On May 16, Judge Bumb issued a preliminary injunction against New Jersey’s December 2022 Carry Killer law in the now-consolidated Siegel v. Platkin and Koons v. Reynolds case. These cases directly challenge most, if not all, aspect’s of New Jersey’s oppressive Bruen response law.
Read Judge Bumb’s full opinion (235 pages)
Read Judge Bumb’s court order (4 pages)
Within the first first couple of pages of her decision, Chief Judge Bumb set the context for just how remarkably ill-conceived, lazy and poorly executed was the State’s law and its defense of it.
Despite numerous opportunities afforded by this Court to hold evidentiary hearings involving the presentation of evidence, the State called no witnesses. And despite assurances by the State that it would present sufficient historical evidence as required by Bruen to support each aspect of the new legislation, the State failed to do so.
Although the State must bear the burden of proof supporting their position, they have failed to do so. It has been their most public and humiliating performance to date. Judge Bumb began her analysis by pointing this out:
This has left the Court to do what the Legislature had said it had done, but clearly did not. The Court has conducted its own exhaustive research into this Nation’s history and tradition of regulating firearms that Bruen mandates; its analysis follows. This has taken some time, and the State’s effort to hurry this Court along is most unfortunate.
The most ardent anti-gun supporter should be extremely disappointed in the State’s apathy. The ironic result of the legal challenge to this law is that not only did the State fail to defend its position, the Court itself dove into the text, history, and tradition of firearms usage and regulation and produced a substantive body of evidence that will now further uphold the Second Amendment in New Jersey, and possibly be referenced as precedent in other district and appellate court decisions.
In perhaps the juiciest bit of reproval, Judge Bumb pointed out the State’s very obvious hostility towards the law-abiding, rather than the criminal element.
But what the State and the Legislature-Intervenors ignore, and what their empirical evidence fails to address, is that this legislation is aimed primarily—not at those who unlawfully possess firearms—but at law-abiding, responsible citizens who satisfy detailed background and training requirements and whom the State seeks to prevent from carrying a firearm in public for self-defense.
This self-evident point of fact is something that everyone who had a shred of common sense was saying at the end of 2022 as Assemblyman Joe Danielson and others in the New Jersey legislature aggressively promoted a law they were, “100,000 percent certain would pass constitutional muster”.
At this point, all law-abiding gun owners can sit back and relish in the indisputable fact now entombed in public record that our liberal New Jersey lawmakers are either: incredibly stupid and incompetent and/or so irredeemably corrupt as to be completely void of principle. Whatever the case, it’s very rewarding to see a federal judge put that in writing.
Clearly, the State disagrees with Bruen, but it cannot disobey the Supreme Court by declaring most of New Jersey off limits for law-abiding citizens who have the constitutional right to armed self-defense
If this news site were less respectable, we might write a missive to the state summarizing Judge Bumb’s statement as: “suck it”. However, that’s below the caliber of reporting you’ve come to expect from us.
Judge Bumb devoted significant pages of her decision to documenting and analyzing the historical tradition of firearms regulations, including both English and Colonial periods. The Court’s undertaking in examining the history of various aspects of the State’s laws resulted in a strong repudiation of various elements, including the requirement to interview an applicant’s references.
…this Court could not uncover a single law preventing an arms bearer from exercising his or her right to keep and bear arms unless a government official interviewed an arms bearer’s character references….Despite ample opportunity, the State refused to call a single witness to justify this new and burdensome requirement. [Docket No. 74.] The State’s failure is telling. Without any historical support, Chapter 131’s provision requiring a licensing authority to interview a Carry Permit applicant’s endorsers violates the Second Amendment.
The enjoining of the insurance mandate was another significant element of Judge Bumb’s opinion rendering favorably for PTC holders given the looming July 2023 date of efficacy. Judge Bumb approached this subject from a ‘ripeness’ perspective borrowing from the Third Circuit’s test that examines, “(1) the adversity of the parties’ interests, (2) the conclusiveness of the judgment, and (3) the utility of the judgment.”
Concluding that the issue of insurance passed all three tests, the analysis turned to the constitutionality of the insurance mandate, which the state has made analogous to 19th century surety laws. The state argued that insurance falls outside of the Bruen test of proposed conduct as related to the Second Amendment. Judge Bumb quickly corrects this error.
Here, the Insurance Mandate implicates the right to carry firearms in New Jersey because without complying with the mandate, an individual cannot bear arms in public for Self-defense.
The Court documented its extensive analysis on surety laws and tort law and concluded:
Firearm injuries have occurred throughout this Nation since its founding. Yet the State has not shown that earlier generations addressed this problem by mandating that all arms bearers obtain insurance or post a bond to prevent injuries that may not occur.
The Preliminary Injunction enjoins the insurance mandate, at least for the moment, until it’s either overturned by an appellate court, or decided at the end of the case.
The remainder of the opinion turns to the issue of private property and list of sensitive places being challenged. As noted by attorney Dan Schmutter on the Gun For Hire Radio episode #626, this is a subject where the Court’s analysis differs somewhat from its decision.
