Amicus Curiae Brief — Katherine Novotny, et al., Petitioners v. Wes Moore, Governor of Maryland, et al.

No. 25-1324

444444444444444444444444444444444444444444

IN THE

Supreme Court of the United States

____________________

KATHERINE NOVOTNY, et al.,

Petitioners,

v.

WES MOORE, Governor of Maryland, et al.,

Respondents.

____________________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

____________________

Brief Amicus Curiae of Gun Owners of

America, Gun Owners Foundation, Tenn.

Firearms Association, Tenn. Firearms

Foundation, Va. Citizens Defense League, Va.

Citizens Defense Foundation, Coalition of N.J.

Firearm Owners, Ariz. Citizens Defense

League, Conn. Citizens Defense League, Heller

Foundation, National African American Gun

Association, America’s Future, and

Conservative Legal Defense and Educ. Fund in

Support of Petitioners

____________________

JOHN I. HARRIS III

Nashville, TN 37203

ROBERT J. OLSON*

WILLIAM J. OLSON

JEREMIAH L. MORGAN

OLIVER M. KRAWCZYK

WILLIAM J. OLSON, P.C.

Carlisle, PA 17013

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

Attorneys for Amici Curiae wjo@mindspring.com

June 29, 2026

*Counsel of Record

444444444444444444444444444444444444444444

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . iii

INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . 11

ARGUMENT

I.

II.

THIS COURT’S REVIEW IS NECESSARY TO

RESOLVE IMPORTANT CIRCUIT SPLITS ON THE

SECOND AMENDMENT’S SCOPE AND

METHODOLOGY . . . . . . . . . . . . . . . . . . . . . . . . 12

A.

The Opinion Below Splits with the

Second Circuit, which Found No

Historical Tradition of Banning

Firearms in “Rural Parks” . . . . . . . . . . . 12

B.

The Opinion Below Deepens an

Existing Circuit Split on the

Applicable Standard for Facial

Challenges, and this Court’s

Intervention Is Necessary to Resolve

this Important Question. . . . . . . . . . . . . 16

THIS CASE PRESENTS AN IDEAL

OPPORTUNITY TO CLARIFY THE OPERATIVE

TIME PERIOD FOR HISTORICAL ANALYSIS . . . . 20

ii

A.

Heller, Bruen, Rahimi, Hemani, and

Wolford Left Unresolved the

Appropriate Temporal Focal Point for

Second Amendment Analysis. . . . . . . . . 20

B.

This Court’s Second Amendment

Decisions Indicate that 1791 Is the

Proper Focal Point . . . . . . . . . . . . . . . . . 21

C.

The Lower Courts Are Growing

Increasingly Divergent on the

Temporal Issue . . . . . . . . . . . . . . . . . . . . 24

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

iii

TABLE OF AUTHORITIES

Page

CONSTITUTION

Amendment II . . . . . . . . . . . . . 2, 11-13, 15-21, 23-25

Amendment XIV. . . . . . . . . . . . . . . . . . . 2, 12, 14, 20

STATE STATUTES

Gun Safety Act of 2023, Md. Code Ann. (2023),

CR §§ 4-111, 6-411 . . . . . . . . . . . . . . . . . . . . . . . 4

CASES

Americans for Prosperity Found. v. Bonta,

594 U.S. 595 (2021) . . . . . . . . . . . . . . . . . . . . . . 17

Antonyuk v. Chiumento, 89 F.4th 271

(2d Cir. 2023). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Antonyuk v. James, 120 F.4th 941 (2d Cir.

2024) . . . . . . . . . . . . . . . . . . . . . . . 2, 8, 15, 18, 25

Antonyuk v. James, 144 S. Ct. 2709 (2024) . . . . . . . 2

Antonyuk v. James, 145 S. Ct. 1900 (2025) . . . . . . . 2

Bevis v. City of Naperville, 85 F.4th 1175

(7th Cir. 2023) . . . . . . . . . . . . . . . . . . . . . . . . . . 25

City of Chicago v. Morales, 527 U.S. 41 (1999) . . . 17

City of Los Angeles v. Patel, 576 U.S. 409

(2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-18

Coal. for TJ v. Fairfax Cnty. Sch. Bd.,

146 S. Ct. 541 (2024) . . . . . . . . . . . . . . . . . . . . . 25

District of Columbia v. Heller, 554 U.S. 570

(2008) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 16, 20, 22

McDonald v. City of Chicago, 561 U.S. 742

(2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 22

Mont. Med. Ass’n v. Knudsen, 119 F.4th 618

(9th Cir. 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Moody v. NetChoice, LLC, 603 U.S. 707 (2024) . . 17

iv

N.Y. State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022) . . . . 2, 7-9, 12, 15, 16, 18, 20-23

Percoco v. United States, 598 U.S. 319 (2023). . . . 17

Ramos v. Louisiana, 590 U.S. 83 (2020) . . . . . . . . 22

United States v. Hemani, 2026 U.S. LEXIS 2559

(June 18, 2026) . . . . . . . . . . . . . 15, 16, 20, 22, 24

United States v. Rahimi, 602 U.S. 680 (2024) . 20-24

United States v. Salerno, 481 U.S. 739

(1987) . . . . . . . . . . . . . . . . . . . . . . . . . 7, 11, 16, 18

Wash. State Grange v. Wash. State Republican

Party, 552 U.S. 442 (2008) . . . . . . . . . . . . . 17, 18

Wolford v. Lopez, 116 F.4th 959 (9th Cir.

