Second Amendment Challenge to N.J. Gun Range Closure


From the motion for a preliminary injunction in Ricci v. Murphy (D.N.J.) (filed yesterday by Dan Schmutter of Hartman & Winnicki and David H. Thompson, Peter A. Patterson, and Steven J. Lindsay of Cooper & Kirk), which challenges the inclusion of gun ranges in the New Jersey Governor's business closure order:

The right to self-defense is "the central component of the [Second Amendment] right," Heller, 554 U.S. at 599 (emphasis added), and it is "a basic right, recognized by many legal systems from ancient times to the present day," McDonald, 561 U.S. at 767. Indeed, the right to self-protection and self-preservation was viewed at the Founding as a natural right that predates government and is necessarily reserved to the people when government is established. See Heller, 554 U.S. at 593–94 (citing, e.g., 1 William Blackstone, Commentaries 136, 139–40 (1765)). The importance of the right to self-defense is shown in sharp relief in times of national emergency, such as the present pandemic, when ordinary social routines, practices, and safeguards begin to break down.

The COVID-19 outbreak, and our society's response, have upended social life as we know it, calling into question basic governmental functions and protections that are ordinarily taken for granted. Across the country, for example, police departments have been forced to "make[] major operational changes in preparation for the continued spread of coronavirus, as they face potential strains in resources and staffing without precedent in modern American history." Alexander Mallin & Luke Barr, Police Implement Sweeping Policy Changes To Prepare for Coronavirus Spread, ABC News (Mar. 18, 2020), (attached to Schmutter Decl. as Exhibit 14).

Those measures include reducing police response to certain types of crimes and announcements that certain criminal laws will simply not be enforced at the present time. Id. Hundreds of police officers in New Jersey have already been infected by COVID-19, and thousands more have been forced to quarantine. See Alex Napoliello, 645 N.J. Cops Have Tested Positive for Coronavirus, Another 2,300 in Self-Isolation, (Apr. 13, 2020), (attached to Schmutter Decl. as Exhibit 15). Indeed, many States—including New Jersey, as well as California, New York, Ohio, and Texas—have taken the extraordinary and unprecedented step of releasing thousands of inmates into the public, due to the coronavirus outbreak. Lucas Manfredi, Jails Release Thousands of Inmates To Curb Coronavirus Spread, Fox Business (Mar. 22, 2020), (attached to Schmutter Decl. as Exhibit 16); Tracey Tully, 1,000 Inmates Will Be Released From N.J. Jails to Curb Coronavirus Risk, N.Y. Times (Mar. 23, 2020), (attached to Schmutter Decl. as Exhibit 17).

The importance of safeguarding "the natural right of resistance and self-preservation," Heller, 554 U.S. at 594, has never been higher than during this extraordinary moment of social upheaval and unprecedented strain on government resources. Hundreds of thousands of Americans across the Nation have come to the same conclusion: "Gun sales are surging in many U.S. states, especially in those hit hardest by the coronavirus—California, New York and Washington," Kurtis Lee & Anita Chabria, As the Coronavirus Pandemic Grows, Gun Sales Are Surging in Many States, L.A. Times (Mar. 16, 2020), (attached to Schmutter Decl. as Exhibit 18), with dealers reporting "an unusually high proportion of sales … to first-time gun buyers," Richard A. Oppel, Jr., For Some Buyers With Virus Fears, the Priority Isn't Toilet Paper. It's Guns., N.Y. Times (Mar. 16, 2020), (attached to Schmutter Decl. as Exhibit 19)….

And indeed, these are exactly the circumstances that confront Plaintiff Ricci, who acquired her handgun only in March 2020, shortly after COVID-19 began its spread across the United States. Ricci Decl. ¶ 7. She has no prior experience with firearms of any kind but believes that the current emergency necessitates that she keep a handgun in her home for self-defense. Id. ¶¶ 6, 10. But merely possessing a handgun in the home is not the same as actually being able to use it with any level of effectiveness.

As Americans across the country are demonstrating, the basic, fundamental right of armed self-defense has never been more important than it is today. And as many Americans—including Plaintiff Ricci—are purchasing firearms for the first time in their adult lives, the need for firearm training has perhaps never been more acute. EO 107's mandated closure of all shooting ranges in the State thus unquestionably burdens conduct protected by the Second Amendment….

