explaining that the Founders were

influenced by prominent Enlightenment thinker

Cesare Beccaria, who was critical of gun control laws

for this reason); THOMAS JEFFERSON, JEFFERSON’S LEGAL COMMONPLACE BOOK 521 (David Thomas Konig et

al. eds., Princeton Univ. Press 2019) (quoting Beccaria

on this point).

Consistent with this understanding, beginning

in the colonial period, and continuing through the

Founding, there was a robust tradition of permitting—and sometimes requiring—firearm carriage in

crowded places of public assembly where people would

otherwise be vulnerable to armed violence. See David

Kopel & Joseph Greenlee, The “Sensitive Places” Doctrine: Locational Limits on the Right to Bear Arms, 13

CHARLESTON L. REV. 203, 232–34 & n.108 (2018);

Clayton E. Cramer, Colonial Firearm Regulation, 16

J. FIREARMS & PUB. POL’Y 1 (2004); Benjamin Boyd,

Take Your Guns to Church: The Second Amendment

and Church Autonomy, 8 LIBERTY UNIV. L. REV. 653,

697–99 (2014); NICHOLAS JOHNSON ET AL., FIREARMS

LAW & THE SECOND AMENDMENT 189–91 (3d ed. 2022)

(summarizing laws requiring carriage at places of

public assembly such as churches from Virginia in

1619, 1632, and 1665; Connecticut in 1643 and 1644;

Massachusetts Bay in 1637 and 1643; Rhode Island in

1639; Maryland in 1642; South Carolina in 1740 and

1743; and Georgia in 1770). Heller cited a 1770 Georgia law that required men to carry firearms “to places

of public worship.” 554 U.S. at 601 (citation omitted).

This history defeats any notion that the Founders

would have understood that there is something inherent in vulnerability that justified disarmament.

B. The lower courts’ points of agreement in cases

such as this one are even more troubling than their

disagreements, because they defy this Court’s Second

Amendment jurisprudence. For instance, the majority

below upheld the ban on carrying at “location[s] licensed to sell or dispense alcohol … for on-site consumption” because there is a “well-established tradition of prohibiting firearms at crowded places.”

Cross.App.36a–37a (quoting Wolford, 116 F.4th at

986). Other courts have claimed such a tradition exists and have used it to excuse bans in a wide variety

of different places. See Wolford, 116 F.4th at 986

(places of amusement and places serving alcohol); Antonyuk, 120 F.4th at 1019, 1026, 1031, 1038 (urban

parks, zoos, theaters, and places serving alcohol);

Frey, 157 F.4th at 134 (the subway and Times

Square); Christian v. James, --- F.4th ---, 2026 WL

1378796, at *10 (2d Cir. May 18, 2026) (urban parks);

Schoenthal, 150 F.4th at 915 (public transit).

This exact “crowded” places tradition was expressly rejected as a historical justification in Bruen.

There, this Court pointed to historical restrictions on

carrying in “legislative assemblies, polling places, and

courthouses,” and “assume[d] it settled that these locations were ‘sensitive places’ where arms carrying

could be prohibited consistent with the Second

Amendment” at the Founding. Bruen, 597 U.S. at 30.

In analyzing those laws, the Court declined to do a fulsome historical analysis or to finally determine what

principle undergirded them. But it did make clear

that the principle was not that they were sometimes

crowded because any such rule would “eviscerate” the

general right to public carry arms for self-defense. Id.

at 31.

The Fourth Circuit’s conclusion that there is a

“well-established tradition of prohibiting firearms at

crowded places,” Cross.App.37a (quoting Wolford, 116

F.4th at 986), is flatly contrary to this Court’s analysis. But that holding is just one example of direct defiance of this part of Bruen’s reasoning. While this

Court said that the whole island of Manhattan cannot

be declared sensitive based on crowding, the Second

Circuit has used crowding to justify a ban on the 39-

square block area of Manhattan that New York City

defines as “Times Square.” Frey, 157 F.4th at 134.

That purported distinction between the whole of Manhattan and a huge subpart of Manhattan is patently

unsound. And as with the “vulnerable” principle discussed above, Founding-era laws requiring carriage of

firearms at public meetings and at churches shows

that the Founders treated crowding in precisely the

opposite way.