2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 24, 25

Wolford v. Lopez, 2026 U.S. LEXIS 2720

(June 25, 2026) . . . . 2, 4, 7, 10, 12, 13, 20, 22, 24

MISCELLANEOUS

“Alaska State Forests,” Alaska Department of

Natural Resources (last visited June 25,

2026) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

“Division of Parks & Outdoor Recreation,” Alaska

Department of Natural Resources (last visited

June 25, 2026) . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Ariana Figueroa & Josh Kurtz, “U.S. Supreme

Court Gun Rights Decision Has Major

Implications for Md. Concealed Carry Law,”

Maryland Matters (June 23, 2022) . . . . . . . . . . . 3

Marcia Kramer & Dick Brennan, “Fresh Off

Primary Win, Gov. Kathy Hochul Drives Right

into Guns – Who Can Get Them and Where They

Can Take Them,” CBS NY (June 28, 2022) . . . . 3

“Land Ownership in Alaska,” Alaska Department

of Natural Resources (Mar. 2000) . . . . . . . . . . . 14

v

“Maryland Lawmakers Fast Track New Gun

Control Bills After Supreme Court Ruling,”

Mike McKay for Senate (Jan. 31, 2023) . . . . . 3, 4

“State of Alaska Hazard Mitigation Plan,” Alaska

Division of Homeland Security and Emergency

Management (2023). . . . . . . . . . . . . . . . . . . . . . 15

INTEREST OF THE AMICI CURIAE1

Amici Gun Owners of America, Gun Owners

Foundation, Tennessee Firearms Association,

Tennessee Firearms Foundation, Virginia Citizens

Defense League, Virginia Citizens Defense

Foundation, Coalition of New Jersey Firearm Owners,

Arizona Citizens Defense League, Connecticut Citizens

Defense League, Heller Foundation, National African

American Gun Association, America’s Future, and

Conservative Legal Defense and Education Fund are

nonprofit organizations, exempt from federal income

tax under sections 501(c)(3) or 501(c)(4) of the Internal

Revenue Code. These entities, inter alia, participate

in the public policy process, including conducting

research, and informing and educating the public on

the proper construction of state and federal

constitutions, as well as statutes related to the rights

of citizens, and questions related to human and civil

rights secured by law.

Some of these amici are currently supporting a

Second Amendment challenge to a “Bruen-response

bill” enacted in New York, which bans firearms in a

similarly broad swath of public places as the statutory

scheme at issue here. See Antonyuk v. James, No.

1:22-cv-00986-GTS-PJE (N.D.N.Y.). The plaintiffs in

that case previously petitioned this Court for writs of

1

It is hereby certified that counsel of record for all parties

received timely notice of the intention to file this brief; that no

counsel for a party authored this brief in whole or in part; and

that no person other than this amicus curiae, its members, or its

counsel made a monetary contribution to its preparation or

submission.

2

certiorari, both before and after this Court’s decision in

United States v. Rahimi, 602 U.S. 680 (2024). See

Antonyuk v. Chiumento, 89 F.4th 271 (2d Cir. 2023),

cert. granted, vacated, remanded sub nom. Antonyuk v.

James, 144 S. Ct. 2709 (2024); see also Antonyuk v.

James, 120 F.4th 941 (2d Cir. 2024), cert. denied, 145

S. Ct. 1900 (2025). Some of these amici also filed an

amicus brief2 in this Court in Wolford v. Lopez, 2026

U.S. LEXIS 2720 (June 25, 2026), another case

challenging locational restrictions on the right to keep

and bear arms.

STATEMENT OF THE CASE

In N.Y. State Rifle & Pistol Ass’n v. Bruen, 597

U.S. 1, 31 (2022), this Court recognized the historic,

“general right to publicly carry arms for self-defense”

under the Second and Fourteenth Amendments to the

U.S. Constitution. Prior to Bruen, a minority of states

“made it almost impossible to obtain a license to carry

a firearm” under their discretionary licensing regimes,

Wolford v. Lopez, 2026 U.S. LEXIS 2720, at *7 (June

25, 2026), but otherwise imposed relatively few

restrictions on the locations where those fortunate

enough to be licensed could publicly carry. But then,

when faced with an influx of new licensees following

Bruen, these formerly “may-issue” states decided they

could not — would not — allow this Court’s precedents

to meaningfully alter their anti-gun regimes. Thus,

these states returned to the drawing board and

2

See Brief Amicus Curiae of Gun Owners of America, et al. (Nov.

24, 2025).

3

enacted “new laws that achieved a similar result”

(Wolford v. Lopez, 2026 U.S. LEXIS 2720 at *7) — the

mass criminalization of firearms in public. Indeed, if

these states had to issue ordinary Americans licenses

to carry firearms, then they would render those

licenses almost worthless by “flatly prohibit[ing]” the

possession of firearms on “large portion[s] of the land

within the State[s’] boundaries....” Id. As New York

Governor Hochul famously quipped of her Bruenresponse bill, concealed carry had been relegated to

“[p]robably some streets.”3

Maryland was one of the jurisdictions to respond to

Bruen not with compliance, but with legislative

defiance. In a joint statement with Maryland Senate

President Bill Ferguson, then-Maryland House of

Delegates Speaker Adrienne Jones rejected this

Court’s Bruen decision, calling it the “wrong answer”

and insisting that “[t]he Second Amendment permits

reasonable restrictions on the right to carry a

firearm.”4 Maryland Senator Jeff Waldstreicher

similarly bemoaned that, under the Second

Amendment, “anyone can get a gun and bring it

3

Marcia Kramer & Dick Brennan, “Fresh Off Primary Win, Gov.

