Arguments for preliminary injunction delivered for two NJ carry-killer law cases

Ross D. Franklin

We won’t likely get a ruling from Judge Renée Bumb of the United States District Court for the District of New Jersey declaring that schools are not sensitive locations, but that’s not being challenged anyhow. On Friday March 17, 2023, Bumb heard arguments from the plaintiffs in two cases from the Garden State concerning New Jersey’s so-called “carry-killer” law. In December of 2022, a law severely limiting where a person may carry a firearm – among other unconstitutional provisions – was signed into law by Governor Phil Murphy, and it was immediately challenged. The two cases are Siegel and Koons. Due to the litigation, there’s a temporary restraining order in effect at the time of this writing, issued by Bumb, keeping the state from enforcing many of the provisions in the law. Friday’s arguments were for a preliminary injunction.

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Representing the plaintiffs in the cases are two brilliant attorneys. Dan Schmutter was speaking on behalf of Siegel, et.al., and the Association of New Jersey Rifle and Pistol Clubs. While David Jensen represented Koons, et.al., the Second Amendment Foundation, the Coalition of New Jersey Firearm Owners, Firearms Policy Coalition, and the New Jersey Second Amendment Society. 

The State of New Jersey was represented by Angela Cai, the Deputy Solicitor General, and Jean Reilly, the Assistant Attorney General. The New Jersey legislators, Senate President and Assembly Speaker, had also filed a request to intervene in the case, and the councils recorded on their brief are Leon J. Soko and Edward J. Kologi.

It was a long day with the proceedings starting a little after 10 am and arguments wrapping up in around four hours. The spectator’s gallery was nearly full, including one seat occupied by yours truly, and there was a sea of maroon colored Coalition of New Jersey Firearm Owners shirts. There were also hundreds of others listening to the oral arguments via a conference call. 

David Jensen delivered his remarks first on behalf of Koons. The Koons case is much narrower than the Siegal case, in that it specifically targets only some of the areas New Jersey defined at “sensitive locations” – gun-free zones – and the suit does not challenge all of them at that. The injury claim was much more about immediate issues on the practicality of carrying a firearm in public for self-defense, and much of Jensen’s arguments were concerning defining sensitive locations.

The crux of what Jensen brought up revolved around historical analogues of places of governance being designated as “gun free.” Specifically places of work for legislative bodies, the courtrooms, and polling places. The level of security was also an element that Jensen brought up, on whether or not an area is actually a sanitized area, like that after going through security at the airport, versus a general sense of and or presence of a “security force.” Judge Bumb offered up stadiums as an example, which does not have a governmental function and not all of them have the same level of security and protection of other sanitized areas.

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Jensen did take the opportunity to bring up what’s called “the Statute of Northampton.” The law is a 1328 English law. The relevant portion of the section of law deals with the prohibition of arms by stating no man [emphasis added]:

Come before the King’s justices, or other of the King’s ministers doing their office, with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night nor by day, in fairs, markets, nor in the presence of the justices or other ministers, nor in no part elsewhere…

Jensen used this in setting the stage of what would be acceptable at the time of our founding, 1791.

Daniel Schmutter, for Siegel, followed Jensen’s remarks. Schmutter continued on the line of discussing the sensitive locations. The Siegel case is much more broad and attacks several different portions of the carry-killer statute, including almost all the locations defined as sensitive.

Schmutter pointed out that it’s governance that defines a sensitive location. In looking at historical analogues, actual functions of government are what he argues is where the line is drawn. To this point, Cai, for the state did mention at one point or another that there’s hardly any security at polling places, and in New Jersey, armed security/police are prohibited at such locations.

