CHIEF JUSTICE JOHN ROBERTS’ RELUCTANCE TO HANDLE MAJOR SECOND AMENDMENT ISSUES ENCOURAGES STATES TO DEFY SUPREME COURT RULINGS: THE WOLFORD VS. LOPEZ CASE IS YET ONE MORE DISTRACTION

THE U.S. SUPREME COURT HAS, SINCE THE 2022 BRUEN CASE, TAKEN UP ONLY A FEW SECOND AMENDMENT CASES AND THOSE IT DOES TAKE UP ARE THE LEAST IMPORTANT. WOLFORD VS. LOPEZ IS ONE OF THOSE CASES.

CHIEF JUSTICE JOHN ROBERTS’ RELUCTANCE TO HANDLE MAJOR SECOND AMENDMENT ISSUES ENCOURAGES STATES TO DEFY SUPREME COURT RULINGS AS IS EVIDENCED BY THE RULINGS AND REASONING OF BOTH THE U.S. DISTRICT COURT OF HAWAII AND THE RULINGS AND REASONING OF THE U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT, IN WOLFORD.

INTRODUCTION

The theme of this essay, which underscores all our work product on the Natural Law Right codified in the Second Amendment of our Nation’s Bill of Rights since we began the ARBALEST QUARREL (thirteen years ago), rests on our recognition of A NATURAL TENSION, DISTURBING AND PERSISTENT that exists BETWEEN Government (ALL Government (both Federal and the States)) and the American people (“THE COMMON MAN”).

THIS TENSION IS AT ONCE NOTICEABLE IN GOVERNMENT’S CONSTANT, INEXORABLE, AND INSIDIOUS EFFORT TO RESTRICT, AND CONSTRAIN THE COMMON MAN’S EXERCISE OF HIS FUNDAMENTAL, PREEXISTING RIGHT TO KEEP AND BEAR ARMS VERSUS THE COMMON MAN’S VEHEMENT, DETERMINED COUNTER EFFORT, TO PUSH BACK AND EFFECTIVELY REPEL THOSE ACTIONS OF GOVERNMENT THAT IS JUST AS DETERMINED TO FRUSTRATE THE COMMON MAN’S EXERCISE OF THAT RIGHT.  

THE ENDGAME OF GOVERNMENT IN THIS REGARD IS THE DE FACTO ELIMINATION OF THE RIGHT, IF NOT DE JURE REPEAL OF THE SECOND AMENDMENT. AND, IF GOVERNMENT PREVAILS, TYRANNY RESULTS. THIS WE TAKE TO BE AXIOMATIC (SELF-EVIDENT TRUE), JUST AS THE FRAMERS TOOK THIS TO BE SO, WHICH IS THE REASON FOR EXPRESS RECITATION OF THE RIGHT IN THE BILL OF RIGHTS.

OF COURSE, REPEAL OF THE SECOND AMENDMENT does not extinguish the Right. That is both legally and logicall impossible, but not because the Framers of our Constitution, the Founders of our Free Republic, made the act of amending the Constitution deliberately, but justifiably, difficult, but because FUNDAMENTAL Rights ARE NOT THE SORT OF THINGS THAT ARE SUBJECT TO DE FACTO OR DE JURE ELIMINATION.

FUNDAMENTAL NATURAL LAW RIGHTS, LIKE THE RIGHT TO ARMED SELF-DEFENSE (AS SUBSUMED IN ONE’S NATURAL LAW FUNDAMENTAL RIGHT TO MAINTAIN HIS INTEGRITY OF MIND AND BODY, SOUL AND SPIRIT), IS NOT A MAN-MADE CONSTRUCT. THE RIGHT IS INTRINSIC TO MAN’S BEING. AND THIS, TOO, WE TAKE AS AXIOMATIC. SO, “ERASURE” OF THE WORDS OF FUNDAMENTAL RIGHTS BY GOVERNMENT ACTION DOES NOT DESTROY THE RIGHT BECAUSE THE RIGHT IS NOT THE SORT OF THING THAT CAN BE DESTROYED. AND GOVERNMENT’S USE OF FORCE OF ARMS TO DEPRIVE THE COMMON MAN OF HIS UNALIENABLE RIGHT CAN BE AND WILL BE MET BY FORCE OF ARMS.

EXPRESS RECITATION OF THE RIGHT, DEMANDED BY THE ANTIFEDERALISTS DURING DISCUSSION OF THE BILL OF RIGHTS, IS MEANT AS A WARNING TO GOVERNMENT—THAT THE KEEPING AND BEARING OF ARMS BY THE COMMON MAN IS BOTH AN INDESTRUCTIBLE RIGHT AND AN IMPOSING POWER, THAT, WHEN HARNESSED, CAN EFFECTIVELY TEAR DOWN A TYRANNY.

ONE BRANCH of the FEDERAL GOVERNMENT, THE U.S. SUPREME COURT, established in ARTICLE III OF THE CONSTITUTION, has the unique ability, in the exercise of his authority UNDER THE LAW, to prevent a debacle between GOVERNMENT AND THE PEOPLE.

THE COURT’S LANDMARK SECOND AMENDMENT DECISIONS IN HELLER, MCDONALD, AND BRUEN—A LONG-TIME IN COMING, WELL OVER TWO HUNDRED YEARS SINCE THE RATIFICATION OF THE BILL OF RIGHTS—DID MUCH TO REIN IN THE UNCONSTITUTIONAL AND UNCONSCIONABLE ACTIONS OF THE STATES THAT CLAIMED, ERRONEOUSLY, THAT THE EXERCISE OF THEIR POLICE POWERS OVERRIDES THE COMMON MAN’S EXERCISE OF HIS RIGHT TO ARMED SELF-DEFENSE (THE RIGHT TO KEEP AND BEAR ARMS) AGAINST THREATS POSED BY PREDATORY ANIMAL, PREDATORY MAN, AND THE PREDATORY MAN-BEAST OF GOVERNMENT.

The U.S. Supreme Court made abundantly clear in those three landmark decisions that the STATES DO NOT HAVE UNLIMITED DISCRETIONARY POWER TO EXERT CONTROL OVER THE AMERICAN PEOPLES’ (THE COMMON MAN’S) RIGHT TO KEEP AND BEAR ARMS just by ASSERTING that STATE EXERCISE OF ITS POLICE POWERS IN THE OSTENSIBLE FURTHERANCE OF PROMOTING, AND PROVIDING FOR, “PUBLIC SAFETY” FOR THE WELL-BEING OF THE COMMUNITY AS A WHOLE INVARIABLY, CONSTITUTIONALLY JUSTIFIES THE STATE’S CURBING AN AMERICAN’S RIGHT TO ENSURE HIS OWN “PERSONAL SAFETY” BY KEEPING AND BEARING THE MOST EFFECTIVE MEANS OF DOING SO—A FIREARM.

While the HELLER, MCDONALD, and BRUEN DECISIONS WENT A LONG WAY TO REIN IN STATE ACTION IMPACTING THE RIGHT CODIFIED IN THE SECOND AMENDMENT, those cases were not the final word on the matter. Stubborn States, always looking for a loophole, whether plausible or implausible, constantly tested the meaning of and the boundaries of the rulings and reasoning of the Supreme Court in those seminal cases.

DEFIANT STATES AUDACIOUSLY CLAIM THAT AMERICANS WHO CHALLENGE STATE ACTIONS THAT REIN IN AMERICANS’ RIGHT TO ARMED SELF-DEFENSE CONSTITUTE AN IMPEDIMENT TO AND AN ENCROACHMENT UPON THE STATES’ “SOVEREIGN AUTHORITY” AND RESPONSIBILITY TO PROVIDE FOR AND TO PROMOTE “PUBLIC SAFETY” FOR THE COMMUNITY AS A WHOLE [BUT CONSCIOUSLY OMITTING TO ASSERT THE FACT THAT “PUBLIC SAFETY” DOES NOT EXTEND TO, AND HAS NOTHING WHATSOEVER TO DO WITH, GUARANTEEING THE SAFETY AND WELL-BEING OF THE INDIVIDUAL MEMBERS THAT COMPRISE THE COMMUNITY—A NON-TRIVIAL DETAIL THAT STATE GOVERNMENTS ALWAYS CONVENIENTLY FAIL TO MENTION, WHICH COMES AS A SHOCKING AND SURPRISING REALIZATION TO THE PUBLIC WHEN, ON OCCASION, THE STATE IS COMPELLED TO ACKNOWLEDGE THAT FACT, GENERALLY IN A COURT PROCEEDING, BROUGHT BY AN INJURED MEMBER OF THE COMMUNITY SEEKING DAMAGES, AGAINST THE STATE].

IRONICALLY, IT IS THOSE SAME STATES, INCLUDING NEW YORK, ILLINOIS, MARYLAND, CALIFORNIA, HAWAII, AND SEVERAL OTHERS, THAT RESORT TO CLAIMING THE DEFENSE OF “SOVEREIGN IMMUNITY” WHEN AN AMERICAN BRINGS AN ACTION AGAINST THE STATE FOR SERIOUS INJURY OR DEATH RESULTING FROM THE STATE’S FAILURE TO PREVENT THE HARM DONE TO THE PERSON THROUGH THE NEGLIGENCE OR RECKLESS DISREGARD OF THE STATE IN THE PERFORMANCE OF ITS DUTY TO PROMOTE PUBLIC SAFETY.

AND, YET, INEVITABLY ALBEIT ABSURDLY, THAT SAME STATE WILL ALWAYS RAISE THE DEFENSE OF SOVEREIGN IMMUNITY, A PERFECT DEFENSE, NOTWITHSTANDING THE STATE’S OWN FAILURE TO GUARANTEE A PERSON’S SAFETY. THAT HARM DONE TO THE INDIVIDUAL IS COMPOUNDED BY THE STATE’S CONTEMPORANEOUS INTRUSION ON AN INDIVIDUAL’S RIGHT TO GUARANTEE HIS OWN PERSONAL SAFETY BY CARRYING A FIREARM FOR SELF-DEFENSE.

We have written extensively on this topic. It is one as timely today as when we first dealt with it, several years ago. See, e.g., three of our articles reposted on Ammoland Shooting Sports News.

One article, titled, “Can We, As Individuals, Rely On The Police To Protect Us?”, was published on Ammoland on November 26, 2019. A second article, titled, “The Government Cannot Protect You! You Must Protect Yourself!”, was published on Ammoland on August 6, 2020. A third article, titled, “NYC Mayor Eric Adams Has His Own Armed Protection; What About the Rest of Us?”, was published on Ammoland on April 5, 2022.

A STATE SHOULD NOT BE ABLE TO OR ALLOWED TO INTRUDE UPON AN AMERICAN’S EXERCISE OF HIS RIGHT TO ARMED SELF-DEFENSE SIMPLY BY BALDLY CLAIMING THAT EXERCISE OF THE RIGHT TO ARMED SELF-DEFENSE ENCROACHES ON AND IMPEDES THE STATE’S OWN RIGHT, AND AUTHORITY, AND POWER TO PROVIDE FOR “PUBLIC SAFETY.”

This raises the question, what is the U.S. Supreme Court doing to explicate and clarify the rulings of the three Landmark cases to protect AMERICANS’ RIGHT TO PROVIDE FOR HIS “PERSONAL DEFENSE” as the STATES continue to run roughshod over the Americans’ right to armed self-defense?

THE ANSWER? NOT MUCH!

The U.S. Supreme Court’s HANDLING of PROFOUND SECOND AMENDMENT ISSUES has fallen on hard times since publication of the Court’s THIRD Landmark decision in New York State Rifle & Pistol Association (NYSRPA) vs. Bruen, on June 23, 2022. Two of the most recent monumentally important Second Amendment cases that have wended their way up to the Court on petitions for writs of certiorari are Antonyuk vs. James and Snope vs. Brown.

The Court denied review of both.

Yet these two cases begged for High Court review because the questions raised in these cases are tremendously important to the advancement of U.S. Supreme Court Second Amendment Jurisprudence. They raise sequentially important first-order major issues that, in the absence of resolution, leave the principal Heller, McDonald, and Bruen case rulings in a state of flux; the Right codified in the Second Amendment severely weakened; and reviewing courts floundering, due to lack of guidance by the High Court on how reviewing courts are expected to adjudicate cases that involve state action impinging Americans’ exercise of their Gundamental, Natural Law Right to armed self-defense.

As the Chief Justice, John Roberts, bears personal responsibility for leaving the Court’s precedential setting Second Amendment cases in a state of limbo because he influences which cases both he and the eight associate justices vote to grant or deny review of.

Plainly, Roberts does not wish to advance High Court Second Amendment jurisprudence. And, in that failure, our Nation’s most vital right rests in a highly weakened state, CAUSING THE VERY FOUNDATION OF OUR FREE CONSTITUTIONAL REPUBLIC TO TOTTER.

The Antonyuk case is crucially important because one of the issues asks the Court to provide guidance in using the new judge-crafted mechanism for reviewing the constitutionality of state action impacting the Second Amendment.

The NEW STANDARD, called, “HISTORICAL TRADITION,” first articulated in Heller, and then expounded and expanded upon in Bruen, replaces the flawed “INTEREST-BALANCING” standard.

Yet further substantive work pertaining to the correct use of this standard remains. The U.S. Supreme Court Rahimi case didn’t clear up the matter. In fact, the Court’s lack of cohesion on the application of HISTORICAL TRADITION leaves the utility of the test in serious doubt.

But the Court crafted the standard, it therefore behooves the Court to concisely, coherently lay out how the Federal and State Courts are expected to employ it. The Court hasn’t done any of this, and Roberts obviously doesn’t want to get this job done.

Yet every state action that impacts the Second Amendment requires use of this reviewing tool or some kind of standard. And, without clear High Court guidance, any decision of a reviewing court on matters involving state action impacting the Second Amendment remains dubious, including those decisions of the Supreme Court itself. This results in ad hoc, nebulous decisions all the way up the line. And Anti-Second Amendment jurisdictions take advantage of this instability. The tenuousness reasonably calls into question whether the “HISTORICAL TRADITION” is itself a faulty instrument, which if flawed requires the Court to devise another standard to replace it.

The Antonyuk case is immensely significant for another reason. Bruen arose as a challenge to the constitutionality of New York’s Handgun Law that has existed for well over a century. The New York Government has, since the date of its statehood, shown a pronounced distaste for the Second Amendment, and has not, to the present time, ever recognized “the right of the people to keep in bear arms” in the State’s Constitution. The right exists only in State Statute, where it can be repealed by the Legislature at any time.

The Government has a vested interest in denying the majority of people that wish to carry a handgun for self-defense from doing so, and the Government has successfully accomplished this by creating a mechanism devised for just such a purpose.

The mechanism is called “PROPER CAUSE.”

When the U.S. Supreme Court struck down “PROPER CAUSE” as unconstitutional, the New York Government adopted “GOOD MORAL CHARACTER” as a substitute for “PROPER CAUSE,” to accomplish much of the same thing.

The Government also made massive use of “SENSITIVE PLACE” restrictions to severely constrain where a holder of a valid concealed handgun carry license can lawfully carry a handgun for self-defense, frustrating the license holder’s exercise of his fundamental, unalienable right to armed self-defense.

Plainly, the New York Government intended TO DEFY the U.S. Supreme Court decision, which is reason enough for the Court to review Antonyuk.

Failure to chastise a defiant state only encourages other states to defy the High Court, thereby severely injuring the Court’s reputation and weakening its Article III authority.

The Snope case raises another tremendously significant issue, calling into question a state’s defiance of a principal laid out in Heller. In Heller the Court stated that WEAPONS IN COMMON USE FALL WITHIN THE CORE PROTECTION OF THE SECOND AMENDMENT. Anti-Second Amendment jurisdictions, including Congressional Democrats that abhor civilian citizen possession of semiautomatic weapons that are in common use (and there is no question that these weapons “ARE IN COMMON USE”), defy Heller’s command that such weapons are protected under the Second Amendment, and, therefore, states ARE FORBIDDEN TO ENACT LAWS THAT INFRINGE THE VERY CORE OF THE RIGHT.

The matter is straightforward, and the Court precedent is clear. Yet John Roberts continually refuses to grant review of any case where Americans have challenged an unconstitutional State law that bans possession of such weapons.

On October 3, 2025, the U.S. Supreme Court did grant review of the Second Amendment case, Wolford vs. Lopez—a relatively insignificant case, raising a second order question that cannot be properly dealt before resolution of the “HISTORICAL TRADITION” standard.

Oral Argument is set for April 1, 2026. There were two questions posed in Petitioners’ Brief, one of which was essentially the same question posed in Antonyuk, asking the Supreme Court to clarify application of the “HISTORICAL TRADITION” test.

The second question goes to Hawaii’s imposition of a rule on owners of private property opened to the public—a “SENSITIVE PLACE” restriction issue, which NECESSARILY IMPLICATES THE APPLICATION OF “HISTORICAL TRADITION,” and ERRONEOUSLY ASSUMES WHAT MUST BE PROVED: WHETHER A STATE’ USE OF THE VERY CONCEPT OF “SENSITIVE PLACE” RESTRICTIONS IS AN UNCONSTITUTIONAL INFRINGEMENT ON THE EXERCISE OF THE FUNDAMENTAL RIGHT TO ARMED SELF-DEFENSE.

Yet, the Chief Justice, John Roberts, inexplicably limited Court review to the question involving the constitutionality of Hawaii’s law directed to private property owners.

This essay is devoted to addressing the intricacies of the matters laid out in this INTRODUCTION but within THE CONTEXT of the SOLE PERSON responsible for having allowed these Second Amendment problems to grow and to fester: CHIEF JUSTICE JOHN ROBERTS.

PREFACE

THIS PRESENT ESSAY IS WRITTEN FOR THE BENEFIT OF ALL AMERICANS WHO CHERISH THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS. WE TAKE AS AXIOMATIC THAT THIS RIGHT, AS WITH THE OTHER RIGHTS IN THE BILL OF RIGHTS, ARE THOSE THAT ACCRUE TO THE CITIZENRY ALONE. BEHIND THIS IDEA IS THAT GOVERNMENT, THE FEDERAL GOVERNMENT AND THE STATES, ARE NOT TO INTRUDE ON THE INDIVIDUAL’S EXERCISE OF HIS RIGHTS. UNFORTUNATELY, THROUGH TIME, THE FEDERAL GOVERNMENT AND THE STATES HAVE DECIDED THEY CAN INTRUDE ON THE FUNDAMENTAL RIGHTS OF THE CITIZENRY. AND, WHEN THE GOVERNMENT AND THE STATES INTRUDE A LITTLE BIT IN A DOMAIN THEY DO NOT BELONG, THEY BEGIN TO INTRUDE A LITTLE MORE—AND IT BECOMES A PRACTICE, ASSUMED, WRONGLY, TO BE CONSTITUTIONALLY PERMISSIBLE THROUGH THE PASSAGE OF TIME—EVENTUALLY ERODING THE SACREDNESS OF OUR RIGHTS, AS WELL AS THE SUPREME SOVEREIGNTY OF THE AMERICAN PEOPLE OVER GOVERNMENT.

THE U.S. SUPREME COURT DEVISED A POWERFUL TOOL TO PREVENT THE STATES, IN PARTICULAR, FROM UNLAWFULLY CONSTRAINING EXERCISE OF THE RIGHT TO ARMED SELF-DEFENSE. THIS STANDARD, INSTITUTED AS A JUDGE-MADE RULE BY THE SUPREME COURT, CALLED THE “HISTORICAL TRADITION” TEST (OR STANDARD), WAS CRAFTED TO PREVENT COURTS ON BEHALF OF STATES IN THEIR JURISDICTION FROM INVARIABLY RUBBER-STAMPING STATE ACTION WITHOUT DUE REGARD TO THE CONSTITUTIONALITY OF STATE ACTION THAT CONSTRAINS EXERCISE OF THE RIGHT.

USE OF THE OLD “INTEREST-BALANCING” TEST ENCOURAGED MISAPPLICATION OF THE LAW AND THE COURT RULED THAT INTEREST-BALANCING CAN NO LONGER BE UTILIZED BY THE REVIEWING COURTS THAT ARE CALLED UPON TO TEST THE CONSTITUTIONALITY OF A STATE ACTION IMPACTING THE SECOND AMENDMENT. THE NEW STANDARD TO BE UTILIZED— “HISTORICAL TRADITION”—REQUIRES THE REVIEWING COURT TO ASCERTAIN WHETHER A CONSTITUTIONALLY SIMILAR ANALOG EXISTED IN THE PAST, SUFFICIENT TO SUPPORT THE CONSTITUTIONALITY/LAWFULNESS OF THE PRESENT STATE ACTION.

THE STANDARD WAS FIRST ARTICULATED IN THE LANDMARK SECOND AMENDMENT HELLER CASE, AND WAS EXPLICATED FURTHER IN A SECOND LANDMARK CASE, BRUEN. SINCE THEN, THE SUPREME COURT HAS DONE NOTHING SATISFACTORY TO PROVIDE FURTHER CLARIFICATION AND GUIDANCE ON THE PROPER APPLICATION OF THE TEST.

RAHIMI DIDN’T HELP THE MATTER BUT SIMPLY OBFUSCATED IT. THE COURT ITSELF EXPRESSED ITS OWN CONFUSION WHICH WAS LAID BARE AS A MORASS OF DICTA. IF THE HIGH COURT ITSELF EXPRESSES CONFUSION OVER APPLICATION OF THE TEST, THEN HOW WOULD THE SUPREME COURT EXPECT THE LOWER STATE AND FEDERAL COURTS TO USE THE STANDARD? THE QUESTION RAISES THE CONFOUNDING ISSUE WHETHER “HISTORICAL TRADITION” IS ANY BETTER THAN THE TEST, “INTEREST-BALANCING,” THAT “HISTORICAL TRADITION” WAS CRAFTED TO REPLACE.

THE U.S. SUPREME COURT HAD OPPORTUNITY TO ADDRESS THE PROBLEM AS A FORMAL QUESTION FOR REVIEW IN THE NEW YORK ANTONYUK CASE BUT TOOK A PASS ON THAT. AND, THE COURT HAD ANOTHER OPPORTUNITY TO CLARIFY THE “HISTORICAL TRADITION” TEST IN THE PRESENT WOLFORD CASE, BUT THE CHIEF JUSTICE, JOHN ROBERTS, DISMISSED THAT QUESTION FROM REVIEW, AND A RULING, EXPECTED IN JUNE, WILL LIKELY DISCUSS THE TEST, BUT WILL REMAIN MERE DICTA, AS IN RAHIMI, RENDERING THE DECISION ON THE ISSUE OF HAWAII’S STATUTE PERTAINING TO A “SENSITIVE-PLACE” DEFAULT RULE CONSTRUCTION ON PRIVATE PROPERTY THAT IS OPENED TO THE PUBLIC OF DUBIOUS WORTH, BECAUSE THE STATUTE IS SUI GENERIS, PECULIAR TO HAWAII.

EVEN SO, THE STANDARD OF REVIEW, NAMELY “HISTORICAL TRADITION,” COMES INTO PLAY, RAISING ISSUES BOTH OF LOGIC AS WELL AS LAW.

DISCUSSION OF THE STANDARD CANNOT BE AVOIDED, AND CAME UP IN ORAL ARGUMENT IN WOLFORD, JUST AS IT DID IN THE RAHIMI DECISION.

THE CORRECT APPLICATION OF THE STANDARD IS CENTRAL TO DISCUSSION OF ANY STATE ACTION THAT IMPACTS ON THE SECOND AMENDMENT. A RULING, NOT DICTA, IS REQUIRED ON PROPER APPLICATION OF THE STANDARD BY THE REVIEWING COURT. RESOLUTION OF THIS CENTRAL ISSUE CONTINUES TO GO BEGGING.

THE COURT REFUSES TO PROVIDE CLEAR GUIDANCE IN THE FORM OF A FIRM RULING ON HOW THE TEST IS TO BE UTILIZED BY A REVIEWING COURT.

ROBERTS, AS CHIEF JUSTICE, CERTAINLY COULD ENCOURAGE REVIEW OF THIS ISSUE AND OF OTHER PRESSING SECOND AMENDMENT ISSUES, BUT HE INTENTIONALLY DECLINES TO ALLOW THE COURT TO FORMALLY CONSIDER THE ISSUE IN EVERY INSTANCE THAT THE ISSUE HAS ARISEN ON A PETITION FOR A WRIT OF CERTIORARI.

THIS RELUCTANCE JEOPARDIZES THE SANCTITY OF THE U.S. SUPREME COURT AS AN INSTITUTION, THE SANCTITY OF THE THREE LANDMARK SECOND AMENDMENT CASES AND, WORST OF ALL, THE SANCTITY OF THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS AS A FUNDAMENTAL, NATURAL LAW RIGHT, WITHOUT WHICH OUR FREE REPUBLIC CANNOT CONTINUE TO EXIST, AND TYRANNY REARS ITS UGLY HEAD.

FURTHER, THIS OBVIOUS AND DISTURBING DISINCLINATION BY THE CHIEF JUSTICE TO ALLOW THE U.S. SUPREME COURT TO DO ITS JOB BY ADDRESSING MAJOR SECOND AMENDMENT ISSUES IS DANGEROUS TO THE WELL-BEING OF A FREE STATE AND IS UNFORGIVABLE.

BE ADVISED: WE ARE NOT ASKING CHIEF JUSTICE ROBERTS, AS PRESIDING JUSTICE OF THE SUPREME COURT, TO USE THE ARTICLE III POWER OF THE HIGH COURT TO PROTECT THE RIGHT CODIFIED IN THE SECOND AMENDMENT, FOR IT IS NOT THE JOB OF THE FEDERAL GOVERNMENT TO PROTECT FUNDAMENTAL RIGHTS IN THE STRICTEST SENSE. GRANTED, THIS MAY SEEM COUNTER-INTUITIVE.

BUT CONSIDER——

THE DANGER OF ASKING GOVERNMENT TO SERVE AS THE PROTECTOR OF A FUNDAMENTAL NATURAL LAW RIGHT SIMPLY RESULTS IN GOVERNMENT EVENTUALLY CONTROLLING THE INDIVIDUAL AMERICAN’S EXERCISE OF IT. AND, WE HAVE SEEN WHERE ALL THAT LEADS TO. NOTHING GOOD CAN COME OF THAT.

RATHER, WE ARE ASKING SOMETHING DIFFERENT OF THE COURT. WE ARE ASKING MERELY THAT THE COURT PREVENT GOVERNMENT—THE FEDERAL GOVERNMENT AND THE STATES—FROM UNCONSTITUTIONALLY INTRUDING ON THE DOMAIN OF OUR FUNDAMENTAL RIGHTS. WE ASK ONLY THIS OF THE COURT AND NOTHING MORE.

BUT JOHN ROBERTS IS EXTREMELY RELUCTANT TO USE THE ARTICLE III POWER OF THE COURT TO PRECLUDE THE STATES AND THE FEDERAL GOVERNMENT FROM TREADING ON GROUND THAT GOVERNMENT IS FORBIDDEN TO TREAD UPON. THAT FAILURE OF THE COURT TO ACT SIMPLY INVITES MORE UNLAWFUL AND UNCONSCIONABLE GOVERNMENT ACTION ON THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS.

WE EXPLAIN IN DEPTH, IN THIS ESSAY, THE DIRE EFFECTS OF THIS FAILURE OF JOHN ROBERTS TO INVOKE THE POWER OF THE COURT IN SUCH CASE OR CONTROVERSY THAT COMES BEFORE IT, TO PREVENT GOVERNMENT FROM DEFYING PRIOR COURT DECISIONS AND TREATING THE RIGHT CODIFIED IN THE SECOND AMENDMENT AS SOMETHING LESS THAN A “FIRST-CLASS” FUNDAMENTAL, UNALIENABLE RIGHT OF THE PEOPLE.

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NOTE TO OUR READERS: THIS ESSAY INCLUDES SUBSTANTIAL NEW CONTENT AND REVISIONS SINCE THE DATE OF POSTING, ON FEBRUARY 6, 2025. WORKING STEADILY SINCE THEN, WE COMPLETED THE LATEST REVISION ON FEBRUARY 16, 2025.

CONSISTENT WITH ARBALEST QUARREL POLICY, CRAFTED AT THE INCEPTION OF OUR WEBSITE IN 2013, WE RESERVE THE RIGHT TO MAKE CHANGES TO OR INCLUDE NEW CONTENT TO OUR ARTICLES AND ESSAYS. USUALLY, THIS HAS INVOLVED CORRECTING GRAMMATICAL ERRORS AND MAKING MINOR CHANGES TO THE TEXT AS NEW INFORMATION OR ERRORS IN OUR CONTENT OR IN PROOFING OF TEXT COME TO LIGHT.

OCCASIONALLY, AS IN THIS ESSAY, WE HAVE FOUND IT NOT ONLY BENEFICIAL BUT NECESSARY TO ADD SUBSTANTIAL EXPLANATORY INFORMATION FROM CASE LAW TO SUPPORT OUR CONCLUSIONS AND REASONING.

