A powerful reply brief was just filed on behalf of Eva Marie Gardner at the U.S. Supreme Court, and if you care about the right to carry a firearm for self-defense while traveling across state lines, this is the case to watch. The law firm of Cooper & Kirk — one of the premier Second Amendment litigation shops in the country — has entered the case and filed a brief urging the Court to grant cert, and the facts they’re working with are almost perfectly designed to force a ruling.
A Fact Pattern Designed to Win
Gardner is a Virginia resident with a valid concealed carry license. She was driving through Maryland on her way to visit her mother in Pennsylvania when another driver forced her off the road. When that driver got out and approached her in a threatening manner, she displayed her firearm. She did not fire it. She used it as any responsible, licensed carrier would — to deter a potential attack without escalating to lethal force.
Maryland’s response was to arrest and convict her. Not for how she handled the encounter, but simply for having her licensed firearm in the car while crossing state lines.
The parallels to Caetano v. Massachusetts, 577 U.S. 411 (2016), are hard to miss. In that case, Jaime Caetano was convicted under Massachusetts law for possessing a stun gun she had used to successfully fend off an abusive ex-boyfriend. The Supreme Court, in a per curiam decision, vacated that conviction and sent it back with a clear message: the Second Amendment covers all bearable arms used for self-defense. Here, the weapon is not exotic and the license is not in dispute. The only question is whether Virginia’s carry permit is worth anything once Gardner crosses the Potomac.
Maryland’s Trap Door: An Unconstitutional Licensing Regime
Here is where the argument gets devastating for Maryland, and it is a point Cooper & Kirk hammered home in the brief. Gardner was arrested and convicted before the June 2022 Bruen decision, 597 U.S. 1 (2022). Maryland at that time ran a classic may-issue licensing regime — the same unconstitutional “good-and-substantial-reason” standard that Bruen specifically called out as one of the regimes like New York’s that could not survive Second Amendment scrutiny.
So Maryland is arguing that Gardner should have gotten a Maryland carry license before driving through the state. But Maryland was legally barred from issuing her one. The licensing window was closed by Maryland’s own unconstitutional scheme. As the brief puts it, convicting Gardner for failing to obtain a license that was “legally unavailable to her” goes beyond irony — it is farce.
No Historical Tradition to Back Maryland Up
Under the Bruen framework, once conduct falls within the plain text of the Second Amendment, the burden shifts to the government to demonstrate a historical tradition of analogous firearms regulation going back to the Founding. Maryland cannot meet that burden here.
Cooper & Kirk searched the record and found nothing — no founding-era law, no Reconstruction-era statute — restricting out-of-state travelers from carrying firearms for self-defense while in transit. The historical record actually runs the other way: at least four colonies affirmatively required travelers to carry arms, and American jurisdictions through the end of the 19th century routinely exempted travelers from local firearms restrictions precisely because armed self-defense on the road was understood as a necessity.
Silence is evidence. Maryland’s inability to produce a single historical analog is, under Bruen, a concession on the merits.
The Structural Constitution Argument
The brief does not stop at the Second Amendment. It reaches into the architecture of the Constitution itself, invoking the Full Faith and Credit Clause and the structural principle that the union requires citizens to be able to move freely between states without surrendering their fundamental rights at each border.
This is a point I press constantly on this channel: if you want to be the best possible advocate for the Second Amendment, you have to know the whole Constitution. The Second Amendment does not stand alone. It is reinforced by the structure of federalism, by the principle that a citizen of Virginia does not become a different legal person the moment she enters Maryland. The brief argues exactly that, and it is the right argument.
Why This Could Be the Vehicle
There are roughly 20 million concealed carry license holders in the United States, and a meaningful percentage of them travel interstate regularly. States like Maryland, New York, and Illinois sit astride the principal travel corridors of the East Coast and Midwest, functioning as choke points that effectively nullify the carry rights of tens of millions of Americans the moment they enter those states.
The Court has already asked Maryland to respond to Gardner’s petition — a signal that at least one Justice found the question worth taking seriously. With Cooper & Kirk now driving the case, the briefing quality matches the importance of the question. If cert is granted, this case could become the stepping stone toward a constitutional ruling that interstate travelers do not check their Second Amendment rights at the state line.
Fingers crossed — this one is worth watching closely.
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.