Currently, the so-called Default Rule, as written by the State, is simply characterized as no carrying of firearms on private property without express consent. In this PI decision, the court makes a distinction between “private property held open to the public” with an “implied invitation to enter” such as a retail business and the curtilage of residential property, and “private property not held open to the public” such as a private dwellings, a warehouse or manufacturing facility.
Making the distinction further, Judge Bumb writes:
In this sense, the scope of the right to carry on private property appears to track the scope of the public’s license to enter—whether it be express or implied—in analogous respects, and Plaintiffs appear to agree with this proposition as worded.
Judge Bumb elucidates on one of the finer points of property rights known as “implied license” or implied permission to enter another’s property briefly, citing the knocker on a front door as an example.
The State and its amici would support a harsher punishment of trespass where one carries a firearm onto another’s premises without express consent and no punishment for trespass where one enters another’s premises without express consent. This cannot be. The only relevant difference is the carrier’s exercise of his right to armed self-defense in public.
She also notes the dichotomy between the State’s law which makes it a felony offense to carry onto private property and common trespass.
New Jersey’s trespass statute reveals that a person is not liable for trespass simply because the person enters onto the land of another without express consent. Otherwise, routine entrants onto private property would be criminal.
Observing further on the effects of the Default Rule as written into law, she writes:
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.
The Court next examines historical New Jersey laws used by the State to defend the Default Rule that include hunting and trespass laws from 1895 and 1722. Finding them unconvincing as historical analogues, she then similarly dismisses laws from New York, Massachusetts, and Maryland. Then, she deftly dismisses reconstruction-era laws from Louisiana, Texas, and Oregon served up as part of the State’s defense:
The Court does not agree with Plaintiffs’ assessment of the Reconstruction-era laws.
The decision also addresses the Siegel plaintiff’s First Amendment challenges to the Default Rule. Here, the Court was not sympathetic to the claim and ruled that it does not violate the First Amendment. Judge Bumb writes with regard to property owners:
Property owners can depart from the background rule by manifesting their consent to the entry of firearms on their property, or they can stay silent. Of course, they can withhold consent, too. Placing the burden on firearm carriers to seek consent to enter private property, the State does not mandate that property owners speak certain words to manifest or deny consent or to do so in any particular way. The Default Rule merely gives property owners the choice.
And with regard to those who wish to allow others to carry a firearm in their home without posting signage or expressing speech:
In other words, they object to an obligation placed on other individuals (i.e., firearm carriers) because the result requires them to manifest consent. The Court fails to see how the Siegel Plaintiffs’ free speech rights are burdened where others (i.e., firearm carriers) are required to seek permission to carry firearms in the Siegel Plaintiffs’ homes. And the Default Rule does not require them to manifest their consent.
Finally, the Court makes the decision that the Default Rule challenge under the Fourteenth Amendment equal protections clause falls short. Although, the Court seemed to make a stronger case for carrying on private property, the PI is limited to private property held open to the public.
Devoting a significant page count to the history of firearms regulations in our country, the Court also arrived at the conclusion that we may carry in zoos.
Because the State has not presented this Court with laws establishing a historical tradition of banning firearms at zoos, see Bruen, 142 S. Ct. at 2130, Plaintiffs are likely to prevail on the merits of their Second Amendment challenge to Chapter 131’s handgun ban at zoos.
Another significant part of the Siegel lawsuit, as seen from the perspective of this site, challenges the law’s exemption for judges, prosecutors, and attorneys general, giving them carte blanche to carry in virtually any of the restricted sensitive areas, and effectively creating a two-class system.
Sadly, we disagree with the Court’s analysis that “…judges and prosecutors are different from private citizens.” The Court argues that such individuals have greater risks of harm as a result of the nature of their jobs in dealing with criminals, advocating for prosecution, and sentencing of the same.
First, there are numerous jobs that carry risk of injury in dealing with the public, and in some cases those in such jobs are more at risk simply because of where they perform them, and not what they perform (think of a nurse or plumber working and coming home late at night in a high-crime area).
But we also disagree with upholding the two-class system simply because the lives of those exempted are not more important (or less) than those of anyone else. Also, they don’t require higher levels of training or competency than would warrant if carrying into “sensitive places” where the average citizen cannot. While disappointed, we are not surprised. Much like congressional term limits being approved by those they would harm, we don’t expect judges, prosecutors or attorneys general to impose limitations on their own extra-constitutional rights.
What could happen from here? There are many possible outcomes. One is that the Appeals Court denies the emergency motion for a stay, effectively leaving the preliminary injunction in place. It could also review and grant a stay, leaving the NJ law in effect in whole, or in part for the remainder of the case. Nobody knows what will happen in the Third Circuit Court of Appeals but we can only hope that Judge Bumb’s thoroughly researched opinion carries some real weight.
As of May 22, the defendants (the state of New Jersey) in this case filed an emergency motion for stay pending appeal to the Third Circuit Court of Appeals. According to the Court’s response to the filing, all responses to Appellants’ emergency motion for stay pending appeal must be filed on or before Tuesday, May 30, 2023.
We will be watching closely.
