Legal Myth Monday: The Myths and Realities of Trespass

Trespass rarely arrives wearing a black mask and carrying a sack marked “PROPERTY RIGHTS.” 

Sometimes it looks like a neighbor's fence, a shortcut across the yard, a wayward dog, or even a puff of smoke drifting across the property line.

Behind these deceptively innocent intrusions lurks a surprisingly complex body of law and the myths are everywhere.

So, today, we're going to explore all things Trespass so that you don't get crossed up (or crossed over) where you ought not be. 

Myth #1: “If there’s not a No Trespassing sign posted, it isn’t trespassing.”

Reality: A sign is useful evidence of lack of permission, but civil trespass does not generally depend upon a sign.

Authority:  State v. Christensen, 131 Idaho 143, 953 P.2d 583, 587–88 (1998).

Christensen involved law enforcement entering private property during an investigation. The property owner argued that a “No Trespassing” sign demonstrated that the officers had no implied license to enter.

The Idaho Supreme Court recognized that a clearly posted “No Trespassing” sign, particularly when combined with a physical barrier such as a gate, can revoke the ordinary implied license to approach a residence. The court contrasted that situation with circumstances in which the property owner has not clearly manifested an intent to exclude visitors.

Reality Check:  A sign is a warning, not a magic spell. Your property doesn't suddenly become trespass-proof only after somebody hammers up a piece of plywood saying “KEEP OUT.” 

Myth #2: “You have to intend to trespass.”

Reality: You generally have to intend the physical entry, but you do not have to intend to violate someone else's property rights.

Authority:  Ansay v. Boecking-Berry Equip. Co., 450 F.2d 433, 435–36 (10th Cir. 1971).

The case involved an unlawful possession of land and whether the defendant's good-faith belief that its legal position was correct should protect it from trespass liability or reduce the damages.

The Tenth Circuit held that the defendant's state of mind was generally irrelevant to the trespass claim. The required intent was simply the intent to perform the act that resulted in the entry. Thus, a person can be liable even when acting in good faith and under a reasonable—but mistaken—belief that the entry is lawful.

Reality Check:  “But I thought it was my property!” is not automatically a Get-Out-of-Trespass-Free card. 

Myth #3: “If I accidentally cross the property line, I can't be liable for trespass.”

Reality: An innocent mistake about the boundary does not necessarily defeat the underlying trespass claim.

Authority:  Fischer v. Croston, 164 Idaho 189, 438 P.3d 1211 (2019).

This was a boundary dispute between neighboring landowners. The parties disagreed about ownership of a strip of property. One side entered the disputed property, removed vegetation, and constructed a fence. The defendants argued that their conduct was based on their belief concerning the boundary.

The Idaho Supreme Court explained that an innocent mistake concerning the boundary or location of property can matter to trespass liability and damages, but it distinguished that situation from conduct occurring after the defendant has been put on notice that the property is disputed. 

Once the defendants knew of the dispute and nevertheless reentered, cut vegetation, and erected the fence, the court found the conduct willful and intentional and upheld trespass liability and treble damages.

Reality Check:  Your surveyor may be wrong. Your GPS may be wrong. Your memory may definitely be wrong. The property line doesn't care. 

Myth #4: “If I didn't damage anything, there is no trespass.”

Reality: Physical damage isn't required.

Authority: Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238, 1243–44 (Utah 1998).

The Utah Supreme Court considered trespass and the damages associated with an invasion of possessory rights.

Trespass protects the right to exclusive possession. Proof of actual damage is not necessary to establish liability; damages can include nominal damages where substantial damages aren't shown.

Reality Check:  You don't have to bulldoze the rose garden. Sometimes the trespass is the damage. 

Myth #5: “Trespass only happens when a person physically walks onto someone else's property.”

Reality: A trespass can occur when a person causes another person or a thing to enter the land.

Authority:  Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377, 389–90 (Colo. 2001).

The plaintiffs alleged that emissions from the defendant's electrical transmission operations crossed onto their property. The Colorado Supreme Court addressed whether trespass requires the defendant, or a tangible object, to physically enter the property.

The court explained that traditional trespass involves a physical intrusion, and that the Restatement recognizes liability where the defendant “causes a thing or third person” to enter another's land. The court then went further and held that, under Colorado law, intangible intrusions can also constitute trespass when they satisfy the applicable requirements.

Reality Check:  Your feet aren't required. Your trash can, dirt pile, fence, equipment or anything else you intentionally put over the line can do the trespassing for you. 

Myth #6: “If I built the fence on the wrong side of the property line by mistake, that's not trespass.”

Reality: It can be.

Authority:  La Bruno v. Lawrence, 64 N.J. Super. 570, 166 A.2d 163, 166–68 (App. Div. 1960).

A surveyor mistakenly located the boundary between neighboring properties. Relying on the erroneous survey, the neighboring property owners had a fence constructed on the plaintiff's property. The plaintiff sued for trespass and damages.

The New Jersey Appellate Division held that the surveyor's mistake, honest belief, or professional negligence was not a defense to the underlying trespass. The court did, however, distinguish between trespass liability and punitive damages: the mistake could negate the intentional wrongdoing necessary for punitive damages.

Reality Check:  “Oops” is a perfectly good explanation of how the fence got there. It isn't necessarily a legal defense to leaving it there. 

Myth #7: “Trespass requires malicious or bad-faith conduct.”

Reality: No. Malice or bad faith may become important when determining punitive damages, but they're not necessary for basic trespass liability.

Authority:  Miller v. National Broadcasting Co., 187 Cal. App. 3d 1463, 1477–78, 232 Cal. Rptr. 668 (1986).

NBC's camera crew entered the plaintiff's apartment without authorization while investigating a story. The trial court had concluded that there was no trespass because the defendants lacked malice and the plaintiff suffered no actual damage.

The California Court of Appeal rejected that reasoning. The court explained that trespass is an intentional tort in the legal sense because the defendants intended to enter the property. Their particular motivation (whether malicious, innocent, or otherwise) was not necessary to establish trespass. The court specifically distinguished the intent required for trespass from the state of mind that might justify punitive damages.

Reality Check:  You don't have to be a villainous villain twirling a mustache. Sometimes you're just a trespassing trespasser. 

Myth #8: “Only the person who owns the property can sue for trespass.”

Reality: Trespass is fundamentally a possessory action. Ownership and possession are not necessarily the same thing.

Authority:  Manor Enterprises, Inc. v. Vivid, Inc., 228 Wis. 2d 59, 596 N.W.2d 425 (Ct. App. 1999).

The case involved a dispute over unauthorized placement of objects on property. The defendant challenged the plaintiff's ability to maintain a trespass action.

