PHILADELPHIA — Delivered on time and under the specified word count, all parties in the consolidated case challenging New Jersey’s “sensitive place” restrictions submitted their briefs to the Third Circuit en banc court on July 8.
In February of this year, the U.S. Court of Appeals for the Third Circuit reheard oral arguments in the Koons v. Davenport (formerly Koons v. Platkin) case challenging New Jersey’s post-Bruen “carry-killer” law, which was designed to effectively nullify concealed carry throughout the state.
After the Supreme Court issued its decision in Wolford v. Lopez on June 25 of this year, the court ordered concise supplemental briefs from all parties the very next day. The Wolford case challenged some of Hawaii’s near-identical carry restrictions, which were also passed in response to the Bruen ruling.
Briefs from the parties include references to both Wolford (place-based restrictions) and Hemani (prohibitions with regard to the usage of controlled substances).
The brief for the Siegel plaintiffs (authored by Daniel Schmutter and Paul Clement) observed that “Much of New Jersey’s defense of the sweeping provisions challenged here depends on exactly the kind of exceedingly high-level historical analysis that Hemani and Wolford emphatically rejected.”
That brief also brought forth many of New Jersey’s counterarguments that the Supreme Court cases nullified and concluded, “States cannot infringe Second Amendment rights in the name of federalism any more than they can abridge other constitutional protections.”
Similarly, the brief for the Koons plaintiffs (authored by David Jensen and David Thompson) opened with the observation that “The Court’s description of Hawaii’s efforts applies equally to New Jersey’s,” and went on to assert that the decision “requires this Court to affirm the district court’s decision holding unconstitutional New Jersey’s law presumptively banning the carry of firearms on private property held open to the public.”
Both briefs pointed out that the recent Supreme Court decisions provided clarity on how to apply the Bruen framework, something that inferior courts have consistently twisted over the past four years, whether purposefully or not.
Perhaps one of the most compelling arguments for the Third Circuit to rule against New Jersey is that the Supreme Court decision in Wolford (page 14) cited New Jersey specifically, noting that “After Bruen, Hawaii and four other States singled out in that decision flipped this default rule. Rather than allowing all to enter private property open to the public unless specifically prohibited, these new laws provided that no one carrying a firearm may enter without express authorization,” and provided a citation to N.J. Statute 2C:58-4.6(a)(24).
A brief was also submitted on behalf of the legislative intervenors. Those intervenors are the president of the N.J. Senate (Nicholas Scutari) and the N.J. Assembly speaker (Craig Coughlin). Both were directly involved in the initial passage of the bill through the Senate and Assembly. Their brief was the shortest of all and served to defend the unconstitutional laws they so proudly played a hand in passing.
Rather than take on the Supreme Court’s whole recent term, the two lawmakers narrowed their fire to a single case, Hemani, and argued it actually cut in New Jersey’s favor. Their brief ended with no doubt about where they stood: “[N]othing in Hemani calls into question the decision of the panel below. On the contrary: the Court’s decision fully supports the decision of the panel below.”
In plain terms, they are saying that Hemani, a ruling gun owners cheered, does nothing to weaken New Jersey’s carry bans and actually props them up. It is a bold bit of reframing, and a revealing one. Notice what they leaned on to get there: they built their whole argument around Hemani and left Wolford to the attorney general, which is a strange move considering Wolford pointed at New Jersey’s own statute as exactly the kind of law the Supreme Court had just struck down. Gun owners read the same two decisions the other way, as the beginning of the end for these restrictions.
Lastly, New Jersey Attorney General Jennifer Davenport submitted a 20-page brief that largely regurgitated previous arguments:
Because it is “settled” that States can regulate firearms in “sensitive places,” the only question is how broadly the longstanding and widespread sensitive-places tradition extends.
Davenport quickly deflects from recent SCOTUS decisions and demurs that “Rahimi remains instructive” (Rahimi is a favored decision by entities looking to further gun control laws).
In one rather amusing admission, the state posits that “English and American governments have repeatedly regulated firearms in places designated for (1) ‘the purposes of governmental services and peaceful assembly’ to prevent the ‘violent disruption … of government functions,'” but also leaves out the “disruption” of Americans shooting English tyrants that led to our recent 250th celebration of independence.
