Normally in one of these articles, I would be quoting their words, pointing out how horribly wrong the state is, how the state is cheating, lying or otherwise attempting to put their thumb on the scales of justice.

Not so today. The attorneys representing the Senate President and General Assembly Speaker do a good job of presenting their position.


Senate President Nicholas P. Scutari and General Assembly Speaker Craig J. Coughlin (hereafter collectively “the Presiding Officers”) intervened in the action below. The Presiding Officers sought to present the perspective of the New Jersey Legislature in connection with its enactment of L. 2022, c. 131 (hereafter “Chapter 131”). As intervenors, the Presiding Officers fully participated in the preliminary injunction proceedings before the District Court. Presently, the Presiding Officers are appellees but are presenting argument on the side of the State Appellants.

By our opening brief to this Court, we presented three discreet legal arguments that are intended to supplement the principal arguments that are presented by the State Appellants. Our first argument addressed Plaintiffs’ challenge to Chapter 131’s designation of various “sensitive places” in which the carry of firearms is prohibited. Our second argument addressed Plaintiffs’ challenge to Chapter 131’s provision that generally requires gun-carry permit holders to procure liability insurance in connection with liability resulting from a gun incident. Our third argument addressed Plaintiffs’ entitlement to preliminary injunctive relief in light of the “harm to third parties” and “public interest” standards that are conditions precedent to the granting of such relief.

By this reply brief, we address and rebut Plaintiffs’ various contentions that were proffered against each of our three arguments.
ECF No. 107 Ronald Koons v. Attorney General New Jersey, No. 23-1900 (3d Cir.)

The form of these briefs is pretty set, a cover page that fully identifies the case and any cases that have been absorbed into this case, identification of the lawyers who are responsible for the document, theses are not always the person who wrote the brief, the person being represented, Table of Contents, Table of Citations/Authorities, introduction and optionally a summary of the argument, the arguments. That’s followed by other stuff, a conclusion and such.

In many of these briefs, the author uses the introduction and summary to make unsupported arguments and to attempt to set the stage for later misrepresentations.

This is the place where they attempt to put the ear bugs in place. The place where they give the judge(s) a limb to grab onto when they want to rule in a particular direction.

We saw all of that in the state’s official response. This brief doesn’t go down that path. It is very clean.

The Presiding Officers start with As a general proposition, we concur with Plaintiffs’ broad characterization of Bruen’s historical analogue approach. However, we part company with Plaintiffs’ understanding of what Bruen actually requires in applying historical analogues to each sensitive-place designation under

They didn’t do any cheap shots, they didn’t say, “They’re WRONG! We’re RIGHT!” They disagree.

When they start laying out their argument, it is with small building blocks. The Bruen Court said that schools and government buildings are examples of sensitive places. This is something we might be able to agree on. The court was a little more restrictive than that. If I remember correctly, it was presumptively held that schools and certain classes of government buildings were examples of sensitive places.

This is an interpretation phase. I will say that they are mistaken, but it would require an extra effort. Instead, I accept for the moment that this is a working assumption, to evaluate their argument.

banning weapons in sensitive places has a longstanding historical pedigree, which does not violate or run afoul of the Second Amendment;id. is their claim. But they use the word “longstanding”. What does that mean in this context? Is it a century? Is it 5 decades? Is it from 1791?

In 1911(IIRC) there was the Sullivan act. That was a century again. The GCA of 1968 was just over 50 years ago.

Finally, the Court identified two metrics to guide the analogic inquiry: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.”id. This is a good quote. I’ve yet to see the string of three word quotes to say what wasn’t said. They are doing quotations well.

The Officers then make a powerful argument The flexibility of the Bruen Court’s analogic approach is shown by the
Court’s refusal to limit “arms” “only [to] those arms in existence in the 18th century.”
They then reference the court’s statement that the Second Amendment doesn’t apply only to arms in existence in the founding era.

If the Supreme Court is flexible enough to say arms that didn’t exist in the founding era are protected, then shouldn’t that also apply to sensitive locations that didn’t exist in 1791?

Stated succinctly, (1) schools and government buildings are examples of sensitive places, but not an exhaustive list of what sensitive places are; (2) banning weapons in sensitive places has a longstanding historical pedigree, which does not violate or run afoul of the Second Amendment; and (3) when necessary, a District Court may use analogical reasoning to identify other sensitive places.

