The Volokh Conspiracy
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Preliminary Injunction Against NJ Ban on Peaceable Carry
Today the U.S. District Court for New Jersey issued a very thorough 230-page preliminary injunction against much of the New Jersey legislature's Bruen response bill. As in the years after Brown v. Board of Education, some state legislatures under the sway of anti-civil rights lobbies have engaged in massive resistance to Bruen.
A similar law in New York was preliminarily enjoined by several district courts, but the injunctions were stayed in a Second Circuit opinion that declined to provide any reasoning. Second Circuit oral argument was held in March.
Background: The consolidated New Jersey cases are Koons v. Platkin, no. 22-7474 and Siegel v. Platkin, no. 22-7463. Lead attorneys were David Jensen in Koons and Daniel Schmutter in Siegel. The Koons plaintiffs included the Second Amendment Foundation and the Firearms Policy Coalition, while the Siegel plaintiffs included the Association of New Jersey Rifle & Pistol Clubs.
The preliminary injunction was issued by Chief Judge Renee Marie Bumb, who was nominated by President George W. Bush and unanimously confirmed by the Senate in 2006. Previously, Judge Bumb served for 15 years as an Assistant United States Attorney. In January, Judge Bumb had issued a detailed Temporary Restraining Order. The PI decision comes after extensive briefing by the parties, and the New Jersey Attorney General brief shows the state of the art for massive resistance.
This post will address 1. The new carry licensing rules in New Jersey. 2. The new bans on licensed carry in many locations. 3. Some additional issues.
The opinion notes the New Jersey Attorney General's implicit contempt for its duty to justify infringements on civil rights:
Remarkably, 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.
The New Jersey legislature's contempt for the rule of law was obvious:
The legislative record reveals the Legislature paid little to no mind to Bruen and the law-abiding New Jerseyans' right to bear arms in public for self-defense. . . . When Assemblymen Brian Bergen asked the law's primary sponsor, Assemblymen Joseph Danielsen, if he had read Bruen, Danielsen responded "me reading the Court's decision is not part of the bill." . . . And when pressed by Bergen on whether the Founding Founders limited the Second Amendment to "town squares," "taverns," "public parks," and "beaches," Danielsen refused to answer the question, telling Bergen to "stay on the bill." . . . Throughout his questioning with Bergen, Danielsen evaded questions on the historical support for the new law. At another hearing, when Assemblywomen Victoria Flynn simply asked Danielsen where law-abiding citizens could conceal carry, Danielsen's response included such statements as: "reasonable persons exercising common sense would have an expectation that guns are not being brought in except by law enforcement . . . you are not going to mindlessly put a loaded firearm on your person and just leave the house."
. . .
This has left the Court to do what the Legislature had said it had done, but clearly did not. The Court has conducted its own exhaustive research into this Nation's history and tradition of regulating firearms that Bruen mandates.
. . .
[W]hat the State and the Legislature-Intervenors ignore, and what their empirical evidence fails to address, is that this legislation is 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.
Simply owning a firearm in New Jersey requires a lengthy and intensive background check. To acquire a firearm, an individual must have been issued a Firearms Identification Card, which requires a fingerprint background check and safety training. On top of that, every single handgun acquisition requires a separate permit to purchase. Permits are issued by local police departments. A FID card is valid until revoked, whereas a carry permit lasts only two years.
Carry license requirements
Rejection of applicants who pass the background check. An applicant may be denied if the issuing officer finds that the applicant "would pose a danger to self or others." The determination is subject to judicial review. The discretion was upheld based on the long historical tradition of disarming dangerous people. The court was skeptical of the notion that the Second Amendment applies only to persons whom the legislature deems to be "virtuous citizens," but even setting that ahistorical notion aside, the historical statutory precedents were more than sufficient to uphold the new statute. A vagueness challenge was also rejected.
