1. Maryland federal court dismisses DOJ’s “pattern or practice” suit challenging a Montgomery County (MD) sensitive places law as unconstitutional under the Second Amendment.
On Monday, November 9, 2026, the U.S. District Court for the District of Maryland dismissed the United States’ complaint against Montgomery County alleging that the County’s sensitive places ordinances, enacted in July of this year, violated the Second Amendment. The law at issue, Bill 23-26E (now codified at Chapter 57 of the Montgomery County Code), prohibits the carrying of firearms within 100 yards of a “place of public assembly,” defined as “publicly or privately owned” parks, places of worship, schools, libraries, recreational facilities, government buildings, polling places, courthouses, and legislative assemblies and “multipurpose exhibition facility[ies]” like fairgrounds and conference centers.
The Bill actually revised the Code to eliminate a handful of additional “sensitive places,” in order to comply with a court order from the Supreme Court of Maryland in a different case. There, the court held that restrictions on carrying in those additional places (hospitals, community health centers, long-term care facilities, childcare facilities, and public protests) likely exceeded the bounds of regulation permitted by a history-informed Second Amendment.
In the instant case, the DOJ alleged that Bill 23-26E was “presumptively unconstitutional,” and that any attempt by Montgomery County law enforcement officials to enforce it would constitute a “pattern or practice of conduct by law enforcement officers” resulting in the deprivation of constitutional rights. We at CFL have previously written about this dubious “pattern or practice” theory. To recap, DOJ’s Second Amendment section has been relying on 34 U.S.C. § 12601, which allows the Attorney General to sue any governmental authority (or agent thereof) who “engage in a pattern or practice of conduct” that results in the violation of individual liberties guaranteed by the Constitution. Historically, this federal pattern-or-practice statute has been reserved for addressing police brutality and systemic misconduct. By contrast, the Second Amendment section has used the statute to challenge state and local firearms regulations as unconstitutional.
Judge Chuang was not persuaded. He wrote that DOJ had failed to allege a “pattern or practice” because it had not provided “any allegations of any actual conduct by law enforcement officers relating in any way to Bill 23-26E.” Furthermore, the court observed, “the claim in the Complaint is essentially a facial challenge to the constitutionality of Bill 23-26E’s restrictions on the conduct of private individuals as violative of the Second Amendment.” Yet Bill 23-26E “cannot be construed as itself demonstrating a ‘pattern or practice of conduct by law enforcement officers’ that deprives individuals of constitutional rights.” The court noted that “there is no precedent for the type of use of § 12601 proposed by the Government,” and granted the County’s motion to dismiss.
2. U.S. Court of Appeals for the Sixth Circuit upholds federal law prohibiting possession of firearms by anyone “adjudicated as a mental defective” as constitutional under the Second Amendment.
On October 29, 2026, a panel of the U.S. Court of Appeals for the Sixth Circuit rejected a facial challenge to the constitutionality of 18 U.S.C. § 922(g)(4), which prohibits anyone “who has been adjudicated as a mental defective or who has been committed to a mental institution” from possessing firearms. Judge Eric Murphy (a 2019 Trump appointee) authored the opinion, joined by Judges Gibbons and Hermandorfer.
By way of background, in January 2023, a Missouri court ordered that Lakovich be detained in a mental health facility for 21 days because his “mental illness” created “a likelihood of serious harm to himself or to others.” The court also deemed him to be “incompetent” under Missouri’s concealed-carry laws and banned him from possessing firearms. Laykovich could have petitioned the state for removal of the ban, upon demonstrating that he no longer posed a threat to public safety, but he never filed such a petition. Rather, in January 2024, Laykovich was pulled over for erratic driving near Fort Knox, Kentucky. At the time of the stop, Laykovich was wearing body armor and a body cam; upon a search of the vehicle, officers “uncovered eight firearms (including two rifles), a large amount of ammunition, knives, a gasoline can, marijuana, and a pill that contained fentanyl.” He stated that he was on his way to Fort Knox to discuss something related to a “clearance” dispute. He was then arrested. Upon investigation, law enforcement discovered his 2023 institutionalization, and he was charged under 922(g)(4).
Regulating possession by the mentally ill raises interesting doctrinal questions—notably that our understanding of mental illness has evolved significantly since 1791 and 1868, as has the law’s treatment of persons with mental illness. Furthermore, as the court noted, “Mental illness is a broad concept that could cover everything from a severe case of schizophrenia to a mild case of attention deficit hyperactivity disorder,” yet 922(g)(4) provides no guidance as to what types of mental illnesses may serve as the basis for disarmament. However, because Laykovich challenged his conviction on facial grounds, and because he failed to show that there were no circumstances in which the law could be constitutionally applied, his challenge failed and the court did not need to engage with the nuances of those questions.
