When the Supreme Court handed down its landmark decision in New York State Rifle & Pistol Ass’n v. Bruen, it radically shifted how courts must evaluate gun control laws.

Under the Bruen framework, if a state wants to restrict carrying firearms, it can no longer just argue that the restriction is “good policy.”

Naturally, this sent lower courts and state legislatures on a frantic scavenger hunt for Founding-era laws. But what happens when courts build their historical justifications on a ghost story?

In his article for the Journal of Law & Civil Governance at Texas A&M, legal scholar and author Stephen P. Halbrook exposes how appellate courts have relied on a completely fabricated 1792 North Carolina “law” to uphold sweeping modern bans on carrying firearms in “sensitive places” like parks, transit systems, and crowded public spaces.

The “Fairs and Markets” Loopholes

Following Bruen, several states enacted massive “sensitive place” bans. When challenged, the U.S. Court of Appeals for the Second Circuit (in Antonyuk v. James) tried to justify New York’s bans by pointing to the Founding era.

The Second Circuit claimed that at the Founding, Virginia and North Carolina had laws that banned carrying firearms in “fairs and markets”—the crowded public squares of the 18th century—regardless of how peaceably a person behaved.

While the court admitted that Virginia’s law only punished people who went armed “in terror of the country” (i.e., acting aggressively to frighten people), it claimed North Carolina had a strict, absolute ban on carrying weapons in crowded areas. The court then used this “North Carolina model” as the historical pillar to justify modern public carry bans.

There’s just one massive problem: No such North Carolina law ever existed.

The Book that Pretended to Be a Law

To construct this historical analog, the Second Circuit cited a 1792 publication titled A Collection of the Statutes of the Parliament of England in Force in the State of North-Carolina, edited by a young French immigrant and newly minted lawyer named François-Xavier Martin.

Martin’s book included the medieval English Statute of Northampton (1328), which restricted going armed in fairs and markets. But as Halbrook reveals, this was a privately published project, full of errors, and never enacted by the North Carolina legislature.

The ultimate proof of its illegitimacy lies in the text itself. The “law” Martin printed still contained vestigial references to:

• “The King’s servants”
• “The King’s precepts”
• Forfeiting armor “to the King”
• Imprisonment at “the King’s pleasure”

“It boggles the imagination to think that the state [of North Carolina] would enact a law with several references to ‘the King’ sixteen years after the Declaration of Independence.”

In reality, North Carolina’s actual post-independence statutes had explicitly repealed all British statutes by 1838.

What Actual North Carolina Law Said

If the “King’s pleasure” wasn’t the law in North Carolina, what was?

Halbrook traces the actual statutory and judicial history of North Carolina to show a very different tradition:

• The Constable’s Oath (1741): North Carolina directed law enforcement to arrest those who “ride or go armed offensively” to the terror of the public. Peaceably carrying a weapon was entirely legal.
• Judicial Precedent (State v. Huntly, 1843): The North Carolina Supreme Court famously ruled that “the carrying of a gun per se constitutes no offence.” It only became a crime if done with a “wicked purpose” to terrify peaceful citizens.
• Modern Precedents: This “terror” element remains a fundamental requirement of the common-law crime in North Carolina to this day.

How the Infection Spread

So, how did a private, error-ridden 1792 book become treated as Gospel by modern federal judges?

• The Digital Paper Trail: The Duke Center for Firearms Law included Martin’s text in its “Repository of Historical Gun Laws” under a fabricated citation: “ch. 3, N.C. Gen. Stat. (Francois X. Martin 1792)”—a chapter that actually dealt with public monies, not firearms.
• High-Level Adoption: Justice Stephen Breyer fell for the myth, citing Martin’s book in his dissenting opinion in Bruen to argue that North Carolina had copied the Statute of Northampton virtually verbatim.
• A Game of Legal Leapfrog: Once the Second Circuit used the fake NC model to uphold New York’s laws, other circuits jumped on board. The Ninth Circuit (covering California and Hawaii) and the Third Circuit (covering New Jersey) both adopted the flawed historical analysis to uphold their own states’ public carry bans.

Even when other panels (like the Second Circuit in Frey v. City of New York) later admitted that Bruen and actual history undermined the idea that North Carolina banned carrying firearms without malintent, they still upheld the bans anyway.

Why It Matters

Constitutional rights shouldn’t be defined by “hallucinated history”. By relying on a private 1792 book containing references to the British Crown, federal courts have manufactured a Founding-era tradition of gun regulation that simply did not exist.

As Halbrook concludes, in an era where we worry about artificial intelligence hallucinating fake case citations, we should expect human attorneys, scholars, and judges to return to basic, honest, and accurate cite-checking.

Article Citation

Stephen P. Halbrook, How a Fake Citation Misled Courts to Uphold “Sensitive Place” Gun Bans: The Second Circuit’s Misunderstanding of Founding-Era Law on Going Armed, 2 J. L. & Civil Governance Tex. A&M 434 (2026), available at https://jlcgtamu.com/volume-2-issue-2/.