WE HAVE REVISED MUCH OF THE TEXT AND EXPANDED ON POINTS RAISED. THE SOLE ISSUE FOR REVIEW IN WOLFORD MAY SEEM, TO MANY, TO BE STRAIGHTFORWAD. IT ISN’T. AND THE PREDOMINANT ISSUE RAISED IN THE PETITIONERS’ BRIEF IS NOT A SUBJECT FOR REVIEW BECAUSE THE CHIEF JUSTICE, JOHN ROBERTS, HAS DECIDED TO OMIT IT FROM THE COURT’S CONSIDERATION. THAT DECISION, OMITTING FOR DISCUSSION AND REVIEW, OR RECASTING, OFTEN NARROWING THE SCOPE OF AN ISSUE, AFTER GRANTING REVIEW OF A PETITION FOR A WRIT OF CERTIORARI, IS A MATTER THE CHIEF JUSTICE DOES NOT, THROUGH COURT TRADITION, EXPLAIN. BUT HE SHOULD HAVE DONE SO, HERE.

SUPPLEMENTAL NOTE: WE ARE IN THE PROCESS OF PUBLISHING AN ADDENDUM OF THE RELEVANT PAPERS. THE ADDENDUM, TO BE PUBLISHED SEPARATELY ON THIS BLOG WEBPAGE, WILL INCLUDE THE TITLE OF THE PAPER, THE PUBLICATION DATE, A LINK TO IT, AND A SYNOPSIS OF THE PAPER’S CONTENT.

IN WOLFORD, THIS ACTION BY JUSTICE ROBERTS AMOUNTS TO AN EGREGIOUS DECISION. EXPLAINING WHY THIS DECISION BY THE CHIEF JUSTICE IS PARTICULARLY EGREGIOUS IS THE SCOPE AND THEME OF THIS ESSAY.

ROBERTS’ DECISION IS NO SMALL MATTER AS IT IMPACTS ALL U.S. SUPREME COURT SECOND AMENDMENT JURISPRUDENCE GOING FORWARD.

THE MATTERS WE DEAL WITH ON THIS WEBSITE ARE BOTH MONUMENTALLY IMPORTANT TO THE SECURITY OF A FREE STATE, TO THE SOVEREIGNTY OF THE AMERICAN CITIZEN, AND TO THE ISSUE WHAT IT MEANS TO BE AN AMERICAN. AND IN THAT REGARD, AQ IS AWARE THAT A MAJOR CASE IS UP FOR REVIEW ON THE ISSUE OF “BIRTHRIGHT CITIZENSHIP,” WHICH, WE FEEL, WILL HAVE A PROFOUND IMPACT ON THE SECOND AMENDMENT AND ON OUR BILL OF RIGHTS GENERALLY.

WE HAVE PREVIOUSLY WRITTEN ABOUT THE TOPIC, “WHAT IT MEANS TO BE AN AMERICAN”—REALIZING THE IMPORTANCE OF IT TO THE FUTURE WELL-BEING OF OUR COUNTRY—AND WE WILL BE DELVING FURTHER INTO IT, IN FUTURE ARTICLES.

ADDITIONAL NOTE: INTERESTED READERS CAN PERUSE THE AQ ARTICLE, TITLED, “WHAT IS AN AMERICAN,” PUBLISHED ON THIS SITE ON JULY 25, 2024.

Ammoland Shooting Sports News reposted the article with additional commentary in the title.

THE BIRTHRIGHT CITIZENSHIP CASE WHICH THE COURT WILL DEAL WITH DIRECTLY IS SCHEDULED FOR ORAL ARGUMENT ON APRIL 1, 2026. THE CASE IS TRUMP VS. BARBARA. SEE THE SCOTUS DOCKET ENTRIES.

DILUTION OF THE VERY CONCEPT OF ‘CITIZEN OF THE UNITED STATES’ IS AT STAKE, ALONG WITH OUR NATION’S GLORIOUS HISTORY, CHRISTIAN HERITAGE, NATIONAL ETHOS, AND CORE ETHICAL VALUES ALL WHICH ARE REFLECTED AND GROUNDED IN OUR SACRED DOCUMENTS, INCLUDING OUR DECLARATION OF INDEPENDENCE, THE ARTICLES OF THE U.S. CONSTITUTION AND OUR FUNDAMENTAL, UNALIENABLE ETERNAL NATURAL LAW RIGHTS, CODIFIED IN THE BILL OF RIGHTS OF THE UNITED STATES CONSTITUTION. OUR INTEREST IN THIS SIGNIFICANTLY IMPORTANT CONCEPT ‘CITIZEN OF THE UNITED STATES’ AND THE IMPORT OF “WHAT IT MEANS TO BE AN AMERICAN” ARE, IN A REAL SENSE EMBEDDED IN ALL OF OUR WORK, FOR WHAT IT IS THAT MAKES US PROFOUNDLY, UNIQUELY DISTINCT FROM OTHER WESTERN NATIONS, IS OUR BILL OF RIGHTS.

SURE, OTHER NATIONS CLAIM TO HAVE A FUNCTIONAL BILL OF RIGHTS, AND THE EUROPEAN UNION AS A CONFEDERATION OF MEMBER STATES, HAS AN OSTENSIBLY BINDING “CHARTER OF FUNDAMENTAL RIGHTS,” BUT TAKING A CLOSE LOOK AT THAT CHARTER, AS AN EXAMPLE OF A COMPILATION OF PRESUMED FUNDAMENTAL RIGHTS, REVEALS A COUPLE OF SINGULARLY MAJOR DEFECTS.

THE FIRST DEFECT IS ONE THAT SUFFUSES THE ENTIRETY OF THE EU CHARTER, AND THE OTHERS LIKE IT, LIKELY GROUNDED ON THE UNITED NATIONS’ “UNIVERSAL DECLARATION OF HUMAN RIGHTS.”

THE MAJOR FLAW HERE IS THAT, ALTHOUGH THE RIGHTS ARE REFERRED TO AS “FUNDAMENTAL,” THEY ARE A CREATION OF THE STATE THAT IS TO SAY, THE EU GOVERNMENTAL BODY. SUCH RIGHTS ARE, THEN, A CHIMERA. THEY HAVE NO REAL INDEPENDENT EXISTENCE APART FROM SUCH REALITY THAT GOVERNMENT GIVES THEM SINCE THEY ARE CREATURES OF GOVERNMENT, NOTWITHSTANDING THE USE OF THE WORD “FUNDAMENTAL” THAT THE EU GOVERNMENT ATTACHES TO THEM.

SURE, ONE FINDS LANGUAGE THAT TALKS ABOUT SUCH THINGS AS “DIGNITY,” AND “LIBERTY,” AND “SECURITY.” BUT HOW ARE THOSE “FUNDAMENTAL RIGHTS, AS SUCH, PROTECTED? PLAINLY, SUCH PROTECTION THAT EXISTS, MUST EMANATE FROM THE CREATOR OF THE RIGHTS, NAMELY THE GOVERNMENT ITSELF, BUT ONLY TO THE EXTENT THAT IT WISHES. AND SUPPOSE THE GOVERNMENT—AS IS THE WONT OF ALL GOVERNMENT—TENDS TOWARD DESPOTISM? WHAT THEN BECOMES OF THOSE “FUNDAMENTAL RIGHTS.”

ON SCRUTINY, THESE IDEALIZATIONS COME ACROSS LESS AS IDENTIFIABLE, GENUINE, TANGIBLE FOCAL POINTS EMBODYING TRUE FORCE AND POWER, AND MORE AS LOFTY ASPIRATIONS, UNOBTAINABLE YEARNINGS AND WISHES, AND AS VAGUE AND VACUOUS SENTIMENTS—CONSTANTLY ERODED AND FOOLING NO ONE.

THE SECOND DEFECT THAT BECOMES PAINFULLY APPARENT AS ONE POURS OVER THE EU “CHARTER OF FUNDAMENTAL RIGHTS, IS THE ABSENCE OF ANYTHING EVEN REMOTELY REFERRING TO AN IDEA OF A RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS. *

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*A couple of Western Countries, apart from the U.S. (most notably Mexico and Guatemala, the only remaining ones) do assert a right to keep and bear arms explicitly in their constitutions, but as both a practical matter and as modifying language in the constitutions of those respective countries make plain, the citizen’s exercise of the right to own and to possess firearms is subject to stringent governmental restrictions, oversight, and conditions. See, e.g., the article in Business Insider.

Some may interject that Switzerland and Israel allow the citizens to keep and bear arms. But firearms’ ownership in Switzerland is tied to military service and not as it is understood in the U.S., as an inherent, intrinsic individual right of the American people to keep and bear arms for self-defense against predatory man—as implicit in the language of the Second Amendment—and more to the point, as the ultimate fail-safe against a predatory, tyrannical government. See, also, Goldblum article, “Switzerland gun laws complete guide 2026.” The keeping of arms is a “privilege,” not a right.

Israel doesn’t have a written constitution, but the notion that the Country does recognize a right of the citizenry to keep and bear arms—as an inherent natural law right—is false. See, e.g., the article titled, “Can Israeli Citizens Own Guns? Requirements & Process,” published on the site Legal Clarity. the keeping of arms in Israel is a “privilege” not a “right” as is true in Switzerland.

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CONTRARIWISE, THE “BILL OF RIGHTS” OF THE UNITED STATES, IS TO BE UNDERSTOOD AS A COMPILATION OF FUNDAMENTAL, UNALIENABLE, NATURAL LAW, ETERNAL RIGHTS PREDICATED ON THE SANCTITY AND INVIOLABILITY OF THE INDIVIDUAL—TO BE ACCORDED DUE DEFERENCE BY GOVERNMENT. REFERENCE IS MADE TO SPECIFIC ENUMERATED RIGHTS, DIRECTLY OR BY LOGICAL IMPLICATION. AND, LEST GOVERNMENT THINK THAT THE LIST OF FUNDAMENTAL RIGHTS IS COMPLETE (CONCERN RAISED BY THE FEDERALISTS, AMONG THE FRAMERS OF THE CONSTITUTION), THE ANTIFEDERALISTS INCLUDED PROPOSED A NINTH AMENDMENT REFERENCING UNENUMERATED RIGHTS. THESE RIGHTS ARE NOT CREATURES OF GOVERNMENT. THEY ARE UNALIENABLE, DISCRETE, UNMODIFIABLE RIGHTS AND, IN THE PUREST SENSE, ARE TO BE UNDERSTOOD AS ABSOLUTE. * _______________________________________

*SINCE THE STATE DID NOT CREATE THESE RIGHTS, THE STATE CAN NEITHER BESTOW THEM ON THE PEOPLE NOR REMOVE THEM FROM THE PEOPLE. SOME POLITICIANS AND SCHOLARS ASSUME, ERRONEOUSLY, THAT, SUBJECT TO THE LAWS FOR REPEALING FUNDAMENTAL RIGHTS, THAT ONE OR MORE OF THESE RIGHTS ARE SUBJECT TO NULLIFICATION OR CHANGES. THAT MISSES THE POINT. AS AQ CONSTANTLY SAYS, WHEN WE REFER TO THEM, THESE RIGHTS BESTOWED ONTO MAN BY THE DIVINE CREATOR, ARE “CODIFICATIONS” OF NATURAL LAW. THE OSTENSIBLE REMOVAL OF THEM THROUGH, EITHER THROUGH DE FACTO OR DE JURE REPEAL, AFFECTS MERELY THE WORDS ON PAPER. THE RIGHTS THEMSELVES EXIST INDELIBLY IN EACH OF US—SUPERNAL, ETERNAL, AND SUBLIME. HENCE, OR BILL OF RIGHTS IS “THE GENUINE ARTICLE,” EXISTENT SEPARATELY FROM GOVERNMENT.

ALTHOUGH THE FIRST EIGHT AMENDMENTS OF THE BILL OF RIGHTS ARE A DISTILLATION OF AND RECOGNITION OF THE SALIENT FUNDAMENTAL, UNALIENABLE RIGHTS THAT THE FRAMERS FELT ARE ESSENTIAL TO THE MAINTENANCE OF A GOVERNMENT THAT IS BEHOLDING TO THE AMERICAN PEOPLE (WHICH LOGICALLY IMPLIES THAT THE PEOPLE ARE THE SOLE AND SUPREME SOVEREIGN OVER GOVERNMENT—AND THAT MEANS THE PEOPLE ARE “THE MASTER” AND GOVERNMENT IS “THE SERVANT), QUALIFICATION CONCERNING THE LANGUAGE OF SOME OF THE AMENDMENTS ARE NECESSARY. THE FIRST AMENDMENT MENTIONS BOTH FREEDOM OF SPEECH AND THE FREEDOM OF THE PRESS. FREEDOM OF SPEECH, ALONG WITH RECOGNITION OF SEEMING PROCEDURAL GUARANTEES AS SET FORTH IN THE THIRD AMENDMENT, AND THE FIFTH (APART FROM THE TAKINGS CLAUSE THAT TACITLY PRESUMES A RIGHT OF THE INDIVIDUAL TO HAVE AND TO OWN PRIVATE PROPERTY THAT HE HAS EXCLUSIVE RIGHT TO THE USE AND ENJOYMENT OF, AS A FUNDAMENTAL RIGHT) AND THE SIXTH THROUGH THE EIGHTH AMENDMENTS AS SEEMINGLY PROCEDURAL AND NOT FUNDAMENTAL, THOSE AMENDMENTS GO TO THE SANCTITY AND INVIOLABILITY OF THE INDIVIDUAL AS AN AUTONOMOUS FREE AGENT, WITH FREE WILL. IT IS IN THAT CONCEPT OF THE SINGULAR IMPORTANCE OF THE INDIVIDUAL—THAT LEFTISTS IN THIS COUNTRY WHO ASCRIBE TO THE IMPORTANCE OF THE COLLECTIVE, NOT THE INDIVIDUAL (WHICH LEFTISTS ESCHEW) THAT THE FUNDAMENTAL RIGHTS OF THE BILL OF RIGHTS ARE AN ASSERTION OF THE PRIMACY OF MAN’S SOUL, SPIRIT, AND BODY.

THE FREEDOM OF THE PRESS IS NO MORE NOR LESS THAN A SPECIES OF FREEDOM OF SPEECH, EVEN THOUGH MEMBERS OF THE PRESS PROCLAIM THE SINGULAR IMPORTANCE OF IT, OFTEN MOCKING THE RIGHTS OF THE COMMON MAN TO “HIS” FREEDOM OF SPEECH. THE PRESS IS AN ARTIFACT, NOT A PRE-EXISTING RIGHT.

AS WE MENTIONED, SUPRA, THE NINTH AMENDMENT IS AN ASSERTION THAT THE ENUMERATED RIGHTS CODIFIED IN THE FIRST EIGHT AMENDMENTS, THIS IS NOT TO IMPLY THAT THERE ARE NOT OTHER FUNDAMENTAL, UNALIENABLE RIGHTS THAT EXIST, AND IT IS TO THAT POINT, THE NINTH AMENDMENT WAS INCLUDED—TO ADDRESS THE FACT THAT, AT SOME POINT IN THE FUTURE, PERHAPS, SOME UNENUMERATED BUT NATURAL LAW RIGHTS WILL BE ARTICULATED.

THAT BRINGS US TO THE TENTH AMENDMENT OF THE BILL OF RIGHTS. CONCERNING, THIS AMENDMENT, A NEBULOUSNESS EXISTS THAT UNDERSCORES A PROBLEMATIC RELATIONSHIP THAT EXISTS BETWEEN THE STATE AND THE PEOPLE.

THE TENTH AMENDMENT SAYS,

“THE POWERS NOT DELEGATED TO THE UNITED STATES BY THE CONSTITUTION, NOR PROHIBITED BY IT TO THE STATES, ARE RESERVED TO THE STATES RESPECTIVELY, OR TO THE PEOPLE.”

SINCE THE STATES ARE GOVERNMENTS THAT ENJOY POWERS, UNDER THE DOCTRINE OF FEDERALISM, THAT THEY EITHER EXERCISE APART FROM THE FEDERAL GOVERNMENT OR THAT THE STATES WIELD CONTEMPORANEOUSLY WITH POWERS THE FEDERAL GOVERNMENT WIELDS, ALBEIT WITHIN THEIR OWN LIMITED JURISDICTIONS UNLESS, IN ACCORDANCE WITH LAW THE FEDERAL GOVERNMENT PREEMPTS THOSE POWERS, THE POWERS EXERCISED BY THE STATES, AS A GOVERNMENT, ARE NOT FUNDAMENTAL RIGHTS BECAUSE SUCH RIGHTS ONLY ACCRUE TO SENTIENT BEINGS. SUCH RIGHTS CANNOT BE SAID TO BE PREEXISTING FUNDAMENTAL RIGHTS, FOR SUCH RIGHTS CANNOT BE ASCIRBED TO ANY ARTIFICIAL CONSTRUCT.

ONE SUCH POWER THAT EXISTS WITHIN A STATE’S EXCLUSIVE PROVINCE IS THAT OF “POLICE POWERS.” THE EXERCISE OF A STATE’S POLICE POWERS IS A SORE POINT OF CONTENTION AS IT INVARIABLY ABUTS AGAINST THE FUNDAMENTAL RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS.

A STATE’S EXERCISE OF ITS POLICE POWERS IS DONE IN THE NAME OF PROVIDING “PUBLIC SAFETY” ALTHOUGH IT IS PLAIN THAT SOME OF THOSE STATES DO A POOR JOB OF IT, AND IT IS USUALLY THOSE STATES—NEW YORK, ILLINOIS, CALIFORNIA, AND HAWAII, AMONG OTHERS—THAT JEALOUSLY AND ODDLY CLAIM THAT, IN ORDER TO PROVIDE, PRESERVE, OR ENHANCE PUBLIC SAFETY, THEY MUST CONSTRAIN, CONSTRICT, AND, ULTIMATELY DENY THE INDIVIDUAL’S EXERCISE OF HIS RIGHT TO ARMED SELF-DEFENSE SO THAT HE MAY EFFECTIVELY PPROVIDE FOR HIS OWN PERSONAL SAFETY. AND “PERSONAL SAFETY” IS A THING THAT STATES LIKE THE AFOREMENTIONED NEVER MENTION—EITHER DENYING THE EXISTENCE OF SUCH A THING, IF ASKED, OR ASSERTING THAT PERSONAL SAFETY IS A THING SUBSUMED IN “PUBLIC SAFETY”—A PREROGATIVE OF THE STATE ALONE WHEN THE STATE EQUATES THE CONCEPT OF “PUBLIC SAFETY” WITH EXERCISE OF A STATE’S “POLICE POWERS”—WHICH IS THE STATE’S SOLE PROVINCE.

THE U.S. SUPREME COURT HAS NOT ADDRESSED THIS MATTER BUT IT MUST ADDRESS IT, FOR SOME STATES TEND TO DRAW UPON A DANGEROUS ASSUMPTION CONCERNING EXERCISE OF ITS POLICE POWERS. THE ASSUMPTION IS THAT THE STATE MUST TAKE BROAD AND DRASTIC ACTION TO CURB ARMED SELF-DEFENSE IN THE NAME OF REDUCING “GUN VIOLENCE.”

SUCH STATES, MENTIONED, SUPRA, ATTEMPT TO THWART THE EXERCISE OF THE FUNDAMENTAL, UNALIENABLE, NATURAL LAW RIGHT TO ARMED SELF-DEFENSE, AND THE U.S. SUPREME COURT HAS DONE PRECIOUS LITTLE TO RESOLVE A CONFLICT INHERENT AND INTRACTABLE BETWEEN A STATE’S EXERCISE OF ITS POLICE POWERS AND THE INDIVIDUAL’S EXERCISE OF HIS RIGHT TO ARMED SELF-DEFENSE.

THERE ARE ANTI-AMERICAN FORCES IN THIS COUNTRY THAT ABHOR THE NOTION OF THE ARMED CITIZEN WOULD WEAKEN IT TO THE POINT THAT RIGHT WOULD BE DE FACTO ERASED—AND THESE FORCES HAVE ACTIVELY PURSED THAT AIM FOR DECADES, BOTH AT THE FEDERAL AND STATE (INCLUDING THE LOCAL) LEVELS.

TO BE THE SURE, ONE FINDS LANGUAGE THAT TALKS ABOUT SUCH THINGS AS “DIGNITY,” AND “LIBERTY,” AND “SECURITY.” BUT HOW ARE THOSE “FUNDAMENTAL RIGHTS, AS SUCH, PROTECTED? PLAINLY, SUCH PROTECTION THAT EXISTS, MUST EMANATE FROM THE CREATOR OF THE RIGHTS, NAMELY THE GOVERNMENT ITSELF, BUT ONLY TO THE EXTENT THAT IT WISHES. AND SUPPOSE THE GOVERNMENT—AS IS THE WONT OF ALL GOVERNMENT—TENDS TOWARD DESPOTISM? WHAT THEN BECOMES OF THOSE “FUNDAMENTAL RIGHTS.”

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THE LEGAL ISSUES WE DEAL WITH COMPREHENSIVELY ON THE ARBALEST QUARREL WEBSITE ARE COMPLEX, TOUCHING ON AND RELEVANT TO SEVERAL DISCIPLINES AND REALMS: THE SOCIAL, POLITICAL, PSYCHOLOGICAL, MEDICAL, SCIENTIFIC, THE FINANCIAL AND ECONOMIC, THE PHILOSOPHICAL, THE EDUCATIONAL, AND HISTORICAL.

ALL OUR WORK BUILDS ON WHAT HAS COME BEFORE. WE TRUST OUR READERS UNDERSTAND THIS.

THE CHANGES BELOW REFLECT THE CONSTANT WORK WE HAVE DONE FROM THE DATE OF POSTING OF THIS ESSAY, ON FEBRUARY 6, 2026, TO THE PRESENT DAY, FEBRUARY 13, 2026, AS WE COMPLETE THE PROOFING OF IT AND FINALIZING OF IT OVER THE WEEKEND.

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REMARKS CONCERNING THE RATIONALE FOR OUR WORK SERIOUSLY QUESTIONING CHIEF JUSTICE JOHN ROBERTS COMMITMENT TO PRESERVING THE FUNDAMENTAL NATURAL LAW RIGHT TO ARMED SELF-DEFENSE, CODIFIED IN THE SECOND AMENDMENT.

This paper should be read in conjunction with several other papers we have published on this site, involving the singular importance of the (Second Circuit) New York Antonyuk case to the development of the U.S. Supreme Court case law.

NOTE: WE ARE IN THE PROCESS OF PUBLISHING AN ADDENDUM OF THE RELEVANT PAPERS. THE ADDENDUM, TO BE PUBLISHED SEPARATELY ON THIS BLOG WEBPAGE, WILL INCLUDE THE TITLE OF THE PAPER, THE PUBLICATION DATE, A LINK TO IT, AND A SYNOPSIS OF THE PAPER’S CONTENT.

From the point in time when the Antonyuk Plaintiff Petitioners first filed their challenge to the New York Government’s response to the U.S. Supreme Court’s decision in the Bruen case, we knew that Antonyuk was headed to the U.S. Supreme Court and that it was on its way to be THE FOURTH LANDMARK U.S. SUPREME COURT SECOND AMENDMENT CASE.

We also surmised that the (Fourth Circuit) Maryland Snope case was likely to be THE FIFTH LANDMARK U.S. SUPREME COURT SECOND AMENDMENT CASE. Monumentally critical questions, requiring clarification of and adherence to the precedent setting rulings and reasoning of the High Court in THE FIRST THREE LANDMARK SECOND AMENDMENT CASES MUST NEEDS BE ADDRESSED. BUTTHE ISSUES RAISED WERE NOT ADDRESSED. THE U.S. SUPREME COURT DENIED THE PETITIONERS’ WRIT OF CERTIORARI IN EACH CASE. JUSTICE JOHN ROBERTS IS THE CHIEF CULPRIT HERE. HE CONSCIOUSLY SOUGHT TO DENY RESOLUTION OF THE PARAMOUNT ISSUES, WITHOUT WHICH, THE STATE TRIAL AND APPELLATE COURTS AND THE FEDERAL DISTRICT AND CIRCUIT COURTS HAVE NO CLEAR GUIDANCE.

AS THE PRESIDING JUSTICE, ROBERTS IS NOT SIMPLY ONE OF EIGHT JUSTICES, WITH AN EQUAL VOICE. THE U.S. SUPREME COURT IS HIS COURT. AS THE CHIEF JUSTICE, ROBERTS SETS THE TONE AND THEME OF THAT COURT.

ROBERTS IS NOT, THEREFORE, JUST ONE OF EIGHT VOTES. WE HAVE NO DOUBT, THEN, OF ROBERTS’ CULPABILITY IN LEAVING SIGNIFICANT, CRITICAL SECOND AMENDMENT LEGAL ISSUES IN A STATE OF LIMBO, FOR IT IS HE, NOT THE EIGHT ASSOCIATE JUSTICES, WHO MAKES THE DETERMINATION WHICH CASES WILL BE THE SUBJECT OF THE VOTES TO THEN BE TAKEN BY ALL NINE OF THE JUSTICES WHO THEN WILL ACCEPT OR DENY A PETITION FOR A WRIT OF CERTIORARI (FOUR VOTES (LESS THAN A MAJORITY)) ARE REQUIRED TO GRANT REVIEW OF A CASE.

The chief justice's primary duty is to preside over all Supreme Court proceedings, both those open to the public and those held in private. The chief justice traditionally opens and closes the public sessions in which the Court hears oral argument. The chief justice determines which decisions the Court will discuss in conferences where the justices choose the case they will accept for review. The chief justice also leads the private discussions on cases recently argued. After presenting the facts and issues in such a case and the relevant law, the chief justice states her or his conclusions and casts a vote. The discussion continues in order of seniority, with each associate justice presenting her or his views and vote.” [Emphasis our own]

IT IS PLAIN TO US THAT JOHN ROBERTS HAS LITTLE INTEREST IN, OR IS OTHERWISE OPPOSED TO, PROVIDING NECESSARY GUIDANCE TO STATE AND FEDERAL COURTS WHEN PRESIDING OVER CHALLENGES TO STATE ACTION INTRUDING UPON THE SECOND AMENDMENT RIGHT TO ARMED SELF-DEFENSE.

THE U.S. SUPREME COURT, AT THE INSTIGATION OF THE CHIEF JUSTICE, HAS REFUSED COURT REVIEW OF ANY SIGNIFICANTLY IMPORTANT SECOND AMENDMENT ISSUE SINCE PUBLICATION OF BRUEN.

THE SOLE ISSUE FOR COURT REVIEW IN THE PRESENT WOLFORD CASE BEGS THE BASIC QUESTION WHETHER STATES CAN UTILIZE “SENSITIVE PLACE” RESTRICTIONS AS A BASIS FOR AVOIDING AND DEFYING THE RIGHT OF ARMED SELF-DEFENSE IN THE PUBLIC DOMAIN AT ALL, AND, IF SO, WHAT THE PARAMETERS AND BOUNDARIES OF STATE USE OF SENSITIVE-PLACE STATUTES MUST BE.

THE ISSUE IN WOLFORD SHOULD BE BROADENED, SINCE, AS STATED, IT PRESUMES WHAT MUST BE PROVED—WHETHER OR TO WHAT EXTENT A STATE MAY IMPOSE SENSITIVE-PLACE RESTRICTIONS ON EXERCISE OF THE RIGHT TO ARMED SELF-DEFENSE OUTSIDE OF THE HOME. A RULING ON THE APPLICATION OF THE “HISTORICAL TRADITION” TEST WOULD GO FAR TO RESOLVE THAT ISSUE BUT CHIEF JUSTICE ROBERTS PROHIBITED COURT CONSIDERATION OF THAT ISSUE.

The genesis of this paper, and of the many papers that preceded it, commenced with publication of the U.S. Supreme Court’s decision in New York State Rifle & Pistol Association (NYSRPA) vs. Bruen, on June 23, 2022, and with the New York Governor Kathy Hochul’s strenuous, indeed vitriolic, denunciation of the decision that scarcely disguised her ire and contempt for both the Senior Associate Justice, Clarence Thomas, who had authored it for the majority, and the other five Justices who signed onto it, a couple of whom added concurring opinions, with some of the Justices signing onto the concurring opinions as well.

Auguring their public remarks, the Governor and the Democrat-Party controlled Legislature in Albany, led by the New York State Senate Majority Leader, Andrea Stewart-Cousins, machinated to devise  mechanisms to thwart the Bruen case, thereby ensuring that the draconian State Handgun Law, (and more particularly, that section of the Handgun Law covering requirements for obtaining an valid New York concealed handgun carry license, NY CLS Penal § 400.00 (2)(f)), would continue to frustrate those New Yorkers who applied for such a license.

The carefully crafted amendments to the Handgun Law, NY CLS Penal § 400.00 et. seq., were passed by the New York Senate just eight days after publication of the Bruen decision. Kathy Hochul signed the amendments into law on that same date, July 1, 2022.

The amendments, as a set, were colloquially referred to as the “Concealed Carry Improvement Act” (or by the acronym “CCIA”).

Given the ingenuity and complexity that went into the crafting of the amendments, we feel that the New York Government could not feasibly have designed and crafted those amendments to the New York State Handgun Law within a mere eight-day period, contrary to what news reporters assert and apparently assume.

Likely, the New York Government, anticipating a negative ruling for the State, after Oral Hearing on November 3, 2021, was fast at work, soon after the Hearing, concocting a way to slither around the Bruen rulings, so that the Senate would be able to get the amendments ready for a vote, within days of publication of the U.S. Supreme Court decision. Kathy Hochul’s goal and that of the Anti-Second Amendment LEFT and of the Democrat-Controlled Legislature in Albany was to do more than merely salvage New York’s unconscionable HANDGUN LICENSING REGIME, but to maintain it, after Bruen, with the further aim of enacting more and more oppressive laws, which, in fact, the Hochul Government has done and has always been avidly committed to, as was Andrew Cuomo, Hochul’s predecessor.

