After the 2022 Bruen Supreme Court decision, New York and New Jersey were among the first states to pass comprehensive legislation severely limiting where concealed firearms could be carried by approved permit holders. Today, as carry permit holders surge to a record 88,656 (according to the state’s own numbers) New Jersey is desperately calling for a critical case on the subject, Koons v. Platkin, to not be heard by a potentially Second Amendment-friendly Court of Appeals.
On Friday, November 14, just hours after New Jersey state legislative leaders, Senate President Nicholas P. Scutari and Assembly Speaker Craig J. Coughlin, intervened in the case with their brief, the state itself submitted a brief to the Third Circuit Court of Appeals stating “There is no basis to rehear en banc the panel’s careful and detailed opinion…”
The state is addressing the request from pro-Second Amendment groups to rehear a terribly flawed decision issued by a panel of judges on September 10 – a decision that the court took nearly two years to render. Noting the bias and hostility toward the Second Amendment, on October 8, plaintiffs asked the court to rehear the case en banc (or with a full panel of judges).
It is also worth noting that the decision that took nearly two years to reach was only in regards to a preliminary injunction on some of the “sensitive places” prohibitions on carry. The Third Circuit has not, and is not, currently hearing the case for a ruling on the merits.
The motion for appeal opens with this statement from counselor David H. Thompson:
I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to a decision of the United States Court of Appeals for the Third Circuit and the Supreme Court of the United States….This appeal also involves a question of exceptional importance, as it “presents [this Court’s] first occasion to answer the “where” question, that is, in which locations the government can permissibly proscribe carrying firearms.
New Jersey raises much protest to the possibility of a rehearing, likely because of the changing makeup of the Third Circuit that now swings conservative and is likely to issue a decision that affirms both Second Amendment rights and Supreme Court precedent on the same. Not only would this neuter New Jersey’s gun control scheme, but it has the potential to create a circuit split as similar cases play out across the country. A circuit split could then put the topic of “sensitive places” on a trajectory to the U.S. Supreme Court.
Interestingly, New Jersey sidesteps this issue in its 25-page briefing, instead focusing on the inconvenience it would cause the court, using language such as:
…such review is “inefficient” compared to panel-adjudication,
…nullifies “a panel opinion that is the product of a substantial expenditure of time and effort by three judges and numerous counsel,”
…”requires a majority of circuit judges to sit in judgment of” the careful and detailed work of “two or three colleagues.”
The state also tries to make the argument that “there’s nothing to see here” because there are no circuit splits on the issue, writing, “Plaintiffs seek en banc review to assess whether New Jersey can require applicants for carry permits to produce four references. But the panel decision upholding this reference provision implicates no inter-circuit or intra-circuit conflicts.”
Ironically, this admission may reveal the state’s true concern: a circuit split resulting from an en banc hearing (likely) would be ripe for consideration by the Supreme Court (also likely), which has a slight conservative, pro-Second Amendment leaning.
In passing its restrictive prohibitions, New Jersey reminds the court of its reasoning, quite literally quoting itself:
The Legislature enacted these changes “to promote public safety and reduce gun violence in a manner consistent with the Second Amendment principles articulated” in Bruen.
Ironically, as the state demurs to the court about reducing violence, New Jersey’s newest numbers, according to the state’s Permit to Carry Dashboard, show that it has issued over 88,656 permits to carry a concealed firearm, with no correlating rise in gun violence.
