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Notes -
ANJRPC v. NJAG Case Law
The Third Circuit has found:
Mea culpa, I expected a loss or a close and constrained ruling, but this is about as broad as the gunnie side of the equation could hope for. The court has directly overturned the state's aggressive (and expanding) assault weapons ban as to rifles, the magazines ban to 10-round limits and strongly motioned about 15-round limits, and it even sent the case back to the district court to take a deeper look at the pistols, shotguns, and 'other weapons' with a pretty strong implication that the bans on those should fail, too. Doesn't mean the lower court will take that seriously, but it's strong encouragement.
The breakdown is interesting.
Freeman, who wrote the fire-breathing main opinion, is an early Biden appointee. In a fairer world, this sort of adherence to the Constitution come hell or high water would be a feather in her cap for cross-party appeal; in this one, it's just going to make her enemies on 'her' nominal side and maybe buy some discretion should a conservative Senate ever go hog-wild investigating Thackerisms. Not that a lifetime appointment as an appeals justice is a bad job. New Jersey built the law here with a ton of interlocking 'workarounds' that didn't exist in practice, with a permit that literally never issued and an attorney general carveout that closed in 1990, and Freeman tears into them fully on the record rather than letting the state skate on them. She's joined by six Trump-appointed judges, two Bush-appointed judges, and one other Biden-appointed judge (Montgomery-Reeves).
Most of the concurrences are just doubling down on that, and giving the state even less benefit of the doubt. No explicit writing from Bove, which would have surprised me but for how complete Freeman's opinion is.
The plain dissents side are pretty unsurprising, except to notice how bizarrely bad they are, even taking their legal positions for granted. Shwartz (Obama) claimed, and three other judges sign onto the claim, that "semiautomatic weapons are unlikely to aid in hunting for food or trophies given the destruction they cause to the target". That's not a serious matter available for debate, or a remotely defensible one; I'm hard-pressed to come up with a justification for it beyond intentionally signaling complete lack of knowledge about basic firearm functioning. Krause (Obama) opens her dissent with a paean to gun manufacturers having "pumped a sufficient (yet undefined) number of them into nationwide circulation", which is very hard to make fit with economic demand so severe that a small industry built up around people throwing together their own, and then later approvingly repeats a claim (from St Eve, a Trump appointee!) that a bullet from an AR-15 "releases ten times the energy of a musket ball upon impact", which is either very confused or simply wrong, since the two rounds from a normal rifle have near-identical muzzle energy and similar impact energy. Smith (Bush) has a one-page dissent motioning to Bianchi, which a) thank you very much Kavanaugh, very useful percolation and b) seems really unlikely to persuade any one of the four SCOTUS justices that already said in Snope's dissent-from-cert-denial or 'statement' that Bianchi was likely in direct conflict with past SCOTUS holdings.
It's worth spelling out how long the case has been bouncing around, and how little intervening SCOTUS jurisprudence seems to have shifted anyone's positions. Shwartz wrote one of ANJRPC's first three-judge appeal opinions in 2018, and while it actually said intermediate scrutiny at the time, it's pretty much the same logic as his position now. Hardiman, Bibas, Porter, Matey and Phipps all dissented from the original denial en banc hearing in November of 2020, before SCOTUS GVR'd the case, and Shwartz, Krause, and Restrepro all voted against rehearing the case back then.
((There's some minor comedy in the breakdown when you look at the original panel: the case was plucked up for en-banc review before judgement after SCOTUS GVR'd it in 2022, but the panel was Freeman, Shwartz, and Smith, aka a 2-1 loss for ANJRPC, and one where Freeman would have been a Biden appointee dissenting in favor of gun rights. Since Freeman had three months between oral arguments and initial en banc, there's probably a fantastic story we'll never hear about how much of this opinion started as a dissent.))
There's a complaint that the majority opinion feels a bit like an amici brief to Viramontes. Montgomery-Reeves's (Biden) concurrence is circumspect to say the court should have waited for SCOTUS before issuing their opinion, but it's not a subtle subtext from a couple dissents.
