Petition for Writ of Certiorari — Brett Christian, et al., Petitioners v. Steven G. James, Superintendent, New York State Police, et al.
Supreme Court briefSep 16, 2026
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No. _________
In the
Supreme Court of the United States
__________________________________________
BRETT CHRISTIAN, FIREARMS POLICY COALITION, SECOND
AMENDMENT FOUNDATION,
Petitioners,
v.
STEVEN G. JAMES, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF THE NEW YORK STATE POLICE, MICHAEL J.
KEANE, IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY
FOR THE COUNTY OF ERIE, NEW YORK,
Respondents.
__________________________________________
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Second Circuit
__________________________________________
PETITION FOR WRIT OF CERTIORARI
__________________________________________
NICOLAS J. ROTSKO
FLUET & ASSOCIATES
PLLC
1751 Pinnacle Drive
Suite 1000
Tysons, VA 22102
(703) 590-1234
nrotsko@fluet.law
September 16, 2026
DAVID H. THOMPSON
Counsel of Record
PETER A. PATTERSON
WILLIAM V. BERGSTROM
ATHIE O. LIVAS
COOPER & KIRK, PLLC
1523 New Hampshire
Avenue, N.W.
Washington, D.C. 20036
(202) 220-9600
dthompson@cooperkirk.com
Counsel for Petitioners
i
QUESTIONS PRESENTED
1.
Whether New York’s ban on the possession of
firearms in public parks violates the Second and Fourteenth Amendments.
2.
Whether the Second Circuit erred in rejecting
Petitioners’ challenge to New York’s undifferentiated
ban on possession of firearms in public parks based on
a conclusion that history would support banning possession of firearms in urban parks.
3.
Whether the Second Circuit erred in holding
that firearms laws from the latter half of the 19th century can establish a tradition of regulation limiting
the scope of the right to keep and bear arms in the
absence of historical support from the Founding era.
ii
PARTIES TO THE PROCEEDING
Petitioners Brett Christian, Firearms Policy
Coalition, Inc., and the Second Amendment Foundation were Plaintiffs before the District Court and the
Plaintiff-Appellants in the Court of Appeals.
Respondents Steven G. James, in his official capacity as Superintendent of the New York State Police, and Michael J. Keane, in his official capacity as
District Attorney for the County of Erie, New York
were Defendants before the District Court and Defendants-Appellees before the Court of Appeals.
iii
CORPORATE DISCLOSURE STATEMENT
Petitioner Firearms Policy Coalition, Inc., does
not have a parent corporation, and no publicly held
corporation owns 10% or more of its stock.
Petitioner Second Amendment Foundation
does not have a parent corporation, and no publicly
held corporation owns 10% or more of its stock.
iv
STATEMENT OF RELATED PROCEEDINGS
This case arises from the following proceedings:
•
Christian et al. v. James et al., Nos. 24-2847,
25-384 (2d Cir. May 18, 2026)
•
Christian et al. v. James et al., No. 22-CV-695
(W.D.N.Y. Jan. 8, 2025)
•
Antonyuk v. Chiumento, Nos. 22-2908 (L), 222972 (Con); 22-2933; 22-2987; 22-3237 (2d Cir.
2023)
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).
v
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 .......................................................... 4
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ..................................................... 4
STATEMENT .............................................................. 4
I.
New York Bans the Possession of Arms in
All Public Parks ........................................ 4
II.
Proceedings Below .................................... 5
REASONS FOR GRANTING THE PETITION ....... 13
I.
The Court Should Resolve the Significant
Circuit Splits and Confusion over Threshold Second Amendment Doctrinal Questions Presented by This Petition. ........... 13
A. This Court Should Resolve the
Split over How to Approach Facial
Challenges in Second Amendment
Cases. ............................................... 13
B. This Court Should Resolve the Wide
Circuit Split Over the Time Periods for
Historical Analogy under Bruen ..... 18
vi
II.
The Second Circuit’s Decision Upholding
New York’s Ban on All Possession of
Arms In Public Parks Violates this
Court’s Precedent. .................................. 23
III.
The Questions Presented Are Exceptionally Important And Cleanly Presented.. 29
CONCLUSION .......................................................... 31
APPENDIX A — OPINION OF THE UNITEDSTATES COURT OF APPEALS FOR THE
SECOND CIRCUIT, FILED MAY 18, 2026 .. 1a
APPENDIX B — JUDGMENT OF THE UNITEDSTATES COURT OF APPEALS FOR THE
SECOND CIRCUIT, FILED MAY 18,
2026 ............................................................... 67a
APPENDIX C — DECISION AND ORDER OF THEUNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF NEW YORK,
FILED JANUARY 8, 2025 ........................... 70a
APPENDIX D — RELEVANT STATUTORY PROVISION, NY PENAL L. § 265.01-e .................. 74a
vii
TABLE OF AUTHORITIES
CASES
PAGE
Antonyuk v. Chiumento,
89 F.4th 271 (2d Cir. 2023) .................... 5, 6, 21
Antonyuk v. James,
120 F.4th 941 (2d Cir. 2024) .................. 5, 6, 30
Antonyuk v. James,
144 S. Ct. 2709 (2024) ...................................... 5
Antonyuk v. James,
145 S. Ct. 1900 (2025) .................................... 30
Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Att’y Gen.
N.J.,
183 F.4th 211 (3d Cir. 2026) .................... 19, 20
Baird v. Bonta,
163 F.4th 723 (9th Cir. 2026) ......................... 16
Barnett v. Raoul,
180 F.4th 1035 (7th Cir. 2026) ....................... 22
City of Los Angeles v. Patel,
576 U.S. 409 (2015)......................................... 15
District of Columbia v. Heller,
554 U.S. 570 (2008)................................... 15, 16
Ezell v. City of Chicago,
651 F.3d 684 (7th Cir. 2011) .................... 21, 22
Grayned v. City of Rockford,
408 U.S. 104 (1972)........................................... 3
Illinois v. Gates,
462 U.S. 213 (1983)......................................... 29
viii
Jones v. Bonta,
34 F.4th 704 (9th Cir. 2022) ..................... 24, 25
Jones v. Bonta,
47 F.4th 1124 (9th Cir. 2022) ................... 24, 25
Kipke v. Moore,
165 F.4th 194 (4th Cir. 2026) ......................... 26
Knife Rights, Inc. v. Bonta,
165 F.4th 1330 (9th Cir. 2026) ....................... 14
Knife Rights, Inc. v. Bonta,
182 F.4th 797 (9th Cir. 2026) ................... 14, 18
Koons v. Att’y Gen. N.J.,
156 F.4th 210 (3d Cir. 2025) .................... 27, 31
Koons v. Att’y Gen. N.J.,
162 F.4th 100 (3d Cir. 2025) .......................... 27
LaFave v. County of Fairfax, Virginia,
149 F.4th 476 (4th Cir. 2025) ................... 14, 15
Moore v. Madigan,
702 F.3d 933 (7th Cir. 2012) .......................... 22
N.Y. State Rifle & Pistol Ass’n v. Bruen,
597 U.S. 1 (2022) ........ 16, 17, 18, 22, 23, 28, 29
NRA v. Bondi,
133 F.4th 1108 (11th Cir. 2025) ..................... 21
People v. Burns,
79 N.E.3d 159 (Ill. 2015) ................................ 15
Reese v. Bureau of Alcohol, Tobacco, Firearms, & Explosives,
127 F.4th 583 (5th Cir. 2025) ......................... 20
Steele v. City of Boston,
128 Mass. 583 (1880) ...................................... 26
ix
United States v. Canada,
123 F.4th 159 (4th Cir. 2024) ......................... 30
United States v. Connelly,
117 F.4th 269 (5th Cir. 2024) ......................... 20
United States v. Harrison,
153 F.4th 998 (10th Cir. 2025) ....................... 21
United States v. Hembree,
165 F.4th 909 (5th Cir. 2026) ......................... 30
United States v. Rahimi,
602 U.S. 680 (2024)....................... 17, 18, 19, 24
Wolford v. Lopez,
116 F.4th 959 (9th Cir. 2024) ............... 9, 21, 30
Wolford v. Lopez,
125 F.4th 1230 (9th Cir. 2025) ................. 27, 31
Wolford v. Lopez,
146 S. Ct. 2032 (2026) ........ 4, 10, 22, 28, 29, 30
Wolford v. Lopez,
146 S. Ct. 79 (2025) .................................... 9, 10
Wolford v. Lopez,
184 F.4th 1167 (9th Cir. 2026) ....................... 21
Worth v. Jacobson,
108 F.4th 677 (8th Cir. 2024) ......................... 20
Worth v. Jacobson,
145 S. Ct. 1924 (2025) .................................... 20
STATUTES
N.Y. ENV’T CONSERV. LAW
§ 9-0101(6)......................................................... 5
N.Y. PENAL LAW
§ 265.01-e(2)(d) ................................................. 5
x
OTHER AUTHORITIES
Br. for Pls.-Appellants, Christian v. James, No. 25384 (2d Cir. Mar. 21, 2025), Doc. 26.1 ........... 28
Decision & Order, Christian v. James, No. 22-CV-695
(W.D.N.Y. Nov. 22, 2022), Doc. 49 ................... 5
John Adams, Adams’ Argument for the Defense: 3–4
December 1770, NAT’L ARCHIVES FOUNDERS
ONLINE, https://perma.cc/C82Q-WT7R .... 25, 26
MCKINNEY’S CONSOL. LAWS OF N.Y. ANN., ch. 37,
1447 (2022)........................................................ 4
Pls.’ Opp. to Defs.’ Mot. for Summ. J., Christian v.
James, No. 22-CV-695 (W.D.N.Y. July 15,
2024), Doc. 81 .................................................... 6
Slip Op., Application of 18 U.S.C § 930(a) to Post Offices, 50 Op. O.L.C. __ (Aug. 12, 2026)........... 28
1
PETITION FOR WRIT OF CERTIORARI
This petition presents the opportunity to resolve
multiple Circuit splits on critical Second Amendment
questions arising from the lower Court’s application
(and misapplication) of this Court’s precedents.
New York has criminalized the peaceable possession of arms in every public park across the State,
from Central Park in Manhattan to bike trails in Buffalo and even remote state forests and recreational areas. Although the question of arms in public parks is
itself cert-worthy, this case also presents two fundamental methodological questions flowing directly
from this Court’s Second Amendment precedents
which have caused widespread confusion and error in
the lower courts.
On the first of these methodological questions,
the Second Circuit below, along with the Fourth and
Ninth Circuits, have analyzed “facial” Second Amendment challenges in a manner that is incompatible
with this Court’s precedents and that effectively renders firearm laws immune from facial attack. Rather
than analyzing whether the rule established by a challenged law violates the Second Amendment, these
courts, misconstruing this Court’s decision in Rahimi,
have asked instead whether any of the conduct swept
in by a challenged law potentially could be regulated
consistent with the Second Amendment, even if the
defining character of that conduct is not specifically
targeted by the challenged law. And if the answer is
yes, they have rejected the plaintiff’s challenge. In the
decision below, for example, rather than asking
whether history would support banning firearms in
parks, the Second Circuit concluded that it was
enough to hold that history supports banning firearms
2
in urban parks. While Petitioners disagree with the
historical premise, even granting it the conclusion is
incorrect—to support a flat ban on possession of firearms in parks, New York must establish a historical
basis for banning firearms in parks. By contrast, the
Illinois Supreme Court has taken an approach that is
more faithful to this Court’s decisions.
On the second of these methodological issues, the
Second, Seventh, and Ninth Circuits permit regulations from the latter half of the nineteenth century to
satisfy the step two historical inquiry under Bruen
even when that evidence conflicts with Founding-era
evidence. The Third, Fifth, and Eighth Circuits, on the
other hand, have prioritized the historical understanding at the Founding. In both Bruen and Rahimi,
this Court identified (but had no reason to resolve)
whether courts should prioritize 1791 or 1868 when
the evidence from those two historical touchstones
point in opposite directions. Below, the Second Circuit
privileged regulations from the latter half of the nineteenth century despite the acknowledged absence of
any Founding-era tradition of banning arms in public
parks. The court was untroubled because the Second
Circuit, along with some of its sister Circuits, puts
such evidence on (at least) equal footing with Founding-era evidence.
Finally, the lower courts have struggled to define
whether and how state and local governments may
prohibit the peaceable carriage of arms in the ordinary public spaces of daily American life. This case
provides a case in point, where the Second Circuit upheld a sweeping ban on peaceable possession in all
public parks, including wide swaths of rural space. As
this Court repeatedly has explained, “parks . . . have
3
immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes
of assembly, communicating thoughts between citizens, and discussing public questions.” Grayned v.
City of Rockford, 408 U.S. 104, 115 (1972) (quoting
Hague v. Comm. for Indus. Org., 307 U.S. 496, 515
(1939)). There is no historical basis for barring the
peaceable carry of arms in such quintessentially public places.
The questions presented are critically important
and likely to recur. Indeed, there are few Second
Amendment cases where at least one will not be at issue. Whether facial challenges are realistically available, whether Founding-era or later history controls,
and whether States may declare vast categories of ordinary public spaces subject to disarmament will define the right to keep and bear arms for millions of
Americans. The lower courts have openly acknowledged confusion over these issues, and the resulting
conflicts have produced fundamentally differing realities for the federal right in different jurisdictions.
Only this Court can resolve whether the Second
Amendment’s promise will apply to all Americans
guaranteed the fundamental right it protects. This
Petition cleanly presents all three questions. This
Court should take the opportunity to provide muchneeded clarity and grant the petition.
OPINIONS BELOW
The opinion of the court of appeals is reported at
176 F.4th 189, 191 (2d Cir. 2026), and is reproduced
at Pet.App.1a–37a. The memorandum opinion of the
district court is unreported but can be found at No. 22-
4
CV-695 (JLS), 2025 WL 50413, (W.D.N.Y. Jan. 8,
2025), and is reproduced at Pet.App.70a–73a.
JURISDICTION
The court of appeals issued its judgment on May
18, 2026. Petitioners were granted a 30-day extension
of time to file this Petition for Writ of Certiorari. The
jurisdiction of this Court is invoked under 28 U.S.C. §
1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The relevant constitutional provisions and New
York statute are reproduced in the Appendix beginning at Pet.App.74a.
STATEMENT
I.
New York Bans the Possession of
Arms in All Public Parks.
Immediately after this Court’s decision in Bruen
invalidated New York’s longstanding method for nullifying the right to carry by restricting access to carry
permits, the State of New York switched tactics and
enacted sweeping restrictions on where a permitted
individual lawfully may carry a firearm in public. See
MCKINNEY’S CONSOL. LAWS OF N.Y. ANN., ch. 37, 1447
(2022). Where before a permit was hard to get but offered broad carry rights, now permits are rightfully
accessible but offer no reprieve from the “tight web of
laws that severely restricts the carrying of firearms
for self-defense” based on location. Wolford v. Lopez,
146 S. Ct. 2032, 2046 (2026).
Among the changes worked by the so-called Concealed Carry Improvement Act (“CCIA”), New York
declared a wide variety of places “sensitive” and
5
banned the carriage of firearms in those places, even
by individuals otherwise licensed to lawfully carry in
the State. This appeal specifically involves a challenge
to N.Y. PENAL LAW § 265.01-e(2)(d), Pet.App.74a–75a,
which banned carrying firearms in public parks, only
excluding privately held land contained within a public park or “forest preserve.” N.Y. ENV’T CONSERV. LAW
§ 9-0101(6) (defining “forest preserve”).
II.
Proceedings Below.
A. Petitioners challenged New York’s ban shortly
after its enactment. They moved for a preliminary injunction and, following expedited briefing, the district
court granted Plaintiffs’ motion in part, preliminarily
enjoining enforcement of another aspect of New York’s
broad ban on the possession of arms, and reserving
ruling on the ban’s application as to parks. See Decision & Order, at 26–27, Christian v. James, No. 22CV-695 (W.D.N.Y. Nov. 22, 2022), Doc. 49.1
The State appealed, and the Second Circuit issued a single opinion addressing four appeals from
district court injunctions implicating the various portions of the CCIA (which Petitioners had also challenged below), including the ban on possession in
parks. See generally Antonyuk v. Chiumento, 89 F.4th
271 (2d Cir. 2023), cert. granted, judgment vacated sub
nom., Antonyuk v. James, 144 S. Ct. 2709 (2024), reinstated in part, Antonyuk v. James, 120 F.4th 941 (2d
1 Petitioners also challenged other aspects of New York’s
law, although those provisions are not the subject of this Petition.
Namely, Petitioners challenged a provision that, like the Hawaii
law at issue in Wolford, presumptively banned the carriage of
firearms on private property open to the public and a provision
banning the carry of firearms on public transportation.
6
Cir. 2024). As relevant here, the court reversed the decision of another lower court that had preliminarily
enjoined the ban on possession of arms in parks. Id. at
363–64. The Second Circuit explained: “We agree with
the State that § 265.01-e is within the Nation’s history
of regulating firearms in quintessentially crowded areas and public forums, at least insofar as the regulation prohibits firearms in urban parks, though not
necessarily as to rural parks.” Id. at 356 (emphasis in
original). The Second Circuit found this enough to uphold New York’s ban in full: “Considering, then, that
the law has a plainly legitimate sweep as to urban
parks, the facial challenge fails notwithstanding
doubt that there is historical support for the regulation of firearms in wilderness parks, forests, and reserves.” Id.
After the decision in Antonyuk, the parties in this
case then filed cross-motions for summary judgment
on the ban on possession in parks along with other issues. In addition to maintaining their challenge to the
full scope of New York’s Parks Ban, Petitioners also
argued that the ban should be enjoined at least with
respect to non-urban parks. See, e.g., Pls.’ Opp’n to
Defs.’ Mot. for Summ. J., at 4–8, 18, 19, Christian v.
James, No. 22-CV-695 (W.D.N.Y. July 15, 2024), Doc.
81. The district court granted the State’s motion for
summary judgment on the constitutionality of the
Parks Ban and denied Plaintiffs’ motion on the same
issue in light of Second Circuit precedent.
Notably, the district court opined that “[b]ased on
the record and arguments in this case, the right to
keep and bear arms enshrined in the Second Amendment would require this Court—as counseled by the
Supreme Court’s Second Amendment decisions—to
7
declare the parks issue in Plaintiffs’ favor.”