The Wisconsin Court of Appeals expressly stated that a plaintiff in a trespass action need establish only a right to possession of the land, not ownership of the land. In other words, trespass protects the possessory interest.

Reality Check:  Trespass law protects possession, not just whoever has the prettiest deed in the filing cabinet. 

Myth #9: “Once you give someone permission to enter your property, they can keep coming back.”

Reality: Consent has boundaries. Permission can be limited, revoked, or exceeded.

Authority: Restatement (Second) of Torts § 158 (Am. L. Inst. 1965)

Keyzer v. Amerlink, Ltd., 173 N.C. App. 736, 620 S.E.2d 511 (2005).

The case involved a dispute over entry onto property where the defendants claimed they had permission to enter. The North Carolina Court of Appeals examined the nature and limits of consent to enter another person's land.

The court explained that consent to enter another's property is conditional, not absolute. A person who initially enters with permission can become a trespasser by subsequently exceeding or abusing the scope of that permission. The court relied on Blackwood v. Cates, 297 N.C. 163, 167, 254 S.E.2d 7, 9 (1979), for the principle that an initially lawful entry can become trespass when the entrant's subsequent conduct exceeds the authority granted.

Reality Check:  “Come over anytime” is not the same thing as “Congratulations, you've acquired a lifetime easement.” 

Myth #10: “If the public has traditionally used private land, that automatically gives the public a legal right to use it.”

Reality: Longstanding use does not automatically create a public easement.

Authority:  Clickner v. Magothy River Ass'n, 424 Md. 253, 35 A.3d 464 (2012).

The case involved Dobbins Island, where members of the public had historically used a beach on privately owned property. The public had used the beach for years, and the question was whether that longstanding use had created a legal right to continue using the private property.

The Maryland Court of Appeals held that the public's historic use did not automatically establish a public easement or right of access. The court applied a presumption that public use was permissive rather than adverse. Because the evidence did not establish that the public had used the property under a claim of right, the use remained a revocable license, which the owners could terminate.

Reality Check:  “Because we've always done it” might work at a family reunion, it's considerably less impressive in a property dispute. 

Myth #11: “If my neighbor lets me use part of his property long enough, I automatically get an easement.”

Reality: Permission and adverse use are fundamentally different concepts. Long use does not automatically create a property right.

Authority:  Workman v. Klinkenberg, 4 Wn. App. 2d 981, 430 P.3d 716, 721–23 (2018).

The dispute concerned a claimed prescriptive easement over neighboring property. The claimant argued that his long use of the property entitled him to an easement.

The Washington Court of Appeals held that when use of another person's property begins as a neighborly accommodation, the person claiming a prescriptive easement must overcome the presumption that the use was permissive. The claimant must show when and how the use became adverse. Simply continuing to use the property doesn't automatically transform permission into a property right.

Reality Check:  Ten years of your neighbor saying “Sure, go ahead” doesn't necessarily mean you now own a piece of his driveway. 

Myth #12: “If I genuinely need to cross someone's property, necessity makes it legal.”

Reality: Necessity can be a recognized defense or can support certain property doctrines, but “I really needed to” isn't a universal trespass exemption.

Authority: Restatement (Second) of Torts § 197 (Am. L. Inst. 1965) 

Ploof v. Putnam, 81 Vt. 471, 71 A. 188, 190 (1908).

Ploof was sailing on Lake Champlain when a violent storm arose. He sought refuge by mooring his boat to the defendant's dock. The defendant's servant untied the boat, causing it to be driven ashore and damaged.

The Vermont Supreme Court held that necessity can justify what would otherwise be a trespass. When a person reasonably enters another's property to escape an imminent danger, the entry can be privileged. The court therefore rejected the argument that the plaintiff's entry onto the private dock was simply an unlawful trespass.

Reality Check:  “I was taking a shortcut” and “I was escaping a life-threatening emergency” are not exactly the same legal argument. 

Myth #13: “If someone is trespassing, the property owner can do whatever is necessary to remove them.”

Reality: The right to exclude trespassers does not give a landowner unlimited authority to use force.

Authority: Restatement (Second) of Torts §§ 77–83 (Am. L. Inst. 1965):  The common-law privilege of reasonable self-help is limited by the circumstances and applicable state law.

Saidi v. United States, 110 A.3d 606, 611–12 (D.C. 2015).

Saidi was charged with assault after he punched a man who refused to leave an apartment. Saidi claimed he was justified in using force to eject a trespasser and protect his property.

The D.C. Court of Appeals recognized that a person lawfully in possession of real property has a common-law privilege to use a reasonable amount of force to eject a trespasser. But that privilege ends when the force used exceeds what is reasonably necessary under the circumstances. The court upheld Saidi's conviction because the evidence supported the conclusion that his use of force was not justified.

Reality Check:  “Get off my lawn” is property law. “And now I'm going to beat you with a baseball bat” is a completely different legal seminar. 

Myth #14: “If I don't know the property line, I can't be liable for trespass.”

Reality: Lack of knowledge of the boundary is not necessarily a defense to the underlying trespass.

Authority:   Barrios v. Simpkins, No. M2021-01347-COA-R3-CV, 2022 WL 16846642 (Tenn. Ct. App. Nov. 10, 2022).

Neighboring landowners disputed the location of their common boundary. The trial court established the boundary but dismissed the trespass claim because the defendants believed the disputed property belonged to them.

The Tennessee Court of Appeals held that the defendants' belief that they owned the property did not eliminate the intent required for trespass. The relevant intent was the intent to be on the land; the defendants' subjective belief concerning ownership was irrelevant to that element. The trespass claim was therefore remanded for further proceedings.

Reality Check:  The law doesn't require you to carry a surveyor's transit in your backpack. Unfortunately, it also doesn't require the boundary to announce itself when you cross it. 

Myth #15: “Civil trespass means the defendant was negligent.”

Reality:  Here's the head-spinner: trespass is generally an intentional tort, but the defendant doesn't have to intend the damage or even realize the act will invade someone else's property. The relevant intent can be simply intending to perform the act that produces the intrusion (ie walking across the property line).

Authority:  Hoery v. United States, 64 P.3d 214, 217–18 (Colo. 2003).

The case involved claims arising from government activities that allegedly caused an intrusion onto private property. The Colorado Supreme Court examined the intent requirement for trespass and distinguished intentional trespass from negligence.

The court held that trespass requires an intent to perform the act that itself constitutes, or inevitably causes, the intrusion. The defendant does not have to intend to cause the resulting damage. Colorado therefore treats trespass as an intentional tort rather than simply another form of negligence.

Reality Check:  “I accidentally did it” may save you from one tort while leaving you standing squarely in another.

