In —KOONS v. PLATKIN, No. 1:22-cv-07464 (D.N.J.) the District Judge issued multiple TROs blocking New Jersey’s Chapter 131 Bruen response bill. She then consolidated the case with Siegel and on May 16, 2023, the court issued a preliminary injunction, blocking parts of Chapter 131. The same day, the District Court issued the preliminary injunction, the state filed for an emergency stay with the 3rd Cir. Court of Appeals. See —Ronald Koons v. Attorney General New Jersey, No. 23-1900 (3d Cir.).
At the end of May, the Siegel plaintiffs (good guys) filed a response with the Circuit Court, explaining why the state should not get a stay. The Third Circuit Court has issued notice that they will be hearing the case on an accelerated basis, but has not (yet?) issued a stay pending appeal.
The gist of the response to the state is that the state didn’t do the appeal correctly and that the state won’t succeed on the merits.
What is the state doing?
New Jersey’s most ambitious argument is that, when the state prohibits the carrying of firearms for self-defense on government property or private property that is held open to the public, those restrictions “fall outside the Second Amendment altogether.” …
—id. at 11
and
Unable to explain why government and private property are not presumptively within the scope of the Second Amendment, New Jersey retreats to a less ambitious argument. Relying on research conducted by its preferred historians—such as Patrick Charles, see Mot.7 (citing Dkt.91 at 28, which cites Charles), whose work is a favorite of Supreme Court dissents, see Bruen, 142 S.Ct. at 2180-98 (Breyer, J., dissenting); McDonald, 561 U.S. at 914 (Breyer, J., dissenting); cf. Rogers v. Grewal, 140 S.Ct. 1865, 1870 n.3 (2020) (Thomas, J., dissenting from denial of certiorari) (noting that scholars had “repudiated” Charles’ analysis), and who recently derided Bruen as creating a “fugazi Second Amendment” that is “historically ruined and fake,” Patrick J. Charles, The Fugazi Second Amendment: Bruen’s Text, History, and Tradition Problem and How to Fix It, 71 Clev. St. L. Rev. 623, 627 (2023)—the state insists that it “amply met its burden to identify historical predecessors for each sensitive place.” Mot.6. The state is exceedingly unlikely to demonstrate that the district court erred in concluding otherwise.
—#23 in Ronald Koons v. Attorney General New Jersey (3rd Cir., 23-1900), No. 23-1900, slip op. at 14
In reading this response, I was struck with how they slammed Patrick J. Charles. And as that is a name that keeps coming up in these cases, I decided to look into his work.
Who is Patrick J. Charles
Patrick J. Charles is the author of numerous articles and books on the Constitution, legal history, and the use of history-in-law as a jurisprudential tool. Charles received his L.L.M. in Legal Theory and History from Queen Mary University of London with distinction, J.D. from Cleveland State University College of Law, and his B.A. in History and International Affairs from George Washington University. Charles currently serves as the Research Division supervisor for the Air Force Historical Research Agency (“AFHRA”). The contents of this Article are solely the author’s and not those of the United States Air Force, AFHRA, or the Department of Defense. The author would like to thank Joseph Blocher and Pratheepan Gulasekaram for providing comments and feedback.
—Patrick J. Charles, The Fugazi Second Amendment: Bruen’s Text, History, and Tradition Problem and How to Fix It, No. 4222490, 623 (May 2023)
I note that he is not a lawyer, though he does have his Juris Doctor or Doctor of Jurisprudence. This means he has more degrees than I do, but he hasn’t passed the bar examination. His LinkedIn profile doesn’t mention that he is a lawyer. The above is nearly the same as his about page on LinkedIn.
He admits that his works have been cited multiple times at the Supreme Court as well as at the Circuit Court level. What he doesn’t say is that those citations are either negative or they are cited in the dissenting opinion. (Not verified)
He is proud that he submitted an Amicus Curiae in the Bruen case. Let’s take a look at parts of that brief.
This amicus curiae brief is submitted by historian Patrick J. Charles to inform the Court on the history of laws governing the carrying of concealed and dangerous weapons from the advent of discretionary licensing laws in the mid-to-late nineteenth century through the late twentieth century, while also pointing out some of the potential pitfalls of relying on the historical record in interpreting the Second Amendment.
Amicus curiae is the author of three books and more than twenty articles on the history of the Second Amendment, firearms and weapons laws, and the use of history as a jurisprudential tool. Amicus curiae’s scholarship has been cited and relied upon by six Circuit Courts of Appeals and by this Court in McDonald v. City of Chicago, 561 U.S. 742 (2010).