Kathy Hochul Drives Right into Guns — Who Can Get Them and

Where They Can Take Them,” CBS NY (June 28, 2022).

4

Ariana Figueroa & Josh Kurtz, “U.S. Supreme Court Gun

Rights Decision Has Major Implications for Md. Concealed Carry

Law,” Maryland Matters (June 23, 2022).

4

anywhere. That is unacceptable.... It has forced our

hand here in the legislature, and we need to act.”5

And act, Maryland did. In response to Bruen, the

legislature enacted the “Gun Safety Act of 2023,”

banning the carry of firearms in “(1) an ‘area for

children and vulnerable individuals,’ (2) a ‘government

or public infrastructure area,’ and (3) a ‘special

purpose area.’” Kipke v. Moore, 2024 U.S. Dist. LEXIS

137003, at *6 (D. Md. Aug. 2, 2024). In practice, these

locations include: “schools and school grounds;

healthcare facilities; government buildings; stadiums;

museums; amusement parks; racetracks; casinos; and

locations selling alcohol for onsite consumption (bars

and restaurants).” Id. Coupled with the Act’s firearm

ban in private buildings absent the express consent of

the owner (id. at *7), the Act operated to broadly

prohibit firearms in all manner of public places

frequented by ordinary Americans “as they go about

their daily lives.” Wolford, 2026 U.S. LEXIS 2720, at

*8 (striking Hawaii’s private-property rule).

In 2023, Petitioners challenged several of the Act’s

provisions as well as other, prior-existing provisions of

Maryland law. Petitioners challenged Maryland’s ban

on firearms in “healthcare facilities; locations selling

alcohol; museums; … private property without the

owner’s consent[;] mass transit facilities[;] and State

parks, State forests, and State Chesapeake forest

lands....” Kipke, 2024 U.S. Dist. LEXIS 137003, at *9.

5

“Maryland Lawmakers Fast Track New Gun Control Bills After

Supreme Court Ruling,” Mike McKay for Senate (Jan. 31, 2023)

(emphasis added).

5

The district court hearing Petitioners’ case

consolidated it with a similar challenge later that year

and, on September 29, 2023, granted Petitioners’

motion for preliminary injunction only as to “locations

selling alcohol” and “private buildings or property

without the owner’s consent....” Kipke v. Moore, 695 F.

Supp. 3d 638, 663 (D. Md. 2023). Thereafter, on

summary judgment, the district court permanently

enjoined enforcement as to these locations with little

additional analysis, as “there ha[d] been no discovery

in this case, and the facts [we]re unchanged and

undisputed.” Kipke, 2024 U.S. Dist. LEXIS 137003, at

*15.

But the district court rejected Petitioners’

challenges as to other prohibited places. Central to

the district court’s adverse rulings was its temporal

focal point for historical analysis.

Rejecting

Petitioners’ arguments that Maryland’s firearm

regulations should be analyzed against Founding-era

tradition, the district court posited that “‘historical

sources from the time period of the ratification of the

Fourteenth Amendment are equally if not more

probative of the scope of the Second Amendment’s right

to bear arms as applied to the states....’” Kipke, 695 F.

Supp. 3d at 650 (emphasis added). Thus, the district

court upheld Maryland’s ban as to healthcare facilities

based exclusively on post-Reconstruction firearm

regulations enacted between 1870 and 1903, which

purportedly evince a historical principle of banning

firearms in places serving “educational, literary, or

scientific purposes....” Id. at 653. The same reasoning

applied to Maryland’s ban as to museums. See id. at

652.

6

Next, the district court upheld Maryland’s firearm

ban in state parks, claiming that “modern, expansive”

parks are disanalogous to Founding-era parks, and so

the latter’s lack of historical regulation would not be

dispositive. Id. at 654. Thus, the district court looked

to the Reconstruction era as the supposed advent of

so-called “modern” public parks, and relied on firearm

regulations spanning 1858 to 1886 to uphold

Maryland’s ban. Id. at 654-55. Notably, the district

court took no issue with banning firearms even in

“rural, more isolated state parks,” claiming these

locations likewise “were not established in significant

numbers until after the ratification of the Fourteenth

Amendment....” Id. at 655.

Finally, with respect to mass transit facilities, the

district court likened these locations to “schools and

government buildings,” on the theory that they are not

only “crowded spaces that serve vulnerable

populations like children and disabled people,” but also

“could … be categorized as government buildings,

which are established sensitive places.” Id. at 655.

Thus, the district court conducted no independent

historical analysis of mass transit facilities, relying

instead on this Court’s dicta in District of Columbia v.

Heller, 554 U.S. 570, 626 (2008).

