The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Second Amendment Roundup: Whatever Happened to Koons?
Third Circuit still hasn’t decided New Jersey’s years-old “sensitive places” appeal.
The ink wasn't even dry after the Supreme Court decided Bruen in 2022 when New Jersey and a handful of other disgruntled states rushed to counterattack by criminalizing the carrying of firearms by persons with permits in numerous public places. "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. Again, the law's primary sponsor declared that 'Because of Bruen, more New Jerseyans will die as result of gun violence.'"
Chief Judge Renée Marie Bumb in the consolidated cases of Koons & Siegel v. Platkin, decided on May 16, 2023 wrote an incredibly thorough 230-page opinion, applied Bruen's text and history approach, and found that much of the New Jersey law likely violated the Second Amendment. She issued a preliminary injunction against enforcement of those provisions.
The most egregious portions of the law made it a felony to enter private property open to the public unless a "gun owners welcome" sign was posted, or to carry a loaded handgun in a motor vehicle. Other banned places ran the gamut from bars and beaches to public gatherings and state parks.
Judge Bumb analyzed countless historical laws cited by the state and found that they were not appropriate historical analogues that would justify the current prohibitions. I'm proud to say that she repeatedly cited two of my books, The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? and The Founders' Second Amendment.
New Jersey filed an emergency motion for stay pending appeal, which the Third Circuit granted in part and denied in part on June 20, 2023. The injunction against the laundry list of specific "sensitive places" was stayed, while the injunction regarding private property open to the public and carry in vehicles was left in place. The clerk's office was "instructed to issue an expedited briefing schedule forthwith."
The Third Circuit then held oral argument promptly on October 25, 2023. For the two consolidated cases, the argument lasted two hours and forty minutes before Judge Cheryl Ann Krause, Judge David Porter, and Judge Cindy Chung. And that's where the trail ends. Almost two years have passed without a decision.
To be sure, the state submitted countless pages of historical laws into the record. But they are all either not analogues, because they do not concern the peaceable carrying of arms, or were enacted toward the end of the nineteenth century, too late to be relevant to the original public understanding of the Second Amendment. The judges and their clerks need not expend too much time reviewing them.
Justice Clarence Thomas has several times ended a dissent from denial of cert with words like the following, in this instance from Snope v. Brown: "I doubt we would sit idly by if lower courts were to so subvert our precedents involving any other constitutional right. Until we are vigilant in enforcing it, the right to bear arms will remain 'a second-class right.'" The same logic applies when lower courts unduly extend deciding constitutional claims.
Hopefully the Third Circuit will decide Koons in the near future.