In support of its “crowding” principle, the majority below chiefly relied on the analyses of Wolford and

Antonyuk. The laws it did mention itself—an 1817

New Orleans law that banned weapons in ballrooms,

a Texas law from 1870, and an 1875 Missouri law that

applied in public assemblies—are too few to represent

any tradition and too late to illustrate the Founders’

understanding. See Bruen, 597 U.S. at 65–66 (discussing Texas law as an “outlier[]”). As Judge Agee explained in dissent, the majority’s reliance on the latter

laws “misdirects attention away from the recognition

of what the Second Amendment encompassed around

1791,” and the New Orleans law that is at least arguably from the right period was an “outlier[]” from an

“individual municipalit[y]” which is not probative under Bruen. Cross.App.62a.

The Second Circuit’s Antonyuk decision took as

its starting point for this tradition the Statute of

Northampton’s “forbidding going or riding ‘armed by

night[] or by day, in fairs, markets.’ ” 120 F.4th at

1019 (quoting Statute of Northampton 1328, 2 Edw. 3,

c.3 (Eng.)). But this Court addressed that specific provision of that statute, holding that the prohibition was

“no obstacle to public carry for self-defense” anywhere

and applied only to terrifying carry. Bruen, 597 U.S.

at 45.

In its subsequent decision in Frey, another Second Circuit panel candidly admitted to being “not so

certain” that Antonyuk had properly analyzed this

statute, because “Bruen undermines [its] interpretation.” Frey, 157 F.4th at 133 n.6. But Bruen does not

just undermine it, it flatly refutes it. Frey nevertheless proceeded to assert that even with its foundation

removed, the principle was still valid because “Founding-era Virginia and North Carolina laws evince that

lawmakers were sensitive to the potential mayhem

gun-wielding may cause in crowded locations.” Id. The

flaw with that alternative view is that the Virginia

law in question—a Statute of Northampton analogue

from 1786—made explicit the limitation that Bruen

found in the Statute of Northampton itself, by prohibiting only going or riding “armed by night nor by day,

in fairs or markets … in terror of the county.” 1786 Va.

Acts 35, ch. 49 (emphasis added).

And the North Carolina law was not an enactment of the North Carolina legislature. Rather, it was

a copy of the English Statute of Northampton, complete with its references to the King and his ministers,

included in a private lawyer’s collection of British

statutes thought to be still in effect in North Carolina

following the Revolution. See Stephen P. Halbrook,

Faux Histoire of the Right to Bear Arms, Young v. Hawaii

(9th

Cir.)

21,

SSRN

(2021),

https://perma.cc/AXF3-PHTF. And again, the Statute

was understood to bar only terrifying carry in places

ike fairs and markets. Otherwise “citizens were ‘at

perfect liberty’ to carry for ‘ lawful purposes.’ ” Bruen,

597 U.S. at 52 n.15 (quoting State v. Huntly, 25 N.C.

(1 Ired.) 418, 423 (1843) (per curiam)) (cleaned up). As

Huntly held, public carry for self-defense was completely permissible in North Carolina “so long as it

was not ‘in such [a] manner as naturally will terrify

and alarm.’ ” 25 N.C. at 423; see also Bruen, 597 U.S.

at 47.

In yet another obvious error, both the Second Circuit and Ninth Circuit have accepted the false premise

that a special historical inquiry is applicable to challenges to state laws, and the Fourth Circuit’s broad reliance on Antonyuk and Wolford effectively incorporated that error into its holding as well. In Antonyuk,

the Second Circuit held that “[b]ecause the [New York

statute] is a state law,” “the understanding that prevailed when the States adopted the Fourteenth

Amendment ... is, along with the understanding of

that right held by the founders in 1791, a relevant consideration.” Antonyuk, 120 F.4th at 973–74 (emphasis

added) (quotation marks omitted); see also Christian,

2026 WL 1378796, at *4.

The Ninth Circuit followed suit in Wolford, stating that “[i]t bears emphasizing that the laws at issue

here are state laws,” and that “[w]e thus agree with

the Second Circuit that, at least when considering the

‘sensitive places’ doctrine, we look to the understanding of the right to bear arms both at the time of the

ratification of the Second Amendment in 1791 and at

the time of the ratification of the Fourteenth Amendment in 1868.” 116 F.4th at 980 (citing Antonyuk v.

Chiumento, 89 F.4th 271, 304–05 (2d Cir. 2023), vacated and remanded sub nom., Antonyuk v. James,

144 S. Ct. 2709 (2024) (mem.)).

This approach is contrary to this Court’s repeated holdings “that individual rights enumerated in

the Bill of Rights and made applicable against the

States through the Fourteenth Amendment have the

same scope as against the Federal Government.”

