New Jersey's Restrictions on Public Gun Possession Are 'Plainly Unconstitutional,' a Federal Judge Says
The state defied a Supreme Court ruling by banning guns from myriad "sensitive places."
After the U.S. Supreme Court upheld the right to bear arms last June, New Jersey responded the same way New York did: by making it easier to obtain a carry permit but much harder to use it. "Although an individual seeking to carry a handgun for self-defense is no longer required to show a 'justifiable need,'" U.S. District Judge Renée Marie Bumb notes, "the State's expansive list of 'sensitive places' effectively prohibits the carrying of that handgun virtually everywhere in New Jersey." The message to gun owners, Bumb says, was pretty clear: "leave your Second Amendment rights and guns at home."
The preliminary injunction that Bumb issued yesterday, which follows a temporary restraining order that she granted in January, is the latest judicial rebuke of legislative attempts to defy the Supreme Court's June 23 ruling in New York State Rifle & Pistol Association v. Bruen while pretending to comply with it. New Jersey politicians, like their counterparts in New York, are discovering that federal judges are not inclined to approve that transparent end run.
"Clearly, the State disagrees with Bruen," Bumb writes in her 235-page opinion. "But it cannot disobey the Supreme Court by declaring most of New Jersey off limits for law-abiding citizens who have the constitutional right to armed self-defense."
Under Bruen, the government has the burden of demonstrating that a gun control law is "consistent with the Nation's historical tradition of firearm regulation," a test that is designed to protect the right to keep and bear arms as it was understood when the Second Amendment was ratified in 1791. Bumb repeatedly expresses dismay at New Jersey's failure to take that requirement seriously.
"Remarkably," she writes, "despite numerous opportunities afforded by this Court to hold evidentiary hearings involving the presentation of evidence, the State called no witnesses. And despite assurances by the State that it would present sufficient historical evidence as required by Bruen to support each aspect of the new legislation, the State failed to do so."
New Jersey's lawyers instead offered the same "social science studies" that state legislators cited when they enacted sweeping restrictions on public possession of firearms. Bumb deems that evidence "inapposite" because the state's regulations are "aimed primarily" not at "those who unlawfully possess firearms" but at "law-abiding, responsible citizens who satisfy detailed background and training requirements and whom the State seeks to prevent from carrying a firearm in public for self-defense."
New Jersey's failure to present evidence that would be relevant under Bruen "has
left the Court to do what the Legislature had said it had done, but clearly did not," Bumb writes. "The Court has conducted its own exhaustive research into this Nation's history and tradition of regulating firearms….This has taken some time, and the State's effort to hurry this Court along is most unfortunate."
In response to Bruen, New Jersey legislators eliminated the state's "justifiable need" requirement for carry permits. But they simultaneously decreed that permit holders may not carry handguns in 25 categories of "sensitive places," including parks, zoos, museums, entertainment venues, casinos, medical facilities, "transportation hubs," businesses that serve alcohol, and the sites of public gatherings that require a government permit. The law's broadest category is "private property," where guns are presumptively prohibited unless the owner explicitly says they are allowed by posting "clear and conspicuous signage" or otherwise giving "express consent."
While permit holders are allowed to transport firearms in private vehicles, they must be "unloaded and contained in a closed and securely fastened case, gunbox, or locked unloaded in the trunk of the vehicle." As Bumb notes and the state conceded, those requirements make it impossible for motorists to use handguns for self-defense, although "the need for self-defense" may be especially "acute" in that context "given the State's unfortunately large number of carjackings."
Violating these rules is a third-degree crime punishable by three to five years in prison. The new restrictions put gun owners who already had carry permits in a worse position than they were prior to Bruen. Residents who might be inclined to seek a permit, meanwhile, might reasonably wonder whether there is any real advantage to having one.