The only place that Bumb was adamant about seemed to be schools, “No guns in schools.” While many disagree with that assertion, seeing how there are no real historical analogues that schools have been gun-free, Bumb was steadfast in her opinion on the matter. The briefs are not challenging any prohibitions on carry in schools specifically at this time, and representation for the plaintiffs noted that in Heller, McDonald, and Bruen, the mentioning of schools was dicta – not establishing precedent – versus the aforementioned locations involving governance being gun-free. The debate about schools being gun-free zones will have to wait for another day, but it’s a worthy debate, especially if looking into the efficacy of having a voluntarily armed segment of staffers at our schools, and practicality of parents driving/walking through/onto school property for quick pickups of their kids.

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Schmutter made several other arguments that are worth repeating. The most in-their-face, and obvious being, “The state’s position is fundamentally, ‘we don’t like Bruen.’” He explained they’re not wanting a ruling based on merits, as they are aware the law they drafted is unconstitutional. Included in that statement of opinion, supported by the actions of the executive and legislative branches in New Jersey, it was further stated the permit process – which is onerous – is also unconstitutional.

A section in the law involving an equal protection claim has to do with exempting judges, prosecutors, attorney generals, and officers of the court from the law. These “special” categories of persons are exempt from all the sensitive location prohibitions, to the point where the legislature fouled up the law so badly, such persons would legally be allowed to carry fully-automatic firearms into schools. Given Bumb’s obvious support for keeping schools gun-free, hopefully she’ll address the class system the legislature created.

Another section of the law that Siegel challenges is the permitting fees. The challenge is to the newly enacted statute, not the entire statute. The conflict comes with the exorbitant amount that the legislature raised the fees in order to purchase, possess, and carry firearms. Bumb questioned Schmutter on what an appropriate fee should be. Schmutter restated the challenge is to the fee as applied under the law change, not in a general sense. 

Bumb seemed more open to a challenge to fees overall – or at least was seeking a definition that may fit within the confines of other constitutionally protected rights and their fees. The urgency of why this should be preliminary enjoined was communicated to the judge, whether or not she sees the importance is another matter. Permit to carry holders started to surface in August and September of 2022, a time period of which those applicants may have to see renewal prior to the case being settled.

Something else that Bumb pointed out about the soppily written law did pertain to renewals. As stated, it seemed to be the opinion of Bumb that anyone reapplying for renewal of their existing permit to carry, must do so in the manner of which they originally applied. Both the state and Schmutter disagreed with the judge’s assessment, however she did make clear it’s not her job to legislate from the bench, regardless how sloppy the law was written. It seems that there might be a punishment in store for the state concerning this element of the law, as they wrote the entire piece of law with a poor attention to detail.

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Conceivably one of the most important things Schmutter argued had to do with issuing authorities having the discretion to deny an applicant a permit to carry based on public health, safety, or welfare claims. Bumb seemed to think something like this was an important stop-gap, while Schmutter steadfastly noted that indeed, the legislature must make an exhaustive objective list of the disqualifiers. Having anything subjective in the statute is unconstitutional. Any subjective standards makes the system may-issue, not shall-issue. The heart of NYSRPA v. Bruen is that the system is to be shall-issue under objective standards. An individual’s rights should never be subjected to being denied based on another’s arbitrary opinion.

The grilling that Cai received on behalf of the state was substantial. Cai, Reilly – also from the state -, and Kologi for the legislature, all took a decent amount of heat while trying to answer to Bumb’s queries. At times Cai and Reilly would shift their weight, pointing a foot outward, nearly standing on a pointed toe, as if they could physically steer away from Bumb’s questions. Kologi stood like a brick wall, often repeating himself, to his detriment, as obtuse as the wall he emulated.

There were areas where Bumb really offered up some serious zingers to the state and legislature.

Cai tried to accuse the plaintiffs of ignoring sections of the previously cited Statute of Northampton. Bumb was quick to remind the state they ignore the part about prohibiting behaviors that create an “affray of the peace.”

A great deal of time Bumb spent asking the state about what a so-called transportation hub is. There’s no actual statutory definition of such a location. Bumb pointed out the fact there’s problems with how the law leaves people guessing at what would qualify. 

