Multiple gun groups challenge New Jersey’s sensitive places provisions

Multiple gun groups challenge New Jersey’s sensitive places provisions
Seth Perlman

Yesterday I gave a rundown on one of the challenges to New Jersey’s new “carry killer” law. The Association of New Jersey Rifle and Pistol Clubs (ANJRPC) managed to be the first in filing a suit, but practically seconds later another lawsuit was also filed. Koons et al v. Reynolds et al. (Case 1:22-cv-07464) was filed by the Second Amendment Foundation (SAF), Firearms Policy Coalition (FPC), Coalition of New Jersey Firearms Owners (CNJFO), and New Jersey Second Amendment Society (NJ2AS). While the ANJRPC case (Siegel et.al. v. Platkin et.al.) acts as what I consider a kitchen sink attack, or broadsword, to hack up so much of New Jersey’s new and previously existing laws, the Koons case is hyper focused on some of the most unconstitutional of the newly defined “sensitive locations”.

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Koons et al v. Reynolds et al. was written and filed by attorney David Jensen. Jensen, as with the attorney of record in the ANJRPC case, is a top notch lawyer and his approach to New Jersey’s unconstitutional law leaves the statute cut deeply.

This 42 U.S.C. § 1983 action challenges newly enacted New Jersey laws (A4769/S3214) that, effective immediately, largely and effectively prohibit private citizens from carrying handguns in public—notwithstanding that they have met the background, training and qualification requirements needed to obtain a permit to carry a handgun in New Jersey. Section 7(a) of these new laws create a lengthy list of “sensitive places,” where it is now a crime (felony) of the third degree to carry a handgun, even with a New Jersey permit to carry a handgun.

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.

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. [emphasis added]

The legal challenge to New Jersey’s law points out the same thing anyone that can read and understand English has been able to deduce, the State is acting like a child because they’ve been forced to respect the Constitution. Many become quick studies of the Constitution and law, at least on an elementary level, when they start digging into the awful gun statutes of New Jersey. The complaint is succinct, 22 pages total, and easy to understand.

Part of the core of the NYSRPA v. Bruen decision is that contemporary laws must be an analogue of prohibitions that would be acceptable at the time of the founding. In Koons this fact is highlighted, as well as lawful self-defense and the carry of firearms being constitutionally protected activities under the Second Amendment.

The “core lawful purpose” of the right to keep and bear arms is “self-defense.” Heller, 554 U.S. at 571, 630; accord McDonald, 561 U.S. at 767-68. The Supreme Court has explicitly “h[e]ld . . . that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.” N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. ___, 142 S. Ct. 2111, 2122 (2022).

In Bruen, the Supreme Court ruled that the Second Amendment “presumptively guarantees . . . a right to ‘bear’ arms in public for self-defense.” Bruen, 142 S. Ct. at 2135. As such, restrictions on the right to bear arms in public are presumptively unconstitutional, unless “the government [can] demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Id. at 2126. [emphasis added]

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The historical analogue is something the state is just not going to find. New Jersey historian, plaintiff in his own carry case (with eventual issuance of his permit in December), and patriot, Jay Factor, recently brought something up in an online post. Factor was part of the team behind the Cheeseman case, and person behind wrangling many of the plaintiffs in this case. Factor was reading from Laws of the State of New Jersey, Revised and Published Under the Authority of The Legislature, By William Paterson, from the year 1800. In Factor’s video post, he pointed out one prohibition that he could find concerning the bearing of arms, as in carry in New Jersey’s law. From a section of the text on page 308 concerning slaves being out past 10 o’clock at night or hunting on Sundays we have:

IX AND BE IT ENACTED, That if any negro or other slave shall be seen or out found from the dwelling house of his or her master or mistress after the hour of ten at night, except on the particular business of his or her master or mistress, or shall be seen to hunt or carry a gun on the first day of the week, or Christian Sabbath, commonly called Sunday, any constable or other person, on information or knowledge thereof, is hereby authorized, and it is especially made the duty of such constable, to apprehend and carry such negro or other slave before the next justice or justices of the peace, who, on examination of the matter, ( if such slave shall not give a good account of himself or herself) shall , at his or their due discretion, according to the circumstances of the case, do and act towards such slave in the same manner in all respects as by the preceding section of this act is prescribed and any such slave, being committed to prison, shall there remain until the master or mistress shall satisfy all reasonable charges; and in case such slave bo shall be ordered to be whipped, then the master or mistress of such slave shall be liable to pay the constable for performing that service the sum of one dollar: PROVIDED, That nothing in this, or the preceding section contained, shall be construed or taken to prevent any negro or other slave from going to any place of worship, or from any innocent recreation, or from doing any other reasonable act with his or her master’s or mistress’s consent.