Is this situation consistent with the rights that the Second Amendment was supposed to protect? In answering that question, Bumb painstakingly considers each of the provisions that New Jersey gun owners challenged, looking for "historical analogues" that are "relevantly similar." She concludes that many of the restrictions that the state imposed after Bruen are not supported by historical evidence.
To support its default rule against guns on "private property," for example, New Jersey cited early anti-poaching laws that prohibited people from carrying weapons that might be used for hunting on "inclosed lands" or "plantations." Given their aim and limited application, Bumb concludes, these laws are not "relevantly similar" to the sweeping restriction that the state is defending. And while a few 19th-century laws did apply to certain privately owned indoor locations, she says, these examples do not carry much weight because they were enacted relatively late, do not reflect a "well-established" tradition, and are not representative of gun regulations at the time.
Bumb ultimately concludes that New Jersey's private-property rule is unconstitutional insofar as it applies to businesses open to the public. In response to the argument that the state is merely defending the prerogatives of property owners, she notes the longstanding principle that people have "an implied invitation" to enter locations that are "held open to the public." She says the state may not unilaterally revoke that invitation based on an individual's exercise of his Second Amendment rights, although business owners remain free to exclude permit holders carrying concealed handguns.
What about the rule that precludes permit holders from using guns for self-defense while traveling by car? That "prohibition on functional firearms in vehicles," Bumb notes, is similar to the Washington, D.C., regulation that the Supreme Court overturned in the landmark Second Amendment case District of Columbia v. Heller. In practice, the Court noted, the D.C. ordinance prevented people from using firearms for self-defense in the home by requiring that they be "rendered and kept inoperable."
The right to armed self-defense, the Court recognized in Bruen, extends beyond the home. Since New Jersey's rule regarding firearms in private vehicles "makes 'it impossible for citizens to use [their handguns] for the core lawful purpose of self-defense,'" Bumb says, "the law is unconstitutional."
Consistent with that conclusion, she adds, "early American history reveals that colonies protected carrying firearms on highways." Indeed, "the State's own historical materials confirm that colonial New Jersey protected carrying firearms on roadways." Bumb notes that New Jersey's 1771 anti-poaching law, which the state cites in defense of its restrictions, "explicitly protected carrying firearms on the highway," although "the State apparently overlooked that provision of the law."
Since motor vehicles did not exist when the Second Amendment was adopted, New Jersey argued, it is not reasonable to demand examples of laws from the 18th or 19th century that resemble its restrictions on guns in cars. "The State misses the mark, and perhaps conveniently so," Bumb writes. "Before the advent of cars, colonists traveled by horse and carriage in the 18th and 19th centuries. And by the mid- to late-19th century, Americans could travel by train. Yet, despite ample opportunity, the State has not presented this Court with well-established and representative firearm laws banning firearms on those transportation modes, which would be analogous laws."
Bumb proceeds in a similar manner with New Jersey's other location-specific gun restrictions. Among other things, she delves into the history of zoos, public parks, and hospitals in the United States, emphasizing the dearth of evidence that guns were prohibited in such locations.
In the end, Bumb decided to temporarily enjoin enforcement of the gun restrictions that New Jersey imposed on businesses open to the public, private vehicles, zoos, libraries, museums, parks and beaches, bars and restaurants, entertainment facilities, casinos, medical offices and ambulatory care facilities, the vicinity of public film sets, and "public gatherings, demonstrations, or events requiring a government permit." The injunction does not affect gun bans in various other locations, including playgrounds, airports, transportation hubs, and government buildings.
Although Bumb, for the time being, is allowing enforcement of the ban on guns in transportation hubs, she notes that the rule presents legally perilous puzzles for permit holders. "The Legislature failed to define 'transportation hubs,'" she writes. At oral argument, the state "asserted that transportation hubs 'are places where multiple modes of transportation intersect.'" That would include, for example, the Trenton Transit Center, which is on routes served by Amtrak, New Jersey Transit, and the Southeastern Pennsylvania Transportation Authority. According to the state, "individual 'stops' or 'stations' that do not connect to other modes of transportation are not transportation hubs."
