Litigation Update: Koons v. Platkin

[Music]

 

Sam Fendler:  Hello, everyone, and welcome to this Federalist Society virtual event. My name is Sam Fendler, and I'm an Assistant Director of Practice Groups with The Federalist Society. Today we're excited to host a litigation update on Koons v. Platkin, a case that concerns concealed carry laws and firearms regulation in the State of New Jersey.

 

      We're joined today by Mr. Peter A. Patterson. Pete is a partner with Cooper & Kirk. There, his practice includes appellate litigation, constitutional litigation, commercial litigation, and administrative law. Prior to joining Cooper & Kirk, he served as Associate Counsel to the President in the White House Counsel's office. Before that, he served as a law clerk to Judge Jeffrey Sutton of the United States Court of Appeals for the Sixth Circuit. He is a graduate of Carnegie Mellon University and Stanford Law School. If you'd like to learn more about Pete, his full bio can be viewed on our website, fedsoc.org.

 

      After Pete gives his opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we'll do our best to answer as many questions as we can.

 

      Finally, I'll note that, as always, all expressions of opinion today are those of our guest speaker and not The Federalist Society.

 

      With that, Pete, thank you so much for being here today, sir. And the floor is yours.

 

Peter Patterson:  Excellent, and you're welcome. Thanks for having me. Happy to be here and talking about the case, Koons v. Platkin, that we've been litigating in the Third Circuit. And, as Sam mentioned, I'll give an overview of the case, kind of a little bit of the procedural background, lay out some of the arguments, and then happy to answer questions that anyone may have about this case in specific. Or we have a broad Second Amendment practice, so any kind of post-Bruen issues we'd be happy to talk about.

 

      So, as most people probably know, in June 2022, the Supreme Court, in Bruen, held that law-abiding citizens have a general right to carry firearms in public for self-defense. And the Court, accordingly, held that New York's law that said people had to have a "special need" for a carry license violated the Second Amendment. Now, in announcing this decision, the Court acknowledged that the general right to carry could be restricted in "exceptional circumstances." And it specifically mentioned founding-era laws restricting carry at courthouses, legislative assemblies, and polling places.

 

      Now, after Bruen, many of the may-issue states, like New York, passed laws testing this "sensitive place" concept that the Supreme Court had discussed. And these laws essentially limit carry to public sidewalks. If you look at the details of them, it's pretty much anywhere where people gather or could come together in multiple -- multiple people come together carry is either presumptively or wholly barred in those places. So this has had the ironic effect in these states like California, New York, Hawaii, Maryland, New Jersey, where, for the lucky few who were able to get licenses before Bruen, things are actually now much worse than they were before Bruen, after Bruen.

 

      And so, New Jersey offers a good case study of this phenomenon. So, after Bruen, the state passed a highly restrictive statute, again, essentially makes carrying impossible throughout much of the state. And, indeed, the stated rationale for the legislation -- it's not that these places suddenly became sensitive places. We didn't realize it before. It was, "No. A lot more people are going to be exercising their Second Amendment rights now, so we need to do something about that."

 

      And so, our clients -- again, the case is called Koons. We sued in district court, challenging some of the most egregious of these restrictions. So those locations include -- New Jersey says you cannot have an operable firearm in any vehicle, in parks if the park has designated it a gun-free zone, in any place where alcohol is served—and not just people who are consuming alcohol, but anybody on the premises—any entertainment facilities, any healthcare facilities, any libraries, and any museums.

 

      And then there's also, possibly, the most pernicious aspect of that, and that is the no-carry default. So throughout American history, the default rule, consistent with the Second Amendment, has always been people have a right to carry firearms on businesses open to the public unless the owner of that property says, "No guns are allowed." And then, under the property law—trespassing—property owners are allowed to do that. But what New Jersey has done is flipped the burden of proof to -- or burden of -- flipped the default to say that, by default, nobody can carry in any business open to the public unless the business specifically allows firearms.

 

      And the academics who have been pushing this idea have said explicitly that the effect of this is going to make carry essentially impossible across wide parts of the states that do this—a few states have done this in addition to New Jersey—because most businesses are just not going to opt out of the default either way. So that is a particularly burdensome and pernicious aspect of this law.

 

      So we filed a complaint. Another group of plaintiffs, called the Siegel plaintiffs, filed a similar complaint. The cases were consolidated together. Both sets of plaintiffs moved for preliminary injunction, and the district court entered a PI with respect to most of the locations that we had challenged. And then the State appealed. They filed a motion for a stay, pending appeal, and the Third Circuit granted that stay with respect to many locations but not with respect to the no-carry default and the no-guns in vehicles rule, so those continue to be enjoined to this day as the litigation is ongoing.

 

      And then we argued the case on October 25th in the Third Circuit in front of judges Kraus, Porter, and Chung. And if people are interested, I would encourage you to listen. The link is available on the Third Circuit. We were scheduled for an hour. We went almost three hours. So the judges were very attuned to the issues. They were asking very perceptive and hard questions of both sides, so it was good to see that this court is taking this very seriously. So it was a very good argument.

 

      And I will run briefly through an overview of how we view the case. And, of course, these opinions are all mine that I'm giving today.