The bottom line here is that trespass law isn't about who crossed the line with the most nefarious intentions  Sometimes, you can be trespassing without even realizing you've crossed that line.  While the law draws the line it, unfortunately, doesn't always paint it bright yellow.

 

Legal Myth Monday: Can the Law Catch the AI Machine?

Artificial intelligence has been around considerably longer than the current panic over it. What has changed is that AI has moved from something largely confined to laboratories, universities, and specialized industries into something an ordinary person can carry around in a pocket.

And that creates a rather interesting legal problem.

Legislatures are discovering that AI can write, draw, imitate voices, make decisions, generate evidence, screen job applicants, analyze medical information, produce legal briefs, create convincing fake images, and sometimes confidently announce things that are completely untrue.

Kinda like how CNN does business. 

Naturally, governments have begun doing what governments traditionally do when technology outruns the law:  They are writing laws and creating legislation.  Whether those laws actually solve the problems they are intended to solve is another question entirely.

So, this week's Legal Myths Monday takes a look at fifteen common assumptions about AI and fifteen jurisdictions already attempting to answer them.

1. UTAH

Myth: “If I am talking to an AI, the law doesn't care whether I know it is a machine.”

Reality: Not necessarily.

Explanation

Utah was one of the earliest states to impose a specific disclosure requirement on certain uses of generative AI.

The Utah Artificial Intelligence Policy Act requires disclosure in certain regulated-occupation and consumer-protection contexts. A person using generative AI in connection with regulated services must disclose that the person is interacting with AI, including disclosure at the beginning of an oral exchange and before a written exchange.

The law does not mean every conversation with ChatGPT requires a flashing neon sign announcing, “THIS IS A ROBOT.” The obligation depends upon the statutory circumstances.

Related Authority:  

Utah Artificial Intelligence Policy Act, Utah Code Ann. tit. 13, ch. 72 (2024).

What this authority is about:  

Utah created an Office of Artificial Intelligence Policy and established a regulatory framework dealing with AI, including consumer protection, disclosure, regulatory mitigation, and an AI regulatory-learning laboratory.

How this authority is being applied:  Utah's approach is notable because it attempts to regulate AI without simply banning it. The state created a regulatory-mitigation system through which qualifying AI developers can test systems under specified conditions while obtaining temporary relief from certain regulatory requirements.

Potential problem:   

Disclosure rules sound simple until someone has to determine when disclosure is legally required, what counts as sufficient disclosure, and how much disclosure becomes so ubiquitous that consumers simply stop noticing it.

At some point, “You are interacting with AI” could become the digital equivalent of the 47-page terms-of-service agreement nobody reads.

Cheeky Reality Check:  

Utah didn't outlaw the robot. It simply told the robot to introduce itself. 

2. COLORADO

Myth: “If an AI system discriminates, the computer, not the company, is responsible.”

Reality: No. Colorado's law looks to the developer and deployer.

Explanation

Colorado's AI law addresses what happens when a high-risk AI system produces discriminatory outcomes.

The statute places duties on both developers and deployers and requires reasonable care concerning known or reasonably foreseeable risks of algorithmic discrimination.

Related Authority

Colo. Rev. Stat. §§ 6-1-1701 to -1707 (2024), as enacted by S.B. 24-205, Consumer Protections for Artificial Intelligence.

What this authority is about

Colorado's framework focuses particularly on high-risk AI systems used in consequential areas such as employment, financial services, housing, education, insurance, and other decisions affecting individuals.

Among other things, developers must provide information and documentation allowing deployers to conduct impact assessments, and developers must disclose certain known or reasonably foreseeable discriminatory risks.

How this authority is being applied

The principal operative provisions began taking effect in 2026. The law attempts to create a compliance structure rather than waiting for a discriminatory AI system to cause harm and then trying to determine who should have known what.

Potential problem

The difficult question is not necessarily whether discrimination is bad. Everyone agrees on that.

The difficult question is how much responsibility can realistically be assigned to a developer for an AI system after a third party deploys it in circumstances the developer did not anticipate?

The more expansive the liability standard becomes, the more developers may respond by restricting what their systems can do rather than making them more useful.

Cheeky Reality Check

The computer may make the decision but Colorado still knows where the developer lives. 

3. CALIFORNIA

Myth: “California tried to regulate AI, so AI companies now have to get government permission before releasing a model.”

Reality: Not under California's enacted frontier-AI law.

Explanation

California's earlier attempt at sweeping frontier-model regulation became nationally controversial. But the law that ultimately took effect was SB 53, the Transparency in Frontier Artificial Intelligence Act.

It focuses heavily on transparency, safety frameworks, reporting, and whistleblower protections rather than requiring the government to approve every AI model before release.

Related Authority

Cal. Bus. & Prof. Code §§ 22757.10–22757.14 (2025).

What this authority is about

SB 53 requires qualifying frontier AI developers to establish and publish AI safety frameworks. Large frontier developers must address catastrophic-risk thresholds, mitigation measures, incident response, and other safety considerations.

The statute also creates reporting mechanisms and protections for covered employees who disclose qualifying safety concerns.

How this authority is being applied

The statute became effective January 1, 2026. Large frontier developers are required to publish their frameworks, and frontier developers have transparency-report obligations concerning new or substantially modified frontier models.

Potential problem

Transparency is useful only to the extent that the information disclosed is meaningful.

A 200-page safety document can technically provide transparency while still leaving an ordinary member of the public with absolutely no idea what the AI actually does.

Cheeky Reality Check

California didn't put a leash on the robot.  It made the robot file paperwork explaining why it thinks it needs one. 

4. ILLINOIS

Myth: “An employer can use AI to hire, fire, or promote people without telling them.”

Reality: Illinois says AI-assisted employment decisions remain subject to civil-rights law—and notice may be required.

Explanation

Illinois amended its Human Rights Act to specifically address AI in employment.

The statute prohibits employers from using AI in employment-related decisions when the use has the effect of subjecting employees to discrimination based upon protected classifications. It also requires notice to employees when AI is used for specified employment purposes.

Related Authority

775 Ill. Comp. Stat. 5/2-102(L) (2026); 775 Ill. Comp. Stat. 5/2-101(N)–(O).

What this authority is about

The Illinois law expressly defines artificial intelligence and generative AI and applies existing employment-discrimination principles to AI-assisted employment decisions.

How this authority is being applied

The provisions became effective January 1, 2026. The Illinois Department of Human Rights is responsible for adopting implementation rules concerning when notice is required and how that notice must be given.

Potential problem

AI can reproduce discrimination found in the data used to train or operate it. But the reverse problem also exists: a system designed to eliminate human subjectivity can itself become so complicated that an employer may have difficulty explaining exactly why a candidate was rejected.