The mirror to that is that the dissents aren't. Krause's legal theory, defining 'common use' to require common wear for self-defense, is outright incompatible with the history from Heller and makes little if any sense to apply in this route for a bare possession ban. Shwartz promotes the "dangerous and unusual" = "unusually dangerous" rule from Hanson and NAGR, but that's just the interest-balancing test that SCOTUS had repeatedly tried to slap down. Chung's position is straddling both. I'm not going to pretend John "Article III Is <Not> Worth a Dollar" Roberts is steel in his principles, but it's hard to see him reading these dissents as anything but an argument to reward lower court defiance of SCOTUS dicta, and harder still to see these arguments in any other form.
Practical Ramifications
A big question is what, precisely, the court case actually means.
As The_Nybbler is sure to point out, this doesn't actually help with New Jersey's FPIC, where the state has banned mere possession based on people being really annoying. For procedural reasons it's near impossible to challenge a specific FPIC denial in federal courts unless and until SCOTUS grants cert for a state court decision because petitioners are encourage to bring their statutory appeal in front of a state judge (and may have to in order make their claim ripe and redressable for a federal as-applied lawsuit), but once they've done so federal district and appeals courts are constrained from reviewing a case or controversy that has already been litigated in state courts. That's the San Remo trap in takings clause jurisprudence, but applied with a felony charge. There might be workarounds -- San Remo got a bypass through Knick -- but Knick took decades, and is pretty tied to takings clause process stuff. Facial challenges are a little easier to bring, but post-VanDerStok, they're also facing a hell of an uphill battle, because no matter how arbitrary the 'essential character and temperament' requirement might be, not issuing permits to a convicted felon is legitimate. There's a tension here where SCOTUS seems to bring that Salerno 'no set of circumstances' strictly or not depending on the context, but even if FPICs are closer to Heller than VanDerStok, it's a long shot.
New Jersey's post-Bruen tantrum bill still makes carry licenses incredibly difficult to get and useless if achieved, and while Koons is still outstanding and before the same court, a ruling in this case is only tea leaves for a ruling in Koons. Outside of pure impossibility, the court here doesn't really handle pretextual restrictions. And there's obviously no ruling on the pistol, shotgun, or other weapon restrictions; that's on the lower court.
But there's also the question of the four corners of the ruling itself.
This is a first, both as an en banc circuit court striking down a broad assault weapon/magazine ban, and for a gun case with a broad and immediate impact. Bruen and Heller and McDonald were all permission to get a license or registration that previously wasn't possible at all, leading to Heller needing to wait months to register his specific gun from the case (and being denied for a semiautomatic handgun), and to New York City spending years with fewer issued carry permits than before Bruen. Here, removing the law it itself a categorical switch, and one that covers a wide variety of locations, both in New Jersey and in Delaware, and blocks some Pennsylvania bills that were getting increasing political pressure. But.
New Jersey residents can't go out and buy an AR-15 legally, yet. Under federal court rules, the opinion drops (in cases without a federal law), then there's a two-week period to submit a request for a stay or rehearing, and then a week after that, mandate issues to the lower courts. The precedent is set with the ruling, but the law gets to stay in effect until mandate issues, or if a stay is granted, until the stay concludes. That'd be July 31st for New Jersey's deadline, and August 7th for the mandate issuing. Possibly plus a couple days; ANJRPC is saying that the court clerk is planning to actually issue on August 10th.
But New Jersey resident can't go out and buy an AR-15 practically, yet, because in the state, it's only legal to buy a firearm from an FFL with a state Retail Firearms Dealer's License. Those regulations mean that the merchant has given permission to regular warrantless searches, and a single illegal transaction (even if under a law he or she can't be prosecuted for at the time of inspection) could mean waving goodbye to the licenses and thus business. The various laws about import and transfer weren't cleanly blocked by this opinion, cfe again Nybbler's complaints. And it's illegal for a New Jersey resident to go out-of-state to buy a rifle from someone, or for an out-of-state FFL to sell a gun to New Jersians, even if the buyers were willing to roll the dice on the possession ban.
