B.L.U.F. More on District Judge Renee Marie Bumb’s opinion on NJ’s Bruen spasm legislation, Chapter 131. The case is currently being appealed to the Third Circuit court as Ronald Koons v. Attorney General New Jersey, 23-1900, (3rd Cir.)

Her Historical Analysis

The first 50 pages or so of the opinion covered Judge Bumb’s analysis of the text, history and tradition of gun control regulations. When all was said, she found that regulations from as early as the 1328 and as late as the 1890s all support a history and tradition of disarming dangerous people.

She doesn’t cover the Statute of Northampton, from 1328. Different people read it in different ways in regard to how it limits the ownership of arms. She really digs in with regulations dating from 1860.

What most of these regulations have in common is that they set the punishment for the common-law offense” of going armed to terrify the peopleKOONS v. PLATKIN, No. 1:22-cv-07464, Doc. 124 (D.N.J.).

Those that were not about going armed to terrify the people were about disarming disfavored groups. Slaves, Negros, Indians, Catholics, and people that were unhappy with the Government or unhappy with the people unhappy with the government were all groups that regulations disarmed.

While Bruen specifically mentions “regulations” in the context of historical analogies, Judge Bumb extends that to include discussions about regulations.

Consider a debate in the legislature regarding the adoption of the new Constitution. It is clear that they want some changes, amendments, to the Constitution. There are three different versions presented:

  1. The right to keep and bear arms shall NOT be infringed!
  2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
  3. The right of the people loyal to the state to keep and bear arms shall not be infringed.

All three of those codify the right to keep and bear arms. The first group pushes hard. They argue that the simple command should be more than enough to protect the right. The second group pushes back. They argue that by explaining the reason why it is so important to protect the right to keep and bear arms, they make the protections stronger.

The third group is concerned about the federal government usurping the citizen militia. They fear that citizens of the state will be tempted by the federal government to take up arms against the states. The wish to have the power to disarm those that are openly agitating against the state government, in favor of the federal government.

After much heated debate, the third version is off the table. The delegates fell that giving the government any say in who keeps and bears arms to be too dangerous. Some more debate and the second version wins.

At this point, we see that The People, via their representatives, have done a means-end or interest balancing tests and determined which version they want.

Judge Bumb feels that the third group’s arguments should be given as much weight in the discussion of the tradition of firearm regulation as the actual regulation adopted. I feel it is the opposite. The fact that they were tested and found wanting means that it was a loosing argument then and is still a loosing argument today.

Her use of surety laws is just as weak.

The Second Amendment only applies to the “Virtuous Citizen”

When Judge Bumb issued her order, she enjoined most of the “sensitive places” parts of Chapter 131. What she didn’t do was enjoin any of the functional parts of the requirements to get a carry permit.

When she examined the history and tradition of arms regulation, she found that there was a tradition of disarming dangerous and potentially dangerous people. The word sometimes used was “unvirtuous”. I disagree with this finding.

Except for the regulations that would not withstand constitutional muster, the laws she found analogous were about making it a crime to perform an action. Chapter 131 disarms people that the state believes might be dangerous. Or “unvirtuous”.

When I say “would not withstand constitutional muster”, I am referring to the historical regulations that would disarm disliked groups. These included slaves, Negros, Catholics, and others that the government was fearful of. In today’s world, that would be anybody who doesn’t kowtow to the government. No law which targets a group, such as this, would be found Constitutional today.

Other District Courts have found such blatantly unconstitutional laws are not useful in analyzing the history and tradition of arms regulation.

Once the court determines that history and tradition supports keeping arms from unvirtuous people, then the court analyzes Chapter 131 in that light.

This Court, however, need not decide whether the “unvirtuous citizen” justification supports Chapter 131’s statutory disqualifiers. When a plaintiff brings a facial challenge to a statute, like the Siegel Plaintiffs have done here, the plaintiff must show “that no set of circumstances exists under which the [law] would be valid.” Mazo v. N.J. Sec’y of State, 54 F.4th 124, 134 (3d Cir. 2022) (alteration in original) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). As noted above, Chapter 131’s statutory disqualifiers are constitutional under the Second Amendment when viewed through the lens of this Nation’s historical tradition of disarming dangerous individuals or those who endanger the public. See supra Section IV.D.1. In any event, the dangerous tradition is likely subsumed in the “unvirtuous citizen” theory. Indeed, at least one Court of Appeals has tied the concept of “virtuousness” to non-dangerousness. See United States v. Rene E., 583 F.3d 8, 16 (1st Cir. 2009) (“To be sure, there is an ongoing debate among historians about the extent to which the right to bear arms in the founding period turned on concerns about the possessor’s “virtue,” i.e., on a legislative judgment that possession of firearms by a certain class of individuals would pose a serious danger to the public.”).