That creates a familiar legal problem in a new technological costume:  Who has to explain the decision when nobody (not even the employer) fully understands the model's reasoning?

Cheeky Reality Check

Illinois has effectively told employers: If the robot is going to reject the applicant, somebody better know why. 

5. TENNESSEE

Myth: “Your voice cannot be stolen because a voice isn't your name or image.”

Reality: Tennessee says your voice can be legally protected as part of your identity.

Explanation

Traditional right-of-publicity laws generally focused on a person's name, image, likeness, or similar identifiers.

Generative AI changed the equation because a system can reproduce a person's voice without recording that person saying the new words.

Tennessee responded directly.

Related Authority

Tenn. Code Ann. §§ 47-25-1101 to -1108 (2024), Ensuring Likeness, Voice, and Image Security Act (ELVIS Act).

What this authority is about

The ELVIS Act expanded Tennessee's right-of-publicity protections to include a person's voice and specifically addresses AI-generated replicas.

How this authority is being applied

The statute provides remedies for unauthorized use of protected identity attributes, including AI-generated voice replicas.

Potential problem

The difficult line is between identity theft and artistic expression.

What happens when someone creates an obvious parody of a famous singer? What about commentary, satire, imitation, or an AI-generated character that merely sounds remarkably similar?

The statute contains exceptions and defenses, but the collision between publicity rights and free expression is likely to generate litigation.

Cheeky Reality Check

Apparently, in Tennessee, your voice now has a lawyer. 

6. VIRGINIA

Myth: “If AI recommends a criminal sentence, the judge can simply rubber-stamp the recommendation.”

Reality: Virginia requires a human decision-maker.

Explanation

Virginia has specifically addressed AI-assisted criminal-justice decisions.

The law does not permit AI to become the judge, probation officer, or parole authority simply because a computer-generated recommendation looks mathematically impressive.

Related Authority

Va. Code Ann. § 19.2-11.14 (2025).

What this authority is about

The statute provides that decisions concerning pretrial detention or release, prosecution, adjudication, sentencing, probation, parole, correctional supervision, or rehabilitation must be made by the responsible human decision-maker.

AI may provide recommendations or predictions, but the ultimate decision must involve a human.

How this authority is being applied

The statute expressly permits AI-based recommendations while preserving the human decision-maker's authority and allowing challenges or objections permitted by law.

Potential problem

“Human in the loop” sounds reassuring.

But a human decision-maker who routinely accepts a computer's recommendation without meaningful independent consideration may produce little more than human-shaped rubber stamping.

The statute therefore solves the easy problem: keeping a human involved without necessarily answering the harder question: How much independent judgment must the human exercise?

Cheeky Reality Check

Virginia has made one thing clear:  The robot may advise the judge but the robot does not get the gavel. 

7. NEW JERSEY

Myth: “A deepfake is protected speech simply because nobody was physically impersonated.”

Reality: Not necessarily. New Jersey has criminalized specified deceptive AI-generated audio and visual media.

Explanation

New Jersey enacted legislation specifically addressing deceptive audio and visual media—commonly called deepfakes.

The statute distinguishes unlawful deceptive media from protected criticism, commentary, satire, parody, news reporting, teaching, scholarship, and research.

Related Authority

N.J. Stat. Ann. §§ 2C:21-17.7 to -17.8 (2025).

What this authority is about

The law establishes criminal and civil liability for specified production, solicitation, use, and dissemination of deceptive audio or visual media, particularly when connected to enumerated crimes or other unlawful purposes.

How this authority is being applied

The law became part of New Jersey's criminal and civil-law framework in 2025. It also expressly preserves protections for certain expressive uses and maintains federal § 230 protections for qualifying providers.

Potential problem

The statute must draw a line between a lie designed to deceive and a fake designed to communicate that it is fake.

That sounds easy until satire enters the room.

A realistic parody can be almost indistinguishable from a malicious deepfake, particularly when it is removed from its original context and reposted elsewhere.

Cheeky Reality Check

The law recognizes that a fake can be dangerous.  It also recognizes that sometimes the joke is supposed to be fake.

Apparently even New Jersey wants the jury to know the difference. 

8. TEXAS

Myth: “Texas has decided that regulating AI means regulating everything AI does.”

Reality: Texas took a more targeted approach.

Explanation

Texas's 2025 Responsible Artificial Intelligence Governance Act identifies specific prohibited uses rather than declaring AI itself unlawful.

Among other things, it addresses intentional manipulation of human behavior, government social scoring, certain biometric-data uses, unlawful discrimination, and certain political-viewpoint-related AI conduct.

Related Authority

Tex. Bus. & Com. Code ch. 551 (2025), Texas Responsible Artificial Intelligence Governance Act, enacted by H.B. 149.

What this authority is about

The legislation establishes substantive restrictions, creates an enforcement structure, establishes an AI council, and creates a regulatory sandbox allowing qualifying AI systems to be tested under controlled circumstances.

How this authority is being applied

The principal provisions took effect January 1, 2026.

The Texas approach is particularly interesting because the law combines restrictions with a regulatory sandbox intended to permit experimentation while temporarily reducing certain regulatory barriers.

Potential problem

Texas illustrates the problem with trying to regulate AI through a list of prohibited conduct:  AI changes faster than statutory definitions.

By the time legislators identify “the thing we are worried about,” the technology may have already moved several versions beyond it.

Cheeky Reality Check

Texas didn't tell AI to get off the ranch. It built a fence around certain things AI isn't supposed to do and created a sandbox for the things nobody has figured out yet. 

9. NEW YORK

Myth: “If a lawyer uses AI to prepare a legal filing, nobody has to know.”

Reality: New York has considered legislation that would require disclosure.

Explanation

New York Assembly Bill A9097 would require disclosure of generative-AI use to clients, criminal defendants, and courts.

Importantly, this is proposed legislation, not an enacted statewide rule.

Related Authority

N.Y. Assemb. A9097, 2025–2026 Reg. Sess.

What this authority is about

The bill would amend New York procedural law to require specified disclosures when lawyers use generative AI.

How this authority is being applied

As of September 2026, the bill remains in committee rather than being an enacted statewide requirement.

Nevertheless, the proposal demonstrates one direction lawmakers are considering: treating disclosure of AI use as part of professional transparency.

Potential problem

Disclosure can tell the client that AI was used.

It does not necessarily tell the client whether the lawyer actually verified what the AI produced.

Those are two very different things.

Cheeky Reality Check

Telling the court, “Yes, I used AI,” is transparency.  Telling the court, “And yes, I actually read what it wrote,” is competence. 

10. MARYLAND

Myth: “Government agencies can use AI however they want because the government is the one doing it.”

Reality: Maryland has imposed governance requirements on its own government.

