On September 10, 2025, after nearly two years since oral arguments on the preliminary injunction were held, the U.S. Court of Appeals for the Third Circuit issued an opinion and order in the consolidated cases of Koons v. Platkin and Siegel v. Platkin, challenging New Jersey’s “carry killer” bill.
While there has been a great deal of focus on the specific impact of the court’s ruling on each element of the law that was challenged in court, the bigger picture is that the decision in Koons/Siegel relies on a heavily flawed general interpretation of current Second Amendment jurisprudence. In that sense, the entire opinion is flawed. Not simply a matter of calling balls and strikes, where the court gets some things right and some things wrong, it is entirely wrong and creates a dangerous precedent for future cases that would leave the door wide open for future courts to justify almost any gun control law. This case will almost certainly be granted a rehearing by the entire en banc circuit.
Procedural History
The majority opinion for the three-judge panel was authored by Judge Cheryl Ann Krause, an Obama appointee, with a nearly 100-page dissenting opinion (in large part) authored by Judge David Porter, a Trump appointee. These cases were on appeal from a preliminary injunction granted by New Jersey Federal District Court Chief Judge Renee Bumb in early 2023.
Both of the suits in these consolidated cases were filed within hours and minutes of Governor Murphy signing the state’s “Bruen response bill” into law in December 2022. Like the 2022 Concealed Carry Improvement Act (CCIA), signed by Governor Kathy Hochul in New York, New Jersey’s version radically reformed the process to obtain a concealed carry permit, quadrupled the fees associated with obtaining a permit to carry, and declared virtually every part of the state a gun-free zone. Unlike New York, New Jersey did not provide a specific name for the bill, and it was signed into law as Public Law 2022, Chapter 131 (hereinafter Chapter 131).
These rushed pieces of legislation were a political knee-jerk reaction to the Supreme Court’s decision in New York State Rifle and Pistol Association v. Bruen, which struck down “may issue” permitting systems in states like New York and New Jersey. The Bruen Court centered on New York’s Sullivan Act, a century-old law that was arguably the progenitor of all “may issue” statutory schemes implemented in other anti-gun rights states. New Jersey did not begin significantly regulating the public carrying of firearms until the 1960s, and while it came nearly 50 years after the Sullivan Act, New Jersey was ultimately far more restrictive in the issuance of concealed carry permits.
In June of 2022, there were approximately 3,000 permits issued in the state, with the majority of those limited to commercial applications (armed security guards, private investigators, armored car drivers, etc.), and perhaps a very small number doled out to the well-heeled and politically connected class of private citizens. The carrying of firearms outside of the home for personal self-defense was nearly completely banned in New Jersey until June of 2022.
In the intervening years since Bruen, over 80,000 permits have been issued within the state. While permit issuance has steadily grown, this long and drawn-out court case has left gun owners in a precarious and unstable regulatory environment. To be sure, the most pernicious parts of Chapter 131 were enjoined within weeks of enactment and remain so today. The private property default rule, sometimes referred to as the “vampire law,” would have required permit holders to obtain permission to carry a firearm on all private property, making it virtually impossible to carry anywhere in the state. In addition, Chapter 131 attempted to ban carrying a firearm in a personal vehicle while driving on a public roadway, requiring permit holders to unload and store firearms in a locked container in their vehicles while driving and then reloading and holstering a firearm at every stop along their way. Finally, Chapter 131 would have required permit holders to maintain $300,000 in liability insurance, a form of policy insurance markets would struggle to even provide (and in the case of New Jersey, specifically has been ruled illegal). These specific elements of Chapter 131 would have worked to make obtaining a carry permit utterly useless.
In terms of the procedural history, at the lower district court, Judge Bumb applied a reasonably faithful interpretation of the Bruen decision and enjoined these most egregious parts of Chapter 131, along with quite a bit more. Bruen largely reaffirmed the landmark 2008 decision by the Supreme Court in District of Columbia v. Heller, and created a uniform framework for analyzing the constitutionality of modern firearms regulation under the Second Amendment.
A Brief Overview of the Bruen/Heller Methodology
In the first step, a court must evaluate the regulated conduct and determine whether that conduct is covered by the plain text of the Second Amendment. If so, the burden shifts to the government to establish that its proposed law is consistent with this nation’s history and tradition of firearms regulation, as understood at the time of the ratification of the Bill of Rights in 1791. This series of Supreme Court cases merely brings the Second Amendment in line with the framework for analyzing other core constitutional rights like free speech, freedom of the press, the right to peaceably assemble, etc.