Pet.App.71a. But it viewed itself as bound by Second
Circuit precedent to the contrary. Pet.App.72a. The
district court entered judgment on January 8, 2025.
Pet.App.73a. Plaintiffs timely appealed.
The district court did not substantively address
Petitioners’ argument that, at a minimum, New
York’s ban was unconstitutional with respect to nonurban, stating that “Plaintiffs here may press that
distinction further on appeal[.]” Pet.App.72a.
B. On appeal, the Second Circuit ruled for the
State because, in its view, New York “carried its burden of showing that regulation is consistent with our
Nation’s historical tradition of banning gun possession in urban public parks.” Pet.App.3a–4a. The court
“decline[d] to address any as-applied challenge to the
Public Parks Provision, to the extent it applies to rural parks,” because, in its view, “Plaintiffs failed to
raise that challenge in the district court.” Pet.App.4a.
The court later acknowledged that “Plaintiffs argued
in their summary judgment motion” that they pressed
“an as-applied challenge against the Public Parks Provision as it applied to rural parks.” Pet.App.7a–8a.
And “the district court declined to consider that claim
and instead stated that it ‘is best presented to the Second Circuit for resolution.’” Pet.App.8a (alteration
omitted).
Before turning to the inquiry commanded by
Bruen, the Second Circuit offered what turned out to
be an important holding on the timing of historical evidence. It admonished that “courts must be particularly attuned to the reality that the issues we face today are different than those faced in medieval England, the Founding Era, the Antebellum Era, and
8
Reconstruction.” Pet.App.9a–10a (citation omitted).
Thus, the Court concluded, “a lack of similar historical
regulations during one or more of those time periods
may not be reliably dispositive in Second Amendment
challenges to laws addressing modern concerns.”
Pet.App.10a (internal quotation marks and citation
omitted). The Court previewed that an absence of historical evidence, for example, “may simply be the natural consequence of the absence of the particular issue
during those time periods.” Id. (internal quotation
marks and citation omitted). It is “not necessarily the
case,” the Second Circuit insisted, “if no positive legislation from a particular time or place is in the record,
it must be because the legislators then or there
deemed such regulation inconsistent with the right to
bear arms.” Id. (citation omitted) The Second Circuit
also “underscored that it is not dispositive whether
comparable historical regulations exist in significant
numbers.” Id. (internal quotation marks and citation
omitted).
As to which time period ultimately is controlling,
the Second Circuit reasoned that multiple time periods were “focal points.” Pet.App.11a. These include
both “the prevailing understanding of the right to bear
arms in 1868 and 1791” and “time periods in close
proximity to 1791 and 1868.” Id. (citation omitted).
The Court “clarified that, even where there is an absence of Founding-era evidence supporting a historical tradition, we may focus on later evidence, especially from the Reconstruction era, to ascertain the
scope of the Second Amendment right.” Id. (internal
quotation marks and citation omitted). “[T]his is so,”
the Court insisted, “because the dearth of evidence
does not point with some certainty in one direction or
another as to the existence of a historical tradition.”
9
Id. (internal quotation marks and citation omitted).
So, “[m]aking conclusions based on later evidence
therefore cannot be characterized as contradicting the
understanding of the right in 1791.” Id. (emphasis in
original, internal quotation marks and citation omitted). Arriving finally at this Court’s precedent, the
Second Circuit asserted that “relying chiefly on later
history is perfectly consistent with the originalist and
liquidation theories espoused by the Supreme Court
in Heller and Bruen.” Id. (cleaned up and citation
omitted).
“Bearing these principles in mind,” the Second
Circuit analyzed the history surrounding the possession of arms in public parks. The court recognized
“more than sixty regulations from cities and towns in
more than twenty States, spanning from 1858 to the
early 1900s, that expressly forbade carriage of firearms in public parks.” Pet.App.12, 26a–27a. At the
same time, it discounted the absence of any Foundingera support by concluding that the lack of similar regulation was a “natural consequence of the fact that
modern urban public parks in the mold of Olmstead’s
Central Park did not yet exist in significant numbers
before that time.” Pet.App.35a (cleaned up). Although
it acknowledged that Founding-era “urban spaces,
such as the Boston Common, . . . were used for recreational purposes,” those early green spaces were
multi-use and not “dedicated spaces for peaceful recreation and quiet contemplation of natural scenery”
like Central Park, and so the fact that guns were
freely carried in them at the Founding did not matter.
Pet.App.35a–36a. The court concluded that “modern
parks differ from the green spaces that existed in
1791.” Pet.App.36a. (alteration omitted) (quoting Wolford v. Lopez, 116 F.4th 959, 982 (9th Cir. 2024), cert.
10
granted in part, 146 S. Ct. 79 (2025), rev’d and remanded, 146 S. Ct. 2032 (2026)).
The Second Circuit considered and rejected the
argument “that these regulations, which began to proliferate starting from 1858, came too late, and that
post-Founding era history ‘cannot alone establish the
historical tradition of regulation required by Bruen.’”
Pet.App.34a (quoting and rejecting Petitioners’ argument). The court “expressly rejected such a view,”
having explained “that the absence of Founding-era
law is not dispositive[.]” Id. “Later history is also relevant under a liquidation theory,” the court reasoned,
“because a regular course of practice may settle a constitutional debate at any point in our history.”
Pet.App.35a (internal quotation marks omitted, citation omitted, emphasis in original).
The court below found the “lack of Founding-era
history” to be “an especially weak indicator of constitutionality where, as here, the case concerns new circumstances and modern regulations that were unimaginable at the founding.” Id. (internal quotation
marks and citation omitted). In the end, the court
“concluded[d] that the Public Parks Provision is facially constitutional because the State has demonstrated that it is constitutional in some of its applications.” Pet.App.36a (internal quotation marks and citation omitted).
As to the standard for a facial Second Amendment challenge, the Second Circuit concluded that
“[i]n Rahimi, the Supreme Court made clear that to
succeed on a facial challenge in the Second Amendment context, the challenger must, as in other contexts, establish that no set of circumstances exists
11
under which the Act would be valid.” Pet.App.29a (internal quotation marks and citation omitted).
Applying its standard for facial Second Amendment challenges, the Second Circuit concluded that
“plaintiff must establish that no set of circumstances
exists under which [the Public Parks Provision] would
be valid,” Pet.App.30a (citation omitted), and thus upheld New York’s ban in full. “Starting in 1858,” the
Court explained, “with the plan to build Central Park
in New York City, came a regulation requiring signage that it was forbidden to carry firearms inside the
park.” Pet.App.32a (cleaned up).
Judge Menashi dissented from the majority’s decision to uphold New York’s ban on the possession of
arms in public parks. He explained that “[r]egulations
during the founding period restricted the misuse of
firearms and the manner of carriage but did not prohibit carriage in public parks or other places reserved
for recreation and public gatherings.” Pet.App.38a
(Menashi, J., concurring in part and dissenting in
part). “The majority disregards this history on the
ground that contemporary public parks are so different from founding-era public parks that the principles
of firearms regulation from the founding period cannot be applied to current circumstances,” he explained. Id. But “in [his] view,” the “historical evidence from the founding period cannot be discounted.”
Id. “The public parks of that period were not so different from contemporary parks that it is impossible to
identify relevant principles of firearms regulation.”
Id.
On the conflict between the two historical time
periods, Judge Menashi acknowledged that “[t]he majority is correct that in the late nineteenth century, a
12
new practice of restricting carriage in public parks
emerged.” Id. “That new practice, however, means
that unlike in prior cases, the regulatory traditions
relevant to this case diverged between 1791 and 1868.
I would resolve the conflict in favor of 1791.”
Pet.App.38a–39a (Menashi, J., concurring in part and
dissenting in part).
Judge Menashi went on to analyze historical
sources at length and concluded that he “disagree[s]
that the historical record reflects ‘silence’ in 1791 and
a ‘robust historical tradition’ in 1868 that might have
reflected the original meaning of the Second Amendment or served to ‘liquidate the meaning of an ambiguous
constitutional
term.’”
Pet.App.62a–63a
(Menashi, J., concurring in part and dissenting in
part). “Instead, the regulatory tradition of 1791 allowed restrictions on the misuse of firearms or the
manner of bearing arms but did not categorically prohibit carriage in a recreational or gathering place such
as a public park.” Pet.App.63a (emphasis added). “In
1868, however, an emergent ideological movement led
to a new tradition of restricting carriage and other
conduct in public parks. . . . At least some of the laws
in the record that emerged from this later tradition
clearly violate the Second Amendment.” Id.
13
REASONS FOR GRANTING THE PETITION
I.
The Court Should Resolve the Significant Circuit Splits and Confusion
over Threshold Second Amendment
Doctrinal Questions Presented by
This Petition.
This Petition presents questions critical to Second Amendment jurisprudence currently causing
widespread confusion and error in the lower Courts.
These questions will recur in nearly every Second
Amendment case. The Court should take this opportunity to provide clarity and ensure the lower federal
courts comply with this Court’s repeated instructions
to faithfully enforce the Second Amendment.
A. This Court Should Resolve the Split over
How to Approach Facial Challenges in
Second Amendment Cases.
The lower courts have split over how to analyze
facial versus as-applied Second Amendment challenges. Some courts, such as the one below, treat the
facial nature of the challenge as virtually dispositive.
If they find any subset of hypothetically prohibited
conduct that could be restricted consistent with historical tradition, they ratify the full scope of the challenged law on the basis that it has identified at least
one constitutional application. At least one court,
meanwhile, has focused the rule established by the
prohibition itself without any additional threshold
barrier for “facial” challenges, consistent with this
Court’s caselaw.
Since this Court’s decision in Rahimi, several
Circuits improperly have analyzed Second Amendment claims in a manner that essentially makes them
14
immune from facial challenge. As discussed above, the
Second Circuit in this case, rather than asking
whether history supported New York’s actual rule—
banning guns in parks generally—disposed of the case
by concluding that history would support banning
guns in urban parks. The Fourth Circuit followed this
approach to its logical and absurd conclusion in
LaFave v. County of Fairfax, Virginia, 149 F.4th 476
(4th Cir. 2025). There, the court found that a ban on
the possession of arms in all parks in Fairfax County
was facially constitutional because “three preschools
and one preschool program” were hosted by parks in
the County. Id. at 483. Although the challenged ban
restricted firearms in parks without reference to
whether any given park contained a school and therefore extended far beyond carrying an arm in such areas, the court found these preschool areas sufficient to
save the entire ban. “That’s enough for us to reject the
facial challenge to the parks restriction,” the court
concluded. Id. The Ninth Circuit took a similar approach in Knife Rights, Inc. v. Bonta, in which it held
that California’s flat ban on carrying switchblade
knives was facially constitutional because, in the
court’s view, history supported banning carrying such
knives concealed. See 165 F.4th 1330, 1345 (9th Cir.
2026). Dissenting from denial of rehearing en banc,
Judge Tung, joined by seven of his colleagues, decried
that the panel’s reasoning was “foreclosed” by this
Court’s cases and would “essentially shield from constitutional scrutiny any law that categorically and totally bans the carrying of arms.” Knife Rights, Inc. v.
Bonta, 182 F.4th 797, 816 (9th Cir. 2026) (Tung, J.,
dissenting from denial of rehearing en banc).
The Illinois Supreme Court has taken a different approach. Following this Court’s decisions in
15
Heller and McDonald, the Illinois Supreme Court had
held that the State’s flat ban on carrying firearms in
public violated the Second Amendment. In People v.
Burns, 79 N.E.3d 159 (Ill. 2015), however, Illinois argued that a conviction for violating the ban should
stand because the person convicted had previously
been convicted of a felony. The Illinois Supreme Court
squarely rejected this argument, despite assuming
“that the legislature could constitutionally prohibit
felons from carrying readily accessible guns outside
the home.” Id. at 165 (emphasis in original). That
could not save the statute from facial invalidity, however, because “the offense, as enacted by the legislature, does not include as an element of the offense the
fact that the offender has a prior felony conviction.”
Id. “An unconstitutional statute does not ‘become constitutional,’” the court reasoned, “simply because it is
applied to a particular category of persons who could
have been regulated, had the legislature seen fit to do
so.” Id. at 165–66.
The Illinois Supreme Court’s holding is correct,
and the contrary, facial challenges are “doom[ed]” approach, LaFave, 149 F.4th at 483, cannot be reconciled
with this Court’s precedents.
In District of Columbia v. Heller, this Court held
that the District of Columbia’s ban on the possession
of handguns was facially unconstitutional. 554 U.S.
570 (2008); see City of Los Angeles v. Patel, 576 U.S.
409, 415 (2015). Yet in making this decision, the Court
held open the possibility that possession of some types
of handguns (i.e., automatic ones) could be banned
and that the possession of all handguns could be
banned for some types of people (i.e., at least certain
felons and the mentally ill). See Heller, 554 U.S. at
16
626–27. Therefore, if the approach taken by the Second, Fourth, and Ninth Circuits were correct, Heller
could not have come out the way that it did.
The same is true of New York State Rifle & Pistol
Association v. Bruen, where the Court held unconstitutional New York’s may-issue licensing scheme. 597
U.S. 1 (2022). It did so despite acknowledging that the
carry of firearms could be banned altogether in certain
“sensitive places” such as courthouses, id. at 30,
meaning that, if decisions like the Second Circuit’s below were correct, the may-issue law would have been
constitutional at least with respect to those places. After all, if carry could be flat out banned in a courthouse, the lesser limitation of requiring a may-issue
license for carrying in such a location could not pose a
constitutional problem. Yet Bruen recalled “Heller’s
discussion of ‘longstanding’ ‘laws forbidding the carrying of firearms in sensitive places.’” Id. (quoting Heller, 554 U.S. at 626). That firearms could presumably
be banned in certain locations within New York, such
as the legislature or at courthouses, did not prevent
Bruen from declaring New York’s may-issue licensing
scheme facially unconstitutional. See Baird v. Bonta,
163 F.4th 723, 746–47 (9th Cir. 2026) (describing
Bruen as a facial challenge). Under the Second Circuit’s logic, New York’s may-issue scheme should have
been held facially constitutional because it could have
been constitutionally applied in at least some discrete
locations it encompassed. Yet that did not stand in the
way of this Court declaring New York’s may-issue licensing scheme facially unconstitutional. See id. (describing Bruen as a facial challenge).
Indeed, it is impossible to square the approach
that a single permissible historical application can
17
save an entire regulation with Bruen’s broader logic
and core holding. Bruen instructs lower courts to consider the “how and why” of both the modern regulation
and the historical evidence purporting to establish a
history of analogous regulation. See 597 U.S. at 29.
But if the Circuits are right that all that is needed is
a single example of a permissible historical regulation, however narrow, to save an entire modern regulation, there would be no need at all for this holistic
analysis.
United States v. Rahimi is not to the contrary.
602 U.S. 680 (2024). To be sure, the Court in Rahimi
emphasized that the challenger brought a facial challenge, which required him to “establish that no set of
circumstances exists under which the Act would be
valid.” Id. at 693 (quoting United States v. Salerno,
481 U.S. 739, 745 (1987)). And the Court rejected the
challenger’s facial challenge because the Government
demonstrated that the challenged law, 18 U.S.C. §
922(g)(8), was “constitutional in some of its applications.” Id. at 693. But Rahimi did not posit a subset of
conduct that happened to be covered by the statute
that could be constitutionally regulated. Rather, the
Court recognized that the statute itself “provide[d]
two independent bases for liability,” and it concluded
that it was facially constitutional because one of those
two bases comported with the history of firearms regulation. Id. In other words, in Rahimi the legislature
itself specified separate subrules, so the Court
properly limited its review to one of those subrules
when presented with a facial challenge.
If the Second Circuit’s approach to facial challenges were left to stand, virtually every prohibition
on the keeping and bearing of arms—no matter how
18
contrary to the constitutional guarantee—would survive a facial challenge, because all a court would need
to do to reject a facial challenge would be to identify
some person (a violent felon?), some place (a courthouse?), or some type of arm (a rocket launcher?)
within the scope of the statute’s restriction. As Judge
Tung explained in his Knife Rights dissent, this approach “should set off alarm bells.” 182 F.4th at 816
(Tung, J., dissenting from denial of en banc rehearing). “If accepted, it would upend Bruen and essentially shield from constitutional scrutiny any law that
categorically and totally bans the carrying of arms.
Never would our court have tolerated, with respect to
any other constitutional right, the sort of analytical
move that the panel made here.” Id. This state of affairs cannot be squared with this Court’s repeated
pronouncements on the Second Amendment’s guarantees.
B. This Court Should Resolve the Wide Circuit Split Over the Time Periods for Historical Analogy under Bruen.
In Bruen, this Court “acknowledge[d] . . . 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.
597 U.S. at 37. There, the Court found that it “need
not address this issue today because . . . the public understanding of the right to keep and bear arms in both
1791 and 1868 was . . . the same with respect to public
carry.” Id. at 37–38. The Court likewise recognized the
conflict in Rahimi, 602 U.S. at 692 n.1, where it
acknowledged the “debate on whether courts should
primarily rely on the prevailing understanding of an
19
individual right when the Fourteenth Amendment
was ratified in 1868 when defining its scope (as well
as the scope of the right against the Federal Government).” Id. (quoting Bruen, 597 U.S. at 37). “The same
[wa]s true” as in Bruen: “resolving the dispute was unnecessary to decide the case.” Id.
But unlike in Bruen and Rahimi, the time period
debate was dispositive to the outcome of this case. The
court below relied exclusively on the State’s late nineteenth century historical analogues to uphold New
York’s ban on carrying arms in public parks.
Pet.App.26a–27a. The court in fact prioritized this
later history over conflicting Founding-era history. Id.
And this case is not the only one. The question of
which time period’s historical analogues can justify a
restriction on the Second Amendment right has divided the lower courts. Since the court’s recognition of
the debate in Bruen, the Circuits have further diverged, resulting in a deep and significant split.
On one side of the split, the Third Circuit, Fifth
Circuit, and Eighth Circuit, Founding-era history over
later history. On the other side, the Second Circuit
and Ninth Circuits give significant analytical weight
to sources from the latter part of the nineteenth century and even prioritize such evidence over conflicting
Founding-era evidence. The Seventh Circuit has cases
on both sides of the divide but recently has declined to
prioritize Founding evidence.