 

      And, first, under Bruen, the Court has instructed us to start with the plain text of the Constitution. And here of the relevant plain text is "the right to bear arms," which the Supreme Court has said simply means to carry firearms. So, in the plain text—just the plain, bare text—there is no basis to make any locational distinctions whatsoever. It's just the right to carry firearms. So all of the conduct at issue in this case involves carrying firearms for a lawful purpose, self-defense. So it's all within the plain text.

 

      And that's largely undisputed in the case, except for the no-carry default. And so, the State had said, "Well, you don't have a right to carry a firearm on somebody else's property. So that's just completely outside of the Second Amendment." But that is wrong because the Second Amendment, again, it protects an activity, not a location. So to the extent the State wants to restrict or regulate where you can carry a firearm, that has to come from history, which is the next part of the Bruen analysis.

 

      And it's clear -- if we analogize to the First Amendment, it's clear that that has to be right because if the State were right, that would mean that a state could say, for example, "No Trump supporters or no members of religious minority or no Biden supporters can enter into a business unless the business explicitly says they're allowed to shop there." And if the State were right, that would not even implicate the First Amendment. And that's clearly wrong, so the Second Amendment is implicated here just as the First Amendment would be implicated in that sort of case. And so, because the Second Amendment is implicated, the burden shifts to the government to demonstrate that its restrictions are consistent with this nation's tradition of firearm regulation.

 

      And, before getting into the State-specific justifications that they have argued, I'll start with some general issues that have been arisen post-Bruen in this area. And one is: What is the relevant date for history? Is it 1791? Or is it 1868, when the Fourteenth Amendment was passed and the Second Amendment gets incorporated? And that's important because which date you pick, as the date when the original meaning is set, governs what evidence you consider, and which laws are relevant.

 

      And it's our view; what we've consistently argued is that 1791 is the correct date, and that is because the Second Amendment was adopted in 1791. Its meaning is what it meant in 1791, and although it was incorporated against the states in 1868, the question there is: To whom, to which entities, would the Second Amendment apply? It's not a new right. What was incorporated was the Second Amendment. So you would look, just if you were a judge in 1867 looking to see what the Second Amendment means, you would look to the 1791 understanding. And the same thing would be true after it was incorporated in 1868 into the Fourteenth Amendment against the states. And that's consistent with what the Supreme Court has always done.

 

      First, whenever we're talking about the Bill of Rights against the federal government, the Supreme Court has always looked to 1791—that's what it did in Heller itself—to see what the meaning is. And then, for rights that are incorporated against the states, the Court has repeatedly said, "The right means the same thing with respect to the State as it does with respect to the federal government." So if you put those two principles together, it follows that 1791 is the right answer, so that we've consistently argued for 1791. Here, in this case, it shouldn't really make a difference because, whether it's 1791 or 1868, the result should still be the same.

 

      Another question that has arisen is: How many analog laws do you need? Is there some numerical amount? And Bruen says, for example, three colonial statutes aren't enough. But then some governments have argued, "Well, that's true, but there were only a few sensitive place laws that the Court thought established a tradition, so how do we square those things?"

 

      And so, what we have argued is that it's not so much a numerical exercise as it is you have to see, does the analog that you picked, does it fit in with the broader historical tradition? And what I think is key is the common law, as it was understood when the Second Amendment was adopted in 1791. And as Bruen makes clear, pretty much the only restriction on carrying in public for law-abiding citizens at common law was you cannot carry them in a manner to terrify the public. In other words, you can't carry in a way that gives people reason to believe you're going to misuse those firearms in a criminally unlawful way.

 

      So then the question for statutes that get passed and whether those are valid analogs we can analogize to are: Are those statutes natural outgrowths of that historical tradition, or are they departures from that historical tradition? And so, if they are a departure, that cannot be used as a valid analog. And, you see, that's how Bruen reasoned very much, looking at all of these analogs and trying to separate out the wheat from the chaff to see, "Okay. What fits in with the mainstream tradition that is legitimate in this country? And what is an outlier that's short-lived and that we're not going to follow?"

 

      So that's how we think those issues should be handled. Of course, if something is a departure from the common law, and there's only a few of them, then obviously that cannot be a valid analog.

 

      So, turning to New Jersey's justifications, and at the outset, it should be clear New Jersey has a big headwind against it in this case because what Bruen said is that people have a general right to carry in places frequented by the general public, subject to exceptional circumstances in which that right can be restricted. And New Jersey's law flips that on its head because it's, basically, there are exceptional circumstances in which you can carry. Maybe if you walk your dog around the block and stay on the sidewalk, you could carry, but everywhere else, it's either presumptively or absolutely barred, essentially, from carrying firearms under New Jersey's statute. So New Jersey should face a tremendous amount of skepticism with these claims, and, unsurprisingly, its history, in our view, does not support its restrictions.

 

      So the first principle New Jersey forwards is it says, "We can ban firearms in places where people exercise fundamental constitutional rights." And it's trying to analogize to these three locations—courthouses, legislative assemblies, and polling places—that the Supreme Court discussed in Bruen. But that cannot possibly be the right principle because two places where constitutional rights are exercised frequently are in the home and on public sidewalks. And we know from Bruen and Heller that the right is secure, at least in those places. So that principle is plainly too broad to apply potentially anywhere.