The possession or carry of firearms by “any negro or other slave” was perfectly acceptable at the time of our founding, provided it was not on a Sunday (there are still some longstanding prohibitions to hunting on Sundays in NJ). That means it was lawful for “any negro or other slave” to have and carry firearms every other day of the week, and on Sunday with the permission of their master. We reason this right was extended to all free persons every day of the week.

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We know from his comments that NJ Assemblyman John McKeon made his opinion more than known about allowing New Jersey’s Black and Latino population to be armed, even his racist myopic view was not accepted in 1800 in New Jersey. It’s rare that we can find a NJ Democrat that’s more racist towards our Black brethren than the laws that were in effect while slavery was still legal in the Garden State. Bravo McKeon!

Let the State of New Jersey argue that Black citizens in New Jersey are not allowed to carry a firearm on Sundays unless they have permission. Because that’s about all they got in their back pockets.

The sensitive location matter was really put to bed through NYSRPA when Thomas went out of his way to point out that New York cannot make the entire island of Manhattan a sensitive place, or all of Times Square. The brief notes the blatant disregard of the High Court’s instructions that New Jersey’s lawmakers took when penning this law.

The “sensitive places” exception does not authorize restrictions that “would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense.” Id. at 2134.

As pointed out in the ANJRPC lawsuit, the Koons filing also addresses the special class of individuals that have been anointed by the legislature.

New Jersey law allows some people to carry handguns without obtaining permit to carry, including various law enforcement officers and personnel in prosecutors’ office, members of the military acting in the course of duties, and qualified retired law enforcement officers. See id. § 2C:39-6(a), (b), (c), (l) (the “Exempt Persons”).

This is a very good place to add “All animals are equal, but some animals are more equal than others”.

In the State’s boon to keep the ruling class separated from the peasants, they passed this unconstitutional law. Jensen summarizes the legislative intent of New Jersey’s public masters:

As justification, the legislation states that “with the precedent established in Bruen, laws requiring showings of particularized need are no longer legally viable to determine whether a person may carry a handgun in public.” Id. § 1(b). The previous “justifiable need” standard had, according to the legislature, “minimized the serious dangers of misuse and accidental use inherent in the carrying of handguns in a public place,” and the new “sensitive place” restrictions were now necessary because “a much greater number of individuals will now qualify to carry handguns in public.” Id. § 1(c). Otherwise stated, the legislature’s objective was to continue minimizing the carry of handguns as much as possible.

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There’s a very exhaustive list of sensitive places that carry is banned from. This lawsuit has sniped what they consider the most egregious and perhaps easiest to challenge of the prohibited places. In addition, there are the transportation regulations:

Furthermore, New Jersey law has long required all people to transport guns “unloaded and contained in a closed and fastened case, gunbox, securely tied package, or locked in the trunk of the automobile in which it is being transported”—but provided exceptions for Exempt Persons and, until A4769/S3214, for those with permits to carry handguns. See N.J.S.A. § 2C:39-5(g). Now, in the context of the everyday activity of using a car, train or other “vehicle,” a New Jersey “permit to carry” provides basically no benefit.

Part of the filing, Jensen does point out that in no way are the plaintiffs conceding that their challenge to specific portions means the unchallenged parts are assumed Constitutional. That’s quite to the contrary.

Plaintiffs challenge the restrictions contained in subparts 12, 15, 17 and 24 of section 7(a), as well as section 7(b)(1)’s prohibition on carrying handguns while in vehicles. In confining the present challenge to these particular provisions, Plaintiffs do not intend to signal that the remaining restrictions are constitutional or otherwise permissible. Rather, Plaintiffs consider the “sensitive place” designations they have identified to be plainly unconstitutional, while also causing some of the greatest infringements of the right to bear arms.

And those subparts being challenged are as follows:

The specific “sensitive places” that Plaintiffs challenge are:

(12) a publicly owned or leased library or museum; . . .
(15) a bar or restaurant where alcohol is served, and any other site or facility where alcohol is sold for consumption on the premises; . . .
(17) 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]
(24) 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[.]

The prohibition on carrying functional handguns in vehicles provides:

b. (1) 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. . . .