There's a lot more argument in the brief, of course; you can read it here.

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  1. If someone wants to argue that it is a RIGHT to have weapons training to be, “able to use it with any level of effectiveness,” then can’t I argue that it is my RIGHT that all weapon users be REQUIRED to have weapons training to be, “able to use it with any level of effectiveness?”

    You know. . . because of MY natural right of self-preservation?

    1. No.

      Next question?

    2. No, not really. Because he’s citing an actual explicit constitutional right, and all you’ve got is a claim that, frankly, doesn’t hold water, because almost everybody who doesn’t get that training never shoots anyone.

      But, compromise: Include weapons training in HS, just like drivers training used to be.

      1. We had archery in my high school. Bet they don’t have that anymore.

        1. They’ve got that in the schools around here. No rifle club, though, so far as I know.

    3. That would be like requiring all “reporters” to be trained in factual reporting using named, reliable, verifiable sources.

      1. That’s a really interesting analogy. I think your rule about journalist training would certainly fail on a First Amendment challenge. Yet I am unable to come up with a meaningful distinction between that hypothetical rule and all the other silly professional licensing requirements that have (so far) been upheld.

    4. The “right of self-preservation” is what gives you the right to arm yourself! Exercise that right. As we have seen even when the police are called to many times the police cannot get there in time to help only to determine who did the crime and possibly arresting the criminal at a later date but that does NOT help you in that time of trouble which you needed call the police. Now even if a person is armed and someone is breaking in your house call the police but if necessary you can defend yourself and yours before the police get there.

    5. Your right confers an obligation on nobody.

  2. . . . Indeed, the right to self-protection and self-preservation was viewed at the Founding as a natural right that predates government and is necessarily reserved to the people when government is established. . . .
    Only governments that fear revolution tries to outlaw weapons in the hands of its citizens.

  3. Don’t be silly.
    Just because something is on that worn out old useless piece of parchment does not make it “essential”.
    Only your rulers are capable of complex decisions that deem rights as “non-essential”, and lottery tickets as “essential”.

  4. Don’t worry the government will protect you. just stay in your house and everything will be fine. The big bad wolf will go away sometime…maybe…

  5. Perhaps they could compromise and keep only half of it open — either the shooter half or the target half.

    Mr. D.

    1. Keep the shooters and targets at least 6 feet apart.

  6. If you have a loony, paranoid client you’re not required to make loony, paranoid arguments.

  7. I’ll leave the constitutional argument aside, but ranges have to be one of the safest places from a covid point of view.

    Any modern indoor range has gonzo airflow going from the shooters towards the target (for lead abatement reasons), and then through HEPA filters. Most of them have so much flow it’s practically ruffling your hair. With the other sanitation practices that other businesses use, they will be among the safest places around.

    And outdoor ranges have the benefit of being … outdoors, with the inherent advantages that gives, and tend to be (or could be mandated to be) low density affairs.

    As the brief points out for tennis courts, shooting, unlike ball sports, doesn’t involve communal handling of balls or other game equipment.

    1. I was wondering why lead dust abatement wouldn’t also abate viri.

  8. If (when) NJ falls into social collapse, it wouldn’t be “fair” to unarmed people if gun owners were trained.

    And idiot governor, no wait, I was right the first time that beavertoothed idiot Phil Murphy is all about “fair”.

    1. Phailing Phil is a phuckup.

    2. I can’t wait for the blue states to start having riots, and I can’t wait for the ethnics to start burning down the houses of rich white liberals, especially in places like Short Hills and Scarsdale.

        1. (Boo, Reason comment forms don’t understand presumably UTF-8 U+1F62C GRIMACING FACE.)

  9. Why stop at gun ranges, why not include gyms – being fit enough to handle a weapon also helps to make self-defense more effective. Oh, and nutrition also helps, vit. e for eyesight and whatnot (yes I know that’s a myth) so no closure of restaurants.

    School closures are a violation of the 1. Amendment, because fluency in reading and writing enables effective exercise of free speech rights? Closing of law schools is a violation of the 6th, as studying law would allow me to more effectively enforce my fair trial rights?

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