Almost two years after it heard oral arguments in a challenge to New Jersey’s post-Bruen carry laws, a three-judge panel on the Third Circuit Court of Appeals finally released its opinion on Tuesday; delivering a split verdict that struck down portions of the statutes while leaving others intact.
The wins for the plaintiffs in Koons and Seigel are substantial. The panel ruled that the state’s ban on carrying in private vehicles and private property unless specifically allowed to do so (the so-called “vampire rule”) likely violate the Second Amendment, as does the state’s requirement that concealed carry holders obtain a liability insurance policy. The panel also concluded that charging concealed carry licensees $50, with the funds going to the Victims of Crime Compensation Office also likely violates the Second Amendment rights of New Jersey residents.
The panel did uphold most of the “sensitive places” challenged in the lawsuits as well as other aspects of the licensing regime, with some deemed constitutionally compliant and others left unchallenged because the panel found mootness or a lack of standing. That includes the state’s requirement that applicants provide character references from four “reputable persons”, which the panel declared is “simply a modern-day analogue” to laws that “limited the ownership and use of guns to those who were not considered dangerous by their communities.”
The panel did offer a caveat, though.
…should it come to pass that the four-reputable-persons provision results in a discriminatory licensure regime, an appropriate plaintiff would be well within her rights to bring an as-applied challenge to the law. But we will not invalidate the provision based on facts not presented in this case. As it exists, New Jersey’s permitting requirement is a neutral, generally applicable law designed to ensure that firearms end up only with those whom their communities deem to be safe to carry them.
The panel also used some specious reasoning to uphold some of the state’s many “sensitive places”. In declaring the state’s ban on concealed carry within 100 yards of a public gathering where a government permit is necessary, the panel pointed to seven laws adopted by states after the Civil War, even though the Supreme Court has rejected a handful of laws as evidence of a national tradition of gun ownership.
Elsewhere, the panel used a “flexible approach” to uphold carry bans in public parks, beaches, zoos, and other facilities under the dubious theory that since those facilities didn’t really come into existence until long after the Second Amendment was ratified, it’s okay to look for historical analogies that aren’t directly applicable.
Sections 2C:58-4.6(a)(9)–(11) seek to maintain peace and curb disturbances posed by firearms at New Jersey’s public parks, beaches, zoos, and recreation facilities, with an additional, more specific goal of protecting the children who frequent these locations. These legislative goals find support in the historic principle, established through several analogous historical laws, which forbade guns from centers of community life, such as fairs and markets, to ensure visitors could participate without the risks and anxieties associated with deadly weapons. Further support can be found in the later application of this historic principle to new contexts such as recreational areas and places of amusements, particularly in natural settings. Throughout the second half of the nineteenth century, parks and the recreation facilities within them—including zoos—banned firearms. Indeed, the emergence of the modern park brought with it virtually instantaneous prohibition of firearms in those spaces.
The historical laws that banned guns from places like fairs and markets weren’t outright prohibitions. They prohibited carrying firearms with the “intent to cause terror”, which the majority of the panel simply ignored. As for the majority’s contention that laws adopted in the latter half of the 19th century suffice to show a national tradition of banning guns in these places, Judge David J. Porter noted in his dissent that “the ‘why’ of these ordinances reflects the social rigor of the era, not particular sensitivity to firearms.”
New York also banned playing on the park wall and talking to park workers. Chicago banned swimming and fishing, posting advertisements, and playing music. Two cities banned all athletic games, such as baseball and croquet, without government permission. And Peoria banned fortune-telling. Those relatively picayune regulations posed no constitutional problem because, unlike a public-carry ban, they did not implicate a fundamental right. But they had no more connection to Founding-era regulations than did firearm prohibitions in the same ordinances.
Porter’s dissent is worth reading in its entirety, and I’ll have a separate post later today focusing on what he had today.
In a press release, New Jersey Attorney General Matthew Platkin said he was “thrilled” that most of the state’s gun-free zones were upheld, while completely ignoring the portions of the opinion that were favorable to the plaintiffs.
So what’s next? Well, either party could seek an en banc review by the entirety of the Third Circuit or appeal directly to the Supreme Court. Either way, Platkin shouldn’t be celebrating prematurely, because there’s a very good chance that some of the Garden State’s “gun-free zones” are still going to be found unconstitutional by the highest court in the land.
Editor’s Note: Radical leftist judges are doing everything they can to hamstring our Second Amendment rights.
Help us hold these judges accountable for their unconstitutional rulings. Join Bearing Arms VIP and use promo code FIGHT to get 60% off your membership.
Read the full article here