 

      What we submit as the valid principle is that places where the government provides comprehensive security, that is where firearms can be banned. And we say that is the unifying principle for the founding era restrictions that Bruen identified. We've identified many, many statutes from the colonies and states providing officials like sheriffs, sergeant at arms, and doorkeepers in courthouses, legislative assemblies, and polling places at the founding, so that fits with history. And it also fits with the reason and the purposes of the Second Amendment because if the government is securing a location, then the need for self-defense in that location is reduced. So we think that has to be the principle and the reason for why one of these sensitive places can be a sensitive place. So the question is not whether the government labels something a sensitive place. It's whether they actually treat it as a sensitive place.

 

      And it's similar to what the government did -- to what the Supreme Court did with respect to firearms in Heller, where it was discussing handguns. And the Supreme Court said, "There are many reasons why individuals might prefer handguns." And it gave some reasons. But then the Court said, "Whatever the reason, the dispositive fact is that people do choose them, so they're in common use for lawful purposes. So, therefore, those firearms are protected.

 

      And it's similar, we would submit in this context, to say that there are many reasons why maybe the government doesn't want firearms at a certain location: there are high-value targets; there are contested issues; discussions with high tempers taking place; or maybe it's on an airplane, past TSA, and even someone acting in a legitimate self-defense could harm the airplane if they were to fire a firearm. But, whatever the reason, the question is: Is the government securing that place? And if the government is securing that place, if it's a discreet area where it's securable and is being secured, then we submit that as the legitimate principle.

 

      The next thing the government has said is that "Well, places of public assembly, places where people assemble, we can ban firearms in those locations." But that is wrong historically, at the founding, where there were places of public assembly to the extent this was legislated at all. People were required to bring firearms to those places. They were not forbidden to bring firearms to those places. And then, in addition, Bruen rejected New York's argument that, essentially, the Island of Manhattan was a sensitive place and said, "You can't just ban firearms from any place where people congregate because that would have the effect of eviscerating the right." And that's exactly what New Jersey has done here.

 

      Third, New Jersey says, "We can ban firearms in places where there are vulnerable people." But, again, this is contrary to the founding era, where, in potentially vulnerable circumstances, individuals were required to be armed. They weren't banned from being armed. And this is actually perverse because, if people are vulnerable and then you disarm them, they're even more vulnerable. A law like this, it's only the law-abiding that are going to follow this law. Somebody bent on committing some atrocity is not going to care if the government has put up a sign saying, "No guns allowed," in some locations.

 

      So, if a place is truly vulnerable, the government needs to actually ensure there are no guns in that place if it wants to make it a gun-free zone. It can't just say, "No guns." That's actually making people worse off. And New Jersey has adverted to schools in support of this principle. But if we look at the founding era, schools, to the extent that they banned firearms, they banned students over which they had in loco parentis authority, from having firearms. So that is the justification. And we know Bruen could not have been adopting any broader principle because, later in the opinion, in explaining why the Second Amendment continued to be important in the Reconstruction era, it cited an example of teachers at Freedmen's Bureau Schools arming themselves to protect the schools from racist terrorism essentially. And so, that just puts into sharp focus that when you have vulnerable people, and the government is not committed to protecting those people, the right is at its zenith, and it should not be restricted.

 

      Finally, with respect to the no-carry default, New Jersey points to some founding era hunting regulations that some of them, in a few—three or four—swept a little more broadly than just saying, "No hunting on someone else's land." But saying, "No trespassing on someone else's land with a gun." And it's in the purpose of a hunting statute, so it's clear that's the motivation. So that's just a completely different -- Bruen says we look at the how and why. That's just a completely different motivation in this case. These all dealt with people. Every indication was they don't have any right to be on the land at all. So it's not like a business open to the public. It's disanalogous in that way.

 

      But then, also in game laws, a particularly bad law -- a hunting law's a particularly bad law to use to restrict the right to self-defense because it was well-known that England had abused game laws to infringe the right to keep and bear arms of English subjects. So we should not use a law like that as an analog. And, similarly, there are a handful—three laws—post-Civil War that were somewhat similar. But two of them were enacted by Texas and Louisiana before they were even readmitted to the Union after the Civil War. So I doubt we would look to those sorts of legislatures to say, "What should our voting rights look like?" And so, we similarly shouldn't look at those types of legislatures to say, "What should our Second Amendment rights look like?"

 

      So that's a basic overview of what the issues are in the case and the arguments that have been made and what our take on those arguments. And I'd be happy to answer any questions anyone has.

 

Sam Fendler:  Excellent. Well, Pete, thank you so much for kicking us off with that overview.

 

      We will now turn to audience Q&A, so, please, if -- again, if you have a question, enter it into the Q&A function at the bottom of your Zoom window, and we'll have plenty of time to get to them.

 

      Pete, I want to ask you a question and begin at the beginning.

 

Peter Patterson:  Yeah.