Cuomo was the principal architect of the abominable New York Safe Act. Cuomo rammed the bill through the Legislature without proper oversight, with passage literally in the dead of night, in 2013. See, e.g., the article posted on syracuse.com, on March 13, 2013. The CCIA is in the same vein as the NY Safe Act.

A challenge to the constitutionality of Hochul’s CCIA law came quickly. Antonyuk vs. Bruen was filed on July 11, 2022. That was the first challenge, filed anywhere, to a state not abiding by, and in fact, blatantly defying the decision of the U.S. Supreme Court in NYSRPA vs. Bruen, 597 U.S. 1, 142 S. Ct. 2111 (2022).

That case filed by Petitioners, captioned Antonyuk vs. Bruen and often referred to by the courts and legal scholars as “Antonyuk I”, so labeled for convenience and to avoid Americans mistaking it for the subsequently filed and present Antonyuk case referred to as “Antonyuk II”.

Antonyuk I was dismissed without prejudice on August 31, 2022, due to a “standing” issue, as ruled by the U.S. District Court for the Northern District of New York, where Antonyuk I was filed.

But the U.S. District Court that heard the case had opined at length on the merits of it, delivering an advisory opinion. That opinion was 187 pages, suggesting that the District Court had agreed with the substance of the Plaintiff Petitioners’ arguments, challenging the constitutionality of New York’s amendments to the State’s Handgun Law.

The District Court’s comprehensive ruling in Antonyuk I therefore served, if only tacitly, as a powerful indicator to the Plaintiffs that the Court plainly favored granting their Motion for a Preliminary Injunction, staying enforcement of the CCIA, pending the State’s appeal, encouraging the principal Plaintiff, Ivan Antonyuk, to refile his complaint. And Ivan Antonyuk did refile his case, having taken the Court’s Advisory Opinion as a strong hint to do so.

Ivan Antonyuk would remain the principal Party Plaintiff. Other individuals, New York Handgun licensees, would join him as Party Plaintiffs.

Plaintiffs filed their new case on September 20, 2022, curing the standing issue—Antonyuk II.

The District Court, now having subject matter jurisdiction over the case, granted the Plaintiffs’ Motion for Preliminary Injunction, on November 7, 2022.

The Defendants (the New York Government), filed a request to have the Court stay the Preliminary Injunction, pending appeal.

The Defendants did that so the State could continue to enforce the CCIA, pending the State’s appeal of the lower District Court’s unfavorable decision to the Federal Appellate Court, (the U.S. Court of Appeals for the Second Circuit). But the District Court refused to stay the Preliminary Injunction during pendency of the appeal, which meant that the State could not lawfully continue to enforce its CCIA.

THE NEW YORK GOVERNMENT WAS ENRAGED THAT A TRIAL COURT WOULD, SEEMINGLY, HAVE THE AUDACITY TO RULE AGAINST THE STATE ON A MATTER INVOLVING “GUN RIGHTS—A MATTER THE NEW YORK GOVERNMENT HAS HISTORICALLY AND FERVENTLY OPPOSED, EXPECTING THE NEW YORK STATE AND FEDERAL COURTS TO PLACE THEIR IMPRIMATUR ON, AS WAS NORMALLY, TRADITIONALLY, THE CASE. THE U.S. DISTRICT HOWEVER DID NOT PLAY ALONG.

Hochul’s Attorney General, Letitia James, quickly filed a motion with the U.S. Court of Appeals for the Second Circuit, asking the Federal Appellate Court to stay the District Court’s granting of the Antonyuk Plaintiffs Motion for Preliminary Injunction.

The Second Circuit, sympathetic to the New York Government’s clear antipathy toward the Second Amendment commandment, was happy to oblige the State, and lifted the stay on enforcement of the Concealed Carry Improvement Act. The State was relieved that it could continue to enforce the core of the CCIA, during the litigation process, which would prove to be a lengthy one—one ongoing, over two years later since inception of the case.

The Second Circuit would invariably rule in favor of the State—at most giving the Plaintiffs a few breadcrumbs.

Finally, on January 22, 2025, the Petitioners filed a Petition (their Second Petition) to the U.S. Supreme Court, requesting relief. The U.S. Supreme Court, at conference on April 7, 2025, denied the petition, doing so without comment, which we find unusual.

Little news was reported on it. The sympathetic legacy Press, likely ecstatic with the outcome, no less so than Governor Hochul and her Government, probably thought, “let sleeping dogs lie.” The State had everything it wanted. It could continue to enforce the draconian amendments to the State’s Handgun Law.

Even Pro-Second Amendment groups said little about the denial, apart from mentioning their unhappiness with it.

Those commentators who did wonder about the failure of the U.S. Supreme Court to take up a Second Amendment case of significant importance to a great portion of the electorate that cherishes the fundamental right to armed self-defense, and one involving a State’s blatant defiance of a High Court ruling that sprang from a valid constitutional challenge to the core of New York’s Handgun Law, could only come up with a lame argument that Antonyuk was in a non-final (interlocutory) state and therefore not ripe for appeal.

But the U.S. Supreme Court has absolute discretion to take up a case on a petition for writ of certiorari, whatever the procedural status of it. One would think that the Court would be of mind to do so, especially where, as here, substantial public interests are at stake, and where failure to grant review risks injuring the sanctity of the Court’s own prior landmark case decisions, and where a state deliberately, blithely, and contemptuously disobeys and subverts U.S. Supreme Court rulings. Antonyuk is such a case.

And, if the Chief Justice had indicated interest in preserving the Court’s own hard-fought case precedents and preserving its authority and the sacredness of the Court as an institution, established in Article III of the U.S. Constitution, the Antonyuk case would have been granted review and the case would have become the Fourth Landmark U.S. Supreme Court Landmark case.

The gears of justice may grind slowly, but in matters of profound significance and urgency, involving the sovereign Americans’ most vital unalienable right, without which a Free Constitutional Republic cannot exist, the U.S. Supreme Court must be up to the task. The present Chief Justice is, though, plainly, NOT up to the task, at this critical moment in our Nation’s history, when forces that are intent on dissolving our sacred, eternal Constitution, dismembering a Free Republic, diluting the significance of the concept of ‘Citizen of the United States,’ and erasing our history, heritage, and core values operate as a real, not abstract, threat. Americans must take the threat these ruthless forces pose, seriously, and be prepared to deal with those forces resolutely and harshly.

The case Antonyuk II, presently formally captioned Antonyuk vs. James, is the linchpin, necessary to secure the Right codified in the Second Amendment as a “FIRST-CLASS” AND “PARAMOUNT RIGHT.” The Antonyuk case is now back down at the United States District Court, where the case commenced in the summer of 2022.

It is in the “discovery stage.” Counsel tells us the case can take years before it comes to a final resolution. And then, what? Will a Petition (THE THIRD) be filed in 2027? In 2028? In 2029? Ever? Will the case even matter several years hence, if the Republic and the Constitution is in tatters?

Some scholars believe that we must exercise patience. But there is a point where patience runs thin. The problem here is that the Chief Justice is mandating a requirement of patience, and he is doing so because he is either uninterested in strengthening—by clarifying—the three landmark cases of Heller, McDonald, and Bruen, or he secretly wishes to undermine them, by relegating review only to those Second Amendment cases that are of subordinate value and that will result in narrow rulings, leaving the core of Second Amendment jurisprudence in a nebulous state, encouraging defiance, and resulting in conflicts in the circuits that would not otherwise arise.

Wolford vs. Lopez is one such subordinate case.

The salient issue requiring the Court to clarify the Historical Tradition test is of utmost importance, and that was an issue presented in the Wolford Petitioners’ Petition. Yet the Court struck THAT ISSUE from consideration. Notably, that one paramount issue was the same issue stated as a question for review in Antonyuk. And the Court dismissed Antonyuk out-of-hand.

The Court is now left to decide a peripheral issue—one affecting Hawaii, a Nation that has made abundantly clear that “Historical Tradition” as that State understands it, to the State’s personal tradition as a monarchy, and one whose history and traditions is completely alien to that of our Nation.  It is a history that eschews the notion of “the armed citizen.”

During Oral argument in Wolford, the Court was well aware that discussion of “Historical Tradition” as a standard to replace interest-balancing must be carefully and fully articulated.

How can a reviewing court apply a standard that is incomplete, vague and ambiguous? It can’t.

Moreover, the U.S. Supreme Court crafted the standard. And, it is therefore for the Supreme Court, not for the lower courts, to hash out what this standard of review consists of and how it is to be applied.

The Supreme Court must establish a clear, coherent, consistent, comprehensive, and complete standard so that jurisdictions do not have to second-guess how the standard is to be utilized. This is the first order of business. Without an operational set of rules for use of this standard, the state and federal courts will be cast adrift. And those jurisdictions, like Hawaii, California, Illinois, New York, and Maryland, that abhor exercise of the right codified in the Second Amendment will be encouraged to devise their own meaning of this standard and it will be one that, like “interest-balancing,” will inevitably, invariably, favor a state enactment that restrains and restricts exercise of the right to armed self-defense over the right of the individual to be free from government restraints and restrictions on this most valuable and necessary of fundamental, natural law rights.

Our work, analyzing and emphasizing the importance of significant Second Amendment cases to the security of a free state and to the right of the people to have possession of the most effective instruments to secure their life and well-being and that of their families, is the salient reason we created the Arbalest Quarrel.

This vital, fundamental, unalienable, eternal Right is what we are committed to preserving and strengthening.

We have come to realize through the work we have completed since the Bruen case came down, that some Second Amendment cases that have come before the High Court, are not particularly significant and vital to the furtherance of High Court jurisprudence and Federal and State government adherence to the holdings and reasoning of the key landmark cases, and that a few others, like Antonyuk and Snope that have come to the Court on a writ of certiorari are of paramount importance and must be reviewed by the Court. The Court’s failure to do so is unforgiveable.

There is a certain linear approach that the Court must follow. And that means selecting out cases for review involving questions that directly involve the salient matters addressed in Heller, McDonald, and Bruen. Cases that come to the Court’s attention that raise questions calling for the court’s clarification of application of the Historical Tradition test and a formal, clear, concise, categorical ruling that semiautomatic weapons DO FALL within the core of the Second Amendment protection because they are a class of firearms that fall within the meaning of the rule, “firearms in common use.” Cases that present these questions in petitions for writ of certiorari, beg for Court discussion and rulings.

If the major questions are resolved, then those jurisdictions that abhor firearms and that are suspicious of Americans—tens of millions of us, who desire to exercise their fundamental right to armed self-defense—will find it more and more difficult to find seemingly plausible loopholes to avoid compliance with the Court’s Second Amendment rulings.

Our work here is ongoing. And the cases we look at in analyzing state action that impacts the natural law right to armed self-defense will likely invariably refer back to Antonyuk vs. James, such as this present essay does.

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THE ISSUE THAT THE U.S. SUPREME COURT IS REVIEWING IN WOLFORD VS. LOPEZ MAY BE OF SOME IMPORTANCE BECAUSE IT IS A SECOND AMENDMENT CASE, BUT IT ISN’T A SIGNIFICANT SECOND AMENDMENT CASE BECAUSE CLARIFICATION OF THE HISTORICAL TRADITION TEST MUST BE EXPLICATED BEFORE A COMPELLING LOGICALLY AND LEGALLY SOUND RULING ON THE “SENSITIVE PLACE” RESTRICTION ISSUE CAN BE OBTAINED. BUT THE COURT HAS NOT SYSTEMATICALLY DEALT WITH THE ISSUE, SO A USEFUL, OPERATIONAL RULE DOESN’T EXIST.

When the Supreme Court granted review of the Hawaii case, Wolford vs. Lopez, 116 F.4th 959 (9th Cir. 2024), cert. granted, No. 24-1046, 222 L. Ed. 2d 1241 (U.S. Oct. 3, 2025), those Americans who cherish the Right of the people to keep and bear arms, along with many Pro-Second Amendment groups, heralded the action as a positive sign that the High Court hadn’t forsaken concern for the continued sanctity and inviolability of our most vital Natural Law Right, as codified in the Second Amendment of our Bill of Rights.

Yet, when viewed in the context of two earlier denials of writs for certiorari, most notably in the cases Antonyuk vs. James, 120 F. 4th 941, cert. denied, 145 S. Ct. 1900 (April 7, 2025), and Bianchi vs. Brown, 111 F. 4th 438 (4th Cir. 2024), recaptioned Snope vs. Brown, cert. denied, 145 S. Ct. 1534 (June 2, 2025)—cases involving matters requiring SCOTUS to expound upon, amplify or elaborate on, and clarify the pertinent rulings, reasoning,  and dicta laid out in the High Court’s THREE SECOND AMENDMENT LANDMARK CASES that consistently confounded, disconcerted, and troubled the lower state and federal courts—the Chief Justice, who sets the tone and theme of the Court, did nothing substantive to address those concerns.

More disturbing and mystifying, in those jurisdictions—New York, Hawaii, California, Illinois, and Maryland, among others—the incongruous failure of the Supreme Court to assiduously, and systematically resolve the nebulousness, ambiguity, vagueness, and imprecision hanging over the “HISTORICAL TRADITION” TEST in cases involving A STATE’S IMPINGEMENT OF AN AMERICAN’S EXERCISE OF HIS RIGHT TO ARMED SELF-DEFENSE, has led credence to Associate Justice Thomas’ justifiably angry assertion that, for far too long, the Fundamental, Unalienable, RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS, codified in the SECOND AMENDMENT, is simply treated as a “SECOND CLASS RIGHT.” His point is: “THIS CASUAL, DESULTORY, ATTITUDE MUST CHANGE.”

The Associate Justice Clarence Thomas is referencing the Supreme Court’s continuous apathetic treatment of THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS, when a significantly important Second Amendment case or controversy comes up for review. But the Justice is making his concern known in a not-so-subtle oblique manner. He is doing this as a matter of deference to the institution of the U.S. SUPREME COURT—THE THIRD BRANCH OF THE FEDERAL GOVERNMENT.

The result of this indifferent, if not diffident, manner expressed by SCOTUS (and more to the point, as one may readily infer, by the actions, or inaction, of THE CHIEF JUSTICE, JOHN ROBERTS toward Second Amendment cases that come to the Court’s attention via a petition for writ of certiorari) is not lost on the two Senior Associate Justices, Clarence Thomas and Samuel Alito. They are frustrated by the High Court’s failure to resolve important SECOND AMENDMENT ISSUES, nor is this seemingly detached, unconcerned attitude expressed by the High Court, toward the SECOND AMENDMENT, lost on the many stubborn, defiant states.

The standard that SCOTUS first enunciated in HELLER, the “HISTORICAL TRADITION” TEST, which the Court expanded on in BRUEN, replaces the LONG-STANDING but clearly DEFECTIVE “INTEREST BALANCING” STANDARD.

Those Justices that cherish the Right etched in the Second Amendment, no less so than the majority of Americans, had hoped that application of “HISTORICAL TRADITION” would prevent the lower state and appellate courts and the lower federal district courts and the federal appellate courts, from perfunctorily giving their imprimatur to State actions that plainly infringe Americans’ exercise of their Right to Keep and Bear Arms.

However, given the justifiable perplexity, concerning proper use of the “HISTORICAL TRADITION” TEST, the Court needs to address application of this standard that, as is apparent from a perusal of the SCOTUS decision, and the well-reasoned dissent by Associate Justice Thomas, in UNITED STATES vs. RAHIMI, 602 U.S. 680, 144 S. Ct. 1889 (2024), requires further elucidation.

In addition, the Supreme Court must chastise those intransigent, stubborn courts that nakedly and brazenly refuse to adhere to the “WEAPONS IN COMMON USE” STANDARD, when giving blanket endorsement of plainly unconstitutional state action, constraining, or banning outright, Americans’ ownership and possession of an entire class of weapons, namely semiautomatic firearms, on the ground that they are “dangerous” and therefore are not weapons in common use. That is a singularly bizarre pronouncement, a clear distortion of the “WEAPONS IN COMMON USE” TEST, PRECISELY BECAUSE SEMIAUTOMATIC WEAPONS ARE IN COMMON USE, BY ANY RATIONAL METRIC, and that is all that Heller requires for such weapons to fall within the core of Second Amendment protection.

Unlike, application of the “HISTORICAL TRADITION” STANDARD, the import of “WEAPONS IN COMMON USE” TEST is CLEAR and CONCISE, COHERENT and CONSISTENT, and COMPREHENSIVE.

Yet many jurisdictions blatantly refuse to adhere to this standard. The issue comes up repeatedly in cases before the Court, where a petitioner challenges extreme restraints on, OR OUTRIGHT BANS ON, possession and ownership of semiautomatic weapons which are weapons in common use.

Some states have imposed extraordinary restrictions on or bans on the possession and ownership of semiautomatic weapons, referring to them as “ASSAULT WEAPONS.”

Yet, the expression, ‘ASSAULT WEAPON,’ is not recognized by either the firearms trade or by the military. The phrase is a fiction, deliberately crafted as a pejorative construction, intentionally and maliciously created to evoke a negative response in the American public.

The military does, however, utilize the phrase ‘ASSAULT RIFLE,’ that the Press, either deliberately or negligently uses synonymously with the phrase, “ASSAULT WEAPONS.” But the former phrase is a military term of art. The latter is nothing more than a propaganda tool crafted for political purposes.

The military phrase, ‘ASSAULT RIFLE” is defined as A SELECTIVE FIRE WEAPON, EMPLOYING AN INTERMEDIATE CARTRIDGE.” The phrase hearkens back almost a century, when this class of military weapon was first designed and manufactured for German troops during the Second World War. The German military referred to this new type of weapon as the “STURMGEWHER.”

But the phrase “ASSAULT WEAPON” means nothing but what the politician or propagandist wishes to make of it.

The phrase is utilized by those virulent Anti-Second Amendment groups seeking to ban civilian use of semiautomatic weapons. The NRA-ILA reported that,

In 1984, a group called Handgun Control, Inc. first used the term “assault weapon” in reference to a rifle in a newspaper advertisement.

Anti-Second Amendment jurisdictions, sympathetic to the goals of groups that seek de facto repeal of the Second Amendment, have begun to selectively abolish classes of weapons and to enlarge the domain of individuals who are not permitted to lawfully own and possess weapons. These groups work with states that share the sympathies of these groups, crafting statutes codes, rules, regulations, and ordinances to accomplish their aims, thus “concreting” the fiction into LEGAL STONE to give it a dubious sense of utility and invulnerability as a “LEGAL TERM OF ART.” But that attempt to raise the import of a thing that was created as a fiction to drive federal government and state policy only adds to the ephemeral nature of it, and to the deviousness and insidiousness of injurious forces both here at home and abroad that intend TO ERADICATE the NATURAL LAW RIGHT THE PEOPLE TO KEEP AND BEAR ARMS,” as something archaic, and inconsistent with international norms, and contrary to something called the RULES-BASED INTERNATIONAL ORDER, with all that the phrase implies—a Western Neo-Marxist Global Empire, cobbled together from the hollowed-remains of Western nation-states.

The phrase, “ASSAULT WEAPON”, as a propaganda device, is utilized in the Press and social media, and in the literature of Anti-Second Amendment groups to indoctrinate those Americans who are peculiarly susceptible to psychological conditioning. The aim is to create a visceral reaction in the target population, to hate and fear semiautomatic weapons and to grow suspicious of those Americans who own and possess such weapons. Thus, the phrase has developed into a legal term of art, appearing in the penal code of many jurisdictions.

It is likely that the phrase first became a legal term of art in New York when, in 2013, Andrew Cuomo, who was the Governor of New York at the time, connived with the State Legislature to pass what is deceptively called the “NEW YORK SAFE ACT.”

Many other jurisdictions have since jumped on the bandwagon, crafting similar laws.

Americans have not sat idle while our Nation’s most vital Right is wrenched from them. They have filed a slew of challenges, seeking to strike down severe constraints or outright bans on Assault Weapons (a.k.a. semiautomatic weapons). Three major cases have wended their way to the U.S. Supreme Court on this matter. But, in every instance, the Court has denied review of those cases, plainly at the insistence of Chief Justice Roberts. See our discussion of this matter, infra.

The question is, WHY HAS JOHN ROBERTS failed to cast a vote favoring review of these cases?

Plainly, the Chief Justice has refused to grant certiorari because he does not perceive the Right codified in the Second Amendment as worthy of the Court’s time and attention.

Roberts has obviously made his lack of interest, or displeasure, in matters pertaining to the Second Amendment well apparent to the eight associate justices.

The Chief Justice has scotched review of a Second Amendment case involving the issue of semiautomatic weapons, back in 2015, and he has continued this practice in 2022, and yet once again in 2024. See our discussion infra.

Thus, precedent-setting rulings and reasoning set down in the three Landmark Second Amendment cases continue to be ignored in those jurisdictions that detest our Nation’s most vital Right, WITHOUT WHICH our Nation’s FREE CONSTITUTIONAL REPUBLIC——THE ONLY TRULY FREE REPUBLIC in the world—— and the American People, as SOLE and SUPREME SOVEREIGN OVER GOVERNMENT, cannot exist.

CONSIDER——  

State and Federal Courts that abhor the Right codified in the Second Amendment and that absolutely detest the idea of an ARMED CITIZENRY have long abused application of “INTEREST-BALANCING, by rubber-stamping State enactments that infringe the Fundamental, Natural Law Right to armed self-defense, whenever challenges to the constitutionality of those enactments come to those lower state and federal courts through complaints and motions.

The crafting of the “HISTORICAL TRADITION” STANDARD and the declaration that WEAPONS IN COMMON USE ARE PROTECTED BY THE SECOND AMENDMENT Iin the LANDMARK HELLER case was supposed to compel those jurisdictions, naturally predisposed to enact laws whittling away at the Fundamental Right to armed self-defense, to alter their deleterious actions.

But, in practice, the seminal Second Amendment cases—that came about well over two hundred years since ratification of the Bill of Rights—have done precious little to convert a SECOND-CLASS RIGHT into a FIRST-CLASS RIGHT.

Recalcitrant jurisdictions continue to issue convoluted opinions that pretend to apply the holdings, reasoning, and dicta of the seminal Second Amendment cases, without doing so, or as exemplified by the decisions coming out of the courts in these jurisdictions, the rulings of the Landmark cases are simply ignored. Unfortunately, these unconstitutional, unconscionable, and brash actions by intransigent, recalcitrant states will continue so long as the U.S. Supreme Court continues to abandon its responsibility to defend the Nation’s most important Natural Law Right, the Right of the People to Keep and Bear Arms. Unless the Supreme Court changes gears, this Republic will wither and eventually cease to exist.

The result will be noticeable by all Americans as a Free Republic begins to crumble. And the Supreme Court, for its part, will lose status and will be held in contempt for failing to utilize its powerful Article III power to upbraid wayward states and their courts. The Court’s precedents will also lose efficacy. This sad state of affairs is occurring at noticeable speed.

The result of the Court’s actions, or inaction, is that the landmark cases, District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008), McDonald vs. City of Chicago, 561 U.S. 742, 130 S. Ct. 330 (2010), and New York State Rifle & Pistol Association (NYSRPA) vs. Bruen, 597 U.S. 1, 142 S. Ct. 2111 (2022), having slowly atrophied through the failure of the High Court to grant review of the most significant cases, Antonyuk vs. James and Snope vs. Brown, will eventually ossify and ultimately become a “dead letter.”

And all this would come about because the High Court forsakes concern for the SANCTITY AND INVIOLABILITY of our FREE CONSTITUTIONAL REPUBLIC’S MOST VITAL NATURAL LAW RIGHT, “THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS.”

This brings us back to the present Second Amendment case before the Supreme Court, Wolford vs. Lopez. Sure, the High Court has finally taken up a Second Amendment case. But is this elation misplaced? We think so, and our belief isn’t based on the thought that SCOTUS will decide the Wolford case wrongly, meaning that SCOTUS will affirm the decision of the U.S. Court of Appeals for the Ninth Circuit, that ruled in favor of the State of Hawaii, against the Wilson Petitioners.

A bad, legally dubious outcome is unlikely. It is unlikely because the conservative wing of the Court—the true conservative wing—comprising two senior Associate Justices, Clarence Thomas and Samuel Alito, and, possibly, one of the junior Associate Justices, Neil Gorsuch, a Trump nominee—would never proffer votes to review Second Amendment cases if doing so would lead to a decision weakening the Second Amendment Right and undermining the RULINGS and REASONING of the THREE LANDMARK Second Amendment cases.

The sole issue in Wolford is——

WHETHER THE U.S. COURT OF APPEALS FOR THE 9TH CIRCUIT ERRED IN HOLDING THAT HAWAII MAY PRESUMPTIVELY PROHIBIT THE CARRY OF HANDGUNS BY LICENSED CONCEALED CARRY PERMIT HOLDERS ON PRIVATE PROPERTY OPEN TO THE PUBLIC UNLESS THE PROPERTY OWNER AFFIRMATIVELY GIVES EXPRESS PERMISSION TO THE HANDGUN CARRIER.

The above-referenced question, which we feel is a secondary one, begs a couple of preliminary or salient questions, one of which is——

WHETHER A STATE’S USE OF “SENSITIVE PLACE” RESTRICTIONS TO PROHIBIT THE CITIZEN FROM CARRYING A HANDGUN FOR SELF-DEFENSE UNLAWFULLY IMPLICATES AND REINTRODUCES THE INTEREST-BALANCING STANDARD BACK INTO SECOND AMENDMENT ANALYSIS, WHERE A STATE NOT ONLY INFRINGES THE NATURAL LAW RIGHT TO ARMED SELF-DEFENSE BUT INFRINGES FUNDAMENTAL PRIVATE PROPERTY INTERESTS AS WELL, CLAIMING A JUSTIFIABLE USE OF THE STATE’S POLICE POWERS UNDER THE TENTH AMENDMENT TO PROMOTE PUBLIC SAFETY REGARDLESS OF WHETHER HAWAII’S ACTION IS CONSISTENT WITH THE HISTORICAL TRADITION TEST, AS FIRST ARTICULATED IN HELLER AND FURTHER EXPLICATED IN BRUEN.

The afore-referenced question raises two others, ONE OF THOSE IS THE SALIENT ISSUE MENTIONED IN WOLFORD THAT THE COURT DECLINED TO REVIEW.

APROPOS OF THE FIRST QUESTION——

CONSIDER IN THEIR ENTIRETY THE ISSUES PRESENTED IN THE WOLFORD PETITIONER’ PETITION FOR A WRIT OF CERTIORARI, AND AS REASSERTED IN THE SUPREME COURT’S DOCKET.

In that DOCKET, THE HIGH COURT POINTS OUT THE DETAILS OF THE CASE, THE TWO ISSUES PRESENTED IN PETITIONERS’ PETITION, AND THE SOLE ISSUE THE COURT WILL REVIEW:

24-1046 WOLFORD V. LOPEZ

DECISION BELOW: 116 F.4th 959

LOWER COURT CASE NUMBER: 23-16164

QUESTION PRESENTED:

New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 33 (2022), holds that "the Second Amendment guarantees a general right to public carry" of arms, meaning ordinary, law-abiding citizens may "'bear' arms in public for self-defense." In this case, the Ninth Circuit sustained a Hawaii law that makes it a crime for a concealed carry permit holder to carry a handgun on private property unless he has been "given express authorization to carry a firearm on the property by the owner, lessee, operator, or manager of the property." H.R.S. § 134-9.5. That holding is in acknowledged direct conflict with the Second Circuit's holding in Antonyuk v. James, 120 F.4th 941 (2d Cir. 2024), a decision that struck down an identical State law in the same procedural posture as this case.

The Ninth Circuit also sustained a multitude of other location bans on carry by permit holders, relying solely on post-Reconstruction Era and later laws. That doctrinal approach is in direct conflict with the Third Circuit's decision in Lara v. Commissioner Pennsylvania State Police, 125 F.4th 428 (3d Cir. 2025), the Fifth Circuit's decision in United States v. Connelly, 117 F.4th 269 (5th Cir. 2024), the Eighth Circuit's decision in Worth v. Jacobson, 108 F.4th 677 (8th Cir. 2024), and, most recently, the Eleventh Circuit's en banc decision in NRA v. Bondi, No. 21-12314, 2025 WL 815734 at *5 (11th Cir. March 14,2025) (en banc), all of which hold that primary focus must be on Founding generation laws and tradition in applying the text, history and tradition test Bruen mandates.

The questions presented are:

1. Whether the Ninth Circuit erred in holding, in direct conflict with the Second Circuit, that Hawaii may presumptively prohibit the carry of handguns by licensed concealed carry permit holders on private property open to the public unless the property owner affirmatively gives express permission to the handgun carrier?

2. Whether the Ninth Circuit erred in solely relying on post-Reconstruction Era and later laws in applying Bruen's text, history and tradition test in direct conflict with the holdings of the Third, Fifth, Eighth and Eleventh Circuits?

LIMITED TO QUESTION 1 PRESENTED BY THE PETITION.

CERT. GRANTED 10/3/2025

[EMPHASIS OUR OWN]

NOTE TWO MATTERS: The Petitioners’ reference to the Antonyuk case, and the Court’s decision to strike review of the issue that goes directly to the point in time that a reviewing court must look to when applying the Historical Tradition Test, when searching for a constitutionally permissible analog to support a present state enactment.

ALSO: COMPARE THE SECOND ISSUE IN WOLFORD TO THE FIRST ISSUE SET FORTH IN THE PETITIONERS’ BRIEF IN ANTONYUK VS. JAMES.

