Koons v Platkin — Bruen Spasm Response

B.L.U.F. A District Judge in New Jersey issues her order and opinion on a motion for a Preliminary Injunction. She is not happy with the state. She does an okay read of Bruen, finds in part for the plaintiffs (good guys) and in part for the defendants (bad guys/state).

Good News

In conclusion, the Second Amendment’s “right to bear arms in public for self-defense is not a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’” Bruen, 142 S. Ct. at 2156 (quoting McDonald, 561 U.S. at 780). That does not mean, however, that the right is “unlimited.” Heller, 554 U.S. at 626. The Constitution leaves the States “some measures” to combat handgun violence. Id. at 636. But what the Second Amendment prohibits the States from doing, and what the State of New Jersey has done here with much of Chapter 131, is to “prevent[] law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.” Bruen, 142 S. Ct. at 2156. That is plainly unconstitutional.
— KOONS v. PLATKIN , No. 1:22-cv-07464, Doc. 124 at 234 (District Court, D. New Jersey, May 29, 2023)

The short answer, here, is that the Judge gets it. Chief Judge Renee Marie Bumb has written a 235-page opinion that is extensive. While the final outcome is not a 100% win for the Second Amendment, it is still a devastating take-down of the state.

History

In Bruen’s wake, New Jersey’s Legislature sprang into action, amending the State’s firearm laws in many ways. First, the Legislature dropped the State’s firearm law requiring a person to show “justifiable need” to carry a handgun in public for self-defense—a requirement that Bruen explicitly struck down. Second, the Legislature created a list of 25 “sensitive places” where firearms are banned under threat of criminal prosecution. These places range from government-owned buildings, libraries, entertainment facilities, and restaurants that serve alcohol to all private property unless prior consent to carry is given. In enacting the sensitive places law, the Legislature purported to abide by Bruen by declaring the Nation’s “history and tradition” supported banning firearms at these identified locations. 2022 N.J. Laws, ch. 131, § 1(g).
— Id. at 7

A pretty good start. sprang into action has that sort of dig against the state the Courts do when they are telling the state they understand the nefarious motives of the state.

She writes The new legislation, in [plaintiffs] minds, was nothing more than a sovereign’s knee-jerk reaction to a Supreme Court ruling the State abhorred.¹ — Id.. Footnote 1 says: Plaintiffs’ sentiments are well-grounded given the declaration of Assemblymen Joseph Danielsen, the law’s primary sponsor: “[b]ecause of Bruen, more New Jerseyans will die as result of gun violence.” An Act concerning the Sale and Possession of Firearms and Supplementing and Amending Various Parts of the Statutory Law: Floor Debate on A4769 Before the Gen. Assemb., 2022-2023 Leg., 220th Sess. (N.J. Nov. 21, 2022) — Id. No. 1

She hammers home some of the plaintiffs arguments To these Plaintiffs, the Legislature’s message was clear: leave your Second Amendment rights and guns at home. — Id. at 8. That is powerful language from the Court. That is not a quote from the plaintiffs, instead it is her paraphrasing the plaintiffs.

Here, the Court really slams the state:

Upon their initial applications, the Court agreed with Plaintiffs, temporarily enjoining certain provisions of the law, setting this matter down for a preliminary injunction hearing after the parties had engaged in discovery and a more complete record was developed. Remarkably, despite numerous opportunities afforded by this Court to hold evidentiary hearings involving the presentation of evidence, the State called no witnesses. And despite assurances by the State that it would present sufficient historical evidence as required by Bruen to support each aspect of the new legislation, the State failed to do so. Finally, even the social science studies, which the Legislature relied upon and the State adopted to support the new law (and to oppose preliminary injunctive relief here), are inapposite. At this preliminary injunction stage, the State has proceeded to justify the new legislation with “more of the same” that it had presented during the initial proceedings for temporary restraints. This has left the Court to do what the Legislature had said it had done, but clearly did not. The Court has conducted its own exhaustive research into this Nation’s history and tradition of regulating firearms that Bruen mandates; its analysis follows. This has taken some time, and the State’s effort to hurry this Court along is most unfortunate.
— Id. at 8-9

I hope you got that. The Court just said that the state failed to provide any history or tradition of regulations supporting their law. What they did provide was social science studies which are not regulation and do not satisfy the requirements of Bruen.