 

Sam Fendler:  The New Jersey laws on concealed carry in place before Bruen required this justifiable need. And, in New Jersey, that justifiable need requirement was almost exactly the same as the justifiable need requirement in New York, if I have that correctly. And so, I'm wondering if you could just say a little bit more about what Bruen had to say about that requirement specifically.

 

Peter Patterson:  Yeah. Absolutely. And things were actually a little worse in New Jersey because, in New York, the law was administered on a county-by-county basis. And my understanding is there was some counties that were a little easier to get a license than in other counties. But in New Jersey, it was extremely strict. It was justifiable need. My understanding is that you had to show specific threats to yourself, or maybe you handle a large amount of cash or something like that; very hard to get a license.

 

      And so, what Bruen said is that "Well, if the typical people have a right to carry a firearm for self-defense, then this is unconstitutional because it makes -- by definition, it says the typical person cannot carry a firearm for self-defense." And then so, textually, that was highly suspect. And then the Court went and looked through history from the 1300s in England up through the end of the 19th century and said, "No. The tradition in this country has been that people have a general right to carry firearms in public, subject to some exceptional circumstances in which people can't carry. And so, therefore, you cannot make them show -- have to show some heightened need in order to carry a firearm in public."

 

      There were a few outlier states—mainly Texas post-Civil War—that had a similar requirement, but the Court said, "This is essentially too little, too late. This is not widespread. This Texas law is an outlier." And, interestingly, in the litigation now, a lot of the laws that New Jersey and other similar states are citing are from the same southern states, post-Civil War, and some western territories that the Supreme Court explicitly said aren't too probative in the Bruen litigation.

 

Sam Fendler:  So Bruen is decided. And, almost immediately after, I think, the people in charge in New Jersey, particularly AG Matt Platkin, recognizes that the laws on the books in New Jersey are very similar, if not nearly identical, to the ones in New York, so they start working and changing the laws. So the New Jersey Congress starts working on laws. So I read this law, and it mentions Bruen specifically in the first or second line. And it was a massive piece of legislation.

 

      So my question is: At the district court level, the initial -- which I think was first a TRO --

 

Peter Patterson:  Right.

 

Sam Fendler:  -- seeking for a TRO. The plaintiffs were seeking a restraining order on specific elements of the law, not the whole law; is that correct?

 

Peter Patterson:  That's correct. Yes. We have challenged specific locations. We've not said, "The law is just -- every provision of it has to be enjoined."

 

Sam Fendler:  And there are a whole—what—25 --

 

Peter Patterson:  Right.

 

Sam Fendler:  -- pretty large buckets. Are there specific places in that list of 25 line items that you challenged?

 

Peter Patterson:  Yes. And what we tried to do is pick out the most egregious ones and the ones that would have the biggest impact on people's day-to-day lives to make it basically impossible to carry.

 

      And so, I think the two biggest ones are—like I said—this no-carry default that says you can't go into, basically, any business unless they've affirmatively said you can. And then the no firearms in vehicles. So, if you have a firearm in your car, it has to be locked up and stowed away and can't be operable, immediately operable in that way, so that really cuts out -- makes it almost impossible for people to carry on a day-to-day basis.

 

      Again, the academics had seen errors, I believe, in some others that have pushed this no-carry default. They explicitly make the point, is the likely result of this is to make it very difficult for people to carry. And it might even reduce the demand for guns because people are going to say, "Why even get them if we can't carry them?"

 

      So those are two of the locations. We also challenged—let me see—so there's one: no carry in parks, beaches, any sort of wildlife area like that. With the parks, it's not every park in the state. It's if the park itself has a policy against carry. So it, potentially, could be every park in the state. It just depends what the park does. Then, also, any library or museum; any place where alcohol is served, so that's going to be, basically, most restaurants; and you think like a hotel lobby, any place that serves alcohol, people can't carry firearms; any entertainment facility whatsoever in the state; any healthcare facility whatsoever in the state. So, with those, you can see that it's pretty much every public place except for sidewalks.

 

      The Siegel plaintiffs, which was the other group that was aligned with us, they also challenged some other locations, such as zoos and casinos, so there are a few additional ones on that. But we tried to pick out the ones that seemed to be the most problematic for actually allowing people to exercise their rights.

 

Sam Fendler:  And, to your point, Pete, when you read those 25 lines and you put them together, especially considering the moving vehicle standard --

 

Peter Patterson:  Yeah.

 

Sam Fendler:  -- in my mind, I kind of imagined a map, and it seemed as if the entire state of New Jersey would have been de facto gun-free. Is that in -- is that somewhat fair to say?

 

Peter Patterson:  Yeah. Yes. And that was actually -- if you listen to the argument, the judges were asking the other side about this. And I think they basically confirmed it. They said, "Yeah. Basically, a public sidewalk and a park, if they have not designated no guns." I don't know that there was any other specific -- or, I guess, a business if it specifically allowed firearms. But, other than that, there's pretty much nowhere else.

 

      And this is consistent with what we saw in New York, where I believe it was a public official. I believe it was the governor who, after New York had enacted a similar law, someone asked, "Where can people carry?" And the answer was maybe some sidewalks. So that's basically what is left after these statutes.

