New Jersey federal District Judge Renee Bumb has embraced the majority ruling in New York Rifle and Pistol Ass'n v. Bruen which voided a century old statute that required a particularized showing of need to obtain a license to carry a gun in public. The judge expanded on a ruling earlier in January by consolidating it with Siegel v. Platkin, Attorney General of New Jersey [Civil No. 22-7464] That action was by a strategically selected array of plaintiffs broader than in the Koons case in which now Chief Judge Bumb granted a TRO earlier in January.
Like New York's the New Jersey Legislature attempted to save as much as possible of the state''s long standing requirement that one seeking a permit to carry a gun must show a heightened need for self defense.
The newly adopted bill A4769 described a broad swath of places as "sensitive" and it established a legal presumption that a private property owner does not consent to entry by persons carrying a gun.
Judge Bumb rejected the presumption as inconsistent with the ruling in Bruen that everyone is presumed to have a right to "carry a concealed handgun in public for self-defense". She allowed the bar on concealed carry in governmental offices and children's playgrounds. But she went on to grant a preliminary injunction against the recently adopted statutory restraints on carrying a handgun in parks, bars, theaters, stadiums, museums, racetracks, and casinos.
Circuit Courts of Appeals have used a traditional approach - balancing the right against public need, typically using an "intermediate scrutiny" level of judicial review. But Bruen changed that - demanding states demonstrate traditional support for any restrictions they impose. Bumb construed that to mean the state must demonstrate a "historical tradition of restricting firearms..representative of the nation".
This demand that states conform to an asserted tradition draws on a deep seated hostility to government. Judge Bumb writes that the state "may not empower bureaucrats with the discretion to..restrict the exercise [of the right to concealed carry] based on their assessment of an individual's `compelling need for the possession of such pistol or firearm''" [emph. added]
A central problem is that history is written by the victors. The state's response to the Scotus demand for states to demonstrate the "Nation" has a "tradition" of such controls fell on deaf ears here as it did in the Bruen case itself. There Stephen Breyer and his two co-dissenters took a different view, saying that post-civil war
States continued to enact generally applicable restrictions on public carriage, many of which were even more restrictive than their predecessors. See S. Cornell & J. Florence, The Right to Bear Arms in the Era of the Fourteenth Amendment: Gun Rights or Gun Regulation? 50 Santa Clara L. Rev. 1043, 1066 (2010).
In Antonyuk v. Hochul, Governor an amicus brief filed in the Second Circuit in the comparable New York case New Jersey, and fourteen other states rallied to the defense of New York's traditional restraints. The fifteen states muster substantial evidence that “sensitive place designations protect the public from a heightened risk of gun violence in such locations.” And that laws enacted by states to protect their residents need not be uniform: states are empowered to select “solutions to social problems that suit local needs and values,” ensuring that firearm regulations appropriately and effectively address the specific circumstances in each state.
Despite the traditional celebration of state sovereignty by political conservatives, that tradition now appears to have passed its "sell by date". Senior Associate Justice Clarence Thomas who wrote the opinion of the court in Bruen, declared his intent to bind every state to the vision the high court's conservative majority has embraced:
The Second Amendment “is the
very product of an interest balancing
by the people” and it “surely elevates above all other interests the right of
law-abiding, responsible citizens to use arms” for self-defense. Heller v. District
of Columbia (2008). It is
this balance — struck by the traditions of the American people—that demands our
unqualified deference. [emph. original
- GWC
2/2/2023
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