In addition, the Court just called the state on their attempt to force her hand. Back in early March, the state sent a letter to the court saying, “Hurry up, or we are going to bypass you and go directly to the Circuit Court.”. She responded by saying The Court since received over 2000 pages in briefing from the parties, the intervenors, and amici curiae, including numerous certifications with exhibits annexed thereto from Defendants… — KOONS v. PLATKIN, 1:22-cv-07464, (D.N.J.) ECF No. 106 The Court has in very polite judge speak said, “You dumped 2000+ pages of crap on me and didn’t do your job, so I had to.”

That does not make for a happy Judge.

…But what the State and the Legislature-Intervenors ignore, and what their empirical evidence fails to address, is that this legislation is aimed primarily—not at those who unlawfully possess firearms—but at law-abiding, responsible citizens who satisfy detailed background and training requirements and whom the State seeks to prevent from carrying a firearm in public for self-defense. — Opinion ECF No. 124 at 9 How many times have we said the same thing? This Court gets it.

The Bad News

That said, this Court finds that most of the new legislation’s firearm permitting requirements are consistent with the Second Amendment. This Nation has historically disarmed dangerous individuals or those who could endanger the public’s safety if allowed to have a firearm. The new legislation adheres to that historical tradition because it aims to keep firearms out of the hands of New Jerseyans who could threaten the public’s safety.

Thus, for the reasons set forth below and after having conducted a thorough review of the complex issues presented by this new legislation, this Court grants, in part, and denies, in part, Plaintiffs’ motions for a preliminary injunction.
— Id. at 11

Yep, after all of that, the Court has decided that most of the Bruen response spasm is constitutional. What parts is what makes this interesting.

Recall our timelines, this is step two in the battle. Step one is TRO and/or summary judgement. Step two is the preliminary injunction. Step three is the actual injunction. This assumes that there are no appeals to the Circuit court.

In this case, I strongly suspect that by the time you are reading this on the 17th of May, the state will have filed notice of their intent to appeal. I was wrong, the order and opinion was issued at 1159 May 16th, the state filed their notice to appeal to the Third Circuit Court at 1446 May 16th. It is boilerplate stuff, so not surprising it happened so rapidly. They could also have already prepared it, in case the Court ruled against them.

Standing

As always, the state attempts to get a case thrown out for lack of standing. For a number of the plaintiffs, they already had carry permits. The state argued that because they already had carry permits, they were not affected by the new permitting requirements. The Court found that they did have standing because their current permits would expire within the next two years, and that is “imminent” from a legal view point.

On the other hand, some of the plaintiffs were found to not have standing to challenge the requirements for getting a permit because …Both Plaintiffs Cook and Siegel only declare that they “intend to apply” for more Purchase Permits Similarly, Plaintiff Henry only declares that she “qualifies for and imminently intends to apply for an FID and one or more Purchase Permits. …” — Id. at 36 Internal citations omitted.

For anybody who is intending to be a part of one of these lawsuits, it is important that you establish standing. Make sure you talk to your lawyer to make sure that you do everything required to get standing. So many of these cases die because the plaintiffs are found to not have standing.

All the First Amendment challenges were dismissed for lack of standing because no plaintiff identified any intended protected speech or conduct that they would refrain from. Chapter 131 requires certain certifications. Because the plaintiffs don’t know what speech the state will find offensive enough to deny a permit, the plaintiffs argue their speech is chilled.

The court says the state hasn’t presented any policies or regulations where that would happen. Because the state hasn’t done so yet, the plaintiffs can show that there is a strong likelihood of something bad happening. Many of us, on the right, feel that our speech is chilled. I know that I do not fly a Gadsden flag because I am concerned with pushback. It violates Grey man protocols as well.