The Third Circuit has resolved the debate in favor of the Founding. As the en banc court recently explained in Association of New Jersey Rifle & Pistol
Clubs, Inc. v. Attorney General New Jersey, 183 F.4th
211, 231–32 (3d Cir. 2026), that court has determined
20
that when “principles underpinning Founding-era
firearm regulations point[ ] in one direction while the
principles underpinning mid-to-late-nineteenth century laws point[ ] in the opposite direction,” “we must
look to Founding-era laws for analogies to modern-day
regulations.” Id. (citing Lara v. Comm’r Pa. State Police, 125 F.4th 441–42 (3d Cir. 2025)). Thus, in the
Third Circuit, courts “guard against giving postenactment history more weight than it can rightly bear.” Id.
at 244 (quoting Lara, 125 F.4th at 434).
The Fifth Circuit falls on the same side of the
split as the Third, having also emphasized that “not
all history is created equal,” when faced with “PostReconstruction laws” for historical analogues. United
States v. Connelly, 117 F.4th 269, 281 (5th Cir. 2024)
(quoting Bruen, 597 U.S. at 4). The Court found that
“laws passed scores of years post-Ratification (and a
fourth passed nearly half a century beyond that)
misses the mark by a wide margin” for proving a historical tradition to justify a modern regulation on the
right to keep and bear arms. Id.; see also
Reese v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 127 F.4th 583, 599 (5th Cir. 2025) (“Proceeding past the bounds of founding-era analogues . . . is
risky under Bruen. . . . The limitation of these late
19th century analogues is not in the ‘how’ or the ‘why’
of regulation, but rather that the laws were passed too
late in time[.]”).
The Eighth Circuit agrees, holding that “it is
questionable whether the Reconstruction-era sources
have much weight” and “[c]ertainly, postenactment
history of the Fourteenth Amendment is not given
weight.” Worth v. Jacobson, 108 F.4th 677, 696 (8th
Cir. 2024), cert. denied, 145 S. Ct. 1924 (2025). The
21
10th and 11th Circuits also have prioritized Founding-era history. United States v. Harrison, 153 F.4th
998, 1010 (10th Cir. 2025) (“Evidence from the founding era—or the years surrounding 1791, when the Second Amendment was first ratified—is most probative.”); NRA v. Bondi, 133 F.4th 1108, 1116 (11th Cir.
2025) (“The Second Amendment was ratified, and its
meaning fixed, in 1791.”).
On the other side of the split, some Circuits decline to give priority to Founding-era history in evaluating historical analogues. The Second Circuit below
prioritized late nineteenth century history over
Founding-era examples and upheld a ban on peaceable possession in parks solely on the basis of those
later examples. Pet.App.26a–27a, 34a–35a; see also
Antonyuk, 89 F.4th at 305 (“We therefore agree with
the decisions of our sister circuits—emphasizing the
understanding that prevailed when the States
adopted the Fourteenth Amendment” (internal quotation marks and citation omitted)).
The Ninth Circuit is on the same side of the split
as the Second. At least with respect to state laws, the
Court has reasoned that “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.” Wolford, 116 F.4th at 980 (emphasis in
original); see Wolford v. Lopez, 184 F.4th 1167, 1170
(9th Cir. 2026) (stating that “[t]he Supreme Court
granted certiorari limited to the question concerning
the private-property rule” and “[o]ur analysis as to all
other aspects of Hawaii's law is unaffected.”).
And pre-Bruen, the Seventh Circuit had cases on
both sides of the split. See Ezell v. City of Chicago, 651
22
F.3d 684, 702 (7th Cir. 2011) (reasoning that “if the
claim concerns a state or local law, the ‘scope’ question
asks how the right was publicly understood when the
Fourteenth Amendment was proposed and ratified”);
Moore v. Madigan, 702 F.3d 933, 935 (7th Cir. 2012)
(reasoning that “1791, the year the Second Amendment was ratified” is “the critical year for determining
the amendment’s historical meaning”). More recently,
the Seventh Circuit has analyzed evidence from the
Reconstruction. Barnett v. Raoul, 180 F.4th 1035,
1054 (7th Cir. 2026).
The logic of this Court’s precedents indicates that
1791, when the Second Amendment was ratified,
should be the baseline for analysis. As this Court has
now repeatedly indicated, “the Second Amendment
has the same meaning in all parts of the United
States.” Wolford, 146 S. Ct. at 2050. And that is true
regardless of whether a state or federal law is at issue.
Indeed, the Court has repeatedly “made clear 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.
Given the understanding that the Bill of Rights applies to the States and the Federal Government in the
same way, it makes sense that this Court has “generally assumed that the scope of the protection applicable to the Federal Government and the States is
pegged to the public understanding of the right when
the Bill of Rights was adopted in 1791.” Id. After all,
nothing in the Fourteenth Amendment purports to
change the substantive scope of the Bill of Rights
against the Federal Government, which they have always constrained since ratification in 1791.
23
This Court should now resolve the debate it recognized in Bruen and Rahimi but had no occasion to
resolve there. While Petitioners maintain that they
should prevail under either understanding, the only
plausible way for Respondents to prevail is to privilege evidence from the latter half of the nineteenth
century, given the dearth of Founding-era support for
New York’s ban.
II.
The Second Circuit’s Decision Upholding New York’s Ban on All Possession of Arms In Public Parks Violates
this Court’s Precedent.
The Second Circuit erred in prioritizing history
from the latter half of the nineteenth century over
Founding-era history that would be dispositive for Petitioners and in ratifying New York’s Parks Ban
wholesale based on a historical tradition that at most
might permit bans at urban public parks. The decision
reflects a troubling trend of lower federal courts that
are willing to disregard the dictates of the Second
Amendment and this Court’s precedents interpreting
it.
Under this Court’s precedents, because New
York’s ban on the possession of arms in public parks
regulates conduct plainly within the textual scope of
the Second Amendment, the burden lies with New
York to prove that its ban is “consistent with this Nation’s historical tradition of firearm regulation,” by
reference to historical restrictions on the right that
are “relevantly similar” to the ban both in “how” and
“why” they restricted the carrying of weapons for selfdefense. Bruen, 597 U.S. at 29, 34. As Rahimi made
clear, this means that courts must determine what
historical “principle[] that underpin[s] our regulatory
24
tradition” justified valid historical regulations, without undermining the “principles underlying the Second Amendment.” 602 U.S. at 692. The modern, challenged law can only stand if there is a common historical principle, based on a well-established tradition of
historical regulation, that extends to cover the challenged restriction. See id.
Applying the Court’s framework to New York’s
ban, it becomes clear that no historical evidence can
justify a ban on the peaceable possession of arms in
all public parks.
As Judge Menashi explained in his partial dissent, New York’s ban on the possession of arms in all
public parks is not “consistent with the nation’s historical tradition of firearms regulation.” Pet.App.38a.
(Menashi, J., concurring in part and dissenting in
part). This is because “[r]egulations during the founding period restricted the misuse of firearms and the
manner of carriage but did not prohibit carriage in
public parks or other places reserved for recreation
and public gatherings.” Id. (emphasis added). Indeed,
the court below’s recognition of “new” restrictions on
carrying arms in public parks in the late nineteenth
century establishes that no background principle or
previous enactment before the late nineteenth century
forbade carrying arms in public parks at the Founding. Pet.App.38a–39a (Menashi, J., concurring in part
and dissenting in part).
The default under the Second Amendment and
Bruen is constitutional protection in the absence of evidence of an analogous restriction. But this is a case
where “there is not just a vacuum at the founding
era[,]” but rather affirmative evidence of carrying in
public parks. See Jones v. Bonta, 34 F.4th 704, 722
25
(9th Cir. 2022), opinion vacated on reh’g in light of
Bruen, 47 F.4th 1124 (9th Cir. 2022) (Mem.).
“The historical evidence from the founding period
shows that the Public Parks Provision is inconsistent
with the tradition of firearms regulation.”
Pet.App.49a (Menashi, J., concurring in part and dissenting in part). “Contrary to the suggestion of the
majority that public parks were unknown to the
founding generation, ‘there is ample historical evidence of public parks used for recreational purposes
in the colonial and Founding eras.’” Pet.App.49a–50a
(quoting Wolford v. Lopez, 125 F.4th 1230, 1242 (9th
Cir. 2025) (VanDyke, J., dissenting from the denial of
reh’g en banc)). To name just a few notable examples,
“Boston Common was established in 1634,”
Pet.App.50a, and New York established early public
parks as well, Pet.App.50a–51a (discussing Bowling
Green, “a place for the ‘Recreation & Delight of the
Inhabitants of th[e] City.’” (quoting Wolford, 125 F.4th
at 1242 (VanDyke, J., dissenting from the denial of
reh’g en banc))). Public parks were also developed and
enjoyed in Philadelphia, Newark, Savannah, and
Charleston. Pet.App.51a. None of these public parks
banned the carriage of arms.
Key moments of American history demonstrate
this conclusion. At one public outdoor gathering, now
remembered as the Boston Massacre, British soldiers
opened fire on a public crowd of colonists in 1770. In
defending the soldiers at trial, John Adams conceded
that, in this country, “every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to
arm themselves at that time, for their defence.” John
Adams, Adams’ Argument for the Defense: 3–4
26
December 1770, NAT’L ARCHIVES FOUNDERS ONLINE,
https://perma.cc/C82Q-WT7R.
And the public parks of the Founding Era were
not unlike the public parks of our modern era—or at
least not different enough to nullify the Founding
Era’s apparently universal rule of allowing arms in
parks. “The notion that contemporary parks are so
unique as to have no analogue in the founding period
‘is counterfactual and nonsensical.”’ Pet.App.51a.
(quoting Kipke v. Moore, 165 F.4th 194, 239 n.14 (4th
Cir. 2026) (Agee, J., concurring in part and dissenting
in part)). In one particularly idyllic description, an
eighteenth-century traveler described Boston Common “as a place where ‘every afternoon, after drinking
tea, the gentlemen and ladies walk, and from thence
adjourn to one another’s houses. . . . It is a fine green
common with two rows of young trees planted opposite
to each other, with a fine footway between, in imitation of St. James Park; and part of the bay forms a
beautiful canal, in view of the walk.’” Kipke, 165 F.4th
at 239 n.14 (Agee, J., concurring in part and dissenting in part) (cleaned up) (quoting Carl Bridenbaugh,
Cities in the Wilderness: The First Century of Urban
Life in America 1625–1742, at 325 & n.61 (Capricorn
Books ed., 1964)). “[F]rom time immemorial,” Boston
Common was “used as a place of public resort for the
recreation of the people.” Steele v. City of Boston, 128
Mass. 583, 583 (1880).
The “majority disregard[ed] this history” from
the Founding Era in favor of more recent history from
“the late nineteenth century,” Pet.App.38a, “on the
ground that contemporary public parks are so different from founding-era public parks that the principles
of firearms regulation from the founding period
27
cannot be applied to current circumstances.” Id. This
reasoning was not unique: the Ninth Circuit in Wolford followed the same tack. There, “[e]ven though
public parks existed well before the Founding and the
states provide no evidence of firearm bans from that
time period, the panel divined a historical tradition by
redefining the inquiry to search for more recent regulations of ‘modern’ parks.” Wolford, 125 F.4th at 1242
(VanDyke, J., dissenting from the denial of reh’g en
banc).
But as Judge Menashi aptly concluded: “the historical evidence from the founding period cannot be
discounted.” Pet.App.38a. “The public parks of that
period were not so different from contemporary parks
that it is impossible to identify relevant principles of
firearms regulation.” Id. “In principle, there is no difference between Colonial-era park-goers fishing,
watching cockfighting, or playing whist; Victorian-era
park-goers playing tennis, riding horse-drawn carriages, or doing whatever one does to foster solidarity
across social classes; and modern park-goers playing
pickleball, hiking, or riding hoverboards. Each is engaged in a type of recreation or leisure in a public location that sometimes doubles as a place of public assembly.” Koons v. Att’y Gen. N.J., 156 F.4th 210, 307
(3d Cir. 2025) (Porter, J., concurring in judgment and
dissenting in part), as amended (Sep. 17, 2025), reh’g
en banc granted, opinion vacated, 162 F.4th 100 (3d
Cir. 2025). What is more, the Second Amendment was
“intended to endure for ages to come,” Pet.App.38a
(quoting M’Culloch v. Maryland, 17 U.S. (4 Wheat.)
316, 415 (1819)), and its “fixed” meaning applies even
28
“to circumstances beyond those the Founders specifically anticipated,” Bruen, 597 U.S. at 28.
The Office of Legal Counsel, considering a far
narrower limitation on the carriage of arms in federal
parks, recently advised that “[a] person who is carrying a firearm on parklands for self-defense but who
has to disarm before entering a building would not
only render himself ‘vulnerable for th[e] period of
time’ during which he was disarmed, Wolford, 146
S. Ct. at 2048, he would potentially be arming an aggressor who could collect the firearm. We, like the
courts, will reject such an interpretation[.]” Slip Op.
at 9, Application of 18 U.S.C § 930(a) to Post Offices,
50 Op. O.L.C. __ (Aug. 12, 2026).
And the case for banning firearms in rural parks
is even more utterly devoid of historical justification.
As Petitioner explained below, “[m]any of the parks
where Plaintiff Christian wishes to carry his firearm
at are a far cry from Central Park.” Br. for Pls.-Appellants, at 51, Christian v. James, No. 25-384 (2d Cir.
Mar. 21, 2025), Doc. 26.1 (citation omitted). These areas “include wooded hiking trails, wooded and open
nature areas, . . . and even a state forest area where
the State permits hunting while simultaneously barring Christian from carrying for self-defense.” Id. (emphasis in original, citations omitted). The Second Circuit declined to even analyze rural parks, although
Petitioner pressed it below at every level.2
2 The Second Circuit declined to analyze rural parks because, in its view, “Plaintiffs failed to raise that challenge in the
district court.” Pet.App.4a. But in the very same opinion, the
Court noted that “Plaintiffs argued in their summary judgment
motion” that they pressed “an as-applied challenge against the
29
III.
The Questions Presented Are Exceptionally Important And Cleanly Presented.
The questions presented are critically important
to the constitutional guarantee to keep and bear arms.
“[T]he right to keep and bear arms was included
among the other treasured liberties protected by the
Bill of Rights.” Wolford, 146 S. Ct. at 2042. This Court
has made clear time and again that the right to keep
and bear arms “is not a second-class right[.]” Bruen,
597 U.S. at 70 (internal quotation marks and citation
omitted).
The questions presented have significant doctrinal and real-world impact for countless Americans.
As to the doctrinal questions about how courts should
properly conduct the Second Amendment analysis are
fundamental. They have occurred and will recur in
countless cases. Especially so as states and localities
continue creative efforts to skirt the Second Amendment’s guarantees. Hobbling Second Amendment litigants to only bring as-applied challenges would render it virtually impossible to check these repeated,
creative efforts of states and localities to chip away at
the Second Amendment’s guarantees.
The lower courts have candidly noted their need
for further guidance on the Second Amendment analytical framework. “The law of the Second
Public Parks Provision as it applied to rural parks.” Pet.App.7a–
8a. And “the district court declined to consider that claim and
instead stated that it ‘is best presented to the Second Circuit for
resolution.’” Id. (cleaned up, citation omitted). Accordingly, the
argument was pressed below at each level and is appropriate for
this Court’s review. See Illinois v. Gates, 462 U.S. 213, 214 (1983)
(a question must be either “pressed or passed on below”).
30
Amendment is in flux, and courts (including this one)
are grappling with many difficult questions in the
wake of [Bruen] and [Rahimi].” United States v. Canada, 123 F.4th 159, 161 (4th Cir. 2024); see also
United States v. Hembree, 165 F.4th 909, 911 (5th Cir.
2026) (“Circuits have diverged in application of
Bruen’s framework.”).
There is also the important matter of faithful application of this Court’s precedents. Some of the nation’s most populous states and localities happen to be
in Circuits which have also misapplied the binding decisions of Heller, McDonald, and Bruen. Instead of
vindicating the Second Amendment protected rights
of the People, many lower courts have blessed government attempts to disarm them. See, e.g., Antonyuk v.
James, 120 F.4th 941 (2d Cir. 2024), cert. denied, 145
S. Ct. 1900 (2025) (Mem.); Wolford, 116 F.4th 959.
This Court is the only body that can ensure the Second
Amendment applies nationwide for all individuals
guaranteed the fundamental right.
The question of possessing arms in public parks
is likewise important for countless Americans who
seek to go about their daily lives while exercising the
Second Amendment right to self-defense, among other
lawful purposes. The latest trend for States seeking to
subvert the Second Amendment has been to make it
difficult or impossible for peaceable individuals to exercise their rights in the ordinary places and activities
of daily American life. States may not weave a “tight
web of laws that severely restricts the carrying of firearms for self-defense” in ordinary daily life. Wolford,
146 S. Ct. at 2044. In Wolford, this Court closed the
door on one such effort. Id. New York’s ban on the
31
peaceable possession of arms in public parks is no different. It should face the same fate.
The question of whether States and localities
may ban the peaceable possession of arms in public
parks has been thoroughly aired in several Circuits
with thoughtful and lengthy separate writings doing
the work of analyzing the relevant historical sources.
Pet.App.37a (Menashi, J., concurring in part and dissenting in part); Koons, 156 F.4th at 307 (Porter, J.,
concurring in the judgment in part and dissenting in
part); Wolford, 125 F.4th at 1242 (VanDyke, J., dissenting from the denial of rehearing en banc)).
These three important constitutional questions
are cleanly presented, and no complicating facts
would hinder the Court’s review.
CONCLUSION
The Court should grant certiorari.
Respectfully submitted,
NICOLAS J. ROTSKO
FLUET & ASSOCIATES
PLLC
1751 Pinnacle Drive
Suite 1000
Tysons, VA 22102
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DAVID H. THOMPSON
Counsel of Record
PETER A. PATTERSON
WILLIAM V. BERGSTROM
ATHIE O. LIVAS
COOPER & KIRK, PLLC
1523 New Hampshire
Avenue, N.W.