On January 20, 2026, a divided panel of the

Fourth Circuit largely affirmed the district court. See

Kipke v. Moore, 165 F.4th 194 (4th Cir. 2026). As

relevant to Petitioners’ challenge, the panel affirmed

the district court’s holding that Maryland could ban

firearms in healthcare facilities, museums, parks, and

mass transit facilities. See id. at 204. The panel

7

likewise affirmed that Maryland’s firearm ban on

private properties held open to the public is

unconstitutional. See id. at 205. But, with respect to

locations that sell alcohol, the panel reversed the

district court and vacated its injunction, holding that

Maryland’s prohibition was constitutional. See id.

First, the panel observed that the vast majority of

Petitioners’ “claims [we]re facial challenges.” Id. at

206. Thus, the panel claimed that, in order to succeed

on their Second Amendment claims, Petitioners must

“‘establish that no set of circumstances exists under

which the Act would be valid.’” Id. This rigid

articulation of the facial-challenge standard

purportedly was drawn from United States v. Salerno,

481 U.S. 739 (1987).

Second, the panel described Bruen’s governing

framework as involving 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.’” Kipke, 165 F.4th at 206.

Critically, the panel claimed that this stage of the

inquiry was where analysis of Founding-era “original

public meaning” was appropriate.6 Id.

6

Contra Wolford, 2026 U.S. LEXIS 2720, at *14 (explaining that,

at the plain text, a court merely “must determine whether the law

before it … concern[s] any form of ‘Arms,’ i.e., any weapon

customarily used for offensive or defensive purposes”); see also id.

at *27 (“the question is simply whether a challenged law falls

within the Second Amendment’s ‘plain text,’” and other inquiries

8

Third, and in contrast, the panel endorsed

“look[ing] beyond the Founding Era to determine

whether our national tradition of firearm regulation

supports a government’s restriction today.” Kipke, 165

F.4th at 207. Bruen’s historical step, the panel opined,

involves “tak[ing] a ‘long view’ of history,” one that

considers “historical sources from throughout

American history, including well beyond the

Reconstruction Era.”

Kipke, 165 F.4th at 207

(emphasis added).

Fourth, the panel then engaged in a

“location-by-location analysis.” Id. at 208. With

respect to healthcare facilities, the panel asserted a

“historical tradition of proscribing guns in places that

serve vulnerable populations,” but offered no historical

firearm regulations in support. Id. at 216. Rather, the

panel merely adopted the Second Circuit’s conclusion

in Antonyuk v. James, 120 F.4th 941 (2d Cir. 2024),

which had announced the “vulnerable populations”

principle drawn from: (1) militia eligibility laws

spanning 1837 to 1843; and (2) laws “preventing the

carriage of firearms in places of education or school

rooms” spanning 1870 to 1890. Id. at 1011.

Next, as to museums, the panel again relied on

another circuit’s analysis, focusing on firearm

regulations from “‘[b]oth before and shortly following

the ratification of the Fourteenth Amendment’....”

“are out of place at Bruen’s first step”); id. at *37 n.1 (Barrett, J.,

concurring) (Courts cannot “smuggle additional limits, drawn

from our regulatory tradition, into the plain-text stage of the

inquiry. The answer is and always has been no.”).

9

Kipke, 165 F.4th at 217. Thus, looking to the Ninth

Circuit’s decision in Wolford v. Lopez, 116 F.4th 959,

987-88 (9th Cir. 2024), rev’d on other grounds, 2026

U.S. LEXIS 2720 (June 25, 2026), firearm bans in

purported “‘places for social gathering and

amusement’” spanning 1817 to 1875 provided

sufficient justification for Maryland’s ban as to

museums. Kipke, 165 F.4th at 217.

As for parks, the panel denied that these places

were known to the Founders.

Claiming that

Founding-era “green spaces” were “distinct” from

“modern” parks, the panel posited that, “‘as soon as

modern parks arose, municipalities and states enacted

laws prohibiting the carrying of firearms into

parks’....” Id. at 214. Thus, the panel relied on firearm

regulations ranging from 1858 to 1886 to uphold the

Maryland ban and likewise claimed that the “same

logic applies to Maryland’s limitations on guns in

forests.” Id. at 215. Indeed, because “Maryland’s state

forests and lands” apparently “promote a balanced

emphasis on economic, social, and environmental

goals,” the panel thought these remote areas to be

analogous to parks. Id.; cf. Bruen, 597 U.S. at 22

(rejecting “judge-empowering ‘interest-balancing’”).

Accordingly, the panel broadly endorsed banning

firearms in both “urban public parks” and “state

forests....” Kipke, 165 F.4th at 216.

With respect to mass transit facilities, the panel

upheld Maryland’s ban “under the proprietary

property doctrine.” Id. at 208. Under this theory, the

panel posited that, “when the government is acting in

its proprietary capacity or as a market participant,

10

rather than as a steward of public land, it may

prohibit guns without offending the Second

Amendment.” Id. at 209.7 Alternatively, the panel

asserted that Maryland’s ban “comports with our

history and tradition.” Id. at 210. Claiming a lack of

Founding-era analogues for public transit, the panel

“turn[ed] to the policies of privately-owned historic

railroad companies” from 1835 to 1900 as apparently

informing the permissible scope of governmental

regulations. Id.

Finally, the panel reversed the district court’s

injunction as to locations that sell alcohol, this time

beginning with Founding-era firearm regulations

prohibiting: (1) “the sale of liquor to members of the

militia”; (2) “‘gun use by drunken New Year’s Eve

revelers’”; and (3) “intoxicated individuals from using

firearms.” Id. at 217-18. The panel’s 19th-century

regulations consisted of two city laws “‘prohibit[ing]

retailers of liquor from keeping gunpowder’” and

regulations of carry while intoxicated. Id. at 218.

