Lawyer challenging business woman in suit or lawyer working on documents Legal advice and justice Female lawyer working at law firm and squatting with court scales

This case is being set up for a bases loaded home run.

Consider the Second Amendment legal landscape of 4 years ago. Heller had set the standard. Is the plain text of the Second Amendment implicated? If so, what is this Nation’s historical tradition of firearm regulation?

This was a joyful time. I remember that D.C. became a constitutional carry location for about 5 minutes before they changed the rules.

The problem we had was that there was a footnote in the Heller opinion that the anti-gunners used to pry open the path to gun control.

California was one of the first states to drive through that gap. Chicago, Maryland, New Jersey, and others quickly followed.

These Heller response laws were challenged. The cases made their way up to the circuit courts, where we learned the wonderful world of interest balancing.

Under interest balancing, the courts would first ask the purpose of the law or regulation. If the proposed purpose was deemed to be “important” enough, then a lower standard of scrutiny would be applied. If the proposed purpose wasn’t important enough, then higher levels of scrutiny would be applied.

What this meant was that the courts looked like they were treating the plaintiffs with respect while putting four or five thumbs on the scales of justice.

The 9th, 7th, 2nd, 3rd, and 4th circuit courts all took up the cry of “interest balancing.” The other circuits weren’t ruling on Second Amendment cases, so it didn’t really matter.

All the circuits that took up Second Amendment challenges all decided in the same way. Against The People.

Bruen put an end to levels of scrutiny. The inferior courts are still playing games. The current game playing focuses on “Is it an arm?” and “Can you prove it is in common use for self-defense?” Their goal is to keep Bruen from being applied.

But we have a problem. All the circuit courts that are ruling on Second Amendment cases are ruling the same way. Against The People. They are still the same rogue, inferior courts, thumbing their noses at the Supreme Court.

But something has changed out there in New Jersey and the Third Circuit Court of Appeals.

Trump and other originalist jurists have become a majority in the Third Circuit.

If we can get just one more confirmation, and there is a nominee going through the process right now, it will be an even larger majority.

The People got a shitty draw of judges for the merits panel. Not that surprising. We expected another loss. Judges Shwartz, Freeman, and Smith heard oral arguments on July 1st 4-2450-24-2506_Association of NJ Rifle Pistol Clubs v. Attorney General N. Jetal.

Here is where it gets interesting: on the same day that the case was argued, the court ordered the parties to produce a transcript. Which was entered into the record on July 15th.

Why did they need a written record? Likely because they expected other courts or panels were going to want to read it.

Under the Third Circuit’s internal operating procedures, a merits panel must circulate their opinion(s) before they are published. This gives the rest of the judges on the court an opportunity to comment and provide suggestions.

But something else can happen: if a majority of the active judges are in disagreement with the proposed opinion, they can grant an en banc hearing sua sponte. (Without a request from either party). And this is what happened on August 21st.

We are pretty sure that the opinion by this three-judge merits panel was going to go against us. If the majority of the active judges agreed with that opinion, there is no reason to call for an en banc hearing.

En banc hearings in the Third Circuit are a pain. It is all the judges dealing with the one case. It isn’t common.

In Snope we saw the Fourth Circuit do the same thing; gut in that case, we were expecting a positive opinion.

Oral arguments will be held on October 15th at 0930.

The only wrinkle is that Judge Smith is no longer an active judge, but he has elected to participate as a member of the en banc panel. Smith is currently a senior judge, meaning he only hears cases of interest to him.

If the Third Circuit finds for The People and the Constitution, this will create a major circuit split. This makes the case ripe for the Supreme Court. Matching it with Kavanaugh’s dissent in refusing cert on Snope.

One thought on “Association of New Jersey Rifle and Pistol Clubs I v. Attorney General New Jersey, 24-2506, (3rd Cir.)”
  1. Any time you hear a “judge” speaking of “balancing” you’re witnessing someone violating the Plain English words of the Constitution.

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