In the “QUESTION PRESENTED” section of Antonyuk Petitioners’ Brief, Petitioners say this:

QUESTION PRESENTED

Moments after this Court issued N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), striking down New York’s discretionary firearms licensing regime, state politicians decried the decision as “reprehensible,” vowing to resist the “insanity” of “gun culture” that “possessed … the Supreme Court.” Rather than following Bruen, New York enacted a “Concealed Carry Improvement Act” that makes it more difficult to bear arms than before Bruen was decided. A panel of the Second Circuit upheld much of this law in an opinion this Court vacated in light of United States v. Rahimi, 602 U.S. 680 (2024). But on remand, the panel doubled down, reissuing a nearly identical opinion and dismissing Rahimi as having “little direct bearing on our conclusions.” Relying almost entirely on a few late-19th-century outlier laws rather than Founding-era practice, the panel again affirmed New York’s requirement of “good moral character” as a precondition to public carry, along with most of its gun bans in all manner of nonsensitive public places. These holdings clearly contravene Bruen’s rejection of discretionary “suitability” assessments and warning not to declare all of Manhattan a “sensitive place.”

The questions presented are: 1. Whether the proper historical time period for ascertaining the Second Amendment’s original meaning as applied to the states is 1791, rather than 1868; and 2. Whether “the people” must convince government officials of their “good moral character” before exercising their Second Amendment right to bear arms. [EMPHASIS OUR OWN]

THE COURT DOCEKTED THE CASE ON JANUARY 27, 2025, AND SUBSEQUENTLY DENIED THE PETITION WITHOUT COMMENT, ON APRIL 7, 2025. See Court Docket. Note: this was the SECOND Petition that the Antonyuk Petitioners filed in their case. They filed their FIRST Petition on February 20, 2024.

The Petitioners laid out their arguments but, knowing that the Supreme Court would soon be publishing its decision in Rahimi, the Petitioners asked the Court to remand the case back to the U.S. Court of Appeals for the Second Circuit, to reconsider the historical period time for ascertaining the Second Amendment’s original meaning as applied to the States, 1791 OR 1868. The Petitioners had hoped that the Court would resolve the issue, and rule that the proper date to be applied when a reviewing court is testing the constitutionality of a state action impacting the Second Amendment IS 1791, rather than 1868.

Although the Supreme Court discussed at length the issue of what constitutes a proper historical analog, the High Court did not resolve the issue concerning the specific date a lower state and federal reviewing court must use when rendering a decision on the applicability of a specific historical analog.

The U.S. Supreme Court thereupon issued its “GVR.” The Court granted the Petition, vacated the decision of the U.S. Court of Appeals for the Second Circuit and remanded the case back to the Second Circuit to reconsider its decision in light of the soon-to-be published decision in Rahimi. The citation for the Second Circuit case is Antonyuk vs. James, 120 F.4th 941 (2nd Cir. 2024).

Upon publication of the Supreme Court’s decision in Rahimi, the Second Circuit, ultimately, stated that Rahimi did not apply to the case, and more to the point, asserted that either date could be used, and thereupon reaffirmed its earlier decision. The Second Circuit then remanded the case back to the District Court on the Preliminary Injunction the Second Circuit had previously vacated. Specifically, the Second Circuit said this,

On June 21, 2024, the Supreme Court decided United States v. Rahimi, 602 U.S. 680, 144 S. Ct. 1889, 219 L. Ed. 2d 351 (2024), and upheld the facial constitutionality of 18 U.S.C. § 922(g)(8), which criminalizes the possession of firearms by certain individuals subject to domestic violence restraining orders. In the wake of Rahimi, the Supreme Court granted certiorari in Antonyuk, summarily vacated our judgment in that case, and remanded the case to this Court for further consideration in light of Rahimi. Antonyuk v. James, 144 S. Ct. 2709, 219 L. Ed. 2d 1315 (2024). At the same time, the Court vacated seven other decisions regarding the Second Amendment from a variety of state and federal courts and remanded them all for further consideration.

As further detailed below, Rahimi involved a regulation of firearms that is quite different from any of those at issue in the present case, and thus has little direct bearing on our conclusions. Specifically, the complaint before us does not challenge a criminal prohibition of firearms possession by a particular class of individuals based on a prior judicial adjudication. Instead, it concerns facial challenges, not all of which are rooted solely in the Second Amendment, to a "shall issue" licensing regime for firearm possession, and to restrictions on firearm possession in certain sensitive locations. The Court addressed neither issue in Rahimi.

However, the Court's analysis of the considerations and methodology bearing on the constitutionality of the statute before it, and in particular its explication of the role of history in interpreting the Second Amendment, clarified to some degree the meaning and effect of its prior decision in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022). For the most part, the methodology adopted in Rahimi is consonant with the one that we applied in our prior consolidated opinion, and the Court's analysis in Rahimi therefore supports our prior conclusions. In any event, we have conscientiously followed the Court's mandate and have reconsidered all of our conclusions in light of Rahimi, after receiving supplemental briefing from the parties on that decision. In consequence of our reconsideration, we now issue the following revised opinion in this case, taking account of the Supreme Court's latest guidance.

Accordingly, we AFFIRM the injunction in part, VACATE it in part, and REMAND the case to the district court for further proceedings consistent with the present opinion.

On the issue of “HISTORICAL TRADITION,” the Federal Appellate Court opined,

In Rahimi, the Court reiterated its statement in Heller that the right embodied in the Second Amendment is not "a right to keep and carry any weapons whatsoever in any manner whatsoever and for whatever purpose." Id. at 1897 (quoting Heller, 554 U.S. at 626). Further, the Court expressly rejected the argument, advanced by some courts and commentators, that only regulations "identical to ones that could be found in 1791" are permitted by the Second Amendment. Id. at 1898. Rather, "the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition. "Id. (citing Bruen, 597 U.S. at 26-31) (emphasis added).

[The Second Circuit’s point in emphasizing the date 1791 here is for the purpose of rebutting that date’s importance. The Second Circuit opines that the U.S. Supreme Court says in Rahimi that application of HISTORICAL TRADITION doesn’t require a reviewing court to limit inquiry to a specific era in time in pursuit of securing an acceptable analog].

That [HISTORICAL TRADITION] analysis, consistent with Bruen's pronouncement that present-day regulations need not "precisely match" historical precedents, id. (citing Bruen, 597 U.S. at 30), was absolutely necessary to the Rahimi holding, because, as the Court acknowledged and the sole dissenter [Associate Justice Thomas] emphasized, id. at 1933 (Thomas, J., dissenting), there was no close parallel in 1791 to statutes permitting restraining orders against domestic abusers, or forbidding firearms possession by those subject to such orders [Emphasis our own]. [SO, THEN, IS THE SECOND CIRCUIT MERELY ASSUMING THAT, HAVING FOUND NO ACCEPTABLE ANALOG PARALELL IN 1791, THE U.S. SUPREME COURT IS STATING THAT A REVIEWING COURT CAN LOOK AT ANY OTHER DATE, SAY 1868, TO FIND AN ANALOG THAT PASSES THE HISTORICAL TRADITION TEST? IT SEEMS SO. BUT, IF SO, DOES THIS NOT REDUCE RAHIMI TO A CASE WHERE THE COURT ISSUES AN AD HOC RULING, AND DOES SO TO RATIONALIZE, BEFORE THE FACT, A RULING A FEW JUSTICES (THE LIBERAL WING) WANTS, AND THE CONSERVATIVE (MODERATE?) WING OF THE COURT RELUCTANTLY AGREES TO? AND DOES NOT THIS RULING REDUCE THE HISTORICAL TRADITION, THEN, TO AN INVALID, UNSOUND TEST UTILIZED TO BUTTRESS A DECISION PREVIOUSLY REACHED? AND IF SO, HOW THEN, IS “HISTORICAL TRADITION” ANY BETTER THAN “INTEREST BALANCING” THAT THE “HISTORICAL TRADITION” STANDARD REPLACES”? IT ISN’T. JUSTICE THOMAS IS THE ONLY JUSTICE WHO HAS THE COURAGE TO POINT THIS OUT—A LOGICAL IMPLICATION TO BE INFERRED FROM HIS DISSENT IN RAHIMI. THE SUPREME COURT’S RULING IN RAHIMI IS PREDICATED SOLELY ON DICTA. IF THE RAHIMI DECISION IS TO BE UTILIZED AS PRECEDENT, THE COURT SHOULD HAVE MADE THIS PLAIN BY HOLDING CLEARLY, CONCISELY, AND CATEGORICALLY, THAT ONE OR MORE DATES, OR, FOR THAT MATTER, ANY DATE IS ACCEPTABLE IN SEARCHING FOR AN ADEQUATE ANALOG TO JUSTIFY A STATE ACTION IMPACTING ON THE SECOND AMENDMENT. BUT THE COURT NEVER DID THAT AND JUSTICE ROBERTS HAS NO DESIRE TO DO SO. THE SECOND CIRCUIT IS HAPPY TO GO ALONG WITH THE CHARADE. THE SUPREME COURT COULD HAVE MADE A RULING ON WHETHER 1791 IS THE DATE TO BE UTILIZED IN TESTING FOR THE CONSTITUTIONALITY OF A PRESENT-DAY STATE GOVERNMENT ACTION THAT CONSTRAINS EXERCISE OF ONE’S FUNDAMENTAL NATURAL LAW RIGHT TO ARMED SELF-DEFENSE, IF THE COURT HAD TAKEN UP THE ISSUE IN ANTONYUK, THE MATTER WOULD HAVE BEEN SETTLED, AND THE ONLY OTHER ISSUE INVOLVING HISTORICAL TRADITION, THAT THE SUPREME COURT WOULD NEED TO SETTLE INVOLVES CRAFTING TESTS TO ASCERTAIN WHAT CONSTITUTES AN ACCEPTABLE HISTORICAL ANALOG APROPOS OF A PARTICULAR ERA OF TIME, SAY 1791? BUT THE COURT DIDN’T DO THAT. AND THE COURT’S DECISION TO STRIKE THE SAME ISSUE IN WOLFORD FROM BEING DEALT WITH, MEANS THAT THE HIGH COURT DOES NOT WISH TO PROVIDE SPECIFIC GUIDANCE. RAHIMI IS A POOR DECISION, AND THE NUMBER OF CONCURRING OPINIONS IN THAT CASE HIGHLIGHTS MANY OF THE JUSTICES’ CONCERN OVER STRENGTH OF THE LEGAL AND LOGICAL JUSTICIFATION FOR RULING AGAINST THE PETITIONER IN]. JUSTICE GORSUCH RECOGNIZES THE PROBLEM, AND THAT EXPLAINS HIS ARGUMENT THAT RAHIMI IS ESSENTIALLY FACT BASED AND IS THEREFORE NOT TO BE CONSIDERED PRECEDENT FOR ANY SIMILAR CASE INVOLVING AS TO THE IMPORT OF § 922(g)(8). SO, THEN, IS A PERSON TO CONCLUDE THAT ANY SIMILAR SET OF FACTS, IMPLICATING § 922(g)(8) MAY BE DECIDED DIFFERENTLY THAN RAHIMI? REALLY?].

Despite the absence of a specific precedent directly analogous to the challenged statute, the Court found "ample evidence that the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others. "Id. at 1898. Since § 922(g)(8) prohibits firearm possession by individuals who have been specifically determined to pose a threat to the safety of another person, it fell within that "regulatory tradition." Id. at 1901.

The Court reached that conclusion primarily by analogy to two types of 18th-century weapons regulations that were "relevantly similar" but "by no means identical" to § 922(g)(8). Id. (quotation marks omitted). First, "[u]nder the surety laws, a magistrate could 'oblige those persons, of whom there is probable ground to suspect of future misbehavior, to stipulate with and to give full assurance that such offense shall not happen, by finding pledges or securities,'" such as by posting a bond. Id. at 1899-900 (quoting 4 W. Blackstone, Commentaries on the Laws of England 251 (10th ed. 1787) (hereinafter, "Blackstone")) (alterations adopted). Second, the court looked to the "going armed laws," which prohibited "riding or going armed, with dangerous or unusual weapons, [to] terrify[] the good people of the land." Id. at 1901 (quoting 4 Blackstone 149) (alterations in original). Because "[s]uch conduct disrupted the public order and led almost necessarily to actual violence[,] . . . the law punished these acts with forfeiture of the arms and imprisonment."Id. (quotation marks omitted and alterations adopted).

Neither of those sets of laws "precisely match[ed]" a criminal prohibition of possession of firearms by a particular class of person based on a prior civil imposition of a protective order. Id. at 1898. Nonetheless, the Court concluded that § 922(g)(8) is "analogous enough [to those laws] to pass constitutional muster," as it comports "with the principles underlying the Second Amendment." Id. (quoting Bruen, 597 U.S. at 30). Namely, both sets of laws "confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed," and § 922(g)(8) "fits neatly within th[at] tradition." Id. at 1901 [Emphasis our own]

Although the Court noted that the specific statute before it, like the surety laws (but unlike the "going armed" laws), disarmed the person subject to the protective order only for a delimited period and applied only to persons found by a court to pose a danger to a particular other person, the Court "[did] not suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse." Id. (citing Heller, 554 U.S. at 626). To the contrary, the Court again reiterated its prior statement in Heller that "many . . . prohibitions [on the possession of firearms, in the home], like those on the possession of firearms by 'felons and the mentally ill,' are 'presumptively lawful.'" Id. at 1902 (quoting Heller, 554 U.S. at 626, 627 n.26).

Finally, the Court provided additional guidance to the lower courts as to the proper scope of the Second Amendment, albeit in a passage that was not necessary to the disposition of the case before it, which had already been resolved on the grounds that "dangerous" individuals may be temporarily disarmed. See id. at 1903. Namely, the Court "reject[ed] the Government's contention that [an individual] may be disarmed simply because he is not 'responsible,'" noting that that term is "vague" and would lead to "unclear" results. Id. The Court further stated that the use of "responsib[ility]" as a guiding principle of the Second Amendment did not derive from its case law. Id. Although both Heller and Bruen used the term "to describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right," those decisions "said nothing about the status of citizens who were not 'responsible.'" Id. (citing Heller, 554 U.S. at 635, and Bruen 597 U.S. at 70).

The Antonyuk Petitioners recognized this was part and parcel of a delaying tactic that the Second Circuit was engaged in since the Antonyuk case commenced. More to the point, the historical date to be applied to the state action had been fully briefed by the Parties. The Second Circuit the Petitioners then filed their second Petition to the Supreme Court.

Since the first issue in ANTONYUK is essentially the same issue presented in WOLFORD that SCOTUS refused to entertain in the Antonyuk case, why did the Court refuse to review that issue in the Wolford case, limiting review to the Sensitive Place restriction issue, only?

Since “HISTORICAL TRADITION” standard replaces the previous “INTEREST-BALANCING” standard in those cases directed to the constitutionality of state action impacting, impinging on exercise of the Fundamental Right codified in the Second Amendment, it is apparent to us that, resolution of conflicting views on applying this standard is not only rampant in the states but in the Supreme Court itself, and since the standard of review is central to testing the legality and constitutionality of state action, it is plain that no consistent decision is possible unless this matter is taken care of first. The Court should have resolved this matter in Rahimi.

But it didn’t or couldn’t! And that explains the strenuous dissent by Justice Thomas in that case.

The first issue, once again, goes to the specific date that a reviewing court must use when determining whether a proper analog exists that supports a present state action that impacts the Second Amendment.

In his concurring opinion Justice Gorsuch acknowledges the historical tradition test is problematic, but his point that it is the best option we have, is ultimately unnerving. Imagine, if scientists decided to craft their own interpretation for use of the scientific method. How could any experiments be replicated. And, if not, then, the methodology itself is unsound.

If, as Justice Gorsuch suggests, each Second Amendment case is a one-off proposition, then why, or how, could any test of the legality, THE CONSTITUTIONALITY of state action impacting the Second Amendment be considered valid. It comes down to ad hoc decisions, grounded in the first instance on the reviewing court’s personal predilection of a matter. And the same is true of the U.S. Supreme Court. Rahimi basically pulls the rug out from under the Historical Tradition Test.

Associate Justice, Gorsuch, says,

In this case, no one questions that the law Mr. Rahimi challenges addresses individual conduct covered by the text of the Second Amendment. So, in this facial challenge, the question becomes whether that law, in at least some of its applications, is consistent with historic firearm regulations. To prevail, the government need not show that the current law is a “‘dead ringer’” for some historical analogue. Ante, at 8 (quoting Bruen, 597 U. S., at 30, 142 S. Ct. 2111, 213 L. Ed. 2d 387). But the government must establish that, in at least some of its applications, the challenged law “impose[s] a comparable burden on the right of armed self-defense” to that imposed by a historically recognized regulation. Id., at 29, 142 S. Ct. 2111, 213 L. Ed. 2d 387; see ante, at 7. And it must show that the burden imposed by the current law “is comparably justified.” Bruen, 597 U. S., at 29, 142 S. Ct. 2111, 213 L. Ed. 2d 387; see ante, at 7.

Why do we require those showings? Through them, we seek to honor the fact that the Second Amendment “codified a pre-existing right” belonging to the American people, one that carries the same “scope” today that it was “understood to have when the people adopted” it. Heller, 554 U. S., at 592, 634-635. When the people ratified the Second Amendment, they surely understood an arms-bearing citizenry posed some risks. But just as surely they believed that the right protected by the Second Amendment was itself vital to the preservation of life and  liberty. See, e.g., 1 Blackstone’s Commentaries, Editor’s App. 300 (St. George Tucker ed. 1803) (observing that the Second Amendment may represent the “palladium of liberty,” for “[t]he right of self defence is the first law of nature,” and “in most governments[,] it has been the study of rulers to confine this right within the narrowest limits”); 3 J. Story, Commentaries on the Constitution of the United States §1890, p. 746 (1833) (“The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic”).

We have no authority to question that judgment. As judges charged with respecting the people’s directions in the Constitution—directions that are “trapped in amber,” see ante, at 7—our only lawful role is to apply them in the cases that come before us. Developments in the world may change, facts on the ground may evolve, and new laws may invite new challenges, but the Constitution the people adopted remains our enduring guide. Bruen, 597 U. S., at 27-28, 142 S. Ct. 2111, 213 L. Ed. 2d 387; see, e.g., United States v. Jones, 565 U. S. 400, 404-405, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012); Caetano v. Massachusetts, 577 U. S. 411, 411-412, 136 S. Ct. 1027, 194 L. Ed. 2d 99 (2016) (per curiam). [Emphasis our own] If changes are to be made to the Constitution’s directions, they must be made by the American people. Nor is there anything remotely unusual about any of this. Routinely, litigants and courts alike must consult history when seeking to discern the meaning and scope of a constitutional provision. See post, at 6-16 (Kavanaugh, J., concurring) (offering examples). And when doing so, litigants and courts “must exercise care.” See post, at 3, n. (Barrett, J., concurring). [JUSTICE GORSUCH IS, APPARENTLY, USING THE TERM ‘HISTORY’ IN A DIFFERENT, MORE GENERAL CONTEXT. HE ISN’T REFERRING SPECIFICALLY TO THE TEST THE SUPREME COURT CRAFTED FOR USE IN TESTING THE CONSTITUTIONALITY OF STATE ACTION IMPINGING ON, OR INFRINGING THE SECOND AMENDMENT BECAUSE THE “HISTORICAL TRADITION” TEST WAS DEVISED BY THE COURT FOR ONE NARROW PURPOSE. JUSTICE GORSUCH SHOULD HAVE POINTED THAT OUT.

Consider just one example. We have recognized that the Sixth Amendment enshrines another pre-existing right: the right of a defendant to confront his accusers at trial. Crawford v. Washington, 541 U. S. 36, 54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Just as here, we have recognized that, in placing this right in the Constitution, the people set its scope, “admitting only those exceptions established at the time of the founding.” Ibid. And, just as here, when a party asks us to sustain some modern exception to the confrontation right, we require them to point to a close historic analogue to justify it. See Giles v. California, 554 U. S. 353, 358-361, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008). Just as here, too, we have expressly rejected arguments that courts should proceed differently, such as by trying to glean from historic exceptions overarching “policies,” “‘purposes,’” or “values” to guide them in future cases. See id., at 374-375, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (opinion of Scalia, J.). We have rejected those paths because the Constitution enshrines the people’s choice to achieve certain policies, purposes, and values “through very specific means”: the right of confrontation as originally understood at the time of the founding. Id., at 375, 128 S. Ct. 2678, 171 L. Ed. 2d 488. As we have put it, a court may not “extrapolate” from the Constitution’s text and history “the values behind [that right], and then . . . enforce its guarantees only to the extent they serve (in the courts’ views) those underlying values.” Ibid. Proceeding that way, we have warned,  risks handing judges a license to turn “the guarantee of confrontation” into “no guarantee at all.”  Ibid. As there, so too here: Courts must proceed with care in making comparisons to historic firearms regulations, or else they risk gaming away an individual right the people expressly preserved for themselves in the Constitution’s text.

Proceeding with this well in mind today, the Court rightly holds that Mr. Rahimi’s facial challenge to §922(g)(8) cannot succeed. It cannot because, through surety laws and restrictions on “going armed,” the people in this country have understood from the start that the government may disarm an individual temporarily after a “judicial determinatio[n]” that he “likely would threaten or ha[s] threatened another with a weapon.” Ante, at 14. And, at least in some cases, the statute before us works in the same way and does so for the same reasons: It permits a court to disarm a person only if, after notice and hearing, it finds that he “represents a credible threat to the physical safety” of others. §§922(g)(8)(A), (g)(8)(C)(i). A court, too, may disarm an individual only for so long as its order is in effect. §922(g)(8). In short, in at least some applications, the challenged law does not diminish any aspect of the right the Second Amendment was originally understood to protect. See Bruen, 597 U. S., at 24. [Emphasis our own. Per this last sentence, IS THIS A STATEMENT OF FACT, OR MERELY A FERVENT WISH?]

I appreciate that one of our colleagues sees things differently. Post, at 6-7 (Thomas, J., dissenting). But if reasonable minds can disagree whether §922(g)(8) is analogous to past practices originally understood to fall outside the Second Amendment’s scope, we at least agree that is the only proper question a court may ask. Post, at 5. Discerning what the original meaning of the Constitution requires in this or that case may sometimes be difficult. Asking that question, however, at least keeps judges in their proper lane, seeking to honor the supreme law the people have ordained rather than substituting our will for theirs. And whatever indeterminacy may be associated with seeking to honor the Constitution’s original meaning in modern disputes, that path offers surer footing than any other this Court has attempted from time to time. Come to this Court with arguments from text and history, and we are bound to reason  through them as best we can. (As we have today.) Allow judges to reign unbounded by those materials, or permit them to extrapolate their own broad new principles from those sources, and no one can have any idea how they might rule. (Except the judges themselves.) Faithful adherence to the Constitution’s original meaning may be an imperfect guide, but I can think of no more perfect one for us to follow [emphasis our own] [How does this help one to understand the status of U.S. Supreme Court case law that produces rulings on the Constitution?] [So, the Constitution is SINGULAR, ETERNAL but the Court’s jurisprudence is AD HOC—EVER SUBJECT TO CHANGE AND REPUDIATION? ARE THE SALIENT RULINGS IN THE LANDMARK HELLER, MCDONALD AND BRUEN CASES, GROUNDED IN THE FUNDAMENTAL NATURAL LAW RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS TO BE CONSTRUED AS TRANSITORY, AND CONDITIONAL?]

[JUSTICE GORSUCH REFERS TO THE CONSTITUTION AS AN ENDURING, UNCHANGING CONSTANT (UNLESS AS HE SAYS, THE AMERICAN PEOPLE WISH TO CHANGE IT. YET A QUALIFIER IS REQUIRED HERE.]

[IT IS AXIOMATIC, THAT——]

NEITHER GOVERNMENT NOR THE AMERICAN PEOPLE CAN REPEAL FUNDAMENTAL NATURAL LAW RIGHTS BECAUSE THEY ARE NOT CREATED BY MAN OR BY THE ARTIFICE OF GOVERNMENT. THEY ARE BESTOWED ON AND IN MAN BY THE DIVINE CREATOR. REPEALING THE WORDS OF FUNDAMENTAL, RIGHTS, ONLY AFFECTS THE LANGUAGE—CODIFICATIONS OF THE RIGHTS, BUT NEVER THE RIGHTS THEMSELVES—FOR THERIGHTS ARE PREEXISTING, ETERNAL, UNCONDITIONAL. THE REPEALING THE SECOND AMENDMENT, FOR EXAMPLE, ONLY AFFECTS THE SYMBOLS ASSOCIATED WITH THE RIGHT, I.E., THE LANGUAGE. “THE RIGHT” ITSELF IS NOT SUBJECT TO REPEAL, FOR IT IS SUPERNAL NOT EARTHLY].

Just consider how lower courts approached the Second Amendment before our decision in Bruen. They reviewed firearm regulations under a two-step test that quickly “devolved” into an interest-balancing inquiry, where courts would weigh a law’s burden on the right against the benefits the law offered. See Rogers v. Grewal, 590 U. S. ___, ___, and n. 1, 140 S. Ct. 1865, 207 L. Ed. 2d 1059 (2020) (Thomas, J., joined by Kavanaugh, J., dissenting from denial of certiorari) (slip op., at 5, and n. 1); see also, e.g., Peruta v. County of San Diego, 742 F. 3d 1144, 1167-1168, 1176-1177 (CA9 2014); Drake v. Filko, 724 F. 3d 426, 457 (CA3 2013) (Hardiman, J., dissenting). Some judges expressed concern that the prevailing two-step test had become “just window dressing for judicial policymaking.” Duncan v. Bonta, 19 F. 4th 1087, 1148 (CA9 2021) (en banc) (Bumatay, J., dissenting). To them, the inquiry worked as a “black box regime” that gave a judge broad license to support policies he “[f]avored” and discard those he disliked. Ibid. How did the government fare under that regime? In one circuit, it had an “undefeated, 50-0 record.” Id., at 1167, n. 8 (VanDyke, J., dissenting). In Bruen, we rejected that approach for one guided by constitutional text and history. 597 U. S., at 19, 142 S. Ct. 2111, 213 L. Ed. 2d 387. Perhaps judges’ jobs would be easier if they could simply strike the policy balance they prefer. And a principle that the government always wins surely would be simple for judges to implement. But either approach would let judges  stray far from the Constitution’s promise. See Heller, 554 U. S., at 634, 128 S. Ct. 2783, 171 L. Ed. 2d 637.

One more point: Our resolution of Mr. Rahimi’s facial challenge to §922(g)(8) necessarily leaves open the question whether the statute might be unconstitutional as applied in “particular circumstances.” Salerno, 481 U. S., at 751, 107 S. Ct. 2095, 95 L. Ed. 2d 697. So, for example, we do not decide today whether the government may disarm a person without a judicial finding that he poses a “credible threat” to another’s physical safety. §922(g)(8)(C)(i); see ante, at 8. We do not resolve whether the government may disarm an individual permanently. See ante, at 14 (stressing that, “like surety bonds of limited duration, Section 922(g)(8)’s restriction was temporary as applied to [Mr.] Rahimi”). We do not determine whether §922(g)(8) may be constitutionally enforced against a person who uses a firearm in self-defense. Notably, the surety laws that informs today’s decision allowed even an individual found to pose a threat to another to “obtain an exception if he needed his arms for self-defense.” Ante, at 12; see also post, at 23 (Thomas, J., dissenting). Nor do we purport to approve in advance other laws denying firearms on a categorical basis to any group of persons a legislature happens to deem, as the government puts it, “not ‘responsible.’” Ante, at 17 (quoting Brief for United States 6); see Tr. of Oral Arg. 31-32; see also post, at 27 (opinion of Thomas, J.) (“Not a single Member of the Court adopts the Government’s theory”).

We do not resolve any of those questions (and perhaps others like them) because we cannot. Article III of the Constitution vests in this Court the power to decide only the “‘actual cas[e]’” before us, “‘not abstractions.’” Public Workers v. Mitchell, 330 U. S. 75, 89, 67 S. Ct. 556, 91 L. Ed. 754 (1947). And the case before us does not pose the question whether the challenged statute is always lawfully applied, or whether other statutes might be permissible, but only whether this one has any lawful scope. Nor should future litigants and courts read any more into our decision than that. As this Court has long recognized, what we say in our opinions must “be taken in connection with the case in which those expressions are used,” Cohens v. Virginia, 19 U.S. 264, 6 Wheat. 264, 399, 5 L. Ed. 257 (1821), and may not be “stretch[ed] . . . beyond their context,” Brown v. Davenport, 596 U. S. 118, 141, 142 S. Ct. 1510, 212 L. Ed. 2d 463 (2022).

The second question set out in the Antonyuk petition raises can easily be resolved by the Historical Tradition test but only if the Court first provides specific guidance as to the appropriate date to be applied in state actions directed against the exercise of the Second Amendment right to armed self-defense, and, second, provides clarification in ascertaining the utility of the analog to be considered in the context of that historical date. Antonyuk is the most important matter for the High Court to take up because it was the first case to come to the Court that asks for clarification of the Historical Tradition Test. But the Antonyuk case is crucial for another reason. The case arises as a challenge to a stubborn New York Government whose actions, in crafting amendments to the State’s Handgun Law is not only contrary to the rulings of the U.S. Supreme Court in Bruen but blatantly defies the Court’s rulings. That act of defiance constitutes an unforgivable assault on the Court’s Article III authority under the Constitution.

