NJ FU to SCOTUS Bruen Opinion

The decision of the United States Supreme Court in New York State Rifle & Pistol Association v Bruen holds significant implications for carrying a handgun in New Jersey and the law governing the issuance of permits to carry a handgun. The Bruen decision establishes that states cannot deny permits to carry a handgun to otherwise-qualified citizens who fail to show that they have the “proper cause” to carry a handgun. New Jersey law relies on a similar standard, considering whether an applicant has a “justifiable need,” in determining whether to issue a permit to carry a handgun.

In accordance with the precedent established in the Bruen decision, laws requiring showings of particularized need are no longer legally viable to determine whether a person may carry a handgun in public. The Bruen decision does make clear, however, that the Legislature can enact laws to protect our communities from threats to public health, safety, and welfare posed by gun violence, which take into account as appropriate the Supreme Court’s Second Amendment ruling while continuing to promote and enhance public safety.

The first paragraph agrees that NJ can no longer require a “justifiable need”. “All lawful purposes” is all that is needed. (That is the standard phrase I was told to put on CCW applications when they ask “why?”)

The second paragraph acknowledges that there are some laws that can infringe and Bruen did say as much. It is that the Bruen statement was much more limited than what the NJ legislature (and NY) did.

Statistics show that expanding handgun carrying creates safety risks, helping to fuel the epidemic of gun violence. For example, a study by researchers at the Johns Hopkins Bloomberg School of Public Health found that the estimated average rate of officer-involved shootings increased by 12.9 percent in ten states that relaxed restrictions between 2014 and 2020 on civilians carrying concealed firearms in public. Accordingly, evidence demonstrates that more guns on the streets can translate into more acts of gun violence. To mitigate the impact of having more people carrying guns in public places, steps must be taken to better ensure that those who exercise the right to carry are responsible, law-abiding, and appropriately trained individuals who would not pose undue safety risks if armed in public places.

Here they have lost it. There is NOTHING in statistics or votes or polls that allow any law that infringes.

In Bruen, the Supreme Court recognized that states may prohibit individuals who are not “law-abiding, responsible citizens” from carrying firearms in public, and endorsed the use of “licensing requirements for carrying a handgun for self-defense.” Although the Court did not provide a complete list of lawful requirements, it specifically cited a “background check, mental health check, training in firearms handling and in laws regarding the use of force, among other possible requirements” as permissible. The purpose of these checks, the Court explained, is to “ensure only that those bearing arms in the jurisdiction are in fact, ‘law-abiding, responsible citizens.’” It is thus important to bolster and improve the process in this State for ensuring that only such individuals possess and carry firearms. Toward that end, this act strengthens the criteria and background investigation requirements that are used to determine whether an applicant is qualified to carry a firearm in New Jersey.

But Bruen doesn’t actually say that that background checks, mental health records check, training in firearms, and in laws regarding use of force were permissible. Bruen says that 43 states are shall-issue and may require… This is not the same as giving permission. This is a statement of the current situation. English is hard for some people.

By contrast, 43 States employ objective shall-issue licensing regimes. Those shall-issue regimes may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements. Brief for Arizona et al. as Amici Curiae 7. Unlike New York’s may-issue regime, those shall-issue regimes do not grant open-ended discretion to licensing officials and do not require a showing of some special need apart from self-defense. As petitioners acknowledge, shall-issue licensing regimes are constitutionally permissible, subject of course to an as-applied challenge if a shall-issue licensing regime does not operate in that manner in practice. Tr. of Oral Arg. 50-51

— Bruen

It is always important to understand that the Supreme Court is always answering the question that is put to it. They can’t answer questions that are not put to them. So the question was asked in Bruen is it constitutional to require good cause to get a permit to carry? The court answered “Hell NO!” and then went on to instruct the inferior courts on how they should answer other second amendment questions.

It is highly likely that at some point in the near future there will be lawsuits filed questioning the requirement to get a permit to carry at all. At that point the state will be the defendant and will have to provide the district court with analogous laws from around 1791 that show that there were laws requiring government permission to carry a gun. There aren’t any that are not outliers.

Of course NJ went deep into the “sensitive places” places.

Heller as quoted in Bruen says “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings…” (No other places are explicitly listed in the pull quote in Bruen from Heller.

So they have schools and government buildings from Heller but again, the question of are all government buildings “sensitive places” has not been asked of the court.

To be clear, even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster. For example, courts can use analogies to “longstanding” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” to determine whether modern regulations are constitutionally permissible. Id., at 626, 128 S.Ct. 2783. That said, respondents’ attempt to characterize New York’s proper-cause requirement as a “sensitive-place” law lacks merit because there is no historical basis for New York to effectively declare the island of Manhattan a “sensitive place” simply because it is crowded and protected generally by the New York City Police Department. Pp. 2131-2134.
–Bruen

Here it is explicitly stated in Bruen that a place being crowded does not make it a “sensitive place”.

From Bruen “Although the historical record yields relatively few 18th- and 19th-century “sensitive places” where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions.”

Here is that magic phrase again, which we saw in Miller “we are also aware of no disputes…” This is court speak for “nobody asked the question, nobody presented evidence, thus we can’t answer the question.”

From Miller, Heller, McDonald, and Bruen we have the following list of “sensitive” places that the Supreme court has listed.

1. Schools
2. Government Buildings
3. Legislative assemblies
4. Polling places
5. Courthouses

Note that Bruen removed the “Government Buildings” and replaced it with “Legislative assemblies”.

The sensitive-place prohibitions on dangerous weapons set forth in this act are rooted in history and tradition. They are analogous to historical laws that can be found from the Founding era to Reconstruction, which are also found in modern laws in many states. History and tradition support at least the following location-based restrictions on carrying firearms:

In standard infringer methods they list NO laws from that time that support sensitive places. They then proceed to list all of the places which they are declaring to be gun free zones.

• Places that are the site of core constitutional activity
• Schools
• Parks, recreation spaces, any place where children congregate (think under 18)
• Any place where there are “vulnerable classes of people”
• Any place that alcohol is sold
• An place where “large” groups of people congregate
• Places where volatile conditions may pose a threat to public safety
• transportation and public infrastructure
• Private property without consent of the property owner (This means that renters might not have the right to have guns in their own home)

There is a wealth of hoops that a permit applicant must jump through before they might be given government permission to exercise a fundamental right guaranteed under the constitution. Training, permission to purchase, universal background checks, 4 references that are not related and on and on and on.

NJ Bill S3214 2022-2023