Magazines, however, don't hit any of those requirements. The big vendors aren't going to ship them to a New Jersey address because they'll get sued, and even a meritless suit is expensive as hell. And New Jersey has been aggressive about lawsuits targeting vendors who sell lawful gun components under other theories. But in practice, there's a lot of merchants who were selling normal magazines, and an even larger number of private sales that would be practically impossible to trace or recover damages from, and they've all had very good business the last week and a half.
From a purely legal perspective, that's banned by the law, which is still in force. In practice, the state of New Jersey is physically incapable of bringing a case to trial in a month, and it would struggle to bring a case to trial before the end of SCOTUS's next session, and pretty much restricted to the case where SCOTUS GVR's ANJRPC post-Viramontes. If you think SCOTUS won't actively support the ban here, New Jersey's ability to actually convict under the law is nearly a dead letter. But before mandate issues, a police officer arresting you can argue that the unconstitutionality of his behavior was not clearly established, and you still get to spend days, weeks, or months in jail, have an arrest record, and have your FPIC(s) revoked for it. Of course, it's not like police arresting people over an unconstitutional statute reliably breaks qualified immunity even after literal decades after final judgement, so that's always at least a possible problem, but here it's more on the plausible side.
So I don't recommend, for your first state felony, taking a photograph and posting it on social media. I am not a lawyer and this is not legal advice, but it's probably not the best plan.
No small number of people did it, though, and given things like California's Freedom Week, there's not-crazy motivations for everything up to the photograph part.
Legal Strategy
Which means a big question is what New Jersey does. California's Freedom Week was a week because California sought, and received, a stay. Courts have traditionally been very generous when staying rulings affecting a significant law, and SCOTUS in particular has been much more willing to stay pro-gun rulings than anti-gun ones. The smart money was that New Jersey would seek a stay and request cert from SCOTUS. Even if the state didn't receive cert, or even if they lost the case, the law could stay in effect for several months longer. Which also allows the state's legislature to write workarounds and successors to the law, like a slightly-less-impossible registration or permitting requirement. ANJRPC themselves predicts:
So far, New Jersey has not, and has not yet committed to doing so. New Jersey's Attorney General doesn't even have a current statement on their website; it posted an image on Facebook without any clear statement beyond "considering our options". There's been a sequence of short e-mails that have gone out to merchants from the state police, but that started by giving the wrong date and has since turned into 'wait for further guidance'. It's possible the police don't know, either.
So there's some difficult questions, here. And it's not clear what New Jersey's legal side is doing. Possibilities:
fantasieshopes that there would, at some point, be a Second Amendment loss so severe that an anti-gun state would accept it rather than risk SCOTUS making a disliked standard apply across the country. There's been a few close examples, though typically motivated by other forces (eg, Range was a Trump DoJ refusing to appeal; NYRSPA I and Teter v Hawaii were tactically mooted). It's hard to see the benefit to that, here: SCOTUS already has granted cert in Viramontes on assault rifles, and has Duncan, Lamont, and Gator's Custom Guns sitting on ice and available to grant for magazine bans. But I guess appealing it might inform SCOTUS of a circuit split, as if 28(j) letters didn't exist?I dunno. This case isn't equivalent to Obergfell, or Lawrence, where laws across the country were changed overnight in manners that had street celebrations acting on the newly recognized rights. It's limited to a single circuit, and even the broadest ramification is going to get some resistance, and that resistance isn't going to get the Kim Davis treatment. But it could mean something for hundreds of thousands of real people, as much as The_Nybbler's not going to be able to join that cohort without fleeing the state.
Maybe. This is the commitment now to say it's matters if it does, and it matters if it doesn't.
