This past Friday, Judge Bumb heard oral arguments for and against a Preliminary Injunction in the case of the New Jersey Carry Killer law. The so-called Carry Killer bill was signed into law on December 22, 2022 by Governor Murphy, in response to the NYSRPA v. Bruenruling this past June. The Bruen ruling confirmed that the people have the right to Keep and Bear Arms outside of the home for self-defense. New Jerseyans have been denied this right for a very long time unless they could prove the very special “justifiable need” standard, which Bruen also struck down.
The State never takes kindly to citizens pursuing personal freedoms. In its new law, the state of New Jersey attempted to protect its law-abiding citizens from its law-abiding citizens. Their answer was to declare just about every inch of New Jersey a so-called “sensitive place”, making it off-limits to those legally carrying handguns for self-defense. Within minutes of the enactment of the new law, two pro-Second Amendment groups files lawsuits.
The case currently in front of the court is actually a combination of two cases, both challenging sensitive places. Those cases are Koons v. Reynolds and Siegel v. Platkin. A TRO was previously issued in both cases enabling carry-permit holders to once again carry their guns in many of the places they frequent on a daily basis.
In Friday’s hearing, the general public was allowed to dial-in remotely and listen to the arguments. There was so much public interest in the hearing that the conference call quickly hit the maximum capacity of five hundred. After that, people were unable to dial in unless others dropped out. News2A remained connected for the full four hours and fifteen minutes of the hearing.
We live-Tweeted the hearing for those unable to listen in.
Most of the public interest seemed to be on the part of gun owners across the Garden State that have only had a brief taste of firearms freedom in their lifetime.
The hearing started off with David Jensen, counsel for the Koons plaintiffs, making his case to the judge. He seemed to stumble a little bit, with Judge Bumb asking him why he was making the State’s case for them. Jensen, did however, make a very good point, which we captured in this tweet:
Jensen: If all government properties were to be off limits, you wouldn't need to specify schools, as they are already owned by the gubmint. #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
Continuing on the subject of the carrying of arms on property owned by the government, Judge Bumb seemed to have a good handle on the US Constitution and the principles of the Bruen ruling. At a certain point, she almost seemed to be attempting to help Mr. Jensen get back on track with his argument.
Bumb: is it critical that there be a government function occurring for a place to fall under a sensitive place restriction? Jensen: airports, stadiums might be government-owned, but there’s no government function occurring. #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
In a rare moment, it seemed as though Judge Bumb, the plaintiffs, and the State all had one point they could agree on. On the subject of guns in legislatures and polling places, Dan Schmutter, counsel for the Siegel plaintiffs, stated in agreement:
Schmutter: the main point Bruen makes is government function should never be coerced by threats to security. #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
One often-used argument by governments trying to ban guns or pass some for of gun control is that they are doing it “in the name of public safety”. Passing laws against the rights of the law-abiding American citizens for this reason is known as “interest balancing”. The US Supreme Court, first in Heller, and again in Bruen, rejected the interest-balancing test.
While judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here. The Second Amendment “is the very product of an interest balancing by the people,” and it “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms” for self-defense.
Heller, 554 U. S., at 635. Pp. 15–17.
The State’s entire justification of the Carry Killer law has been based on the rejected interest-balancing test. They have been unable to provide valid historical analogues, as required by Bruen, to validate their defense of the new law. Dan Schmutter made sure to remind the court of this:
Schmutter: Any argument that anti-2A officials make against guns is, on its face, interest balancing. Bruen has struck this down. #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
Another hot issue argued was the State’s sharp increase in fees required to exercise the 2nd Amendment right. This lawsuit challenges the significant increase in the cost to obtain a permit to carry a handgun as well as the unconstitutional permit to purchase a handgun. The argument presented is that these fee increases make it difficult, if not impossible, for those that do not have any income to spare to exercise a Constitutionally-guaranteed right.
In fact, during the various Assembly committee hearings and then finally, during the full Assembly vote on the bill, Assemblyman John McKeon made a few out-of-touch, and even racist remarks, when it came to justifying the cost increases.