Bruen, 597 U.S. at 37 (emphasis added). Thus, regardless of whether the key date for establishing the

meaning of the Second Amendment is 1791 or 1868 (it

can only be 1791), see Cross.App.52a (Agee, J., dissenting in part), “there is no daylight between the federal and state conduct it prohibits or requires.” Timbs

v. Indiana, 586 U.S. 146, 150 (2019). It therefore matters not at all whether a state or federal law is under

review. See National Rifle Ass’n v. Bondi, 133 F.3d

1108, 1115 (11th Cir. 2025) (en banc); Christian, 2026

WL 1378796, at *16–17 (Menashi, J., concurring in

part and dissenting in part).

Finally, the Wolford court held that there was a

“difference between the ‘distinctly similar’ test applied in Bruen to New York’s law and the more lenient

standard that applies when analyzing the regulation

of firearms at ‘sensitive places.’ ” 116 F.4th at 979. But

Bruen never held that there is lesser, “more lenient”

historical inquiry applicable to sensitive area designations. The State’s burden is the same: “”[T]he government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits

the outer bounds of the right to keep and bear arms.”

Bruen, 597 U.S. at 19. Outliers are no more permissible to justify sensitive-areas bans than for other kinds

of restraints on the right.

III.

The courts below ignore the importance of security in the historical

sensitive-places tradition.

The lower courts have failed to identify a historically grounded principle that can explain the

“sensitive place” tradition that this Court referenced

in Bruen. To resolve this case, the Court need only reject the errors committed by the lower courts and hold

that Maryland failed to carry its burden under

Bruen’s historical analysis.

In particular, the lower courts have failed to

identify a principle underlying the historical restrictions at polling places, courthouses, and legislatures and that helps explain how those restrictions

can be analogized to modern locations like commercial

airports—the presence of security. That guiding principle is that “the self-defense right decreases only to

the extent that the government’s protective ability increases,” a principle that “sounds in the philosophy of

Cesare Beccaria.” Br. for the Independent Institute as

Amicus Curiae Supporting Petitioners at 17, New

York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1,

(July 20, 2021) (No. 20-843). That principle is wellsupported.

In any truly “sensitive place,” where the government believes the presence of firearms pose unusual

and unacceptable dangers, the government has historically (and to this day) provided security to ensure

that firearms are actually excluded, thereby diminishing the need, in that discrete, secure location, for individual armed self-defense. This principle is based on

the historical sources specifically identified by this

Court in discussing this tradition. Begin with the

three locations Bruen pointed to as historically “sensitive:” legislative assemblies, courthouses, and polling

places. Founding era examples of government-provided security at these locations abound. Rhode Island, Delaware, Pennsylvania, South Carolina, New

York, Georgia, New Jersey, Virginia, and Vermont all

enacted statutes during the period compensating law

enforcement to attend and provide security at legislatures. 4 Maryland and New Hampshire appointed sergeants-at-arms or door-keepers. 5 As their name

4 See An Act Establishing and Regulating Fees, in THE PUB-

LIC LAWS OF THE STATE OF RHODE-ISLAND AND PROVIDENCE

PLANTATIONS 220, 222 (Providence, Carter & Wilkinson ed.,

1798) (providing fees for sheriffs, town sergeants, and constables

to attend general assembly); An Act for Regulating and Establishing Fees, in 2 LAWS OF THE STATE OF DELAWARE 1100, 1118

(Samuel & John Adams eds., 1797) (similar); An Act for the Support of Government, and the Administration of Justice, in 10 THE

STATUTES AT LARGE OF PENNSYLVANIA FROM 1682 TO 1801 376,

378 (Wm. Stanley Ray ed., 1904) (referencing sergeant-at-arms

and door-keeper for legislature); An Act for Regulating and Fixing the Salaries of Federal Officers, in THE PUBLIC LAWS OF THE

STATE OF SOUTH CAROLINA 426–27 (Phila., R. Aitken & Son ed.,

1790) (providing payment of door-keepers for legislature); An Act

for the Support of Government, in 1 LAWS OF THE STATE OF NEW

YORK 534 (Albany, Charles R. & George Webster eds., 2d ed.