I'm amused at how gun possession is supposedly a right, and yet with all the caveats laid out here, it seems more like a privilege in practice. Meanwhile, driving is supposedly a privilege, but I'd bet a million dollars I could get a NJ driver's license and own any car I wanted in NJ sooner than I could own any gun I wanted in NJ. Driving seems to be more of a right than guns are.
The ability to be mobile would maybe be the first right I would add to the constitution under the 9th amendment under any living constitution argument. It just seems to be a basic thing you need to be able to do to exists. Like it’s basically required now to get food.
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Driving isn't technically a right, but it's even better than that; you can get a driver's license anywhere in the world, as long as it is in English or you have what's called an International Drivers Permit (which is just a translation of your license) and legally drive in New Jersey. For cars you're limited to what's street legal in the US.
For guns, unless you're a US citizen who lives in NJ, have at least two other unrelated adult NJ citizens willing to literally vouch for you, have never seen any sort of mental health doctor, are comfortable dealing with police, are willing to be fingerprinted and sign away your rights for them to examine your medical records, no guns (including pellet guns, and also all ammo) for you. If you do get all of that, you might be able eventually to purchase one of the ever-dwindling set of NJ-legal guns. Actually, as many NJ-legal rifles as you want, but only one handgun... for a second handgun you have to do the whole permit process again.
Yeah, it's a ridiculous joke, but the Supreme Court and all so-called gun rights organizations are fine with it.
Hold on isn't this just "involuntary or voluntary admission?" Per google found a law firm saying that's the case. Including voluntary is a bit sketchy in my mind but the steel man is pretty reasonable - "did someone in the community and a panel of experts on safety agree that you were an acute danger to yourself or others" is not that unreasonable. The reality of the situation means that sometimes admissions are soft but on paper "a bunch of people though you were going to kill yourself or someone else" is not that unreasonable of a disqualified for owning a firearm.
If for some reason this involves mundane outpatient interaction with a psychiatrist then people in the state have the easiest lawsuit in the world - just find someone who saw a psychiatrist one time as a kid because they were annoying, was going through grief or adjustment disorder or something like that and take it to the Supreme Court.
No.
Yes.
Previous discussion: 1 2
Text of law
Filling out the form falsely is a strict-liability felony.
So, if you were "attended, treated, or observed" "for any mental or psychiatric condition", but you can't give the name, location, and date because you don't have the records, then you can't get a gun.
Great, easy lawsuit then! "I went a few times as a kid to rule out ADHD and my parents and I don't have any records." Should be slam dunk 2A case.
I'm noting that your highlighted text does not note that seeing a psychiatrist outpatient is exclusionary.
In my head-canon, @The_Nybbler exhibited this level of optimism long ago, but the sands of time have since worn it away, leaving behind an obsidian capsule sized just a bit too large for oral ingestion.
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There are no slam dunk 2A cases. First of all, if you don't put a name and hospital affiliation of the doctor, they deny the permit on the grounds that it is incomplete. Don't know those things? No gun for you. No appeal from that. Second, if you do, they may just deny the permit. You can try to appeal that but the state courts will be against you at every turn, and you have to exhaust all of that before you can even ask the Supreme Court to take a look, and in the end they won't. Sometimes, apparently, they'll require you to see a psychiatrist who will swear on his license that you're OK to own a gun (this seems to be with ex-military people who have seen a VA-associated mental health doctor, so it's probably a courtesy to them not to just deny it). Good luck with that.
I don't understand how the NRA can't get anywhere with "this person can't complete the form because they were six years old and their parents are dead."
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Unfortunately, no. The only successful challenges to the FPIC have been statutory (basically just Polotov, where 'lying' during an evidentiary hearing, rather than on paper, was not covered by the statute's 'essential character' clause or the "any person who knowingly falsifies any information on the application form for a handgun purchase permit" clause). Because you're stuck in a state court, the state court findings are given preclusion and Rooker-Feldman protection, and the state courts are New Jersey, they consistently point to the Bruen Footnote 9 and flip you the bird.