On this topic, which didn’t go on for too long during the hearing, Judge Bumb brought up recent opinion of the US Court of Appeals for the Second Circuit. Part of Dan Schmutter’s rationale for saying that the State got it wrong when it came to fees is that the fees don’t go towards background checks. The legislation, as written, states that a good portion of the money is to go to the Crime Victims’ Compensation Fund. The irony is that the fees are being saved on the assumption that lawful carry permit holders will engage in criminal activity.
Schmutter: the fees are so exorbitant in order to exercise the right to bear arms, that they are, de facto, posing irreparable harm. Cites case law. #NJCarryKiller Bumb: how does the court resolve this? Schmutter: this is a facial challenge.— News2A (@News2ATeam) March 17, 2023
Judge Bumb: the Second Circuit upheld a fee of $300. Did they get it wrong? Schmutter: Yes! Fees are invalid if they do not directly cover the cost of regulation. #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
Schmutter: the process itself has to be constitutional before we even address fees. The State can't defend its process. #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
Judge Bumb: What's a fair fee? Schmutter: We're not challenging that right now, but we could in the future. #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
My quick answer would be something like: "Well, it should be about the same price as a fee to get a dog license or drivers license or the same fee as registering to vote. That the gun license is Orders of Magnitude higher than those proves too high https://t.co/E40Luc2Wyn— Mark W. Smith/#2A Scholar (@fourboxesdiner) March 17, 2023
Up until this point, with the exception of people that attended past court hearings in person, nobody had really heard the State present its arguments in court before. In prior hearings, during the TRO phase of the case, the State seemed to stumble in its arguments. It oftentimes seemed as though the State had a lack of preparation. During this phase of the litigation, despite not having nearly enough evidence to justify the new “sensitive places” law, the State seemed much more prepared.
In the words of one user on NJ Gun Forums:
Today was the first time I had an opportunity to hear these lawyers. In the past, I had read comments which characterized Cai as a bumbling moron. What I heard from her today was clear and focused. She was very well-prepared. I totally disagree with her arguments and premise, but she is no dummy.
Angela Cai, an attorney for the State, started getting into English common law, the Statute of Northampton and then later into irrelevant laws from the period of Reconstruction, after the Civil War, to back up the State’s argument. However, as we’ve all been taught by Mark Smith of The Four Boxes Diner YouTube channel, historical analogues from that time period cannot be used to justify new gun controls. Analogues from that time period may only be used to confirm laws from the founding period of our nation.
In fact, Mark Smith was following our live Tweet session and chimed in numerous times to provide expert historical perspective to our audience.
Correct. The meaning and scope of the ENTIRE Bill of Rights, including the 2nd Amendment, is set in 1791. Late 19th century legal precedent may be "relevant" but ONLY AS A CONFIRMATORY ANALYTIC. Kavanaugh Dissent in Heller 2 does great job explaining that this is true and why. https://t.co/6WJTItlCPh— Mark W. Smith/#2A Scholar (@fourboxesdiner) March 17, 2023
Sticking to the only time period from which the State can really find any similar historic analogues, 1868 and later, Cai seemed to making the same mistakes several other states have made. That is, the State erroneously relied upon racist gun laws that were put in place for the express purpose of preventing the newly-freed slaves from keeping or bearing arms.
Cai: Northern states and southern states understood the right to bear arms differently. #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
Judge Bumb: most of the historical evidence you're citing comes from southern states. Is that relevant? Cai: This was a policy problem. Cai edges around the racist laws that prevented freed slaves from owning guns and says they were found to be "constitutional". #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
Next on the topic list was casinos. Most recently, all nine of New Jersey’s casinos issued a joint statement declaring the casinos as off-limits to firearms under the rights of private property owners. Anyone who has lived in New Jersey long enough knows that this is most likely the result of collusion between the State Government (which hates firearms freedoms), and the casinos, who have received bailouts and financial assistance from the State.
Angela Cai states that they are not “in cahoots” with the casinos. However, recent public records requests have revealed an email chain strongly suggesting quite the opposite. These emails seem to suggest a good bit of top-down pressure on the casinos to ban guns. The casinos had not expressly forbidden firearms until this point.
Bumb asks Cai: If Mr. Koons walks into the Tropicana with a firearm, is he being prosecuted for trespassing or A18? Cai says: either #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
The problem with this is that trespassing is a minor offense. It can become criminal, but in general it’s a minor offense.