Four endorsers. Carry permits and permits to purchase handguns must have four endorsers. Although the State failed to provide any precedents for the endorser requirement in general, the Court conducted its own research and found sufficient precedents in some historic laws requiring endorsements for arms possession by certain disfavored groups–namely slaves, religious minorities (occasionally), and disloyal persons in wartime.
In-person interview for endorsers. For carry permits, the applicants and the endorsers must be interviewed in person. The latter requirement was held to be unduly burdensome.
"Such other information." Under the new law, an applicant must provide "such other information" that the licensing officer requests. Plaintiffs alleged that the ominbus information requirements chills their free speech, but they failed to provide any specific examples, so the First Amendment request for a PI was denied.
The "such other information" requirement raises serious privacy concerns, such as if the issuing officer required urinalysis or medical records. Thus, the "such other information" is judicially limited "to only those objective facts bearing on the applicant's dangerousness or risk of harm to the public." As such, the requirement is consistent with Bruen's affirmation of the legality of background checks for "Shall Issue" carry permits.
Fees. Before the state legislature enacted the massive resistance law in 2022, the fees were $5 for a FID, $2 for a handgun purchase permit, and $50 for a carry permit. These were raised to $50, $25, and $200. The court was skeptical that these fees were "exorbitant" (which Bruen forbids), and noted that the Second Circuit had previously upheld New York City's $340 fee for handgun possession license applicants, based on proof that the amount actually did reflect the City's costs in processing and investigating applications. The court was annoyed that New Jersey had failed to present any evidence about the costs justifying the fees, but the court declined to issue a PI.
Insurance mandate. Carry applicants must prove that they have a $300,000 policy "insuring against loss resulting from liability imposed by law for bodily injury, death, and property damage sustained by any person arising out of the ownership, maintenance, operation or use of a firearm carried in public."
This law has no historical precedent. Nineteenth century surety of the peace statutes are inapposite. They merely required the posting of a bond for six months or a year if a person had been judicially found to be threatening to breach the peace.
Likewise inapposite are 19th century tort laws imposing strict liability on firearms users for injuries. These laws are not analogous to a blanket mandate for everyone who bears arms.
Bans on carry at particular places
Heller stated that some laws are "presumptively constitutional," including bans on carrying arms in "sensitive places such as schools and government buildings." The rule cannot be extended to cover all property owned by a government.
Public gatherings. The statute forbids carry "within 100 feet of a place for a public gathering, demonstration or event is held for which a government permit is required." Yet many colonial period laws required bringing arms to some or all public gatherings.
Some late 19th century state or territorial laws did forbid arms carrying at a few or most public gatherings. Some of these laws were upheld by state courts based on an (incorrect) militiacentric understanding of the Second Amendment. There are not enough of them to create a national tradition.
Traditionally, "sensitive places" are locations where certain core government functions take place, such as legislative chambers, courthouses, or polling places, and those places were traditionally protected by armed security provided by the government. Thus, the public gatherings ban is overbroad.
Zoos. Although a few zoos in the nineteenth century banned arms carry, many did not. The fact that children visit zoos does not turn zoos into sensitive places. The State's purported fear of poaching is "strained."
Parks, Beaches, Recreational Facilities, and Playgrounds. There is zero historical support for a ban at beaches. The playground ban was upheld, as in the TRO, as analogous to bans at schools. The history of carry bans in parks comes almost entirely from the late 19th century, and the one state law plus 25 municipal laws only covered 10% of the U.S. population and did not establish a representative tradition, especially considering their lateness.
Youth Sports Events. As in the TRO, upheld as analogous to schools.
Public Libraries and Museums. Void. The few late 19th century laws did not establish a representative tradition.
Bars and Restaurants Where Alcohol is Served. A late 19th century Oklahoma law against firearms anyplace that liquor is sold, plus an 1859 Connecticut law against selling alcohol near a military encampment do not establish a representative tradition. Laws against selling guns to intoxicated persons are not analogous. Of course private restaurant or tavern owners are free to ban carry if they choose.
