On June 26, the en banc panel of the U.S. Third Circuit Court of Appeals ordered parties in the combined Koons and Siegel cases to submit supplemental briefings in light of the Supreme Court’s recent decisions in Hemani and Wolford. The Koons and Siegel cases are challenges to New Jersey’s Bruen-response law that outlined some 25 specific so-called “sensitive locations.” Briefs were due on July 8 and they’ve all been filed. Along with the briefs came a letter from the attorneys representing “Defendants-Intervenors Appellees Senate President Nicholas P. Scutari and New Jersey General Assembly Speaker Craig J. Coughlin.” In their letter, attorneys Leon J. Sokol and Edward J. Kologi bent over backwards to explain why the former ruling should stand.
The organizational plaintiffs in the Siegel case are the Association of New Jersey Rifle and Pistol Clubs and the National Rifle Association. Filing alongside the Koons plaintiffs are the Second Amendment Foundation, Firearms Policy Coalition, Coalition of New Jersey Firearm Owners, and New Jersey Second Amendment Society.
When the opinion from a three-judge panel came last fall on the combined cases, the plaintiffs applied for an en banc review. Most of the stay the Third Circuit placed on a district court ruling was upheld in that opinion. It wasn’t a total loss, but the court ignored important jurisprudence from the original preliminary injunction.
On Feb. 11 the full en banc panel heard arguments. While it’s not known how the court will rule on the matter, it’s largely assumed that large portions of the last ruling will be overturned.
When these two lawsuits were filed, the New Jersey senate president and assembly speaker both requested to be parties to the case as intervenors. Their letter to the court is laden with weak arguments which may cause anyone familiar with the case to think Sokol and Kologi did not read the Hemani and Wolford opinions. Their letter does stipulate that they’re relying on Hemani and they do not address — strangely — Wolford at all.
“In contrast to the strained and attenuated ‘historical analogue’ inquiry in Hemani, the inquiry into the sensitive-place designations in this case is simple and straightforward,” the letter says. “For example, Plaintiffs here challenge the sensitive-place designation for permitted public gatherings, demonstrations and events. In upholding these designations, the panel below relied on six state statutes prohibiting firearms at certain social events.”
There are two very apparent and glaring issues with these arguments.
First, does “six state statutes” meet the burden of historical tradition? The answer to that is beyond likely, no. Regardless of those laws being in place at the time, they can be quickly written off as outliers. Six out of roughly 36 states at the time is not a part of our nation’s tradition.
Second, looking at the laws Sokol and Kologi cite, there’s another problem. The laws were all from the latter portion of the 1800s. 1869 was the earliest law they referenced. The Third Circuit twice held that the appropriate time to draw analogues from is 1791 — the time of our founding.
In the latter portion of their letter they reference Rahimi via Hemani, drawing a parallel between sensitive location restrictions and laws that deal with possession disqualifiers. They specifically note that “in Rahimi that a regulation must be ‘consistent with the principles that underpin our regulatory tradition,’ (citations omitted).” They continue saying that for a law “to be constitutional under Hemani and Rahimi, a modern regulation only needs to be consistent with the principles of our tradition, not identical to older regulations.”
In short, instead of going directly to the case that handled sensitive locations that the high court did rule on, they opted to ram a square peg into a round hole by referencing the marijuana and possession prohibition case. They conclude that “the government did not offer any historical analogues that allowed for the abridgement of the gun rights of a defendant who committed an act of domestic violence – notwithstanding that this would be the most specific historical analogue to justify the defendant’s loss of his Second Amendment rights.”
Approximately an hour after the en banc hearing, Leon Sokol was asked about how he thought the hearing went. Sokol said that he’s “keeping (his) fingers crossed” and stated that “we’re optimistic that the en banc panel will uphold the decision of the three-judge panel.”
Now that the supplemental briefs have been filed — the court was likely waiting on Wolford and Hemani before putting out an opinion — we can expect an opinion any day now. Will New Jerseyans have to wait nearly two years to hear back from the Third Circuit? Not likely. Pundits — myself included — speculate an opinion will be out before the end of the year, potentially before summer’s end.
Editor’s Note: The radical Left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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