New Jersey’s Restrictions on Public Gun Possession Are ‘Plainly Unconstitutional,’ a Federal Judge Says

After the U.S. Supreme Court upheld the right to bear arms last June, New Jersey responded the same way New York did: by making it easier to obtain a carry permit but much harder to use it. “Although an individual seeking to carry a handgun for self-defense is no longer required to show a ‘justifiable need,'” U.S. District Judge Renée Marie Bumb notes, “the State’s expansive list of ‘sensitive places’ effectively prohibits the carrying of that handgun virtually everywhere in New Jersey.” The message to gun owners, Bumb says, was pretty clear: “leave your Second Amendment rights and guns at home.”

The preliminary injunction that Bumb issued yesterday, which follows a temporary restraining order that she granted in January, is the latest judicial rebuke of legislative attempts to defy the Supreme Court’s June 23 ruling in New York State Rifle & Pistol Association v. Bruen while pretending to comply with it. New Jersey politicians, like their counterparts in New York, are discovering that federal judges are not inclined to approve that transparent end run.

“Clearly, the State disagrees with Bruen,” Bumb writes in her 235-page opinion. “But it cannot disobey the Supreme Court by declaring most of New Jersey off limits for law-abiding citizens who have the constitutional right to armed self-defense.”

Under Bruen, the government has the burden of demonstrating that a gun control law is “consistent with the Nation’s historical tradition of firearm regulation,” a test that is designed to protect the right to keep and bear arms as it was understood when the Second Amendment was ratified in 1791. Bumb repeatedly expresses dismay at New Jersey’s failure to take that requirement seriously.

“Remarkably,” she writes, “despite numerous opportunities afforded by this Court to hold evidentiary hearings involving the presentation of evidence, the State called no witnesses. And despite assurances by the State that it would present sufficient historical evidence as required by Bruen to support each aspect of the new legislation, the State failed to do so.”

New Jersey’s lawyers instead offered the same “social science studies” that state legislators cited when they enacted sweeping restrictions on public possession of firearms. Bumb deems that evidence “inapposite” because the state’s regulations are “aimed primarily” not at “those who unlawfully possess firearms” but at “law-abiding, responsible citizens who satisfy detailed background and training requirements and whom the State seeks to prevent from carrying a firearm in public for self-defense.”

New Jersey’s failure to present evidence that would be relevant under Bruen “has
left the Court to do what the Legislature had said it had done, but clearly did not,” Bumb writes. “The Court has conducted its own exhaustive research into this Nation’s history and tradition of regulating firearms….This has taken some time, and the State’s effort to hurry this Court along is most unfortunate.”

In response to Bruen, New Jersey legislators eliminated the state’s “justifiable need” requirement for carry permits. But they simultaneously decreed that permit holders may not carry handguns in 25 categories of “sensitive places,” including parks, zoos, museums, entertainment venues, casinos, medical facilities, “transportation hubs,” businesses that serve alcohol, and the sites of public gatherings that require a government permit. The law’s broadest category is “private property,” where guns are presumptively prohibited unless the owner explicitly says they are allowed by posting “clear and conspicuous signage” or otherwise giving “express consent.”

While permit holders are allowed to transport firearms in private vehicles, they must be “unloaded and contained in a closed and securely fastened case, gunbox, or locked unloaded in the trunk of the vehicle.” As Bumb notes and the state conceded, those requirements make it impossible for motorists to use handguns for self-defense, although “the need for self-defense” may be especially “acute” in that context “given the State’s unfortunately large number of carjackings.”

Violating these rules is a third-degree crime punishable by three to five years in prison. The new restrictions put gun owners who already had carry permits in a worse position than they were prior to Bruen. Residents who might be inclined to seek a permit, meanwhile, might reasonably wonder whether there is any real advantage to having one.

Is this situation consistent with the rights that the Second Amendment was supposed to protect? In answering that question, Bumb painstakingly considers each of the provisions that New Jersey gun owners challenged, looking for “historical analogues” that a