Aside from these alcohol regulations, the panel

claimed a broad “‘tradition of prohibiting firearms at

crowded places,’” citing firearm prohibitions in

“ballrooms and public assemblies” spanning 1817 to

1875. Id.

7

But see Wolford, 2026 U.S. LEXIS 2720, at *38-39 (Barrett, J.,

concurring) (noting that, “when a State enacts a property law that

regulates arms-bearing conduct, that law implicates the Second

Amendment”).

11

SUMMARY OF ARGUMENT

In a stunningly result-oriented decision, the

Fourth Circuit has upheld firearm bans both in

“crowded” areas (like restaurants) and in sparsely

populated areas (like forests). In other words, under

the opinion below, the Second Amendment applies

hardly anywhere. But if that were true, then there

would be no “general right” to public carry at all,

making the Fourth Circuit’s decision self-evidently

incorrect. In addition to rectifying this blatant

subversion of this Court’s precedents, the Petition

presents a strong case for this Court’s review. In

addition to those reasons, these amici offer two more.

First, this Court should grant the Petition to

resolve the circuit splits the panel below both created

and deepened. The Fourth Circuit now splits with the

Second on the question of whether governments may

ban firearms in so-called “rural” parks — places

located nowhere near crowded population centers,

where anti-gun judges’ ahistorical “crowded places”

rationales for banning firearms do not even apply.

Moreover, the opinion below has deepened a circuit

split on the applicable standard for assessing a facial

challenge under the Second Amendment. The Fourth

Circuit insists on an unyielding reading of Salerno’s

“no set of circumstances” language — one that this

Court has never endorsed. In contrast, other circuits

like the Second Circuit do not read Salerno so rigidly,

having adopted this Court’s “plainly legitimate sweep”

test. Granting the Petition and resolving these splits

would issue critical guidance to the increasingly

divergent lower courts.

12

Second, this case presents an ideal opportunity to

resolve the temporal question that this Court’s Second

Amendment decisions have left lingering. To be sure,

this Court has repeatedly emphasized the importance

of interpreting Bill of Rights provisions according to

Founding-era understandings. But without an express

answer to the 1791 versus 1868 question, the lower

courts have continued to justify firearm regulations

using increasingly late-19th-century and even 20th

century historical evidence. This Court should grant

the Petition to resolve that issue here, before courts

begin to justify 21st century laws with 21st century

analogues.

ARGUMENT

I.

THIS COURT’S REVIEW IS NECESSARY TO

RESOLVE IMPORTANT CIRCUIT SPLITS

ON THE SECOND AMENDMENT’S SCOPE

AND METHODOLOGY.

A. The Opinion Below Splits with the

Second Circuit, which Found No

Historical Tradition of Banning Firearms

in “Rural Parks.”

The Second Amendment guarantees “the right of

the people to keep and bear Arms.” In N.Y. State Rifle

& Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), this Court

explained that the Second and Fourteenth

Amendments guarantee Americans a “general right to

publicly carry arms for self-defense....” Id. at 31. And,

because “the Second Amendment has the same

meaning in all parts of the United States,” Wolford v.

13

Lopez, 2026 U.S. LEXIS 2720, at *29 (June 25, 2026),

this “general right” applies with equal force from sea

to shining sea, and the Second Amendment “cannot

give way to ‘the spirit of Aloha’ in Hawaii … any more

than it can yield to the spirit of the Big Apple … or the

Windy City....” Id. The same is true for Maryland.

But if the opinion below were correct, then the

sea-to-sea implications would be startling. Consider

Maryland’s broad firearm ban in all state parks and

forests. If Maryland’s ban is constitutional under the

Second Amendment’s national standard, then so too

must it be constitutional in a place like Alaska —

home to “some three-million acres” of state parkland,8

plus another two million-plus acres of state

forestland,9 that generally look like this:

8

“Division of Parks & Outdoor Recreation,” Alaska Department

of Natural Resources (last visited June 25, 2026).

9

“Alaska State Forests,” Alaska Department of Natural Resources

(last visited June 25, 2026).

14

See “Denali State Park,” Wikipedia (May 20, 2026).

And, because the Fourteenth Amendment does not

“‘appl[y] to the States only a watered-down, subjective

version of the individual guarantees of the Bill of

Rights,’” McDonald v. City of Chicago, 561 U.S. 742,

765 (2010), that means the panel’s holding below

would also apply on the 222 million acres of federal

lands in Alaska,10 like this:

See “Glacier Bay National Park and Preserve,”

Wikipedia (June 8, 2026).

It seems unlikely that the Founders would have

countenanced banning the public carry of firearms for

self-defense in vast, untouched, and unpopulated

wilderness areas such as these, where dangerous

animals such as moose, wolves, and grizzly, black, and

10

“Land Ownership in Alaska,” Alaska Department of Natural

Resources (Mar. 2000).

15

polar bears roam freely. Unsurprisingly, then, at least

one circuit has “doubt[ed] … a well-established

tradition of prohibiting firearm carriage in rural

parks....” Antonyuk v. James, 120 F.4th at 1025.