1802) (similar); An Act to Appropriate Monies for the Political

Year 1808, § 2, in A COMPILATION OF THE LAWS OF THE STATE OF

GEORGIA 372–73 (Augusta, Adams & Duyckinck eds., 1812) (similar); PROVINCIAL CONGRESS, JOURNAL OF THE VOTES AND PROCEEDINGS OF THE PROVINCIAL CONGRESS OF NEW JERSEY 239–40

(Burlington, Isaac Collins ed., reprinted by Woodbury, Joseph

Sailer 1835) (similar); Saturday, December 20, 1783, JOURNAL OF

THE HOUSE OF DELEGATES OF THE COMMONWEALTH OF VIRGINIA

77 (Richmond, Thomas W. White ed., 1828) (similar); An Act Regulating Fees, in 1 LAWS OF THE STATE OF VERMONT 382, 387

(Randolph, Sereno Wright ed., 1808) (similar).

5 See VOTES AND PROCEEDINGS OF THE HOUSE OF DELEGATES

OF THE STATE OF MARYLAND, NOVEMBER SESSION, 1791 at 2

(1791) (recording appointment of sergeant-at-arms and doorkeeper); VOTES AND PROCEEDINGS OF THE SENATE OF THE STATE

OF MARYLAND, NOVEMBER SESSION, 1791 at 1 (1791) (similar); A

JOURNAL OF THE PROCEEDINGS OF THE HONORABLE SENATE OF

suggests, these positions carried with them obligations to secure the legislature, including from armed

attack. Both were positions the Americans adapted

from England’s Parliament. See About the Sergeant at

Arms:

Historical

Overview,

U.S.

SENATE,

https://perma.cc/GA5J-Q5F9. In Parliament, both

doorkeepers and sergeants-at-arms had long been

tasked with securing the legislative chambers against

unauthorized visitors and threats, see, e.g., WILLIAM

HAKEWELL, MODUS TENENDI PARLIAMENTUM: OR, THE

OLD MANNER OF HOLDING PARLIAMENTS IN ENGLAND

22–23 (London, 1671), https://perma.cc/4MZA-4M4Y,

and they carried out those functions here following

the Revolution, see THOMAS JEFFERSON, A MANUAL OF

PARLIAMENTARY PRACTICE. FOR THE USE OF THE SENATE OF THE UNITED STATES § XVIII (Washington,

1801), https://perma.cc/MC7J-J7FJ (“[T]he door of the

house ought not to be shut, but to be kept by porters,

or serjeants at arms, assigned for that purpose.”); see

also JACOB R. STRAUS, CONG. RSCH. SERV., 98-748,

SERGEANT AT ARMS AND DOORKEEPER OF THE SENATE:

LEGISLATIVE AND ADMINISTRATIVE DUTIES 1–2 (2011),

https://perma.cc/D9HY-8WAF. In one notable 18thcentury incident, for example, three members of the

Upper House of the Maryland legislature were refused admission to the Lower House “unless [they]

first left [their] sword[s] with the doorkeeper,” which

they refused to do. RAPHAEL SEMMES, CAPTAINS AND

MARINERS OF EARLY MARYLAND 285–86 (1937),

https://perma.cc/7T7C-8WA4.

THE STATE OF NEW-HAMPSHIRE 6 (Amherst, Joseph Cushing ed.,

1808), https://perma.cc/Y7VF-UYV4 (similar).

Polling places were likewise secured, including in

Georgia, Virginia, New Jersey, Maryland, Delaware,

and South Carolina. 6 And courthouses also, then as

now, were secured by law enforcement. South Carolina, Virginia, Delaware, New Jersey, New York, and

Pennsylvania by statute required law enforcement officials to attend court. 7 Furthermore, the legislative

6 See An Act for the Better Regulating and Conducting Elec-

tions in the Federal Counties of this State, in A DIGEST OF THE

LAWS OF THE STATE OF GEORGIA 611 (Phila., R. Aitken ed., 1800)

(“[T]he sheriff of each county or his deputy, is required to attend

at such elections, for the purpose of enforcing the orders of the

presiding magistrates in preserving good order.”); ABRIDGEMENT

OF THE PUBLIC PERMANENT LAWS OF VIRGINIA 325 (Richmond,

Augustine Davis ed., 1796) (similar); LAWS OF THE STATE OF NEW

JERSEY 36 (Trenton, James J. Wilson ed., 1811) (providing security at polling places); MD. CONST. art. 1 §§ 3, 14 (1776) (similar);

An Act Directing the Election of a Representative for this State

in the Congress of the United States, in 2 LAWS OF THE STATE OF

DELAWARE, supra, at 984 (similar); THE PUBLIC LAWS OF THE

STATE OF SOUTH CAROLINA, supra, at 386–88, (table of fees includes payment to sheriffs for polling-place security).