The New York Government, under Governor Kathy Hochul, shredded the Bruen ruling by SUBSTITUTING THE “PROPER CAUSE” standard, that the Court struck down as unconstitutional in Bruen, for “THE “GOOD MORAL CHARACTER” requirement, that served effectively to obliterate the import of the Court’s decision in Bruen.

One would think the U.S. Supreme Court would have taken up Antonyuk if for no other reason than the New York Government’s blatant refusal to adhere to the Court’s rulings are particularly egregious because the case came to the Court from New York, and the rulings, while having universal application, are specifically directed to the New York Handgun Law. But the Court denied the Petitioners’ Writ of Certiorari, and did so, perfunctorily, without so much as a comment from Associate Justices Thomas and Alito. When the Antonyuk Petitioners had first petitioned the Court for relief, when the U.S. Court of Appeals for the Second Circuit had vacated the preliminary injunction that had issued from the lower U.S. District Court for the Northern District of New York, Justice Alito added a comment to the Order issued by Justice, making plain to the New York Government, that the State is not to dawdle in litigating this case. Justice Alito’s comment, although directed to the Respondent New York Government, was tacitly addressing the Second Circuit. Plainly Justice Alito and Justice Thomas both were keenly interested in this case. Yet when Petitioners’ Petition on Writ of Certiorari (the Petitioners’ Second Petition) came up to the Court, the Court denied the Petition. And few members of the Press commented on it, obviously delighted the Supreme Court denied the Petition since this meant that the State had effectively won the case as further prosecution of it would take years, and the New York Government could continue to enforce its unlawful, unconstitutional amendments to its Handgun Law.

The facts here make the Supreme Court’s denial of the Antonyuk Petition doubly perplexing and disturbing.

THE COURT DENIED THE PETITION WITHOUT ANY COMMENT AT ALL (FROM EITHER JUSTICE THOMAS OR JUSTICE ALITO). THE MOST SIGNIFICANTLY IMPORTANT CASE TO COME TO THE COURT SINCE BRUEN (AND COMING TO THE COURT DIRECTLY AS A RESULT OF THE NEW YORK GOVERNMENT’S DEFIANCE OF BRUEN) AND NOTHING HAS COME OF IT.

THE ANTONYUK CASE WOULD HAVE BECOME THE FOURTH LANDMARK SECOND AMENDMENT CASE—IT WAS DESTINED TO BECOME THE NEXT LANDMARK SECOND AMENDMENT CASE IF SCOTUS HAD ONLY TROUBLED ITSELF TO GRANT REVIEW OF PETITIONERS’ PETITION AT LEAST ON THE ISSUE DIRECTED TO THE HISTORICAL TRADITION TEST, BUT ROBERTS PLAINLY DID NOT WANT TO GRANT REVIEW OF THE CASE EVEN THOUGH THE HISTORICAL TRADITION QUESTION WAS BRIEFED THOROUGHLY BY THE PARTIES. HAD ROBERTS INDICATED HIS INTEREST IN IT, THEN, TOGETHER WITH THE VOTES OF JUSTICE THOMAS AND JUSTICE ALITO, JUSTICE GORSUCH WOULD HAVE PROVIDED THE FOURTH VOTE TO HEAR THE CASE, AND THE TWO OTHER JUNIOR JUSTICES WHO WERE NOMINATED BY PRESIDENT TRUMP WOULD HAVE JOINED IN A MAJORITY DECISION, CLARIFYING THE HISTORICAL TRADITION TEST AND STRIKING DOWN THE CORE OF THE STATE GOVERNMENT’S UNCONSTITUTIONAL “CONCEALED CARRY IMPROVEMENT ACT.

OF FURTHER NOTE, THE ISSUE PERTAINING TO CLARIFICATION OF THE HISTORICAL TRADITION TEST WAS THE SALIENT ISSUE IN THE ANTONYUK PETITION THAT WAS APPLICABLE TO EVERY STATE ACTION IMPACTING THE SECOND AMENDMENT.

THIS PROBABLY EXPLAINED WHY THE CHIEF JUSTICE DID NOT WANT TO TOUCH THIS CASE, WHICH IMPLIES THAT ROBERTS HAS NO INTEREST IN OR, WORSE, DOES NOT WANT TO TAKE ANY ACTION THAT STRENGTHENS THE NATURAL LAW RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS AND STRENGTHENS TOO, THE COURT’S MAJOR SECOND AMENDMENT DECISIONS IN HELLER, MCDONALD, AND BRUEN.

The curious thing about the HISTORICAL TRADITION TEST that SCOTUS refuses to entertain, is that THIS ISSUE CANNOT BE LOGICALLY, (LET ALONE LEGALLY), IGNORED. IT SUFFUSES EVERY STATE ACTION THAT IMPACTS THE RIGHT TO ARMED SELF-DEFENSE, A FUNDAMENTAL NATURAL LAW RIGHT.

CLARIFICATION OF THE DATE IN TIME THAT THE REVIEWING COURT MUST LOOK TO IN ORDER TO ATTEMPT TO FIND AN ACCEPTABLE ANALOG (CORRELATE) TO CONSTITUTIONALLY JUSTIFY A PRESENT STATE ACTION IMPACTING THE NATURAL LAW RIGHT CODIFIED IN THE SECOND AMENDMENT, AND THE MANNER IN WHICH THAT ANALOG (CORRELATE) ITSELF MUST BE ANALYZED TO ASCERTAIN IF IT IS CONSTITUTIONALLY “CLOSE ENOUGH” TO THE PRESENT STATE ACTION TO HOLD UP CONSTITUTIONALLY, ARE QUESTIONS THAT DEMAND THE SUPREME COURT TO RESOLVE AT ONCE. THESE ARE NOT TO BE CONSIDERED MATTERS THAT REQUIRE THE COURT TO SIT AND WAIT AS THE VARIOUS FEDERAL CIRCUITS PONDER THE ISSUE. SINCE “HISTORICAL TRADITION” IS A JUDGE-MADE STANDARD CRAFTED BY THE U.S. SUPREME COURT, IT IS THIS COURT THAT MUST ESTABLISH BOTH THE PARAMETERS AND THE PROPER MANNER OF UTILIZING IT. THE SUPREME COURT ITSELF MUST IRON ALL THIS OUT.

THIS PARAMOUNT ISSUE SUFFUSES EVERY SUPPLEMENTAL ISSUE INVOLVING THE SECOND AMENDMENT. THE CHIEF JUSTICE BEARS THE RESPONSIBILITY FOR ESTABLISHING THE TONE AND THEME OF THE COURT. WITH ESTABLISHMENT OF THE “HISTORICAL TRADITION” TEST AS THE MECHANISM BY WHICH A LOWER STATE AND FEDERAL COURT IS TO TEST THE CONSTITUTIONALITY OF A STATE ACTION IMPACTING ONE’S EXERCISE OF HIS FUNDAMENTAL, UNALIENABLE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS, THE COURT IS REQUIRED TO PROVIDE GUIDANCE AND DOING SO WILL HELP AVOID THE MANY PROBLEMS WITH AND ATTEMPTS BY JURISDICTIONS THAT ABHOR THE NOTION OF THE ARMED CITIZEN FIND A PLAUSIBLE LOOPHOLE THROUGH WHICH AN UNLAWFUL STATE LAW IS PERMITTED TO REMAIN ENFORCEABLE.

The HISTORICAL TRADITION TEST came up, and was discussed at length in the Rahimi case, and it came up in Wolford—as a major matter of discussion DURING THE ORAL ARGUMENT. And, it was a stated issue in Wolford, and in Antonyuk before Wolford. Yet the Supreme Court adamantly refuses to tackle HISTORICAL TRADITION as an ISSUE THAT DEMANDS RESOLUTION.

Because of this reluctance, any discussion of it must remain one of COURT DICTA, useful, perhaps, but clearly not precedential setting as the Justices set out their own ideas concerning it but refuse to assert a decisive ruling on it, as Justice Roberts has removed the issue from consideration.

Thus, Antonyuk is dismissed out-of-hand. And Wolford is left with a subordinate issue, where the primary issue—the very meaning and utility of “HISTORICAL TRADITION”—is left unresolved. And, because this primary issue remains unresolved, it is difficult to see how the Court’s ruling on the “SENSITIVE LOCATION” issue, pertaining to Hawaii’s action requiring owners of private property opened to the public to post signs or otherwise make known that firearms are permitted on the property because the default rule is that firearms are not permitted on private property, becomes a nebulous rule, however the Court rules on it. The question goes to application of “HISTORICAL TRADITION,” if the Court applies that standard at all. And, without a clear precedent on application of it because the Court refuses to take up that issue, the Court is left with a decision grounded in dicta, like the decision in Rahimi—of little guidance to the lower state and federal courts.

That clear guidance for use of the “HISTORICAL TRADITION” test nineteen years after that test was first enunciated in Heller and further articulated in Bruen, the Supreme Court has done nothing since to emphatically provide further guidance in the form of a firm ruling on it. The failure for this ultimately falls to Justice John Roberts, as the Chief Justice, notwithstanding that one or more of the other Justices may have influenced the Chief Justice on the matter—likely coming from the liberal wing of the Court but possibly coming from one or more “moderates” as well.

Or most likely, John Roberts may have decided alone to keep the ambiguity and vagueness of the standard a permanent fixture of Second Amendment jurisprudence. We infer this from what is apparent in recent decisions of the Court to forbearing granting review of Antonyuk (and Snope), by consciously, unconscionably dismissing out from review, the Wolford Petitioners’ question, as stated in their Petition for a Writ of Certiorari, seeking explication and clarification of the applicable date in time (or era) a reviewing court must use when applying the "HISTORICAL TRADITION” Test to ascertain whether a state action, impacting the Second Amendment, can successfully withstand Constitutional scrutiny or must fail for unconstitutional infringement of the fundamental right of the people to keep and bear arms.

Where an answer to this question remains wanting, those states that make plain, through their actions, that they hate firearms and that they both detest and are suspicious of (or, perhaps, jealous of) Americans’ exercise of their Fundamental Natural Law Right to Armed Self-defense, perceiving that exercise as an impingement on, or impediment to,(or an affront to), the exercise of a state’s “Police Powers,” those rebellious states will utilize whatever date in time that provides a plausible argument for finding state action justifiable and enforceable, and therefore not an unconstitutional infringement on the individual’s unalienable right to armed self-defense. This is apparent from the comments of the U.S. Court of Appeals for the Second Circuit in Antonyuk vs. James, 120 F.4th 941 (2nd Cir, 2024), where the Court, having considered Rahimi, reaffirmed its earlier decision, finding for the State of New York against the Antonyuk Petitioners. The Second Circuit said this,

Because the CCIA is a state law, the prevailing understanding of the right to bear arms in 1868 and 1791 are both focal points of our analysis.16 See Bruen, 597 U.S. at 34 ("Constitutional rights are enshrined with the scope they were understood to have when the people adopted them." (quoting Heller, 554 U.S. at 634-35)); McDonald, 561 U.S. at 778 (plurality opinion) ("[I]t is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty." (emphasis added)). The time periods in close proximity to 1791 and 1868 are also relevant to our analysis. True, the farther we depart from these key dates, the greater the chance we stray from the original meaning of the constitutional text. See Bruen, 597 U.S. at 36-37. Nevertheless, it is implausible that the public understanding of a fundamental liberty would arise at a historical moment, rather than over the preceding era.17 And it is implausible that such public understanding would promptly dissipate whenever that era gave way to another. In this way, sources from the time periods close around those dates "illuminat[e] the understanding of those steeped in the contemporary understanding of a constitutional provision." Duncan v. Bonta, 83 F.4th 803, 819 (9th Cir. 2023) (Butamay, J., dissenting).

"McDonald confirms" that understanding. Ezell, 651 F.3d 684, 702 (7th Cir. 2011). As some scholars urged the Court to do,18 the McDonald plurality looked to evidence of the pre-Civil War and Reconstruction Eras to hold that right to keep and bear arms was a fundamental right fully applicable to the States. See 561 U.S. at 770-78 (plurality opinion). In so holding, the plurality gave particular emphasis to how "the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty." Id. at 778 (emphasis added). It would be incongruous to deem the right to keep and bear arms fully applicable to the States by Reconstruction standards but then define its scope and limitations exclusively by 1791 standards.

We therefore agree with the decisions of our sister circuits—emphasizing "the understanding that prevailed when the States adopted the Fourteenth Amendment"—is, along with the understanding of that right held by the founders in 1791, a relevant consideration. Bondi, 61 F.4th at 1322; Wolford v. Lopez, 116 F.4th 959, 980 (9th Cir. 2024); see also Range v. Att'y Gen. United States of Am., 69 F.4th 96, 112 (3d Cir. 2023) (en banc) (Ambro, J., concurring) (observing that if the relevant period extends beyond the Founding era, "then Founding-era regulations remain instructive unless contradicted by something specific in the Reconstruction-era"), cert. granted, judgment vacated  sub nom. Garland v. Range, 144 S. Ct. 2706, 219 L. Ed. 2d 1313 (2024); Drummond v. Robinson Twp., 9 F.4th 217, 227 (3d Cir. 2021) ("[T]he question is if the Second and Fourteenth Amendments' ratifiers approved regulations barring training with common weapons in areas where firearms practice was otherwise permitted." (emphasis added)); Ezell, 651 F.3d at 702, 705-06 (explaining that a "wider historical lens" is required for a local—or state—regulation and considering evidence from both the Founding-era and Reconstruction) [emphasis our own]

We respectfully part ways with the Third Circuit, which held in Lara v. Commissioner Pennsylvania State Police, 91 F.4th 122, 134 (3d Cir. 2024), cert. granted, judgment vacated, 145 S. Ct. 369, 220 L. Ed. 2d 137, 2024 U.S. LEXIS 4283, 2024 WL 4486348 (U.S. Oct. 15, 2024), that "the Second Amendment should be understood according to its public meaning in 1791," and not 1868. The Lara majority invoked Bruen's guidance that "individual rights enumerated in the Bill of Rights and made applicable against the States through the Fourteenth Amendment have the same scope as against the Federal Government." Id. at 133 (quoting Bruen, 597 U.S. at 37). The majority reasoned that if there is a conflict between the contemporaneous understandings of the right to bear arms at the time of ratification of the Second Amendment and that of the Fourteenth Amendment, "we must pick between the two timeframes." Id. at 134 n.14.

While we recognize that evidence nearest to 1791 can differ from that nearest to 1868, such discrepancy does not mean that the right to keep and bear arms was calcified in either 1791 or 1868. Rather, 1791 and 1868 are both fertile ground,  and the adjacent and intervening periods are likewise places in the historical record to seek evidence of our national tradition of firearms regulation.

In their petition for certiorari in this case, Plaintiffs asked the Supreme Court to resolve the debate about whether courts may rely on the prevailing understanding of the Second Amendment when the Fourteenth Amendment was ratified in 1868. See Petition for Cert. at 10-17. As the Rahimi Court left that issue open, we perceive no reason to revisit our conclusion that we should consider the prevailing understanding of the right to bear arms in both 1868 and 1791 [emphasis our own] [THIS IS THE CRUX OF THE PROBLEM, THAT BEGS FOR THE U.S. SUPREME COURT’S RESOLUTION. JOHN ROBERTS CANNOT BE OBLIVIOUS TO THIS. SO, HIS HESITANCY IN HAVING THE COURT RENDER A DEFINITIVE RULING ON THIS, LEAVES THE MATTER UNRESOLVED. THIS IS THE CAUSE OF THE CIRCUIT SPLIT—A SPLIT ON THE PARAMOUNT ISSUE (THE STANDARD FOR REVIEW OF STATE ACTION THAT IMPACTS THE FUNDAMENTAL RIGHT TO ARMED SELF-DEFENSE). THIS MATTER WAS THE PRINCIPAL QUESTION FOR REVIEW IN ANTONYUK AND IT IS ONE THAT WAS REITERATED IN WOLFORD]

[THIS IS THE CRUX OF THE PROBLEM BECAUSE THE ENTIRETY OF THE SECOND CIRCUIT’S DISCUSSION AND DECISION RESTS ON ITS OWN DECISION (SANS DIRECTION FROM THE SUPREME COURT) THAT “AS THE RAHIMI COURT LEFT THAT ISSUE OPEN . . . “BOTH 1868 AND 1791” CAN BE USED IN ASCERTAINING WHETHER A SATISFACTORY HISTORICAL ANALOG EXISTS THAT SUPPORTS THE CONSTITUTIONALITY OF THE STATE’S ACTION IMPINGING ON AMERICANS’ EXERCISE OF THE FUNDAMENTAL NATURAL LAW RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS”].

[THIS QUESTION IS THE MOST IMPORTANT SECOND AMENDMENT QUESTION TO COME BEFORE THE COURT BECAUSE RESOLUTION OF IT PRECEDES ANY OTHER QUESTION THAT ARISES SIMULTANEOUSLY WITH OR THEREAFTER. THIS IS NOT MATTER THAT ALLLOWS THE CHIEF JUSTICE TO HESITATE ONE. JUSTICE ROBERTS OUGHT NOT MERELY AGREE TO VOTING TO REVIEW THE QUESTION CONCERNING THE APPLICABLE DATE FOR A REVIEWING COURT TO USE TO ASSESS THE CONSTITUTIONALITY OF A PRESENT-DAY STATE ACTION WHEN A CHALLENGE TO A STATE ACTION IMPACTING THE SECOND AMENDMENT COMES UP, BUT SHOULD, AS THE CHIEF JUSTICE, ROBERTS SHOULD EMPHATICALLY ENCOURAGE THE RESOLUTION OF IT. HAD JUSTICE ROBERTS VOTED TO GRANT THE ANTONYUK PETITIONERS’ PETITION FOR A WRIT OF CERTIORARI, ASSOCIATE JUSTICES THOMAS, ALITO, AND ONE OR MORE OF THE TRUMP NOMINEES FOR JUSTICE WOULD CERTAINLY HAVE ADDED A FOURTH VOTE, GUARANTEEING REVIEW OF IT. AND A MAJORITY WOULD EXIST TO CLARIFY THAT DATE IN TIME A REVIEWING COURT MUST LOOK AT WHEN DECIDING WHETHER THE STATE ACTION APPROXIMATES AN HISTORICAL ANALOG SUFFICIENT FOR A COURT TO HOLD THAT THE GOVERNMENT ACTION DOES CONSTITUTIONALLY CONFORM TO A PRIOR HISTORICAL ANALOG. THE SUPREME COURT SHOULD ALSO PROVIDE GUIDANCE FOR A REVIEWING COURT’S DETERMINATION OF WHETHER A POSSIBLE ANALOG CONSTITUTES A CONSTITUTIONALLY CORRELATE TO THE PRESENT STATE ACTION WHOSE CONSTITUTIONALITY IS CHALLENGED. ROBERTS SHIRKED HIS RESPONSIBILITY IN DENYING REVIEW OF ANTONYUK, AND HE SHIRKED HIS RESPONSIBILITY ONCE AGAIN, HAVING AVOIDED RESOLUTION OF IT IN RAHIMI, (WHICH MAY VERY WELL HAVE RESULTED IN THE WRONG DECISION AND HOLDING CONCERNING THE RIGHTS OF THE PETITIONER IN RAHIMI), AND ROBERTS SHIRKED HIS RESPONSIBILITY A THIRD TIME, WHEN HE LIMITED REVIEW OF WOLFORD TO THE “SENSITIVE PLACE” RESTRICTION ISSUE, EVEN THEN THE HISTORICAL TRADITION TEST WAS—AS IN RAHIMI—THE CENTRAL FOCUS OF WOLFORD].

[FN] Although this may suggest that the values articulated in Bruen would tolerate reference to a more expansive sweep of time, we are careful to limit our analysis to the two relevant historical moments and the periods close around them. See 597 U.S. at 35 ("[W]e must also guard against giving postenactment history more weight than it can rightly bear."). That is a useful discipline, and may be necessary, for thinking about the Second Amendment in a way that avoids inconsistency, cherry-picking, and special pleading.

[FN] See Josh Blackman & Ilya Shapiro, Keeping Pandora's Box Sealed: Privileges or Immunities, the Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States, 8 Geo. J.L. & Pub. Pol'y 1, 52 (2010) ("Analyzing the meaning of the right to keep and bear arms in 1791 was proper in Heller, because the Second Amendment in that case only applied to the federal government. In McDonald, however, the key year is 1868, and the Court should look at evidence from the time of Reconstruction, not the time of the Revolution."); Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 TEX. L. REV. 7, 115-16 (2008) ("We think [Akhil] Amar is exactly right that for those wondering about incorporation or judicial protection against the states of unenumerated rights in federal constitutional law, the question is controlled not by the original meaning of the first ten Amendments in 1791 but instead by the meaning those texts and the Fourteenth Amendment had in 1868.").

There is another issue that goes to the heart of the “SENSITIVE PLACE” RESTRICTION ISSUE, in Wolford, which SCOTUS hasn’t touched upon except in a tangential manner during the Hearing. And that issue will not be resolved when the decision comes down. In fact, the issue will plague both Wolford and subsequent cases that involve state action impacting exercise of the Second Amendment Right to Armed Self-defense.

That issue which we consider to be a salient one is this:

WHETHER A STATE’S CRAFTING OF “SENSITIVE PLACE” RESTRICTIONS DESIGNED TO PROHIBIT THE CITIZEN FROM CARRYING A HANDGUN FOR SELF-DEFENSE IN THE PUBLIC ARENA, IMPLICATES THE PROBLEM EMBLEMATIC OF AND INDELIBLY LINKED TO THE DEFUNCT INTEREST-BALANCING STANDARD INTO SECOND AMENDMENT ANALYSIS. THOSE STATES, LIKE HAWAII, THAT ABHOR THE RIGHT CODIFIED IN THE SECOND AMENDMENT, WILL INVARIABLY FIND A STATE ACTION TO COHERE WITH THE SECOND AMENDMENT.

THIS BECAME APPARENT IN THE NINTH CIRCUIT’S DECISION, ON REVIEW FROM THE DECISION OF THE U.S. DISTRICT COURT FOR THE DISTRICT OF HAWAII, IN WOLFORD.

WHERE A STATE NOT ONLY INFRINGES THE NATURAL LAW RIGHT TO ARMED SELF-DEFENSE BUT INFRINGES FUNDAMENTAL PRIVATE PROPERTY INTERESTS AS WELL, CLAIMING A JUSTIFIABLE USE OF A STATE’S POLICE POWERS UNDER THE TENTH AMENDMENT TO PROMOTE PUBLIC SAFETY, WHERE A REVIEWING COURT WEIGHS EACH PARTY’S INTERESTS AND ULTIMATELY DECIDES IN FAVOR OF THE STATE OVER THE INDIVIDUAL, THE REVIEWING COURT ULTIMATELY, IF IMPLIEDLY, USES INTERST-BALANCING, IN FINDING FOR THE STATE, AGAINST THE INDIVIDUAL AS APPLIED TO EXERCISE OF THE RIGHT CODIFIED IN THE SECOND AMENDMENT AND AS APPLIED TO ONE’S PROPERTY RIGHTS AS EMBODIED IN AND IMPLICIT IN THE FIFTH AMENDMENT’S “TAKINGS CLAUSE.”

And the above issue therefore raises tension between a State’s Police Powers under the Tenth Amendment, and the individual’s fundamental Right to keep and bear arms under the Second.

WHETHER THE EXERCISE OF A STATE’S POLICE POWERS UNDER THE TENTH AMENDMENT, CONFLICTS WITH AN INDIVIDUAL’S NATURAL LAW FUNDAMENTAL RIGHT OF ARMED SELF-DEFENSE UNDER THE SECOND AMENDMENT.

The question as we have phrased it presumes a preliminary matter that lies at the heart of the matter before the Court gets to the issue whether a State (in this case, Hawaii and California) can lawfully enact statutes that require the owner of private property opened to the public) to provide express affirmance that an individual can lawfully carry a firearm onto such property. In that respect California, unlike Hawaii, requires a property owner to post actual signage on private property opened to the public that expressly and positively affirms that:

“FIREARMS ARE ALLOWED ON THIS PROPERTY” [with the default rule being that firearms ARE NOT ALLOWED on private property opened to the public].

THIS IS AKIN TO A SIGN PROCLAIMING, ODDLY, “TRESPASSING IS ALLOWED ON THIS PROPERTY.” [Of course, the default rule is that trespassing is not allowed on private property], which does make sense and is understood. A “NO-TRESPASSING” sign is usually, if not invariably, posted to warn a person that the property IS PRIVATE, when a person may not otherwise be aware of that fact and that the person is not permitted to venture onto the property.

A message to the contrary is singularly absurd on its face. It is the flipside of the more usual sign one comes to see on private property opened to the public——

“TRESPASSING IS NOT ALLOWED ON THIS PROPERTY AND ALL TRESPASSERS WILL BE PROSECUTED.”

And, the aforementioned signage would be more akin to the following, pertaining to firearms——

“FIREARMS ARE NOT ALLOWED ON THIS PROPERTY” [or, in the case of a business, a sign saying, “FIREARMS NOT PERMITTED,” or “FIREARMS NOT ALLOWED” (ON THESE PREMISES OR IN THIS ESTABLISHMENT].

The California statute requires such express signage. The Hawaii statute does not.

The Hawaii statute does not require physical signage. It allows for an oral affirmance by the property owner that an individual can carry a firearm onto the owner’s private property opened to the public.

An oral affirmance by the property owner that an individual can carry a firearm onto the owner’s private property opened to the public is sufficient to comply with Hawaii’s law.

And the Ninth Circuit has so held the Hawaii law Constitutional insofar as the actual posting of signage isn’t required. But how does the property owner make that fact known to the public?

The Ninth Circuit opined that historical precedent exists to support Hawaii’s statute, but that California’s explicit signage requirement is not supported by historical precedent. The Court upheld Hawaii’s statute but struck down California’s signage rule. But, as to both, the Ninth Circuit held that the default rule—presumptively forbidding an individual to carry a firearm onto private property opened to the public in the absence of express verbal permission of the property owner falls within the valid “POLICE POWERS” of a state. In either instance, the Ninth Circuit, in Wolford (like the Second Circuit in Antonyuk) made a flurry of assumptions concerning application of HISTORICAL TRADITION that the U.S. Supreme Court never provided clear guidance for and specific rulings about. See discussion infra with citations from the Ninth Circuit opinion in Wolford vs. Lopez.

Curiously, while California’s signage statute obviates the need for an owner of private property opened to the public verbally expressing permission to carry firearms onto his private property opened to the public, the Hawaii statute is cumbersome. If an express warrant to bring a firearm onto such property is sufficient, how can that property owner efficiently let the public know that they can bring firearms onto such private property opened to the public. Obviously, he can’t.

The property owner may be able, for example, to comply with Hawaii’s law by spending money placing advertisements in newspapers or spending money making announcements on cable or broadcast news programs or on the radio, or posting his acquiescence on social media, informing the public that firearms are permitted on the property. But ultimately, the property owner would find most feasible simply doing what the California law would have required but which the Ninth Circuit struck down as unconstitutional, namely, posting numerous signs on that private property opened to the public, informing the public that firearms are permitted. Such signage isn’t required by Hawaii’s statute, but the utility of posting signs, over providing express verbal approval, which is not feasible, will draw and has drawn the ire of property owners which was the impetus for Petitioners filing their lawsuit.

So, the posting of actual signs is the most practical mechanism for getting the message out that firearms are permitted on property opened to the public even if California’s requirement was found, by the Ninth Circuit Court, to be unconstitutional because such signage is mandatory.

But, Hawaii’s “constitutional” statute sans a signage requirement is cost-prohibitive and impractical, or, otherwise, effectively useless if owners of private property opened to the public would allow or simply would have no issue with members of the public carrying firearms onto the property.

But State intrusion on private property rights (where the property owner has exclusive right to the enjoyment of and use of his property) is not addressed by the Ninth Circuit. The Court simply assumes that a state can create a default rule imposing Second Amendment restrictions on one’s carrying firearms on private property, as well as on public property, thereby invoking the right of the state to exercise its Police Powers by declaring that private property no less than public property falls within the purview of a state’s Police Powers. Strangely, this weakens Historical Tradition to the point that its application is even worse than it is under the Interest-Balancing standard.

For, under “Interest-Balancing, a reviewing Court must at least go through the formality of balancing the interests of the State in exercising its Tenth Amendment Police Powers to constrain exercise of the fundamental right to armed self-defense as against the person’s exercise of his right to keep and bear arms free of State constraint, even if the result of that interest-balancing will leave no doubt in anyone’s mind that the state’s exercise of its Police Power (pre-ordained) will prevail over a person’s exercise of the Natural Law Right to armed self-defense—hence an inherent problem with a reviewing court’s application of the “Interest-Balancing” standard to one’s challenging the constitutionality of a state action.

But, under the Ninth Circuit’s tortuous crafting of a slew of assumptions concerning application of “Historical Tradition,” in Wolford (just like the Second Circuit’s tortuous crafting of a slew of assumptions about “Historical Tradition in Antonyuk), a person’s fundamental right to armed self-defense is just as certainly ordained to fail—hence the need for the U.S. Supreme Court to assiduously explicate and clarify the “Historical Tradition” standard and delineate specific parameters for its use lest this judge-made rule prove as harmful to the sanctity of the Right codified in the Second Amendment as the Interest-Balancing test that it replaced—a test that was in vogue for decades before the Heller rulings did away with it.

