Koons v. Reynolds: NJ Kill Carry challenge

B.L.U.F. This case covers the challenge to the knee jerk response of NJ to the Bruen opinion. The NJ “Kill Carry” bill follows the lead of NY’s CCIA.

On 2022-12-22 a suite was filed in the district court of New Jersey challenging the bills put into effect after Bruen and after New York’s CCIA. It uses almost the same methods to make it almost impossible for the public to legally carry a firearm.

Using the standard places at random are “sensitive places” where a legal gun owner could be charged and found guilty just for walking on the wrong side of the road with a firearm. To understand just how bad New Jersey firearms law is consider this New Jersey law:

Dum-dum or body armor penetrating bullets. (1) Any person, other than a law enforcement officer or persons engaged in activities pursuant to subsection f. of N.J.S.2C:39-6, who knowingly has in his possession any hollow nose or dum-dum bullet, or (2) any person, other than a collector of firearms or ammunition as curios or relics as defined in Title 18, United States Code, section 921 (a) (13) and has in his possession a valid Collector of Curios and Relics License issued by the Bureau of Alcohol, Tobacco and Firearms, who knowingly has in his possession any body armor breaching or penetrating ammunition, which means: (a) ammunition primarily designed for use in a handgun, and (b) which is comprised of a bullet whose core or jacket, if the jacket is thicker than.025 of an inch, is made of tungsten carbide, or hard bronze, or other material which is harder than a rating of 72 or greater on the Rockwell B. Hardness Scale, and (c) is therefore capable of breaching or penetrating body armor, is guilty of a crime of the fourth degree. For purposes of this section, a collector may possess not more than three examples of each distinctive variation of the ammunition described above. A distinctive variation includes a different head stamp, composition, design, or color.
— https://law.justia.com/codes/new-jersey/2009/title-2c/2c-39/2c-39-3

If you read through the court cases it means that you are not allowed to use JHP rounds in your carry weapon. Yep, you aren’t allowed to use personal defense rounds but the cops are. Those rounds are designed for multiple purposes, one of which is to stop over penetration.

The question

Do subparts 12, 15, 17 and 24 of section 7(a) and subpart 1 of section 7(b) of A4769/S3214 violates the right to bear arms secured by the Second and Fourteenth Amendments?

a publicly owned or leased library or museum; …
a bar or restaurant where alcohol is served, and any other site or facility where alcohol is sold for consumption on the premises; …
a privately or publicly owned and operated entertainment facility within this State, including but not limited to a theater, stadium, museum, arena, racetrack or other place where performances, concerts, exhibits, games or contests are held; … [and]
private property, including but not limited to residential, commercial, industrial, agricultural, institutional or undeveloped property, unless the owner has provided express consent or has posted a sign indicating that it is permissible to carry on the premises a concealed handgun with a valid and lawfully issued permit under N.J.S.2C:58-4, provided that nothing in this paragraph shall be construed to affect the authority to keep or carry a firearm established under subsection e. of N.J.S.2C:39-6[.]

— KOONS v. REYNOLDS — Complaint

and;

A person, other than a person lawfully carrying a firearm within the authorized scope of an exemption set forth in subsection a., c., or l. of N.J.S.2C:39-6, who is otherwise authorized under the law to carry or transport a firearm shall not do so while in a vehicle in New Jersey, unless the handgun is unloaded and contained in a closed and securely fastened case, gunbox, or locked unloaded in the trunk of the vehicle…

— Id.

In short they are asking if the sensitive places limits and carry in a vehicle are constitutional. Unfortunately this is limiting and the law was likely written with severability in mind so that if one part is ruled unconstitutional the rest of the law will stand.

The Arguments

The Plaintiffs (good guys) argument is simple:

These new “sensitive place” and vehicle transport restrictions are so far reaching and punitive that they effectively obliterate the ability to bear arms in public for the purpose of protecting one’s self and family—which the Supreme Court has ruled to be the “core” of the Second Amendment’s protections. As a practical matter, a person with a “permit to carry” now has the ability to “carry” an unloaded handgun inside a case while in their vehicle, and to then load that gun and carry it while they walk on the sidewalk or upon their own property. If this person ventures onto any place that is a “sensitive place”—and that is most public property and all private property without the owner’s express consent—they commit a felony crime. Forced to issue permits to carry handguns to qualified adults without regard to their perceived “need” for self-defense, the State has taken the approach, too clever by half, of declaring most of the State to be off limits to carry by private citizens.
— Id.