Washington, D.C. 20036
(202) 220-9600
dthompson@cooperkirk.com
Counsel for Petitioners
APPENDIX
i
TABLE OF APPENDICES
Page
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT, FILED MAY 18, 2026 . . . . . . 1a
A PPENDI X B — J U DGMENT OF THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT, FILED
MAY 18, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67a
APPENDIX C — DECISION AND ORDER OF
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW
YORK, FILED JANUARY 8, 2025 . . . . . . . . . . . . . 70a
APPENDIX D — RELEVANT STATUTORY
PROVISION, NY PENAL L. § 265.01-e . . . . . . . . 74a
1a
APPENDIX A — Appendix
OPINIONAOF THE UNITED
STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT, FILED MAY 18, 2026
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Nos. 24-2847; 25-384
BRETT CHRISTIAN, FIREARMS POLICY
COALITION, INC., SECOND AMENDMENT
FOUNDATION,
Plaintiffs-Appellees,
JOHN BORON,
Plaintiff,
v.
STEVEN G. JAMES, IN HIS OFFICIAL CAPACITY
AS SUPERINTENDENT OF THE NEW YORK
STATE POLICE,
Defendant-Appellant,
MICHAEL J. KEANE, IN HIS OFFICIAL
CAPACITY AS DISTRICT ATTORNEY FOR THE
COUNTY OF ERIE, NEW YORK,
Defendant.
2a
Appendix A
BRETT CHRISTIAN, FIREARMS POLICY
COALITION, SECOND AMENDMENT
FOUNDATION,
Plaintiffs-Appellants,
JOHN BORON,
Plaintiff,
v.
STEVEN G. JAMES, MICHAEL J. KEANE,
ACTING DISTRICT ATTORNEY,
Defendants-Appellees.
August Term 2024
Argued: June 25, 2025
Decided: May 18, 2026
Before: Bianco, Menashi, and Lee, Circuit Judges.
These two appeals involve Plaintiffs’ Second
Amendment challenge to New York’s Concealed Carry
Improvement Act (“CCIA”) provisions prohibiting firearm
possession in two types of locations: (1) private property
“where [a] person knows or reasonably should know that
the owner or lessee of such property has not permitted
such possession by clear and conspicuous signage
indicating that the carrying of [guns] on their property is
permitted or by otherwise giving express consent[,]” N.Y.
3a
Appendix A
Penal L. § 265.01-d(1) (the “Private Property Provision”);
and (2) “sensitive locations,” including “public parks,” id.
§ 265.01-e(2)(d) (the “Public Parks Provision”). Plaintiffs
challenge the Private Property Provision, as applied to
private property open to the public. Plaintiffs asserted
only a facial challenge to the Public Parks Provision in
the district court, but now also seek to raise an as-applied
challenge based upon its application to rural parks.
The district court (John L. Sinatra, Jr., Judge)
permanently enjoined Defendant Steven G. James, the
Superintendent of the New York State Police (the “State”),
from enforcing the Private Property Provision, as
applied to private property open to the public, deeming it
unconstitutional because it is inconsistent with our Nation’s
historical tradition of firearms regulation. However, the
district court granted summary judgment in favor of the
State on the Public Parks Provision, concluding that it is
facially constitutional because it is relevantly similar to
the historical analogues proffered by the State.
We conclude that the Private Property Provision,
as applied to private property open to the public, is
unconstitutional because the State did not carry its
burden of demonstrating that the restriction falls within
our Nation’s historical tradition of gun regulations, as
required under the framework set forth in New York State
Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 142
S.Ct. 2111, 213 L.Ed.2d 387 (2022). On the other hand,
we conclude that the Public Parks Provision survives
Plaintiffs’ facial challenge because the State has carried
its burden of showing that regulation is consistent with
4a
Appendix A
our Nation’s historical tradition of banning gun possession
in urban public parks. Finally, we decline to address any
as-applied challenge to the Public Parks Provision, to the
extent it applies to rural parks, because Plaintiffs failed
to raise that challenge in the district court.
Accordingly, we AFFIRM the permanent injunction
against the Private Property Provision, as applied
to private property open to the public, and AFFIRM
the judgment in favor of the State on the Public Parks
Provision.
Judge Menashi concurs in part and dissents in part
in a separate opinion.
Joseph F. Bianco, Circuit Judge:
BACKGROUND
In July 2022, the New York State Legislature passed
a sweeping set of new gun regulations through the CCIA.
As relevant to this appeal, the CCIA criminalizes gun
possession in “restricted locations,” which it defines as
“private property where [a] person knows or reasonably
should know that the owner or lessee of such property has
not permitted such possession by clear and conspicuous
signage indicating that the carrying of firearms, rifles, or
shotguns on their property is permitted or by otherwise
giving express consent.” N.Y. Penal L. § 265.01-d(1).
This provision does not apply to certain law-enforcement
officers, military personnel, certain security guards, or
persons lawfully hunting. Id. § 265.01-d(2). The CCIA also
5a
Appendix A
prohibits gun carriage in certain “sensitive locations,”
which includes, among other locations, “public parks.”1
Id. § 265.01-e(2)(d). The provisions became effective on
September 1, 2022.
Plaintiffs—Brett Christian and two gun advocacy
organizations, Firearms Policy Coalition and Second
Amendment Foundation2 —filed this lawsuit on September
13, 2022. Relevant to these appeals, Plaintiffs brought
a claim, pursuant to 42 U.S.C. § 1983, alleging that the
Private Property Provision, as applied to places open to
the public, and the Public Parks Provision, on its face,
are unconstitutional under the Second and Fourteenth
Amendments.
Plaintiffs then moved for a preliminary injunction.
The district court granted the motion with respect to the
Private Property Provision, as applied to private property
open to the public, but stayed the resolution of the motion
with respect to the Public Parks Provision. The State
filed an interlocutory appeal of the preliminary injunction
against the Private Property Provision.
On December 8, 2023, in a consolidated opinion
addressing four appeals, a panel of this Court affirmed the
1. The definition of “public parks” under this provision
does “not include (i) any privately held land within a public park
not dedicated to public use or (ii) the forest preserve as defined
in subdivision six of [S]ection 9-0101 of the [E]nvironmental
[C]onservation [L]aw.” Id.
2. An additional plaintiff, John Boron, entered a notice of
voluntary dismissal on September 28, 2022.
6a
Appendix A
district court’s preliminary injunction decision, explaining
that “the State has failed to situate [the Private Property
Provision],” as applied to private property open to the
public, within the Nation’s historic tradition of firearms
regulation. Antonyuk v. Chiumento, 89 F.4th 271, 386
(2d Cir. 2023) (“Antonyuk I”), cert. granted, judgment
vacated sub nom. Antonyuk v. James, ___ U.S. ___, 144
S. Ct. 2709, 219 L.Ed.2d 1315 (2024), and reinstated in
part by Antonyuk v. James, 120 F.4th 941 (2d Cir. 2024)
(“Antonyuk II”). 3 The panel also concluded in the same
opinion that the Public Parks Provision was likely to
survive a facial challenge because, at least as it applies
to urban parks, the State “carried its burden by placing
the regulation within a National tradition of regulating
firearms in often-crowded public squares, including,
specifically, city parks.” Antonyuk I, 89 F.4th at 363;
accord Antonyuk II, 120 F.4th at 1026 (same). The panel
3. The plaintiffs in Antonyuk filed a petition for certiorari
with the Supreme Court following our decision in Antonyuk I.
After the Supreme Court decided United States v. Rahimi, 602
U.S. 680, 144 S.Ct. 1889, 219 L.Ed.2d 351 (2024), it granted the
petition, vacated our judgment, and remanded the case for further
consideration in light of that opinion. We substantially reaffirmed
our Antonyuk I decision in a subsequent opinion, Antonyuk II.
As we explained in Antonyuk II, because the parties in this case
did not petition for certiorari before the Supreme Court, the
Supreme Court’s summary vacatur of Antonyuk I “did not vacate
the judgment[]” with respect to this case. 120 F.4th at 955 n.3.
Thus, Antonyuk I “remains binding on the parties in” this case
with respect to the Private Property Provision. Id. Accordingly,
our discussion of the Private Property Provision below principally
quotes from Antonyuk I, while elsewhere in this opinion we quote
and rely on Antonyuk II.
7a
Appendix A
emphasized that the “affirmance or vacatur of the district
courts’ [preliminary] injunctions does not determine
the ultimate constitutionality of the challenged CCIA
provisions, which await further briefing, discovery, and
historical analysis, both in these cases as they proceed and
perhaps in other cases.” Antonyuk I, 89 F.4th at 388 n.116.
After the case was remanded to the district court,
the parties cross-moved for summary judgment on the
Private Property and Public Parks Provisions. On October
10, 2024, the district court granted summary judgment in
favor of the Plaintiffs on their Private Property Provision
claim and permanently enjoined the State from enforcing
that provision. See generally Christian v. James, 753
F. Supp. 3d 273 (W.D.N.Y. 2024) (“Christian I”). Based
on the expanded summary judgment record, it concluded,
as we did in Antonyuk I on a preliminary record, that
the State failed to establish that the Private Property
Provision, as applied to private property open to the
public, fell within our Nation’s historical tradition of gun
regulations. Id. at 292.
A few months later, the district court granted
summary judgment in favor of the State on the Public
Parks Provision. See generally Christian v. James, No.
22-cv-695 (JLS), 2025 WL 50413, at *1 (W.D.N.Y. Jan. 8,
2025) (“Christian II”). The district court concluded that
our determination in Antonyuk II that a facial challenge
to the provision was unlikely to succeed “require[d] that
Plaintiffs’ motion be denied as to the parks issue and
Defendants’ corresponding cross motion be granted.”
Id. at *1. Although Plaintiffs argued in their summary
8a
Appendix A
judgment motion for the first time that they also brought
an as-applied challenge against the Public Parks Provision
as it applied to rural parks, the district court declined
to consider that claim and instead stated that it “is best
presented to the Second Circuit for [] resolution.” Id.
It subsequently entered final judgment on the Public
Parks Provision claim pursuant to Federal Rule of Civil
Procedure 54(b).
The State appeals from the district court’s permanent
injunction order. The Plaintiffs, in turn, appeal from the
district court’s judgment in favor of the government on
the Public Parks Provision.
DISCUSSION
“We review a district court’s grant of a permanent
injunction for abuse of discretion.” Shain v. Ellison, 356
F.3d 211, 214 (2d Cir. 2004). “A district court abuses its
discretion when it rests its decision on a clearly erroneous
finding of fact or makes an error of law.” Id. “We review
a district court’s order granting summary judgment de
novo, resolving all ambiguities and drawing all permissible
factual inferences in favor of the non-moving party.” Davis
v. Shah, 821 F.3d 231, 243 (2d Cir. 2016).
I.
Second Amendment Principles
The Second Amendment guarantees that “the right
of the people to keep and bear [a]rms [] shall not be
infringed,” U.S. Const. amend. II, and is made applicable
to the States through the Fourteenth Amendment, see
9a
Appendix A
McDonald v. City of Chicago, 561 U.S. 742, 750, 130 S.Ct.
3020, 177 L.Ed.2d 894 (2010).
We follow a two-step framework to evaluate Second
Amendment challenges, as articulated by the Supreme
Court in Bruen. Under that framework, the plaintiff
bears the initial burden of establishing that “the Second
Amendment’s plain text covers an individual’s conduct.”
Bruen, 597 U.S. at 24, 142 S.Ct. 2111. If the plaintiff makes
that showing, the burden shifts to the government to prove
that the challenged law is “consistent with the Nation’s
historical tradition of firearm regulation.” Id.
Under the historical tradition analysis at step two,
we “must ascertain whether the [challenged] new law is
relevantly similar to laws that our tradition is understood
to permit, applying faithfully the balance struck by the
founding generation to modern circumstances.” United
States v. Rahimi, 602 U.S. 680, 692, 144 S.Ct. 1889
(2024) (alteration adopted) (internal quotation marks and
citation omitted). “Why and how the regulation burdens
the right are central to this inquiry.” Id. This analogical
reasoning “requires only that the government identify a
well-established and representative historical analogue,
not a historical twin” or a “dead ringer.” Bruen, 597 U.S.
at 30, 142 S.Ct. 2111 (emphases in original).
We further clarified the proper methodology for
this inquiry in opinions of our own. In Antonyuk II, we
explained that “courts must be particularly attuned to
the reality that the issues we face today are different
than those faced in medieval England, the Founding Era,
10a
Appendix A
the Antebellum Era, and Reconstruction.” Antonyuk II,
120 F.4th at 970; see Bruen, 597 U.S. at 27, 142 S.Ct. 2111
(“[C]ases implicating unprecedented societal concerns
or dramatic technological changes may require a more
nuanced approach.”). Thus, a lack of similar historical
regulations during one or more of those time periods
“may not be reliably dispositive in Second Amendment
challenges to laws addressing modern concerns.”
Antonyuk II, 120 F.4th at 970. It may simply be the
“natural consequence” of the absence of the particular
issue during those time periods. Frey v. City of New
York, 157 F.4th 118, 136 (2d Cir. 2025). “Reasoning from
historical silence is [also] risky” because “[l]egislatures
past and present have not generally legislated to their
constitutional limits[,]” and it is thus “not necessarily the
case that, if no positive legislation from a particular time
or place is in the record, it must be because the legislators
then or there deemed such regulation inconsistent with
the right to bear arms.” Antonyuk II, 120 F.4th at 969
(footnote omitted).
We also underscored that it is “not dispositive whether
comparable historical regulations exist in significant
numbers.” Id. at 971 (emphasis omitted). “[W]here there
is a lack of constitutional dispute regarding a type of gun
regulation, or if courts during that period upheld similar
governmental practices against similar constitutional
challenges, comparable historical laws need not proliferate
to justify a modern prohibition.” Frey, 157 F.4th at 128
(internal quotation marks and citation omitted).
11a
Appendix A
We have further held that, “[b]ecause the CCIA is a
state law, the prevailing understanding of the right to bear
arms in 1868 and 1791 are both focal points of our analysis,”
and that “[t]he time periods in close proximity to 1791 and
1868 are also relevant to our analysis.” Antonyuk II, 120
F.4th at 972-73 (footnote omitted). We have since clarified
that, even where there is an absence of Founding-era
evidence supporting a historical tradition, “we may focus
on later evidence, especially from the Reconstruction era,
to ascertain [the] scope” of the Second Amendment right.
Frey, 157 F.4th at 131 (footnote omitted). We explained
this is so because the dearth of evidence “does not point
with some certainty in one direction or another” as to
the existence of a historical tradition. Id. at 130. Making
conclusions based on later evidence therefore cannot “be
characterized as contradicting the understanding of
the right in 1791.” Id. (emphasis in original). Moreover,
relying chiefly on later history is perfectly consistent
with “the originalist and liquidation theories espoused
by the [Supreme] Court in Heller and Bruen.” Id.; see id.
(explaining that 19th century evidence is “instructive”
to the original meaning as understood in 1791 and
may settle debates on ambiguous constitutional terms
through liquidation); see also Rahimi, 602 U.S. at 738,
144 S.Ct. 1889 (Barrett, J., concurring) (explaining that
“postenactment history can be an important tool” because
“it can reinforce our understanding of the Constitution’s
original meaning; liquidate ambiguous constitutional
provisions; [and] provide persuasive evidence of the
original meaning”) (internal quotation marks and citation
omitted).
12a
Appendix A
Bearing these principles in mind, we analyze the
constitutionality of the Private Property and Public Parks
Provisions.
II. Private Property Provision
We first address the constitutionality of the Private
Property Provision as applied to private property held
open to the public. Section 265.01-d(1) makes it a class E
felony to possess firearms in a “restricted location”:
A person is guilty of criminal possession of
a weapon in a restricted location when such
person possesses a firearm, rifle, or shotgun and
enters into or remains on or in private property
where such person knows or reasonably should
know that the owner or lessee of such property
has not permitted such possession by clear
and conspicuous signage indicating that the
carrying of firearms, rifles, or shotguns on their
property is permitted or by otherwise giving
express consent.
N.Y. Penal Law § 265.01-d(1). In other words, this provision
“create[s] a default presumption that carriage on any
private property is unlawful . . . unless the property owner
has indicated by ‘clear and conspicuous signage’ or express
verbal consent that carriage is allowed.” Antonyuk I, 89
F.4th at 379. Plaintiffs challenge the constitutionality of
Section 265.01-d(1) only as it applies to private property that
is held open to the public, like a gas station or grocery store.
13a
Appendix A
We have previously held that, “to the extent the
[Private Property Provision] applies to private property
open to the public, the regulated conduct falls within the
Second Amendment right to carry firearms in self-defense
outside the home.” Antonyuk I, 89 F.4th at 383. The State
does not dispute this conclusion. The burden is therefore
on the State to demonstrate a historical tradition that
supports the Private Property Provision.
The State comes forward with ten statutes from nine
states that it argues are relevantly similar to the Private
Property Provision: (1) a 1715 Maryland law barring
people “convicted of [certain crimes] . . . or . . . of evil fame,
or a vagrant, or dissolute liver,” from “shoot[ing], kill[ing]
or hunt[ing], or . . . carry[ing] a gun, upon any person’s
land, whereon there shall be a seated plantation, without
the owner’s leave,” Joint App’x at 1223 (1715 Md. Laws 90);
(2) a 1721 Pennsylvania law and 1722 New Jersey law that
both prohibit gun carriage or hunting “on the improved or
inclosed lands of any plantation other than his own, unless
he have license or permission from the owner of such lands
or plantation,” id. at 1228 (1721 Penn. Laws 255); see also
id. at 1234 (1722 N.J. Laws 101); (3) a 1763 New York law
prohibiting “carry[ing], shoot[ing] or discharg[ing]” any
firearm in any “Orchard, Garden, Corn-Field, or other
inclosed Land . . . without License in Writing” from the
owner, id. at 1239 (1763 N.Y. Laws 442); (4) a 1771 New
Jersey law making it unlawful for anyone “to carry any
Gun on any Lands not his own, and for which the Owner
pays Taxes, or is in his lawful Possession, unless he hath
License or Permission in Writing from the Owner,” id.
at 1242 (1771 N.J. Laws 344); (5) a 1790 Massachusetts
14a
Appendix A
law prohibiting the possession of “any gun or guns upon”
certain islands, “except such as shall have the special
license of the proprietors of the said islands,” id. at 1744
(1790 Mass. Acts 259); (6) an 1865 Louisiana law and
1866 Texas law prohibiting carriage on the “premises
or plantations of any citizen, without the consent of the
owner or proprietor,” id. at 1252 (1865 La. Acts 14); see id.
at 1259 (1866 Tex. Gen. Laws 1321); (7) an 1865 Florida
law making it unlawful to “hunt or range with a gun
within the enclosed land or premises of another without
the permission of the owner,” id. at 1536 (1865 Fla. Laws
27); and (8) an 1893 Oregon law prohibiting anyone “other
than an officer on lawful business, being armed . . . [from]
go[ing] or trespass[ing] upon any enclosed premises or
lands without the consent of the owner,” id. at 1266 (1893
Or. Laws 79).