We can fear that the state could decide that speaking out about grooming in the schools could be used to deny a FID or permit to carry. The Court does not recognize that as possible, so no standing. The Court makes a big deal about the plaintiffs not saying what they are fearful of saying.

I’m uncertain if I agree with the Court on this issue. “I’m afraid I’ll say something that is protected speech and be denied.” “Well, what is it you want to say?” “I’m afraid to say it for fear I’ll be denied.” “You haven’t articulated what speech you are concerned would lead to being banned, so you don’t have standing.”

Of importance, when a challenge is dismissed for standing, it is done without prejudice. The plaintiffs can refile if they believe they have gained standing.

Constitutionality of Chapter 131’s Application and Permit Process

The good news is that the Court finds that plaintiffs’ proposed conduct falls within the Second Amendment’s plain text. This means that the Court believes that permitting requirements are covered under the Second Amendment’s protections. This is a shot across the bow against all permitting schemes.

The state makes the argument that their permitting law was found constitutional in Bruen.

The State first argues Bruen endorsed Chapter 131’s statutory disqualifier on disarming individuals who lack the essential character of temperament to be entrusted with a firearm. [State Opp’n Br. at 86 (Docket No. 91).] According to the State, the Legislature based that statutory language on a Connecticut firearm licensing statute that, interpreted by Connecticut’s Supreme Court, allows licensing authorities to deny firearm licenses “to individuals whose conduct has shown them to be lacking the essential character or temperament necessary to be entrusted with a weapon.” [Id. (quoting Bruen, 142 S. Ct. at 2123 n.1 (quoting Dwyer v. Farrell, 475 A.2d 257, 260 (Conn. 1984)).] The State asserts that the Bruen Court found such a licensing law permissible and, therefore, this Court should deny the Siegel Plaintiffs’ challenge to New Jersey’s equivalent law. [Id.]
— Id. at 41

This is such a bogus reading of Bruen, and the court says as much.

True, Bruen did mention the Connecticut licensing law when discussing “shall issue” firearm licensing laws that did not require an applicant to make a separate showing of need to obtain a firearm carry permit. 142 S. Ct. at 2123 n.1. But Bruen did not pass on the constitutionality of the Connecticut law because that law was not before the Court. Bruen noted the Connecticut law and other “shall issue” jurisdictions’ laws “appear[]” … designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law abiding, responsible citizens.’” 142 S. Ct. at 2138 n.9 (quoting Heller, 554 U.S. at 635). Bruen left open the possibility of constitutional challenges to “shall issue” statutory laws because “any permitting scheme can be put toward abusive ends.” Id. This Court cannot accept Bruen’s passing reference to Connecticut’s firearm law as the Supreme Court’s wholesale approval of similar licensing laws. Rather, this Court must determine whether Chapter 131’s statutory disqualifiers are supported by well-established and representative historical firearm laws. Id. at 2133.
— Id. at 42

Double emphasis added.

This is something that we harp on. Every court opinion is about “The Question”. This is what the court is being asked to determine. With no question, with no conflict, there is no case. When an opinion is issued, there is the “holding”, and “dicta”. The holdings are law, the dicta tells inferior courts how to act. This court just slapped the state in the face regarding what a holding is vs what dicta is.

Here is a great point regarding how the state has been arguing and what it might actually mean:

This Court questions whether, after Bruen, the government can justify depriving citizens of their Second Amendment right based on pre-Bruen cases espousing the “virtuous citizen” theory of the Second Amendment. As explained below, the “virtuous citizen” theory of the Second Amendment views the right to right to keep and bear arms as a “civic” one, and those who lack respect for government authority, say by committing non-violent crimes, are deemed “unvirtuous” and unworthy to have arms. See generally Joseph G.S. Greenlee, The Historical Justifications for Prohibiting Dangerous Persons from Possessing Arms, 20 Wyo. L. Rev. 249, 275–83 (2020). That theory appears to lack historical support, rests on faulty justifications, and has come under fire.
— Id. at 43,44

Unfortunately, the Court has found … based on the State’s historical materials and the Court’s own research, this Court finds this Nation has a historical tradition of disarming dangerous individuals and those who endanger the public safety. From medieval England to early American colonial times to the Reconstruction era, the government disarmed people who posed a danger to others.Id. at 43. The Court found that Chapter 131 seeks to stop those that present a danger to themselves or others from obtaining permits.