 

Sam Fendler:  And it's even more poignant. You mentioned this in your opening remarks, but your plaintiffs—right—were actually concealed-carry permit holders under the justifiable need standard.

 

Peter Patterson:  Right.

 

Sam Fendler:  So that makes them part of what is likely significantly less than one percent of the New Jersey population to begin with. I'm wondering if you could put into words or maybe share their opinion on what their ability to carry was like before and after this law that came right after Bruen.

 

Peter Patterson:  Yeah. And I can give a couple examples from our plaintiffs. So one of our plaintiffs is a pastor, and so he visits people, particularly often in hospitals and such, and sometimes he has to park in a parking garage. It might be late at night. He has to walk in there, so he would carry in those sorts of circumstances. And he cannot do that now.

 

      Another one of our plaintiffs was a victim of a mistaken identity abduction and taken from New York across state lines outside of New York in a violent crime. And so, after that, he would carry firearms with him, basically, everywhere it was lawful for him to do so. And now he can't. He basically can't.

 

      So those are just two of the examples of plaintiffs that we have. And those are maybe -- I don't know if typical situations, but situations in which people might feel a need to carry. And then, under these laws, it's basically not -- again, unless you're kind of walking around the block, there's nowhere you can do it.

 

Sam Fendler:  Peter, one last question on the sensitive place topic. Of course, Bruen lays out the standard that there needs to be an analogous historical precedent. It seems as though a lot of these sensitive places, if not the vast majority, because I'm not sure that a zoo or a bar -- well, I suppose, bar. But there are places in history where it seems almost impossible to get the analogy correct. And so, I'm wondering if you could speak -- and I know that you did speak to it, but if you could speak a little bit more about what the State of New Jersey is arguing, how they are saying these places are sensitive, what their rationale is.

 

Peter Patterson:  Yeah. So for most -- the thing that they point to the most is, after the Fourteenth Amendment, there are a handful of states in the South—I believe it was Texas, Tennessee, Georgia, Missouri, and then territories of New Mexico and Oklahoma -- or yeah. I believe New Mexico and Oklahoma—that had broad sensitive place laws that basically said, "any place of public assembly." They specifically mentioned literary gatherings, I think courthouses, and just any type of place where -- they had broad catchall language. And so, they point to those statutes and say, "We should analogize to those."

 

      But those are all post-Fourteenth Amendment. So it's -- and Bruen was very clear that, if you have post-enactment history, to the extent it conflicts with earlier history, that just is not a valid analog. And so, all this -- whether you pick 1791 or 1868, this all conflicts with what has gone before, and so is not valid. And even on its face, it's a very small number of handful of states, plus western territories and areas, where the Supreme Court in Bruen expressly said, "These areas seem like they weren't operating consistent with the broader tradition." So a lot of that falls apart.

 

      They point to schools, which I've already discussed a little bit about what the history was in schools.

 

      They also -- you know, for parks, it's interesting. They say, "Well, public parks didn't really exist until the late 19th century." But if you look at the history, there was a parks movement that arose in the late 19th century. But this was not because there weren't places of public gathering and recreation before. The Supreme Court has said in the First Amendment context, "From time immemorial, there have been those sorts of places." But this was a new kind of park, which, if you look at it, it was kind of trying to create an aristocratic environment in the cities, specifically to get away from those other types of areas. And they had restrictions like, not only no firearms in these parks, but no indecent language could be used in these parks. So it's very clear that there was no conception that there was some effort to comply with the Constitution. And, if anything, these parks are an anomaly from what had happened historically.

 

      So those are a few examples of what they give. I think these post-Civil War statutes are the main thing that they point to.

 

Sam Fendler:  So we're on to the district court proceedings now. After so, the opinion comes out in the preliminary injunction, a very long opinion, 230-plus pages. In some pieces, it seems to give reference to the State of New Jersey making social science arguments. Was that part of their argument, and if so, can you speak to that?

 

Peter Patterson:  Yeah. They tried to fit that into the Bruen analysis by talking about the potential dangers of having firearms in these specific places as to why they are sensitive. And then also, with respect to a preliminary injunction in particular—and this is something we see in a lot of litigation—is when the State starts talking about the public interest.

 

      And some -- I have a hard time keeping all the cases straight. So I don't know if this is in this case specifically. But, at least in some of the cases, we've seen government litigants actually citing the old post-Heller two-step intermediate scrutiny decisions as support for denying a preliminary injunction on the grounds that this would be against the public interest by endangering the public safety. So they've tried to import interest balancing back in in that way. And again, we think that's plainly improper. Bruen said in footnote seven, I believe, "No sneaking in interest balancing back in through the analogical reasoning."

 

      And then, with respect to the PI factors, it all, essentially, in these sorts of cases, turns on likelihood of success because if there's no likelihood of success, then yes, the public interest is that you enforce the duly enacted law of the State. But if there is a likelihood of success and the statute likely is unconstitutional, well, then the public interest is then in enforcing the Constitution.

 

      So it would be going against Bruen to say, "Okay. This is likely unconstitutional, and yet, we've done some interest balancing and said it would be against the public interest to actually enjoin the statute."