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The rundown of the plaintiffs shows that all are injured by the new regulations. Digging real deep into New Jersey carry history, a familiar name pops up, Jeffrey M. Muller. Muller was the original plaintiff in a case known as Muller et.al. v. Maenza et.al. Muller was dropped from the case because he was eventually granted a permit to carry. The circumstances were stranger than fiction and involved an abduction, with Muller being falsely identified as a person of interest in some sort of a gang tiff. That case progressed to become Drake v. Filko

New Jersey’s modus operandi for years was to grant permits to applicants, mooting their claims, if the State felt the lawsuits got too close to toppling down their permitting scheme (as was the case with Albert Almedia, to name one). Having Muller return to the mattresses to help in the fight is a bit poetic, and I give a massive hat tip to the team for getting him onboard.

A near final statement concerning the deprivation of rights, the filing declares:

The challenged restrictions—subparts 12, 15, 17 and 24 of section 7(a), as well as section 7(b)(1)’s prohibition on carrying handguns in vehicles—violate the right to bear arms. Prohibitions on carrying handguns in public are presumptively unconstitutional, and there is no established historical tradition that could justify the restrictions challenged here. In threatening to enforce the challenged restrictions and thereby causing the Plaintiffs to refrain from carrying guns as alleged above, Defendants thus act to deprive Plaintiffs of their rights, privilege or immunities, and more specifically, their Second Amendment right to bear arms, in violation of 42 U.S.C. § 1983.

This is a hell of a lawsuit challenging the issue of sensitive places in the Garden State. A filing was also made for a temporary injunction and restraining order against the law. The case has garnered enough attention to cause the judge presiding over the case, Judge Renee Marie Bumb, to issue an order on the day after Christmas, a holiday in New Jersey. Per the order, a timeline has been set and there’s a hearing on January 5th concerning the issuance of a temporary restraining order. The State also requested the consolidation of this case with ANJRPC’s, which Jensen answered to, stating the cases have differing claims.

Adam Kraut, the Executive Director of the Second Amendment Foundation commented on the filing of Koons.

New Jersey’s Legislature and Governor have shown that they do not wish to heed the Supreme Court’s guidance as to the bounds of the right to bear arms in Bruen. Despite clear directives as to a citizens’ right to bear arms, New Jersey continues to thumb its nose at the constitutional rights of its citizens in the name of ‘safety’. Such disregard for the rights of New Jerseyans will not be tolerated. As such, we are seeking to vindicate the rights of our members and the public in an expeditious manner. It is a shame the elected officials of New Jersey have no respect for the enumerated rights of the People and continue to needlessly waste their state’s tax dollars passing unconstitutional laws which render the common person defenseless.

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Firearm Policy Coalition’s Director of Legal Operations, Bill Sack, acknowledged New Jersey’s oppositional approach regarding the SCOTUS decision.

In passing this legislation, New Jersey’s lawmakers and Governor Phil Murphy have decided to thumb their collective noses at the United States Supreme Court and the Constitution. And once again FPC has stepped up and will fight back on behalf of the peaceable people of New Jersey who are sick and tired of having their rights trounced for political gain.

This legal challenge to New Jersey’s unconstitutional law, in conjunction with ANJRPC’s challenge, shows promise that the people of New Jersey might be liberated once and for all from onerous carry restrictions. Seeing so many groups come together to aid in the fight in New Jersey is not only a testament of the People’s strength in numbers and determination, but also that groups with differing opinions and tactics can set aside those differences when a real beast needs to be slayed. It was alleged that Isoroku Yamamoto, a Japanese Admiral during World War II wrote of the United States after the bombing of Pearl Harbor “I fear all we have done is to awaken a sleeping giant and fill him with a terrible resolve.” That’s exactly what Phil Murphy and his fellow pinkos did when they decided to go against the Supreme Court of the United States.

While I’m personally hopeful that temporary restraining orders, and eventual permanent injunctions will halt the pinko’s desires in Trenton, I’m well aware the battle has just begun. We can hear the airwaves telling us, “The chair is against the wall. John has a long moustache.” If there were ever a time to donate to the big groups protecting our Second Amendment, now’s that time.

As with all the latest and breaking Second Amendment news, we’ll be watching the progress of this case and be reporting back with any of the latest happenings. The goose steppers have been ultra active as of late, and there’s no lack of things to report on! 2023 can be heard calling us from the near future…beckoning, “Hold my beer.”

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