7 See THE PUBLIC LAWS OF SOUTH CAROLINA, supra, at 271,

(“The said sheriffs by themselves, or lawful deputies respectively,

attend all the courts hereby appointed, or directed to be held,

within their respective districts.”); A COLLECTION OF ALL SUCH

ACTS OF THE GENERAL ASSEMBLY OF VIRGINIA 69–71 (Richmond,

Samuel Pleasants & Henry Pace ed., 1803) (similar); An Act to

Regulate the Courts in this State, in 2 LAWS OF THE STATE OF

DELAWARE, supra, at 1088, 1091 (similar); An Act Constituting

Courts for the Trial of Small Causes, in LAWS OF THE STATE OF

NEW JERSEY, supra, 49–50, 58 (similar); An Act Concerning the

Circuit Courts, in 1 LAWS OF THE STATE OF NEW YORK, supra, at

176 (requiring during court “all justices of the peace, coroners,

bailiffs, and constables within their respective counties, that

they be then and there in their own persons… . And the said respective sheriffs and their officers shall then and there attend in

their own proper persons.”); An Act for Erecting an High Court

record in other states indicates that law enforcement

officials were compensated for attending judicial proceedings. 8 As a contemporary manual for law enforcement made clear, it was “for [the] very purpose” of

“preserv[ing] quietness, order, and decency, in the

Courts of Justice” that they were required to attend

court. R. SHEARDOWN, THE DUTY OF CONSTABLES 16

(1790), https://perma.cc/4EYV-2T5Q (emphasis omitted).

In fact, the historical pedigree of restricting arms

bearing at discrete, secured locations stretches back

to some of the very earliest legal restrictions in our

tradition. A clause of the Statute of Northampton prohibits any man “except the Kings’ Servants in his

presence, and his Ministers in executing of the King’s

Precepts, or of their Office, and such as be in their

Company assisting them … be so hardy to come before

the King’s Justices, or other of the King’s Ministers

of Errors and Appeals, in 10 STATUTES AT LARGE OF PENNSYLVANIA, supra, at 57 (similar).

8 See An Act for Regulating Fees, in ACTS AND LAWS OF THE

STATE OF CONNECTICUT 63–65 (New London, Timothy Green ed.,

1784); An Act for Vesting Certain Powers in the Commissioners

of the Court House, in A DIGEST OF THE LAWS OF THE STATE OF

GEORGIA, supra, 471, 473–74, 478 (1792 law); An Act Respecting

the Sherriff of Talbot County, in 2 THE LAWS OF MARYLAND, ch.

25 (Annapolis, Frederick Green ed., 1800) (1799 law); ACTS AND

RESOLVES OF MASSACHUSETTS, 1786–87 at 235 (Bos., Adams &

Nourse eds., 1893) (1786 law); An Act Regulating Fees, in THE

LAWS OF THE STATE OF NEW HAMPSHIRE 112–16 (Portsmouth,

John Melcher ed., 1797); A MANUAL OF THE LAWS OF NORTH-CAROLINA 190–91, 196 (Raleigh, J. Gales ed., 3d. ed. 1814) (1779

law); THE PUBLIC LAWS OF THE STATE OF RHODE-ISLAND AND

PROVIDENCE PLANTATIONS, supra, at 220, 222; An Act Regulating

Fees, in 2 LAWS OF THE STATE OF VERMONT 382, 387 (Randolph,

Sereno Wright ed. 1808) (1798 law).

doing their office, with force and arms.” 2 Edw. 3, c. 3

(1328) (cleaned up). This provision, preceding the textual “affray” element of the Statute, suggested that

where the King’s business was being conducted, and

his ministers were going armed themselves, the right

of others to be armed could be momentarily curtailed.