 

Sam Fendler:  I want to jump ahead a bit, Pete. And we have a question from our audience here that is considering the Rahimi case.

 

      So we just had our national lawyers' convention last weekend, and we had a great presentation from a partner at -- your fellow partner at Cooper & Kirk, Mr. David Thompson. And he was talking quite a bit about how -- well, I suppose not just him. People have been talking about how Mr. Rahimi is not the ideal face for gun rights in America. And there are a set of facts that the Supreme Court is going to consider and use to probably—it seems likely—put a finer point on the opinion in Bruen.

 

      If you have any thoughts on the Rahimi case—any general thoughts—I'd be happy to hear that. But in, I think, more particular, do you think that the Rahimi decision will affect this current litigation that you have going on in Koons v. Platkin?

 

Peter Patterson:  Yeah. I don't think the Rahimi litigation is going to directly affect it. I listened to the argument in Rahimi, and it's always hazardous to guess what the outcome's going to be after argument. But if I had to bet, I think it would be a win for the government. And I think it would be by a fair majority of the Court. But I think it's going to be fairly narrow. There was a series of questions that Justice Gorsuch asked when he said, "Now we don't have -- there's not a due process issue. So we don't have to decide that, correct?"

 

      Solicitors all said, "Correct."

 

      "We don't have to decide if there could be some as-applied issue, correct?"

 

      So what I foresee is a narrow opinion saying that "Well, at least on its face, this statute requires" -- or "This statute allows to disarm someone who has been found, after judicial proceeding, to be a danger to another person. And we're going to say on its face that is constitutional."

 

      And a couple justices mentioned the affray laws—the same laws that I mentioned with respect to the restrictions on carry—saying you couldn't carry to terrify as potentially supporting this restriction. But I think what the Court will say is, "But what we're not deciding is if, well, if someone has preserved a due process challenge. We're not deciding if someone's restraining order only references the part of the statute that says people are disarmed even if there's no finding of danger, so only if it prohibits unlawful conduct against another person. There could be a situation where, let's say, the person lives a thousand miles away. We're not going to decide that."

 

      And another distinction that the Solicitor General made during argument is between "law-abiding" and "responsible." And the Solicitor General said, "This case concerns "responsible," and we're not talking about the law-abiding part of it." And the Solicitor General said, "With respect to "responsible," we're limiting our arguments to danger. That that's essentially equivalent to terms. And we have a somewhat broader conception of what we can do to people who have been criminally convicted."

 

      And a case range was specifically mentioned from the Third Circuit finding that a person who had been convicted of not putting their lawn mowing income on a food stamp application 30 years ago, but was nevertheless disarmed under federal law, that that was unconstitutional. And so, in that case—it's our case—it's currently pending on cert before the Supreme Court. It's going to conference on Friday. So I think there is a -- there's a fair chance that they grant on that. We will see. But that would, I think, balance out the consideration. On the one hand, you've got, again, really bad facts in this case. And range, you've got really good facts where the government has admitted that the plaintiff in that case has never endangered anyone or threatened anyone with physical harm. So that would allow the Court to consider both that situation and the law-abiding. So I think it will be interesting to watch that.

 

      A couple of things the Solicitor General said I found interesting; one thing that was said was that you don't have to go back in every case and do the history once the principles are established. And I thought that was a very good -- and I agree with that to a certain extent. So, for example, with respect to sensitive places, what we would say is once you've established that this comprehensive government security is the principle, you don't then have to go back to every case to look at the history. What you do is apply that principle today to say, "Is the government comprehensively securing this place?" That is going to be the test.

 

      Similarly, with respect to firearms—so-called assault weapons—are a big issue that is currently bouncing around the lower courts. Well, the principle that was established in Heller is that firearms that are in common use cannot be banned. So what we've argued in all these assault weapons cases is that you don't have to go back and look at the historical laws. The Supreme Court has already established the principle. And then, so once you determine that these firearms are in common use, that's the end of the case. These laws are unconstitutional.

 

      So I found that very interesting in maybe one way in which, if the Supreme Court enunciates, that could be applicable to other cases. And it's similar in the First Amendment cases. We now have the categories: obscenity, true threats, false statements of fact in certain circumstances. And then, so you apply those principles in the cases. You don't have to go back and do the whole historical analysis in every case. We're having to do that now because we're at the beginning of this litigation, but, once those principles are established, then it's going to be more application of those principles.

 

Sam Fendler:  Pete, we have another member of our audience who is looking for some more insight on your recent argument in the Third Circuit. You spoke to it briefly, but could you say anything more about the argument itself and maybe, in particular, the conduct of the judges, the questions that they were asking. It's a fraught business, but maybe their demeanor, how you felt the courtroom, and --

 

Peter Patterson:  Yep.

 

Sam Fendler:  -- how you felt yourself when you left the courtroom.

 

Peter Patterson:  Yeah. Well, what I will say is that I was very impressed by the panel. I'm not just saying that because it's a public forum. They were obviously very well prepared. They were taking this case very seriously. Like I said, there was an hour scheduled for oral argument. They kept us almost three hours. And they were asking very hard questions—very probing questions—of both sides. So I left that argument thinking, "These judges, from the questions, my indication is they are trying to apply the law fairly. And they're getting to what the important issues are, and they are going to apply that to the case."

