The Third Circuit Court of Appeals has vacated a ruling by a three-judge panel that upheld most of New Jersey’s concealed carry scheme adopted after the Bruen decision, and will re-hear the case en banc; meaning every Third Circuit Court judge will have the opportunity to weigh in on the gun control law.
The Third Circuit, which holds jurisdiction over Pennsylvania, New Jersey, Delaware, and ‘(oddly enough) the U.S. Virgin Islands, is shaping up to be the East Coast counter to the Ninth Circuit’s regular endorsement of almost every gun control law that’s challenged. Over the past couple of years the Third Circuit has held that at least some individuals convicted of non-violent crimes punishable by more than a year in prison shouldn’t lose their Second Amendment rights, suggested that the federal ban on “unlawful” users of drugs may not be constitutional in every application, and that adults under the age of 18 are vested with their right to bear arms.
The Third Circuit has taken several cases en banc after three-judge panels issued rulings that largely upheld New Jersey’s ban on so-called assault weapons and large capacity magazines, as well as the ban on gun ownership for a Pennsylvania man prohibited from possessing firearms because of a misdemeanor DUI conviction. Taking those cases en banc suggests a majority of the appellate court disagrees with those decisions, which makes Thursday’s decision by the Third Circuit especially interesting.
The three-judge panel that decided Koons v. Platkin agreed with New Jersey “for the most part”; upholding the state’s requirement that concealed carry applicants submit character references from “four reputable persons,” as well as bans on lawful concealed carry in permitted events, parks, beaches, zoos, recreation facilities, youth sports events, public libraries, museums, bars and restaurants that serve alcohol, entertainment facilities, casinos, healthcare facilities, and public transportation.
The decision to take Koons en banc doesn’t mean that every one of these regulations will be deemed unconstitutional when the Third Circuit re-hears oral arguments, but it does give the appellate judges the opportunity to rebut some of the twisted logic deployed by the three-judge panel in defense of New Jersey’s carry laws.
Take the ban on concealed carry on public transportation, for example. The three-judge panel upheld the ban on the grounds that:
Prior to the widespread adoption of rail transportation, horse-drawn carriages in a handful of cities shuttled small groups around for short, uncomfortable rides.175 But in the mid-nineteenth century, mass transit transformed American geography. The increased density and reach of public transportation resulted in novel safety concerns: with crowds of diverse individuals increasingly traveling together, and confined in sealed spaces during transit, railroads needed to ensure order and security. Accordingly, some railroads forbade firearms in their passenger cars. Government regulations shored up those restrictions by proscribing firing, brandishing, or recklessly handling guns on or near trains. Because Americans limited the ability of passengers to bear firearms on trains shortly after mass transportation became a widespread phenomenon, § 2C:58-4.6(b)(1)—to the extent it applies to public transit—comports with the traditional right to keep and bear arms.
The federal government could have banned the carriage of firearms on trains, just as it proscribed firing, brandishing, or recklessly handling guns on or near trains, but it did not take that step. Still, the Third Circuit held that rules promulgated by some private railroads suffice as a historic analogue to New Jersey’s carry ban on public transit. The Supreme Court has said that earlier laws don’t need to be a historical twin to justify a modern regulation, but in this case the historical record shows the exact opposite of New Jersey’s “gun-free” transit; governments regulating the use of firearms on trains, but not their possession itself.
The panel’s decision in Koons is rife with illogical conclusions like the one above, and I expect that the en banc panel will do a much better job of scrutinizing New Jersey’s carry regime using the “text, history, and tradition” test spelled out by the Supreme Court in Bruen when it issues its decision, which will likely come at some point next year.
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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