In June of 2022, the Supreme Court of the United States struck down New York’s concealed carry permitting system. The case, New York State Rifle & Pistol Association, Inc v. Bruen, essentially ruled that citizens have a right to carry firearms in public for self-defense. If the government wishes to limit that right, it must provide historical analogues from the Founding period (late 1700’s) or the post-Civil War Reconstruction Period (1866 – 1870s).
If the state could not provide an historically analogous law banning firearms, then the presumption would be that a general ban on firearms was not constitutional. In deciding all this, the Court stated that bans on firearms in “sensitive areas” were allowable, but again conditioned the determination of what a “sensitive area” was on historical analogue. Schools and government buildings had “longstanding” prohibitions on firearms, for example. The Court did caution against overbroad bans on firearms. The Court specifically rejected New York’s argument that “all places where people typically congregate and where law-enforcement . . . are presumptively available” constituted a sensitive area. That was expanding the definition too far and “would eviscerate the general right to publicly carry arms for self-defense.” 597 U.S. 22
In response, several states (including New Jersey) passed a series of statutes seeking to broadly define “sensitive area.” Among other things, New Jersey’s law defines the following places as “sensitive areas”:
- “publicly owned or leased library or museum”;
- “a bar or restaurant where alcohol is served, and any other site or facility where alcohol is sold for consumption on the premises”;
- “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”;
- “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 . . .”
The plaintiffs in this case (Koons v. Reynolds) all licensed New Jersey concealed carry permit holders, challenged the law as a violation of the Bruen decision. The Federal District Court in New Jersey issued a temporary restraining order against the State’s enforcement of this portion of the law.
The decision is about sixty pages long, but there were several points the judge relied on. The decision relied heavily on the fact that the government has the burden to demonstrate why the presumptively legal right to carry should be restricted. Though the State asked for more time to fully brief the issue of historical analogue the Court noted that the State was required to find historically analogous laws before passing the law. As to the laws the State did present, the Court was not convinced.
Libraries, the Court noted, have been around since Benjamin Franklin established the first free public library in Philadelphia. The fact that the State failed to provide any laws prohibiting firearms in libraries from either of the relevant time periods was convincing enough to the Court to find that there was no historical analogue there. The State only provided one law from 1867 (in Kansas, no less), that prohibited intoxicated individuals from carrying firearms in a restaurant. There was no law prohibiting any person from carrying in a restaurant that the State presented. Regarding entertainment facilities and the like, the Court noted that the State’s examples often failed to include the entire statute. A Virginia law, for example, only prohibited concealed carry for an individual carrying so as to “terrorize the county.” The State did not include the last half of the statute and so improperly relied on it.
Just as importantly, the Court found that the State’s requirement that a property owner affirmatively allow activity that is presumptively allowable to be an absurd inversion of the normal interpretation. While private property owners have an absolute right to deny firearms on their property, since the presumption is that it is legal to do so, the property owner must notify the individual that no firearms are permitted. Indeed, the Court noted that in standard trespassing laws, the trespasser must be notified that they are, in fact, trespassing, and so the landowner is required to put up signs stating “no trespassing” at the property boundary to warn passersby that by continuing on, they are both on private property and the landowner objects. Similarly, if the presumption is that firearms may be lawfully carried by a permit holder, then the property owner must notify the carrying individual that the presumption is no longer valid on their property.
The Court also addressed the restrictions on carrying in one’s private vehicle. In this context, the law did not change. It requires the gun owner to keep the firearm in the trunk, with ammunition and firearm in separate containers, while transporting it. The State acknowledged that this infringed on the ability of the driver to defend himself. Once again, since the presumption is that an individual can carry legally for self-defense, the State’s burden is to show historically analogous laws prohibiting the carry of firearms in personal vehicles. While cars, of course, had not been invented during either of the relevant time periods, the State couldn’t point to any law restricting the carrying of firearms in personal modes of transportation. (The few that were presented tended to focus on concealed carrying of firearms on public modes of transportation. As an aside, in the relevant time periods, the open carry of firearms was seen as perfectly acceptable, whereas concealed carry indicated a deceptive intent. Today, the general view is that concealing a firearm is less likely to cause public concern, and so it is the preferred method of carrying a firearm. Thus, the laws proscribing concealed carry were specifically preventing that method of carrying, rather than generally proscribing the carrying of firearms.)
Finally, the Court rejected the State’s arguments regarding the balancing of the constitutional right to carry and public safety. The Court noted repeatedly that the Bruen decision expressly took that ability away from the Courts, primarily because the balancing act (called intermediate scrutiny in legal jargon) reliably fell on the side of the government and against the constitutional right. Thus, reviewing courts were no longer allowed to weigh public interest concerns with the Constitution. Instead, the historical analysis became the sole means of determining whether a restriction was valid or not.
The Court had no trouble finding that the “sensitive areas” restrictions violated the constitutional rights of the plaintiffs. The remaining question to issue the temporary restraining order was whether irreparable harm would occur without it. The Court held that the “constitutional deprivations alleged [were] irreparable by their very nature” and thus granted the restraining order.
Whether the restraining order will remain in place while the issues continue through the litigation process will remain to be seen. A similar New York law temporarily enjoined, but the Second Circuit Court of Appeals issued a stay (meaning the restraining order was unenforceable). The Supreme Court of the United States just declined an emergency hearing for the stay, so the New York restraining order will remain unenforceable for the time being. However, if New Jersey sought a stay of the restraining order, it would take it to the Third Circuit, rather than the Second Circuit. Historically, though, both circuits have interpreted firearms restrictions similarly.