Entertainment Facilities. The late 19th-century Tennessee, Texas, and Missouri laws plus the New Orleans law against firearms at public ballrooms do not establish a tradition.
Casinos. Gambling facilities are older than the United States. There is no historical precedent for a ban.
Airports. At oral argument, New Jersey said that people could carry handguns when dropping off or pickup of passengers, as long as they do not enter the airport building. The court enjoined enforcement against passengers checking firearms in baggage pursuant to TSA rules, as long as the firearm is in a TSA-compliant (locked case) before it enters the airport, and the passengers do not linger with the case before checking it in. Absent evidentiary hearing, the court declined to go further at this stage.
Transportation Hubs. In briefing, the State contended that a "transportation hub" is only something that is multi-modal, such as Newark Penn Station, where subway and train lines meet. A "hub" does not include a mere stop at a train-only station. Awaiting further factual development, the court declined to issue an injunction.
Health Care Facilities. Plaintiffs had demonstrated standing only for medical offices and ambulatory care facilities. There being no precedents to justify a ban, the ban was enjoined for these locations.
Public Film Locations. Analogized to entertainment facilities and, as such, enjoined for lack of historical precedent.
Vehicles. A carry permit holder may not have a functional firearm in her own automobile. Instead, the handgun must be unloaded and stored in a locked case or in the trunk. This is a huge infringement on the right to bear arms for self-defense and is contrary to colonial tradition of protecting arms carry while traveling. The 1876 Iowa law against shooting at trains is hardly analogous. Two 1871 municipal laws against carrying gunpowder in vehicles were fire safety measure addressing the volatile blackpowder of the time. There are not such risks for modern metal-cased ammunition.
Fish and Game Restrictions. No plaintiffs had standing for the carry ban at a "state game refuge," since no plaintiffs have declared an intent to visit such a place. One plaintiff wanted to carry a handgun for personal protection while hunting with a shotgun. The ban was upheld based on historic fish and game laws. The ban on having a functional firearm in the vehicle while driving to or from hunting is void for the same reason that the general ban in vehicles is void.
*Vampire rule for all private property. This is by far the most important restriction. It forbids licensed carriers from entering any private property unless the owner affirmatively grants permission for carrying. As applied to private property that is not held open to the public, the court held that this presumption does not implicate the Second Amendment or any other part of the Constitution.
Some private property, however, is traditionally open to the public without special conditions, absent express signage to the contrary. This includes retail establishments. "Here, the State, not private landowners, burdens carriers' lawful entry onto the property of another with a 'no-carry' default. The Default Rule is thus state action insofar as the State is construing the sound of silence."
The vampire rule is not supported by historic laws against hunting or trapping on someone else's enclosed land without permission. Three broader Reconstruction-era laws from Texas, Louisiana, and Oregon are insufficient to establish a tradition under Bruen.
Equal protection. Exempting judges and prosecutors from the location restrictions does not violate Equal Protection, because they are at higher risk of criminal attack and are more thoroughly vetted than ordinary citizens.
Unjustified display. The ban on unjustified display is saved by the State's concessions that a mens rea of "knowing" is required and that the ban does not apply to drawing a handgun for self-defense.
"all guns are bad." This was, in the court's view, the basic public interest argument of the legislative intervenors against a preliminary injunction. However, "the Intervenors' argument ignores the fundamental right of self-defense. Although the Intervenors cite to statistics involving gun violence, they do not cite to statistics involving law-abiding citizens with carry permits who used their firearms to save lives." Indeed, "despite ample opportunity for an evidentiary hearing, the State has failed to offer any evidence that law-abiding responsible citizens who carry firearms in public for self-defense are responsible for an increase in gun violence."
In sum, the New Jersey statute "went too far, becoming the kind of law that Founding Father Thomas Jefferson would have warned against since it 'disarm[s] only those who are not inclined or determined to commit crimes [and] worsen[s] the plight of
the assaulted, but improve[s] those of the assailants.'"