On January 24, 2026, U.S. Customs and Border Protection officers fatally shot Alex Jeffrey Pretti, a 37-year-old ICU nurse, during protests of a federal immigration enforcement operation in Minneapolis. The timing is striking: just four days earlier, on January 20, 2026, the U.S. Court of Appeals for the Fourth Circuit handed down Kipke v. Moore, No. 24-1799, a 2-1 ruling upholding Maryland’s demonstration buffer-zone provision under the Gun Safety Act of 2023. The hypocrisy now on display from the gun-control lobby is hard to miss.
The Anti-Gun Groups’ Convenient Reversal
Brady United Against Gun Violence, Giffords Law Center to Prevent Gun Violence, and Everytown for Gun Safety are now treating Alex Pretti’s presence at the Minneapolis protest with a lawfully carried firearm as perfectly normal and uncontroversial. They’re right — it is normal. But that is the precise opposite of the position they take in court filings, where they argue no American has a Second Amendment right to carry at a public demonstration.
These same groups were on the anti-gun side in Kipke, urging the Fourth Circuit to bless Maryland’s ban. You cannot argue in court that Americans have no right to carry at protests and then invoke that very right to score political points in the press. I’ll let readers draw their own conclusions about what to call that.
What the Fourth Circuit Actually Decided in Kipke
The 2-1 majority — Judge Roger L. Gregory writing, joined by Chief Judge Albert Diaz — upheld Md. Code Ann., Crim. Law § 4-111(b)(14), which prohibits carrying within 1,000 feet of a public demonstration after law enforcement advises of the demonstration and orders compliance. The majority treated demonstrations as a sensitive-place category akin to courthouses or legislative chambers.
Judge G. Steven Agee dissented in relevant part. His dissent is where the real constitutional work is done. The case is now on petition for certiorari as No. 25-1206.
The Text Is Clear — and So Is the History
Start with the text. The Second Amendment protects the right to keep and bear arms. Carrying a firearm in public at a protest is arms-bearing conduct — full stop. Under United States v. Rahimi, 602 U.S. 680 (2024), when a government restriction burdens arms-bearing conduct, the plain text is implicated and the burden shifts to the government to justify the restriction through a historical tradition of analogous regulation at the founding.
Maryland cannot meet that burden. Judge Agee’s dissent makes that crystal clear:
“Maryland has not come forward with evidence that at the founding states enacted measures prohibiting firearms at public demonstrations. On the contrary, the historical record reflects quite the opposite. As the district court observed, just before the ratification of the Second Amendment, six out of 13 original colonies required their citizens to go armed when attending public assemblies.”
Judge Agee cited scholarship by David B. Kopel and Joseph G.S. Greenlee: in the 150 years before the Second Amendment’s enactment, colonies up and down the Atlantic required men to bring firearms to church and other public gatherings. A 1642 Maryland law — Maryland’s own colonial law — forbade able-bodied men from attending church without a fixed gun and at least one charge of powder and shot. A Connecticut law required each household to bring a musket, pistol, or other firearm to public meetings. This was the norm, not the exception.
John Adams and the Boston Massacre
Go back to 1770 — twenty-one years before the Second Amendment was ratified. The Boston Massacre was a public protest in one of colonial America’s most densely populated urban centers. The defense lawyer for Captain Thomas Preston was founding father John Adams. Adams argued:
“Here every private person is authorized to arm himself and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time for their defense, but not for offense. That distinction is material and must be attended to.”
Adams drew a clean line: peaceable carry for self-defense at a public demonstration is lawful; using arms offensively is not. That recognition — that colonists had a right to be armed at a public protest — is exactly the founding-era evidence Bruen and Rahimi demand courts weigh. Maryland offered nothing comparable.
The Second Amendment Is Not Second-Class
The majority in Kipke tried to frame the demonstration ban partly through the lens of First Amendment concerns — the idea that firearms at protests inherently threaten peaceful assembly. Judge Agee dispatched that reasoning directly:
“The majority’s prefatory observation about the interplay of the First and Second Amendment further obfuscates the analysis. No one disputes that the First Amendment protects the right of the people to peaceably assemble or that consistent with the Second Amendment a state can prohibit firearms from being used in a manner that disrupts the peace. But Maryland’s law prohibits the mere presence of firearms during public demonstration under circumstances unrelated to maintaining the peace. By presuming that the mere presence of firearms somehow threatens peaceful public assembly Maryland’s law subjugates the Second Amendment right to public carriage for lawful purposes to the First Amendment’s right to assemble. That’s precisely what the U.S. Supreme Court has cautioned against by reminding courts repeatedly that the Second Amendment is not a second-class right.”
He’s citing New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), and he is right. You do not balance the Second Amendment away by pitting it against another right. Both stand on equal footing. Maryland’s law treats the mere lawful presence of a firearm as a threat to peaceful assembly — exactly the kind of second-class treatment Bruen prohibits.
The Kipke majority got this wrong. With cert petition No. 25-1206 now pending, SCOTUS may have the opportunity to correct it. When you hear gun-control groups defending a protester’s right to carry in Minneapolis while simultaneously litigating to strip that same right in court, you know exactly what you’re dealing with.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.