At the heart of New Jersey’s gun-control regime has been the requirement to show the local chief of police a particularized need to lawfully carry a weapon. In two recent opinions, Chief Judge Renee Bumb first temporarily restrained certain provisions, and then on Jan. 30, in the consolidated action Siegel v. Platkin, extended her TRO to block the bulk of the newly enacted A-4769. Signed by Gov. Murphy, 2C:58-4.2 is our Legislature’s revision of the centerpiece New Jersey gun-control laws to comply with the U.S. Supreme Court’s New York State Rifle & Pistol Ass’n v. Bruen.  Judge Bumb effectively gutted the law, saying it is fundamentally incompatible with the high court majority’s Bruen decision. We believe her broad injunction was not necessary. The judge called for an expedited briefing schedule on the motion for a preliminary injunction. But more is needed than briefs—the state should be able to develop a full record on the public health evidence for the court to make the determination regarding the public interest, which is essential to the issuance of an injunction.

The error is rooted in senior Justice Clarence Thomas’ opinion of the court, the conclusion of which six join. Two qualify their support (Brett Kavanaugh and John Roberts); Breyer, Kagan, and Sotomayor dissented. The Bruen opinion rejected the argument that the Second Amendment allows states to balance the needs of public safety against the constitutional right to carry firearms: “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.”

Thomas’s opinion of the court explained that recent Circuit Court decisions have instructed “judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions,’ especially given their ‘lack [of] expertise’ in the field.”

We have long argued that the Second Amendment was intended to create a political right of the states to resist usurped federal authority—a proposition tested to destruction in 1861-65—and that its application to create a right to possess firearms for personal defense is rooted in both bad history and bad policy.

That being said, the individual right created in Heller was limited to possession in the home for last-ditch self defense, a constitutionalizing Lord Coke’s castle doctrine enunciated in Semayne’s Case (1604). Bruen ignores both Coke’s caution, noted only by Stephen Breyer’s dissent, that there was no right to go armed for protection in the marketplace and Justice Scalia’s statement in Heller that the Second Amendment did not limit the states’ power to regulate firearms in public.

After Bruen, the Second Amendment is now held to protect the right to defend oneself from deadly threat in public. But that right has always been limited to the use of necessary force.  Like the First Amendment rights of free speech and assembly, its exercise can be restrained as to time, place, and manner.

Bruen is the law of the land as far as it goes, and Judge Bumb may not defy it. But Bruen is not, or at least not yet, the Second Amendment equivalent of Near v. Minnesota, prohibiting all prior restraint and leaving abuse of the right to be deterred only by litigation after the fact. Judge Bumb retains discretion to determine how far it does go and how much freedom of judgment it leaves to state legislatures. She should note, in particular the concurring opinion of Brett Kavanaugh, joined by John Roberts, the chief justice.

Justice Kavanaugh’s opinion limits that of Justice Thomas. The chief and Justice Kavanaugh emphasize that licensing is still permitted, and that only the excessive discretion of the “may issue” states is constitutionally defective. Kavanaugh and Roberts recite Justice Scalia’s Heller opinion, which declares: “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Two fundamental issues remain to be addressed before Judge Bumb issues preliminary or permanent injunctions. She must answer whether the fundamental right of armed self defense is unreasonably burdened by each provision of the law. As a judge sitting in equity, she must address the public interest and ask whether making her order permanent would conduce to the overall good of the community. In this regard, the Legislature explicitly cites a compelling body of public health studies on the epidemic of gun violence in the United States.

We urge Chief Judge Bumb to keep in mind that there is a long history since the flintlock era of state and local governments regulating the possession of arms in public, as well as a wide range of balances struck by the diverse states in the present day. We also urge her to keep in mind the everyday experience and studies showing that gunpowder mixes badly with alcohol, with testosterone, and with the adrenaline produced by fear, particularly in the hands of the untrained. The United States is an outlier among modern democracies. We have 125 guns for every 100 people. Our gun homicide rate and our suicide rate are many times higher than other countries of comparable level of development.

In the next phase of the litigation it is incumbent on the state to defend New Jersey’s legislators’ right to learn from their own experience and respond in a reasoned way. One path forward is shown by the amicus brief which 15 states—including New Jersey—filed in the Second Circuit Court of Appeals in the comparable New York litigation Antonyuk v. Hochul. That 15 states joined in defense of New York shows that neither New Jersey nor New York is an outlier. Rather our part of the national experience demands respect as reasonable.

The 15 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.

We urge the attorney general to mount a rigorous defense of our elected representatives—mustering the strongest public health evidence possible of the public good to be served by reasonable limits on the time, place, and manner of possession of deadly weapons.