In Antonyuk I, we reviewed seven of these statutes
and preliminarily concluded that they were not relevantly
similar to the Private Property Provision, as applied to
private property open to the public. See 89 F.4th at 382
(listing the 1715 Maryland law, the 1721 Pennsylvania
law, the 1722 New Jersey law, the 1763 New York law,
the 1865 Louisiana law, the 1866 Texas law, and the
1893 Oregon law). We determined that three of these
statutes—the 1721 Pennsylvania statute, the 1722 New
Jersey statute, and the 1763 New York Statute—“were
explicitly motivated by a substantially different reason
(deterring unlicensed hunting) than the [Private Property
Provision] (preventing gun violence).” Id. at 385. We also
pointed out that the 1715 Maryland Statute prohibited
only “convicted criminals from carrying a firearm on ‘any
15a
Appendix A
person’s land, whereon there shall be a seated plantation,
without the owner’s leave.’” Id.. We further observed
that all of these proffered analogues “appear to, by their
own terms, have created a default presumption against
carriage only on private lands not open to the public,”
and that “[t]he State has produced no evidence that those
terms were in fact otherwise understood to apply to
private property open to the public or that the statutes
were in practice applied to private property open to the
public.” Id. at 385-86 (emphasis in original). Therefore,
we concluded that “the State’s analogues fail to establish
a National tradition motivated by a similar ‘how’ or ‘why’
of regulating firearms in property open to the public in
the manner attempted by § 265.01-d.” Id. at 386.
As we explain below, having considered the additional
evidence and arguments the State has proffered on
summary judgment, we reaffirm our conclusion in
Antonyuk I that the Private Property Provision, as
applied to private property open to the public, does not fall
within our Nation’s historical tradition of gun regulations.
First, the pre-ratification statutes cited by the State
are not relevantly similar in their “why.” We discern a
statute’s purpose through its plain text and structure.
See Alexander v. Sandoval, 532 U.S. 275, 288, 121 S.Ct.
1511, 149 L.Ed.2d 517 (2001) (“We . . . begin . . . our
search for [the legislature’s] intent with the text and
structure of [the statute].”). The text and structure of
the State’s pre-ratification analogues make clear that
the purpose of those statutes was to deter unlawful or
unlicensed hunting. See Antonyuk I, 89 F.4th at 385
16a
Appendix A
(reading the statutes as “motivated by a substantially
different reason (deterring unlicensed hunting) than the
[Private Property Provision] (preventing gun violence)”).
Each of the laws prohibits gun carriage in the context of
forbidding hunting on certain property. For example, the
1715 Maryland law begins with the prefatory clause that
the law is aimed at “prevent[ing] the abusing, hurting or
worrying of any stock of hogs, cattle or horses,” and then
proceeds to prohibit “shoot[ing], killing[ing] or hunt[ing],
or . . . carry[ing] a gun” on another’s plantation without
the owner’s leave. Joint App’x at 1223. Thus, the plain
purpose of prohibiting the carriage of guns on another’s
land was to curb the hunting of livestock on that land. The
other laws similarly prohibited carriage in the context of
banning hunting on certain lands. See id. at 1228 (the 1721
Pennsylvania law prohibited a person from “carry[ing]
any gun or hunt[ing]”); id. at 1234 (same for the 1722
New Jersey law); id. at 1238-39 (the 1763 New York Law
prohibited “carry[ing], shoot[ing], or discharg[ing]”
firearms in order to more effectively “punish and prevent”
persons from “hunt[ing] with Fire-Arms”). Moreover,
although the prohibition on the carriage of “any Gun
on any Lands not his own” in the 1771 New Jersey law
appears in a standalone section of the statute, id. at 1242,
“[i]t is a fundamental canon of statutory construction
that the words of a statute must be read in their context
and with a view to their place in the overall statutory
scheme,” Davis v. Mich. Dep’t of Treasury, 489 U.S.
803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989); see also
King v. Burwell, 576 U.S. 473, 486, 135 S.Ct. 2480, 192
L.Ed.2d 483 (2015) (“Our duty, after all, is to construe
statutes, not isolated provisions.”) (internal quotation
17a
Appendix A
marks and citation omitted). In the New Jersey law, the
above-referenced provision, which is heavily relied upon
by the State, sits among other sections that are all aimed
at preventing unlawful hunting. See Joint App’x at 1242-44
(other sections including those prohibiting the “hunt[ing]
or watch[ing] for Deer with a Gun . . . on any Lands not
his own,” listing the penalties for killing or destroying
deer, explaining who may hunt on unimproved lands, the
penalties for setting traps, and the rewards for destroying
such traps).
That the purpose of these statutes was to regulate
hunting is further buttressed by the titles or preambles of
these statutes. See Bittner v. United States, 598 U.S. 85,
98 n.6, 143 S.Ct. 713, 215 L.Ed.2d 1 (2023) (“A preamble,
purpose clause, or recital is a permissible indicator of
meaning.”) (quoting A. Scalia & B. Garner, Reading Law:
The Interpretation of Legal Texts 217 (2012)). The 1721
Pennsylvania law, for example, is titled “An Act to Prevent
the Killing of Deer Out of Season, and Against Carrying of
Guns or Hunting by Persons Not Qualified,” and explains
that the “abuses, damages and inconveniences” the statute
seeks to remedy “have arose by persons carrying guns
and presuming to hunt on other people’s lands.” Joint
App’x at 1227-28; see id. at 1233-34 (the 1722 New Jersey
law has an identical title and seeks to remedy the “great
Damages and Inconveniences arisen by Persons carrying
of Guns and presuming to hunt on other Peoples Land”);
id. at 1238 (the 1763 New York law is titled “An Act to
prevent hunting with Fire-Arms in the City of New York,
and the Liberties thereof” and the purpose clause explains
that the statute seeks to prevent “disorderly Persons in
18a
Appendix A
and about the City of New-York . . . [from] hunt[ing] with
Fire-Arms”); id. at 1737-38 (the 1771 New Jersey Law
contains a statement of purpose in a preamble recognizing
that previous laws in New Jersey “for the Preservation
of Deer and other Game, and to prevent trespassing with
Guns, Traps and Dogs, have, by Experience, been found
insufficient.”); id. at 1743 (the 1790 Massachusetts law is
titled “An Act for the Protection of the Sheep and other
Stock” on certain islands and the preamble states its
concern with the “great depredations made by gunners
and hunters [on these islands] by which great numbers
of sheep and deer have been killed”). It is thus confirmed
by the statutory context that these prohibitions on gun
carriage were prophylactic measures to more effectively
prevent the abuse of unlawful hunting on another’s land.
In addition, these pre-ratification laws differed in
their “how.” As we explained in Antonyuk I, we read
these laws as applying to “private lands not open to the
public.” 89 F.4th at 385 (emphasis in original). These
laws, by their terms, prohibited hunting and gun carriage
on, for example, “plantation[s],” Joint App’x at 1223,
“improved or inclosed lands of any plantation other than
his own,” id. at 1228; accord id. at 1234, or “any Lands
not his own,” id. at 1242. The word “plantation” denotes
a “cultivated estate” or a “farm.” Plantation, Webster’s
A m. Dictionary of the English Lang. (1828), available at
https://webstersdictionary1828.com/Dictionary/plantation
[https://perma.cc/6DG8-QTFQ]. The State does not offer
persuasive evidence that privately owned estates or farms
were traditionally held open to the public. In addition,
the reference to “lands” is specific to those “other than
19a
Appendix A
his own” or “not his own,” which also suggests that the
premises at issue are those that an ordinary individual
would possess—that is, one’s own private home or farm,
rather than a property generally open to the public, such
as an inn or shop.
Similarly, the 1771 New Jersey law, on which the State
places great weight, was aimed at preventing “trespassing
with Guns, Traps and Dogs.” Christian I, 753 F. Supp.
3d at 289 (emphasis added) (internal quotation marks
and citation omitted). However, at common law, it was
not a trespass to enter into properties held open to the
public, such as “an inn or public house, without the leave
of the owner first specially asked; because, when a man
professes the keeping of such inn or public house, he
thereby gives a general licence to any person to enter his
doors.” 3 William Blackstone, Commentaries *212; cf.
State v. Boone, 297 N.C. 652, 256 S.E.2d 683, 687 (1979)
(overturning a felonious entry conviction because the
“defendant entered the store at a time when it was open
to the public” and therefore had “consent, implied if not
express, of the owner”); State v. Martin, 149 S.C. 464, 147
S.E. 606, 614 (1929) (noting that “the general public have an
implied license to enter a retail store, and, perhaps, many
other places of business”), overruled on other grounds by
State v. Belcher, 385 S.C. 597, 685 S.E.2d 802 (2009). The
statute’s reference to trespass therefore indicates that the
1771 New Jersey law was focused on trespass on private
property that was not open to the public.
Although the State cites dictionary definitions and
other statutes in an attempt to persuade us that these
20a
Appendix A
statutory terms could also encompass private property
open to the public, we decline to read these words in
isolation and out of context. See, e.g., Hibbs v. Winn,
542 U.S. 88, 101, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004)
(declining to assess a statutory term “in isolation,” as
“the cardinal rule [is] that statutory language must be
read in context [since] a phrase gathers meaning from
the words around it”) (internal quotation marks and
citation omitted). Moreover, the State has failed to point
to any contemporaneous evidence that these laws were
understood or enforced in that expansive manner. This
“barren record of enforcement” is “one additional reason
to discount [the] relevance” of these pre-ratification
statutes. Bruen, 597 U.S. at 58 n.25, 142 S.Ct. 2111.
Our conclusion that none of the State’s pre-ratification
statutes are relevantly similar does not necessarily doom
the State’s case. As we explained in Frey, because silence
in the Founding-era does not provide a full measure of
clarity into the existence or absence of historical tradition
in “this Nation’s whole tradition,” the State may still rely
on post-enactment history to demonstrate an established
tradition. 157 F.4th at 130 (emphasis in original) (internal
quotation marks and citation omitted); see id. (explaining
that post-enactment history can “provide persuasive
evidence of original meaning” and also liquidate the
meaning of an ambiguous constitutional term) (internal
quotation marks and citation omitted).
However, the State’s four 19th-century laws are not
enough to carry the day. To begin with, the 1866 Florida
law, like the pre-ratification laws we rejected supra,
21a
Appendix A
plainly applies to hunting. The section at issue is titled
“Persons may not hunt on the premises of another without
permission,” and prohibits a person from “hunt[ing] or
rang[ing] with a gun within the enclosed land or premises
of another.” Joint App’x at 1536. The 1893 Oregon law also
suffers from the same flaw as the 1771 New Jersey law
in that it prevents “trespass upon any enclosed premises
or lands without the consent of the owner.” Id. at 1266
(emphasis added). Thus, as explained above, this law
prohibits gun carriage on those private properties not
open to the public, where an individual could commit
trespass.
That leaves the State with just the 1865 Louisiana law
and the substantially similar 1866 Texas law. Plaintiffs
contend that these two laws were passed after the Civil
War as part of the South’s attempt “to limit the rights of
former slaves and to reduce them, as nearly as possible,
to their former state.” Plaintiffs-Appellees’ Br. at 52.
They argue that because, “[a]fter 1866, the states could
no longer enact explicitly racial laws,” they instead
“used the pretense of game laws to restrict hunting and
fishing by blacks. Laws requiring landowner permission
were the most transparent limits.” Brian Sawers, Race
and Property After the Civil War: Creating the Right to
Exclude, 87 Miss. L.J. 703, 749 (2018); see also McDonald,
561 U.S. at 771, 130 S.Ct. 3020 (“After the Civil War, many
of the over 180,000 African-Americans who served in the
Union Army returned to the States of the old Confederacy,
where systematic efforts were made to disarm them and
other blacks.”). Although the State suggests that “the
history of gun regulation in southern States after the
22a
Appendix A
Civil War is more complex than plaintiffs acknowledge,”
they later concede that “the unfortunate reality” is that
these laws were “often enacted by racist legislatures
and codified prejudices that existed at the time.” StateAppellant’s Reply Br. at 16-17. Nevertheless, they contend
that courts should treat “such laws as relevant to the
historical inquiry.” Id. at 17.
We disagree that the facially neutral but racially
motivated laws at issue here can properly serve as
meaningful analogues for our historical inquiry. To be
sure, we have relied on historical precedents “rooted
in prejudiced stereotypes and racial, religious, or class
bigotry” that are “offensive to contemporary morals”
as analogies for “class-based prohibitions on firearms.”
Zherka v. Bondi, 140 F.4th 68, 90 (2d Cir. 2025). However,
those historical laws were relevant in that context because
they evinced a “historical tradition of broad categorical
restrictions on firearms possession” based on people the
legislature perceived, even if wrongly so, as dangerous to
society. Id. By contrast, facially neutral laws born from
racial animus are often enforced in ways that predictably—
and perhaps exclusively—fall on the very racial groups the
legislature set out to target. Thus, they do not necessarily
evince a historical tradition of limiting the right against all
individuals across the board in the same manner. Instead,
unless the government can show that these laws were
enforced equally against all citizens, they merely tend to
highlight this sorry history of departing from norms and
traditions when racial minorities are in the legislature’s
crosshairs. Cf. Bruen, 597 U.S. at 58, 142 S.Ct. 2111 (noting
that an enforcement record exclusively “involving black
23a
Appendix A
defendants who may have been targeted for selective or
pretextual enforcement” was “surely too slender a reed
on which to hang a historical tradition”). Here, the State
has failed to demonstrate that the 1865 Louisiana law and
the substantially similar 1866 Texas law were part of some
broader effort to restrict firearms possession against all
individuals in the same manner, rather than targeting a
racial minority for selective enforcement. Thus, we do not
view these statutes as providing support for the State’s
position. In any event, even if the statutes were given some
weight, we doubt that two statutes alone, without more,
are sufficient to evince a robust national tradition. See
Bruen, 597 U.S. at 46, 142 S.Ct. 2111 (“[W]e doubt that
three colonial regulations could suffice to show a tradition
of public-carry regulation.”) (emphasis omitted).
To the extent the State relies on the Ninth Circuit’s
decision in Wolford v. Lopez, 116 F.4th 959 (9th Cir. 2024),
reversing the district court’s decision to enjoin a Hawaii
law similar to the Private Property Provision that bans
carrying firearms on private property held open to the
public unless the owner or operator of that property
consents orally, in writing, or by posting an appropriate
sign, we respectfully disagree with the analysis set forth
in that opinion.4 There, the Ninth Circuit determined that
4. Hawaii’s version of the Private Property Provision provides
that “[a] person carrying a firearm pursuant to a license . . . shall not
intentionally, knowingly, or recklessly enter or remain on private
property of another person while carrying a loaded or unloaded
firearm, whether the firearm is operable or not, and whether the
firearm is concealed or unconcealed, unless the person has been
given express authorization to carry a firearm on the property by
24a
Appendix A
“the Nation has an established tradition” that the states
“freely arrang[ed] the default rules” for regulating the
“carrying of firearms onto private property.” Wolford, 116
F.4th at 995. In support of its determination, the Ninth
Circuit explained that Section 1 of the 1771 New Jersey
law and the 1865 Louisiana law were “dead ringers” for
this national tradition because, in its view, consistent with
Hawaii’s law, the New Jersey and Louisiana laws “simply
prohibited the carry of firearms on private property
without consent,” without reference to another purpose,
such as regulating hunting or poaching. Id.
As an initial matter, we disagree with the Ninth
Circuit’s analysis regarding whether portions of the 1771
New Jersey and the 1865 Louisiana law demonstrate a
national tradition of regulating the carrying of firearms
onto private property without consent. As we explained
supra, although we agree that Section 1 of the 1771 New
Jersey law makes no reference to hunting or game, as
the Ninth Circuit recognizes, Section 2 of that same law
does, and these sections must be read together to properly
determine the law’s overall purpose. In any event, Section
1’s reference to trespass indicates that New Jersey’s law
was focused on private property that was not open to the
public, not any private property, as the Ninth Circuit
suggests. See id. (concluding that “New Jersey’s 1771 law
applied to all private property”) (emphasis in original).
the owner, lessee, operator, or manager of the property,” through
“[u]nambiguous written or verbal authorization” or “[t]he posting
of clear and conspicuous signage at the entrance of the building
or on the premises.” Haw. Rev. Stat. § 134-9.5(a), (b).
25a
Appendix A
As for the 1865 Louisiana law, the Ninth Circuit failed
to consider how the racial animus imbued in that law
makes it a troubling analogue for our historical inquiry
and ignored the Supreme Court’s caution that reliance on
such a law “is surely too slender a reed on which to hang a
historical tradition.” Bruen, 597 U.S. at 58, 142 S.Ct. 2111.
Thus, we disagree with the Ninth Circuit that these state
laws are “dead ringers” and that there is, on this record,
a national tradition in support of such regulations.
Indeed, not only is this type of regulation not readily
identifiable in the context of our Nation’s long history of
protecting the “general right to public carry arms for selfdefense” under the Second Amendment, id. at 31, 142 S.Ct.
2111, but also the likely practical effect of the enforcement
of the Private Property Provision will be to significantly
hinder the ability of individuals to meaningfully exercise
that Second Amendment right to defend themselves in
public. In other words, because many private property
owners will likely not post signs indicating whether
firearms are permitted or forbidden on their premises,
rules like the ones promulgated by New York and Hawaii
will effectively prohibit individuals from carrying firearms
on any private property, even private property that is
open to the general population. Thus, “only those who
aimlessly wander streets and sidewalks without ever
planning to enter a store, park, or other private or public
establishment will be able to carry a firearm.” Wolford v.