—Patrick J. Charles, Brief for NYSR&PA v. Bruen as Amicus Curiae in Support of Neither Party, Amicus Curiae Nos. 20–843, at 1 (2021)
In New York State Rifle & Pistol Association v. Bruen, by a vote of 6-3.1 the Supreme Court held that the “Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home,” and any state or local laws that condition the “issuance of a license to carry on a citizen’s showing of … special need” are thereby unconstitutional.2 The decision is remarkable in several respects. For one, Bruen upended a regulatory regime that has existed since the mid-to-late nineteenth century—a regime that was instituted and sustained by lawmakers to preserve the Second Amendment, not violate it.3 What is also remarkable about Bruen is the manner historical evidence was marshalled, selected, and analyzed.4 Rather than examine all the historical evidence objectively and at face value, Bruen made it quite clear that “not all history is created equal,”5 and therefore conveniently cherry-picked whatever historical evidence supported broad carry rights and rejected or explained away any evidence that did not.6
—Charles, supra, at 624
That’s pretty impressive research there. He has 6 footnotes in his first introductory paragraph. I don’t even come close to that sort of footnoting or citations. His citations are pretty, though.
Let’s see what he cited to:
He cited to the Bruen decision to get that it was a 6-3 decision. That was not needed. The real reason for the citation was to allow him to tell us that it was that damn conservative super-majority.
This is a reasonable citation. He is quoting from Bruen
See PATRICK J. CHARLES, ARMED IN AMERICA : A HISTORY OF GUN RIGHTS FROM COLONIAL MILITIAS TO CONCEALED CARRY 158–63, 191–92 (2018); Patrick J. Charles, The Faces of the Second Amendment Outside the Home, Take Two: How We Got Here and Why It Matters, 64 CLEV. ST. L. REV. 373, 418–29 (2016). Wow. Isn’t that special. He is quoting himself in saying that a regime that was instituted and sustained by lawmakers to preserve the Second Amendment, not violate it. I just can’t.
This is a pseudo citation. He says he got this from Bruen. In reality, he is giving us his analysis of what he read out of Bruen‘s methodology.
Good cite because he was quoting Bruen
Id.; see also Jake Charles, Bruen, Analogies, and the Quest for Goldilocks History, DUKE SECOND THOUGHTS BLOG (June 28, 2022), https://firearmslaw.duke.edu/2022/06/bruen-analogies-and-the-quest-for-goldilocks-history/; Saul Cornell, Cherry-Picked History and Ideology-Driven Outcomes: Bruen’s Originalist Distortions, SCOTUSBLOG (June 27, 2022), https://www.scotusblog.com/2022/06/cherry-picked-history-and-ideology-driven-outcomes-bruens-originalist-distortions/. Here he picks up two more “experts”. Saul Cornell is one of those names that pops up often supporting 2A infringements. I think Jake Charles has as well, but I’m less sure.
The more interesting that this has that circle jerk feeling. During the Trump presidency, it wasn’t uncommon for a story to break in one media outlet. They would claim that a well – trusted source had provided them with the information. Within the hour, multiple other media outlets would start publishing the same story. And they would all claim to have “independently verified” with their own sources.
Except, that when you actually looked, all those “independent sources” turned out to be sourcing back to the same person or was the same person. “Wow, Billy, you say you know for a fact that Trump was sectury ranotot bowishadve.”. “So Mrs. C, can you verify that Trump was sectury ranotot bowishadve? Yes, I have it from a very reliable friend.” “Hey Mr O, we heard that Trump was sectury ranotot bowishadve. Can you confirm that story? Well, yes. I heard that as well.”
The question is, how many sources were actually involved in that set of confirmations?
It appears the same thing is happening in these “independent” articles. They cite back to each other in a wonderful circle jerk. All designed to make their papers look more credible.