Explanation

Maryland's AI Governance Act requires state agencies to inventory and assess their AI systems and establishes governmental oversight mechanisms.

Related Authority

Md. Code Ann., State Gov't § 3.5-801 et seq. (2024), enacted through S.B. 818, Chapter 496.

What this authority is about

The law establishes requirements concerning governmental AI inventories, assessments, policies, procedures, and oversight.

How this authority is being applied

Maryland maintains a public accounting of state AI use and has created a governance structure for state deployment.

The state has also continued adding AI-specific programs and oversight measures.

Potential problem

Government transparency creates a useful record—but also creates a logistical question:

Who audits the auditors?

If an agency uses an AI system to make recommendations, someone has to evaluate the system, the data, the vendor, the implementation, and the agency's use of the recommendation.

Eventually, the oversight apparatus can become almost as complicated as the technology it is supposed to oversee.

Cheeky Reality Check

Maryland's solution to government AI is apparently:  “Sure, government can use the robot. But government has to keep receipts.” 

11. EUROPEAN UNION

Myth: “The EU AI Act bans artificial intelligence.”

Reality: No. It regulates AI according to risk.

Explanation

The EU Artificial Intelligence Act is perhaps the most comprehensive AI regulatory framework currently operating.

It does not simply say “AI is illegal.”

Instead, it establishes categories of prohibited practices, general-purpose AI obligations, transparency requirements, and additional obligations for high-risk systems.

Related Authority

Regulation (EU) 2024/1689, 2024 O.J. (L 2024/1689).

What this authority is about

The AI Act prohibits specified AI practices regarded as presenting unacceptable risks, imposes obligations on providers of general-purpose AI models, establishes transparency requirements, and creates additional requirements for high-risk systems.

How this authority is being applied

The Act's provisions are being implemented in stages.

As of August 2, 2026, major portions of the framework—including enforcement powers and transparency obligations—have become applicable. Other high-risk provisions do not apply until later transition dates, including 2027 and 2028.

Potential problem

The EU model demonstrates the problem with comprehensive legislation:

The larger the regulatory framework becomes, the more difficult it becomes for businesses—particularly smaller businesses—to determine exactly which provisions apply to them.

And unlike software, legislation does not update itself when the next model arrives.

Cheeky Reality Check

The EU didn't outlaw AI.  It gave AI a regulatory passport, customs inspection, luggage search, and several forms to complete before entering the terminal. 

12. CHINA

Myth: “China has no meaningful AI regulation because AI developed too quickly for government regulation.”

Reality: China was regulating generative AI before many Western jurisdictions had enacted AI-specific statutes.

Explanation

China's regulatory model is significantly different from the risk-based European approach.

China has already established rules governing generative AI services offered to the public.

Related Authority

Generative Artificial Intelligence Service Management Interim Measures, Order No. 15 of the Cyberspace Administration of China (effective Aug. 15, 2023).

What this authority is about

The rules regulate publicly available generative AI services and impose requirements involving training data, intellectual property, personal information, content moderation, security, transparency, and labeling.

Providers must take measures concerning unlawful content and may face regulatory consequences for violations.

How this authority is being applied

The rules have been in force since August 2023 and operate alongside China's broader cybersecurity, data-security, and personal-information regimes.

Potential problem

A regulatory system that requires AI providers to control generated content creates an obvious technical problem:

Generative AI is probabilistic.

A rule can say “do not produce X.”

The machine still has to determine what X is.

The more expansive the prohibited-content category becomes, the more complicated moderation becomes—and the greater the possibility of both overblocking and underblocking.

Cheeky Reality Check

China solved one AI problem the old-fashioned way: It told the AI what it is allowed to say.  The harder part is getting the AI to agree. 

13. SINGAPORE

Myth: “Deepfakes become legal if the creator puts a disclaimer on them.”

Reality: A disclaimer can matter, but it is not a universal legal shield.

Explanation

Singapore has enacted legislation addressing digitally manipulated and AI-generated material in the context of online harms.

Its Online Safety (Relief and Accountability) Act specifically recognizes generative AI as a technology capable of producing realistic deceptive depictions.

Related Authority

Online Safety (Relief and Accountability) Act 2025 (Sing.).

What this authority is about

The statute addresses harmful online material and includes provisions dealing with realistic manipulated or generated depictions of individuals.

The statutory framework recognizes that labeling may affect whether a depiction is realistically deceptive to a reasonable person.

How this authority is being applied

The law is part of Singapore's broader online-safety framework, with provisions coming into operation according to commencement orders.

Potential problem

A label can reduce deception.

But it cannot necessarily undo the damage caused when millions of people see the image before they see the label or when the image is copied, cropped, reposted, or stripped of its original context.

Cheeky Reality Check

“AI-generated” may save the label but it doesn't necessarily save the reputation. 

14. UNITED KINGDOM

Myth: “Britain has already enacted one giant AI law equivalent to the EU AI Act.”

Reality: The British approach has been considerably more fragmented—and continues to evolve.

Explanation

The United Kingdom has pursued AI regulation through existing regulators, sector-specific legislation, consultations, proposed bills, and targeted amendments rather than simply reproducing the EU's comprehensive AI Act.

One particularly important recent development concerns AI-generated intimate imagery.

Related Authority

Data (Use and Access) Act 2025, c. 18, § 138 (U.K.); Sexual Offences Act 2003 provisions concerning purported intimate images.

What this authority is about

The legislation creates offenses concerning the creation or requesting of purported intimate images of adults without consent or reasonable belief in consent. The statutory concept expressly encompasses images that appear to depict a person but are not authentic photographs or films of that person.

How this authority is being applied

The law provides a direct criminal-law response to one of the most obvious harmful uses of generative AI: creating realistic intimate images of people who never consented to their creation.

At the same time, the UK continues to examine broader questions involving AI and copyright, including AI training on copyrighted material.

Potential problem

The British approach demonstrates a different problem from the EU model.  Instead of one comprehensive statute, regulation may emerge from numerous laws and regulators.

That can produce flexibility but also creates a legal scavenger hunt for businesses and citizens trying to determine which rule governs which AI activity.

Cheeky Reality Check

Britain apparently looked at the EU AI Act and said:  “That's a lot of legislation. Let's distribute the fun.”

15. AUSTRALIA

Myth: “If AI regulation has not been enacted yet, Australia has no legal position on AI.”

Reality: Australia is building a regulatory framework while simultaneously wrestling with AI, copyright, data centers, and training data.

Explanation

Australia provides an excellent example of the problem you identified at the beginning of this article: legislation frequently arrives after the technology has already changed the legal landscape.

Australia has been developing mandatory AI guardrails while maintaining a voluntary AI Safety Standard and considering copyright reforms concerning AI training.

