Stephen Halbrook | 10.9.2025 9:29 PM

My last post discussed how the Second Circuit in Antonyuk v. James (2024) relied on a fake North Carolina citation to a non-existent law as the supposed Founding-era analogue to uphold New York's "sensitive place" restrictions where firearms may not be possessed.  (It also cited a 1786 Virginia law as an analogue, but admitted that it had a "terror" element.)  On September 10, in Koons v. Attorney General New Jersey, the Third Circuit followed the Second Circuit off the cliff by making the same error.  The fake "law" cited was the "N.C. Statute of Northampton (1792)," which was actually nothing but a privately published Collection of English statutes that one François-Xavier Martin thought applied in North Carolina.

In contrast, the Ninth Circuit, in Wolford v. Lopez (2024), wasn't willing to buck the Supreme Court's rulings that openly.  The court found:

Defendant also points to colonial laws in Virginia and North Carolina that were successors to the Statute of Northampton. But the Supreme Court has explained that those laws prohibited the carry of firearms only to the "terror" of the people or for a "wicked purpose"; lawful carry was permitted. Bruen, 597 U.S. at 49–51, 142 S. Ct. 2111; see also Rahimi, 144 S. Ct. at 1901 (describing these laws).

And now, a different panel of the Second Circuit says that they were just kidding in Antonyuk.  In Frey v. City of New York (2025), rendered on September 19, the court included a footnote that began: "We are not so certain that the Northampton statute, or the Virginia and North Carolina laws that replicated it, prohibited carriage altogether."  In fact, "Bruen undermines that interpretation." Bruen read the Northampton statute to apply to arms carrying only if done so to terrify others.  Frey continued that, as Bruen noted, the North Carolina Supreme Court in State v. Huntly (1843) held that "the carrying of a gun" for a lawful purpose "per se constitutes no offence," and "[o]nly carrying for a 'wicked purpose' with a 'mischievous result … constitute[d a] crime.'"

But no matter.  Both Wolford and Frey dispensed with any actual........

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