A final sentiment that Bumb grilled Cai on had to do with “no guns allowed signs.” Under the law that’s currently being kept from enforcement due to the TRO, a person must have permission in order to bring a firearm onto private property. That needs to be done in some affirmative manner. Bumb asked Cai about private property owners that are okay with people carrying on their property, however they do not want to broadcast that to everyone. Cai tried to assert that the burden is no different than a private property owner being required to post that “no guns are allowed” and that businesses should advertise or put such things on their websites. How Cai did not think that advertising or putting that information on websites is not akin to “broadcasting,” escaped the spectator’s gallery, where snickers and laughter echoed.

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The state’s position was that having no law or policy is having a policy that favors the plaintiffs. An important sidebar is that pre-NYSRPA v. Bruen, jurisdictions relied on “no guns allowed” versus “guns allowed” signs. The “guns allowed” concept is a new invention from New York’s unconstitutional response to NYSRPA v. Bruen.

Cai should be saluted though. Her job was/is not an easy one, and the State of New Jersey has sent her on a fool’s errand. Cai sounds ridiculous because there’s no evidence to support the state’s claim the law is constitutional.

Edward J. Kologi for the Senate President and Speaker of the Assembly took some of the heaviest fire from Bumb. From the start, Bumb pointed out to Kologi that the legislature used a study that was inauthentic to make their points in the legislation drafting process. The study they cited as proof their new law was needed, had to do with a transition from shall-issue systems to permitless carry schemes. Aside from the fact that the group the legislature cited is known for carrying water for Mike Bloomberg, thus biased negatively towards liberty, the analogy they drew was not even under the correct circumstances. Kologi could not answer adequately for the legislature’s deceptive use of the study. Regardless, the study is moot, as the Second Amendment does not get levied against any interest balances per NYSRPA v. Bruen.

Kologi’s mantra was that guns do two things: 1, they kill people. 2, they seriously injure them. That was the combined argument that the legislators brought to the table. For a group that was so hot-to-trot to intervene in the case, one would think they would have supplied an attorney that was more competent than the mess that was standing before Bumb on Friday. Bumb had to point out to Kologi that the very important concept of self-defense was being left out. Kologi tried stating that through killing/seriously injuring an individual, the self-defense would be accomplished, not wavering from his two points. There was zero acceptance that the intent to self-defend has little to do with what Kologi, who leaned on intent so much while discussing insurance mandates, continued to claim.

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Bumb seemed agitated by the legislators’ representation finally saying, “Do guns kill? Yes. Do guns provide self-defense? Yes.” She further did have to state that the plaintiffs do have a right to self-defense through the Second Amendment. Kologi’s retorts kept reverting back to him making zero distinction between the law-abiding citizen that’s permitted and wishes to self-defend, and felons who break the law purposefully. Bumb summed up the state’s and legislators’ position quite well, “In a nutshell, it’s the state’s position there should be no guns.”

All parties were instructed to return back 10 page briefs to answer anything left on the table due to time constraints. When the state queried Bumb about the timeline, Bumb quipped back,  “Most respectfully I don’t want the state telling me I’m taking too much time, you set the date.” Which was a remark directed towards Attorney General Platkin’s former correspondence to the court, threatening to go over Bumb’s head if she did not make haste with the case. 

It was a long day, with this article capturing only a small fillet of it. Trying to read the tea leaves, one could suspect that a preliminary injunction will be issued. For what specifically, that’s hard to tell. There were so many hot-button issues, trying to make sense of them all is going to take further analysis. Bumb did make it clear that the people do have the right to self-defend. Some of the finer points on how interest balancing goes out the window in a post NYSRPA v. Bruen world, and reliance needs to be on historical analogues, does need to continue to be stressed. Bumb might not be a lock-step Second Amendment champion – or maybe she is? -, however, it’s obvious she understands the Constitution, the right to self-defense, and the gravity of the situation. It’s going to be up to Schmutter and Jensen to get past the finish line, and it’ll be an interesting case going forward. We’ll report back with any opinions/orders and updates on this case.

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