At some point, the topic of “transportation hubs” came up. A transportation hub is not defined in New Jersey law. Yet, they are off limits to concealed carriers. The conversation transitioned between bus stops, marinas, airports, etc. Judge Bumb, being fair to both parties, while also respecting the US Constitution, seemed to take issue with this. At one point, she stated that this topic may possibly be “void for vagueness”.
Judge Bumb: Define a public transportation hub. There is no legislative definition. If I don't know, not so sure plaintiffs know. A bus stop at exit 3 of the Turnpike? #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
Bumb: Is a bus stop a transportation hub?— News2A (@News2ATeam) March 17, 2023
Cai: No #NJCarryKiller
Bumb: Is a marina a transportation hub?— News2A (@News2ATeam) March 17, 2023
Cai: I dont know. I dont think so.
Bumb: If you don't know what a transportation hub is, how would the plaintiffs? #NJCarryKiller
State's argument starts to fall apart as they can't define a transportation hub. Judge Bumb: if you don't know what a transportation hub is, how do plaintiffs know? #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
Judge Bumb: what about privately owned airports? Cai: plaintiffs haven't demonstrated they need self defense on an airplane. Prohibition should apply to all airports. #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
Judge Bumb: what about driving to drop family and friends at an airport? Cai: you can do that, but you can't go into the airport. #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
The state's position is impossible to understand.— News2A (@News2ATeam) March 17, 2023
You can't have a coffee, but you can drop luggage off. Everything is subject to their interpretation. That's now how law works. #NJCarryKiller
Now into the subject of the State’s default prohibition of concealed carry on ALL private property without first having obtained express consent from the owner of that property. One of the big arguments here is that requiring a homeowner or property owner to post a sign either allowing or disallowing the carry of firearms on private property is equivalent to “compelled speech”. It is considered compelled speech because it is requiring a property owner to espouse their beliefs in one direction or the other. This is something many property owners may not want to do and it is not within the government’s authority to compel speech.
They are now talking about the default prohibition on private property. Cai doesn't think the fact that a person has to "express" that they welcome carry is not the same as "compelled speech" #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
Cai: There is no compelled speech. No problem at all. #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
Bumb: What about the people who are fine with guns but don't want to broadcast that? What do you say to those people?— News2A (@News2ATeam) March 17, 2023
Cai: Well... you don't have to broadcast that... maybe a sign or put it on your website
Judge Bumb: what about those who are OK with guns on their property but don't want to communicate that? Cai: ummmmmm, maybe there are other things they can do? #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
Cai says: theres only two options. Silence means come IN with a gun or stay OUT with a gun. #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
Judge Bumb suggest there could be no default rule at all. #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
At a certain point during the Tweetfest, Mark Smith of The Four Boxes Diner chimed in with historical info regarding the only analogues the State could come up with in an attempt to justify banning the carry of arms on private property.
Some 18th Century NJ laws barred "guns" on "lands", which constituted a HUNTING regulation. In 18th century "GUNS" did NOT include pistols. A 18th cent ban on carrying long guns is not an Analogue for modern day limits on carrying HANDGUNS on private property for self defense https://t.co/52HxBB6YMR— Mark W. Smith/#2A Scholar (@fourboxesdiner) March 17, 2023
Arguments moved on to the topic of required insurance, an extremely sensitive point because Governor Murphy previously banned the ability for residents to buy such insurance, yet the new bill requires permit carry holders to have such insurance. Not only is it not available within most homeowners insurance policies, because it’s an intentional act, which Judge Bumb recognized, there doesn’t seem to be any historical analogue for such insurance.
State: The insurance provision is intended to cover accidental (no such thing) discharges. Not intentional acts. #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
Judge Bumb drops a bomb! With regard to insurance, homeowners policies exclude intentional acts (such as self defense). #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
State: You don't want to encourage the intentional discharge at another person.— News2A (@News2ATeam) March 17, 2023
Digging deeper into the law, Judge Bumb asked the State to define “unjustifiable display”, a term that has become well-known because of the numerous provisions in the law that require permit holders to disarm and rearm as they go about their day avoiding sensitive places. Beyond being unable to provide a solid, satisfactory answer, the State speculated on many “John Wayne” types twirling a gun on their finger. None with precedent.