In conducting that analysis, the Bruen Court specifically noted that there was very little regulation of the right to keep and bear arms in 1791. This observation should have served as a basic “sanity check” for all future courts hearing cases involving the Second Amendment. And this should comport with any basic understanding of what a fundamental right should be. The term “fundamental right” implies a broad right that acts as a clear line in the sand for the government, not a weak principle loaded with loopholes, backdoors, and trapdoors.
When the consolidated Koons/Siegel preliminary injunction was appealed to the Third Circuit, the appellate court chose to stay (or temporarily stop) portions of the lower court’s decision. Over two years later, the three-judge panel assigned to the case finally issued its ruling, and gun owners and permit holders want to understand exactly what the Court decided.
So What Did the Majority Conclude?
The opinion and order contains a series of rulings on all of the various elements of Chapter 131 that were challenged in the original complaints, which, in particular, for the Siegel plaintiffs, was a long laundry list. In the final analysis, as one moves through that list, the specific score almost doesn’t matter. The panel preserved the injunctions against the most egregious parts of Chapter 131, but those elements were so completely contradictory to the holding in Bruen that no court could find those provisions consistent with the binding precedent set by the Supreme Court without completely disregarding it. Judge Krause, writing for the majority, deserves no credit for “getting it right” on those portions of the ruling.
Instead, Judge Krause wound together a framework that violates the most basic “sanity check” in Bruen. In nearly every section of the 140-page opinion, she pulls examples of laws that are either far too ancient or far too over-generalized to determine a “tradition” and then cites random examples from late periods of American history (post Civil War and often Gilded Age history) to “confirm” the over-generalized tradition.
To make this as easy as possible to understand, gun owners should know that there are some very limited examples of traditions of firearms regulation regarding so-called “sensitive locations” that would likely pass muster under a faithful interpretation of Heller and Bruen. Examples of such laws from the time of the founding might be restrictions on carrying firearms in places like courthouses during court proceedings, in legislative houses when a legislature is in session, or in a polling place during an election.
If one were asked, “What do those places have in common?” a sane or rational person might conclude that those are places where:
- Core government functions occur, and
- The government provides active security (courtrooms have bailiffs, legislatures have sergeants-at-arms, and polling places have police and sheriffs to maintain order).
In contrast, Judge Krause seems to have looked at that list and concluded that those are generally places where people gather, so therefore any place that people gather must be the same as a courtroom or an in-session legislature.
Beyond over-generalizing, Judge Krause also invented her own system of looking at modern regulation. According to Judge Krause, there were no parks or playgrounds in 1791, so the founders couldn’t have imagined people gathering in a park. According to Judge Krause, people in 1791 (apparently) infrequently visited beaches, and so the founders couldn’t have imagined a world where people go to a beach to gather for fun or leisure instead of, say, fishing. Also, according to Judge Krause, libraries were uncommon in 1791, and the framers could never have imagined people gathering in libraries. Judge Krause quite literally implies that since libraries are quiet and guns are loud, the framers would have understood libraries as a place where guns would be impermissible, since people go to libraries for quiet solitude.
Since beaches, parks, and libraries are places where people gather, just like courtrooms, legislative sessions, and polling places, she concludes there is a long-standing tradition of banning the carrying of firearms in places like those in America, where there are people doing things in places where other people may be. This is clearly inconsistent with the most basic principles of the Bruen holding.
First, and most obviously, the majority opinion fails the common-sense test. The Boston Common was not only a popular place for large crowds to gather in the late 18th century, it was a rally point for the American Revolution (the framers themselves gathered in the Boston Common). People in the American colonies gathered on beaches, going back to the Pilgrims at Plymouth Rock. And libraries have been a feature of Western Civilization for thousands of years. People alive at the time of the founding clearly understood the significance of those types of locales and chose not to impose any special restriction on those places vis-a-vis the right to keep and bear arms.