Where Bruen severely falters, however, is in its use and application of history. It is difficult to say what history-based jurisprudential methodology Bruen employs. On its face, Bruen appears to be grounded in public meaning originalism. 13 Yet at several points the Bruen majority picks and chooses historical evidence on little more than a whim.14 Yet no matter how Bruen is methodologically classified—whether it be originalist or some other history-based form of constitutional interpretation—the fact of the matter is that the 6-3 majority’s historical approach is neither objective nor holistic.15 To be blunt, Bruen fails to adhere to even basic academic standards. 16 The length in which the Court margin walks history and then claim that virtually all the relevant evidence points in one direction is particularly worrisome.17 In this author’s opinion, it proves once and for all that history is not so much a constitutional guardrail as it is a jurisprudential pawn in the larger ideological debate over the Constitution’s meaning. 18 Equally concerning are the interpretative historical rules laid down in Bruen, for they appear to stack the constitutional deck against firearms regulations moving forward.19 Even worse, these interpretative rules blatantly set aside even the appearance of historical accuracy, objectivity, and transparency, and therefore, if adopted by the lower courts wholesale, will assuredly undermine the legitimacy of Second Amendment jurisprudence moving forward. 20 The way this author sees it, Bruen has created a new, fugazi Second Amendment.21 And by fugazi, what is meant is that the Second Amendment, at least as articulated by Bruen, is historically ruined and fake.
—id. at 625,626,627
I’ve left in the citation footnote numbers. You can see that he likes his footnotes. This makes it very difficult to tell when he is speaking as himself, when he is referencing himself, when he is quoting somebody quoting him, when he is referencing somebody agreeing with him, or when he is actually referencing something outside the circle that is supportive of his argument.
I can see why the plaintiffs (good guys) brought up Patrick’s screed. He takes so many nasty pot shots at the justices that it is painful to read.
I’ll leave you with this final quote:
More than a decade ago, in an article for the Fordham Urban Law Journal on the Supreme Court’s opinion in McDonald v. City of Chicago, this author explained how the Second Amendment was facing a historiographical crisis of sorts.22 The article detailed how the broad, gun-rights centric interpretation of the Second Amendment first came to historical prominence, subsequently latched itself onto our public, political, and legal discourse, and then continued to thrive in law reviews despite many highly respected historians having shown it to be an academic embarrassment. 23 In doing so, the article posited the following questions to the Supreme Court and wider federal judiciary: “Which end of the historical spectrum is to guide future [Second Amendment] opinions [following McDonald]? Does the evidence have to gain the support of the historical community? Does it have to be clear and convincing, or does it merely have to be circumstantial and plausible through hypothetical word association?”24 Ultimately, the article contended that if the federal courts were serious about the legitimacy of Second Amendment jurisprudence moving forward, as well as the legitimacy of other history-based jurisprudence, it was crucial that historical consciousness be maintained. 25 And by historical consciousness, what was meant was that federal courts needed to first understand the Second Amendment’s “historical origins and sins before importing the past for use in the present.”26 In other words, “the past must be understood by its own terms and on the face of the record, not what can be inferred or created.”27 And to be clear, the article noted that “historical consciousness” is not the same as using one’s “historical imagination.”28 The former—historical consciousness—is presumed jurisprudentially legitimate because it is based on “total historical context, a substantiated evidentiary foundation, and being true as to what the historical record provides.” 29 Conversely, the latter—historical imagination—is primarily “theoretical,” and therefore “can be dangerous in terms of building a historically objective foundation” from which to jurisprudentially reason.30
—id. at 627,628
In other words, you can’t leave legal history to judges, who train to do just that sort of historical investigation, you need to leave it to the subject-matter experts, like Patrick.
3 thoughts on “To be blunt, Bruen fails to adhere to even basic academic standards – P.J.C.”
That’s fairly standard in anti-gun ‘research’. They make crap up, cite it as fact, then reference back to themselves repeatedly. Kind of like a money laundering scheme where they make the paper trail so obscure, it’s nearly impossible to find the original.
Well, that’s special.
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I’m glad the good guys are starting to call out consistently bad actors by name. If nothing else it gives the court a heads-up on who they’re dealing with and what to expect when they see the name.
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I wonder how much he gets paid for doing this. Or is it all pro-bono? In either case I’d like to see the paperwork he filed as a (presumably) government employee, regarding potential conflicts of interest with outside activities. None of this, for instance, should be done during his regular work hours, pro-bono or not.
That’s fairly standard in anti-gun ‘research’. They make crap up, cite it as fact, then reference back to themselves repeatedly. Kind of like a money laundering scheme where they make the paper trail so obscure, it’s nearly impossible to find the original.
I think of this as the Mobius strip argument. It goes on and on, and while they might try to give a different impression it has only one side.
Well, that’s special.
.
I’m glad the good guys are starting to call out consistently bad actors by name. If nothing else it gives the court a heads-up on who they’re dealing with and what to expect when they see the name.
.
I wonder how much he gets paid for doing this. Or is it all pro-bono? In either case I’d like to see the paperwork he filed as a (presumably) government employee, regarding potential conflicts of interest with outside activities. None of this, for instance, should be done during his regular work hours, pro-bono or not.