Indeed, in contrast to “urban parks,” the Second

Circuit explained that “rural parks” are often

“wilderness” and “contain[] ‘vast forests, rolling

farmlands, … mountains and valleys, lakes, ponds and

free-flowing rivers, private lands and public forest.’”

Id. As the Second Circuit concluded, New York’s

Adirondack Park fit that bill, and it “encompasses ‘onethird of the total land area of New York State’” (id.),

dwarfing “the island of Manhattan” (Bruen, 597 U.S.

at 31) by a factor of 407 to one. American wilderness

is as “nonsensitive” a place as it gets.

Yet under the rule adopted by the opinion below,

a complete gun ban on one-third of New York’s

landmass would “not run afoul of, or impede upon,

one’s Second Amendment rights.” Kipke, 165 F.4th at

216. Nor would a gun ban violate the Second

Amendment on a whopping 53 percent of Alaska’s total

area — 90 percent in the case of all publicly owned

land.11 In fact, the panel’s tortured logic could justify

banning firearms in about 40 percent of the United

States which is publicly owned — just for starters.12

Such a result is self-evidently incorrect, as “[t]o state

the analogy is to expose its deficiency.” United States

11

“State of Alaska Hazard Mitigation Plan,” Alaska Division of

Homeland Security and Emergency Management (2023).

12

https://headwaterseconomics.org/public-lands/protected-lands/

public-land-ownership-in-the-us/.

16

v. Hemani, 2026 U.S. LEXIS 2559, at *21-22 (June 18,

2026). This Court should grant the Petition to resolve

this circuit split and reaffirm that the Second

Amendment’s “general right” to public carry applies in

virtually all public spaces — not just “some streets.”

B. The Opinion Below Deepens an Existing

Circuit Split on the Applicable Standard

for Facial Challenges, and this Court’s

Intervention Is Necessary to Resolve this

Important Question.

Again splitting with the Second Circuit (and

others), the panel below posited that, “to succeed on a

facial challenge, plaintiffs must demonstrate that ‘no

set of circumstances exists under which the Act would

be valid’....” Kipke, 165 F.4th at 211. But this overly

stringent formulation, butchered from this Court's

decision in United States v. Salerno, 481 U.S. 739

(1987), would mean that even Heller and Bruen would

have been decided differently. Indeed, if it were the

case that literally any fringe hypothetical about just

one constitutional application of a law dooms a facial

challenge, then this Court got it wrong in both cases —

facially invalidating handgun restrictions with

arguably constitutional applications, such as against

dangerous, violent felons.

Few courts, including this Court, hold litigants to

such an exacting standard. As this Court explained in

City of Los Angeles v. Patel, 576 U.S. 409, 418 (2015),

“[l]egislation is measured for consistency with the

Constitution by its impact on those whose conduct it

affects.... The proper focus of the constitutional inquiry

17

is the group for whom the law is a restriction....” Thus,

a litigant’s facial challenge to a statute may succeed

when “a substantial number of its applications are

unconstitutional, judged in relation to the statute's

plainly legitimate sweep.” Wash. State Grange v.

Wash. State Republican Party, 552 U.S. 442, 449 n.6

(2008) (quotations omitted).

Fringe hypotheticals cannot save an overbroad

enactment. Were it otherwise, such an absurd rule

would “preclude facial relief in every [Second]

Amendment challenge to a statute authorizing

[infringements].” Patel at 417-18. And the result

would result in Second Amendment litigation where

legislatures “give the Judiciary uncut marble with

instructions to chip away all that does not resemble

David.” Percoco v. United States, 598 U.S. 319, 337

(2023) (Gorsuch & Thomas, JJ., concurring in the

judgment). That is not the law.

For this reason, this Court has clarified that, “[t]o

the extent we have consistently articulated a clear

standard for facial challenges, it is not the Salerno

formulation, which has never been the decisive factor

in any decision of this Court, including Salerno

itself....” City of Chicago v. Morales, 527 U.S. 41, 55

n.22 (1999). Accordingly, this Court has declined to

apply the Salerno formulation in all manner of First

and Fourth Amendment cases. See, e.g., Moody v.

NetChoice, LLC, 603 U.S. 707, 723 (2024) (analyzing

whether “the law lacks a ‘plainly legitimate sweep’”);

Americans for Prosperity Found. v. Bonta, 594 U.S.

595, 615 (2021) (same); Patel, 576 U.S. at 417

(rejecting the argument that “facial challenges to

18

statutes authorizing warrantless searches must fail

because such searches will never be unconstitutional

in all applications”).13 Of course, neither will a

sweeping gun ban.

Following this Court’s lead, rigid application of the

Salerno formulation has become a minority view

among the circuits. In fact, only “[f]our circuits …

apply Salerno alone; [three] have, with some

exceptions, quietly followed the Supreme Court’s lead

in articulating the Salerno and Washington State

Grange standards as alternatives; and six circuits …

have explicitly weakened or abandoned Salerno”

altogether. Mont. Med. Ass’n v. Knudsen, 119 F.4th

618, 633 (9th Cir. 2024) (McKeown, J., concurring).

And in the Second Amendment context, the

opinion below splits with the Second Circuit, which

has taken the alternative approach: “To mount a

successful facial [Second Amendment] challenge, the

plaintiff must establish that no set of circumstances

exists under which the law would be valid, or show

that the law lacks a plainly legitimate sweep.”