 

      Now, I may ultimately disagree with the way they come out on some of these issues, but I left argument not thinking at all that this is some foreordained conclusion on these issues.

 

Sam Fendler:  Another question from our audience. He says, "The first wave of post-Bruen litigation is focusing heavily, it seems—in his opinion—on sensitive places. But some states have enacted laws after Bruen that have also increased the requirements to obtain concealed carry permits, such as training, length by which permits are valid, perhaps the cost involved, and other licensing fees. Do you have any sense of how the Supreme Court might approach these issues?

 

Peter Patterson:  Yeah. That's a good question. And these, actually, in the companion case, in the Third Circuit, the Siegel plaintiff said raised a few of the licensing restrictions. I think it was that you need four referrals. You need to have insurance. And then the licensing fee, part of it, went, not to defraying the expense of the license, but to some victim compensation fund.

 

      So I think these should be approached in the same way that general Second Amendment questions are approached. So, at the first issue, at the plain text level, do these infringe the right? And what both Johnson and Webster defined "infringed" as "to hinder or to destroy." So do these restrictions actually infringe people's ability to keep and bear arms?

 

      And the way -- the way they're designed—let's say you assume that the people who are screened out are validly screened out. That's a separate question that's kind of the Rahimi/Range question: Who can you screen out? But if you assume that people that you can screen out are properly screened out, then once people have the license, their rights aren't really being infringed because, theoretically, only the people—the only people who can't get licenses are the people who would be -- have forfeited the right in some manner.

 

      But then you have the question, "Okay. But what about the things leading up to getting a license?" And I think that's where it's going to be very challenging. With respect to the fees, what has developed in the First Amendment jurisprudence is that, to the extent a permit is allowed, the government can charge what the charge is to defray the expenses of that permit but no more. So that's one potential answer.

 

      Another potential answer would be, "No. There's no historical analog to requiring people to pay anything to exercise their right to carry firearms. So, if a state wants to have a licensing regime, it can pay for that out of its general revenue. But it can't charge the license applicants specifically." So that's one way to think about that.

 

      The training is very interesting. We do have a lot of examples at the founding of the government requiring training, and that was in connection with militia practice. So it will be interesting to see how the Supreme Court handles the training. I suspect it will be looking for outliers, places that require much more training than other places to see, "Okay. Is something abusive going on?" But, again, that's largely undefined.

 

      And then, the final thing where I think is very -- where the disconnect happens—from what I said at the beginning—where people are not having their rights infringed—is the weight between the application for the license and the actual issuance of the license.

 

      And this is just my personal opinion, something I've been thinking about, but one argument could be, "Well, a government can require a license, but it should be that once someone submits an application, they get the equivalent of a temp. And they can carry because there's no analog of requiring somebody to wait to exercise their right for the government to process some application. And so, then, that would really hold the government's feet to the fire and give them some incentive to say, "Okay. We need to process these applications so we can determine whether people validly can have them." But, again, that's going to have to be another area that's worked out through more litigation.

 

      But that is going to be, I agree. I think these sensitive places are the first wave to get addressed. And then, hopefully, once we get answers there, then these other second-order questions will have to be litigated.

 

Sam Fendler:  Pete, another question from our audience. I think it falls outside of the Koons case, but, as you mentioned at the beginning, Cooper & Kirk has a strong Second Amendment litigation practice. This audience member asks, "In your opinion, why has the Supreme Court been timid in taking up another possession-ban case such as an assault weapon ban or a magazine ban after Bruen?"

 

      And I'm not -- I don't know what the litigation landscape is if these cases are floating around at the lower courts, but any insight you have would be appreciated.

 

Peter Patterson:  Yeah. And I think I'll expand on the scope of the question a little bit because there really hasn't been any of those cases post-Bruen. There's been some kind of emergency applications, which the Supreme Court denied. But those are rarely granted in any event.

 

      But with respect to this whole weapons and magazine, specifically, there's just no circuit split. So I think that's probably the biggest obstacle to the Court taking something up. There were some -- we filed a petition in the case Friedman v. Highland Park, post-Heller, coming from the Seventh Circuit. And the Supreme Court denied over dissent of Justice Thomas. And so, we'll see. I don't know if it's going to take a circuit split. Maybe not. Maybe the Supreme Court now --

 

      What I'm hoping that will happen is that Second Amendment litigation will normalize. And with the First -- with respect to the First Amendment, we typically don't wait a decade, a decade and a half, between First Amendment cases. There might be two to three every term. And I'm hoping that the Second Amendment starts to get into a similar this is a normal constitutional right. It's not some odd right. It's not something we're embarrassed about. And the Court will take up some more of these cases because, in addition to assault weapons and magazines, we've got other issues that are percolating in the lower courts: 18- to 20-year-olds and what their rights are, how they can be restricted, the nonviolent offenders like we have in the Range case, all these sensitive places restrictions that have been enacted. So I think there's going to be opportunity to take more up. And I hope that the Court does.

