Acting New Jersey Attorney General Jennifer Davenport has filed the state’s first response brief under her helm in the consolidated Koons v. Siegel challenge to New Jersey’s “sensitive places” ban, and predictably, the state’s posture in this case has not changed under new leadership.
The 34-page response brief filed on January 24 is an attempt to answer the January 8 brief filed by attorneys general from 24 states in support of New Jersey gun owners and Second Amendment rights.
That support, along with the Third Circuit’s decision to rehear the case en banc on February 11, and the significant number of state and national gun rights groups involved, is bringing a spotlight on this case which could create a circuit split on the topic of sensitive places – an outcome that would put it on the trajectory for potential consideration by the Supreme Court.
Gun rights groups involved include:
- Second Amendment Foundation (SAF)
- Firearms Policy Coalition (FPC)
- Association of New Jersey Rifle and Pistol Clubs (ANJRPC)
- Coalition of New Jersey Firearms Owners
- New Jersey Second Amendment Society
In its brief, New Jersey very much complicates the simple principles laid out in Bruen and other Supreme Court precedent, which uphold Second Amendment rights.
Davenport’s filing boldly proclaims that “Anglo-American history evinces centuries of measures limiting firearms at analogous sensitive places.”
The apologetic brief then goes on to state that, “the reason that sensitive-place statutes were less common at the Founding than Reconstruction has to do with policy – not constitutional constraints.”
The state also makes a novel case that restrictions on enumerated rights are correlated with violence, arguing, “Rather, as violence surged, States exercised the authority they always had to protect their residents at myriad sensitive places.”
The brief defends the state’s catch-all prohibition on carrying within 100 feet of a public gathering requiring a permit, bans at parks and beaches, and places that serve alcohol.
In contrast to New Jersey’s briefing, the January 8, multi-state, pro-2A defense lays out a simple framework for understanding this case and the current state of affairs under New Jersey’s broad prohibition on the carry of firearms, which is not couched in history, text, or tradition, but the interest-balancing approach of “public safety”:
And while the majority opinion at least facially attempted to interpret the Second Amendment under Bruen by analogizing to historical regulations – including mostly ones enacted well after the Founding – it ultimately resorted to many of the same abstract “safety” concerns that led New York to designate all of Manhattan a “sensitive place.”