Where does that distinction leave permit holders who want to carry guns for self-defense while using public transportation? "Using the State's definition, a Carry Permit holder can board a New Jersey Transit train, say at Bay Head train station—unconnected to other modes of transportation—and not violate [the law]," Bumb notes. "But if the Carry Permit holder rides the train, the moment the holder arrives at Newark Penn Station, he or she has potentially violated [the law]." A permit holder also would violate the law "when he or she departs at Newark Penn Station because that station, according to the State, is a transportation hub."
Recall that New Jersey treats such violations as serious crimes, punishable by up to five years in prison. "At bottom," Bumb says, "whether a Carry Permit holder violates [the law] depends on the train line he or she takes [on] a given day and the ultimate destination. Indeed, Carry Permit holders are at the whim of the railway." That quandary, she says, illustrates "the potential constitutional problems" with the state's rule.
The airport ban likewise creates a trap for unwary gun owners by criminalizing previously legal conduct. If a gun owner wants to check a handgun with his luggage, even in full compliance with federal regulations, he is committing a third-degree crime simply by bringing it into the airport. At oral argument, the state said a traveler nevertheless is allowed to check a gun at the airport "if that's all he's doing." Provided that traveler does not linger with his gun while, say, drinking coffee, eating a snack, or buying a newspaper in the area outside the security lines, the state's lawyer said, that would be "just a de minimis, if any, violation."
That is not what the law says, however. The law makes it a crime to "knowingly carry a firearm" at "an airport," full stop.
Bumb's solution at this stage is limited to the gun owners who challenged New Jersey's law. "Pending an evidentiary hearing, this Court will temporarily allow the Plaintiffs to check their firearms as checked luggage as allowed by federal law," she says. They must have their guns stored as required by federal regulations "before physically entering the airport" and "immediately proceed to the area that the TSA designated to check their firearms as luggage."
What about gun owners who drop off or pick up passengers at the airport? New Jersey's law exempts permit holders who are "traveling along a public right-of-way that touches or crosses" a "sensitive place." Given that exemption and "the State's representation at oral argument," Bumb says, "this Court finds that Plaintiffs may carry their handguns while transporting their relatives or friends to and from airports provided that the Plaintiffs do not physically enter the airport with their handguns."
Bumb also addresses New Jersey's new criteria for granting a carry permit. By and large, she says, those rules pass muster because they aim to "keep firearms out of the hands of those who could harm the public."
Among other things, the state disqualifies applicants who are "found to be lacking
the essential character of temperament necessary to be entrusted with a firearm." Although that standard seems pretty subjective, Bumb deems it consistent with the historical tradition of disarming "dangerous" individuals.
New Jersey's law also says a licensing official may demand, in addition to specified information, "such other information from the applicant or any other person,
including but not limited to publicly available statements posted or published online by the applicant," that the official "deems reasonably necessary to conduct the review of the application." That provision, Bumb notes, "appears broad and unlimited," lending credence to the plaintiffs' concern that it could have a chilling effect on freedom of speech. She therefore "construes that provision to limit the information the licensing authority may obtain to only those objective facts bearing on the applicant's dangerousness or risk of harm to the public."
By contrast, Bumb rejects the state's defense of its requirement that permit holders obtain liability insurance, saying it is unsupported by the historical evidence that Bruen requires. She also enjoined enforcement of New Jersey's requirement that people providing character references for an applicant submit to in-person interviews, which she deems "unduly burdensome."
Although Bumb thinks New Jersey's new rules for issuing carry permits generally are consistent with the Second Amendment, she is much more critical of its restrictions on how permits can be used. "What the Second Amendment prohibits the States from doing, and what the State of New Jersey has done here with much of [its law], is to 'prevent law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms,'" she writes, quoting Bruen. "That is plainly unconstitutional."