Second Amendment Foundation founder and executive vice president Alan Gottlieb joins today’s Bearing Arms’ Cam & Co with his take on a federal judge granting a temporary restraining order blocking several components of New Jersey’s newly-enacted restrictions on the right to carry in a case brought by a coalition of gun owners and 2A groups including SAF.
I’m especially glad to get Gottlieb’s perspective given the gaslighting we’ve seen from Gov. Phil Murphy in his first response to U.S. District Judge Renée Marie Bumb’s decision to grant the TRO; smearing the judge while making it seem like she actually found most of the new carry restrictions to be in line with the Constitution and the Bill of Rights.
Gov. Murphy’s office issued a statement Monday night calling the ruling an “errant decision” and said it would work to fully reinstate the law.
“While we are pleased that most of our concealed carry law remains in effect,” the statement said, “we are disappointed that a right-wing federal judge, without any serious justification, has chosen to invalidate common sense restrictions around the right to carry a firearm in certain public spaces.”
The main reason that some of the new policies remain in effect (including the state’s insurance mandate for concealed carry holders and the increased fees to apply) is that they weren’t a part of the challenge brought by SAF/FPC/CNJFO/NJSAS and three individual plaintiffs; not because of any mistakes in oversight on the part of the 2A groups, but by design.
“We won on every count we asked the judge for,” Gottlieb explained. “We tailored our complaint fairly narrowly up front because we wanted two things; we wanted to win on everything, and the second thing is we wanted a temporary restraining order issued quickly. So rather than file the kind of suit that would drag on in court for weeks or months, we filed something to get an immediate victory on, and now we can go back and expand it.”
As for Murphy’s complaints that Bumb is engaging in “right-wing” judicial activism with her decision, Gottlieb says that it was the state itself that couldn’t seriously justify the new restrictions, at least under the test laid out by the Supreme Court in Bruen. Bumb herself noted that the state spent far more time in its briefs arguing that the laws should be upheld because they promote public safety instead of articulating why they don’t violate a fundamental civil right. From page 17 of Bumb’s opinion (citations ommitted):
The State’s Brief spends considerable time setting forth what the Legislature’s concerns were: “The Legislature found that the elimination of the ‘justifiable need’ requirement resulted in ‘the likelihood that a much greater number of individuals will now qualify to carry handguns in public,’ necessitating identifying ‘sensitive places where, due to heightened public safety concerns, carrying a dangerous, potentially lethal device or weapon, including a handgun, is not permissible.’” The Legislature also recognized the unique dangers of having loaded firearms in vehicles.
However, it is this type of deference seeking that the Supreme Court has cautioned federal courts to avoid. It is not the role of this Court to either pass judgment (i.e., “make difficult empirical judgments”) on the costs and benefits of firearms restrictions or to defer to the intent of the Legislature (which parenthetically, the Supreme Court found understandable). This Court’s role is straightforward. The Court must answer two questions: one, does the Second Amendment’s plain text cover the challenged provision? And two, does historical evidence support the restriction?
As noted, Defendants press this Court to refrain from acting urgently and to afford them more time to set forth the legal justifications for the legislation. As State Defendants argue, a “hasty injunction would short-circuit the democratic process while the litigation process is underway.” This Court concurs, in that no injunction should ever be hastily issued, but Defendants must do more than promise they will justify the constitutional basis for its legislation later.
Surely, Defendants had—or should have had—the historical materials and analyses the State relied upon when it began its legislative response to Bruen. After all, the Supreme Court was clear that in order for any gun control legislation to pass constitutional muster under the Second Amendment, such legislation must be consistent with historical tradition. The State has had six months since Bruen to identify well-established and representative historical analogues. In fact, Chapter 131 expressly states that the “sensitive-place prohibitions on dangerous weapons set forth in this act are rooted in history and tradition . . . analogous to historical laws that can be found from the Founding era to Reconstruction, which are also found in modern laws in many states.”
That Defendants dedicate a significant portion of their argument discussing the benefits of the firearms regulations and not evidence of historical analogues is quite telling. And although Defendants represent that the “State will offer ample evidence that Chapter 131 is constitutional,” they do not adequately explain why—if such evidence was critical to the passage of the legislation that would pass constitutional muster post-Bruen and available to the Legislature as set forth in Section 1(g) of the statute—they have not introduced such evidence here. Certainly, Defendants anticipated challenges to the legislation and should have been better prepared to defend the legislation’s constitutionality.
Gottlieb says it’s not a lack of preparation; it’s the fact that New Jersey simply doesn’t have the historical evidence to justify the kinds of draconian anti-2A laws it put in place last month. In fact, rather than make small changes to state law to bring them in line with the Bruen decision, Gottlieb says anti-gun Democrats have made a set of bad laws even worse.
“I expected the gun prohibitionists to come up with new laws, but I figured they would be a step lower than the ones that were struck down,” the longtime Second Amendment activists relayed.
“Instead they doubled down and passed laws that were more restrictive than what the Supreme Court struck down. And that made no sense, since with a 6-3 majority for gun rights on the Court, why are the gun prohibitionists being so stupid? You’d think they’d at least be biding their time until maybe the make-up of the Court changed. Sometimes, you know, we get lucky because the other side isn’t that smart.”
Or maybe they’re just so ideologically blinded by their hatred of the Second Amendment and their contempt for those who support it that they’re Leeeeeeroy Jenkins-ing their way to the Supreme Court. Either way, Gottlieb sounds confident that the provisions challenged in Koons are going down… and the organization isn’t done undoing New Jersey’s damage to the rights of state residents.