‘Catchy Slogans’ Versus ‘the Rights of Our Republic’: Concurring Opinions in NJ Gun Ban Case

On Friday, I covered the breaking news out of the Third Circuit striking down New Jersey’s gun and magazine ban. I could really only focus on the majority opinion at the time, but I’ve since had the chance to read through the four concurring opinions and the three dissents. In this post I’ll be highlighting some important parts of the multiple concurrences, starting with the one written by Judge Paul Matey, in which he was joined by Judge Jennifer Mascott. 

Matey starts with what Ninth Circuit Judge Lawrence VanDyke might call a “benchslap” aimed at the Garden State. 

I join the majority’s thoughtfully reasoned conclusion that New Jersey’s blunderbuss legislation is now, as it was the last three trips to this Court, unconstitutional. And I join the judgment, which will put New Jersey’s lawyers to the task of proving how any of the restrictions on these commonly owned and ordinarily enjoyed firearms can meet the rigorous test the majority confirms. Nothing has changed in the decades since the State launched its battle against the Second Amendment and its ongoing defiance of the law.

Well, something has now changed, and for the better. Matey chastises New Jersey’s lawyers, “who at every turn have turned a blind eye to the Constitution while prioritizing histrionics over history,” and declares that now, perhaps, “New Jersey will now finally honor its oftrepeated commitments to the rule of law and start following this one.”

Matey’s concurrence also contains this gem in a footnote: “the banned weapons appear to fall within the heartland of the Second Amendment protection—an ‘individual right to own privately and keep weapons suitable for militia service.'”

Anti-gunners argue that AR-15s are too close to machine guns to be protected. Matey’s concurrence suggests that makes them more likely to be protected, and more importantly, he doesn’t shy away from the argument that the arms that are most important to our 2A rights are those that are suitable for militia service. One of the primary purposes for the militia back in 1791 was to protect against the establishment of a tyrannical regime, and I’m glad that Matey isn’t glossing over that history. 

Judge Peter Phipps also issued an opinion concurring with the majority’s judgment, but writes that he does not believe “that there is a common purpose between the restrictions on weapons that ‘our tradition is understood to permit’ and the challenged New Jersey statutes.” In other words, the “why” of New Jersey’s gun bans and our national tradition of gun regulation are not one and the same. 

In populating the set of relevant historical analogues, I agree with the Majority Opinion that all but two of the proposed historical restrictions of weapons are not valid comparators. The only relevant historical analogues are going armed laws and surety laws.

Those laws dealt with “regulating people who actually or imminently misuse firearms to harm or menace others.” Phipps says the gun and magazine bans would fail the “why” prong “because those statutes bar the possession of assault rifles and LCMs based on their potential for misuse, however remote, and that is broader than actual or imminent misuse.”

By contrast, the Majority Opinion does not limit thevpurpose of going armed laws and surety laws to the actual or imminent misuse of firearms. Its more general formulation of the purpose for those historical regulations – “seek[ing] to‘bar people from misusing weapons to harm or menac eothers’”– includes the potential misuse of firearms to harm or menace others.

That’s too broad a brush for Phipps, who says “if the purpose behind the historical analogues is read that capaciously, then it would encompass nearly every firearm regulation because guns are, by their nature, dangerous and capable of misuse.”

Judge Tamika Montgomery-Reeves, in her concurring opinion, writes that she agrees with the majority’s “well-reasoned opinion because current Supreme Court precedent dictates that outcome,” but argues that the appellate court should have waited until the Supreme Court released its opinions in Viramontes and the Connecticut gun ban challenges that it will hear next term. I respectfully disagree. I think SCOTUS should hear from the Third Circuit now so that the justices have as much of a record as possible to go on when they consider the Cook County and Connecticut “assault weapon” bans. 

Judge Jennifer Mascott, who joined Judge Matey’s concurrence, wrote one of her own as well. Her first objection is the Third Circuit’s “hardline selection between 1791 and 1868 in identifying the appropriate starting point for Second Amendment historical analysis.”

The State has not made a sufficient evidentiary showing that its laws would be supported by historical practice during either era and, thus, picking one date for constitutional analysis of a broad-based longstanding right is unnecessary here.

I think the Third Circuit simply stuck to what it concluded in the Lara case, but I happen to agree with the majority that courts should be looking to 1791 to determine the original intent of Second Amendment, not 1868. 

Mascott says she would also “not go so far as the majority opinion in cementing the label ‘dangerous and unusual uses of firearms as ‘mutually exclusive’ from firearms that are ‘in common use for lawful purposes.’”

As the Supreme Court and the majority opinion explain, there is significant historical precedent for government regulation of “dangerous and unusual” firearm uses. But turning that designation into an anti-type risks signaling to assertive State regulators that establishing a Second Amendment basis for regulation can be accomplished simply by labeling a firearm use “dangerous and unusual” rather than affirmatively demonstrating historical evidence for the regulation as commanded by the Supreme Court.

I appreciate where Mascott is coming from, but I don’t share her concerns. So long as we’re talking about “arms”, then they are presumptively protected by the Second Amendment and it would be up to the state to prove they are “dangerous and unusual”. A simple label won’t suffice, in my opinion.

You can read all of the concurring opinions (as well as the majority and dissents) here. The concurring opinions begin on page 67, and are worth reading in their entirety. Tomorrow, I’ll be taking a closer look at the dissents to see if they have any new arguments anti-gunners might deploy in defending “assault weapon” bans before the Supreme Court. 

Editor’s Note: The radical Left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.

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