Legal Case Analysis
In reading some recent filings, I came across this excellent take down of the Second Circuit Court’s opinion.
(1550 words)

The following is mostly from plaintiffs (good guys) in Kipke v. Moore in the District Court of Maryland. As mentioned the other day, the state is using the opinion out of the Second Circuit to bolster their arguments. The plaintiffs are having none of it.

Plaintiffs respectfully submit the following response to Defendants’ Notice of Supplemental Authority. See Notice, Doc. No. 45. Plaintiffs argue that the Second Circuit “rejected the notion that courts should look only to Founding-era laws and traditions.” Id. at 1. The only authorities cited by the Second Circuit are the now-vacated Eleventh Circuit opinion in National Rifle Association v. Bondi, a concurrence from the Third Circuit, and two Circuit court opinions pre-dating Bruen. See Antonyuk v. Chiumento, 2023 WL 8518003, at *16 (2d Cir. Dec. 8, 2023). Plaintiffs maintain that “the scope of the protection applicable to the Federal Government and States is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791.” Bruen, 142 S.Ct. at 2137. The paucity of relevant authority supporting the opposing view only bolsters Plaintiffs’ position. The Second Circuit further erred in suggesting that a different analysis was appropriate “[b]ecause the [New York statute] is a state law.” Antonyuk, 2023 WL 8518003, at *15. Bruen squarely holds that the Second Amendment has “the same scope” against the States as it does against the federal government and thus there can be no different test when it is applied to the States. Bruen, 142 S. Ct. 2137. See Mem. in Support of Pls.’ Mot. for Prelim. Inj. at 11–13, Doc. 24-1 (“MPI”); Pls.’ Reply at 11–12, Doc. 38 (“P. Reply”)
Kipke v. Moore, No. 1:23-cv-01293, slip op. at 1–2 (D. Md.)

NRA v. Bondi was the case down in Florida where the 3 judge panel found that 18, 19, and 20-year-olds were not part of “The People”. They published their opinion. Their opinion was immediately stayed by another judge on the Eleventh Circuit court. The case was then taken up en banc.

We are waiting for the en banc panel to issue their opinion.

Citing to NRA v. Bondi as good case law is a profound error. It is no different than citing to —Dred Scott v. Sandford, 60 US 393 (Supreme Court 1857) to support a current regulation. (Dred Scott was an awful Supreme Court opinion that has been corrected by the Supreme Court.)

The Circuit Courts like to think of themselves as Supreme Courts. Even if the Supreme Court has told the Article III inferior courts how to do something, the Circuit Courts, which are inferior courts, will hold on to their past opinions with a stranglehold.

The Forth Circuit court should have had an easy task when asked if Kolbe is still good law. The Supreme Court just GVRed a case to the Fourth, telling them that using Kolbe they got it wrong. Yes, Kolbe is part of the dung heap of the past.

Depending on decisions, pre-dating Bruen is wrong. The problem that these rogue courts have, is that they don’t have any ground to stand on. Every time they think they are on firm ground, it turns to quicksand. They knew they were infringing when they used the means-end tests. They knew they were ignoring what the Supreme Court wanted. They were more concerned with their agenda.

In —Mcdonald V. Chicago, 177 L. Ed. 2d 894 (2010), the Supreme Court clearly stated that the Second Amendment is incorporated. That it applies to the states as well as the Federal government. For the Second Circuit to say that state law is somehow different is an abuse of their authority.

Defendants also note the Second Circuit’s statement that “[r]easoning from historical silence is risky” because the realities faced today may be different than those in prior historical periods. Notice at 2; Antonyuk, 2023 WL 8518003, at *13. That is dicta, and in any event, it contradicts Bruen. The Supreme Court made clear that it is the government’s “burden to identify an American tradition justifying” the modern restrictions. Bruen, 142 S. Ct. at 2138. If no analogues exist, or if the government simply fails to identify them, the Second Amendment presumptively protects Plaintiffs’ ability to keep and bear arms in public. See id. at 2126. This Court should hew to Bruen’s instructions rather than speculating on the meaning of historical silence. Additionally, the Second Circuit’s invocation of present-day realities injects the very interest-balancing concerns that Bruen rejected as irrelevant to the scope of Second Amendment rights. See id. at 2126–27.
#46 in Kipke v. Moore, No. 1:23-cv-01293, slip op. at 2

Yep. The Supreme Court said it is the government’s burden to show a history and tradition of historical analogous regulations from the founding era. The Second Circuit court said, “But if there are no such regulations, the lack does not mean this modern infringement is unconstitutional.”