Related Authority

Australian Department of Industry, Science and Resources, Voluntary AI Safety Standard (2025); Australian Government, “AI in Australia's interests” (July 15, 2026); Copyright and AI consultation and 2026 government report.

What this authority is about

Australia's voluntary AI Safety Standard establishes ten guardrails involving accountability, risk management, transparency, testing, human oversight, and related safeguards.

The Australian government has also announced plans for a mandatory AI framework and standards.

Meanwhile, the government continues to confront the difficult copyright question: Can AI developers train models on copyrighted Australian material without permission or compensation?

How this authority is being applied—or will be applied

The voluntary standard currently provides a framework for organizations using AI.

The government has announced a future mandatory framework, while copyright policy remains under active development.

As of September 2026, Australia is also considering how copyright law should address AI training and whether creators should receive compensation for use of their works.

Potential problem

This may be the most fundamental AI-regulation problem of all:

The law is trying to regulate the training of machines that may have been trained before the law was written.

If lawmakers require permission for every piece of copyrighted material used in training, the administrative burden could be enormous.

If they create broad exceptions, creators may argue that the law has effectively converted their work into free raw material for AI companies.

And if they impose compensation mechanisms, someone has to determine who gets paid, how much, and for what contribution.

Cheeky Reality Check

Australia has discovered the ultimate AI question:  Before you regulate what the machine learns, you have to figure out who owns the textbook.

Final Check 

The great irony of AI regulation is that legislators are attempting to write permanent rules for a technology that may look completely different by the time the ink dries.

The goal of regulation may be entirely reasonable: protect people from discrimination, fraud, identity theft, manipulation, privacy violations, and other harms.

But legislation can also create compliance costs, conflicting obligations, jurisdictional fragmentation, overbroad restrictions, false confidence, and rules aimed at yesterday's technology.

In other words, government may eventually succeed in regulating AI.  The question is whether AI will still be the same thing by the time government catches it.

 

 

Legal Myth Monday: 15 Of The Second Amendment’s Greatest Hits and Misses

You know what's funny?

It's how people use legal words and concepts like they think they know what legal things mean.

They don't - or, at least they don't mean what they think they mean.

You know what I mean?

Probably not - which is why I'm creating a new blog section - "Legal Myth Monday" to cover what things legal mean and how they're applied in real time.

In today's episode, we're dealing with all things Second Amendment which has spent a long time lurking in the constitutional shadows. Then came District of Columbia v. Heller, McDonald v. Chicago, New York State Rifle & Pistol Ass’n v. Bruen.  

Suddenly, the right to keep and bear arms (and particularly the right to armed self-defense) was no longer something courts could simply treat as constitutional background scenery.

Heller recognized an individual right to possess a firearm for lawful purposes, with self-defense at its core. McDonald made that right applicable to the states. And Bruen changed the rules for evaluating restrictions.  When the Second Amendment's text covers the conduct, the government must show that its regulation is consistent with the Nation's historical tradition of firearm regulation.

So let's pull back the curtain, turn on the constitutional flashlight, and expose 15 myths about what the Second Amendment actually protects.

Myth #1:  The Second Amendment protects a collective right connected only to militia service.

Reality:  The Second Amendment protects an individual right to keep and bear arms, including for lawful self-defense.

Explanation:  The Supreme Court settled the individual-right question in Heller. The militia language announces a purpose; it does not transform the operative right into a collective privilege.

Related Authority:  District of Columbia v. Heller, 554 U.S. 570 (2008).

What the Case Is About:  District of Columbia law effectively prohibited handgun possession in the home and required lawful firearms to be kept inoperable.

Holding:  The Court held that the Second Amendment protects an individual right to possess a firearm unconnected with militia service and to use it for traditionally lawful purposes, including self-defense in the home.

Cheeky Reality Check:  The Second Amendment may mention a militia. That doesn't mean you need to show up at the armory with a membership card. 

Myth #2:  The Second Amendment applies only to the federal government.

Reality:  The Second Amendment right applies to state and local governments through the Fourteenth Amendment.

Explanation:  The Second Amendment was originally understood as a limitation on the federal government. Through the Fourteenth Amendment, however, certain rights protected by the Bill of Rights have been incorporated and made applicable to the states. As a result, the Second Amendment places constitutional limits not only on federal action, but also on state and local governments.

Related Authority:  McDonald v. City of Chicago, 561 U.S. 742 (2010).

What the Case Is About:  Chicago maintained extremely restrictive handgun laws after Heller was decided.

Holding:  The Court held that the Second Amendment right recognized in Heller is fundamental and is incorporated against the states through the Fourteenth Amendment. Consequently, state and local governments are also bound by the Second Amendment and may not infringe that right in violation of the Constitution.

Cheeky Reality Check:  After McDonald, a state cannot simply say, “Nice constitutional right you've got there. Unfortunately, we don't recognize it.”

Myth #3:  The Second Amendment protects self-defense only inside the home.

Reality:  The right to bear arms for self-defense extends into public spaces.

Explanation:  The Supreme Court expressly rejected the notion that the Second Amendment's protection disappears when a law-abiding citizen walks out the front door.

Related Authority:  New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).

What the Case Is About:  New York required applicants for unrestricted concealed-carry licenses to demonstrate “proper cause,” effectively requiring a special need for self-defense.

Holding:  The Court held that the Second and Fourteenth Amendments protect an individual's right to carry a handgun publicly for self-defense.  Therefore a state may not require a person to demonstrate a special need for self-defense before obtaining a license to carry a handgun in public.

Cheeky Reality Check:  Apparently the constitutional right to self-defense doesn't expire when your front-door mat ends. 

Myth #4:  A citizen must prove some special or extraordinary need before exercising the right to carry for self-defense.

Reality:  Ordinary, law-abiding citizens do not have to prove that they are unusually endangered before exercising the right.

Explanation:  A licensing system that gives the government discretion to decide who has a “good enough” reason to protect himself is precisely the type of system Bruen rejected.

Related Authority:  Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017).

What the Case Is About:  Washington, D.C., required applicants to demonstrate a “good reason” before receiving a concealed-carry license.

Holding:  The D.C. Circuit held that the requirement effectively limited public carry to a privileged class of citizens who could demonstrate a special need, and therefore concluded that the District's licensing requirement violated the Second Amendment.

Cheeky Reality Check:  “I'm worried about being attacked” is apparently enough to worry about an attack but not, according to D.C.'s old system, enough to prepare for one. 

Myth #5:  Any licensing requirement for carrying or possessing a firearm is unconstitutional.

Reality:  Objective, nondiscretionary “shall-issue” licensing regimes can be constitutional.