With this, the court justifies leaving the Chapter 131 Statutory Disqualifiers in place. It is all based on a poor opinion regarding the history and tradition of arms regulations.

In their brief supporting their motion for a TRO, the plaintiffs (good guys), argue that the disqualifiers are too vague. They suggest that the licensing authority will make subjective decisions regarding permitting approval.

Unfortunately, for the plaintiffs, the courts employ a standard that there is a strong presumption that lawfully enacted statutes are valid.Id. at 57, quoting Amaya v. New Jersey, 766 F. Supp. 2d 533, 538 (D.N.J. 2011). Amaya was in turn quoting I.N.S. v. Chadha, a US Supreme Court opinion. What this boils down to, is that at this stage of the process, the court is unlikely to grant a TRO or a preliminary injunction. This does not mean the court won’t grant an injunction at the end of the case.

Part of the issue is that there is a concept in common law of the “ordinary person of ordinary intelligence.” This theoretical person is who the courts use to determine if a law is vague, or if you should have understood what was required or forbidden by statute.

Unfortunately, the concept of an ordinary person of ordinary intelligence is often colored by the social economic status and educational status of the person evaluating what is ordinary.

Many years ago, I was being groomed to be a manager. Part of that was looking the part. Tee-shirts were out. Wearing a suit and tie to client meetings was expected.

My first suit was a three-piece my mother got for me as a graduation present. “Men’s Warehouse” may have existed, but not where I was living. This didn’t mean I wasn’t willing to learn.

One day, I was waiting for my wife to finish a doctor’s visit. As I walked the quaint streets of a Baltimore enclave, I found a tailor shop. I went in to find out what a custom suit would cost.

The tailor took the time to explain to me what I would be paying for. That a $1K suit was what they expected as a starting point. She explained how the fabric was picked, how to judge a suit when it was being worn. I got a lesson in custom-made suits.

Why this was of interest was something that happened a year or so after this. We had a big meeting on site. All of us low people wore suit and tie. Our boss wore his suit and tie. Our bosses boss showed up, his boss showed up, and his boss as well.

I could see the price difference between each “level” of suit. That VP was wearing at least $2k worth of suit. I wasn’t qualified to tell at that level. But I could see the difference in every other suit in the office that day. And I talked to my friend about it.

Here is the thing, if you don’t have that training, it is hard to tell the difference between a $250 suit and a $500 suit. And it is highly unlikely that you can tell the difference between a $500 suit and a $2000 suit. In the same way, that guy wearing $2000 worth of suit cannot understand why the rest of his people are dressed like slobs in cheap suits.

Judges, Lawyers and congress critters are the same way, it is obvious to them what the words mean, it should be obvious to the ordinary citizen of ordinary intelligence.

Another problem that the court has, is that they expect the licensing authorities to be reasonable, honest, and unbiased in their duties. I think I can safely say that we don’t expect all three of those. Anywhere that there is that much power, there will be corruption.

Because of her beliefs, she states Here, Chapter 131’s statutory disqualifiers provide enough standards to guide licensing officials eliminating the risk of arbitrary enforcement. As noted, both statutory disqualifiers focus on an applicant’s danger to him- or herself or others if allowed to have a firearm. …Id. at 58.. She is still focused on pre-crime.

We exist in a country where saying “Come and take it” is considered a threat by people that threaten to take arms from the people. If you do wrong by me, I will defend myself, it is not the same as a threat. Maybe at a technical level, but it is far different from actually threatening somebody.

With that in mind, I could easily see a member of the community reporting that we were likely to engage in conduct that would pose a danger to self or others. That is disqualifying. “I need my arms to defend myself, and my country, from all enemies, foreign and domestic” might be all that is needed to disqualify you.

It is hard going because I disagree with her opinion so strongly:

Likewise, Chapter 131’s “not in the interest of public health, safety, and welfare” disqualifier requires licensing officials to determine whether an applicant lacks the “essential character of temperament necessary to be entrusted with a firearm.” Again, this disqualifier requires an examination of the applicant’s conduct with objective evidence. …
Id. at 59

If this was about a background check, then let the text of 18 U.S.C. §922(g) be the objective requirements. Anything more is open to subjective evaluations. (Ok, I’ve been doing too much of this. I just pulled that cite to US code from memory.) Not in the interest of public health, safety, and welfare reeks of means-end evaluations.