 

Sam Fendler:  Well, Pete, I want to ask you some forward-facing questions now. And, again, I'm going to ask you to get into a fraught business. But what do you think may happen going forward? The Third Circuit could rule however it rules, but I'm interested in what you think will or could happen in the next few months in this case.

 

Peter Patterson:  Yeah. I assume we'll see an opinion from the Third Circuit in—I don't know—the next three to six months. That's just a guess. It could be sooner than that or later than that. I argued an assault weapons case in the Fourth Circuit in December, and that's still pending -- December of last year. And there were similar cases argued in New York in the Second Circuit in February or March, and those aren't decided yet, so these can take a while sometimes. But I would guess about three to six months.

 

      And then Judge Porter, at the argument, made a very interesting suggestion. He asked the State, "Well, why do we have to -- why can't we just decide these cases on the merits?" because the attorneys for the legislators, who had intervened, was arguing the PI factors. And the judge said, "Why can't we just decide these cases on the merits? They seem like purely legal issues. Why do we even have to do a PI?" So that was an intriguing suggestion.

 

      The Court could even just say, "Okay. We're issuing a final determination," I think is within the realm of possibility. Otherwise, they could just decide the PI granted -- affirm it to reverse it to a certain extent. And then, I suspect, we'll see. A decision will have to be made, on either side, whether to seek cert at that time or to go back and get a final determination. The Supreme Court typically likes to have it be a final decision before it grants review but not always. And so, that may, in part, come down to how this looks.

 

      And, as I mentioned, there is other -- there's a similar case pending in the Second Circuit. There are similar cases pending in the Fourth Circuit. I believe there's a case out of Hawaii in the Ninth Circuit. So we could have circuit splits on some of these issues, which would increase the likelihood of the Supreme Court granting review. So we'll see.

 

      I think eventually these issues will get to the Supreme Court. It could be as soon as next term, depending on how these cases come out. Or it could be a couple terms. So sorry to not be more definitive, but there's a wide array of options.

 

Sam Fendler:  Not a problem at all, Pete.

 

      So we've covered a ton of ground. We discussed the laws on the books in New Jersey before Bruen. We discussed Bruen itself. We discussed this law in question, which is now called Chapter 131 in New Jersey. We discussed the sensitive places, the moving vehicle restriction, district court proceedings, Third Circuit oral argument. We even got to Rahimi. So we've discussed a whole lot.

 

      We have a few minutes left. I'm wondering if you have any final thoughts that you'd like to leave the audience with.

 

Peter Patterson:  The final thoughts were, I think Bruen has been subject to a lot of criticism in terms of administrability and is this is a sensible way to litigate cases. Should we go back to a scrutiny analysis? And I think the answer really is no. As we've laid this out in the arguments—and I've explained it today—A, it has the virtue of, "Okay. We're trying to apply the Constitution as originally understood."

 

      But then, B, yeah, it may seem a little unsettled now. We're right in the aftermath of this decision in Bruen, which clarified a historical test that should have been clear from Heller from the get-go, but that basically no court after Heller adopted.

 

      So in the last year or so, we're relitigating basically everything that had been litigated between 2008 and 2022. And so, you're going to get some divergent results, maybe some confusion about how to apply certain things. But I think what you'll see as we go on is that these things normalize.

 

      The courts will start to identify the principles that can be derived from history in these different areas: what types of firearms are people entitled to possess? Again, we would say the Supreme Court in Heller has already identified that principal firearms in common use that are not dangerous and unusual—flipside of the coin—are protected. Similarly, with respect to who may or may not be prohibited from possessing a firearm, who could be -- forfeit the right? I suspect it will be some danger principle that the Supreme Court eventually identifies. But we'll see what happens there. And then, similarly, with respect to the sensitive places, like, what's the principle? And, as we've said, we think the principle is comprehensive government security.

 

      But once all these principles are established, then it's going to be applying those principles in every case. And you're going to get a result that is both truer to the original meaning and understanding and also less subject to manipulation than the old interest balancing test because what would happen almost invariably in those cases is the Court would apply intermediate scrutiny. And then it would say, "Okay. We're going to defer to the government's judgment that this law is going to advance public safety because, oh, there's some social scientists who say it will. There's some who say it won't. We can't adjudicate that difference, so we're ruling against the right."

 

      So I think we're going to see a truer and more robust protection of the right in a way that is more administrable and less subject to manipulation going forward. That's my hope. We will see. But it's been -- had a privilege to litigate a lot of these cases and hope to continue to do so.

 

Sam Fendler:  No question. And you guys are certainly on the ground, doing the work to set up exactly those principles that you're talking about.

 

      So, Pete, this has been great. On behalf of The Federalist Society, I want to thank you very much for the benefit of your time and your expertise today. This was a wonderful conversation.

 

      To our audience, I want to thank you as well for tuning in. We greatly appreciate your participation. Please check out our website, fedsoc.org. Or you can follow us on all major social media platforms at FedSoc to stay up-to-date with announcements and upcoming webinars.

 

 

      Thank you all once more for tuning in, and we are adjourned.