Lopez, 125 F.4th 1230, 1235-36 (9th Cir. 2025) (VanDyke,
J., dissenting from denial of rehearing en banc). Such a
rule could “dramatically curtail[] an individual’s practical
ability to be prepared in public to defend themselves—‘the
26a
Appendix A
central component of the Second Amendment right.’”
Id. (alteration adopted) (emphasis in original) (quoting
District of Columbia v. Heller, 554 U.S. 570, 599, 128 S.Ct.
2783, 171 L.Ed.2d 637 (2008)).
In sum, we conclude that the State did not carry its
burden of establishing a national tradition of regulating
firearms in the manner attempted by the Private
Property Provision, as it applies to private property open
to the public. Accordingly, we affirm the district court’s
permanent injunction against the enforcement of the
Private Property Provision.
III. Public Parks Provision
We turn next to Plaintiffs’ facial challenge to the
Public Parks Provision. As explained supra, that provision
makes it a class E felony to possess firearms “in a sensitive
location,” which, as relevant here, includes “public parks.”
N.Y. Penal Law § 265.01-e(2)(d).
As with the Private Property Provision, there is no
dispute that the Public Parks Provision implicates conduct
that falls within the plain text of the Second Amendment.
We therefore proceed to the historical analysis under step
two of Bruen.
I n supp or t of t he P ubl ic Pa rk P r ov i s ion’s
constitutionality, the State has amassed a record of
more than one hundred historical laws it asserts are
relevantly similar. Chief among them are more than sixty
regulations from cities and towns in more than twenty
27a
Appendix A
States, spanning from 1858 to the early 1900s, that
expressly forbade carriage of firearms in public parks.
See Joint App’x at 374, 399 (1858 N.Y.C., N.Y.); 375, 413
(1867 Brooklyn, N.Y.); 418 (1868 Phila., Pa.); 424 (1872
S.F., Cal.); 429 (1866 Chi., Ill.); 436 (1874 Buffalo, N.Y.);
443 (1875 Hyde Park, Ill.); 449 (1878 Phoenixville, Pa.); 468
(1883 Danville, Ill.); 463 (1883 St. Louis, Mo.); 472 (1886
Bos., Mass.); 479 (1887 Reading, Pa.); 485 (1888 St. Paul,
Minn.); 490 (1888 Salt Lake City, Utah); 493 (1890 Trenton,
N.J.); 498 (1890 Berlin, Wis.); 506 (1890 Williamsport,
Pa.); 510 (1891 Grand Rapids, Mich.); 516 (1891 Milwaukee,
Wis.); 521 (1891 Springfield, Mass.); 525 (1892 Cincinnati,
Ohio); 530 (1891 Lynn, Mass.); 534 (1892 Peoria, Ill.);
540 (1892 Spokane, Wash.); 544 (1893 Pittsburgh, Pa.);
552 (1893 Wilmington, Del.); 562 (1894 Canton, Ill.); 569
(1895 Detroit, Mich.); 575 (1896 Centralia, Ill.); 579 (1896
Indianapolis, Ind.); 586 (1896 Rochester, N.Y.); 596 (1898
Kan. City, Mo.); 601 (1898 New Haven, Conn.); 605 (1898
Boulder, Colo.); 611 (1902 Hartford, Conn.); 616 (1902
New Bedford, Mass.); 622 (1902 Springfield, Ill.); 628
(1903 Lowell, Mass.); 633 (1903 N.Y.C., N.Y.); 637 (1903
Pasadena, Cal.); 643 (1903 Troy, N.Y.); 649 (1904 Hou.,
Tex.); 655 (1904 Neligh, Neb.); 663 (1904 Pueblo, Colo.);
671 (1905 Harrisburg, Pa.); 676 (1905 Haverhill, Mass.);
682 (1905 Saginaw, Mich.); 694 (1906 Denver, Colo.); 702
(1906 L.A., Cal.); 708 (1907 Portland, Or.); 713 (1907
Oil City, Pa.); 719 (1907 Olean, N.Y.); 728 (1907 Seattle,
Wash.); 747 (1909 Memphis, Tenn.); 754 (1909 Oakland,
Cal.); 762 (1909 Paducah, Ky.); 768 (1910 Jacksonville, Ill.);
773 (1910 Staunton, Va.); 778 (1911 Colo. Springs, Colo.);
819 (1917 Birmingham, Ala.); 825 (1917 Joplin, Mo.); 840
(1921 Burlington, Vt.); 845 (1922 Chattanooga, Tenn.).
28a
Appendix A
In addition, the State puts forward statutes from nine
states that it contends together establish a tradition of
prohibiting firearms in quintessentially crowded places
and public forums. See Defendants-Appellees’ Br. at 23
(citing 1792 North Carolina law, 1786 Virginia law, 1869
Tennessee law, 1870 Texas law, 1870 Georgia law, 1889
Arizona law, 1883 Missouri law, 1889 Idaho law and 1890
Oklahoma law).
In Antonyuk II, we found that these state statutes
were part of a “long, unbroken line” indicating “that
the tradition of regulating firearms in often-crowded
public forums is part of the immemorial custom of this
Nation.” 120 F.4th at 1021 (internal quotation marks and
citations omitted). We further concluded that the eight
local ordinances banning firearms in urban public parks
that were part of the preliminary record demonstrated
that “[w]ith the rise of urban America, cities continued
this tradition and began regulating firearms in a newly
emerging public forum: the urban park.” Id. at 1023. We
concluded that whether the Public Parks Provision, at
least as applied to urban parks, “is consistent with this
Nation’s tradition is a straightforward inquiry” because
“[i]t is obvious that [the provision] burdens Second
Amendment rights in a distinctly similar way (i.e., by
prohibiting carriage) and for a distinctly similar reason
(i.e., maintaining order in often-crowded public squares) as
do the plethora of regulations provided by the State.” Id. at
1024. This conclusion was enough to defeat plaintiffs’ facial
challenge to the Public Parks Provision, we explained,
because “[t]o mount a successful facial challenge, the
plaintiff must establish that no set of circumstances exists
29a
Appendix A
under which the law would be valid.” Id. at 1026 (alteration
adopted) (internal quotation marks and citation omitted).
As a threshold matter, Plaintiffs urge us to flip the
facial challenge standard on its head. They contend
that we should hold the Public Parks Provision facially
unconstitutional so long as they can demonstrate that it
“exceeds in its scope any possible historical justification.”
Plaintiffs-Appellants’ Reply Br. at 26 (emphasis added).
That argument is squarely foreclosed by Rahimi as well
as our Circuit precedents.
In Rahimi, the Supreme Court made clear that to
succeed on a facial challenge in the Second Amendment
context, the challenger must, as in other contexts,
“establish that no set of circumstances exists under which
the Act would be valid.” 602 U.S. at 693, 144 S.Ct. 1889
(quoting United States v. Salerno, 481 U.S. 739, 745, 107
S.Ct. 2095, 95 L.Ed.2d 697 (1987)). Indeed, in reversing
the Fifth Circuit’s conclusion that Section 922(g)(8)
violated the Second Amendment, the Court noted that
the Fifth Circuit “did not correctly apply our precedents
governing facial challenges” because “[r]ather than
consider the circumstances in which Section 922(g)(8) was
most likely to be constitutional, the panel instead focused
on hypothetical scenarios where Section 922(g)(8) might
raise constitutional concerns. That error left the panel
slaying a straw man.” Id. at 701, 144 S.Ct. 1889 (internal
citations omitted).
Following Rahimi, we have applied this facial
challenge standard repeatedly in our Second Amendment
30a
Appendix A
cases. See Antonyuk II, 120 F.4th at 983 (“To mount a
successful facial 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.”) (alteration adopted) (internal quotation marks
and citations omitted); Giambalvo v. Suffolk Cnty., 155
F.4th 163, 182 (2d Cir. 2025) (same); Frey, 157 F.4th at
141 (same). We therefore continue to apply here this wellestablished standard for a facial challenge. 5
In the alternative, Plaintiffs contend that they also
brought a challenge to the Public Parks Provision as
applied to “parks outside of urban settings.” PlaintiffsAppellants’ Br. at 51-52. Their complaint plainly does not
raise such a challenge. The complaint seeks a “declaratory
judgment that N.Y. Penal Law []§ 265.01-e(2)(d) (public
parks) . . . infringe[s] upon Plaintiffs’ right to bear arms,”
and “[i]njunctive relief restraining Defendants . . . from
enforcing N.Y. Penal Law []§ 265.01-e(2)(d) (public parks).”
Joint App’x at 42; see John Doe No. 1 v. Reed, 561 U.S. 186,
5. Plaintiffs also counter that applying this standard to the
facial challenges in Heller and Bruen would have prevented the
Court in those cases from striking down the statutes at issue on
their face. See Plaintiffs-Appellants’ Reply Br. at 27 (contending
that “the fact that there were certain handguns that might have
been lawfully banned by D.C. consistent with history did not save
the law in Heller from facial invalidation” (emphasis in original)).
However, neither Heller nor Bruen directly addressed the proper
facial challenge standard. Moreover, a law may also be struck
down as unconstitutional on its face if it “lacks a plainly legitimate
sweep.” Antonyuk II, 120 F.4th at 983 (internal quotation marks
and citation omitted). Plaintiffs do not contend here that the Public
Parks Provision lacks a plainly legitimate sweep.
31a
Appendix A
194, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010) (explaining
that a claim has “as applied” characteristics if it “does not
seek to strike [the statute down] in all its applications”).
This is in stark contrast to the as-applied relief Plaintiffs
seek with respect to the Private Property Provision in the
same breath. See Joint App’x at 42 (seeking a “declaratory
judgment that N.Y. Penal Law []§ . . . 265.01-d (default
anti-carry rule) with respect to places open to the public
. . . infringe[s] upon Plaintiffs’ right to bear arms,” and
“[i]njunctive relief restraining Defendants . . . from
enforcing N.Y. Penal Law []§ . . . 265.01-d (default anticarry rule) with respect to places open to the public”)
(emphases added). Nor did Plaintiffs articulate an asapplied theory in their preliminary injunction motion.
Indeed, it was not until after the summary judgment
stage, and after we decided Antonyuk II, that Plaintiffs
indicated for the first time that they were also bringing
an as-applied challenge to the Public Parks Provision.
The district court declined to consider that challenge in
granting summary judgment in favor of the State. See
Christian II, 2025 WL 50413, at *1. We, too, decline to
consider such a challenge.6
6. Plaintiffs contend that nothing forecloses us from
considering such a challenge sua sponte. For that proposition,
Plaintiffs cite Citizens United v. FEC, 558 U.S. 310, 331, 130 S.Ct.
876, 175 L.Ed.2d 753 (2010), with no explanation. However, Citizens
United involved the converse question—whether the Court could
sua sponte consider a facial challenge to a statute where the
plaintiffs brought only an as-applied challenge. See id. Faced
with that question, the Supreme Court concluded that “no general
categorical line bars a court from making broader pronouncements
of invalidity in properly as-applied cases.” Id. (internal quotation
marks and citation omitted). Citizens United therefore provides no
32a
Appendix A
Plaintiffs cannot “establish that no set of circumstances
exists under which [the Public Parks Provision] would be
valid,” Rahimi, 602 U.S. at 693, 144 S.Ct. 1889 (quoting
Salerno, 481 U.S. at 745, 107 S.Ct. 2095), because the
State has demonstrated that the Public Parks Provision
as applied to urban parks is part of a well-established
tradition of prohibiting firearms in those parks. See id.
(“[T]o prevail, the Government need only demonstrate
that [the provision] is constitutional in some of its
applications.”). The more than sixty regulations that
directly prohibit firearm carriage in urban public parks
across the country alone are “dead ringers” that evidence
such a robust historical tradition. Starting in 1858, with
the plan to build Central Park in New York City, came a
regulation requiring signage that it was “forbidden . . . [t]o
carry fire-arms” inside the park. Joint App’x at 399-400.
[F]ollowing the success of [New York’s] Central
Park, cities across the United States began
building parks to meet recreational needs of
residents[;] and during the second half of the
19th century, [Frederick Law] Olmsted and his
partners [who planned Central Park] designed
major parks or park systems in thirty cities.
Antonyuk II, 120 F.4th at 1022 (first alteration added)
(internal quotation marks and citation omitted). With
the explosion of urban parks came contemporaneous
support for considering an as-applied challenge where a complaint
brings only a facial one and, in any event, we decline to exercise our
discretion to do so here, especially where the issue—including the
definition of a “rural park”—has not been adequately developed.
33a
Appendix A
regulations that, like the Central Park regulation, flat
out prohibited gun carriage inside those parks. See,
e.g., Joint App’x at 413 (1867 Prospect Park ordinance
forbidding persons from “carry[ing] firearms”); 418 (1868
Pennsylvania law prohibiting persons from “carry[ing] fire
arms” in Philadelphia’s Fairmount Park); 443 (1875 Hyde
Park law stating that “[a]ll persons are forbidden to carry
fire arms”). As we noted in Antonyuk II, “[n]one of those
city ordinances were invalidated by any court; indeed, we
have not located any constitutional challenges to any of
them.” 120 F.4th at 1022. This “deliberate and sustained
course of post-enactment action” spanning over 60 years
in major urban areas without any known constitutional
challenge comfortably “settle[s] the meaning of” whether
the scope of the Second Amendment right can be limited
in this way. Frey, 157 F.4th at 129; see also Antonyuk II,
120 F.4th at 1023 (explaining that the eight regulations in
the preliminary record covered “five of the most populous
cities” with a total population of almost 5 million people,
“resulting in at least 37.7% of the urban population living
in cities where firearms were prohibited in their parks”);
Wolford, 116 F.4th at 982-83 (“As soon as green spaces
began to take the shape of a modern park, in the middle
of the 19th century, municipalities and other governments
imposed bans on carrying firearms into the parks. . . .
Because many laws prohibited carrying firearms in parks,
and the constitutionality of those laws was not in dispute,
we agree with the Second Circuit and several district
courts that the Nation’s historical tradition includes
regulating firearms in parks.”) (citations omitted).
34a
Appendix A
Plaintiffs do not seriously quarrel with whether this
mountain of regulations is relevantly similar to the Public
Parks Provision. In passing, Plaintiffs suggest that some
of the State’s proffered restrictions “are not similar in
‘why’ they restrict the right to carry arms in public”
because the regulations’ motivations “appear[] almost
always to have been for the protection of wildlife or birds in
the park.” Plaintiffs-Appellants’ Br. at 50. Plaintiffs point
out, for example, that the “many firearms restrictions
were paired with prohibitions on shooting birds.” Id.
However, read in context, these lists of prohibitions, which
also forbade “throw[ing] ston[e]s or other missiles,” Joint
App’x at 418, were meant to keep urban public parks as
peaceable recreational spaces. That is at least one purpose
for the enactment of the Public Parks Provision. See
State-Appellee’s Br. at 17-18 (stating that the purpose of
the Public Parks Provision is “to protect public safety and
order and to ensure that public parks remain peaceable
spaces for contemplation of nature and recreation”).
Instead, Plaintiffs’ main contention is that these
regulations, which began to proliferate starting from 1858,
came too late, and that post-Founding era history “cannot
alone establish the historical tradition of regulation
required by Bruen.” Plaintiffs-Appellants’ Br. at 20.
However, we expressly rejected such a view in Frey.
There, we explained that the absence of Founding-era law
is not dispositive because “it is not necessarily the case
that, if no positive legislation from a particular time or
place is in the record, it must be because the legislators
then or there deemed such a regulation inconsistent with
the right to bear arms.” Frey, 157 F.4th at 130 (quoting
35a
Appendix A
Antonyuk II, 120 F.4th at 969). We may rely on later
history to discern the historical tradition because it can
“provide persuasive evidence of the original meaning” in
1791. Id. (quoting Rahimi, 602 U.S. at 738, 144 S.Ct. 1889
(Barrett, J., concurring)). Later history is also relevant
under a liquidation theory, we explained, because a
“regular course of practice may settle a constitutional
debate at any point in our history.” Id.
Moreover, the lack of Founding-era history is an
especially weak indicator of constitutionality where,
as here, the case concerns “new circumstances” and
“modern regulations that were unimaginable at the
founding.” Antonyuk II, 120 F.4th at 970 (quoting Bruen,
597 U.S. at 27-28, 142 S.Ct. 2111). As explained above,
the lack of similar regulations prior to 1858 is a “natural
consequence” of the fact that modern urban public parks
in the mold of Olmstead’s Central Park did not yet exist
in significant numbers before that time. See Joint App’x at
363-66 (the State’s expert witness opining that “America’s
tradition of public parks was launched in the 1850s” and
discussing the rise of urban public parks in the latter
half of the 19th century). Plaintiffs rejoin that, at the
Founding, there were in fact urban spaces, such as the
Boston Common, that were used for recreational purposes.
Plaintiffs-Appellants’ Br. at 43. However, Plaintiffs also
acknowledge that “Boston Common’s long history show
a variety of uses, both practical and recreational.” Id.
Indeed, “cattle and sheep continued to roam the [Boston]
Common . . . until the 1830s,” and public executions were
believed to have continued there until the early 1800s. See
Boston Common, Nat ’l Gallery of A rt, https://heald.
36a
Appendix A
nga.gov/mediawiki/index.php/Boston_Common [https://
perma.cc/ARC5-BDVR]. The Boston Common therefore
is not akin to the Olmstead vintage of urban parks that
were principally created as dedicated spaces for peaceful
recreation and quiet contemplation of natural scenery. See
Joint App’x 364-68; Wolford, 116 F.4th at 982 (“[M]odern
parks differ from the green spaces that existed in 1791.
Plaintiffs point to Boston Common as an example of a
‘park’ at the time of the Founding, but the record . . .
establishes that Boston Common was used primarily for
grazing animals and for holding military exercises and
was not akin to modern parks. Nor does the record . . .
contain evidence of any other public green space akin in
use and purpose to a modern park. We agree with the
Second Circuit, and at least one district court, that such
examples from the Founding were not relevantly similar
to parks in their modern form.”).