Explanation:  The Second Amendment does not mean that a person must be allowed to acquire or carry a firearm without any screening or licensing process. What matters is how the licensing system operates. A “shall-issue” system uses objective requirements—such as a background check or safety training—and requires the government to issue the license when those requirements are satisfied. 

That is fundamentally different from a “may-issue” system in which officials can decide whether an applicant has a sufficiently good reason to exercise the right. Bruen treated objective, nondiscretionary licensing systems as presumptively constitutional, while rejecting systems that give officials the power to decide which ordinary citizens have a sufficiently compelling need for self-defense.

Related Authority:  Maryland Shall Issue, Inc. v. Moore, 116 F.4th 211 (4th Cir. 2024) (en banc).

What the Case Is About:  Maryland required prospective handgun purchasers to obtain a Handgun Qualification License after satisfying objective requirements.

Holding:  The en banc Fourth Circuit upheld the licensing system, concluding that Bruen recognized the presumptive constitutionality of objective “shall-issue” licensing regimes, provided they do not operate abusively.

Cheeky Reality Check:  The Constitution apparently doesn't object to paperwork. It objects when the paperwork becomes a constitutional obstacle course. 

Myth #6:  The government can make you wait indefinitely to obtain a firearm because the Second Amendment protects possession, not acquisition.

Reality:  The right to keep and bear arms necessarily includes meaningful access to acquiring arms.

Explanation:  A right to possess something becomes rather theoretical if the government can simply prevent you from acquiring it.

Related Authority:  Ortega v. Grisham, 148 F.4th 1134 (10th Cir. 2025).

What the Case Is About:  New Mexico imposed a seven-day waiting period on most firearm purchases.

Holding:  The Tenth Circuit concluded that the plaintiffs were likely to succeed in showing that the waiting period violated the Second Amendment because the right to bear arms necessarily includes a right to acquire arms, and the government failed to identify a sufficient historical tradition supporting the waiting period.

Cheeky Reality Check:  “Sure, you have the right to own a gun. We'll let you know when you can actually get one.”  

Myth #7:  The government can require firearm training while simultaneously making meaningful training practically impossible.

Reality:  The Second Amendment protects conduct necessary to the meaningful exercise of the right, including firearm training.

Explanation:  Training and proficiency are closely connected to the lawful use of a firearm for self-defense.  A right to possess a firearm for self-defense would be of limited practical value if the government could simultaneously prevent people from learning how to use that firearm safely and effectively. 

The Second Amendment protects the meaningful exercise of the right, not merely possession of an object that its owner has never been permitted to practice using. That does not mean every firearm-training facility, course, or practice session receives absolute constitutional protection; reasonable regulation of ranges and training may still be permissible. The important distinction is between regulating firearm training and effectively eliminating the ability to obtain it.

Related Authority:  Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011).

What the Case Is About:  Chicago required residents to complete firing-range training before obtaining a handgun permit while simultaneously prohibiting virtually all firing ranges in the city.

Holding:  The Seventh Circuit held that the range ban severely burdened the Second Amendment right and granted preliminary relief.

Cheeky Reality Check:  “Here's your constitutional right. Now here's your mandatory training. And here's a law saying you can't train.”  That's not regulation. That's constitutional hide-and-seek. 

Myth #8:  The Second Amendment protects only firearms that existed when the Amendment was ratified.

Reality:  The protection extends to modern bearable arms, not merely eighteenth-century weapons.

Explanation:  The constitutional right did not come with an expiration date tied to the last musket manufactured in 1791.

Related Authority:  Caetano v. Massachusetts, 577 U.S. 411 (2016) (per curiam).

What the Case Is About:  A woman possessed a stun gun for self-defense. Massachusetts courts concluded that stun guns fell outside the Second Amendment because they were not in existence in 1791.

Holding:  The Supreme Court rejected that reasoning, explaining that the Second Amendment protects arms that are commonly possessed for lawful purposes, not merely weapons that existed at the time of the Founding. The fact that modern technology has produced new types of firearms does not, by itself, remove those weapons from the Amendment's protection.

Cheeky Reality Check:  If the Founders had intended to constitutionalize only muskets, somebody forgot to put “muskets only” in the fine print. 

Myth #9:  If a firearm is commonly used for lawful self-defense, the government can ban it simply because it considers the weapon unusually dangerous.

Reality:  The government faces a serious constitutional problem when it bans arms that are commonly possessed for lawful purposes.

Explanation:   Heller distinguished protected weapons in common use from “dangerous and unusual” weapons. That distinction remains central to modern Second Amendment litigation.

Related Authority:  Barnett v. Raoul, Nos. 24-3060 et al., slip op. at 55–65 (7th Cir. July 9, 2026).

What the Case Is About:  Illinois's Protect Illinois Communities Act restricted AR-15-style rifles and thirty-round magazines.

Holding:  The Seventh Circuit ultimately upheld the restrictions under the Bruen/Rahimi historical-tradition framework, concluding that the challenged restrictions were consistent with the principles underlying the Nation's firearm-regulation tradition.

Cheeky Reality Check:  Here's the important twist: “Commonly used” does not automatically mean “immune from regulation.”  The Constitution may protect the arm, but the government can still have a historical argument to make. And sometimes, surprisingly, it wins. 

Myth #10:  Once Bruen was decided, virtually every firearm regulation became presumptively unconstitutional.

Reality:  No. Bruen created a historical-tradition test not a constitutional demolition derby.

Explanation:  The government may still regulate conduct covered by the Second Amendment if it can demonstrate that the regulation is consistent with the Nation's historical tradition.

Related Authority:  United States v. Rahimi, 602 U.S. 680 (2024).

What the Case Is About:  Rahimi possessed firearms while subject to a domestic-violence restraining order that included a finding that he posed a credible threat to another person's physical safety.

Holding:  The Supreme Court held that an individual found by a court to pose a credible threat to another's physical safety may be temporarily disarmed consistent with the Second Amendment.

Cheeky Reality Check:  Bruen did not say, “History shall be used only when the government loses.” History is the referee here, not the government's designated pinch hitter.

Myth #11:  The Second Amendment gives you an unrestricted right to manufacture your own firearm including a 3-D-printed “ghost gun.”

Reality:  The Second Amendment does not automatically exempt privately manufactured firearms from regulation.

Explanation:  The right to keep and bear arms does not necessarily mean that every method of acquiring or manufacturing an arm is constitutionally immune from regulation. Bruen requires courts to examine whether a challenged restriction fits the Second Amendment's text and the Nation's historical tradition. 

Thus, the fact that someone wants to make a firearm for personal self-defense does not, by itself, answer whether the government may regulate how that firearm is manufactured, serialized, or transferred. The constitutional question is whether the particular regulation impermissibly burdens the protected right—not simply whether the firearm was made by its owner.

