How a Fabricated Citation Fueled 'Sensitive Place' Gun Bans After Bruen

Legal scholars have uncovered a critical error in post-Bruen gun-rights jurisprudence: courts have relied on a nonexistent historical precedent to justify banning firearms in so-called "sensitive places." A new article published in the Journal of Law & Civil Governance at Texas A&M University details how this fabrication has distorted Second Amendment analysis.

Bruen’s Historical Test and the Rise of ‘Sensitive Place’ Bans

New York State Rifle & Pistol Association v. Bruen (2022) established a two-step test for evaluating Second Amendment challenges: first, whether the conduct is protected by the plain text of the Constitution, and second, whether the restriction aligns with the nation’s historical tradition of firearm regulation. Post-Bruen, courts have frequently upheld bans on carrying firearms in public spaces—such as parks, subways, and courthouses—by invoking a dubious historical lineage.

The Second Circuit’s 2023 decision in Antonyuk v. James exemplifies this trend. The court upheld New York’s place-based restrictions, citing a supposed tradition of colonial-era laws banning the carrying of firearms in markets and fairs. However, this conclusion rested on a misreading of history—and, in one instance, a fabricated citation.

The Fabricated Citation: François-Xavier Martin’s Misattributed ‘Law’

The Second Circuit’s reasoning hinged on a claim that North Carolina had historically banned the carrying of firearms in public places. To support this, the court relied on François-Xavier Martin’s 1792 publication, A Collection of the Statutes of the Parliament of England in Force in the State of North-Carolina, which included the 1328 Statute of Northampton. The court treated this privately compiled legal reference as authoritative, despite the fact that Bruen itself had cautioned against its relevance.

"The Statute [of Northampton] has little bearing on the Second Amendment adopted in 1791," the Supreme Court wrote in Bruen, "and in any event it was interpreted to apply only to going armed in a manner to terrorize others."

Yet Antonyuk ignored this warning. The court claimed that North Carolina’s laws mirrored the Statute of Northampton, which at the time was understood to criminalize going armed "in terror of the country." This misinterpretation was compounded by the court’s failure to examine actual North Carolina statutes.

North Carolina’s Actual Laws: Going Armed Was Not a Crime Per Se

Contrary to the court’s assertion, North Carolina’s colonial and early state laws did not ban the carrying of firearms in public places outright. Instead, they criminalized only those who carried weapons offensively—that is, with intent to terrorize or harm others.

Key legislative milestones include:

• 1741: A North Carolina law directed constables to arrest "all such Persons as, in your Sight, shall ride or go armed offensively." The statute further specified that "no Slave shall go armed with Gun, Sword, Club, or other Weapon."
• 1791: The same language was reaffirmed in an act passed the year the Second Amendment was ratified.
• 1855: The prohibition on "going armed offensively" remained in the state’s statutes, with no provision criminalizing the mere carrying of firearms in public.

As legal historian Stephen P. Halbrook has noted, North Carolina courts consistently held that carrying a gun per se did not constitute an offense. In State v. Huntly (1843), the North Carolina Supreme Court ruled:

"The carrying of a gun per se constitutes no offence."

This principle was reiterated in subsequent cases, including rulings as recent as 2024.

How the Error Spread: From Private Compilation to Federal Precedent

The misattribution of Martin’s Collection as an authoritative legal source has had far-reaching consequences. Even Justice Stephen Breyer, dissenting in Bruen, cited Martin’s work as evidence that North Carolina had adopted the Statute of Northampton verbatim—despite the fact that the compilation was not an official statute book.

Justice Breyer wrote: "North Carolina enacted a law whose language was lifted from the Statute of Northampton virtually verbatim (vestigial references to the King included)."

The reliance on this flawed citation has led lower courts to uphold sweeping restrictions on firearm possession in public spaces, from New York’s subway system to California’s courthouses. Yet, as the Journal of Law & Civil Governance article demonstrates, these rulings rest on a foundation of sand.

Why This Matters for Second Amendment Litigation

The article’s author argues that courts must correct this historical error to restore fidelity to Bruen’s framework. The misattribution of Martin’s Collection as law has allowed governments to justify restrictions that lack any historical basis, undermining the Second Amendment’s protections.

As the author concludes: "The Second Circuit’s decision in Antonyuk is a house of cards built on a foundation of misinformation. Courts must look to actual historical laws—not privately published compilations—to determine whether a restriction aligns with the nation’s tradition of firearm regulation."