This reading of the statute is confirmed by the

Virginia analogue to the Statute of Northampton that

was in place when the Second Amendment was

adopted. In addition to the explicit “terror” element to

the second restriction, it made the first restriction effectively about regulating who could possess arms in

court, forbidding anyone “except the Ministers of Justice in executing the precepts of the courts of justice”

and those “assisting them” from “com[ing] before the

justices of any court, or either of their Ministers of

Justice, doing their office, with force of arms.” 1786

Va. Acts 35. In other words, it fits the Statute of

Northampton’s restrictions into the same tradition as

the other laws on arms bearing in courts of law. And

it likewise fits with the tradition, discussed above, of

requiring firearms to be carried at certain public

meetings or church gatherings.

Finally, the principle that a place may be “sensitive” if the government takes it upon itself to secure

the location is a robust principle, both providing the

government with flexibility to designate those places

where there really is some “inherent danger[]” in the

carrying of weapons, Cross.App.36a, and adequate to

explain locational restrictions wherever the government validly enacts them. As noted above, the Seventh and Ninth Circuits have both expressed dissatisfaction with their own answers to the question of

where the government can ban firearms, with the

Ninth Circuit in particular lamenting that the distinctions “appear arbitrary.” Wolford, 116 F.4th at 1003.

The Second Amendment does not comport with a series of arbitrary restrictions. Rather, it is consistent

with reasoned judgment and common sense. See

Rahimi, 602 U.S. at 698 (noting that “the surety and

going armed laws confirm what common sense suggests”). It makes sense that, if the government could

be permitted to disarm its citizens in any public place,

it can only be in locations where it takes steps to ensure it is providing for their protection and not leaving

them at the mercy of those who will not balk at ignoring a “gun free” designation.

IV.

This case is a good vehicle for addressing this important issue.

This case presents an excellent vehicle for this

Court to provide much needed clarity on these important questions. Unlike Antonyuk, the decision below is a final judgment on the merits. And unlike

Schoenthal, it addresses the constitutionality of a

wide variety of restrictions, providing this Court with

the opportunity to discuss sensitive places with reference to a number of modern applications where sharp

conflicts among the lower courts abound. And as all of

the recent cases addressing similar schemes demonstrate, there is little chance that additional percolation will do much to clarify the issues or to bring additional historical analogues to light. The issue is ripe

for this Court’s review.

While this Court has granted certiorari in two

other Second Amendment cases this term, Wolford v.

Lopez, 146 S. Ct. 79 (Oct. 3, 2025) (No. 24-1046)

(mem.), and United States v. Hemani, 146 S. Ct. 326

(Oct. 20, 2025) (No. 24-1234) (mem.), decisions in

those cases may not meaningfully assist courts of appeals in deciding the constitutionality of the wide variety of “sensitive place” restrictions. Hemani, for example, addresses the question of who can exercise the

right to keep and bear arms.

While the Ninth Circuit’s decision in Wolford

dealt with “sensitive place” restrictions like the Maryland provisions at issue here, the issue before this

Court solely deals with Hawaii’s presumptive ban on

carrying firearms in private property open to the public. That presumptive ban only applies to locations

that Hawaii has not deemed sensitive, since in those

locations carry is absolutely prohibited, regardless of

the wishes of the property owner. See HAW. REV. STAT.

§§ 134-9.1, 134-9.5 (2025). A decision in Wolford thus

may not directly address sensitive places. Alternatively, should Wolford establish a principle that addresses the doctrinal incoherence among the lower

courts detailed above, Petitioners respectfully request

that this Court grant, vacate, and remand for reconsideration in light of Wolford.

CONCLUSION

The Court should grant the non-conditional

cross-petition for a writ of certiorari or, if otherwise

appropriate, GVR the cross-petition in light of the

Court’s decision in Wolford.

Respectfully submitted,

JOHN PARKER SWEENEY DAVID H. THOMPSON

JAMES W. PORTER, III

Counsel of Record

WILLIAM C. LAMAR, JR. PETER A. PATTERSON

1900 K Street, N.W.

WILLIAM V. BERGSTROM

Suite 800

COOPER & KIRK, PLLC

BRADLEY ARANT BOULT 1523 New Hampshire

CUMMINGS LLP

Avenue, N.W.

Washington, DC 20006 Washington, D.C. 20036

(202) 220-9600

Counsel for Petitioners dthompson@cooperkirk.com

Susannah

Warner

Kipke and Maryland Mark W. Pennak

State Rifle and Pistol LAW OFFICES OF MARK W.

PENNAK

Association, Inc.