Related Authority:  Defense Distributed v. Attorney General of New Jersey, No. 23-3058, 2026 WL 465147 (3d Cir. Feb. 12, 2026).

What the Case Is About:  Defense Distributed and the Second Amendment Foundation challenged New Jersey restrictions involving computer files used to manufacture 3-D-printed firearms. They argued, among other things, that the restrictions infringed a Second Amendment right to “self-manufacture firearms.” The district court dismissed the claim, and the plaintiffs appealed.

Holding:  The Third Circuit affirmed dismissal. It held that the plaintiffs had not alleged an actual Second Amendment injury because they did not allege that they (or their members) had actually attempted to 3-D print a firearm and been prevented from doing so. The court therefore did not decide that the Second Amendment categorically protects or does not protect self-manufacture of firearms.

Cheeky Reality Check:  The Second Amendment may protect your right to have an arm. But that doesn't necessarily mean the Constitution hands you a 3-D printer, a spool of polymer, and a constitutional permission slip.

Myth #12:  Anyone who has ever used marijuana is automatically outside the Second Amendment.

Reality:  Not necessarily. The government cannot automatically disarm a regular marijuana user solely on that basis without the historical justification the Second Amendment requires.

Explanation:  The Second Amendment does not permit the government to disarm an entire category of otherwise law-abiding people simply by labeling that category dangerous. When a person's conduct falls within the Amendment's protection, the government must show that the restriction is consistent with the Nation's historical tradition of firearm regulation. That does not mean drug users have an unlimited right to possess firearms.  

Restrictions involving addiction, current intoxication, or individualized evidence of dangerousness may raise different questions. The important point is that drug use alone does not automatically answer the Second Amendment question.

Related Authority:  United States v. Hemani, 608 U.S. 2 (2026).

What the Case Is About:  The government relied solely on Hemani's admitted marijuana use to prosecute him for possessing a firearm.

Holding:  The Court affirmed dismissal of the prosecution, while expressly leaving open questions involving addicts, people presently intoxicated, individualized proof of dangerousness, and other firearm restrictions.

Cheeky Reality Check:  The constitutional question is apparently more complicated than: “Pot? Gun? Prison.”  Imagine that. 

Myth #13:  Being between ages 18 and 20 automatically gives you an unrestricted Second Amendment right to purchase any firearm.

Reality:  The question is constitutionally contested, and at least one federal circuit currently upholds age-based purchase restrictions.

Explanation:  The Second Amendment does not contain a specific age at which the right to keep and bear arms begins, so age restrictions have to be evaluated under the constitutional framework established by Bruen. 

That means the government cannot simply declare that people under 21 are too young to exercise Second Amendment rights; it must demonstrate that the restriction is consistent with the Nation's historical tradition of firearm regulation.

Related Authority:  Nat'l Rifle Ass'n of Am. v. Bondi, 133 F.4th 1108 (11th Cir. 2025) (en banc), cert. denied, 2026 WL 1871313 (U.S. June 30, 2026).

What the Case Is About:  Florida prohibited persons under 21 from purchasing firearms.

Holding:  The en banc Eleventh Circuit upheld Florida's 21-year purchase age.  The court concluded that, historically, people under 21 were treated as minors who lacked the legal capacity to independently acquire property, including firearms.  

NRA v. Bondi noted that although 18-to-20-year-olds are adults for many purposes today, the Eleventh Circuit concluded that their constitutional rights concerning firearm purchases could still be treated differently from those of older adults because of the historical treatment of young adults and minors. 

Florida's law was therefore sufficiently analogous to that historical tradition under the Second Amendment's text-and-history framework.  The Supreme Court denied review on June 30, 2026, leaving the Eleventh Circuit's judgment in place.  

Cheeky Reality Check:  The Second Amendment may say “the people,” but courts are still arguing about exactly where adolescence ends and constitutional adulthood begins. 

Myth #14:  Once a government labels a location a “sensitive place,” the Second Amendment automatically disappears there.

Reality:  Sensitive-place restrictions can be constitutional but the government still has to stay within the historical tradition recognized by Bruen and Rahimi.

Explanation:  The Supreme Court has identified places such as schools and government buildings as traditional examples of sensitive places. But that doesn't mean a legislature can simply slap a “sensitive” sticker on half the state and declare the Second Amendment closed for business.

Related Authority:  Kipke v. Moore, 165 F.4th 194 (4th Cir. 2026).

What the Case Is About:  Maryland's SB 1 (the Gun Safety Act of 2023) designated numerous locations as places where firearms could not be carried, including private property open to the public and various public locations.

Holding:  The Fourth Circuit examined the challenged restrictions under Bruen and concluded that some restrictions could be historically justified while rejecting Maryland's broad presumptive prohibition on carrying firearms on private property open to the public without the owner's permission. The court's mandate was subsequently stayed while the parties sought Supreme Court review.

Cheeky Reality Check:  Calling someplace “sensitive” is a legal argument.  It isn't a magic word. 

Myth #15:  The government can regulate firearm acquisition, sales, and transfers however it wants because the Second Amendment protects only possession and carrying.

Reality:  Regulations governing acquisition can implicate the Second Amendment when they meaningfully constrain the ability to possess and bear arms.

Explanation:  Courts have distinguished between ordinary commercial regulations and regulations that effectively prevent ordinary citizens from acquiring firearms.

Related Authority:  Nguyen v. Bonta, 140 F.4th 1237 (9th Cir. 2025).

What the Case Is About:  California prohibited most people from purchasing more than one firearm within a 30-day period.

Holding:  The Ninth Circuit held that California's one-gun-a-month law facially violated the Second Amendment because the right to keep arms includes the ability to acquire firearms and the restriction was not supported by the Nation's historical tradition.

Cheeky Reality Check:  The government can't necessarily say, “Sure, you have the right to own one. We're just going to make buying another one practically impossible.”  At some point, “regulation” starts looking suspiciously like “denial.”

 

After Heller, McDonald, and Bruen, the Second Amendment is no longer the constitutional wallflower. The Supreme Court has made clear that the right to keep and bear arms is an individual right, that self-defense sits at its core, and that the right extends beyond the front door. 

Government may regulate firearms but it cannot simply declare a regulation reasonable and call it a day. Under Bruen, history gets a seat at the table.

Of course, the Second Amendment isn't a constitutional “Do Whatever You Want With a Gun” card. Rahimi makes that clear. 

The real question isn't whether a firearm regulation sounds sensible. Rather, it's whether the regulation is consistent with the text, history, and tradition that define the right. In other words: when it comes to the Second Amendment, the Constitution has receipts and the government better bring some of its own.