The court documents English law, which Bruen explicitly states is not applicable. She also conflates laws criminalizing “bearing arms to terrorize the people” with banning of the right to bear arms. Doing evil with an arm is vastly different from having an arm.

I do not like what the court seems to be doing. Using these regulations to justify Chapter 131. But the Court does a damn fine job of it. She documents where the laws come from, what they did, quotes in context. This should be a master’s level lesson to the state. The only issue is that it isn’t a match and much of it is from the wrong time period.

The court spends 2 or 3 pages talking about laws that are not analogous and which are from the wrong era(s).

Turning to Bruen’s “how” and “why,” the above English and Colonial disarmament laws are “relevantly similar” to Chapter 131’s statutory disqualifiers. 142 S. Ct. at 2133. For all laws, the “why” is the same: to keep arms out of the hands of dangerous people or those who would endanger the public if allowed to have arms. The “how” of the laws is also similar since they each focus on the arms bearer’s conduct—an objective measure of an arm bearer’s dangerousness and threat to the public safety.
— Id. at 49

Double emphasis added.

There is a huge difference between “would” and “are”. Chapter 131 presumes that the state is capable of pre-crime detection and will thus deny a right to a member of The People. They are presuming the “would”. The laws of the founding era and previous are about disarming members of The People that are performing an illegal act. To wit, terrorizing the people.

The good of the Court’s reasoning is that they are not playing the nasty word games. For example, she uses “went armed to terrify the public” when discussing historical regulations. She doesn’t hide that the law is against an action, not a potential action. She got it wrong, but she isn’t hiding it.

Unfortunately, the Court also depends on history outside of regulations to support their findings. They quote from three State Constitutional Conventions that … confirm that the common law right to keep and bear arms did not extend to those who were likely to commit violent offenses. … — Id at 51 quoting United States v. Barton, 633 F.3d 168, 174 (3d Cir. 2011).

The People have performed means-end balancing when they ratified the Second Amendment. They heard the arguments and found them unpersuasive. The fact that they were discussed and discarded means more than the fact that they were discussed.

The court buys into the “sureties” argument. There is no indication that any of the sureties regulations were ever used. And again, they did not disarm anybody. At the most, they required a person to post a “bond”, promising to be good. And again, it was about an illegal action, not an illegal potential action.

We are at page 55 of 235 pages of opinion. This is a win for the Second Amendment community, but not a great win. This court left so much ammunition for the state to use in other cases that it bodes poorly for us.
(stopping at 3000 words)

Comments

4 responses to “Koons v Platkin — Bruen Spasm Response”

b-zh

2023-05-17

Damn, AWA… thanks for that read… I’ve been seeing commentary on this case from other sources, but none of them dig into the nuance of the Court’s reasoning as well as you do. Nor do many of them add original observation in quite the detail and clarity you have. Nice work – please keep it up!

1
1. b-zh
  
  2023-05-17
  
  and in related news, it looks like Maryland is up next:
  https://www.saf.org/saf-sues-maryland-over-restrictive-new-carry-law/
  
  SAF posted the announcement on 5-16-23… coincidence? I think not…
  1. awa
    
    2023-05-17
    
    The timing has more to do with the fact that the Governor signed the bill into law on the 16th. SAF had the suit all lined up and ready. They filed as soon as the bill was signed into law.
    
    1
    1. it’s just Boris
      
      2023-05-18
      
      The more I read about SAF the more impressed I am.
      
      2