She continues by pointing out that there is an actual path forward if an applicant is denied a permit, they can request a hearing with a trial court. That would be a state court.

I have my doubts as to how unbiased that court would be. I’m also concerned about how much it would cost to fight to get your permit in court.

The default should be “Yes, here is your permit.” This court has turned it upside down. The default is “no”, but if you jump through all the hoops and the official is in a good mood, then you will be granted your government permission slip to exercise your rights, as protected by the Second Amendment.

In Bruen, the Court found New York’s “proper cause” requirement to obtain a carry permit troubling because, among other reasons, the state left aggrieved applicants “little recourse if their local licensing officer denies a permit.” 142 S. Ct. at 2123. New York courts would defer to a licensing official’s decision “unless it was arbitrary and capricious.” Id. (citation and internal quotation marks omitted). Unlike New York’s law, Chapter 131 provides meaningful appeal rights to aggrieved applicants. See supra Section IV.B.
Id. at 60

I would have to read Chapter 131 to decide if it provides meaningful appeal rights to aggrieved applicants. Will a public defender be provided?

As I mentioned above, ordinary person … Finally, this Court finds Chapter 131 provides notice to persons of ordinary intelligence to understand what conduct will prevent him or her from obtaining an FID or Purchase or Carry Permit because the statutory disqualifiers focus on danger or risk of harm.Id. at 60

“Term of art” is a wonderful thing. If I say “I have a question about IP.” to one of my friends, “IP” means a networking protocol. If I say “I have a question about IP.” to my lawyer, he knows that I’m asking about Intellectual Property. In the law everything is defined, somewhere. And everything is defined differently somewhere out or at some other time. The legal system exists to prove Lewis Carroll correct When I use a word, it means just what I choose it to mean — neither more, nor less.Lewis Carroll & John Tenniel, Through the Looking-Glass, and What Alice Found There (Macmillan Children’s Books 2. [Dr.]; Repr ed. 1997)

For the reasons explained, the court rejected the void-for-vagueness challenge.

The bad part of all of this is that the court has decided that the state has the power to limit your rights based on their determination of your pre-crimes. From this, the court rejects multiple challenges.

The good part is that all of these challenges are rejected based on that single foundation stone. Remove that foundation stone and the entire argument falls with it.

The state says they serve to ensure that only law-abiding citizens who are not a danger to themselves or others are authorized to possess firearms.Id. at 62 quoting State’s Opposition ECF No. 91. This line of reasoning seems to be turning Bruen on its head.

It is presumptively unconstitutional if it infringes on our right to keep and bear arms. But the state says they get to decide if you are law-abiding and not a danger to yourself or others.

The court does break out the “such other information” and in-person interviews for references from this, but still, she finds the state has the power to vet you.

The court found that making your references come in for an interview was unduly burdensomeId. at 63.

Again, the Court finds that she trusts the government:

As for Chapter 131’s in-person interview requirement of the applicant’s endorsers, the Court finds that such requirement is unduly burdensome. The State has not justified this requirement or explained how, after receiving the endorsers’ certifications, interviewing them in-person (or even how that is achieved in a nonburdensome way) will aid the licensing authority’s review of a Carry Permit application. And while Chapter 131’s requirement allowing a licensing authority to request “such other information” the authority “deems reasonably necessary,” including the applicant’s online public statements, appears broad and unlimited. However, this Court 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.
Id. at 63

She construes the limits of “such other information”, but those limits are not to be found in the legislation. Would this mean that an applicant with an OnlyFans account would have to provide that information to the licensing authority? How about J.Kb.? Would he have to provide a link back to this blog?

The court says that the state did not provide any history or tradition to support the application process, so the court did it for them.

Her historical support uses … historical laws [that] are repugnant and clearly unconstitutional todayId. at 63. She is not so blunt about using laws outside the 1791 date range.

When The People ratified the Second Amendment, they were saying that this new law overrides all existing laws. Any law that existed before the ratification that are in conflict are prima facie unconstitutional.

The court then addresses the in-person meeting requirement. It is clear to me that the in-person requirement is designed to increase the cost of applying for a government permission slip. Today, getting in to speak with the top cop in the town takes about 5 minutes on a normal day.

I can do it when out banking or paying bills at the town office.

When I lived in Maryland, it wasn’t nearly that easy. With most of the top cops only working 9-5, the same hours I’m expected to work, that means an in-person interview requires me to take a half-day off work. That’s a cost not included in the court’s considerations.

She feels that since, in the 1700s, people talked to the town magistrates or justice of the peace that the cost and concerns are the same.