7416 Ridgewood Ave.

Chevy Chase, MD 20815

Counsel for Petitioners Katherine Novotny, Sue Burke,

Esther Rossberg, Maryland

Shall Issue, Inc., Second

Amendment Foundation,

and Firearms Policy Coalition

APPENDIX

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT, FILED

JANUARY 20, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — MEMORANDUM OPINION OF

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND,

FILED AUGUST 2, 2024 . . . . . . . . . . . . . . . . . . . . 107a

A PPEN DI X C — OR DER OF T H E

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND,

FILED AUGUST 2, 2024 . . . . . . . . . . . . . . . . . . . . 123a

APPENDIX D — MEMORANDUM OPINION OF

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND,

FILED SEPTEMBER 29, 2023 . . . . . . . . . . . . . . 126a

APPENDIX E — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

DI S T R IC T OF M A RY L A N D, F I L ED

SEPTEMBER 29, 2023 . . . . . . . . . . . . . . . . . . . . . .172a

APPENDIX F — RELEVANT STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175a

Appendix

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT,

FILED JANUARY 20, 2026

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 24-1799

SUSANNAH WARNER KIPKE; MARYLAND

STATE RIFLE AND PISTOL ASSOCIATION, INC.,

Plaintiffs-Appellants,

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.

Appendix A

No. 24-1827

KATHERINE NOVOTNY; SUE BURKE; ESTHER

ROSSBERG; MARYLAND SHALL ISSUE,

INC.; SECOND AMENDMENT FOUNDATION;

FIREARMS POLICY COALITION,

Plaintiffs-Appellants,

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;

Appendix A

MASSACHUSETTS; MINNESOTA; NEVADA; NEW

JERSEY; NEW YORK; OREGON; PENNSYLVANIA;

RHODE ISLAND; VERMONT; WASHINGTON,

Amici Supporting Appellees.

No. 24-1834

SUSANNAH WARNER KIPKE; MARYLAND

STATE RIFLE AND PISTOL ASSOCIATION, INC.,

Plaintiffs-Appellees,

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.

Appendix A

No. 24-1836

KATHERINE NOVOTNY; SUE BURKE; ESTHER

ROSSBERG; MARYLAND SHALL ISSUE,

INC.; SECOND AMENDMENT FOUNDATION;

FIREARMS POLICY COALITION,

Plaintiffs-Appellees,

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;

Appendix A

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-01293-GLR; 1:23-cv01295-GLR; 1:23-cv-01293-GLR; 1:23-cv-01295-GLR).

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.

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, 128 S. Ct. 2783, 171 L. Ed.

2d 637 (2008). The Court splits on the constitutionality

of many of the regulations so, for ease of reference, we

Appendix A

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). 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

1. Any citations to Maryland’s regulations reference the version

current at the time of the parties’ briefing.

Appendix A

§ 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.

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.

Appendix A

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.

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 facilities, amusement

parks, and casinos; (8) locations that sell alcohol; and (9)

private property.

Appendix A

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:

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Appendix A

“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.

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, 144 S. Ct. 1889, 219 L. Ed.

2d 351 (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, 142 S. Ct. 2111, 213 L. Ed. 2d

387 (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

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Appendix A

the sensitive place framework and then conducts a

location-by-location analysis.

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.

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Appendix A

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 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

13a

Appendix A

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 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 military-style

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 military-style 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

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Appendix A

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

conduct “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 sensitiveplace 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);

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Appendix A

(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 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.

16a

Appendix A

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 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, 128 S. Ct. 2146,

170 L. Ed. 2d 975 (2008) (cleaned up); see also United

States v. Kokinda, 497 U.S. 720, 725, 110 S. Ct. 3115, 111

L. Ed. 2d 571 (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,

112 S. Ct. 2701, 120 L. Ed. 2d 541 (1992) (cleaned up). So,

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Appendix A

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, 113 S. Ct. 1190, 122 L. Ed. 2d 565

(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, 94 S. Ct. 2714, 41 L. Ed. 2d 770 (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 97071, 1000; United States v. Class, 930 F.3d 460, 464, 442

U.S. App. D.C. 257 (D.C. Cir. 2019), abrogated on other

grounds by Bruen, 597 U.S. 1. We hold that, 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

18a

Appendix A

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 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

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Appendix A

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. § 7-705(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, 127 S. Ct.

2018, 167 L. Ed. 2d 898 (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

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,

20a

Appendix A

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 1690; see also Wolford, 116 F.4th

at 1001. 2 “Generally, these rules barred passengers from

2. 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.