 Since some standard of review is necessary, lest the Right codified in the Second Amendment continue to be treated as a “Second-Class” Right (i.e., something less than a Fundamental, Unalienable, Eternal Natural Law Right), the Supreme Court cannot ignore the issue.

At the moment we have the “HISTORICAL TRADITION” TEST, and this TEST is invoked by the Court and so it remains as an ineffective operational rule precisely because the Chief Justice will not grant review of a Second Amendment case that specifically requests the Court for guidance in the use of it, which if the Court provided that guidance, Circuit splits would be significantly reduced or obviated.

Thus, the failure of the Chief Justice to allow the Justices to formally review the “HISTORICAL TRADITION” standard as an issue in the case, to give guidance no less to itself, that it could thereafter provide guidance to the lower state and federal trial and appellate courts, means that conflicts among the several jurisdictions will continue, and reviewing courts ability to make effective use of the new standard will be severely hampered.

Worst of all, the old INTEREST- BALANCING STANDARD raises its ugly head and infects the “HISTORICAL TRADITION” test insofar as Anti-Second Amendment jurisdictions will simply use the new test to justify (rationalize) their rulings, in support of state actions that are constitutionally untenable, just as they did when utilizing “INTEREST-BALANCING.

Thus, although INTEREST-BALANCING, per se, can no longer be properly entertained because HELLER effectively struck down its use in SECOND AMENDMENT cases involving STATE ACTION IMPACTING EXERCISE OF THE RIGHT codified in the Second Amendment, “INTEREST-BALANCING” still exists below the surface (MASKED BUT STILL ACTIVE), INFECTING lower court decisions—even those of the SUPREME COURT—because all actions of the State concerning restrictions on exercise of the right codified in the Second Amendment ultimately rely on the State’s TENTH AMENDMENT POLICE POWERS.

How application of HISTORICAL TRADITION can avoid what amounts to a TENSION between a State’s USE OF ITS inherent POLICE POWERS ostensibly to provide for PUBLIC SAFETY, versus a citizen’s RIGHT (and OBLIGATION) to provide for his PERSONAL SAFETY, as the STATE has no duty, under the doctrine of sovereign immunity, to guarantee the safety of any particular individual within a given community, except in very narrow circumstances, is never so clear.

Since carrying a firearm in public is the most effective means by which the average person, trained in the use of his firearm, the rationale of many jurisdictions to place significant restraints on the use of a firearm for self-defense—invoking the phrase “Gun Violence,” and extrapolating from it, as directed to criminals and lunatics, to the tens of millions of average law-abiding, rational, and responsible citizens—is unsound, even absurd.

Hence, courts that abhor an individual’s exercise of his RIGHT to ARMED SELF-DEFENSE cannot help but revert back to using the old INTEREST-BALANCING approach, albeit, deviously, by masking the use of it under whatever point in time in history is convenient for it, and by using whatever historical analog it wishes however dubious, to justify affirming the constitutionality of the State’s action, constraining and constricting one’s Natural Law Fundamental Right.

Thus, use of “HISTORICAL TRADITION” BECOMES INTEREST-BALANCING ALL OVER AGAIN, albeit CLOAKED AS HISTORICAL TRADITION.

The defects inherent in application of HISTORICAL TRADITION cannot help but arise BECAUSE Chief Justice Roberts refuses to allow the Court to clearly set out the contours of the HISTORICAL TRADITION both apropos of the historical point or era in time a reviewing court is permitted to look at when searching for a suitable ANALOG, and the criteria to be used by a reviewing court to determine if THAT ANALOG is legally and logically sound and thus supports a finding that a state’s action, impacting the individual’s exercise of his fundamental right to keep and bear arms, can withstand constitutional scrutiny.

With SCOTUS failing to define the parameters and contours of the HISTORICAL TRADITION STANDARD, this means the standard is incapable of being employed systematically, and becomes a thing more akin to an ad hoc rule, and THAT, then, INVOKES INTEREST-BALANCING, albeit tacitly (even if the reviewing court refrains from using the specific words ‘interest-balancing’).

Thus, the standard that the Court crafted in Heller, “HISTORICAL TRADITION,” will fail. It is an ineffective operational standard with the HIGHEST COURT IN THE LAND itself demonstrating issues with its application that are glaringly visible in Rahimi. And, so, a useful, practical standard, to ascertain the constitutionality of a state action impinging on the SECOND AMENDMENT, remains wanting.

Commencing with Rahimi, and moving next to Wolford, the U.S. Supreme Court demonstrates its own confusion concerning the application of the “HISTORICAL TRADITION” STANDARD. And, if the U.S. Supreme Court runs into problems using this standard, one should not be surprised that the lower courts will run into similar problems. Therefore, confusion in the various Circuits will continue to exist.

This problem is manifest in the manner in which Hawaii’s Supreme Court approaches Wolford. The Hawaii Supreme Court talks at length about its own history—a history that goes back in time to a period before Hawaii was even a territory of the United States—to justify any enactment of Hawaii that operates as an assault on our Nation’s core belief in the sanctity of the citizen’s right to keep and bear arms. For this sacred Right is not cherished in Hawaii.

To the contrary, this Fundamental, Unalienable, Natural Law Right is anathema to Hawaii. This is reflected in the present law of Hawaii involving Hawaii’s inserting itself into the area of private property, forcing bizarre signage on private property opened to the public, implicating both private property law and the Second Amendment.

The crassness of Hawaii’s position is apparent in its law.

Hawaii abhors “the Right of the People to Keep and Bear Arms.” And, this crassness is reflected in the idiocy of the State requiring the owner of private property opened to the public to positively affirm that the carrying of firearms id acceptable on one’s private property, in lieu of the obvious, sensical, and common practice throughout the Nation of private property owners posting signs positing, “GUNS NOT ALLOWED ON THESE PREMISES.”

Hawaii requires instead, the nonsensical flipside signage: “GUNS ARE ALLOWED ON THESE PREMISES” (OR WORDS TO THAT EFFECT).

This is the point of Justice Alito’s criticism of the Hawaii law which he levels at the Respondent State of Hawaii.

During oral argument in Wolford (that took place on January 20, 2026) while directing his remarks to the Attorney representing Hawaii, and by first referring to a comment regarding a poll cited by Justice Sotomayor, Justice Alito said,

Justice Sotomayor cited a poll about what the people of Hawaii think about the possession of guns.  I'm not aware of the poll, but let's assume it's correct.  Let's assume that 78 percent or whatever the figure was in the poll that she  cited really don't like guns.

So what then is the big deal about this statute? Why does it matter if store owners and owners of private property that is — that are generally open to the public don't like guns, why is it a big deal to say they want people carrying guns to stay out, just put up a sign?

Why does Hawaii have to have this law?”

The Attorney for Respondent State, Mr. Katyal, responded unconvincingly to Justice Alito’s question, and his reply was immediately cut short by Justice Gorsuch.

Mr. Katyal said,

So, I think Hawaii has — like all state legislatures, has the right to put a default rule in that says — that tracks the expectations of its people, . . .”

Mr. Katyal is wrong. He presumes erroneously that state legislatures can enact laws that a majority of people want, or think that they want, because the propagandists and the cultists in the state government, AND in the Press, AN D in social media have effectively brainwashed a sizable percentage of the public to accept a false proposition, short-circuiting use of one’s higher mental faculties that would illustrate the error.

Hawaii has an easier time of it, since, having no tradition of a right of the people to keep and bear arms, the original Hawaiians are predisposed to find both firearms and those people who wish to keep and bear them, as repugnant. Be that as it may, Hawaii is not a separate and distinct Country and hasn’t been for over a century and a half, but it behaves as if it still were an independent country, a monarchy. A majority of Hawaiians may wish to ignore the import of the Second Amendment, but a majority of Hawaiians so wishing the Second Amendment away does not make it so in Hawaii or in any other State or territory of the U.S.

A tyranny of the majority does not trump THE SUPREMACY of the CONSTITUTION, of which the Bill of Rights, codifying many Natural Law Rights, is a major component. And one of the Natural Law Rights expressly set forth in the Bill of Rights is the Right to Armed Self-defense.  

Nonetheless, the Hawaii State Supreme Court insists that Hawaii’s history allows it to override the U.S. CONSTITUTION and FEDERAL LAW, and SUPREME COURT RULINGS, whenever Hawaii feels that a conflict exists between Hawaii’s HISTORICAL TRADITIONS and the U.S. CONSTITUTION, FEDERAL LAW, and SUPREME COURT jurisprudence.

This erroneous position, illustrating a defiant attitude, is demonstrated plainly in another Hawaii case, Wilson vs. Hawaii, 154 Haw. 8. 543 P. 3d 440 (Haw. 2024), cert. denied, 145 S. Ct. 18, 229 L. Ed. 2d 266 (U.S. 2024).

In the first line of the opinion, the Hawaii Supreme Court asserts clearly, concisely and categorically, “Article I, section 17 of the Hawai'i Constitution mirrors the Second Amendment to the United States Constitution. We read those words differently than the current United States Supreme Court. We hold that in Hawai'i there is no state constitutional right to carry a firearm in public.”

That one line sums up Hawaii’s incredible position concerning its perceived relationship to the United States. And if Hawaii were applying the HISTORICAL TRADITION TEST, the Court would hold that substantial analogs exist in its own history TO SUPPORT ITS HOLDING. This is where it is incumbent on SCOTUS to make plain that HISTORICAL analogs must have nationwide effect. But then, how does one impute a Hawaii analog pertaining to the right of the people to keep and bear arms to the Nation? Obviously, one cannot, but where has the U.S. Supreme Court expressly ruled on the impact of local historical tradition on its own or other states’ historical traditions, pertaining to the right to armed self-defense?

SCOTUS remains silent on this, except, perhaps, in dicta. And the Chief Justice, Roberts, along, no doubt, with the liberal wing of the Court, seems to be happy to keep matters this way.

Hawaii apparently still considers itself a Monarchy, and that attitude is reflected in its distaste for the Natural Law Right to Armed Self-defense. The Hawaii Supreme Court further states, in the Wilson opinion,

Hawai'i's historical tradition excludes an individual right to possess weapons. Hawai'i prohibited the public carry of lethal weapons — with no exceptions for licensed weapons — from 1833-1896. Unlicensed public carry of firearms has been illegal from 1896 to the present. Hawai'i has never recognized a right to carry deadly weapons in public; not as a Kingdom, Republic, Territory, or State.”

The Hawaii Supreme Court’s negative posture toward this Nation’s core beliefs, as reflected in the Nation’s Bill of Rights is fervently expressed.

Like New York, the Hawaii acknowledges the Bruen case decision but then goes merrily along, crafting mechanisms—once again, like New York—that are meant, in their implementation, to defy, not comply with, the rulings and reasoning of the U.S. Supreme Court.

New York’s “Concealed Carry Improvement Act” (CCIA) that is New York’s answer to the Bruen rulings, is at once a brazen blatant action TO DEFY the U.S. Supreme Court and, instead of chastising the New York Government, the Court allows the State to continue its act of defiance.

And, for one to say the High Court correctly denied the Antonyuk Petitioners Petition for Writ of Certiorari, challenging the legality and constitutionality of New York’s CCIA because the case came to the SCOTUS in a non-final condition, is simplistic and doubtful.

The Supreme Court has absolute discretion to take up a case even if it is in an interlocutory state, if the Court so wishes. And there is reason enough for the Court to have reviewed Antonyuk vs. James. The main issues have been fully briefed and the U.S. Court of Appeals for the Second Circuit had reiterated its decision on remand in a GVR in accordance with Petitioners’ request as set forth in their First Petition to the Court in 2024.

Furthermore, Wolford, too, is still itself, at least in part, in an interlocutory state. So, then, why did the High Court decide to review the Hawaii case, and perfunctorily deny review of Antonyuk, and that of Snope, as well?

The issues in Antonyuk would have resulted in that case becoming the Fourth Landmark Second Amendment case. And the issue in Snope would have resulted in that case becoming the Fifth Landmark Second Amendment case.

Yet the Supreme Court passed on both and, instead, takes up Wolford that is of least significance. Even the Hawaii Wilson case is of significant importance, but the Court denied Petitioner’s Writ of Certiorari in that case too.

The Hawaii Supreme Court’s lengthy prose in Wilson reads more like a historical exposition than a legal opinion.

That case would be an ideal one for the Court to clarify THE HISTORICAL TRADITION TEST and also make plain to Hawaii that the Fundamental Right etched in the Second Amendment is not to be trifled with.

The Hawaii State Supreme Court goes on at length about its own HISTORICAL TRADITION, making plain that, since it never accepted a RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS, the U.S. Supreme Court must not impose that Right on the State.

So, then, what is one to make of the fact that Hawaii has included the wording of the Second Amendment in its own Constitution?

The State Supreme Court admits as much, but then says it does not mean what the plain words say it means, essentially, then, de facto erasing the import of the language in its own Constitution. But then, why did the State include the language of the Second Amendment of the Bill of Rights in its State Constitution? There is no explanation for this, which confounds the U.S. Supreme Court. See our discussion infra.

Denying what cannot rationally be denied seems to be a natural propensity of many Courts.

It is curious that, to the best of our knowledge, neither one of the parties in Wolford brought up Wilson, nor did Wilson appear in any of the amici briefs. And the U.S. Supreme Court did not mention Wilson during Oral Argument in Wolford. This strikes us as odd.

Perhaps no reference is made to Wilson because John Roberts had limited the Wolford case to the first issue presented—the one involving “SENSITIVE PLACE” RESTRICTIONS, while “HISTORICAL TRADITION” as an issue was to be assiduously avoided, even though it came up constantly during Oral Argument as it couldn’t be ignored.

In any event, the Hawaii Supreme Court had much to say about its history, to demonstrate its emphatic distaste for the notion of an armed citizen, and this case helps to explain the State’s creation of the “VAMPIRE RULE” in Wolford. We provide a portion of the State Supreme Court’s Wilson opinion, below, in support of our assertion.

In 1898, the United States, by joint resolution of Congress, annexed the Republic of Hawai'i, creating the Territory of Hawai'i. Newlands Resolution, H.R.J. Res. 259, 55th Cong. (1898), 30 Stat. 750.

Though the Hawaiian Islands were now ruled by a subjugating nation, Hawai'i continued its historic tradition of strict weapons regulation.

The year before Bruen, the Ninth Circuit Court of Appeals upheld Hawai'i's regulatory framework for firearms, HRS chapter 134. Young v. Hawai'i, 992 F.3d 765, 773-75 (9th Cir. 2021).

Young recounts the history of weapons regulation in Hawai'i through much of the 20th century. . . .”

In Hawai'i, the Aloha Spirit inspires constitutional interpretation. See Sunoco, 153 Hawai'i at 363, 537 P.3d at 1210 (Eddins, J., concurring).

When this court exercises "power on behalf of the people and in fulfillment of [our] responsibilities, obligations, and service to the people" we "may contemplate and reside with the life force and give consideration to the 'Aloha Spirit.'" HRS § 5-7.5(b) (2009).

The spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities.

The history of the Hawaiian Islands does not include a society where armed people move about the community to possibly combat the deadly aims of others. See Haw. Const. art. IX, § 10 ("The law of the splintered paddle . . . shall be a unique and living symbol of the State's concern for public safety.").

The government's interest in reducing firearms violence through reasonable weapons regulations has preserved peace and tranquility in Hawai'i. A free-wheeling right to carry guns in public degrades other constitutional rights.

The right to life, liberty, and the pursuit of happiness, encompasses a right to freely and safely move in peace and tranquility. See Haw. Const. art. I, § 2; Haw. Const. art. IX, § 10. Laws regulating firearms in public preserve ordered liberty and advance these rights.

There is no individual right to keep and bear arms under article I, section 17. So, there is no constitutional right to carry a firearm in public for possible self-defense.”

The facts of this Supreme Court case are as follows:

In December 2017, at about 11:00 p.m., Flyin Hawaiian Zipline owner Duane Ting saw men on his fenced-in property via video surveillance. Ting reported the matter to the Maui Police Department. Officers headed to Ting's property. Meanwhile Ting, driving an all-terrain vehicle, corralled Wilson and his three companions. Armed with an AR-15 assault rifle, he detained them until the police arrived. Then Wilson volunteered to the officers: "I have a weapon in my front waist band." The police lifted his shirt. Wilson had a Phoenix Arms .22 LR caliber pistol, loaded with ten rounds of .22 caliber ammunition. A records check reported that the pistol was unregistered in Hawai'i, and Wilson had not obtained or applied for a permit to own a handgun. Wilson told the police that he legally bought the gun in Florida in 2013.”

Wilson argues that Hawaii’s laws violate his right to carry a handgun for self-defense outside his home.”

Wilson had not applied for a carry license, likely because acquiring a valid license to carry was, prior to Bruen, and now, after, Bruen, still extraordinarily difficult to acquire in Hawaii.

Hawaii's handgun carry statute, codified as, HRS § 134-9. governs the issuance of licenses to carry concealed or unconcealed pistols or revolvers within the state.

The statute requires applicants to meet specific criteria, including completing a training course, being the registered owner of the firearm, and demonstrating compliance with federal, state, and county firearm laws. The statute also provides for administrative and judicial review in cases of license denial . HRS § 134-9. Hence, Hawaii’s Handgun Carry Statute is much like New York’s and likely was modeled on New York’s Statute following Bruen, which is inconsistent with Bruen and insults the authority of the U.S. Supreme Court.

The Hawaii Supreme Court in Wilson argues that its statute HRS § 134-9 does not violate the Second Amendment because states retain the authority to require licenses for public carry, provided the licensing process is consistent with historical firearm regulations State v. Wilson, 154 Haw. 8. But that is circular reasoning.

Even if one assumes for sake of argument that State licensing of firearms generally, and handguns particularly, can withstand constitutional scrutiny, Hawaii argues its interpretation restricting handgun carry is necessary and is consistent with HRS § 134-9, which restricts carrying firearms on private property without express authorization which is presently contested under Wolford, and must also be read in line with HRS § 134-25, which limits the transport of firearms outside specific circumstances and THAT raises the ghost of the New York City Handgun Transport case.

Thus, while Bruen invalidated discretionary "may-issue" licensing regimes, Hawaii's HRS § 134-9 remains in effect, subject to ongoing legal challenges and interpretations.

The statute's compatibility with the Second Amendment hinges on whether its requirements align with the historical tradition of firearm regulation as articulated in Bruen, BUT THEY DON’T.

The Plaintiff Petitioner Wilson filed a Petition for Writ of Certiorari after the Hawaii Supreme Court vacated the decision and returned the case to the Circuit Court.

Concerning Bruen, the Hawaii Supreme Court, in Wilson, stated,

Bruen snubs federalism principles. Still, the United States Supreme Court does not strip states of all sovereignty to pass traditional police power laws designed to protect people. Wilson has standing to challenge HRS § 134-25(a) and § 134-27(a). But those laws do not violate his federal constitutional rights.”

The Hawaii Supreme Court continues,

We hold that the text and purpose of the Hawai'i Constitution, and Hawai'i's historical tradition of firearm regulation, do not support a constitutional right to carry deadly weapons in public.

We conclude that HRS § 134-25 and § 134-27 do not violate Wilson's right to keep and bear arms under article I, section 17 of the Hawai'i Constitution and the Second Amendment to the United States Constitution. Since Wilson lacks standing to challenge HRS § 134-9, we do not take up his Second Amendment challenge to that law.

Although the State Supreme Court returned the case to the lower Circuit Court to resolve issues involving the application of certain statutes, the Hawaii Supreme Court did not address the Plaintiff Petitioner’s Second Amendment issue, which the U.S. Supreme Court makes a point of remarking on. But then, what explains the U.S. Supreme Court’s next action regarding the Petition for a Writ of Certiorari?

The Supreme Court denied the Petition. Although each of the Justices agreed to the denial, if reluctantly, Thomas wrote a lengthy comment, joined by Justice Alito, and Justice Gorsuch included his own comment.

But perusing those comments, it seems that these three Justices should have written dissents for the failure to grant the petition, rather than agree to the denial of certiorari, for their comments seem to belie their action in agreeing to the denial of the Petition. Rather, the Justices evince a strong desire to have reviewed the case.

Justice Thomas writes in principal part,

Wilson persuaded the Circuit Court to dismiss his unlicensed-carry charges. The Circuit Court recognized that Hawaii’s near-total restrictions on public carry could not be squared with Bruen, and it accordingly held that prosecuting Wilson for unlicensed carry would violate the Second Amendment and the parallel provision in Article I, §17, of the Hawaii Constitution.

The Hawaii Supreme Court disagreed. See 154 Haw. 8, 543 P. 3d 440. It spent the bulk of its opinion explaining why the Hawaii Constitution does not confer an individual right to bear arms, with analysis that doubled as a critique of this Court’s Second Amendment jurisprudence. The court specifically took aim at our focus on original meaning. See id., at 19-23, 543 P. 3d, at 451-455. Bemoaning the policy consequences, the court asserted that an originalist interpretation of the Second Amendment “disables the states’ responsibility to protect public safety, reduce gun violence, and safeguard peaceful public movement,” by putting firearms restrictions “mostly out of bounds.” Id., at 22, 543 P. 3d, at 454. And, it denigrated the need for public carry in particular, rejecting as un-Hawaiian “a federally-mandated lifestyle that lets citizens walk around with deadly weapons.” Id., at 27, 543 P. 3d, at 459. On the Hawaii Supreme Court’s view, a sounder approach to constitutional interpretation would give due regard to the “spirit of Aloha” and would preclude any individual right to bear arms, or at least subject it to “levels of scrutiny and public safety balancing tests.” Id., at 21, 27, 543 P. 3d, at 453, 459.

Remarkably, the Hawaii Supreme Court’s recognition of the “federally-mandated” right to public carry disappeared when it turned to Wilson’s Second Amendment defense. There, the court invoked state standing law to avoid any meaningful Second Amendment analysis. It held that, because Wilson had not applied for a license and had not been charged with violating the licensing statute itself (which was not a criminal statute), he lacked standing to challenge the particulars of the licensing regime. Id., at 12-13, 543 P. 3d, at 444-445. Instead, he could argue only that the Second Amendment categorically forbids state licensing regimes. Because that is not the case, the court held, Hawaii’s prohibitions on unlicensed carry “do not graze Wilson’s Second Amendment right.” Id., at 27, 543 P. 3d, at 459.

The decision below is the latest example of a lower court “fail[ing] to afford the Second Amendment the respect due an enumerated constitutional right.” Silvester v. Becerra, 583 U. S. 1139, 1140, 138 S. Ct. 945, 200 L. Ed. 2d 293 (2018) (Thomas, J., dissenting from denial of certiorari). As this Court has repeatedly emphasized, “[t]he constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’” Bruen, 597 U. S., at 70, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (quoting McDonald, 561 U. S., at 780, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (plurality opinion)). So, the Hawaii Supreme Court cannot single out the Second Amendment for disfavor, even if it does not believe that “right is really worth insisting upon.” District of Columbia v. Heller, 554 U. S. 570, 634, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008).

By invoking state standing law to dodge Wilson’s constitutional challenge, the Hawaii Supreme Court failed to give the Second Amendment its due regard. To be sure, a state-law standing determination ordinarily is an adequate and independent state ground precluding our review. But, as this Court has elsewhere recognized, only “constitutionally proper” rules can create adequate and independent state grounds. Trevino v. Thaler, 569 U. S. 413, 421, 133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013).

The Hawaii Supreme Court should have asked the threshold question whether the Second Amendment allows state standing law to restrict the defenses that criminal defendants facing firearms-related charges may raise. The answer is “no,” as our case law on constitutional challenges to licensing regimes makes clear.

A defendant can always raise unconstitutionality as a defense “where a statute is invalid upon its face and an attempt is made to enforce its penalties in violation of constitutional right.” Smith v. Cahoon, 283 U. S. 553, 562, 51 S. Ct. 582, 75 L. Ed. 1264 (1931). A “long line of precedent” confirms this point. See, e.g., City of Lakewood v. Plain Dealer Publishing Co., 486 U. S. 750, 755-757, 108 S. Ct. 2138, 100 L. Ed. 2d 771 (1988) (collecting cases).

Thus, a state-law holding that a defendant “lacked standing to attack the constitutionality of the ordinance because [he] made no attempt to secure a permit under it” is “not an adequate nonfederal ground of decision” where the “ordinance . . . on its face violates the Constitution.” Staub v. City of Baxley, 355 U. S. 313, 319, 78 S. Ct. 277, 2 L. Ed. 2d 302 (1958). This is true where, as here, an individual waits to raise the issue until “he is prosecuted for failure to procure” a license. Thornhill v. Alabama, 310 U. S. 88, 97, 60 S. Ct. 736, 84 L. Ed. 1093 (1940). And, it is true even if the defendant’s “conduct could be proscribed by a properly drawn statute.” Freedman v. Maryland, 380 U. S. 51, 56, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965).

Our rejection of state procedural restrictions on the invocation of constitutional defenses follows from the fact that constitutional rights are “self-executing prohibitions on governmental action.” City of Boerne v. Flores, 521 U. S. 507, 524, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997). A constitutional violation accrues the moment the government undertakes an unconstitutional act. For example, a violation of the Takings Clause occurs “at the time of the taking.” Knick v. Township of Scott, 588 U. S. 180, 194, 139 S. Ct. 2162, 204 L. Ed. 2d 558 (2019). And, the availability of state-law compensation remedies cannot delay or undo the accrual of a takings claim. See id., at 193-194, 139 S. Ct. 2162, 204 L. Ed. 2d 558.

The same principles apply to the Second Amendment. That Amendment is similarly self-executing, and a State transgresses it  as soon as the State implements  a licensing regime that is inconsistent with the Nation’s “historical tradition of firearm regulation.” Bruen, 597 U. S., at 17, 142 S. Ct. 2111, 213 L. Ed. 2d 387. Judicial review of a license denial may be one way that an individual can challenge state overreach. But, because the constitutional violation occurs as soon as an individual’s right to bear arms is inhibited, States cannot mandate that would-be gun owners go through an unconstitutional licensing process before they may invoke their Second Amendment rights. Any other rule would impermissibly demote the Second Amendment “to the status of a poor relation” among constitutional rights. Knick, 588 U. S., at 189, 139 S. Ct. 2162, 204 L. Ed. 2d 558 (internal quotation marks omitted).

Had the Hawaii Supreme Court followed its duty to consider the merits of Wilson’s defense, the licensing scheme’s unconstitutionality should have been apparent. We have made clear that the Second Amendment is a right “guaranteed to all Americans,” whose exercise cannot be conditioned on a showing of “special need.” Bruen, 597 U. S., at 70-71, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (internal quotation marks omitted). Yet, in restricting license eligibility to Hawaiians with “‘exceptional case[s],’” or who otherwise could show special “urgency” or “need,” the Hawaii regime did just that. Hawaii’s onerous restrictions closely paralleled those in the New York regime we held unconstitutional in Bruen. See id., at 13-15, and n. 2, 142 S. Ct. 2111, 213 L. Ed. 2d 387; see also id., at 79, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (Kavanaugh, J., concurring) (recognizing that Bruen’s holding applied to all States with “‘may-issue’ regimes”); Young v. Hawaii, 45 F. 4th 1087, 1092 (CA9 2022) (en banc) (O’Scannlain, J., dissenting) (“we need not conduct the [Bruen] inquiry now because the Supreme Court has already done it for us”).

Gorsuch elicited similar comments and concerns with the handling of the case by the Hawaii Supreme Court.

So, then, why didn’t the Court take up the Wilson case, on the Second Amendment issue?

Hawaii’s distaste for the right of the people to keep and bear arms is only matched by its utter contempt for the Second Amendment and for Supreme Court Second Amendment Heller, McDonald, and Bruen jurisprudence.  The same distaste for the Right codified in the Second Amendment is exemplified in New York jurisprudence, reflecting its own history, antithetical to the right to armed self-defense.

It is interesting that Hawaii cites to New York case law for support in remarking on New York’s own historical disdain for the Right of the People to Keep and Bear Arms.

We reiterate that none of the Wolford Parties’ Briefs and none of the amici briefs mention the Wilson case to the extent our search has borne out and the Wilson case never came up during the Oral Argument in Wolford.

That is perplexing especially since the Hawaii “sensitive place” restriction statute, essentially denies a citizen the right to carry in vast tracts of public lands as well as in private lands opened to the public, in the absence of an affirmative grant to carry by the property owner—hence the allusion by some commentators to the Hawaii law involving private property opened to the public as a “VAMPIRE RULE,” effectively encompassing, i.e., killing the right of the people to keep and bear arms anywhere outside the home, a near total rebuke of and nullification of the U.S. Supreme Court Bruen decision.

Hawaii, like New York, is plainly carrying on the aim of denying Americans the right to carry a handgun for self-defense, outside the home, although Hawaii, unlike New York, does not cloak its disdain for Bruen and for the Second Amendment generally.

New York for its part has devised its own strategies, deviously and deceitfully, aimed at defeating Bruen, pretending to be compliant with it. However, even a cursory inspection shows those strategies have numerous holes in them reducing the State’s “Concealed Carry Improvement Act” into an implausible charade.

But, since the U.S. Court of Appeals for the Second Circuit has placed its imprimatur on the CCIA, and the Supreme Court has refused to grant review of the case on the Antonyuk Petitioner’s Petition for review, despite indicating in the two years of litigation that it sought to take the case up, the New York State Government doesn’t care what anyone might happen to think about the inanity of the Government’s amendments to its Handgun Law.