In short, the State has more than carried its burden,
by demonstrating a long, unbroken history of prohibiting
gun carriage in urban public parks and placing the Public
Parks Provision, at least as applied to urban parks, within
that tradition.7 We therefore conclude that the Public
Parks Provision is facially constitutional because the State
has demonstrated that it “is constitutional in some of its
applications.” Rahimi, 602 U.S. at 693, 144 S.Ct. 1889.
7. We therefore need not consider the State’s additional
arguments that the Public Parks Provision falls within a historical
tradition of prohibiting firearms in quintessentially crowded
places and public forums, or locations frequented by children.
37a
Appendix A
Accordingly, we affirm the district court’s judgment in
favor of the State on the Public Parks Provision claim.
CONCLUSION
For the foregoing reasons, we AFFIRM the permanent
injunction against the enforcement of the Private Property
Provision and AFFIRM the judgment of the district court
with respect to the Public Parks Provision.
Menashi, Circuit Judge, concurring in part and dissenting
in part:
I agree with the majority that as applied to private
property open to the public, the Private Property
Provision, N.Y. Penal Law § 265.01-d(1), infringes the right
to keep and bear arms codified in the Second Amendment.
I concur insofar as the majority opinion concludes that the
Private Property Provision is not relevantly similar to
historical laws that form a national tradition of firearms
regulation. I write separately to add that—because
it applies to all types of private property open to the
public—the Private Property Provision does not reflect
a determination that particular circumstances create a
specific risk implicating firearms but instead disapproves
of the carriage of firearms itself. New York cannot disfavor
the bearing of arms in general because “the enshrinement
of constitutional rights necessarily takes certain policy
choices off the table.” District of Columbia v. Heller, 554
U.S. 570, 636, 128 S.Ct. 2783 (2008).
38a
Appendix A
I disagree with the majority that the Public Parks
Provision, N.Y. Penal Law § 265.01-e(2)(d), is consistent
w ith the nation’s historical tradition of firearms
regulation. Regulations during the founding period
restricted the misuse of firearms and the manner of
carriage but did not prohibit carriage in public parks or
other places reserved for recreation and public gatherings.
The majority disregards this history on the ground
that contemporary public parks are so different from
founding-era public parks that the principles of firearms
regulation from the founding period cannot be applied to
current circumstances. Instead, the majority identifies a
regulatory tradition of restricting the carriage of firearms
in parks that emerged in the late nineteenth century.
In my view, the historical evidence from the founding
period cannot be discounted. The public parks of that
period were not so different from contemporary parks that
it is impossible to identify relevant principles of firearms
regulation. The Second Amendment was “intended to
endure for ages to come,” M’Culloch v. Maryland, 17 U.S.
(4 Wheat.) 316, 415, 4 L.Ed. 579 (1819), and our task is to
apply its “fixed” meaning even “to circumstances beyond
those the Founders specifically anticipated,” N.Y. State
Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 28, 142
S.Ct. 2111 (2022).
The majority is correct that in the late nineteenth
century, a new practice of restricting carriage in public
parks emerged. That new practice, however, means that
unlike in prior cases, the regulatory traditions relevant
to this case diverged between 1791 and 1868. I would
39a
Appendix A
resolve the conflict in favor of 1791. “[I]ndividual 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, 142 S.Ct. 2111. To determine the
scope of the Second Amendment as against the federal
government, “we look to the prevailing understanding of
the right to bear arms in 1791,” United States v. Vereen,
152 F.4th 89, 99 (2d Cir. 2025) (internal quotation marks
and alteration omitted), because “[c]onstitutional rights
are enshrined with the scope they were understood to
have when the people adopted them,” Heller, 554 U.S. at
634-35, 128 S.Ct. 2783. The scope of the right to keep and
bear arms is the same as against the federal and state
governments. We therefore prioritize the understanding
of the right that prevailed in 1791. Here, the tradition of
firearms regulation in 1791 did not prohibit the carriage
of firearms in public parks. I would reverse the judgment
of the district court declining to enjoin the enforcement
of the Public Parks Provision. I dissent from the majority
opinion insofar as it refuses to do so.
I
The Private Property Provision violates the Second
Amendment. The Second Amendment “presumptively
guarantees . . . a right to ‘bear’ arms in public for selfdefense.” Bruen, 597 U.S. at 33, 142 S.Ct. 2111. The
New York law reverses that presumption by creating a
default rule that a person may not carry a gun on “private
property,” even property open to the public, unless the
“owner or lessee” has “permitted such possession by clear
40a
Appendix A
and conspicuous signage indicating that the carrying of
firearms, rifles, or shotguns on their property is permitted
or has otherwise given express consent.” N.Y. Penal
Law § 265.01-d(1). The law applies to any type of private
property the public might visit, such as “a gas station or
grocery store,” ante at 195, or a church or plaza. Our court
previously estimated that the Private Property Provision
covers “over 91 percent of land in New York.” Antonyuk v.
James (Antonyuk II), 120 F.4th 941, 1044 (2d Cir. 2024).
Other provisions of the law apply to a specific “sensitive
location,” such as a polling place or a court. See N.Y.
Penal Law § 265.01-e(2). The Private Property Provision,
by contrast, applies “broadly to all property, including
property open to the public,” in order to “protect public
safety and to vindicate the rights of property owners.”
State Appellant’s Br. 2.
The history of American firearm regulations includes
laws that aimed to protect public safety, see United
States v. Rahimi, 602 U.S. 680, 698, 144 S.Ct. 1889 (2024)
(discussing “surety and going armed laws”), or property
rights, see ante at 196-99 (discussing founding-era laws
prohibiting unlicensed hunting and trespass). But those
“focused regulations” addressed particular circumstances
in which the introduction of a firearm might create a
specific “credible threat to the physical safety of others.”
Rahimi, 602 U.S. at 700, 144 S.Ct. 1889. These regulations
do not support “a broad prohibitory regime” aimed at
firearms in general. Id.
The Private Property Provision treats the firearm
itself—in all circumstances—as the risk to be avoided.
41a
Appendix A
The vast sweep of the Private Property Provision means
that the law does not regulate the bearing of arms in
certain specified circumstances. Instead, New York has
concluded that across all the varied types of property the
public might frequent, the carrying of a firearm should
be restricted because guns are dangerous.
But the Second A mendment does not tolerate
regulations that merely disapprove of firearms. “When
the people ratified the Second Amendment, they surely
understood an arms-bearing citizenry posed some
risks. But just as surely they believed that the right
protected by the Second Amendment was itself vital to
the preservation of life and liberty,” and “[w]e have no
authority to question that judgment.” Rahimi, 602 U.S.
at 709, 144 S.Ct. 1889 (Gorsuch, J., concurring). At oral
argument, New York agreed that the state cannot “restrict
firearms ownership if you just disagree with the value of
the Second Amendment.”1 That concession makes sense. A
state cannot “restrict a right simply out of disagreement
with the value of the right” 2 because the codification of a
constitutional right “excludes some government interests
as impermissible,” namely those interests “based on
government hostility toward or unwillingness to value
the constitutional interest.” 3 The Supreme Court has
emphasized that “the enshrinement of constitutional
1. Oral Argument Audio Recording in No. 24-2847 at 1:30.
2. William Baude & Robert Leider, The General-Law Right
to Bear Arms, 99 Notre Dame L. Rev. 1467, 1491 (2024).
3. Stephanie Hall Barclay, Constitutional Rights as Protected
Reasons, 92 U. Chi. L. Rev. 1179, 1190, 1243 (2025).
42a
Appendix A
rights necessarily takes certain policy choices off the
table.” Heller, 554 U.S. at 636, 128 S.Ct. 2783.4 “The
Second Amendment ‘is the very product of an interest
balancing by the people’ and it ‘surely elevates above
all other interests the right of law-abiding, responsible
citizens to use arms’ for self-defense.” Bruen, 597 U.S.
at 26, 142 S.Ct. 2111 (quoting Heller, 554 U.S. at 635,
128 S.Ct. 2783). As a result, the guarantee of the Second
Amendment imposes “limits” on the ability of a state “to
devise solutions to social problems that suit local needs
and values.” McDonald v. City of Chicago, 561 U.S. 742,
785, 130 S.Ct. 3020 (2010) (plurality opinion).
The nation’s tradition of firearms regulation does
not include regulations designed to disfavor the right to
keep and bear arms. To evaluate the constitutionality of a
contemporary firearms regulation, we identify historical
regulations that are “relevantly similar” by examining
“how and why the regulations burden a law-abiding
citizen’s right to armed self-defense.” Bruen, 597 U.S.
at 29, 142 S.Ct. 2111. 5 That analysis might reveal an
historically permissible justification for burdening the
4. Cf. United States v. Stevens, 559 U.S. 460, 470, 130 S.Ct.
1577, 176 L.Ed.2d 435 (2010) (“The First Amendment itself
reflects a judgment by the American people that the benefits
of its restrictions on the Government outweigh the costs. Our
Constitution forecloses any attempt to revise that judgment simply
on the basis that some speech is not worth it.”).
5. See also Oral Argument Audio Recording in No. 24-2847
at 1:40 (the state agreeing that, to defend a contemporary law,
“the how and why have to be consistent with the how and why of
the historical law”).
43a
Appendix A
right in a particular way. See Rahimi, 602 U.S. at 692,
144 S.Ct. 1889 (explaining that a law must “regulate[]
arms-bearing for a permissible reason”). But our tradition
has never permitted pretextual regulations intended to
inhibit the right to keep and bear arms. A constitutional
right might historically have been regulated in the name
of the public good, but “[c]oncern for the public good had
to be genuine; it could not be a mere formal recitation that
served as pretext for an illegitimate end.”6 St. George
Tucker observed, for example, that “[i]n England, the
people have been disarmed, generally, under the specious
pretext of preserving the game: a never failing lure to
bring over the landed aristocracy to support any measure,
under that mask, though calculated for very different
purposes.” 7 Joseph Story explained that “under various
pretences” the right to keep and bear arms had been
rendered “more nominal than real” in England. 8 And
William Rawle wrote that “[a]n arbitrary code for the
preservation of game in that country has long disgraced
them,” repeating the observation of Blackstone that “the
prevention of popular insurrections and resistance to
government by disarming the people, is oftener meant
than avowed, by the makers of forest and game laws.”9
6. Daniel D. Slate, Infringed, 3 J. Am. Const. Hist. 381, 391
(2025).
7. St. George Tucker, View of the Constitution of the United
States 165 (1803) (Liberty Fund 2010) (emphasis added).
8. 3 Joseph Story, Commentaries on the Constitution of the
United States § 1891, at 747 (1833).
9. William Rawle, A View of the Constitution of the United
44a
Appendix A
These authorities reflect the principle that a regulation of
firearms cannot serve “a pretextual repressive purpose.”10
The Supreme Court has recognized that a constitutional
right “protects against governmental hostility which is
masked, as well as overt.” Church of Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534, 113 S.Ct.
2217, 124 L.Ed.2d 472 (1993).11 “Apart from the text, the
effect of a law in its real operation is strong evidence of
its object.” Lukumi, 508 U.S. at 535, 113 S.Ct. 2217. In
this case, the sweeping Private Property Provision acts
“to prohibit one from exercising the Second Amendment’s
central component nearly everywhere that ordinary
human action occurs, and wherever ‘people typically
congregate.’” Koons v. Att’y Gen., 156 F.4th 210, 276 (3d
Cir. 2025) (Porter, J., concurring in the judgment part and
dissenting in part) (quoting Bruen, 597 U.S. at 30-31, 142
S.Ct. 2111), reh’g en banc granted, 162 F.4th 100 (3d Cir.
2025). I agree with the historical analysis of the majority
States of America 126 (2d ed. 1829) (emphasis added).
10. Slate, supra note 6, at 441.
11. This is as true for the Second Amendment as for other
constitutional guarantees. See, e.g., Lukumi, 508 U.S. at 533, 113
S.Ct. 2217 (explaining that when “the object or purpose of a law
is the suppression of religion or religious conduct,” it violates the
Free Exercise Clause); Sorrell v. IMS Health Inc., 564 U.S. 552,
566, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011) (explaining that the
First Amendment forbids laws with the “purpose to suppress
speech”); Kelo v. City of New London, 545 U.S. 469, 478, 125
S.Ct. 2655, 162 L.Ed.2d 439 (2005) (explaining that the Takings
Clause does not allow a taking “under the mere pretext of a public
purpose”).
45a
Appendix A
opinion, but I would additionally conclude that the Private
Property Provision—as applied to private property open
to the public—is unconstitutional because it reflects an
impermissible purpose to disapprove of arms-bearing in
general.
II
The Public Parks Provision also violates the Second
Amendment. In evaluating the constitutionality of the law
on a preliminary record, earlier panels in this litigation
determined that the state was likely to demonstrate that
the banning of “firearms in often-crowded public squares,
including, specifically, city parks,” is consistent with a
tradition reflected in medieval English laws, carried
through to the founding period, and further expressed in
parks regulations in the nineteenth century. Antonyuk v.
Chiumento (Antonyuk I), 89 F.4th 271, 363 (2d Cir. 2023);
Antonyuk II, 120 F.4th at 1026. Our court made sure
to “emphasize,” however, that it was “reviewing facial
challenges to these provisions at a very early stage of this
litigation,” that it had not reached “a full merits decision”
that would “determine the ultimate constitutionality of
the challenged . . . provisions,” and that a final decision
would “await further briefing, discovery, and historical
analysis.” Antonyuk I, 89 F.4th at 388 n.116; Antonyuk
II, 120 F.4th at 1048 n.126.
Since then, another panel of our court has concluded
that Antonyuk misinterpreted the statutes from England
and the founding period. See Frey v. City of New York,
157 F.4th 118, 133 n.6 (2d Cir. 2025) (“Although Antonyuk
46a
Appendix A
read the Northampton and North Carolina statues ‘to
have prohibited firearm carriage in general at fairs and
markets regardless of conduct,’ Bruen undermines that
interpretation.”) (citation omitted) (quoting Antonyuk II,
120 F.4th at 1020 n.82). The majority in this case similarly
concludes that the evidence from the early English and
founding periods does not support the Public Parks
Provision.12 Yet the majority sustains the Public Parks
Provision based entirely on a “tradition” of firearms
regulation in public parks that emerged “in the latter half
of the 19th century.” Ante at 206.
I agree with the majority that regulations of public
parks from “the latter half of the 19th century,” id.,
“flat out prohibited gun carriage inside those parks,”
id. at 205. But these prohibitions reflected a conscious
departure from an earlier tradition that allowed the
carriage of firearms in parks and analogous public spaces.
The evidence from the founding period indicates that a
prohibition on such carriage would be impermissible. In
short, the historical evidence from the eighteenth and
nineteenth centuries offers conflicting answers to the
12. I agree that it is appropriate for the merits panel to
reevaluate earlier conclusions made in a preliminary posture.
See Biediger v. Quinnipiac Univ., 691 F.3d 85, 107 (2d Cir.
2012) (“A decision on a preliminary injunction is, in effect, only
a prediction about the merits of the case; thus, findings of fact
and conclusions of law made by a court granting a preliminary
injunction are not binding and do not preclude reexamination of
the merits.”) (internal quotation marks and citations omitted);
see also Rezzonico v. H & R Block, Inc., 182 F.3d 144, 149 (2d Cir.
1999) (“[T]he law of the case doctrine does not deprive an appellate
court of discretion to reconsider its own prior rulings, even when
the ruling constituted a final decision in a previous appeal.”).
47a
Appendix A
constitutional question in this case.
The Supreme Court has acknowledged “an ongoing
scholarly debate on whether courts should primarily rely
on the prevailing understanding of an individual right
when the Fourteenth Amendment was ratified in 1868
when defining its scope” or on “the public understanding
of the right when the Bill of Rights was adopted in
1791.” Bruen, 597 U.S. at 37, 142 S.Ct. 2111. It has not
entered that debate because in prior cases “the public
understanding of the right to keep and bear arms in both
1791 and 1868 was, for all relevant purposes, the same.”
Id. at 38, 142 S.Ct. 2111. In this case, however, the public
understanding was not the same in 1791 and in 1868. A
flat-out prohibition of firearms in a park was unknown to
the public of 1791. But by the late nineteenth century, a
new tradition allowing such a prohibition had emerged.
The question therefore arises as to whether the tradition
in 1791 or in 1868 should govern.
Despite the scholarly debate, the case law provides
an answer. The Supreme Court has “abandoned ‘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’” and has
instead decided “that it would be ‘incongruous’ to apply
different standards ‘depending on whether the claim was
asserted in a state or federal court.’” McDonald, 561 U.S.
at 765, 130 S.Ct. 3020 (majority opinion) (quoting Malloy
v. Hogan, 378 U.S. 1, 10-11, 84 S.Ct. 1489, 12 L.Ed.2d 653
(1964)). The Court has “decisively held that incorporated
Bill of Rights protections ‘are all to be enforced against
48a
Appendix A
the States under the Fourteenth Amendment according
to the same standards that protect those personal rights
against federal encroachment.’” Id. (quoting Malloy,
378 U.S. at 10, 84 S.Ct. 1489). Indeed, even as it noted a
debate among legal scholars, the Supreme Court in Bruen
reiterated that it had “made clear 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, 142 S.Ct. 2111.
And our court has recognized that the understanding
in 1791 determines the scope of the Second Amendment as
against the federal government. Because “[c]onstitutional
rights are enshrined with the scope they were understood
to have when the people adopted them,” Heller, 554 U.S.
at 634-35, 128 S.Ct. 2783, we have said that “we look to
the prevailing understanding of the right to bear arms in
1791 and time periods in close proximity to 1791,” Vereen,
152 F.4th at 99 (internal quotation marks and alteration
omitted). The right to keep and bear arms has the same
scope against a state government as against the federal
government, so we must prioritize the understanding in
1791. Other circuits agree.13
13. See Lara v. Comm’r Penn. State Police, 125 F.4th 428,
441 (3d Cir. 2025) (“[T]he constitutional right to keep and bear
arms should be understood according to its public meaning in
1791, as that meaning is fixed according to the understandings of
those who ratified it.”) (internal quotation marks and alteration
omitted); Hirschfeld v. ATF, 5 F.4th 407, 419 (4th Cir. 2021) (“When
evaluating the original understanding of the Second Amendment,
1791—the year of ratification—is ‘the critical year for determining
49a
Appendix A
In this case, the state has failed to establish that the
Public Parks Provision is consistent with the nation’s
history and tradition of firearms regulation based
on analogous laws from the founding period. A latenineteenth-century understanding that contradicted the
earlier tradition does not suffice. Accordingly, I would
reverse the judgment insofar as the district court declined
to enjoin the enforcement of the Public Parks Provision.
