His dissent in Kipke.

Maryland has not come forward with evidence that—at the Founding—States enacted measures prohibiting firearms at public demonstrations. On the contrary, the historical record reflects quite the opposite. As the district court observed, “[j]ust before the ratification of the Second Amendment, ‘six out of the thirteen original colonies required their citizens to go armed when attending … public assemblies.'” Specifically, in the 150 years before the Second Amendment’s enactment, American colonies up and down the Atlantic enacted laws requiring men to bring firearms with them to church and other public gatherings. For example, a 1643 Connecticut law cited the possibility of attacks as the basis for each household to “‘bring a musket, pystoll or some peece, with powder and shott to e[a]ch meeting.'” And a 1642 Maryland law forbade able-bodied men from “go[ing] to church or Chappell … without [a] fixed gunn and 1 Charge at least of powder and Shott.” Given that the Second Amendment codified a preexisting right, such colonial laws illuminate that our Founders would never have commonly understood that right to permit the government to prohibit carrying firearms at public demonstrations.

These specific colonial-era laws also reinforce the broader historical record from the Founding Era. Americans owned firearms and they carried those arms with them when they left home. To return to St. George Tucker’s appraisal, “[i]n many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than a European fine gentleman without his sword by his side.” Put bluntly, “‘Americans certainly did not think that bringing guns to town was a problem’—it ‘was normal.'”

The majority opinion dismisses such Founding-Era evidence based on the misguided notion that laws governing riotous assembly permit the regulation of armed assemblies. But that’s a red herring—Bruen instructs courts to look to the Founding Era to determine whether a modern-day restriction is grounded in the Nation’s tradition of restricting firearm carriage. As already discussed, the affray laws did not address the sort of widespread prohibitions on presence and possession of firearms contemplated by Maryland’s modern prohibition. When it comes to public demonstrations and firearms, the Founding-Era record reveals: (1) no nationwide consensus of prohibiting the mere presence firearms at public gatherings, and (2) numerous examples of firearms being required at public gatherings. It’s the combined effect of these two components of the historical record that compels the conclusion the Second Amendment does not permit governments to prohibit mere possession of firearms at any public demonstration.

Additional considerations bolster this conclusion. As observed elsewhere, Founding-Era required-carry laws “establish[ ] an expectation that the person next to you in the crowd is armed, thus undermining the majority’s assumption that an armed person in the assembly threatens the public good.” Put another way, the existence of these Founding-Era examples illuminates the falsity of the position that locations where the public gathers en masse carry a national tradition of being inherently “sensitive” such that they fall within a class of permissible firearms restrictions.

The majority’s prefatory observation about the interplay of the First and Second Amendment further obfuscates the analysis. No one disputes that the First Amendment protects “the right of the people peaceably assemble,” or that—consistent with the Second Amendment—a state can prohibit firearms from being used in a manner that disrupts the peace. But Maryland’s law prohibits the mere presence of firearms during public demonstration under circumstances unrelated to maintaining the peace. By presuming that the mere presence of firearms somehow threatens peaceful public assembly, Maryland’s law subjugates the Second Amendment right to public carriage for lawful purposes to the First Amendment right to assemble. It also ignores that restricting open carry may itself have First Amendment implications. That’s precisely what the Supreme Court has cautioned against by reminding courts and legislatures that the Second Amendment is “not a second-class right.”

Given the absence of Founding-Era regulations to support Maryland’s broad prohibition of firearms at and near public demonstrations, the majority opinion instead cites a host of inapplicable laws as supposed analogues. None meet Bruen‘s exacting standards. As previously discussed, “affray” and other prohibitions on riotous or unlawful assembly targeted the manner in which arms were carried, not their mere presence or possession. The critical question for these jurisdictions was not whether an assembly was armed, but whether it constituted an “affray,” i.e., a disturbance of the peace. And while a handful of states and territories dating from 1869 to 1890 enacted broader assembly-oriented provisions, as explained above, the Supreme Court deems such examples much too sparse—and from a period much too late—to substantiate proof of a nationwide understanding at the time of the Founding.

This is similar to what I’ve pointed out before.

In the colonies, availability of hunting and need for defense led to armament statues comparable to those of the early Saxon times. In 1623, Virginia forbade its colonists to travel unless they were “well armed”; in 1631 it required colonists to engage in target practice on Sunday and to “bring their peeces to church.” In 1658 it required every householder to have a functioning firearm within his house and in 1673 its laws provided that a citizen who claimed he was too poor to purchase a firearm would have one purchased for him by the government, which would then require him to pay a reasonable price when able to do so. In Massachusetts, the first session of the legislature ordered that not only freemen, but also indentured servants own firearms and in 1644 it imposed a stern 6 shilling fine upon any citizen who was not armed.

When the British government began to increase its military presence in the colonies in the mid-eighteenth century, Massachusetts responded by calling upon its citizens to arm themselves in defense. One colonial newspaper argued that it was impossible to complain that this act was illegal since they were “British subjects, to whom the privilege of possessing arms is expressly recognized by the Bill of Rights” while another argued that this “is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defense”. The newspaper cited Blackstone’s commentaries on the laws of England, which had listed the “having and using arms for self preservation and defense” among the “absolute rights of individuals.” The colonists felt they had an absolute right at common law to own firearms.