In The_Nybbler's specific hypothetical, the state will also just refuse to process an incomplete filing, so you have ripeness problems (and the state will argue against 18 USC 1983 federal charges allowing you to bypass exhaustion requirements).
Yes, the state can sometimes grant an FPIC to people who have had past outpatient care. And then sometimes it won't. And a past denial or incorrect statement is itself cause for a denial on later requests.
First, I do acknowledge that this stuff has been used to abuse gun owners, although less than they fear.
I've also filled out a million background checks and other similar documents, we have techniques, the classic of which was "no, I do not remember going to a psychiatrist three times at age 6." Patients forget things all the time. Patients forget heart attacks, and as long as you aren't in a centralized database (like for involuntary admissions) you won't be found out. Psychiatrists do cash pay for healthcare people to help facilitate this type of thing (so they don't have to report to boards).
And again, while it's onerous, practically speaking this shouldn't be a problem - people are required to store records and to use a document service if they sunset their practice. This is a common thing.
With respect to your linked case, are you familiar with it?
Through a cursory review the person described therein is a central example of someone who shouldn't own a gun and who should be prevented by any means necessary.
The guy has a history of violent and suicidal ideation, has acted out with aggression and violence, exhibits a pattern of poor impulse control, judgement, and insight and engaged in terroristic threats and other threatening behavior. To the extent that the person doesn't have any criminal convictions which precludes gun use is solely due to undercharging. The person likely meets criteria for a cluster-b personality disorder, probably on the border of Narcissism and Anti-Social. This person has a the profile of a mass shooter. I've seen people with multiple bodies who have less red flags. Put another way - I'd rather give a gun to a banger, at least he's only likely to shoot a civilian by accident.
Yes people age out of these personality attributes but it's pretty alarming, I imagine if you ran this case by non 2A people nearly 100% would say god no no guns, and even a super majority of 2A supporters would be like yeah fine.
Not a good test case.
It's a minimal obligation to mental health professionals, who have to deal with this sort of thing on a regular basis. It's absolutely a serious problem for normal people, because randos don't have rolodexs going back into their childhood.
For a simple job background check, this doesn't matter, because if you're mistaken you just thank them for finding information you forgot, and at worst you don't get the job. For the FPIC, it's a strict liability offense and even if not prosecuted, prohibits any future FPICs with the corrected data.
Yes, which makes a lot of the summary by the lower court a little annoying.
The 'terrorist threats' were a reddit The Purge-themed thread, and a "Shut The Fuck Up Liberals" protest sign. The acting out with aggression and violence was from an incident where a Penn State professor beat him in the face while he was protesting COVID mandates. It's very unclear that he's even violated the law, nevermind in a way that would result in a felony charge.
The guy is a racist asshole (and moreover, the sort of person who'd wear the badge "racist asshole" with a grin). I absolutely wouldn't trust him with my login info, or to be polite to ... basically anyone, but and especially to be polite to anyone African-American, trans, or XX-chromosone'd. Some of the stuff floating around is downstream of people just smearing him over his politics, but some of it is genuinely some personality disorder (although I'd guess oppositional or defiant) and a good deal of it is just that he's that sort of asshole.
But if we're going to start stripping constitutional rights from people on the basis of making a bad social media post that a normal person while see as dangerous, or being enough of an asshole that someone wants to punch them, well, Do I Have A Deal For You.
The good test cases don't try to press the law when it pushes back, or flee these restrictions, or just quietly resent over in a corner.
There was a time where waiting for or building perfect test cases was persuasive, but between NYSRPA I, Whitaker, and most importantly the willingness of courts to dive down over holiday weekends to rescue absolute scumbags in other contexts, it's stopped being persuasive.
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When I did it, the handgun permit let you get up to three within a 6? month period, but no more than once per month.
Somehow, that feels even more like malicious regulation.
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