Antonyuk, 120 F.4th at 983 (cleaned up, emphasis

added). A law which, expanded to the national level,

would ban the carrying of firearms in 40 percent of the

United States — just to start — certainly seems to lack

a plainly legitimate sweep.

13

See also Bruen, 597 U.S. at 70 (“The constitutional right to bear

arms in public for self-defense is not ‘a second-class right, subject

to an entirely different body of rules than the other Bill of Rights

guarantees.’”).

19

Resolution of this issue is especially important in

the Second Amendment context. As these amici know

all too well, anti-gun litigants have sought to

weaponize a rigid Salerno formulation to uphold all

manner of overbroad and ahistorical firearm

regulations. See, e.g., Brief of Appellants at 13,

Hughes v. Lee, No. W2025-01327-COA-R3-CV (Tenn.

Ct. App. Jan. 6, 2026 (resisting a facial challenge to

Tennessee’s broad prohibition on all public carry by

theorizing about “the carry of grenades and bombs in

the middle of a city”); Defendant Katz’s Opposition to

Motion for Preliminary Injunction at 6, Crump v. Katz,

No. CL26000201-00 (Va. Cir. Ct. Lancaster Cnty. June

8, 2026) (resisting a facial challenge to Virginia’s

sweeping ban on ubiquitous “assault firearms” by

theorizing about the attachment of “grenade

launchers, devices designed for wide-area destruction

at long range”).

This Court should grant the Petition to resolve this

important circuit split and preserve Bruen’s stringent

test against further encroachment in the courts below.

20

II. THIS CASE PRESENTS AN IDEAL

OPPORTUNITY TO CLARIFY THE

OPERATIVE TIME PERIOD FOR

HISTORICAL ANALYSIS.

A. Heller, Bruen, Rahimi, Hemani, and

Wolford Left Unresolved the Appropriate

Temporal Focal Point for Second

Amendment Analysis.

Although acknowledging “an ongoing scholarly

debate on whether courts should primarily rely on the

prevailing understanding” when the Fourteenth

Amendment was ratified in 1868, or when the Second

Amendment was ratified in 1791, Bruen ultimately left

the question unresolved “because … the public

understanding … in both 1791 and 1868 was … the

same....” Bruen, 597 U.S. at 37-38. But Justice

Barrett anticipated that this question “might make a

difference in another case,” explaining that “1791 is

the benchmark” and “Reconstruction-era history” alone

is “simply too late” and “too little.” Id. at 82 (Barrett,

J., concurring). Thus cautioning the lower courts,

Justice Barrett rejected any “freewheeling reliance on

historical practice from the mid-to-late 19th

century....” Id. at 83.

But following Bruen, the lower courts have failed

to coalesce on this temporal question and, like Bruen,

this Court’s subsequent Second Amendment decisions

have not “resolv[ed] the dispute.” Rahimi, 602 U.S. at

692 n.1; see also Hemani, 2026 U.S. LEXIS 2559, at

*17 n.3; Wolford, 2026 U.S. LEXIS 2720, at *44 n.7

(Barrett, Thomas & Gorsuch, JJ., concurring). And

21

like Justice Barrett did in Bruen, Justice Jackson has

called the temporal question an “[e]xtremely pertinent

inquir[y]” which “await[s] resolution....” Rahimi, 602

U.S. at 746 n.4 (Jackson, J., concurring). Indeed, there

is a multi-way circuit split on the question, and the

district courts are in disarray, with divergent

approaches continuing to multiply as to which

historical sources to use.

This case presents an excellent vehicle for this

Court to resolve the debate between 1791 and 1868.

Indeed, the panel below relied almost exclusively on

Reconstruction-era history to uphold much of

Maryland’s public carry ban. Strikingly, the Fourth

Circuit has endorsed analysis of “historical sources

from throughout American history, including well

beyond the Reconstruction Era.” Kipke, 165 F.4th at

207 (emphasis added); cf. Bruen, 597 U.S. at 66 n.28

(“As with the[] late-19th-century evidence, the 20thcentury evidence … does not provide insight into the

meaning of the Second Amendment when it

contradicts earlier evidence.”). Resolution of the

temporal question not only will correct the panel’s

errors below, but also will provide critical guidance to

innumerable lower courts analyzing similar

challenges.

B. This Court’s Second Amendment

Decisions Indicate that 1791 Is the

Proper Focal Point.

Although Bruen found it unnecessary to resolve

definitively the temporal “scholarly debate,” that does

not mean the lower courts lack guidance. Indeed,

22

Heller, McDonald, Bruen, Rahimi, Hemani, and

Wolford each demonstrate that the Second

Amendment should be construed as originally

understood in 1791. To the extent that earlier or later

sources have been utilized, it is only to confirm a

tradition that existed at the Founding. As Bruen

stated, this is the Court’s “general[] assum[ption].” Id.

at 37.

Heller explained that “[c]onstitutional rights are

enshrined with the scope they were understood to have

when the people adopted them....” 554 U.S. at 634-35;

see also id. at 614 (post-Civil War “discussions took

place 75 years after the ratification of the Second

Amendment,” and thus “do not provide as much

insight into its original meaning as earlier sources”).

Therefore, after primarily examining Founding-era

sources (id. at 582-603), the Court considered sources

“through the end of the 19th century” only to confirm

what already had been established (id. at 605-19).

