We are about to get started in the Koons v. Platkin oral argument. Will be live tweeted here.
First they will here my emergency motion to delay this three hours so I can go back to sleep.
hear*
Koons v. Platkin up first.
State of NJ up first.
NJ says it identified modern locations as sensitive.
But what it means is it identified basically every place imaginable as sensitive. Including even private property held open to the public (Vampire Rule).
Interesting that NJ just conceded that when historical legislatures faced the same problem and didn't respond with bans, that means such a ban may be unconstitutional.
Antigun states have generally resisted that idea very fiercely.
Their examples of sensitive places are always "daycares and playgrounds", because that sounds scary, but they never list the far more absurd places they have banned.
(Not that banning carry at such places is OK - parents have the right to be able to defend their kids at playgrounds)
First question is why reconstruction should control over founding era, as NJ argues. Didn't Bruen say founding era control?
NJ says don't overread what SCOTUS said (lol).
Judge reads from Bruen where it says that late 19th century evidence is irrelevant when it contradicts founding era evidence.
NJ says that was just to explain why a Texas outlier law was unpersuasive (but NJ does rely on outlier local laws, let alone state laws!)
Another judge asks if NJ is overreading Heller's dicta on sensitive places, just like people apply the label "assault weapon" to everything (CHEESEMAN HINT!). Need a definition.
NJ responds that the term was repeated in other cases too. But that doesn't really answer the question.
Judge asks what places can't be regulated as sensitive places?
NJ says bakeries and individual shops. But they have banned those by default under the vampire rule!!!
Judge asks again where else can people carry besides bakeries?
NJ lists more private businesses, which again, are banned by default under this law unless the owner gives consent.
Q: What is the historical tradition of banning carry in schools?
NJ: School rules banned carry (not really true, just banned STUDENTS from being armed, not adults).
Judge says Bruen and Rahimi are concerned about state action, not private rules.
Question about historical silence.
NJ says if there is an acute historical problem and nothing is done, that's relevant evidence that a solution is unconstitutional.
NJ says they don't have that problem here (but they do have that problem here - lots of places that exist today also existed back then without banning carry)
Q: assume that only 1791 matters. What can you use under those circumstances to justify your laws? Judge suggests affrays and other laws about terrorizing the populace. (Dumb comparison; people legally carrying aren't terrorizing anyone)
NJ responds that if you make that assumption, then you can't ban carry basically anywhere (trying to scare the judges out of a 1791-only focus)
But then says yes, affrays are enough to ban carry at all the places NJ wants, because some laws included broad restrictions on carrying at "fair or markets."
Q: what is the new social problem that was identified to justify expansive analogues?
NJ says people bringing firearms to daily life. They solved that problem by banning carry at specific places, not everywhere. (But NJ has banned carry basically everywhere)
Judge asks why is that a new social problem, doesn't this go all the way back to the Statute of Northampton?
NJ says it became more common in the 1850s. Nobody really exercised the right to carry before 1850 due to social mores (lol).
Erin Murphy up now for first set of plaintiffs.
She argues that NJ defies Bruen, requiring 4 character endorsements, insurance mandates, application fee, and broad sensitive place restrictions.
Murphy notes that of the 25 places NJ has banned, plaintiffs are only challenging about half, and some of those only as applied in certain circumstances. I.e. plaintiffs are reasonable, unlike NJ.
Don't challenge places where carry is banned because it serves a core governing function, like polling places and court houses.
But places they don't challenge tend to be places with restricted access and heightened security.
Murphy points out that sensitive places bans were very rare even in the 1860s. What you saw instead were concealed carry restrictions, with open carry allowed.
Q: what if youth sporting events take place at schools, doesn't that defeat facial challenge.
Murphy says they understand that section to apply to events not at schools, since schools are already banned.
Murphy says that while Plaintiffs don't challenge school restrictions in this case, she doesn't concede all such restrictions are constitutional.
Judge asks why it's unreasonable for legislatures to ban guns in lots of places, when guns today can be used to kill lots of people?
Murphy says by that standard, there is no limiting principle. You can ban carry everywhere even slightly crowded. State even said you can only carry on the streets.
(Should have mentioned that NJ vets everyone who carries, as they require a permit; and people with such permits almost never commit crimes)
Judge says every circuit to uphold such laws has used similar attribute tests to uphold bans on carry at discrete locations. (Of course, only antigun circuits until now have heard such cases)
Murphy says it's not "discrete", carry is banned everywhere.
Judge Mascott asks can places like schools, but aren't schools (e.g. youth sports facilities) ban carry? (I am simplifying that one as I missed part of it)
Murphy answers depends on how SCOTUS justifies school restrictions, which is as of yet not explained. For example, if it is based on in loco parentis doctrine, then it's only places where children are entrusted to the government. Also K-12 schools usually restrict access to the public.
A single security guard is not enough, but if govt puts heightened security at a place, it does indicate government may actually believe it is sensitive.
Lots of facial challenge confusion. Judges should read Doe v. Reed from SCOTUS:
"The label is not what matters. The important point is that plaintiffs’ claim and the relief that would follow...reach beyond the particular circumstances of these plaintiffs. They must therefore satisfy our standards for a facial challenge to the extent of that reach."
Koons plaintiffs up now. Pete Patterson.
Says they take a different approach than other plaintiffs, focus is on security, which is the guiding principle for when carry can be banned at a place.
All historical places that banned carry in the founding era generally had security.
Q: but what about schools, often have no security.
Patterson says schools not open to the public.
Patterson says if a criminal can freely enter armed because no security to stop them, than people have right to carry to defend themselves.
Q: what about polling places? Most today don't have security.
Patterson says founding era polling places did, because there was no secret ballot. With adoption of secret ballot, intimidation no longer a concern and security faded.