Yes, it does mean that the state has failed to meet its burden. That means the modern-day regulation is unconstitutional.

Next, Defendants claim that the Second Circuit relied on the same Reconstruction-era statutes they cite to find a historical tradition of restricting carry in crowded places, or those where children are present. Notice at 2. Again, that reasoning flies in the face of Bruen, which found that a place does not become sensitive simply because it is crowded; that reasoning would “eviscerate” the “general right” to carry in “cities” and other places where people “congregate.” See Bruen, 142 S. Ct. at 2134. Instead, it is vital to assess why the places that Heller and Bruen suggested are presumptively sensitive were in fact sensitive at the Founding. As Plaintiffs explain, the key uniting feature is that polling places, legislatures, and courthouses were protected by comprehensive, government-provided security. See MPI at 26–29. While Defendants note that the Second Circuit also deemed schools as a sensitive place and drew analogies from them, Bruen stated only that courts could analogize from polling places, legislatures, and courthouses. See Bruen, 142 S. Ct. at 2133. And in any event, carry was only prohibited by students at schools through the exercise of the schools’ in loco parentis authority. See P. Reply at 21–22
id. at 2–3

I concur in part and dissent in part. While they are absolutely correct that the reasoning behind these infringement flies in the face of Bruen, I would have argued that Reconstruction-era regulations don’t matter in this situation.

The Supreme Court has stated that the meaning of a regulation (amendment) is set at the time it is adopted. It has the meaning the people understood it to have when they adopted/ratified the regulation.

This makes it clear that the meaning of the Second Amendment was fixed as to its meaning in 1791.

The Fourteenth Amendment was ratified in 1868. It has the meaning the people understood it to have when they ratified it.

What did the Fourteenth Amendment mean when it was ratified in 1868? It meant that they were choosing to have the United States Constitution be the law of the land. The rights protected by the Constitution, as amended, applied equally to the states as to the Federal government.

In other words, in 1868 they adopted the Second Amendment as it was understood in 1791 when the Second Amendment was ratified.

I do enjoy that the plaintiffs are calling out the Second Circuit did not follow Bruen. The Supreme Court hasn’t given their opinion on Schools as sensitive places from which arms can be banned. They have stated that it is presumptively constitutional because they haven’t been asked the question yet.

The Supreme Court instructed the inferior court to match current sensitive locations to polling places, legislatures, and courthouses. They did not include “schools” in that list.

An interesting aside, for me, is that my state capital explicitly allows firearms. I wonder why my state, with so many people who carry everywhere they go, doesn’t have an issue with guns in legislative locations. Yet, Maryland, where it is nearly impossible to get a CCW, fears people with guns near the legislatures.

The Second Circuit’s opinion supports Plaintiffs’ position that Maryland’s State parks and forests and Chesapeake forests are not sensitive places. See Antonyuk, 2023 WL 8518003, at *58–59 (expressing “doubt that there is historical support for the regulation of firearms in wilderness parks, forests, and reserves”). The State parks, State forests and State Chesapeake forests at issue in this case encompass many thousands of acres and are uniformly quite rural. See MPI at 24; P. Reply at 33-34. Thus, the Second Circuit’s “doubts” about such places are directly applicable here. Finally, the Second Circuit affirmed the district court’s decision enjoining the presumptive ban on possession of firearms on private property. See Antonyuk, 2023 WL 8518003, at *80–85. That affirmance supports this Court’s decision preliminarily enjoining Maryland’s virtually identical presumptive ban at issue in this case.
id. at 3

This is precisely what the pundits said about this horrid Second Circuit court opinion. That what they got wrong, they got wrong because they were way out over their skis. What they little they got right, will be used in other cases and are strong arguments.

Most of the bad reasoning, and bad faith reasoning, in the Second Circuit court’s opinion was based on bad readings of Supreme Court opinions and other case law. They turned arguments upside down to justify their agenda. It will not stand.


Dred Scott v. Sandford, 60 US 393 (Supreme Court 1857)
District of Columbia v. Heller, 467 U.S. 837 (2008)
Mcdonald V. Chicago, 177 L. Ed. 2d 894 (2010)
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)
Kipke v. Moore, No. 1:23-cv-01293 (D. Md.)
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