In sections of the majority opinion, Judge Krause draws similar generalizations about the Statute of Northampton (an English law hundreds of years old at the time of ratification of the Bill of Rights), that largely dealt with “going affray” which criminalized, essentially, terrorizing the public with arms (an act committed with arms, not the mere possession of arms). Not only is this historical waypoint anachronistic for Bruen purposes, the Supreme Court in Bruen specifically found the Statute of Northampton, and the limited examples of colonial laws that seemed to mirror it in some fashion, as having limited utility in interpreting the Second Amendment. Nonetheless, Judge Krause seems to draw a straight line between the Statute of Northampton and late 19th century laws to establish a tradition of firearms regulation for virtually every section of Chapter 131.
In bouncing back and forth between medieval Europe and the late 1800s, a complete departure from the system the Supreme Court mandated, the majority in Koons/Siegel errs in a very fundamental way. As Judge Porter points out in the dissenting opinion, some of the examples of late 1800s “laws” that the majority points to are not even laws at all. Those examples included territorial ordinances that would not have been subject to court review (a court in that period could not have reviewed whether the local rule was consistent with the Constitution and therefore its Constitutionality was never tested in that time) or, in the extreme, as another example the court points to private rules imposed by private train companies on their passengers. In analyzing the restrictions in Chapter 131 on carrying firearms on modern transit systems like trains and subways, the majority also points to laws from the late 1800s that prohibited shooting at moving trains.
Third Circuit Does Homework for the State
This mind-bending journey through world history that the majority takes its readers through also raises a fundamental fairness question that Judge Porter also alludes to in his dissenting opinion: while courts can generally do their own homework in reaching their conclusions (in other words, they can rely on sources of law like prior court cases that were not cited by the parties in prior pleadings), over 60% of the over 200 historical analogues the majority relied on were not introduced by the government at any point in the nearly three years of development of the case record. Recall that under Bruen the burden shifts to the government-defendants in these cases to provide historical pedigree to prove that its modern law is consistent with the nation’s traditions. Procedurally, the New Jersey state defendants would introduce this historical evidence in briefs, to which the plaintiffs would have some opportunity to respond and rebut those examples.
Here, the overwhelming majority of the historical pedigree that the majority relies on was presented for the first time in the final opinion and ruling, giving no opportunity to the plaintiffs to respond or argue the point. This means, in effect, the burden remains with the plaintiffs, not the state, to review all of American and, one supposes, world history to anticipate every potential historical reference point the court may dig up as it wastes two years looking up passenger restrictions that rail companies in the late 1800s politely asked their ticketed customers to adhere to. That completely upends the burden shifting that Bruen demands.
Judge Krause would have us believe that the Supreme Court didn’t actually mean to say what it said. And for that reason, the plaintiffs in Koons/Siegel will almost certainly seek a rehearing of this case by the full en banc Third Circuit. With the amount of judicial activism and wishful thinking contained in the majority opinion, a rehearing will be granted, especially in light of the much-improved composition of the full Third Circuit. The regime that Judge Krause is advocating for would create a world in which the state can justify virtually any modern gun law, and the Second Amendment would be toothless.
The Court Gets It Right On Fees
The only bright spot in this entire opinion was the court’s treatment of the state portion of the greatly increased fee to obtain a concealed carry permit that Chapter 131 imposed. But gun owners should note that the only reason the court got this right is because they applied First Amendment legal principles. The court held, relying not on Bruen, but on cases like Murdoch v. Pennsylvania, a landmark Supreme Court case from 1943 dealing with the First Amendment, to conclude that fees on a core constitutional right that bear no reasonable relationship to the incidental administrative cost of processing an application are unconstitutional. The Siegel plaintiffs only focused this argument on the $50 state portion of the $200 biennial fee mandated by Chapter 131, since the law specifically earmarks that portion of the fee to be used for a crime victim relief fund maintained by the state.
While the majority was not in a position to assess the $150 municipal portion of the fee, this was a victory of sorts for gun rights… but only because this three-judge panel was applying established First Amendment law instead of applying Bruen.
As a growing list of municipalities across the state are flat-out rejecting the local portion of the statutory fee on the basis that these fees are exorbitant and unnecessary, a future court would find an easier footing applying the same laws, with the opinion in Koons/Siegel.
But that is only minor comfort, found in a few scant paragraphs buried in the hundreds of pages of a majority opinion that otherwise fully guts the Second Amendment. The fact that the court here gets the First Amendment analysis right and the Second Amendment analysis wrong violates another basic Bruen axiom: the Second Amendment is not a second-class right.
