Sloppy Research and Inaccurate Citations Undermine Bruen’s Historical Standard

For better and for worse, Second Amendment and firearms related law, especially over the past 20 years, has developed into an extraordinarily dense and complex legal field. When considering state and federal statutes, local restrictions, regulatory interpretations, agency guidelines and rulemaking, criminal provisions, administrative rules, and decades of ever-evolving, often contradictory case law layered throughout, it is a lot even for specialists to navigate. The standard of review articulated in New York State Rifle and Pistol Association v. Bruen now requires historical analogues and textual analysis, as well as constitutional scrutiny, combining the disciplines of history and law in the resolution of modern legal questions.

Given all this, accuracy and integrity in the citation of sources is paramount. The rapid introduction and increasing utilization of artificial intelligence (AI) in legal work will undoubtedly have a profound impact, as massive volumes of information can be analyzed faster than ever. Yet while AI can usefully wade through incredible volumes of information, it can also generate or regurgitate legal research errors. Attorneys are increasingly being sanctioned for using fabricated citations, and historically inaccurate legal summaries are making their way into judicial opinions. Error, in some cases, is being accepted as “good law.”

There is an important distinction between AI-generated errors, legal research mistakes, and the deliberate manipulation of historical evidence for strategic purposes. When it comes to the Second Amendment, the potential of deliberate manipulation cannot be dismissed. It is not uncommon for anti-gun advocates to stretch and reinterpret historical sources to manufacture traditions that never truly existed in order to support broad firearm restrictions. However, legal research citation errors caused by negligence can have just as dangerous an effect in rewriting history to support modern policy outcome as they are “picked up” by AI and spread rapidly through repetition.

In a recent article, “How a Fake Citation Misled Courts to Uphold ‘Sensitive Place’ Gun Bans,’ attorney Stephen P. Halbrook provides a case study of how a citation error made its way into binding judicial precedent. Post-Bruen courts have repeatedly sought to uphold “sensitive place” gun bans based on what Halbrook identifies as an inaccurate founding era law cited in the Antonyuk v. James decision from the U.S. Court of Appeals for the Second Circuit. The court cited supposed historical bans on carrying firearms at fairs and markets in North Carolina and Virginia. According to Halbrook’s research into the primary sources, the laws did not generally prohibit carry in these locations but instead addressed going armed “to the terror of the people,” a much-narrowed offense tied to conduct beyond merely carrying and possessing firearms. Additionally, as Halbrook uncovers, “Antonyuk has constructed a house of cards by ignoring actual North Carolina law and mistaking a privately published book for that law.” This mistaken citation has been repeated through modern scholarship and judicial opinions, thus becoming accepted historical support for “gun free zones.” As Halbrook notes:

“The matter is not about a single erroneous citation with no consequence. In Antonyuk, the Second Circuit built its entire theory of Founding-era analogues on sand in order to comply with Bruen’s directive to find a historical tradition of regulation that supported New York’s wide restrictions. That decision has since influenced two other circuits, covering three states, to adopt the same flawed approach—and others may soon follow. These decisions are based on a badly mistaken analysis of America’s historical tradition of firearm regulation and should be overturned.”

Since the Bruen decision, Second Amendment practice has arguably become more disciplined and historically grounded but far more complex. This shift has created an environment where research can be weaponized for legal and policy outcomes.  There has been no shortage of dubious cites to isolated or geographically limited laws to justify sweeping firearm regulations and bans. The Second Amendment faces enough challenges from ignorance, emotional manipulation, and the exploitation of rare but highly publicized crimes. To those we can now add issues created by careless research or weak scholarship, leading to errors infecting the training data which AI uses to generate its own analyses.  

NRA-ILA is dedicated to remaining an accurate, trusted, and authoritative source of information about firearms laws and the Second Amendment. As advocates for the right to keep and bear arms, we have always faced more scrutiny from the media and the academy than our opponents. We welcome anyone to try to prove us wrong. More often than not, they merely succeed in proving us right.