Applying Bruen, the court first engaged with the “plain text” inquiry, holding that Laykovich’s “conduct falls within the ‘plain text’ of the Second Amendment” because he “remained part of the ‘people’ protected by the Second Amendment even after he was ‘adjudicated as a mental defective.’” Indeed, the Government conceded the point.
But at step two, the court determined that there were sufficient relevantly similar historical analogues to uphold § 922(g)(4). Reminder that at step two, the government must offer historical analogues that burden the right in sufficiently similar ways to their modern counterpart. Put differently, they must share a “how and why.”
The court observed, “society has long recognized that individuals suffering from severe mental illness might pose dangers to themselves and to others. And society has long responded to these dangers by restricting the liberty of these individuals until their mental health has improved.” Longstanding legal traditions demonstrated that society restricted the liberty of persons with mental illness, by way of confinement to the home, institutionalization for treatment, or imprisonment. And although “the [historical analogues] did not expressly prohibit the mentally ill from possessing firearms,” “they effectively prohibited this gun possession because the detained individuals lacked ‘access to guns’ in their secured spaces.” Quoting Wolford, the court concluded that the centuries of “laws detaining the mentally ill have been “open, widespread, and unchallenged.”
As to the “why” inquiry Bruen requires, the court explained that the modern laws and their historical forebears serve identical purposes: “protecting the public and the mentally ill from the dangers that their illnesses create.” And as to the “how,” the court observed that “the two legal regimes share three common attributes”: (1) “the traditional laws typically ‘provided some form of process before an individual lost any of his liberties’ for any extended period”; (2) “the traditional and modern laws imposed their burdens for a ‘limited duration,’ not a permanent one”; and (3) “§ 922(g)(4) ‘imposes a comparable—indeed, ‘less-heavy-handed’—burden” on those suffering from a mental illness”. As a result, “§ 922(g)(4) has a similar “purpose and operation” when compared to the historical analogue of civil confinement for the group of individuals whose mental illness rendered them dangerous,” and Laykovich’s facial challenge failed.
3. Fifth Circuit strikes down § 1242 of the Federal Switchblade Act as unconstitutional under the Second Amendment.
On October 21, 2026, in Knife Rights v. Blanche, a panel of the U.S. Court of Appeals for the Fifth Circuit held that the Federal Switchblade Act (FSA)’s restrictions on switchblade knives violated the Second Amendment. The FSA, 15 U.S.C. § 1242, prohibits the knowing introduction (or manufacture for introduction) of switchblade knives into interstate commerce. The following section (§ 1243) provides “Whoever, within any Territory or possession of the United States . . . manufactures, sells, or possesses any switchblade knife, shall be fined not more than $2,000 or imprisoned not more than five years, or both.” The court, in an opinion authored by Chief Judge Elrod (a George W. Bush appointee), held that § 1242, but not § 1243, violated the Second Amendment and remanded the case to the district court for further proceedings.
Applying Bruen, the court held that “the plain text of the Second Amendment covers the conduct at issue because switchblades are arms commonly used for defense and manufacturing and procuring them facilitates using them for defense.” The plaintiffs are among “the people” to whom the Second Amendment applies, and knives are “arms.” The court observed, “[k]nives have been used for defense throughout human history, including the American founding,” and “some forms of switchblades have been commonly used for defense for hundreds of years.” Based on this, the court rejected the government’s arguments that switchblade knives are not “in common use” and therefore are not protected arms within the scope of the Second Amendment.
The court further explained that although the “words ‘purchase,’ ‘sale,’ or similar terms describing a transaction do not appear in the Second Amendment,” they are implied—meaning that “keep and bear” includes the “corresponding right” to “acquire” them.
At step two, the court determined that the government failed to demonstrate that FSA § 1242 is consistent with this National’s historical tradition of arms regulation. The Government argued that there is a “well-established tradition of regulating ‘inherently concealable weapons,’” and that switchblade knives fall into that category. But, the court ruled, even if the government’s historical analogues satisfied the “why” inquiry, they fail to satisfy the “how.” This is because “[t]he government cites no historical analogue that regulates the manufacture, transportation, or distribution of ‘inherently concealable weapons,’ much less switchblade knives. Rather, its analogues suggest that there is a tradition of regulating the manner of carrying concealable weapons”—not the sale or transmission of them.
Of note, the government offered as analogues more than 200 “pre-1900 statutes regulating daggers, dirks, and sword canes.” But because only two of them “regulate[d] bladed weapons in an analogous manner” to § 1242, the court disregarded those two as “outliers,” holding that the Government failed to show a sufficiently similar tradition of regulation.
This decision highlights an outstanding question plaguing the Bruen methodology: just how many analogues are sufficient to establish a nationwide tradition of regulation? Here, two historical laws (of more than 200 proffered examples) failed to carry the day. But would three? Four? How many jurisdictions need be represented for the regulation to surpass “outlier” status? Perhaps the Court’s forthcoming opinion in Viramontes will offer guidance. Its decisions in Wolford and Hemani certainly offered no further insight into this question. Only time will tell.