The court says that there is a history of arms registration. When a person was called upon to muster, they were expected to bring their arms and for those arms to be inspected. In some places, the colonials would do “door-to-door surveys”.

The goal of these surveys and inspections are vastly different from what the state wants to do today. Those historical surveys were of the “Do you have your arms? Yes? Good, see you this weekend for muster.” Making sure that every man had a weapon was important to the colonials.

Today, the state aims to know what arms you have in your possession. This is different from “yes, I am armed”.

Given what I’ve seen in state filings across multiple cases, I don’t think there are any laws that actually support a history and tradition of arms regulations. They keep repeating the same regulations. They are all lacking.

The court also finds the “such other information” to be constitutional because the state isn’t going to exceed reasonable standards and will stick to just the information required to make a determination. The court references an Alabama statute that has similar language, but there, the information that can be requested is limited by law.

At any rate, because courts must strive to interpret statutes to “avoid constitutional difficulties,” Off. of Senator Mark Dayton v. Hanson, 550 U.S. 511, 514 (2007), this Court finds Chapter 131’s provision allowing a licensing authority to request “such other information” is permissible under the Second Amendment only if the request is limited to objective evidence on the applicant’s dangerousness and risk to the public safety. As noted, this Nation has a historical tradition of keeping firearms out of the hands of dangerous individuals or those who would endanger the public’s safety with a firearm. …
Id. at 70

Here, the Court assumes they have the power to create legislation. …only if the request is limited … There is nothing that the court can do to make this happen. Courts do not make laws. The Court can enjoin the law, they cannot insert language into the law.

The court then looks at the insurance mandate. Here, at least, the references back to surety laws actually make some sense. The court again admonishes the state for failing to provide the historical research they were required to do under Bruen, but she looked at the how and why and found that the history was directed at actual criminal actions while the Insurance Mandate did not.

She also found that the Insurance Mandate was squarely within the text of the Second Amendment because failure to abide by the Insurance Mandate would cost you your Second Amendment protected rights.

Accordingly, this Court finds the Siegel Plaintiffs have shown they are likely to prevail on their Second Amendment challenge to the Insurance Mandate.
Id. at 124
The Court disagrees with amici’s framing of its TRO Opinions. The right to armed self-defense follows the individual everywhere he or she lawfully goes. 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. While landowners can ratify or depart from that default, it is the State that is presumptively excluding firearms from private property in the first instance. In that regard, the Court finds that the presumption to carry onto the property of another only extends as far as the landowners’ permission granted to the public to enter, which is often implied. In that sense, the presumption to carry is “rebuttable”—the owner can always withdraw consent. But the State cannot do so for the landowner. Doing so clearly implicates individual conduct plainly covered by the Second Amendment’s text. Accordingly, amici’s citations to Shelley v. Kraemer, 334 U.S. 1 (1948) and Marsh v. Alabama, 326 U.S. 501 (1946)—which address exceptions to the general proposition that the Constitution applies to government action and not private conduct—have no bearing on the question whether the Default Rule comes within the scope of the Second Amendment. Plaintiffs are protected from the state’s rule unless a historical tradition can justify it.
Id. at 133

The good, and consistent thing, about the court’s opinion, is that they clearly state, over and over, that the law is infringing. They constantly go back to history and tradition. This is good.

The state argued that hunting regulations from the early 1700s justified their “Default Rule” The Default Rule is private property was a Gun Free Zone unless it was posted “arms welcome”.

The court found that comparing hunting regulations and poaching regulations to the Default Rule was a no-go.

In sum, the evidence that the State has put forward does not persuade this Court that the Default Rule permissibly regulates the right to carry for self-defense in public. Accordingly, Plaintiffs are likely to prevail on their Second Amendment challenge to Chapter 131’s handgun ban on private property that is held open to the public.
Id. at 149-150

That’s enough. It is pretty clear that the court wants a strong permitting process and isn’t really interested in the games the state plays to stop those that are granted permission from carrying damn near everywhere.

Much of the sensitive places restrictions are enjoined. some of the more egregious requirements for permitting are enjoined. And most of the “prove you are a virtuous person who isn’t a danger to yourself or others” parts of Chapter 131 she found to be constitutional.

The case has been appealed to the Third Circuit Court. We should pay attention to how fast they move. Given that the Supreme Court has cracked the whip over the Seventh and Second Circuit courts to keep them moving, it would not surprise me to find that the Third moves more rapidly.

It will also be interesting to see if the Circuit court stays the District Court’s preliminary injunction.

Wow, only 3900 words …

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