On October 25, 2023, a three judge panel in the Third Circuit Court of Appeals heard arguments in the combined Koons and Siegel cases for a preliminary injunction. The cases are challenging the 2022 so-called “carry-killer,” Buren response law, that Governor Phil Murphy, D-N.J., enacted.
The Koons/Siegel cases have had quite the journey, and while the fabulous preliminary injunction that was issued from the Federal District Court of New Jersey gave Garden State gun owners a great amount of relief, the Third Circuit issued a partial stay on the injunction, cutting back civil liberties. New Jersey gun owners are anxiously anticipating what the Third Circuit is going to say. Since the arguments, the Second Circuit issued an opinion on a similar case out of New York. The New Jersey Attorney General had Deputy Solicitor General, Angela Cai, write the court about what they’re undoubtedly trying to cast as gospel – except for those few books they want tossed from the tome.
In Antonyuk v. Chiumento, No. 22-2908, 2023 WL 8518003 (2d Cir. Dec. 8, 2023), the Second Circuit vacated a preliminary injunction against many of New York’s sensitive-places provisions, including ones restricting carry at medical treatment centers; parks and zoos; premises licensed for alcohol consumption; and enumerated entertainment facilities. The Second Circuit found that an American historical tradition supported each modern provision. Affirming the injunction below as to the very same sensitive places in New Jersey would thus conflict with that decision.
Beyond the specific places involved, the Second Circuit provided numerous methodological insights regarding Bruen’s test. Id. at *12-16. Among other points, the panel cautioned against putting too much stock in the lack of “positive legislation from a particular place,” which it correctly noted may well reflect “a lack of political demand rather than constitutional limitations.” Id. at *13; see also id. (noting that “evidence that some jurisdictions actually attempted to enact analogous regulations that were rejected on constitutional grounds” is more probative, and a lack of such constitutional disputes suggests a restriction’s permissibility was “settled”). The panel added that analogous historical statutes can support a law’s validity even if they do not “exist in significant numbers,” so long as they do not contradict the overwhelming weight of other evidence. Id. at *14. And, the panel held, if state law is involved, the focal point is “the understanding that prevailed when the States adopted the Fourteenth Amendment,” but the 1791 understanding can be relevant, too. Id. at *16.
Finally, in enjoining the private-property rule as applied to private property open to the public, the Second Circuit committed two errors. Id. at *82-84. First, its conclusion that the Second Amendment covers the regulated conduct overlooks that it is the property owner, not the statute, who determines whether carry is permissible. Second, the notion that historical statutes covered only “enclosed private lands, i.e., private land closed to the public” is unsupported by history. See N.J.Resp.Br.55-63 (collecting evidence that “inclosed” refers to privately-held land and “premises” includes retail establishments). This Court may reach a different result, especially on a different record.
It’s not uncommon for jurisdictions to have competent attorneys do the heavy lifting, however I’d still be remiss to not point out that Attorney General Matthew Platkin did not prepare this letter himself. Platkin, who fell asleep during oral arguments in Philadelphia on the 25th of October, 2023, has been nothing but a pawn and figurehead during this whole anti-liberty charade and throughout Murphy’s tenure at Drumthwacket.
The arguments that Cai brought up that were evident in the Antonyuk opinion does not mean they’re constitutional. On the contrary. Just because the Second Circuit Court of Appeals thinks that several provisions in New York’s law would withstand constitutional scrutiny does not mean they actually will.
We all know what’s going on here. The evil anti-gun cabal is doing anything and everything to scrape together some level of control over the people, and they’re losing their grip. The anti-gunners are grasping to a floating hunk of wood, hoping to survive the calamity of Bruen, however they’re not Rose – they’re freezing to death with Jack in the waters with the Titanic bubbling below. Hopefully we won’t have to wait 84 years for the anti-gunners to finally let go of their sacred prize of control.
We do need to understand that the liberty minded camp is only fortified by what I’d consider a razor thin margin – and many would argue against that – but, we’re not in the best political climate, and we need to pray for the wellness of what allies we have in all three branches of government.
Cai listed off a pile of “sensitive locations,” many of which were previously enjoined, and argued the adult version of “Their Mom’s and Dad’s let them do it, so why can’t we?” Understood, this is how law and analogues work, but she has to know in her heart of hearts that she’s wrong. I know she has a job to do, but she, like Platkin, must know they’re on the wrong side of history and will be viewed like Governor George Wallace and world history’s tyrants who executed disarmament broken-glass policies.
The State is also turning to the time of the ratification of the 14th Amendment, again, to prove their right to subvert civil liberties. That’s not the best time period to look at things, honestly.
The time of our founding is 1790, whether or not the progressive DC power brokers like it. They did concede “the 1791 understanding can be relevant, too,” but don’t seem to put a lot of stock in that. Arguing over when the country fully realized the states shall not – in addition to the U.S. Government – inflict restrictions on the people that are not consistent with the Constitution has little to do with what the overall intent was supposed to be.
Laughably, while New Jersey took its time to point out what a good little doo-bee the Second Circuit was in so many ways, they argued how they erred concerning private property open to the public. Platkin, Murphy, Cai, et.al., can’t have it both ways.
Yes, there are things to celebrate from the Second Circuit’s opinion, but there’s plenty that was left on the table that’s not very savory. Hopefully, the Third Circuit will learn from the Second, and see that they’re less restrictive in their orders on how the law shall be enforced in the Garden State, rather than more.
Personally, I’ve been of the opinion that they’ll try to split the baby in one shape or form. There’s actually plenty that was left on the table that the lower court did not rule on appropriately, but the unfortunate trend is that we’ve lost ground in the battle as the case moved up. If the panel from the Third Circuit had integrity, they’d closely read Bumb’s opinion from the District Court and add to it on what should be enjoined from enforcement.
A good friend of mine over a cigar said, “They’ll never let us carry in New Jersey. Never.” That was at a time when we were discussing Peruta, from California – and a 100 times more thereafter. I told him, “Just wait, we’ll have our day.” That day has come and we can carry in the Land of 1000 Diners. It’s not a perfect system right now, obviously. But we can and do carry. Many advocates pointed out that when NYSRPA v. Bruen was decided, that only marked the beginning of the fight, not the end. Hopefully, we’ll get additional relief where our friends in the Empire State have not.
I previously was hopeful that we’d get something out of the Third by Christmas. There’s still time for that to happen, but looking at the trend from the Second and Fourth on handling this politically charged gun stuff, I just don’t know.
Unlike the state of New Jersey’s political hacks, I think the Third Circuit has more integrity and won’t just copy and paste what was done in the Second, just like how New Jersey copied a good portion of New York’s law. Maybe that’ll be a longer process than I anticipated. We’ll just have to wait and see.