The legal news these days is full of stories about lawyers and law firms being fined or sanctioned for submitting documents with fake legal citations generated by AI. In “How a Fake Citation Led Courts to Uphold ‘Sensitive Place’ Gun Bans,” Stephen P. Halbrook tells a story about a fake legal citation that wasn’t generated recently by a hallucinating AI chatbot and didn’t end with a lawyer being fined or sanctioned. Instead it started life as an all too human mistake about a 1741 North Carolina statute, and it ended up changing the way the federal courts have interpreted the 2nd Amendment. From the Abstract:
New York State Rifle & Pistol Ass’n v. Bruen held that the Second Amendment presumptively protects conduct covered by its plain text. A state must justify its restriction by showing it to be consistent with America’s historical tradition of firearm regulation. The original public understanding at the Founding is key to that question. Post-Bruen, courts have sought to uphold restrictions that ban firearms in various “sensitive places” based on a misunderstanding of the Founding-era offense of going armed in a manner that terrorized the public. Antonyuk v. James upheld New York’s place restrictions based on its claim that Founding-era … North Carolina laws banned going armed per se in fairs and markets. That historical tradition of regulation, the Second Circuit held, justifies New York’s current law. But Antonyuk has constructed a house of cards by ignoring actual North Carolina law and mistaking a privately published book for that law. In 1792, François-Xavier Martin published 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. …
Antonyuk did not bother to research actual North Carolina law. In 1741, the colony of North Carolina enacted a law directing constables to arrest “all such Persons as, in your Sight, shall ride or go armed offensively.” … That same language was approved by an act passed in 1791 and continued to reappear in the statutes at least as late as 1855. Going armed was not a crime unless done so offensively. …
Antonyuk further ignored North Carolina precedents. State v. Huntly recognized the common-law offense of going armed to terrify, but said that “the carrying of a gun per se constitutes no offence.” That reading of the law was repeated over and over as late as 2024.
Courts have been misled by the citation of Martin’s Collection as a “law” at the highest level. Dissenting in Bruen, Justice Breyer cited Martin as the authority for the proposition that “North Carolina enacted a law whose language was lifted from the Statute of Northampton virtually verbatim (vestigial references to the King included).” It boggles the imagination to think that the state would enact a law with several references to “the King” sixteen years after the Declaration of Independence.
It is unclear where the rumor started that Martin’s book was a “law,” but the Duke Center for Firearms Law includes it in its Repository of Historical Gun Laws…. Another fake citation for this “law” that has been cited is “1792 N.C. Laws 60, 61 ch. 3,” which does not exist.
The Ninth Circuit, in Wolford v. Lopez, recognized that Bruen rejected the purported place restrictions in North Carolina law, but upheld them anyway despite no Founding-era tradition of regulation. Yet the Third Circuit swallowed Antonyuk hook, line, and sinker to uphold New Jersey’s extensive place bans, including the misrepresentation that Martin’s book was a North Carolina “law.” … And then a different panel of the Second Circuit, in Frey v. City of New York, admitted that “Bruen undermines” Antonyuk’s interpretation, but upheld other parts of New York’s “sensitive place” bans despite no Founding-era tradition of regulation.
This matter is not about a single, erroneous citation with no consequence. In Antonyuk, the Second Circuit built its entire theory of Founding-era analogs on sand in order to comply with Bruen’s directive to find a historical tradition of regulation that supported New York’s wide restrictions. That decision has since influenced two other circuits, covering three states, to adopt the same flawed approach—and others may soon follow. These decisions are based on a badly mistaken analysis of America’s historical tradition of firearm regulation and should be overturned.
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