As long as the Government can enforce the CCIA, that is the only thing of importance to the Government. It has effectively won the fight against those Americans—residing or working in the State—who have expended substantial time and inordinate amounts of money in the attempt to tear the State’s unconscionable unconstitutional Handgun Licensing Regime edifice down.

The Antonyuk case is presently back at the U.S. District Court for the Northern District of New York, where it had started back in 2022. The case is in the discovery stage. It will take years before it wends its way back to the High Court, if it happens at all, as we have learned through a discussion we have had with attorneys for the Antonyuk Petitioners.

And, even then, in 2029, or later, would the Court grant review of the Antonyuk Petitioners’ PETITION—THE THIRD PETITION—IF IT WERE FILED?

In the interim, what will the U.S. Supreme Court do. if anything, with the HISTORICAL TRADITION TEST, and with the concept laid out in Heller, of “WEAPONS IN COMMON USE”? Anything? Nothing?

And, given that the Historical Tradition standard requires further explication and clarification, without which it is impossible for a reviewing Court, including the Supreme Court itself, to ascertain how to utilize it effectively, there is little in the area OF SECOND AMENDMENT JURISPRUDENCE TO BE ACCOMPLISHED UNLESS SCOTUS TAKES UP THE ISSUES FIRST MENTIONED IN HELLER, AND FURTHER EXPANDED UPON IN BRUEN.

Chief Justice John Roberts has rendered Supreme Court Second Amendment case law jurisprudence to a matter of simply tinkering around the edges. That is as far as he will go but that isn’t nearly far enough to protect the sanctity and inviolability of the Right of the People to Keep and Bear Arms. What this signifies is a slow death for our Nation’s most vital Right. For it is only through the constancy of this Right and Americans exercise of it that the American people remain the sole and supreme sovereign and arbiter over Government.

If the U.S. Supreme Court refuses to use its Article III authority to consciously and definitively protect this vital Natural Law Right, from unconstitutional onslaught by vindictive State and Federal Government intrusion into and interference with this Right, then the People must, in the last instance, rely on themselves to protect their unalienable, eternal right.

The founders of our Republic likely assumed that, ultimately, a FREE REPUBLIC, must be maintained by THE AMERICAN PEOPLE themselves, just as it was they, the founders of the Republic, who had to take up arms against a Tyrant.

The American People cannot rely on Government, State or Federal, to protect THE REPUBLIC, for it is in the nature of GOVERNMENT, to broaden its control over the populace, over “THE COMMON MAN.” THUS, IT HAS ALWAYS BEEN SO, and the founders of our Free Republic knew that TRUTH WELL. In our Nation, at least, of all the nations on Earth, we have a true BILL OF RIGHTS.

THE FRAMERS UNDERSTOOD THAT NATURAL LAW RIGHTS ARE PREEXISTENT IN MAN. GOVERNMENT DOES NOT CREATE THESE RIGHTS. THEREFORE, THE GOVERNMENT CANNOT LAWFULLY BESTOW THESE RIGHTS ON MAN, NOR RESCIND THEM FROM MAN. AND, OF ALL THE RIGHTS, ONE RIGHT, IN PARTICULAR, THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS EXISTS BOTH AS AN ETERNAL RIGHT AND AN INSURMOUNTABLE POWER. ALL TYRANNIES KNOW THIS. AND EVEN A FREE CONSTITUTIONAL REPUBLIC IS NOT IMMUNE FROM A FALL INTO TYRANNY. FOR TYRANNY IS THE NATURAL STATE OF GOVERNMENT.

THE FEDERAL GOVERNMENT’S SYSTEM OF CHECKS AND BALANCES CAN FORESTALL THE INEXORABLE AND INEVITABLE SLIDE OF THE REPUBLIC INTO TYRANNY, BUT IT CANNOT ALONE PREVENT TYRANNY FROM ARISING. ONLY A WELL-ARMED, WELL EQUIPPED AND WELL -TRAINED ARMED CITIZENRY THAT ALSO HAS THE WILL TO RESIST TYRANNY, CAN TYRANNY BE KEPT INDEFINITELY AT BAY. IF GOVERNMENT DARES TO TAKE WHAT, WE THE PEOPLE GAVE TO GOVERNMENT—OUR CONSENT THAT GOVERNMENT MAY EXIST SO LONG AS IT WORKS TO SERVE OUR BEST INTERESTS, AND NOT ITS OWN, WILL WE DEIGN TO ALLOW IT TO CONTINUE. OTHERWISE, WE WON’T. IT IS BOTH OUR RIGHT AND DUTY TO DENY TYRANNY TO PREVAIL. We, Americans had hoped that, at least one BRANCH OF GOVERNMENT, THE THIRD BRANCH OF THE FEDERAL GOVERNMENT—THE U.S. SUPREME COURT— WOULD, AS THE JUSTICES SERVE INDEPENDENT OF TERM LIMITS, BE MOST INCLINED TO SERVE THE INTERESTS OF THE PEOPLE BY TAKING UP CASES AND CONTROVERSIES AND RENDERING OPINIONS THAT SERVE TO STRENGTHEN THE TRUE FOUNDATION OF OUR REPUBLIC—A TRUE BILL OF RIGHTS, COMPRISING CODIFICATION OF GOD-GIVEN ETERNAL LAWS THAT EXISTED BEFORE THE CRAFTING OF THE ARTIFICE OF GOVERNMENT AND WILL WEATHER THE BEST AND WORST OF ADMINISTRATIONS THAT COME TO INHABIT OUR STATE AND FEDERAL GOVERNMENTS—BUT ONLY SO LONG AS THE AMERICAN PEOPLE MAKE PLAIN TO THOSE THAT SERVE IN GOVERNMENT WHO WOULD USURP POWER RESIDING IN THE PEOPLE AND THOSE FORCES OUTSIDE THE GOVERNMENT THAT, TOO, SEEK TO SUBVERT THE WILL AND POWER AND CHARACTER OF THE AMERICAN PEOPLE.

WE HAD HOPED THAT THE U.S. SUPREME COURT WOULD STAND WITH US, THE AMERICAN PEOPLE, IN PRESERVING OUR BILL OF RIGHTS, ESPECIALLY, THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS. UNFORTUNATELY, IT IS PLAIN TO US THAT THIS CHIEF JUSTICE HAS LITTLE REGARD FOR THE WELL-BEING OF OUR MOST SACRED AND VITAL RIGHT.

John Roberts has demonstrated, through the failure to grant review of significant Second Amendment cases that the “HISTORICAL TRADITION TEST” will remain, for the foreseeable future, in a state of stasis, with no further definitive, amplification, explication, and clarification of it. And such discussion of it by the Court in those Second Amendment cases the Court does grant review on, will remain at best, dicta. There will be no formal ruling by the Court.

This is more than unfortunate. It is both disconcerting and distressful. The nebulousness of the Historical Tradition Test became manifest in the Rahimi case.

Heller had pointed to the use of the historical tradition standard to replace “interest balancing,” but said little about it. Bruen then laid out a few broad contours for it, but left out many details, as the Justices realized this was a standard that would require fuller development.

But, as Roberts is reluctant to grant review of Second Amendment cases, and those cases it will deign to review do not deal directly with the standard, in a meticulous and comprehensive fashion, detailing clearly the way in which lower reviewing courts are expected to employ it, it then becomes hardly better than the standard it replaces, and INTEREST-BALANCING will once again arise, if only tacitly, as we pointed out in this essay, supra.

Jurisdictions that detest the exercise of the Natural Law Right to armed self-defense will continue to find a historical analog, however dubious that allows a state to continue to constrain the exercise of THE RIGHT TO ARMED SELF-DEFENSE.

We suggest a few of the questions that the Supreme Court should resolve to answer if the Court does, in time to come, accept review of the issue requesting assiduous amplification, and clarification of the “HISTORICAL TRADITION” STANDARD on a petition for writ of certiorari:

• What constitutes a constitutionally acceptable historical analog?

•  What period of time is a reviewing court to look at in determining whether a present state action is consistent with past historical practice?

• Does a reviewing court look to past historical practice only within its own jurisdiction, or outside it? And, if outside one’s jurisdiction, is it sufficient to find just one analog that occurs in one locality in the grand expanse of the Country, or must there be a historical analog that encompasses a majority of the Country?

• But how extensive or expansive must that past historical tradition be for a reviewing court to consider it a suitable analog, justifying a reviewing court to find a state action impacting the Second Amendment to be considered lawful and constitutional?

• And, if a reviewing court must look for a past historical analog, what constitutes a proper “fit” between a present state action impacting exercise of the Second Amendment and a past historical practice?

What is true regarding use of historical tradition generally to ascertain if a given present State action impacting the exercise of the Right codified in the Second Amendment is constitutional may also be helpful when considering when ascertaining whether particular classes of weaponry fall with the core of the Second Amendment’s protection. See, e.g., C. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993).

Much as we use history to determine which modern “arms” are protected by the Second Amendment, so too does history guide our consideration of modern regulations that were unimaginable at the founding.

When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are “relevantly similar.”

And because “[e]verything is similar in infinite ways to everything else,” id., at 774, one needs “some metric enabling the analogizer to assess which similarities are important and which are not,” F. Schauer & B. Spellman, Analogy, Expertise, and Experience, 84 U. Chi. L. Rev. 249, 254 (2017). For instance, a green truck and a green hat are relevantly similar if one’s metric is “things that are green.” See ibid.  They are not relevantly similar if the applicable metric is “things you can wear.”

While we do not now provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment, we do think that Heller and McDonald point toward at least two metrics: how and why the regulations burden a law-abiding citizen’s right to armed self-defense. As we stated in Heller and repeated in McDonald, “individual self-defense is ‘the central component’ of the Second Amendment right.” McDonald, 561 U. S., at 767, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (quoting Heller, 554 U. S., at 599, 128 S. Ct. 2783, 171 L. Ed. 2d 637); see also id., at 628, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (“the inherent right of self-defense has been central to the Second Amendment right”). Therefore, whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are “‘central’” considerations when engaging in an analogical inquiry. McDonald, 561 U. S., at 767, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (quoting Heller, 554 U. S., at 599, 128 S. Ct. 2783, 171 L. Ed. 2d 637).

To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one hand, courts should not “uphold every modern law that remotely resembles a historical analogue,” because doing so “risk[s] endorsing outliers that our ancestors would never have accepted.” Drummond v. Robinson, 9 F. 4th 217, 226 (CA3 2021). On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.

Consider, for example, Heller’s discussion of “longstanding” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” 554 U. S., at 626, 128 S. Ct. 2783, 171 L. Ed. 2d 637. Although the historical record yields relatively few 18th- and 19th-century “sensitive places” where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions. See D. Kopel & J. Greenlee, The “Sensitive Places” Doctrine, 13 Charleston L. Rev. 205, 229-236, 244-247 (2018); see also Brief for Independent Institute as Amicus Curiae 11-17. We therefore can assume it settled that these locations were “sensitive places” where arms carrying could be prohibited consistent with the Second Amendment [emphasis our own] [THE NINTH CIRCUIT SAYS, “WE CAN ASSUME THAT THESE LOCATIONS [LEGISLATIVE ASSEMBLIES, POLLING PLACES, AND COURTHOUSES WERE SENSITIVE PLACES” EVEN THOUGH, THE NINTH CIRCUIT ACKNOWLEDGES THAT THE HISTORICAL RECORD ON THAT MATTER IS SPARSE?] And courts can use analogies to those historical regulations of “sensitive places” to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.”

The U.S. Court of Appeals makes a number of assumptions about applying historical analogs and then uses those assumptions to support a finding that Hawaii’s law is presumptively constitutional under the “HISTORICAL TRADITION” TEST.

We pause to note the difference between the "distinctly similar" test applied in Bruen to New York's law and the more lenient standard that applies when analyzing the regulation of firearms at "sensitive places." After all, only one or two colonial laws provided sufficient justification for the Court to designate several places as sensitive. The Court placed schools in this category, even though no law prohibited firearms in schools until more than thirty years after the ratification of the Second Amendment. By contrast, when Bruen applied the "distinctly similar" test to New York's probable-cause law, the Court's analysis was more stringent. It noted, for example, that "we doubt that three colonial regulations could suffice to show a tradition of public-carry regulation," 597 U.S. at 46, and insisting on a close match between the historical regulation and the modern one, e.g., id. at 47-50.

The "proper cause" requirement at issue in Bruen addressed a societal problem that had been present since the Founding, which caused the Court to apply the stricter "distinctly similar" test. Id. at 26-27. Moreover, Bruen emphasized that much evidence—primarily state court decisions—weighed strongly against the constitutionality of New York's law. In that circumstance, a few outlier statutes, especially in places with tiny populations and especially when enacted well after the Founding, did not suffice to identify a national historical tradition.

With respect to sensitive places, however, those concerns are diminished. Our Nation has a clear historical tradition of banning firearms at sensitive places. Bruen, 597 U.S. at 30; McDonald, 561 U.S. at 786 (plurality opinion); Heller, 554 U.S. at 626. When examining whether a particular place falls within that tradition, a small number of laws, even localized laws, can suffice, if those laws were viewed as non-controversial. Nor did the Founders have a rigid conception of what kinds of places qualified as sensitive. The Supreme Court held that schools qualify as sensitive places because of localized, non-controversial laws that prohibited firearms at a few schools, and those laws were first enacted in 1824—more than three decades after the ratification of the Second Amendment. The relevant tradition—regulation of firearms at sensitive places—existed at the Founding. Whether a place falls within that tradition requires an examination of laws, including 19th-century laws.

It bears emphasizing that the laws at issue here are state laws. The Second Amendment applies to the States because of the Fourteenth Amendment's ratification in 1868. McDonald, 561 U.S. at 750. We  thus agree with the Second Circuit that, at least when considering the "sensitive places" doctrine, we look to the understanding of the right to bear arms both at the time of the ratification of the Second Amendment in 1791 and at the time of the ratification of the Fourteenth Amendment in 1868. Antonyuk, 89 F.4th at 304-05. "[T]he understanding that prevailed when the States adopted the Fourteenth Amendment . . . is, along with the understanding of that right held by the founders in 1791, a relevant consideration." Id. at 305 (citations and internal quotation marks omitted); see McDonald, 561 U.S. at 778 (plurality opinion) ("[I]t is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty." (emphasis added)).

We conclude that the proper approach for determining whether a place is sensitive is as follows. For places that have existed since the Founding, it suffices for Defendant to identify historical regulations similar in number and timeframe to the regulations that the Supreme Court cited as justification for designating other places as sensitive. For places that are newer, Defendant must point to regulations that are analogous to the regulations cited by the Court, taking into account that it is illogical to expect a government to regulate a place before it existed in its modern form. For example, it makes little sense to ask whether the Founders regulated firearms at nuclear power plants.

For both types of places, historical regulations need not be a close match to the challenged law; they need only evince a principle underpinning our Nation's historical tradition of regulating firearms in places relevantly similar to those covered by the challenged law. Rahimi, 144 S. Ct. at 1898. A key factor is whether the constitutionality of the historical regulations was disputed. A dispute as to constitutionality may tip the scales in favor of Plaintiffs, particularly if the evidence in favor of Defendants is weak. Bruen, 597 U.S. at 27. By the same token, if the constitutionality of historical laws went undisputed in the courts in the Nation's early years, that evidence suggests that the laws were constitutional. Id. at 30. Similarly, if courts unanimously confirmed laws as constitutional, that evidence, too, suggests that the laws were constitutional; the fact that a criminal defendant or two raised a Second Amendment argument that courts quickly rejected does not create a meaningful dispute as to the constitutionality of the law.

In sum, one way that Defendants can show a historical tradition is by establishing that, when a type of place first arose, or first arose in modern form, states and municipalities began to regulate the possession of firearms at that type of place, the regulations were considered constitutional at the time, and the regulations were comparable to a tradition of regulating a similar place or places in the earlier years of the Nation.

Given the U.S. Supreme Court’s deliberate failure to provide even a modicum of effective guidance for application of HISTORICAL TRADITION TEST, the various Federal Circuits are left to devise—forced to devise—a series of assumptions, establishing ad hoc operational rules that inform their decisions on cases coming before them on matters involving challenges to state law actions impacting the Second Amendment. Left to their own devices, the reviewing courts will transform the “Historical Tradition” test into a mirror of their own INDIVIDUAL PRECONCEPTIONS ABOUT AND PREDILECTIONS CONCERNING THE FUNDAMENTAL NATURAL LAW RIGHT TO ARMED SELF-DEFENSE. This is plain from a perusal of the Ninth Circuit’s attempt to craft its personal “take” on HISTORICAL TRADITION. It is as if the John Roberts has provided the courts a massive jigsaw puzzle, replete with pieces through which they create their own picture of the HISTORICAL TRADITION STANDARD—ONE THAT WILL SUPPORT THEIR OWN VIEW OF THE SECOND AMENDMENT.

Concerning the “Default Rule” in reference to “Private-Property” Opened to the Public, The Ninth Circuit opines,

In both the Hawaii case and the California cases, the district courts held that Plaintiffs are likely to succeed on their challenges to the respective bans on the carry of firearms on private property held open to the public unless the owner or operator consents. Haw. Rev. Stat § 134-9.5(a); Cal. Penal Code § 26230(a)(26). Although the state statutes are similar, they differ in one key respect. Hawaii's law allows a property owner to consent orally, in writing, or by posting appropriate signage on site. Haw. Rev. Stat. § 134-9.5(b). California's law, by contrast, allows a property owner to consent only by "clearly and conspicuously post[ing] a sign at the entrance of the building or on the premises indicating that licenseholders are permitted to carry firearms on the property." Cal. Penal Code § 26230(a)(26).

California's law applies only to "privately owned commercial properties open to the public." Cal. Penal Code § 26230(a)(26). Hawaii's law applies more broadly, to nearly all private property, Haw Rev. Stat. § 134-9.5(a), but the district court preliminarily enjoined enforcement of that provision only with respect to private property "open to the public." Wolford, 686 F. Supp. 3d at 1077. Plaintiffs did not file a cross-appeal challenging the district court's holding that the Second Amendment does not apply to private property not open to the public. We therefore address only whether Hawaii's law comports with the Second Amendment with respect to private property that is open to the public . . .

Plaintiffs allege that, but for the challenged laws, they would be able to carry firearms onto many private properties that are open to the public. The Supreme Court held that the Second Amendment's text covers carrying firearms publicly outside the home, Bruen, 597 U.S. at 24, so carrying onto properties held open to the public is conduct that likely falls within the plain text of the Second Amendment. Accordingly, courts unanimously have concluded that a law changing the default rule on private property falls within the text of the Second Amendment. Antonyuk, 89 F.4th at 379-84; Kipke, 695 F. Supp. 3d at 658 n.9; Koons, 673 F. Supp. 3d at 607-15.

We are unpersuaded that the Second Amendment is limited strictly to property that is publicly owned. The text of the Second Amendment does not limit the right to bear arms to publicly owned spaces. [IS THE NINTH CIRCUIT BLIND TO THE IMPLICATION OF THE FUNDAMENTAL RIGHT OF THE AMERICANS TO OWN AND ENJOY AND HAVE EXCLUSIVE RIGHT TO THEIR AUTHORITY OVER THE DOMINION OF THEIR PROPERTY?] Bruen's repeated mention of "public carry" or "carry in public" appears to encompass the right to carry firearms on private property that is open to the public. [“APPEARS TO ENCOMPASS”?] See, e.g., Bruen, 597 U.S. at 33 (quoting a party's brief concerning "areas 'frequented by the general public'"); id. at 56 (discussing restrictions on "public carry in locations frequented by the general community"). We agree with the Second Circuit and with the district court's thoughtful analysis in the Hawaii case that the Second Amendment encompasses the right to bear arms not only in publicly owned spaces, but also on private property that is generally open to the public. Wolford, 686 F. Supp. 3d at 1057-59; Antonyuk, 89 F.4th at 383-84; see also Antonyuk v. Hochul, 639 F. Supp. 3d at 316-17 (concluding that the right extends to private property open to the public). No court appears to have embraced the narrow view that the Second Amendment applies only on public property. Plaintiffs are likely to succeed on the argument that the Second Amendment encompasses a right to bear arms on private property held open to the public. [THIS IS AN ASSUMPTION THAT LOWER COURTS ERRONEOUSLY MAKE ABOUT THE U.S. SUPREME COURT’S SECOND AMENDMENT CASES—THAT BECAUSE THE COURT DOESN’T SPECIFICALLY DISCUSS A MATTER, THE COURTS ARE FREE TO DRAW AN IMPLICATION FROM THE HIGH COURT’S SILENCE. IN THIS INSTANCE, IT ISN’T BECAUSE THE NINTH CIRCUIT (OR THE SECOND CIRCUIT) IS PREDISPOSED TO WANT TO EXTEND THE RIGHT TO CARRY A FIREARM OUTSIDE THE HOME THAT INFORMS THE ASSUMPTION THAT THE U.S. SUPREME COURT INTENDED TO INCLUDE “PRIVATE PROPERTY OPENED TO THE PUBLIC” INTO THE DOMAIN OF “PUBLIC PROPERTY.” IF THAT WERE SO, HAWAII AND NEW YORK WOULD NOT BE GOING OUT OF THEIR WAY TO ATTEMPT TO CONTROL THE CARRYING OF GUNS OUTSIDE THE HOME. NEW YORK, FOR EXAMPLE, HAS CREATED A PATCHWORK QUILT OF MANHATTAN ISLAND TO PREVENT A LICENSEE FROM LAWFULLY CARRYING A HANDGUN. AND HAWAII AND CALIFORNIA ARE PLAYING FAST AND LOOSE WITH THE NOTION THAT THE POLICE POWER OF A STATE IPSO FACTO ALLOWS A STATE TO CREATE A DEFAULT RULE PROHIBITING THE CARRYING OF FIREARMS ON PRIVATE PROPERTY OPENED TO THE PUBLIC. THIS IDEA IS NOT UNLIKE THE ERRONEOUS ASSUMPTION MADE ABOUT WEAPONS IN COMMON USE, WHERE SOME COURTS—PREDISPOSED TO DETEST THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS—INFERS THAT BECAUSE THE HELLER CASE HELD THAT HANDGUNS ARE A CLASS OF FIREARMS IN COMMON USE, THAT MEANS THE HIGH COURT IS NOT PRECLUDING STATES FROM PROHIBITING OTHER CLASSES OF FIREARMS THAT HELLER DIDN’T DISCUSS, SUCH AS, AND NAMELY, SEMIAUTOMATIC WEAPONS THAT SOME STATES CLASSIFY AS “ASSAULT WEAPONS” THAT THEY BAN. AS JUSTICE THOMAS STATED IN A STRENUOUS DISSENTING COMMENT IN THE 2015 7TH CIRCUIT CASE, FRIEDMAN VS. CITY OF HIGHLAND PARK, THAT THE SUPREME COURT DENIED REVIEW OF, THE FAILURE OF THE SUPREME COURT TO RULE THAT SEMIAUTOMATIC WEAPONS FALL WITHIN THE CORE PROTECTION OF THE SECOND AMENDMENT, DOES NOT MEAN THAT STATES ARE FREE TO BAN THOSE WEAPONS. JUSTICE THOMAS MADE PLAIN THAT HELLER’S RULING ON HANDGUNS AS A PROTECTED CLASS OF WEAPONS, WAS LIMITED TO THE ISSUE PERTAINING TO THE DISTRICT OF COLUMBIA’S WHOLESALE BAN ON CIVILIAN CITIZEN POSSESSION OF HANDGUNS IN THE DISTRICT. ANTI-SECOND AMENDMENT JURISDICTIONS ARE IN THE HABIT OF PRESUMING THAT A COURT’S SILENCE ON AN ISSUE LOGICALLY ENTAILS THAT A LOWER COURT IS FREE TO PRESUME WHATEVER IT LIKES OVER HIGHT COURT SILENCE ON THE SUBJECT]. THAT IS RIDICULOUS. AND IT IS PROBLEMATIC UP TO THE PRESENT MOMENT IN TIME, WITH ASSUMPTIONS MADE CONCERNING ERRONEOUS INFERENCES BEING DRAWN ON THE IMPORT OF THE PHRASE, “PRIVATE PROPERTY OPENED TO THE PUBLIC,” WHICH WAS NEVER BROUGHT UP OR ALLUDED TO IN HELLER NOR IN MCDONALD OR BRUEN].

Equally clear, however, is the right of a private property owner to exclude others, including those bearing arms. See, e.g., Cedar Point Nursery v. Hassid, 594 U.S. 139, 150, 141 S. Ct. 2063, 210 L. Ed. 2d 369 (2021) ("[T]he right to exclude is 'universally held to be a fundamental element of the property right,' and is 'one of the most essential sticks in the bundle of rights that are commonly characterized as property.'" (quoting Kaiser Aetna v. United States, 444 U.S. 164, 176, 179-180, 100 S. Ct. 383, 62 L. Ed. 2d 332 (1979))). Nothing in the text of the Second Amendment or otherwise suggests that a private property owner—even owners who open their private property to the public—must allow persons who bear arms to enter. See, e.g., Siegel, 653 F. Supp. 3d at 158 ("[T]he pre-existing right codified in the Second Amendment does not include protection for a right to carry a firearm in a place against the owner's wishes." [THIS IS TRIVIALLY TRUE AS A MATTER OF THE LAW PERTAINING TO PROPERTY RIGHTS AS SUBSUMED IN THE FIFTH AMENDMENT, QUITE APART FROM THE RIGHT CODIFIED IN THE SECOND AMENDMENT] (ellipsis and emphasis omitted)); Kipke, 695 F. Supp. 3d at 658 n.9 ("Again, private property owners can freely exclude firearms . . . ."). With that understanding, we hold that Plaintiffs are likely to succeed at the first step of the Bruen analysis, and we turn to whether Defendants have shown a relevant national historical tradition.

We categorize the pertinent colonial and state laws into two sets. The first set of laws prohibited the carry of firearms onto subsets of private land, such as plantations or enclosed lands. In 1721, Pennsylvania prohibited "carry[ing] any gun or hunt[ing] on the improved or inclosed lands of any plantation other than his own, unless he have license or permission from the owner of such lands or plantation." In 1722, New Jersey prohibited persons from "carry[ing] any Gun, or Hunt[ing] on the Improved or Inclosed Lands in any Plantation, . . . unless he have License or Permission from the owner of such Lands or Plantation." In 1763, New York criminalized "carry[ing], shoot[ing], or discharg[ing] any Musket, Fowling-Piece, or other Fire-Arm whatsoever, into, upon, or through any Orchard, Garden, Corn-Field, or other inclosed Land whatsoever . . . without Licence in Writing first had and obtained for that Purpose from such Owner, Proprietor, or Possessor [of the land]." Finally, in 1893, Oregon provided that it is unlawful for a person "being armed with a gun, pistol, or other firearm, to go or trespass upon any enclosed premises or lands without the consent of the owner or possessor thereof."

The second set of laws contained broader prohibitions, banning the carrying of firearms onto any private property without the owner's consent. In 1771, New Jersey amended its laws to prohibit the carrying of firearms on any lands owned by another: "to carry any Gun on any Lands not his own, and for which the Owner pays Taxes, or is in his lawful Possession, unless he hath License or Permission in Writing from the Owner or Owners or legal Possessor." Similarly, in 1865, Louisiana prohibited "carry[ing] fire-arms on the premises or plantation of any citizen, without the consent of the owner or proprietor."

The record—in these cases or in any other case, so far as we can tell—contains no evidence whatsoever that these laws were viewed as controversial or constitutionally questionable. Instead, they were viewed as falling well within the colony's or the State's ordinary police power to regulate the default rules concerning private property. [THIS IS AN ASSUMPTION AND BEGS THE QUESTION WHETHER THE PROHIBITION AGAINST CARRYING FIREARMS ON PRIVATE PROPERTY WITHOUT THE CONSENT OF THE OWNER WAS AN EXPRESSION OF A GOVERNMENTAL BODY USING ITS “POLICE POWERS” AS AN INTRUSIVE FORCE ON PRIVATE OWNERS, OR RATHER, RECOGNITION THAT THE OWNER OF PROPERTY HAS EXCLUSIVE USE AND ENJOYMENT OF AND POWER OVER IT, AND THE CARRYING OF A FIREARM ONTO THE PROPERTY IN THE ABSENCE OF CONSENT OF THE OWNER ENTAILS AN UNLAWFUL TRESPASS. UNLIKE THOSE ORIGINAL LAWS, THE PRESENT-DAY LAWS ENACTED IN HAWAII AND CALIFORNIA ARE NOT GROUNDED ON PROTECTING THE SANCTITY OF PRIVATE PROPERTY BUT ON EXPANDING STATE AUTHORITY OVER PRIVATE PROPERTY, NO LESS THAN OVER PUBLIC PROPERTY WITH THE AIM OF SEVERELY CONSTRAINING A PERSON’S EXERCISE OF HIS RIGHT TO ARMED SELF-DEFENSE WHEN HE IS IN THE PUBLIC DOMAIN].