The defendants first argument is:
This case should be consolidated with another case which has a much broader base. At a strategic level this makes sense. If you are attacking one specific or a small subset of issues, in this case sensitive places and carry in a vehicle, that is a much more targeted situation. If, on the other hand, the case was consolidated attacking many different aspects, these aspects might get lost in the noise or the entire case could lose because of other issues not related to these particular issues.

The state attempts to say that a TRO and preliminary injunction are not valid requests because the law in question was enacted in response to Bruen to protect New Jerseyans from gun violenceBrief in Opposition. Totally missing that Bruen says there is no means-end allowed any more. The laudable goals of the law do not matter.

We are more interested in the merits of the case, ignoring the attempt to get the request for a TRO to go away and also ignoring the attempt to get the case to be consolidated with another case, the state lays out their argument:

Their first argument is that the plaintiffs have not established that they will suffer under the infringement. The Supreme Court has ruled that any law that deprives a person of their core civil rights is enough to meet the requirements for a TRO.

Moving to the merits of the case, they start with The Court explained that, there need not be “a historical twin” for the challenged law.Id.

This is the state arguing that they don’t have a good match of their law for something in the history and tradition of gun regulations but the court should allow them to have a stretch to get there.

Consistent with that test, the Bruen Court recognized that the right to publicly carry a firearm “has traditionally”—and constitutionally—“been subject to well-defined restrictions governing the intent for which one could carry arms, the manner of carry, or the exceptional circumstances under which one could not carry arms.” Id. at 2138. The Court specifically identified that historical tradition as including (1) licensing requirements and (2) prohibitions on carrying firearms in “sensitive places.” Id. at 2133, 2138 n.9. The Court specified that “nothing in [its] analysis should be interpreted to suggest the unconstitutionality” of provisions “designed to ensure only that those bearing arms … are, in fact, ‘law-abiding, responsible citizens.’” Id. at 2138 n.9 (quotation omitted). And the Court “assume[d] it settled” that prohibiting firearms in certain locations (e.g., “schools and government buildings,” “legislative assemblies, polling places, and courthouses”) and analogous “new” sensitive locations is constitutional. Id. at 2133.
— Id.

I’m happy that the state marks that they added —and constitutionally— but that isn’t true. The constitutionality of those regulations was not challenged so there is no historical record of those regulations being held to be constitutional. Next, the quote in this paragraph is interesting because of what it leaves out:

With these principles in mind, we turn to respondents’ historical evidence. Throughout modern Anglo-American history, the right to keep and bear arms in public has traditionally been subject to well-defined restrictions governing the intent for which one could carry arms, the manner of carry, or the exceptional circumstances under which one could not carry arms. But apart from a handful of late-19th-century jurisdictions, the historical record compiled by respondents does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense. Nor is there any such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense. We conclude that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper-cause requirement. Under Heller‘s text-and-history standard, the proper-cause requirement is therefore unconstitutional.
— Bruen P.2138

First notice that the paragraph doesn’t actually say what the state wants the court to think it says. The Bruen Court says that there is “modern” history. Modern is not the same as historical tradition from 1791. Thus this does not give leave to ban carry.

Next the Bruen Court says that it was regulations on “intent” or “exceptional circumstances” that were regulated. The NJ law says nothing about intent nor does it address exceptional circumstances. The state then moves on to sensitive places. This is where the Bruen Court says that there is a presumption that regulations on longstanding regulations prohibiting firearms in schools, government buildings, legislative assemblies, polling places, and courthouses were forbidden the Supreme Court has not been asked to rule on a question about sensitive places.

This means that the language of Bruen doesn’t say that such regulations are constitutional, it just says that they have not been asked to rule on the constitutionality of those regulations.

This is still attempting to get the court to agree that “intent” laws are analogous to outright banning of carrying firearms in certain locations. They are also attempting to get the court to agree that all the places that they list as “sensitive places” are equivalent to the very few historical sensitive places.