Thus, in Heller, as in Bruen, the tradition of both time

periods was “the same....” Bruen, 597 U.S. at 38.

McDonald provides further confirmation, rejecting

“‘the notion that the Fourteenth Amendment applies

to the States only a watered-down, subjective version

of the individual guarantees of the Bill of Rights....’”

561 U.S. at 765.14 Like Heller, McDonald examined

“[e]vidence from the period immediately following the

14

Accord Ramos v. Louisiana, 590 U.S. 83, 93 (2020) (“This Court

has long explained, too, that incorporated provisions of the Bill of

Rights bear the same content when asserted against States as

they do when asserted against the federal government.”).

23

ratification of the Fourteenth Amendment,” but only

because it “confirms that the right to keep and bear

arms was considered fundamental.” Id. at 776; see

also id. at 780.

Bruen further confirmed that 1791 is the proper

focal point for Second Amendment interpretation.

First, the Court described the Second Amendment as

being “‘intended to endure for ages to come,’” noting

that “its meaning is fixed according to the

understandings of those who ratified it....” 597 U.S. at

28. Second, the Court reaffirmed that constitutional

rights have the same meaning “against the States …

as against the Federal Government.” Id. at 37. Third,

the Court noted that “we have generally assumed that

the scope of the protection applicable to the … States

is pegged to … 1791.” Id. Fourth, the Court again

made clear that 19th-century history “‘do[es] not

provide as much insight into [] original meaning as

earlier sources.’” Id. at 36. And fifth, the Court

explained that, to the extent 19th-century evidence is

to be consulted at all, it only provides “‘mere

confirmation of what the Court thought had already

been established.’” Id. at 37.

Rahimi, too, focused entirely on 1791. Cf. Rahimi,

602 U.S. at 714 (Gorsuch, J., concurring) (“following

exactly the path we described in Bruen”). As Rahimi

explained, “[s]ince the founding, our Nation’s firearm

laws have” supported temporary disarmament based

on individualized dangerousness. Id. at 690. Indeed,

Rahimi’s Founding-era focus was pervasive, extending

to both concurrences and dissent. See, e.g., id. at 710

(Gorsuch, J., concurring) (“‘admitting only those

24

exceptions established at the time of the founding’”);

id. at 705 (Sotomayor, J., concurring) (discussing

issues “‘persist[ing] since the 18th century’”); id. at 737

(Barrett, J., concurring) (Second Amendment’s

“meaning … is fixed at the time of its ratification”); id.

at 750 (Thomas, J., dissenting) (noting “a general

societal problem that has persisted since the 18th

century”).

Hemani and Wolford similarly focused on the

Founding. See Hemani, 2026 U.S. LEXIS 2559, at *17

(“Around the time of the founding and for decades

following it....”); Wolford, 2026 U.S. LEXIS 2720, at

*35-36 (rejecting reliance on a racist Reconstructionera firearm regulation). This Court’s precedents thus

provide unwavering confirmation that the Second

Amendment is to be understood based on the original

public understanding of the right when it was adopted

in 1791.

C. The Lower Courts Are Growing

Increasingly Divergent on the Temporal

Issue.

In stark contrast to this Court’s consistent

Founding-era emphasis, the panel below primarily

relied not on the Founding, and not even on

Reconstruction, but rather on any late-coming time

period that supported the Maryland gun control at

issue. Thus, ahistorical firearm regulations enacted as

recently as 1900 saw relevance in the panel’s analysis.

See Kipke, 165 F.4th at 210. Other courts have

strayed similarly far afield from the Founding era. See

Wolford v. Lopez, 116 F.4th 959, 982 (9th Cir.

25

2024) (citing 23 analogues from 1872 to 1899);

Antonyuk v. James, 120 F.4th 941, 987 (2d Cir. 2024)

(1883 to 1892); Bevis v. City of Naperville, 85 F.4th

1175, 1201 (7th Cir. 2023) (1884 to 1986).

Absent this Court’s intervention, result-oriented

lower courts have made clear that they will continue to

drift farther and farther afield from the Founding —

perhaps until they circularly begin justifying 21stcentury firearm regulations with 21st-century

analogues. The panel opinion below is just the latest

outbreak of this “virus that [is] spread[ing]” and must

be “promptly eliminated.” Coal. for TJ v. Fairfax Cnty.

Sch. Bd., 146 S. Ct. 541, 545 (2024) (Alito & Thomas,

JJ., dissenting from denial of certiorari). This Court

should grant certiorari to clarify that 1791, not 1868,

is the singular focal point for Second Amendment

analysis.

CONCLUSION

For the foregoing reasons, the Petition should be

granted.

26

Respectfully submitted,

JOHN I. HARRIS III

ROBERT J. OLSON*

SCHULMAN, LEROY &

WILLIAM J. OLSON

BENNETT, P.C.

JEREMIAH L. MORGAN

3310 West End Avenue WILLIAM J. OLSON, P.C.

Ste. 460

370 Maple Ave. W., Ste. 4

Nashville, TN 37203

Vienna, VA 22180

(703) 356-5070

OLIVER M. KRAWCZYK

wjo@mindspring.com

AMBLER LAW OFFICES, *Counsel of Record

LLC

115 S. Hanover St.

Ste. 100

Attorneys for Amici Curiae

Carlisle, PA 17013

June 29, 2026