While a three-judge panel of the Third Circuit Court of Appeals broadly upheld New Jersey's "sensitive places" in its Koons/Siegel opinion released today, the lengthy dissent by Judge David J. Porter provides a well-reasoned rebuttal to the majority's opinion... and a road map for either an en banc panel of Third Circuit judges or the Supreme Court to overturn today's decision.
As Porter notes, the Supreme Court held in Bruen that “‘sensitive places’ where weapons were altogether prohibited' were 'relatively few in the 18th and 19th centuries. Yet the Third Circuit majority in Koons/Siegel upheld almost every one of the state's "gun-free zones" using an "astonishing number, breadth, and generality of... principles" to justify New Jersey’s "location-based elimination of the right to bear arms."
In the majority’s view, the principles drawn from our national history allow States to prohibit Americans from bearing firearms:
1. In “specific kinds of venues commensurate withtheir peculiar needs and functions.”
2. To promote peacefulness in “households.”
3. To promote peacefulness in “[religious] congregations.”
4. To prevent poaching on others’ land. Id. at 36,41–43.
5. On forms of private transit, like trains.
6. To “secure both liberty and order in a deeply divided, modernizing society.”
7. In “communal venues, including fairs, racecourses, ball rooms, churches, public halls, picnic grounds, theatres and other places of public entertainment or amusement, and circuses.”
8. In “specific locations central to the operation of government.”
9. In “discrete for a historically designated for important civic purposes.”
10. “[T]o ensure that firearms end up only with those who their communities deem to be safe to carry them.”
11. In “discrete locations . . . set aside for . . . governmental services.”
12. In “discrete locations . . . set aside for . . . peaceful assembly.”
13. In other “discrete locations set aside for particular civic functions.” Id. at 8.14. In places, like parks, that “provide a reprievefrom industrialization and foster democratic solidarity across social classes.”
14. In places, like parks, that “provide a reprieve from industrialization and foster democratic solidarity across social classes.”
15. To ensure that visitors at “centers of community life” can “participate without the risks and anxieties associated with deadly weapons.”
16. In “places that serve as public forums.”
17. In discrete locations set aside for “cultural purposes.”
18. In places deemed “vital to communities’ and our Nation’s democratic project.”
19. Where alcohol is consumed.
20. In discrete locations set apart for “public amusement.”
21. In discrete locations set aside for “learned, scientific pursuits.”
22. In “places set aside for learning and education.”
23. In places where “vulnerable populations” congregate.
Taken together, these broad principles allow New Jersey to prohibit one from exercising the Second Amendment’s central component nearly everywhere that ordinary human action occurs, and wherever “people typically congregate.” Virtually the only places that are not “sensitive” are locations where people don’t care about assembling with others, eating and drinking, commerce, divisive opinions, amusement, recreation, education, worship, public travel, leisure, community, and where children or vulnerable people arenot normally present. In such wastelands, the majority grudgingly allows, one may carry a firearm for self-defense—if he has first secured the subjective endorsement of at least four “reputable” persons.
Within the first page of his 90+ page dissent Porter has already dismantled the majority's opinion and shown how it directly contradicts what the Supreme Court said in Bruen. But Porter is just getting started.
The sources of the majority’s error are strewn throughout fifty-three pages of text preceding its consideration of the sensitive places enumerated in Chapter 131. In that long discussion, the majority’s selective reading and overreading of Supreme Court precedent, methodological mistakes, and anachronistic disdain for public carry combine to generate constitutional error. Before addressing the particular gun-free zones described in Chapter 131, I will highlight some of those flaws.
Porter argues that the majority's flaws begin with its view of the right to keep and bear arms, which it declared was “first” recognized in Heller. That's hardly the case. In both state and federal court decisions in the 19th century the right to keep and bear arms was recognized, for better or worse. Justice Roger Taney, for example, specifically noted in the Dred Scott decision that if freed slaves were deemed citizens, that would mean they would be able to exercise their right to keep and bear arms; a thought that made him shudder. Even the Miller decision from the 1930s didn't declare the Second Amendment a collective right. It only stated that those arms which were suited for a militia purpose were protected by the text of the Second Amedment.