This next language is very interesting, In passing the bill, the Legislature noted that Bruen “makes clear … that the Legislature can enact laws to protect our communities” by respecting “the Supreme Court’s … ruling while continuing to promote and enhance public safety.”Brief in Opposition. The state seems to want the court to interpret the legislature’s petulant temper tantrum as attempting to stay within the bounds of Bruen. Most reasoning people would better interpret the statement as a big F-You from NJ to the Supreme Court. the Legislature can enact laws to protect our communities [by infringing on the rights of The People]

One of the big things for the state is to keep the court from issuing a TRO. To that end they argue that the plaintiffs don’t have standing. According to the state the plaintiffs have to substantiate — or even allege —Brief in Opposition plans to visit the sensitive places. The state is trying to argue that these people didn’t actually want to visit private property or drive a car or any of the other restrictive places.

In the vehicle situation the state argues that the plaintiffs don’t have a real claim because …this claim is speculation that “[i]f [he] were to need [his] handgun to protect [him]self, [he] would need to remove it from its container and then load it, which [he] likely would not have time to do.”Brief in Opposition Yep, having a firearm in a locked and secured container and unloaded wouldn’t actually keep you from getting to it, loading it and then using it. You have all the time in the world.

There is a scene in a Clint Eastwood movie where he is armed with a SAA and the bad guy with a lever action. The have both shot their weapons dry and now need to reload. Clint pops the loading gate, ejects one spent round, inserts a fresh round, spins the cylinder to the correct location, cocks and fires.

He only had time to get one round in. Bad guy with lever action attempted to feed a round into the loading gate before racking the action. He could have just opened the breach, dropped a round in, closed and fired.

The state then goes on to claim there the plaintiffs have not shown …a history of past enforcement or enforcement warnings… in regards to this law. Ignoring the fact that NJ is so anti-gun that people are terrified to travel through the state.

Results

On 2023-01-09 Judge Renée Marie Bumb issued her opinion agreeing with the plaintiffs and granting the TRO. She produced a 60 page opinion.

Conclusion

Plaintiffs have demonstrated a probability of success on the merits of their Second Amendment challenge to the relevant provisions of Chapter 131 Section 7(a), which criminalizes carrying handguns in certain “sensitive places,” subparts 12 (public libraries or museums), 15 (bars, restaurants, and where alcohol is served), 17 (entertainment facilities), and 24 (private property), as well as section 7(b)’s ban on functional firearms in vehicles. The State may regulate conduct squarely protected by the Second Amendment only if supported by a historical tradition of firearm regulation. Here, Plaintiffs have shown that Defendants will not be able to demonstrate a history of firearm regulation to support any of the challenged provisions. The deprivation of Plaintiffs’ Second Amendment rights, as the holders of valid permits from the State to conceal carry handguns, constitutes irreparable injury, and neither the State nor the public has an interest in enforcing unconstitutional laws. Accordingly, good cause exists, and the Court will grant the motion for temporary restraints. An accompanying order of today’s date shall issue.
— Koons v. Reynolds – TRO Opinion

Next Steps

The case next moves onto getting an injunction.

In looking at just one of their “experts” he brings up 3 or 4 laws in support of making private property a “sensitive place” by default. All of them are hunting regulations.

Mark Smith brings up an interesting point in regards to many of these laws being used. They ban the carrying of “guns” but not “pistols”. The language of the time suggests that guns are long guns and shotguns while pistols are hand guns. Most, if not all, of the laws limit the carrying of “guns” but not “pistols” which could prove interesting in the future.

There is a significant amount of testimony from the parties to be looked at but the next major action is a hearing on 2023-03-17, this Friday. We’ll see where that takes us.

Comments

One response to “Koons v. Reynolds: NJ Kill Carry challenge”

Bad Dancer

2023-03-14

Jersey is its own little pile of madness and weirdness. Look at how gleefully they prosecute people who should be protected on the basis of passing through and railroad them or oh so graciously allow them to plead down to some minor charge in the face of years in jail and tens of thousands in legal fees.

Their idea of private property is a clever tactic as they reckon many folks would want to preserve those rights of are just not watching it.