The Attorney General of New Jersey has filed a brief (100 pages!!!!) explaining why New Jersey’s de facto carry ban is actually constitutional.
(1900 words)
Introduction
The Second and Fourteenth Amendments have always coexisted comfortably with a wide range of firearms restrictions. As the record shows, States historically restricted firearms in particularly sensitive places—such as public assemblies, schools and other educational and literary gatherings, ballrooms, shows, fandangos, fairs, and taverns, parks, zoos, in transit, and more. Founding- and Reconstruction-era States likewise long required individuals to obtain consent from private property owners before carrying firearms onto their private lands. And States historically required individuals to make surety payments before carrying firearms in public, and they imposed strict liability regimes to cover the harms of firearms misuse. States have also long imposed fees relating to firearms or permits. And States have consistently sought to ensure that those who could not be trusted to carry a firearm in public will not do so—including by checking their backgrounds.
Given their historical pedigree, the provisions Plaintiffs challenge—Chapter 131’s sensitive-place restrictions, private-property provision, insurance requirement, fees, and character-reference requirement—all satisfy New York State Rifle & Pistol Association v. Bruen, 142 S.Ct. 2111 (2022). After all, Bruen adopted a historically-grounded test: if States originally understood that particular firearms policies were available under the Second and Fourteenth Amendments, those policies remain on the table for them today. Yet despite the considerable evidence the State provided in its opening brief, Plaintiffs cannot produce a shred of evidence that anyone anywhere saw any of these laws as unconstitutional. In sharp contrast to the evidence in both Bruen and District of Columbia v. Heller, 554 U.S. 570 (2008), this record contains no evidence that any court, State, official, or legal commentator viewed any of these historical sensitive-place requirements as unconstitutional. Plaintiffs cite nothing to suggest that any court, State, official, or legal commentator believed individuals had a right to carry firearms on private land without the owner’s consent. Their arguments are also bereft of evidence of any challenges to the historical surety laws or to strict-liability regimes. And Plaintiffs find no decision or even constitutional debate as to historical fees and permitting processes. Instead, the record reveals “no disputes regarding the lawfulness of such prohibitions.” Bruen, 142 S.Ct. at 2133.
Because Plaintiffs cannot identify contrary evidence, they repeatedly attempt to move the goalposts that Bruen laid out. Plaintiffs repeatedly castigate the State’s historical statutes as measuring “too few” in number, even when the State found eight or even thirty historical predecessor statutes—reasoning that the fact some other States took a different policy approach suggests New Jersey’s modern laws are unconstitutional. But Plaintiffs never explain how their view coheres with our federalist system, in which “the States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.” United States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring). Plaintiffs also diminish the State’s voluminous historical evidence as coming “too late”—even though the antebellum and Reconstruction-era evidence consistently favors the State in this case, and even though Reconstruction-era evidence particularly informs how the States understood the scope of the Fourteenth Amendment. Last, Plaintiffs insist sensitive places can only be ones with “comprehensive,” TSA-style security, but the very places that Bruen itself recognized as sensitive (like schools) could not fit the Plaintiffs’ overly-stringent and invented test.
The consequences of this debate are grave. Bruen recognized that the Constitution allows the States to address all manner of “regulatory challenges posed by firearms today.” 142 S.Ct. at 2132. So it adopted a historical and analogical test that allows States flexibility while protecting the constitutional right. Chapter 131 respects that decision, adopting only restrictions that are in line with a centuries-old historical record. Plaintiffs distort Bruen’s measured approach, seeking to impose on New Jersey “a regulatory straightjacket” that limits the State’s ability to protect residents from the scourge of firearms violence—limits that “our ancestors would never have accepted.” Id. at 2133 (quoting Drummond v. Robinson, 9 F.4th 217, 226 (3d Cir. 2021)). This Court should reject Plaintiffs’ arguments.
—ECF No. 108 Ronald Koons v. Attorney General New Jersey, No. 23-1900, slip op. at 1–3 (3d Cir.)
Analysis and Rant
The Second and Fourteenth Amendments have always coexisted comfortably with a wide range of firearms restrictions.
Translation: We have been infringing on the Second Amendment for a long time.
In their claim to the record shows
they are careful to not say when the states started the idea of “sensitive places”. I’m interested in learning when the first federal gun free zone was legislated.
In addition, the state implies “regulations” but doesn’t say it in their introduction.
The state argues in the first paragraph that hunting regulations are require[ing] individuals to obtain consent from private property owner …
If you follow the cases, you can see the state using these statements of “fact” that are still in question.
There is a question, “Are hunting regulations requiring permission before hunting on private land the same as a regulation requiring permission to carry arms on private land?” Until that question is answered, there is no “record” to show.