Then they pull another doozy:

Although we have no occasion to comprehensively define “sensitive places” in this case, we do think respondents err in their attempt to characterize New York’s proper-cause requirement as a “sensitive-place” law. In their view, “sensitive places” where the government may lawfully disarm law-abiding citizens include all “places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available.”… It is true that people sometimes congregate in “sensitive places,” and it is likewise true that law enforcement professionals are usually presumptively available in those locations. But expanding the category of “sensitive places” simply to all places of public congregation that are not isolated from law enforcement defines the category of “sensitive places” far too broadly. Respondents’ argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense that we discuss in detail below. Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a “sensitive place” simply because it is crowded and protected generally by the New York City Police Department.
id. at 6 quoting Bruen

This is the type of thing that gets us in trouble with rogue courts. The Bruen court used the term “sensitive places” to describe places where people congregate. Since the Court also said that guns can be banned in sensitive places, this means that places where “large” numbers of people gather are a place where guns can be banned.

In other words, the Bruen Court set an “outer limit” on the permissible level of generality underlying an historical analogy to sensitive places. By necessary implication, although constitutionally permissible sensitive places cannot extend to entire cities or to large expanses of urban areas generally, the designation of sensitive areas can and should extend to other locations that are characterized by high population density and a high level of general police protection—as long as those areas are reasonably compact. Id. at 2133-34.
id. at 7

Well done.

The next section, not so much.

The legislature made a blanket statement, “We looked and found that what we want to do is constitutional under Bruen.”

The state that the found regulations that support their position, but those regulations, that history and tradition, are not in the legislative history of Chapter 131.

They then argue that if somebody is exercising their “core rights under the constitution”, they cannot exercise their “core rights under the Second Amendment”.

If somebody is giving a speech to a crowd, that is a protected First Amendment right. According to the New Jersey legislature, that makes that location a “sensitive location” where they can deny you your core Second Amendment protected right to armed self-defense.

If you are voting, exercising that constitutionally protected right, you can’t also exercise your Second Amendment protected right.

Like I said, much weaker.

Here is a wonderful bit of self blindness: A school is a place where defenseless young children congregate. Yes, schools are shooting galleries for those that would do evil because the legislation has made them defenseless.

In the context of a densely populated venue, the “how and why the regulations burden a law-abiding citizen’s right to armed self-defense” is simply this: armed self-defense in this context presents significant threats to third parties, including bystanders and the police. If a substantial portion of attendees at a stadium are legally armed (which is possible, even likely, if the venue is not designated a sensitive place), the net result would be a tinderbox that could erupt at any time based on a minor dispute or a misunderstanding. This is especially so in a venue in which alcoholic beverages are served.
id. at 13–14

Translation: The streets will run red with BLOOD if we aren’t allowed to continue infringing!

There is an unsupported hypothesis that the infringers use, that if there are many armed people in a location, there is a higher percentage chance of a gun being used. And that once the shooting starts, there will be many people responding indiscriminately.

Given that most of these politicians are used to the indiscriminate shooting protocols of their police, you can see why they might believe that.

On the other hand, we know that most people that carry are much better at identifying their targets and not shooting the good guys.

Here is a chuckle for you: In densely populated stadiums, arenas or indoor entertainment venues, the law-abiding citizen is safer relying on a highly trained police presence for protection in a designated gun-free venue rather than relying on his or her firearm in a venue that may be awash in firearms held by other at 14

The state goes on to argue that requiring insurance to have a permit to carry is no different from requiring fees and insurance when people have events in the public space. A better analogy would be that if the state required a license to run a website or a newspaper. They can’t and don’t.

The state then goes into what wasn’t said in the Bruen opinion. “Since they didn’t say anything about requirements to run a 5k course, we can require a 5k course and a doctor’s physical before granting you permission to exercise your rights.”

To get a preliminary injunction, the court must decide if there is a chance of winning on the merits, if the person is being harmed, if there will be harm to others, and if there will be harm to the public. The plaintiffs said, “The law is unconstitutional, on its face. If it is unconstitutional, it can’t be in the public good nor can it cause individuals harm if it is stopped (enjoined)”

Perhaps Sherlock Holmes offers a clue. The “mystery” of Plaintiffs’ silence with regard to the “harm” and “public interest” factors seems quite reminiscent of the famous Sherlock Holmes story that turned on the evidentiary significance of “the dog that didn’t bark.” In the face of the substantial evidence in the record that establishes a powerful connection between an increased number of guns on the streets and incidents of gun violence, Plaintiffs are as mute as the dog in the Sherlock Holmes story.
id. at 24–25

The state concludes their arguments with a cry of emotional blackmail. “Look at all these scholars who say the streets will run red with blood! Think of the little children!”

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By awa

2 thoughts on “Ronald Koons v. Attorney General New Jersey, ECF No. 107”
  1. It is dangerous but expected they have begun to reign in the more clown shoes attempts and filings but still some it shows through in the end. Good commentary and I’m wondering if this is just a case of some clever clogs on their side or a more wide spread improvement.

Only one rule: Don't be a dick.

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