A
The historical evidence from the founding period
shows that the Public Parks Provision is inconsistent
with the tradition of firearms regulation. Contrary to
the suggestion of the majority that public parks were
unknown to the founding generation, “there is ample
historical evidence of public parks used for recreational
the amendment’s historical meaning.’”) (quoting Moore v.
Madigan, 702 F.3d 933, 935 (7th Cir. 2012)), vacated as moot,
14 F.4th 322 (4th Cir. 2021); United States v. Connelly, 117 F.4th
269, 281 (5th Cir. 2024) (“[B]ecause post-Civil War discussions
of the right to keep and bear arms took place 75 years after the
ratification of the Second Amendment, they do not provide as much
insight into its original meaning as earlier sources.”) (internal
quotation marks omitted) (quoting Bruen, 597 U.S. at 36, 142 S.Ct.
2111); Worth v. Jacobson, 108 F.4th 677, 692-96 (8th Cir. 2024)
(noting that “Bruen strongly suggests that we should prioritize
Founding-era history” and that “it is questionable whether the
Reconstruction-era sources have much weight”); United States v.
Harrison, 153 F.4th 998, 1010 (10th Cir. 2025) (“Evidence from the
founding era—or the years surrounding 1791, when the Second
Amendment was first ratified—is most probative.”); NRA v. Bondi,
133 F.4th 1108, 1116 (11th Cir. 2025) (“The Second Amendment
was ratified, and its meaning fixed, in 1791.”).
50a
Appendix A
purposes in the colonial and Founding eras.” Wolford v.
Lopez, 125 F.4th 1230, 1242 (9th Cir. 2025) (VanDyke,
J., dissenting from the denial of rehearing en banc).
Boston Common was established in 1634. It “was used
for drilling militiamen, but it ‘also served as a site for
informal socializing and recreation,’ including ‘strolling,’
‘horse-and-carriage riding,’ ‘sports,’ ‘entertainment,’ and
‘raucous celebrations.’” Id. (alterations omitted) (quoting
Anne Beamish, Before Parks: Public Landscapes in
Seventeenth-and Eighteenth-Century Boston, New
York, and Philadelphia, 40 Landscape J. 1, 4-6 (2021)).
One traveler in the eighteenth century described
Boston Common “as a place where ‘every afternoon,
after drinking tea, the gentlemen and ladies walk, and
from thence adjourn to one another’s houses to spend
the evening. It is a fine green common with two rows of
young trees planted opposite to each other, with a fine
footway between, in imitation of St. James Park; and
part of the bay forms a beautiful canal, in view of the
walk.’” Kipke v. Moore, 165 F.4th 194, 239 n.14 (4th Cir.
2026) (Agee, J., concurring in part and dissenting in
part) (alterations omitted) (quoting Carl Bridenbaugh,
Cities in the Wilderness: The First Century of Urban
Life in America 1625-1742, at 325 (1964)). “[F]rom time
immemorial,” Boston Common has been “used as a place
of public resort for the recreation of the people.” Steele v.
City of Boston, 128 Mass. 583, 583 (1880).
There are other examples. “In 1733 New York joined
the other northern towns in setting aside a tract of land
for its first public park,” Bridenbaugh, supra, at 325,
when “Bowling Green was established as a place for the
51a
Appendix A
‘Recreation & Delight of the Inhabitants of this City,’”
Wolford, 125 F.4th at 1242 (VanDyke, J., dissenting from
the denial of rehearing en banc) (quoting N.Y.C. Dep’t
of Parks and Recreation, The Earliest New York City
Parks, https://perma.cc/MBM5-FWRZ). There were also
public parks in Philadelphia, Newark, Savannah, and
Charleston. See id.; Kipke, 165 F.4th at 240-41 (Agee, J.,
concurring in part and dissenting in part); Koons, 156
F.4th at 306 (Porter, J., concurring in the judgment in
part and dissenting in part).
Visitors used these public parks for different
purposes—as parkgoers do today—but a common purpose
was recreation. In 1797, Trinity Church sold New York
City the land that would become Duane Park “specifically
for use as a public park” with the express “condition that
it be fenced and landscaped ‘as promotive of health and
recreation.’” N.Y.C. Dep’t of Parks, supra. The notion that
contemporary parks are so unique as to have no analogue
in the founding period “is counterfactual and nonsensical.”
Kipke, 165 F.4th at 239 n.14 (Agee, J., concurring in part
and dissenting in part).
Public parks in the founding period did not feature
prohibitions on the carriage of firearms. Visitors to
Boston Common could carry arms. A municipal ordinance
provided that “no person shall hereafter fire or discharge
any Gun or Pistol from . . . the Commons . . . unless in
the just and legal defence of himself,” his family, or his
property.14 That ordinance shows both that a firearm
14. By-Laws and Town-Orders of the Town of Boston 50
52a
Appendix A
generally could be carried in Boston Common for selfdefense and that the restriction was limited to an offensive
discharge; it was not a flat-out prohibition on carriage.
The laws during this period “regulated the discharge
of firearms within city limits and the storage of gunpowder
to prevent fires” but did not prohibit carriage.15 The
“[l]aws restricted where a person could shoot a gun.”16 The
state identifies three statutes from the founding period
that purportedly restricted carriage in “crowded public
forums like ‘fairs’ and ‘markets.’” State Appellee’s Br. 23.
Each of the statutes mirrored the Statute of Northampton,
which posed “no obstacle to public carry for self-defense
in the decades leading to the founding.” Bruen, 597 U.S.
at 45, 142 S.Ct. 2111. Instead, the statutes provided that
“conduct ‘will come within the Act’” only when marked by
“evil intent or malice.” Id. at 44, 142 S.Ct. 2111 (quoting
Rex v. Sir John Knight, 90 Eng. Rep. 330, 330 (K.B.
1686)). The North Carolina Supreme Court “acknowledged
‘that the carrying of a gun’ for a lawful purpose ‘per
se constitutes no offence.’ Only carrying for a ‘wicked
purpose’ with a ‘mischievous result constituted a crime.’”
Id. at 51, 142 S.Ct. 2111 (citation and alterations omitted)
(quoting State v. Huntly, 25 N.C. 418, 422-23 (1843)). Other
decisions reflected the same “authoritative interpretation”
(1786), available at https://perma.cc/HA9T-ST5M.
15. Robert Leider, Our Non-Originalist Right to Bear Arms,
89 Ind. L. J. 1587, 1598 (2014).
16. Saul Cornell & Nathan DeDino, A Well Regulated Right:
The Early American Origins of Gun Control, 73 Fordham L. Rev.
487, 515 (2004) (emphasis added).
53a
Appendix A
that the Statute of Northampton “only applied to arms
carriers who deliberately terrorized the public.”17 The
restriction applied to “the manner of bearing arms, and
not on the place for bearing arms.”18 These founding-era
laws did not categorically prohibit the carriage of firearms
in parks and crowded areas.
Nor did the founding-era laws restrict carriage
in places of religious assembly. Like parks, churches
served as places for public gathering and reflection.
But “[m]any colonial statutes required individual arms
bearing” at religious gatherings, “such as the 1770
Georgia law that . . . required those men who qualified for
militia duty individually ‘to carry fire arms’ ‘to places of
public worship.’” Heller, 554 U.S. at 601, 128 S.Ct. 2783
(emphasis added) (quoting 19 Colonial Records of the
State of Georgia 137-39 (Allen D. Candler ed., 1911 (pt.
1))).19 “[T]he historical evidence demonstrates that six out
of the thirteen original colonies required their citizens
to go armed when attending religious services or public
assemblies.” Koons v. Platkin, 673 F. Supp. 3d 515, 629
(D.N.J. 2023). Although “a carry mandate is distinct from
a permissive right to carry,” the history shows that “a
17. David B. Kopel & Joseph G.S. Greenlee, The “Sensitive
Places” Doctrine: Locational Limits on the Right to Bear Arms,
13 Charleston L. Rev. 205, 241-42 (2018).
18. Id. at 242.
19. See also Benjamin Boyd, Take Your Guns to Church: The
Second Amendment and Church Autonomy, 8 Liberty Univ. L.
Rev. 653, 697 (2014) (identifying other “colonial laws that required
men to bear arms to church”).
54a
Appendix A
public assembly where people are required to be armed
is not a place so ‘sensitive’ that arms can be prohibited.”
Koons, 156 F.4th at 304 (Porter, J., concurring in the
judgment in part and dissenting in part).
“For Founding-era Americans, armed assembly was
typical.” Id. The laws of the founding period regulated
the conduct of those bearing arms but did not prohibit
the bearing of arms in parks, markets, fairs, or religious
spaces. There might have been some “‘sensitive places’
where weapons were altogether prohibited— e.g.,
legislative assemblies, polling places, and courthouses.”
Bruen, 597 U.S. at 30, 142 S.Ct. 2111. But neither public
parks nor spaces resembling parks were included in
that category. Despite the existence of parks and other
gathering places, founding-era regulations did not impose
a blanket ban on carriage but rather “aimed at the
‘manner’ of bearing arms.” 20
B
The majority opinion jumps about seventy years past
the adoption of the Second Amendment to collect “more
than sixty regulations from cities and towns in more than
twenty States, spanning from 1858 to the early 1900s, that
expressly forbade carriage of firearms in public parks.”
Ante at 202. These laws, the majority says, “are ‘dead
ringers’ that evidence such a robust historical tradition”
of “prohibiting firearms in those parks.” Id. at 204. These
20. Kopel & Greenlee, supra note 17, at 244 (“Of course
misconduct with arms could be prohibited.”) (emphasis added).
55a
Appendix A
regulations were enacted with the introduction of “the
modern urban public parks in the mold of Olmstead’s
Central Park,” parks that “were principally created
as dedicated spaces for peaceful recreation and quiet
contemplation of natural scenery.” Id. at 205-06.
The expert testimony in the record explains that
“the American public park movement arose with the
appearance of Romanticism and urban expansion.” J.
App’x 368. Early proponents of the movement believed
that “American urban society was flawed and that parks
could repair and reform it.” Id. at 363. In this way, “urban
parks were devices for social reform” that could affect
the norms of a “public [that] did not necessarily know
how to behave in their new park[s].” Id. at 371, 375. As
part of the reform agenda, “the commissioners adopted
rules to prompt proper behavior and decorum,” including
a prohibition on carrying firearms. Id. at 375. Municipal
governments prohibited “carrying firearms for selfdefense in urban parks” because “[s]uch encouragement
would have been inconsistent with romantic and rationalist
ideals and antithetical to the social purpose of urban parks
as promoted by those ideals.” Id. at 380.
The ban on carriage was one of several prohibitions
designed “to control and direct visitors in order to allow
nature to reform society.” Id. at 375. In Boston in 1886,
it was “forbidden” in the public parks “to play musical
instruments; to have any intoxicating beverages; to sell,
offer or expose for sale, any goods or wares; to post or
display signs, placards, flags, or advertising devices; . . .
to make orations, harangues or loud outcries; to enter
56a
Appendix A
into political canvassing of any kind; to utter profane,
threatening, abusive, or indecent language,” and “to
solicit the acquaintance of, or follow, or otherwise annoy
other visitors.” Id. at 472. In New York in 1903, it was
“forbidden” for parkgoers to “play upon any musical
instrument” and to “take into, carry or display any flag,
banner, target, or transparency.” Id. at 632. The ordinance
stated that “[n]o one shall fire or carry any firearm” but
added in the same sentence: “nor make any oration, nor
conduct any religious or other ceremony within any of the
parks . . . in The City of New York.” Id. at 633. In 1909,
Memphis similarly made it illegal “[t]o fire or carry any
firearms . . . or make any oration, or conduct any religious
or other meeting or ceremony within any of the parks . . .
without special permission.” Id. at 747.
The emergence of these “romantic and rationalistic
ideals” that defined a new “social purpose of urban
parks,” id. at 380, leads to two conclusions. First, the
late-nineteenth-century urban park is not actually a “dead
ringer” for contemporary parks. While public parks during
the founding period might have featured some uses that
are unfamiliar to contemporary parkgoers, the reformed
public park of the nineteenth century featured restrictions
that are unfamiliar: bans on instruments, flags, religious
meetings, and introducing oneself to others. The public
parks of the founding period and the public parks of the
nineteenth century are both imperfect analogues that help
to ground an historical tradition. There is no justification
for dismissing the parks of the founding period as different
in kind from contemporary parks.
57a
Appendix A
S econd, t he n i net eent h- centu r y reg u lat ions
represented a self-conscious departure from an earlier
regulatory tradition. In particular, the emergence of
regulations prohibiting the carriage of firearms in public
parks reflected a changed attitude toward the right to keep
and bear arms. In the antebellum period, state supreme
courts responded to “the public clamor[] for legislative
solutions to high crime rates” by “compromising on the
scope of the right to bear arms. . . . Most courts recognized
a robust right to carry arms in public . . . but nevertheless
recognized the state’s police power to regulate the right
for public safety.” 21 At this time, some states enacted
constitutional provisions that emphasized the authority of
the legislature to regulate the right. 22 In the “post-Civil
War period,” when “[f]aced with new pressures to allow
legislatures to regulate guns more extensively, courts
21. Leider, supra note 15, at 1601-06.
22. See Eugene Volokh, State Constitutional Rights to Keep
and Bear Arms, 11 Tex. Rev. L. & Pol. 192, 195-204 (2006); see
also Andrews v. State, 50 Tenn. 165, 177 (1871) (“That the citizens
of this State have a right to keep and bear arms for their common
defense. But the Legislature shall have power by law, to regulate
the wearing of arms, with a view to prevent crime.”) (emphasis
added) (quoting Tenn. Const. of 1870, art. I, § 26); English v. State,
35 Tex. 473, 478 (1872) (“Every person shall have the right to keep
and bear arms in the lawful defense of himself or the state, under
such regulations as the legislature may prescribe.’ “) (emphasis
added) (quoting Tex. Const. of 1868, art. I, § 13); Ga. Const. of
1868, art. I, § 14 (“A well-regulated militia being necessary to
the security of a free people, the right of the people to keep and
bear arms shall not be infringed; but the general assembly shall
have power to prescribe by law the manner in which arms may
be borne.”) (emphasis added).
58a
Appendix A
largely altered the scope of the right to bear arms.” 23 The
understanding of “[t]he right to bear arms following the
Civil War” involved “a broad right to keep arms in the
home, but a very limited right to have arms in public.” 24
In this environment, prohibitions on carriage in places
such as parks emerged:
Courts also reconstructed the “regulation/
prohibition” distinction to fit the new legislative
framework. Total prohibitions on carrying guns
in certain places would be “regulations”—
not prohibitions—provided they were not
overbroad. This supplanted the old theory
that prohibitions on concealed weapons did not
restrict the right to bear arms because such
laws merely prescribed the manner in which
arms were borne. 25
The “modern collective rights argument also began to
take hold in the late-1870s,” alongside “[n]ew legislation
[that] strictly regulat[ed] guns,” including “prohibitions
on . . . the possession of guns in certain locations.” 26
As our court recounted in Antonyuk II, during this
23. Leider, supra note 15, at 1619.
24. Id.
25. Id. at 1620.
26. Id. at 1622-23; see also Michael P. O’Shea, The Second
Amendment Wild Card: The Persisting Relevance of the “Hybrid”
Interpretation of the Right to Keep and Bear Arms, 81 Tenn. L.
Rev. 597, 614-17 (2014).
59a
Appendix A
period “new institutions and ideas” about policing and
governance “shaped the response to increasingly lethal
guns in increasingly populous cities” and “reflected the
developing philosophy of proactive local government.” 120
F.4th at 993. And as part of those changing norms “courts
held that complete bans on the possession of firearms in
narrowly defined areas, such as . . . public gatherings,
were permissible regulations of the right to bear arms,
not complete prohibitions on exercising the right.”27 These
developments provide support for a late-nineteenthcentury regulatory tradition, but that tradition supplanted
the regulatory principles that had previously prevailed.
C
The majority addresses the divergence in historical
traditions between 1791 and 1868 by asserting that there
is “an absence of Founding-era evidence supporting a
historical tradition,” which justifies the exclusive reliance
on later history. Ante at 195 (emphasis added). To support
that assertion, the majority assumes that public parks in
the founding period were so unlike parks today that no
lessons can be drawn from the founding-era history. But,
as explained above, that is not true. Contemporary public
parks are not so unique as to be unknown to the founding
generation. Their parks were at least analogous to ours:
In principle, there is no difference between
Colonial-era park-goers fishing, watching
cockfighting, or playing whist; Victorian-era
27. Leider, supra note 15, at 1628.
60a
Appendix A
park-goers playing tennis, riding horse-drawn
carriages, or doing whatever one does to foster
solidarity across social classes; and modern
park-goers playing pickleball, hiking, or riding
hoverboards. Each is engaged in a type of
recreation or leisure in a public location that
sometimes doubles as a place of public assembly.
Koons, 156 F.4th at 307 (Porter, J., concurring in the
judgment in part and dissenting in part). Moreover, the
excessively regulated environment of the romantic “public
park movement” of the nineteenth century also does not
exactly match contemporary practices. J. App’x 368.
Earlier practices, however, “need not be a ‘dead ringer’
or a ‘historical twin’” in order to illustrate “the principles
underlying the Second Amendment.” Rahimi, 602 U.S. at
692, 144 S.Ct. 1889 (quoting Bruen, 597 U.S. at 30, 142
S.Ct. 2111).
The premise of the history-and-tradition approach is
that we can “look[] at historical gun regulations to identify
the contours of the right” that “the people enshrined in
our fundamental law.” Rahimi, 602 U.S. at 739, 144 S.Ct.
1889 (Barrett, J., concurring). “Traditions are reflected
in practices, but they are not reducible to practices,” so
“practices can change while still being continuous with a
tradition” as long as “the new practices are consistent with
the principle(s) undergirding the previous practices.
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