Next, the state claims, falsely, that the surety payments were required before carrying firearms in public. Yes, surety laws existed. According to one Second Amendment scholar, there are no known records of anybody actually being charged and required to post a surety. Worse, for them, the Supreme Court, in Bruen and Heller looked at surety regulations and dismissed them as not being useful in Second Amendment analysis.
The argument that these imposed strict liability regimes to cover the harms of firearms misuse
is moot. There are many laws on the books that impose strict liability for the misuse of arms. The state is perfectly in line if they argue that there is a long history and tradition of regulations against murder.
States have also long imposed fees relating to firearms or permits.
What does “long” mean? Is that 1911, or 1791? Show me.
Here is a fun turn of phrase States have consistently sought
“Sought” is not the same as regulated or passed regulations.
It is also interesting to see the difference in language of the argument and the language of the regulation. The argument is including by checking their backgrounds.
The regulations are “background check.” Are these the same thing? Does the state seeking to check backgrounds mean the same thing as regulating a requirement to do background checks?
if States originally understood that particular firearms policies were available under the Second and Fourteenth Amendments, those policies remain on the table for them today.
. The Bruen court did not say this. They said that the state had to present a history and tradition of regulations.
If the States originally understood
that a particular policy was available to them, but did not create regulation to implement that policy, then the States “understanding” is meaningless in context.
Ok. This next part is the state trying desperately to shift the burden of proof.
Yet despite the considerable evidence the State provided in its opening brief, Plaintiffs cannot produce a shred of evidence that anyone anywhere saw any of these laws as unconstitutional.
The plaintiffs do not have to show any evidence that these laws in the past were unconstitutional. It is the government’s burden to prove that a particular regulation is a close historical analogy to the current proposed infringement.
Perhaps. But again, the burden rests with the government to establish the relevant tradition of regulation.
—New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022) The inferior courts don’t get to just make it the plaintiff’s burden to prove that there wasn’t a match. Nor do they get to require experts to testify. It is upon the inferior court to make a decision of law.
Some facts are so well known that there is no need for testimony or evidence. “The bible is the most printed book in the world”. This is a “known fact”. A judge can decide that there is no need for a jury to have to determine if that fact is true.
Other questions resolve around the legal province of a document. Hearsay, for example. The judge is required to make sure that people don’t testify to things that they do not know, but only heard from others.
(During my divorce proceedings, at the end, I was representing myself. My estranged wife’s lawyer was asking questions to get us through the final parts of the process. After one of the very early questions, I turned to the Judge and asked, “Isn’t that a leading question?” Both the lawyer and judge laughed. They explained to me that, yes, they were leading questions. They could rephrase so that they were not leading, but it would make everything take much longer.)
The judge also decides on what a law actually says. Thus, a judge can look at 26 U.S.C. 5845, and say that the definition of “machinegun” includes a combination of parts designed and intended, for use in converting a weapon into a machinegun
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The judge doesn’t get to look at a laser etched piece of stainless steel and declare that it is a combination of parts designed and intended, for use in converting a weapon into a machinegun
unless it is a bench trial. If it is a jury trial, then the jury decides the “fact.” They decide if it is a conversion kit or just a piece of art.
The state is very hopeful that the court will push the burden onto the plaintiffs because it is impossible to prove a negative.
One of the things that these cases have in common, is that they are perfectly willing to argue that a regulation from another state that supports an infringement is perfectly right to use in this case. At the same time, they argue that the 12 other states that didn’t do those things shouldn’t stop their current infringement.
even though the antebellum and Reconstruction-era evidence consistently favors the State in this case, and even though Reconstruction-era evidence particularly informs how the States understood the scope of the Fourteenth Amendment.
This is the same tired argument we hear over and over again. The people of the country did a mean-ends balancing when they adopted the Bill of Rights, including the Second Amendment, in 1791.
The people of 1868 did a mean-ends balancing of accepting the Bill of Rights, as it was understood in 1791 to have control over the states.
There is nothing in the 14th Amendment that says, “We get to redefine what the Bill of Rights means”. It is an acceptance of the Bill of Rights, as it was adopted.
Last, Plaintiffs insist sensitive places can only be ones with “comprehensive,” TSA-style security, but the very places that Bruen itself recognized as sensitive (like schools) could not fit the Plaintiffs’ overly-stringent and invented test.
This is topsy-turvy. Bruen recognized that schools were presumptively sensitive places. Not because they were secured with TSA-style security, but because they were not addressing the question of sensitive places, directly. They only stated that New York was unable to make all of Manhattan a sensitive place.
More so, they state thinks that if it is a sensitive location, that it magically is safe from a need for armed self-defense.
In the ultimate FU, the state says Plaintiffs distort Bruen‘s measured approach
while they stomp all over the clear requirements of Bruen
We can only hope that the circuit court gives us another win.
One would hope the circuit court would take the defense to the virtual woodshed for trying to pull such shenanigans and outright lies.
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They probably won’t, but one could hope.