At this point, Edward Kologi, co-counsel for intervenors Senate President Scutari and Assembly Speaker Coughlin, decided to bring up the notorious Johns Hopkins study cited as evidence that states that issued concealed carry permits become afflicted with more violence than those that don’t. Judge Bumb asserted, with righteous indignation, that the study was flawed and improperly referenced and didn’t belong in the State’s law. The study points to a permitless system, which is the very opposite of the New Jersey law.
Kologi is bringing up the same Johns Hopkins study that analyzes transitioning to a permitless carry system which is not what we're dealing with here in Jersey. This is the second time she has called him out for this. #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
Judge Bumb points out the obvious: the Johns Hopkins study points to a permit-less system which is not applicable to the argument here.— News2A (@News2ATeam) March 17, 2023
State's response: we have a different viewpoint.
Judge Bumb: you're saying when there are more guns there is more violence.#NJCarryKiller
#2A fyi. Johns Hopkins Public Health School is named after Michael Bloomberg. See here BLOOMBERG SCHOOL OF PUBLIC HEALTH https://t.co/9T2BVlqtBo @News2ATeam https://t.co/mW8aw3uins— Mark W. Smith/#2A Scholar (@fourboxesdiner) March 17, 2023
Kologi aimlessly wandered through a number of topics for upwards of 20 minutes without a great deal of interruption from Judge Bumb, until he unknowingly, and rather amusingly stepped on a land mine when he stated, “Guns only have two functions: to kill or to injure.” Judge Bumb’s immediate response underscored not only her use of logic and reason, but her reverence for the Constitution.
Bumb: You said guns only have 2 functions: to kill or seriously injure. You forgot about the right to self-defense.— News2A (@News2ATeam) March 17, 2023
Judge Bumb: it's important to the conversation about the words we use. Do guns kill? Yes? Do guns give a person the right to self defense? Yes.— News2A (@News2ATeam) March 17, 2023
Judge Bumb understand basic logic.#NJCarryKiller
Judge Bumb also used that opportunity to point out a tremendous flaw in the State’s main argument.
Judge Bumb: you seem to be saying there's no difference between a law abiding person who passed all the state's requirements and someone who hasn't. #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
Bumb is calling out the state for its equating law-abiding, vetted, permitted people to felons with guns.— News2A (@News2ATeam) March 17, 2023
LOVE this judge! #NJCarryKiller
Judge Bumb: you are asking this court to presume that those who have valid carry permits will somehow engage in violence. That is a step taken too far if you cannot show evidence of such. #NJCarryKiller— News2A (@News2ATeam) March 17, 2023
In another amusing admission by the State, which Judge Bumb made sure to get them to commit to the record, the State reaffirmed its simplistic and unproven argument that “more guns are bad”.
The State repeats itself:— News2A (@News2ATeam) March 17, 2023
More guns are bad.#NJCarryKiller
After over four hours of arguments, Judge Bumb called the session to a close, providing both parties the opportunity to submit a brief limited to ten pages to respond to any of the topics. The briefs must be filed with the court by Monday, March 27.
Summary: It is the opinion of the News2A team that despite a rocky start from the plaintiffs, and a polished delivery from the State’s Angela Cai, the State failed to move the needle far enough to convince Judge Bumb that a preliminary injunction wasn’t warranted. The State brought forth little new evidence, and entrenched itself in arguments that are clearly unconstitutional. While David Jensen’s and Dan Schmutter’s arguments at times seemed ill-coordinated and poorly delivered, Judge Bumb’s questions and comments seemed indicative that she has not moved her position very far from the reasoning that caused her to issue a Temporary Restraining Order in the first place. While anything could occur, we would not be surprised if Judge Bumb granted the Preliminary Injunction, possibly with some additional considerations that would benefit plaintiffs, especially on the topic of insurance, fees, and maybe, additional sensitive places.
Was there any further information on youth sports?
I can’t understand why neither attorney for the plaintiffs mentioned that several states have ELIMINATED carry permit fees AND that such fees clearly violate multiple long standing Court rulings on attaching fees to the exercise of a right. Murdock V Pennsylvania and Shuttlesworth V Ohio
Monday March 27th, not the 20th