New Jersey asks federal appeals court to uphold new gun restrictions

Much of the 2022 law, which bans guns in a host of places, has been blocked after gun owners sued

By: - October 25, 2023 7:01 pm

New Jersey Attorney General Matt Platkin joined members of Moms Demand Action at a rally outside the James A. Byrne U.S. Courthouse in Philadelphia on Oct. 25, 2023, in support of New Jersey’s contested gun control law. (Dana DiFilippo | New Jersey Monitor)

New Jersey defended its embattled new gun law in federal court again Wednesday in a case that will determine whether gun owners can take their weapons to beaches, bars, parks, hospitals, and other places lawmakers last year deemed too “sensitive” for armed visitors.

A three-judge appeals panel grilled attorneys for three hours at the James A. Byrne U.S. Courthouse in Philadelphia about the law, which besides banning guns at sensitive places also set new fees and training and insurance requirements for gun owners seeking carry permits.

The law has largely been on hold since gun owners challenged it last December, the same day Gov. Phil Murphy signed it into law. A federal judge in Camden issued several orders blocking enforcement of most of its provisions in January and May. In June, the Third Circuit paused part of the preliminary injunction in a split ruling where one judge dissented.

Wednesday, as New Jersey Deputy Solicitor General Angela Cai appealed to Third Circuit Judges Cheryl Ann Krause, Cindy K. Chung, and David J. Porter to reverse the earlier injunctions and affirm the law, the state seemed poised to lose this round, judging by the jurists’ questions.

“If we were to accept all the arguments that you and your colleagues have made, what would be left of a right to public carry?” Krause asked Cai. “Where could you go and still exercise your Second Amendment rights?”

The law’s lack of specificity about some sensitive places has created confusion that has persisted through the court hearings, including in March when another judge puzzled over what exactly a “public transportation hub” was.

Even Senate President Nicholas Scutari and Assembly Speaker Craig Coughlin, during a Tuesday press briefing about the case, couldn’t list where gun owners would be able to legally carry under the new law.

As Wednesday’s hearing wound down, Porter repeated Krause’s question: “Where can somebody carry?”

On the streets, on public land, on private property with the owner’s permission, and anywhere not declared a sensitive place, Cai responded.

Judges’ pushback

The fast-tracked law was New Jersey lawmakers’ response to the U.S. Supreme Court’s June 2022 Bruen decision, in which the nation’s top court affirmed a constitutional right to carry. For New Jersey, that meant the state could no longer require gun owners to prove a “justifiable need” to carry guns outside their home or business.

Bruen directed states to root gun policies in the “history and tradition” of firearm regulation that existed when the Second Amendment, which guaranteed the right to bear arms, was ratified more than two centuries ago.

Wednesday, the judges conceded that new problems that didn’t exist in colonial times — including the mass production of firearms, their increasing lethality, and mass shootings — complicate the issue. And some places where guns now are generally accepted as forbidden didn’t exist then, such as airplanes, airports, and power plants, attorneys for both sides agreed.

“The historical record is unequivocal that the Constitution did not hamstring legislators then or today from enacting the safety regulations of the type in Chapter 131 (the new law), when states found these measures necessary to protect their citizens,” Cai said.

Still, the judges pushed back on the state on several issues.

Several sensitive places deemed gun-free zones, like schools and nursing homes, were included because “vulnerable people” congregate there.

Porter questioned the state’s definition of vulnerable people: “If the rationale is vulnerability, isn’t an adult male as vulnerable, since he can’t carry, as a child in that sensitive place against someone who is, in violation of the law, shooting guns?”

The law’s $50 fee to support crime victims also raised judges’ eyebrows, with Porter asking why the state is charging people a fee to exercise a constitutional right.

Law-abiding gun owners shouldn’t have to compensate someone else’s crime victim, added attorney Erin Murphy, who represents several of the gun owner plaintiffs.

“To attribute costs for someone who’s lawful and has never used their firearm or shot someone or caused mayhem or disorder, that’s the issue. How can you assess that cost to someone?” Murphy said.

Cai explained the state has long charged for gun permits but hadn’t raised the price in decades, so the new fee merely aims to keep up with inflation. It also will help cover the increased policing costs the state anticipates as more people take guns into public places, she added. The state police commissioner said last year he expected more than 200,000 gun owners would apply for gun carry permits in the wake of Bruen; the Attorney General’s Office is collecting that data but hasn’t released it yet.

Chung and Porter raised concerns about the law’s requirement that gun permit applicants present “reputable” people to serve as character references for them.

“Background checks are objective. This seems pretty subjective,” Porter said.

Chung agreed, saying: “Who decides who’s reputable?”

Cai had a very Jersey response to that question.

“I suppose, your honor, if your reference is Tony Soprano, that would probably be a problem,” she said. “And I think the law limits it to people who are not related to you, so your grandmother could not vouch for you. But it’s just another citizen who knows you, who has information about your propensity to harm yourself or others.”

A decision in the case could take months.

Moms Demand rally

Before the hearing, about 40 members from Moms Demand Action and Everytown for Gun Safety rallied outside the courthouse in support of the law they call “New Jersey’s Bruen fix.”

New Jersey Attorney General Matt Platkin stopped by to join the rally before heading into the packed courtroom to listen to the hearing.

“There is a reason why the state of New Jersey is one of the safest states when it comes to gun violence,” Platkin said. “It’s because of our strong gun safety laws. You are six times more likely to be shot and killed in Mississippi than you are in New Jersey. That’s because of our gun laws. That’s because we fight for them.”

Moms Demand member Sue Repko of Mercer County got involved in gun control activism because of her late father, a gun owner who often menaced others with his gun and accidentally shot a neighbor to death when he was test-firing a gun in his garage.

“I truly believe that the death of our neighbor was the inevitable result of a lack of common-sense regulation of firearms, and a failure to enforce existing laws, along with one man’s unexamined personal fears and paranoia, leading to the death of an innocent human being,” Repko said. “Allowing guns in sensitive places greatly increases the risk that someone — or many people — will be seriously injured or killed in more places. Laws and court rulings that deny these realities display a callousness for human life.”

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Dana DiFilippo
Dana DiFilippo

Dana DiFilippo comes to the New Jersey Monitor from WHYY, Philadelphia’s NPR station, and the Philadelphia Daily News, a paper known for exposing corruption and holding public officials accountable. Prior to that, she worked at newspapers in Cincinnati, Pittsburgh, and suburban Philadelphia and has freelanced for various local and national magazines, newspapers and websites. She lives in Central Jersey with her husband, a photojournalist, and their two children.