Porter also accuses his colleagues of using "markedly different levels of generality when considering historical analogues" to uphold New Jersey's restrictions on the right to carry.
As it moves farther away from the Founding era, the majority analogizes more broadly and at a higher level of generality to fashion principles supporting modern regulations. But that is not what the Supreme Court has instructed.
In Rahimi, the Court cautioned that lower courts should not compare early and modern gun regulations looking for a historical twin” or “dead ringer.” But the Court did not say that we should analogize broadly, or operate at a “higher level of generality.” In describing our task affirmatively, the Court was careful and constrained. “[T]he appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” We “must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘applying faithfully the balance struck by the founding generation to modern circumstances.’”
... The majority’s rising level of generality extends broadly. Along with statutes and court decisions allegedly reflecting our regulatory tradition, it considers non-legal sources such as the private codes of railroads and universities. And when the majority compares modern laws to earlier laws, its definition of relevance is highly elastic. For example, the majority approves New Jersey’s firearms prohibition on public transit by analogizing to post-Reconstruction laws banning shooting at or on trains. By that logic, a modern law prohibiting carrying firearms on one’s person would be constitutional because it is broadly analogous to old laws against shooting one another.
Porter is spot on here. The majority was as flexible as it needed to be in order to uphold the various "gun-free zones" instituted by New Jersey lawmakers. If they could cite a handful of 19th century laws to proclaim a national tradition of prohibiting guns in public parks, they'd do that. But even when there were no similar laws, they'd simply stretch their historical analogues like they did in upholding the ban on public transportation. There were no statutes they could point to that were relevantly similar, so instead they cited private railroad policies and laws banning shooting at or on trains (incidentally, if a law banned the discharge of a firearm on a train, but didn't prohibit carrying a firearm, that seems to be a pretty good indication that there is no national tradition of prohibiting firearms on public transportation.
Porters dissent is too long to quote, or even summarize, in its entirety, so I'll leave you with one final example of Porter's utter destruction of the majority's opinion. One of the cases the majority cited in upholding New Jersey's gun control laws was a 19th century case out of Texas called English, which, as Porter notes, "backhanded the right to keep and bear arms by adopting a strict militia view of the Second Amendment and exchanging the views of the Founding generation for those of John Stuart Mill and 'the ideas of intelligent and well-meaning legislators.”'"
The majority’s rationale for including English as part of the alleged national tradition of constitutional firearms regulation is revealing: “[A]ny error in the Texas Supreme Court’s reading of the Second Amendment does not wholly undermine the probative value of the statute, which demonstrates that the Texas legislature believed it could ban firearms from public gatherings, offering another historical data point that such prohibitions comport with our Nation’s tradition.”
That's an utterly absurd standard. Porter rightfully argues that the majority would be unlikely to "similarly rely on Texas’s other 1870s views as valid data points establishing our evolving constitutional tradition," pointing to the 1876 Texas Constitution that called for the legislature to "when deemed practicable", set up a segregated system of higher education "for the instruction of the colored youths of the State."
There are many reasons why a particular statute might not be probative of a national tradition of gun ownership, but perhaps the most salient reason is that, as Porter points out, the Supreme Court has already explicitly rejected English as part of that tradition.
The Bruen Court... dismissed both the 1871 statute and the Texas Supreme Court’s rationale in English as outliers. Whereas the majority thinks the statute is itself evidence of the national firearms-regulation tradition ,the Court rejected it as a historical example because it “‘contradicts the overwhelming weight of other evidence regarding the right to keep and bear arms for defense’ in public.”That alone should cause a majority of justices on the Supreme Court to grant cert to Koons/Siegel when it eventually comes before them, but it's indicative of the broader problems in the opinion released today. The majority of the panel was looking for any way to uphold New Jersey's restrictions, and whether it was playing fast and loose with history or ignoring the Supreme Court's own jurisprudence they were able to do so for most of the restrictions in question.
Porter's dissent is absolutely brilliant, and it's worth a read all on its own. Unlike his colleagues, he treats the Second Amendment as the fundamental right that it is, and comes to the inescapable conclusion that New Jersey's post-Bruen carry laws are an unconstitutional affront to our right to bear arms.