21a

Appendix A

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 Thomas Randall, ¶ 3. Unlike traditional

long-distance 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

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Appendix A

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

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

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Appendix A

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 5152 (emphasis removed).

We hold that Maryland’s prohibition of guns on school

grounds is constitutional. The Supreme Court has noted

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Appendix A

(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

3. We 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.

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Appendix A

officer to leave the area of the demonstration until the

person disposes of the firearm.” Md. Code, Crim. Law

§ 4-208(b)(2).4 We hold that, while Plaintiffs have standing

to bring their challenge, their claim fails on the merits.

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, 112

S. Ct. 2130, 119 L. Ed. 2d 351 (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, 134 S. Ct. 2334, 189 L.

Ed. 2d 246 (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, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (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

4. 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).

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Appendix A

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

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, 99 S. Ct. 2301, 60 L. Ed. 2d 895 (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

27a

Appendix A

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, “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, 102 S. Ct. 3409, 73 L. Ed. 2d 1215

(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

28a

Appendix A

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

So, ev idence f rom 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

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 1786, as did New Jersey in

1797. See Act of 1792, ch. 103, VA. CODE ANN. §§ 8-9 (1792); Act of

1797, 1797 Laws of New-Jersey 234.

29a

Appendix A

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 19 th centu r y, 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.

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.

6. Maryland does, however, allow hunting and target shooting

on certain state lands. See, e.g., Code of Md. Regs. § 08.01.07.14(D).

30a

Appendix A

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 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

31a

Appendix A

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 (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.

7. 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.

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Appendix A

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.aspx; 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.

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.

33a

Appendix A

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, 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.

8. 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).

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Appendix A

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, and the casinos that did exist

were often privately operated. See Hochman, supra, at

1721. Also, sporting venues did not have modern stadiumesque 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);

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Appendix A

Roster of the World’s Oldest 50 Amusement Parks, Nat’l

Amusement Park Historical Ass’n, https://www.napha.

org/Resources/Facts-Figures/Worlds-Oldest-OperatingParks; https://perma.cc/8X79-Q4Q2 (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 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.

36a

Appendix A

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 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

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Appendix A

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.

Second, there is a “ well-established tradition

of prohibiting firearms at crowded places.” Id.; see

Antonyuk, 120 F.4th at 1019 (recognizing a national

9. 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.”)).

38a

Appendix A

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 transport a firearm on the

39a

Appendix A

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

40a

Appendix A

prosecution that Plaintiffs face” if they 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

41a

Appendix A

(a 1771 New Jersey statute, an 1865 Louisiana statute, an

1866 Texas statute, and an 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

42a

Appendix 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.

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. §§ 0 4.0 5.01.0 3 ,

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);

43a

Appendix A

(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 g rant 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;

• Reverse the district court’s g rant 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 onsite consumption, Md.

Code, Crim. Law § 4-111(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

Appendix A

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

Appendix A

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, 144 S. Ct. 1889, 219 L. Ed. 2d 351 (2024)

(quoting McDonald v. City of Chicago, 561 U.S. 742, 778,

130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010)).1 In light of

this clear mandate, courts should approach all firearms

regulations skeptically.

1. 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”:

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)).

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Appendix A

In New York State Rifle & Pistol Association v.

Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022),

the Supreme Court articulated a two-part framework

for analyzing 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

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Appendix A

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 A mendment cases, the

Supreme Court has identified as one category of 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, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (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.

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Appendix A

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 citizens” in “all places where

people typically congregate” 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 lawabiding citizen’s right to armed selfdefense.” Id. at 29. A

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Appendix 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 FoundingEra 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. “Likewise, 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

2. 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).

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Appendix A

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 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. As these examples demonstrate, when

undertaking the Bruen step-two inquiry, it’s important

to remember that “[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 U.S. App. LEXIS 32473, 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

3. 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 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.

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Appendix A

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, 17 S. Ct. 326, 41 L. Ed.

715 (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 (quoting Van Ness v. Pacard, 27 U.S. 137, 144,

7 L. Ed. 374 (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

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Appendix A

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,

399 U.S. App. D.C. 314 (D.C. Cir. 2011) (Kavanaugh, J.,

dissenting)).

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

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Appendix A

late-19th-century evidence, the 20th-century 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 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, 140 S. Ct. 2246, 207 L. Ed. 2d 679 (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

4. 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

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