We acknowledge that the first set of laws likely was limited to only a subset of private property; those laws likely did not apply to property that was generally open to the public. [THIS ACKNOWLEDGMENT UNDERMINES THE NINTH CIRCUIT’S ENTIRE ARGUMENT]. Similarly, the primary aim of some of those laws was to prevent poaching. But those limitations did not apply to the second set of laws. New Jersey's 1771 law applied to all private property, and the purpose of that specific provision—found in Section 1 of the Act—was "to prevent trespassing with Guns." The New Jersey law also sought to preserve game, but the provisions effecting that aim were found in a separate provision—Section 2 of the Act. The 1865 Louisiana law, too, applied to all private property, encompassing any citizen's "premises or plantation." See, e.g., Bailey v. Quick, 28 La. Ann. 432, 433 (1876) (describing "a room at No. 90 Baronne street" as the "leased premises"); Westermeier v. Street, 21 La. Ann. 714, 714-15 (1869) (discussing the "the delivery of the premises to the lessee [who was a business owner] in a leaky and otherwise untenantable condition"); Reynolds v. Swain, 13 La. 193, 194 (1839) (referring to a brick building operated by apothecaries as the "leased premises"). And the law made no mention of hunting or game; the sole stated purpose of the law was to "prohibit the carrying of fire-arms on premises or plantations of any citizen without the consent of the owner." [THIS IS AN INSTANCE OF THE LAWS OF TWO JURISDICTIONS BEING APPLIED TO THE WHOLE OF THE COUNTRY, AND THE U.S. SUPREME COURT SHOULD MAKE PLAIN THAT WHETHER THE ANALOG IS SOUND. SECONDLY, THE NINTH CIRCUIT ACKNOWLEDGES THAT THE NEW JERSEY’S LAW WAS AIMED TO PROTECT PRIVATE PROPERTY FROM TRESPASSERS AND POACHERS, NOT TO LIMIT ONE’S RIGHT TO CARRY A FIREARM FOR SELF-DEFENSE. AND THE LAWS DESCRIBED HERE WERE NOT INTENDED TO ADDRESS THE NARROW ISSUE OF PRIVATE PROPERTY OPENED TO THE PUBLIC, WHICH APPEARS TO BE A MODERN PHENOMENON. IF THE PROPERTY OWNER WAS TRULY CONCERNED ABOUT MEMBERS OF THE PUBLIC CARRYING FIREARMS ON THAT PROPERTY, THEN THAT PROPERTY WOULD NOT BE OPENED TO THE PUBLIC. THE PROPERTY WOULD BE CLOSED TO THE PUBLIC, AND LIKELY THE PROPERTY OWNER WOULD POST “NO TRESPASSING SIGNS” ON THE PROPERTY. THE PROPERTY OWNER WOULD NOT NEED AND LIKELY WOULD NOT WANT THE STATE TO INTRUDE ON THE PROPERTY OWNER’S DOMAIN, USING THE STATE POLICE POWERS TO EXTEND ITS POLICIES INHIBITING THE CARRYING OF FIREARMS TO PRIVATE PROPERTY, GROUNDED ON THE STATE’S HATRED OF CIVILIAN CITIZENS CARRYING FIREARMS].

We conclude, then, that the Nation has an established tradition of arranging the default rules that apply specifically to the carrying of firearms onto private property. Collectively, the laws establish that colonies and States freely arranged the relevant default rules. And the 1771 New Jersey law and the 1865 Louisiana law are historical "dead ringers": they simply prohibited the carry of firearms on private property without consent. Those laws—enacted shortly before the ratification of the Second Amendment and very shortly before the ratification of the Fourteenth Amendment—were uncontroversial. They are easily analogous to the "sensitive places" laws mentioned by the Supreme Court.

Hawaii's modern law falls well within the historical tradition. The law prohibits the carrying of firearms onto private property unless the owner has posted signs, otherwise has given written consent, or has given oral consent. We therefore conclude that Plaintiffs in the Hawaii case are unlikely to succeed on the merits. [HAWAII’S LAW FALLS UNDER A HISTORICAL TRADITION THAT PREDATES ITS TERRITORIAL AND ITS EVENTUAL STATEHOOD. THIS IS MADE CLEAR IN THE WILSON CASE. IT IS PROBABLY NOT BY ACCIDENT THAT THE NINTH CIRCUIT REFERS TO HAWAII’S LAW AS FALLING WITHIN “THE HISTORICAL TRADITION” WHEN THE LAW REALLY FALLS WITHIN “ITS HISTORICAL TRADITION” WHICH IS UNLIKE THE HISTORICAL TRADITION OF BROADER COUNTRY, TAKEN AS A WHOLE].

But we conclude that California's law falls outside the historical tradition. As noted at the outset of this section, California prohibits the carry of firearms on private property only if the owner has consented in one specific way: posting signs of a particular size. We find no historical support for that stringent limitation. Although two of the laws mentioned above required a person to obtain consent in writing, all of the other laws allowed a person to obtain consent in any manner. None of the laws forbade a person from obtaining permission only by convincing the owner to post signs of a specific size. Nor do modern circumstances appear to justify California's imposing a much more stringent consent requirement; ordinary signs existed in 1791, in 1868, and today. [CALIFORNIA’S LAW IS A BLATANT ATTACK ON THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS, AND HAWAII’S IS MORE SUBTLE, BUT THE RATIONALE BEHIND THE LAWS OF BOTH STATES IS THE SAME—TO CONSTRAIN THE CARRYING OF FIREARMS, THROUGH STATE ATTEMPTS TO BROADEN ITS POLICY AIMS AGAINST ARMED SELF-DEFENSE INTO THE PRIVATE REALM. THE INTENT OF THESE STATES IS NOT TO PROTECT PRIVATE PROPERTY RIGHTS BUT TO INTRUDE ON THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS, IN ORDER TO DILUTE THE EFFECT OF THE BRUEN RULING].

We recognize that a historical twin is not required. Rahimi, 144 S. Ct. at 1898. But California's law differs substantially from the historical laws. Under the historical laws, a property owner could give on-the-spot, granular permission to a particular person or persons for a specified time: "Sure, you may carry your musket on my property, but only this week and only one musket." Under California's law, by contrast, permission may not be given on the spot: a property owner must post a public sign of a specific size and with other attributes to be defined by a state agency. Nor may permission be granular: the sign must allow all licenseholders to carry and must allow them to carry whatever firearms are permissible under state law. Nor may permission be given specific to a particular timeframe, unless the   owner laboriously posts and unposts the required sign. For all of those reasons, we conclude that Plaintiffs in the California cases are likely to succeed on the merits.

We acknowledge that our primary holding—that a national tradition likely exists of prohibiting the carrying of firearms on private property without the owner's oral or written consent—differs from the decisions by the Second Circuit and some district courts. Antonyuk, 89 F.4th at 384-86; Kipke, 695 F. Supp. 3d at 658-59; Koons, 673 F. Supp. 3d at 615-23. In reaching our limited conclusion, we carefully have examined the record in the Hawaii case and, to the extent that our decision conflicts with the analysis by other courts addressing the likelihood of success in those cases, we respectfully disagree with their preliminary, pre-Rahimi analyses. [THIS IS PRECISELY WHY WE NEED THE CHIEF JUSTICE TO EXPLICATE AND CLARIFY “HISTORICAL TRADITION” AND THE SUPREME COURT HAD THE OPPORTUNITY TO DO SO IF IT TRULY SOUGHT TO PROTECT THE SECOND AMENDMENT RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS AND SOUGHT, AS WELL, TO STRENGTHEN ITS PRECEDENTS IN HELLER, MCDONALD, AND BRUEN, BUT ROBERTS HAS MADE PLAIN BY HIS ACTIONS AND INACTION THAT HE INTENDS TO NEUTER THE NATURAL LAW RIGHT TO ARMED SELF-DEFENSE].

Defendant in the Hawaii case has argued that "inclosed" lands were not necessarily those lands physically enclosed by a fence or waterway; instead, they encompassed any property where, for example, the owner paid taxes. We need not consider that argument because, for the reasons described in text, we hold that Plaintiffs in the Hawaii case are unlikely to prevail. [AND THIS CONCLUSION IS CONSISTENT WITH THE NINTH CIRCUIT’S POSITION—ONE THAT IS ANTITHETHETICAL TO THE ARMED CITIZEN, AND SYMPATHETIC TO THOSE STATES THAT AIM TO THWART THE HIGH COURT’S SECOND AMENDMENT PRECEDENTS].

SUMMARY OF SALIENT POINTS OF THIS ESSAY

As we pointed out in our discussion, supra, the issue concerning the date in history to be scrutinized was raised as an issue in the Petition for Writ of Certiorari in Antonyuk vs. James, but the Court denied the Petition without comment, in April 2025.

The issue was also raised in the present Wolford case, but the Chief Justice scrubbed the issue from consideration by the Justices although it is a preliminary question to be resolved, and the HISTORICAL TRADITION test came up during oral argument, anyway.

However, without clarification as to how to employ this standard, any decision by a reviewing Court, including the Supreme Court itself, becomes ad hoc, and a poor basis for strengthening prior precedent and establishing future precedent in a Second Amendment case.

And, as we also pointed out in this essay, and in our previous essay on Wolford, the Petitioners presented two questions in their Petition for a Writ of Certiorari.

The first question goes to the constitutionality of Hawaii’s prohibition on the carrying of handguns by “licensed carry permit holders on private property open to the public unless the property owner affirmatively gives express permission to the handgun carrier.”

Yet it is the second question that is much more important to the Court’s jurisprudence since it requires the Court to clarify the application of the historical tradition test first articulated in Heller, and further discussed in Bruen but requiring further explication.

The Wolford Petitioners posed the question as follows:

“Whether the Ninth Circuit erred in solely relying on post-Reconstruction Era and later laws in applying Bruen’s text, history and tradition test in direct conflict with the holdings of the Third, Fifth, Eighth, and Eleventh Circuits?”

The Second question is the more pressing one because it goes to the standard of review that lower state and federal courts must use when ascertaining whether a state action is constitutional.

This new standard of review first articulated in Heller replaces the prior test, requiring a reviewing court to balance the state’s action constraining exercise of the Natural Law Right to armed self-defense against an individual’s exercise of that right free from government intrusion. That previous standard of review, crafted by the Supreme Court, referred to generally as “means-end” scrutiny, involving the balancing of interests, those of the state vs. the Rights of the individual, is more subjective than objective and allows, even encourages, a reviewing court to substitute its own predilections for neutral judicial reasoning. Likely, a Court may not even know that it is substituting the rational outcome for one that rests deep within the subconscious of the Court’s own being.

THUS, “INTEREST BALANCING” FAILS AS A STANDARD THROUGH WHICH A COURT CAN ASCERTAIN WHETHER A STATE’S ACTION OUTWEIGHS THE INDIVIDUAL’S EXERCISE OF HIS SECOND AMENDMENT RIGHT TO KEEP AND BEAR ARMS.

The outcome almost always is preordained, favoring state action over the individual’s unrestrained exercise of a God-given right.

In Heller, the Court first articulated use of a new standard of review that did away with interest-balancing. The Court referred to it as “HISTORICAL TRADITION.” Desiring to craft an objective standard, In Bruen, the Court explicated a few of the basic contours of the application of “Historical Tradition.”

Justice Thomas, writing for the majority in Bruen, said,

In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest [In other words, NO “MEANS-END SCRUTINY”].

Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

The Second Question stated in the Wolford Petitioners’ Petition asks for clarification of the “Historical Tradition” test. Yet, the Supreme Court does not mention this question in the issue to be reviewed by the Court.

The Court erased the question from review, without explanation. This issue is no small matter. It is paramount to proper analysis of a challenge to state action impacting the fundamental right to armed self-defense.

The Chief Justice of the U.S. Supreme Court, John Roberts, obviously does not support our Natural Law Right, codified in the Second Amendment. If he did, he would have made that desire known to the other eight Justices. Roberts would have voted to hear the Antonyuk and Snope cases. Roberts, along with the votes of Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch, would have incentivized the other two Trump nominees, Justices Brett Kavanaugh and Amy Coney-Barrett, to join in. The decisions coming out of the Court in those foundational cases would have been pivotal to any Second Amendment case going forward.

The decisions in Antonyuk and James would have provided clear, unambiguous, decisive notice to those ANTI-AMERICAN MARXIST GLOBALIST FORCES, operating both at home and abroad that detest America’s armed citizenry, for the Right codified in the Second Amendment of the U.S. Constitution is inconsistent with the aims and agenda of those forces that seek our Nation’s demise as a Free, Constitutional Republic. Had the U.S. Supreme Court granted review of Antonyuk and Snope, those case decisions would have buttressed the previous three Landmark cases. All five landmark cases would, together, then, provide strong support for THE SANCTITY AND PRESERVATION OF THE NATURAL LAW RIGHT OF ARMED SELF-DEFENSE, NOT ONLY AGAINST PREDATORY MAN, BUT AGAINST A PREDATORY TYRANNICAL GOVERNMENT. And, while the former is presumed, it was specifically, for prevention of the latter threat, that the Right codified in the Second Amendment was inserted into the Nation’s Bill of Rights.

The language of the Second Amendment serves as a warning to the fledgling Federal Government, that the Framers—especially THE ANTIFEDERALISTS, among the FRAMERS—insisted on the express recitation of this most critical of NATURAL LAW RIGHTS—THE MOST VITAL BEING THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS.

Surely, the Chief Justice knew well what major rulings in Supreme Court Second Amendment cases would mean, and his reticence in having the Court review the major Second Amendment issues that have recently come before it, is transparently on display.

The Chief Justice sets the theme and tone of the Court and that Court will carefully, daintily select for review only those Second Amendment cases THAT DO NOT EXPAND UPON, EXPLICATE, AND CLARIFY THE FIRST THREE FOUNDATIONAL SECOND AMENDMENT CASES OF THE TWENTY-FIRST CENTURY.

The actions of the Chief Justice make clear that he does not want the Supreme Court to strengthen the Second Amendment Right, thus inviting tyranny down the road.

The portents are not promising, as lower courts, antithetical to the RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS, render opinions inconsistent with the rulings of Heller, McDonald, and Bruen. Those courts have taken their cue from the High Court, aware that—unlike Associate Justices Clarence Thomas, and Samuel Alito—the Chief Justice, John Roberts, is not a strong, or even lukewarm, proponent of the Second Amendment even as he has previously voted—decidedly very reluctantly—with the majority Justices in the THREE LANDMARK CASES.

The Chief Justice has made abundantly clear that he will not vote to hear, and will encourage others also to refrain from voting to grant review, of a Second Amendment case that will potentially elicit a landmark ruling. That is his stance, and he will hold to it unless he is compelled to do otherwise.

Those jurisdictions that demonstrate a decisive antipathy toward the Second Amendment are encouraged to enact laws that are inconsistent with the rulings and reasoning of Heller, McDonald, and Bruen, and the courts of those jurisdictions will continue to rubber-stamp unconstitutional, unconscionable actions of the states and of the Federal Government.

And the U.S. Supreme Court itself will not be spared the resulting injury to the institution, as the Court undermines its own Article III Authority. Apart, from taking no substantive action to expound and expand upon the HISTORICAL TRADITION STANDARD, the Court will also forbear making plain the import and purport of the legal concept, WEAPONS IN COMMON USE, as first articulated in Heller.

Justice Roberts has made patently clear he will continue to forbid review of any case posing the salient question——

WHETHER SEMIAUTOMATIC WEAPONS FALL WITHIN THE CORE OF THE SECOND AMENDMENT PROTECTION.

Chief Justice Roberts will forbid review of such cases that come before the Court because he knows the answer to it, and he does not want the Court to issue a ruling on it.

Semiautomatic weapons are a class of weapons in common use.

Weapons in common use fall within the core protection of the Natural Law Right expressed in the Second Amendment.

Roberts knows that several jurisdictions fervently oppose such weapons in the hands of the civilian citizen population.

The reluctance of the High Court to deal with this issue is not lost on those Anti-Second Amendment states that wish to ban and have banned possession of these weapons, even as those bans are wholly inconsistent with the reasoning of Heller.

The Trump nominees to the High Court—those who are ostensibly members of the conservative-wing, must join with the Senior Justices, Clarence Thomas and Samuel Alito, to convince the Chief Justice, John Roberts, to grant review of those cases that come before it challenging Government and State action that constrains or that denies outright the citizen’s ownership and possession of semiautomatic weapons.

By failing to deal with this major Second Amendment issue, the Court not only encourages states to defy Court precedent and the plain meaning of the Second Amendment but encourages Progressives and Globalists who want to ban civilian citizen ownership and possession to shoehorn semiautomatic weapons into the National Firearms Act (NFA), thereby expanding the NFA which must not be expanded.

Yet the NFA and other Federal Statutes that infringe exercise of the Natural Law Right to armed self-defense must be struck down by the Court as facially unconstitutional as the Federal Government has no lawful authority to enact laws infringing our most vital Natural Law Right.

The existence of these Federal laws (historical tradition?) doesn’t make such laws constitutionally consistent with the Bill of Rights, however long they have existed. They must be struck down. This idea to alludes to an inherent internal problem with the “Historical Tradition” test. Length of time that a particular law or policy exists is not, in and of itself, a valid basis to justify a present enactment that constrains exercise of the Natural Law Right of the People to Keep and Bear Arms. The question ought to be whether any law that intrudes upon this PREEXISTING ETERNAL RIGHT is legally, logically, ethically consistent with the Sanctity and Inviolability of THE INDIVIDUAL COMMON MAN and the SECURITY OF A FREE STATE. Such laws that are crafted to constrain exercise of the Right must be clearly, assiduously and narrowly articulated and should never be the basis by which government incrementally crafts more and more laws that further constrain and constrict an American’s right to Armed Self-defense.

The U.S. Supreme Court has shown by its disturbing willingness to forbear review of unconstitutional governmental action contra the Fundamental Natural Law Right to Armed Self-defense, a dangerous carelessness which Americans must not abide. And the Chief Justice bears most responsibility for this. Apart from problems attendant to the “HISTORICAL TRADITON” STANDARD, which John Roberts has demonstrated no interest in rectifying or attempting to rectify, and apart from his failure to chastise those jurisdictions that have openly defied the Court, John Roberts has also been remiss in failing to use the Article III authority of the Court to grant review of cases that would put to rest the constant state attacks on an entire class of weapons in common use—i.e., semiautomatic firearms.

The Roberts Court has denied review of all cases posing this question, going back to the principal case, Friedman vs. City of Highland, 577 U.S. 1039, 136 S. Ct. 447 (Dec. 7, 2015).

Associate Justice Antonin Scalia, who was alive at the time, joined Justice Thomas in Thomas’ vigorous dissent for Court’s refusal to take up the case.

Another major challenge to the constitutionality of a state act banning civilian citizen possession of semiautomatic weapons, designated “assault weapons,” wended its way to the Supreme Court in 2024. The case is Harrel vs. Raoul, 144 S. Ct. 2491 (July 2, 2024).

Curiously, the Harrel case, like the 2015 Friedman case came out of Illinois.

The Friedman case involved a city ordinance, banning the acquisition and the possession of semiautomatic weapons referred to by the provocative phrase, “assault weapons.”

Because the Supreme Court denied review of the Friedman case, thereby striking down a City ordinance as inconsistent with the reasoning in Heller that firearms in common use fall under the core protection of the Second Amendment, the Illinois Government must have figured it could piggy-back off Friedman and ban the possession of  “assault weapons” throughout the State.

And Illinois did just that—making possession of semiautomatic weapons, designated as “assault weapons,” a felony throughout Illinois. And, so, although these weapons were in common use, they no longer remain so, in Illinois. That is quite an interesting way for a state to craft a loophole around the concept of “WEAPONS IN COMMON USE.” The state just bans them. And, by sleight of hand then argues such weapons are NOT IN COMMON USE.

This is what happens whenever SCOTUS fails to take definitive action to safeguard the fundamental right that is codified in the Second Amendment, and fails, as well, to support its prior SECOND AMENDMENT RULINGS. States take advantage of such dereliction of the Supreme Court’s responsibilities, deliberately defying the Court and twisting the import of precedents to reach a decision inconsistent with those precedents.

Unfortunately, Justice Scalia was not alive at the time the Harrel case came up for review at the Supreme Court, for he together with Justices Thomas and Alito, could demand an accounting from Roberts, for the Court’s having failed to take up Friedman back in 2015.

The three Justices would have presented a powerful force within the U.S. Supreme Court, sufficient to break down Justice Robert’s resistance in having constantly delayed an accounting of the critical Second Amendment issues that have come before the Court.   

Meanwhile, Anti-Second Amendment jurisdictions have taken due notice of Roberts’ continued forbearance, and have acted brazenly in defiance of Heller, McDonald, and Bruen.

The failure of the Court to grant review of Antonyuk vs. James, and Snope vs. Brown, and Wilson vs. Hawaii, means that defiant, stubborn, intransigent states will continue to offend the Second Amendment right.

And, as Hawaii, New York, California, Illinois, and Maryland show, these states and others like them will only grow more and more brazen in time, demonstrating their contempt for the Court and for the Constitution.

Thus, this reticence of SCOTUS in handling Second Amendment cases has dire consequences, weakening the Court’s Second Amendment jurisprudence, injuring the reputation of the Court, and undermining the Court’s Article III authority.

And, yet, the Americans who cherish their Second Amendment right will accept breadcrumbs as the Roberts Court deigns to take up any Second Amendment case—even one, like Wolford—that tinkers around the edges of the Second Amendment, rather than emphatically, plainly clamping down on those states that continue to play games with application of Second Amendment case precedent.

Why is it that Americans seem content with SCOTUS granting review of the least important Second Amendment cases?

It is, we have found, a curious propensity of many Americans who cherish our most Vital Fundamental Natural Law Right—the Right of the People to Keep and Bear Arms—to applaud the Supreme Court when it deigns to grant a petition for writ of certiorari in a Second Amendment case, whatever the nature of the case, and to view that case irrespective of what has gone before.

It took the High Court well over 200 hundred years, after ratification of the Bill of Rights in 1791, to assert an obvious fact and write it into law—proclaiming that the Right to armed self-defense is after all an individual right, no less so than other vital Rights, including inter alia, the Right of Free Speech, the Freedom of Association (that is subsumed in Freedom of Speech), the Right to own property which implies the exclusive use and Enjoyment of  one’s Personal Property, implied in the “takings clause” of the Fifth Amendment, and the Right codified in the Fourth Amendment, namely, the Right of the People to be Free from Unreasonable Searches and Seizures.

HOWEVER, ONLY THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS OPERATES AS A TRUE POWER, AS WELL AS A RIGHT—A POWER THAT ALONE CAN REPEL THE ENCROACHING TYRANNY OF GOVERNMENT.

WHEN THE SUPREME COURT FOR WELL OVER TWO HUNDRED YEARS FAILED TO ASSERT CLEARLY, WHAT THE PLAIN MEANING OF THE LANGUAGE OF THE SECOND AMENDMENT LAYS BARE, THE HELLER CASE CAME ALONG IN THE FIRST DECADE OF THE TWENTY-FIRST CENTURY, HOLDING THAT THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS IS—LIKE ALL THE OTHER FUNDAMENTAL, UNALIENABLE, ETERNAL RIGHTS—AN INDIVIDUAL RIGHT, NOT A COLLECTIVE RIGHT, CAPABLE OF BEING INDIVIDUALLY EXERCISED.

AND, WHEN SOME STATES KICKED, CLAIMING THAT THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS OPERATES AS A PROHIBITION AGAINST FEDERAL GOVERNMENT INTRUSION IN AND INTERFERENCE OF THE EXERCISE OF THE RIGHT, THE MCDONALD CASE, TWO YEARS LATER, RULED THAT THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS APPLIES TO THE STATES, NO LESS SO THAN THAT RIGHT APPLIES TO THE FEDERAL GOVERNMENT.

AND STILL, AFTER MCDONALD, JURISDICTIONS DISPLAYING ANTIPATHY TOWARD THE RIGHT CODIFIED IN THE SECOND AMENDMENT, DEMURRED, ARGUING THAT THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS EXISTS ONLY WITHIN THE CONFINES OF ONE’S HOME, AND NOT IN THE PUBLIC DOMAIN.

IT TOOK TWELVE YEARS AFTER MCDONALD WAS DECIDED, THAT THE COURT GRANTED REVIEW OF BRUEN, MAKING PLAIN THAT THE INDIVIDUAL’S RIGHT TO ARMED SELF-DEFENSE DOES NOT STOP AT THE DOORSTEP TO ONE’S HOME BUT EXTENDS TO THE PUBLIC ARENA.

These Three cases, Heller vs. District of Columbia (2008), City of Chicago vs. McDonald (2010), and New York State Rifle & Pistol Association vs. Bruen (2022), laid out parameters beyond which states and the Federal Government are forbidden to tread, AND SET THE STAGE FOR THE CASES THAT WOULD COME AFTER.

BUT NOTHING CAME AFTER BRUEN THAT CAN ARGUABLY, REASONABLY BE CONSTRUED AS A FOURTH LANDMARK SECOND AMENDMENT CASE.

And, the States and the Federal Government, undeterred from the plain meaning of the words, “shall not be infringed” apropos of the right of the people to keep and bear arms, have, since ratification of the Bill of Rights, enacted laws more and more laws severely constraining and constricting the exercise of the Right.

And the three Landmark cases, Heller, McDonald, and Bruen have done little to prevent stubborn defiance by many of the States and by the Federal Government, too, as Government constantly looks for loopholes to overcome the rulings of the Supreme Court.

This requires the High Court to grant review of Second Amendment cases on a routine, not on a rare basis,

This is the only way for the Supreme Court to effectively contend with stubborn States and a well-entrenched overbearing Federal Bureaucracy.

The States and the Federal Government cannot be entirely faulted for this, for as we have stated many times in our articles, and in this present essay, too, it is in the nature of governmental entities to hoard power and authority.

Always searching for a loophole, or a seemingly plausible way to offend Heller, McDonald and Bruen, these states continue to thwart exercise of the Right, regardless of the plain meaning of the Right and the Court’s previous landmark rulings.

So, when a case comes along, most recently, Wolford vs. Lopez (a case out of Hawaii), many people and Pro-Second Amendment organizations view this as a cause for celebration, presuming the Court majority will strike down Hawaii’s “vampire” law.

The elation is understandable, but Americans should take a step back and reflect on the actions of the John Roberts.

Taking up the least significant of Second Amendment cases, which requires the Court to employ concepts and standards articulated in the THREE LANDMARK CASES that require clarification and explication (when there is none to date to be had because the Court failed to grant review of significant cases, posing issues that, once resolved), would allow for clear, precise rulings in future Supreme Court cases and would also provide guidance for the lower courts, making it more and more difficult for jurisdictions that are antithetical to the Second Amendment Right to continue to devise end-runs around High Court rulings.

But Wolford IS NOT the case that will slow down the actions of those jurisdictions that are predisposed to weaken the Right of the People to Keep and Bear Arms. The ruling in Wolford is likely to do little to prevent continued attacks on the Second Amendment given the narrow and scope built into it on the basis of the sole issue that is the subject of review.

And it is to that point we raise our concern.

Since the Supreme Court grants very few Second Amendment cases on a writ of certiorari, the natural tendency of those who cherish the right of the people to keep and bear arms is to celebrate any Second Amendment case that the Court happens to take up with the aim that doing so will yield a positive result, strengthening the right to armed self-defense, and strengthening the Right codified in the Second Amendment by clarifying the rulings and reasoning in the three landmark cases.

ONE SHOULD ASK HIMSELF WHY THE SUPREME COURT HAPPENED TO GRANT REVIEW OF WOLFORD, WHILE DENYING REVIEW OF ANTONYUK AND SNOPE, AND WHILE NOTING THAT THE COURT DISMISSED CONSIDERATION OF THE SALIENT ISSUE IN WOLFORD—CLARIFCATION OF THE HISTORICAL TRADITION TEST THAT HAPPENED ALSO TO BE THE SAME ISSUE IN ANTONYUK.

Many Americans tend to view individual cases in a vacuum, set apart from, walled off, or boxed off from what has gone before.

The Wolford case may seem important, but it isn’t. In fact, whether the Court rules in favor of the Petitioners or not, the case is, on both legal and logical grounds, faulty.

If the Court were to rule in favor of the State, “Sensitive Place” restrictions, whether public or private, will be utilized with increasing regularity to chisel away at the usefulness of carrying a handgun for self-defense when outside the home.

And, if the Court strikes down Hawaii’s statute, it will simply create a status quo regarding the notion of consent involving private property, but the impact of “Sensitive Place” restrictions negatively impacting one’s right to armed self-defense in the public arena will continue. Little if anything will change. Consider the situation in New York. Regardless of how Wolford is decided, the ruling will have no positive impact on New York’s draconian Handgun Law that continually becomes more unconscionable.

And that, to our mind, amounts to time lost by the U.S. Supreme Court that could have been better spent on significant cases, Antonyuk and Snope. But those lost opportunities cannot be regained.

WHEN CONSIDERING “SENSITIVE PLACE” RESTRICTIONS, THE PRESSING ISSUE IS WHETHER A STATE OUGHT TO BE ABLE TO IMPOSE THEM ON AMERICANS AT ALL.

THIS IS WHERE THE SUPREME COURT’S EXAMINATION OF AND CLARIFICATION OF THE TEST OF “HISTORICAL TRADITION,” FIRST ENUNCIATED IN HELLER, REQUIRES EXTENSIVE EXPOSITION, SO THE COURT CAN DEAL EFFECTIVELY WITH SENSITIVE PLACE RESTRICTIONS AND OTHER STRATEGIES DEVISED BY JURISDICTIONS THAT ARE DEAD-SET ON DESTROYING AMERICANS’ EXERCISE OF THEIR RIGHT TO ARMED SELF-DEFENSE.

We will continue our analysis of the Supreme Court’s failures in exercising its Article III powers to safeguard the Second Amendment from the actions of recalcitrant states and a sympathetic Press, and internal and external Marxist Globalist forces that intend to destroy it.