And more.

“1. John Adams John Adams, as a 9-or-10-year-old schoolboy, carried a gun daily so that he could go hunting after class. 3 DIARY AND AUTOBIOGRAPHY OF JOHN ADAMS 257-59 (1961). 2. Patrick Henry Patrick Henry would “walk to court, his musket slung over his shoulder to pick off small game.” Harlow Giles Unger, LION OF LIBERTY: PATRICK HENRY AND THE CALL TO A NEW NATION 30 (2010). 3. Daniel Boone “When Daniel was almost thirteen he was given his first firearm, a ‘short rifle gun, with which he roamed the nearby Flying Hills, the Oley Hills, and the Neversink Mountains.’ ” Robert Morgan, BOONE 14 (2007). 4. Meriwether Lewis Meriwether Lewis’s neighbor Thomas Jefferson observed that young Lewis “when only eight years of age . . . habitually went out, in the dead of night, alone with his dogs, into the forest to hunt the raccoon & opossum.” 8 WRITINGS OF THOMAS JEFFERSON, at 482.  5. Thomas Jefferson Thomas Jefferson himself carried as a lad. “When he was ten he was given a gun by his father and sent into the forest alone in order to develop self-reliance.” 1 Dumas Malone, JEFFERSON AND HIS TIME: JEFFERSON THE VIRGINIAN 46 (1948). As an adult, Jefferson wrote about a holster he made for one of his Turkish pistols, “having used it daily while I had a horse who would stand fire,” and he noted another holster he made “to hang them [the Turkish pistols] at the side of my carriage for road use.” 10 THE PAPERS OF THOMAS JEFFERSON, RETIREMENT SERIES 320-21 (2004). Jefferson advised his fifteen-yearold nephew to “[l]et your gun therefore be the constant companion of your walks.” 8 THE PAPERS OF THOMAS JEFFERSON 407 (2004). 6. James Monroe Every day, “[w]ell before dawn, James left for school, carrying his books under one arm with his powder horn under the other and his musket slung across his back.” Tim McGrath, JAMES MONROE: A LIFE 9 (2020). 7. Ira and Ethan Allen Ira and Ethan Allen regularly carried multiple arms at once. For example, in 1772 Ira, Ethan, and a cousin went to purchase land near New York’s border “armed with holsters and pistols, a good case [pair] of pistols each in our pockets, with each a good hanger [sword].” 1 James Wilbur, IRA ALLEN: FOUNDER OF VERMONT, 1751-1814, at 39 (1928). The next year, during land disputes between the Allen trio and the Royal Governor of New York, Ira wrote that the three men “never walked out without at least a case of pistols.” Id. at 44. 8. Joseph Warren Joseph Warren was targeted by the British as tensions rose in April 1775. After spotting the British watch, one of Warren’s friends “advised Warren not to visit his patients that evening. But Warren, putting his pistols in his pocket, replied, ‘I have a visit to make to Mrs. ___, in Cornhill, this evening, and I will go at once.’ ” Richard Frothingham, LIFE AND TIMES OF JOSEPH WARREN 452 (1865). 9. William Drayton When traveling throughout South Carolina in 1775 to promote the Patriot cause, “Drayton always had about his person, a dirk and a pair of pocket pistols; for the defence of his life.” 3 AMERICAN ARCHIVES, 4th ser., at 258 (Peter Force ed., 1840). 10. General Population Recalling the Boston Massacre, British Captain Thomas Preston—commander of the Redcoats stationed in Boston—noted the admonition of a trial judge prior to the incident: “that the inhabitants carried weapons concealed under their clothes, and would destroy them [Redcoats] in a moment, if they pleased.” THE ANNUAL REGISTER, OR A VIEW OF THE HISTORY, POLITICS, AND LITERATURE, FOR THE YEAR 1766, at 215 (4th ed. 1785). On the annual commemoration of the Massacre in 1772, Bostonians attended Dr. Joseph Warren’s stirring oration. Expecting the speech to upset the Redcoats in attendance, “almost every man [in the audience] had a short stick, or bludgeon, in his hand; and . . . many of them were privately armed.” Frederick MacKenzie, A BRITISH FUSILIER IN REVOLUTIONARY BOSTON 37 (Allen French ed., 1926). Writings from early American history mention people carrying firearms as part of everyday life. See, e.g., 1 Isaac Weld, TRAVELS THROUGH THE STATES OF NORTH AMERICA 233-34 (2d ed. 1799) (1796, on the roads from Kentucky/Tennessee to and from Philadelphia/ Baltimore, “the people all travel on horseback, with pistols and swords.”); 8 THE WORKS OF WASHINGTON IRVING 83 (1866) (In 1808 St. Louis, “[n]ow and then a stark Kentucky hunter . . . with rifle on shoulder and knife in belt, strode along.”). “