Patterson points out that in truly vulnerable places that weren't secured, carry was REQUIRED. Key founding era example was churches.
Q: Four circuits went the other way, but the district courts in Hawaii, CA, and NJ went your way. Where did circuits go wrong?
Patterson says circuits adopted too-loose historical analysis. Like "Crowded place."
(Actual answer: what went wrong is that antigun appellate judges had the result they wanted already decided and worked backwards from that)
We are about to get started in the Koons v. Platkin oral argument. Will be live tweeted here.First they will here my emergency motion to delay this three hours so I can go back to sleep.hear*Koons v. Platkin up first.
State of NJ up first.NJ says it identified modern locations as sensitive.
But what it means is it identified basically every place imaginable as sensitive. Including even private property held open to the public (Vampire Rule).Interesting that NJ just conceded that when historical legislatures faced the same problem and didn't respond with bans, that means such a ban may be unconstitutional.
Antigun states have generally resisted that idea very fiercely.Their examples of sensitive places are always "daycares and playgrounds", because that sounds scary, but they never list the far more absurd places they have banned.
(Not that banning carry at such places is OK - parents have the right to be able to defend their kids at playgrounds)First question is why reconstruction should control over founding era, as NJ argues. Didn't Bruen say founding era control?
NJ says don't overread what SCOTUS said (lol).
Judge reads from Bruen where it says that late 19th century evidence is irrelevant when it contradicts founding era evidence.
NJ says that was just to explain why a Texas outlier law was unpersuasive (but NJ does rely on outlier local laws, let alone state laws!)Another judge asks if NJ is overreading Heller's dicta on sensitive places, just like people apply the label "assault weapon" to everything (CHEESEMAN HINT!). Need a definition.
NJ responds that the term was repeated in other cases too. But that doesn't really answer the question.Judge asks what places can't be regulated as sensitive places?
NJ says bakeries and individual shops. But they have banned those by default under the vampire rule!!!Judge asks again where else can people carry besides bakeries?
NJ lists more private businesses, which again, are banned by default under this law unless the owner gives consent.Q: What is the historical tradition of banning carry in schools?
NJ: School rules banned carry (not really true, just banned STUDENTS from being armed, not adults).
Judge says Bruen and Rahimi are concerned about state action, not private rules.Question about historical silence.
NJ says if there is an acute historical problem and nothing is done, that's relevant evidence that a solution is unconstitutional.
NJ says they don't have that problem here (but they do have that problem here - lots of places that exist today also existed back then without banning carry)Q: assume that only 1791 matters. What can you use under those circumstances to justify your laws? Judge suggests affrays and other laws about terrorizing the populace. (Dumb comparison; people legally carrying aren't terrorizing anyone)
NJ responds that if you make that assumption, then you can't ban carry basically anywhere (trying to scare the judges out of a 1791-only focus)
But then says yes, affrays are enough to ban carry at all the places NJ wants, because some laws included broad restrictions on carrying at "fair or markets."Q: what is the new social problem that was identified to justify expansive analogues?
NJ says people bringing firearms to daily life. They solved that problem by banning carry at specific places, not everywhere. (But NJ has banned carry basically everywhere)
Judge asks why is that a new social problem, doesn't this go all the way back to the Statute of Northampton?
NJ says it became more common in the 1850s. Nobody really exercised the right to carry before 1850 due to social mores (lol).Erin Murphy up now for first set of plaintiffs.
She argues that NJ defies Bruen, requiring 4 character endorsements, insurance mandates, application fee, and broad sensitive place restrictions.Murphy notes that of the 25 places NJ has banned, plaintiffs are only challenging about half, and some of those only as applied in certain circumstances. I.e. plaintiffs are reasonable, unlike NJ.
Don't challenge places where carry is banned because it serves a core governing function, like polling places and court houses.
But places they don't challenge tend to be places with restricted access and heightened security.Murphy points out that sensitive places bans were very rare even in the 1860s. What you saw instead were concealed carry restrictions, with open carry allowed.Q: what if youth sporting events take place at schools, doesn't that defeat facial challenge.
Murphy says they understand that section to apply to events not at schools, since schools are already banned.Murphy says that while Plaintiffs don't challenge school restrictions in this case, she doesn't concede all such restrictions are constitutional.Judge asks why it's unreasonable for legislatures to ban guns in lots of places, when guns today can be used to kill lots of people?
Murphy says by that standard, there is no limiting principle. You can ban carry everywhere even slightly crowded. State even said you can only carry on the streets.
(Should have mentioned that NJ vets everyone who carries, as they require a permit; and people with such permits almost never commit crimes)Judge says every circuit to uphold such laws has used similar attribute tests to uphold bans on carry at discrete locations. (Of course, only antigun circuits until now have heard such cases)
Murphy says it's not "discrete", carry is banned everywhere.Judge Mascott asks can places like schools, but aren't schools (e.g. youth sports facilities) ban carry? (I am simplifying that one as I missed part of it)
Murphy answers depends on how SCOTUS justifies school restrictions, which is as of yet not explained. For example, if it is based on in loco parentis doctrine, then it's only places where children are entrusted to the government. Also K-12 schools usually restrict access to the public.
A single security guard is not enough, but if govt puts heightened security at a place, it does indicate government may actually believe it is sensitive.Lots of facial challenge confusion. Judges should read Doe v. Reed from SCOTUS:
"The label is not what matters. The important point is that plaintiffs’ claim and the relief that would follow...reach beyond the particular circumstances of these plaintiffs. They must therefore satisfy our standards for a facial challenge to the extent of that reach."Koons plaintiffs up now. Pete Patterson.
Says they take a different approach than other plaintiffs, focus is on security, which is the guiding principle for when carry can be banned at a place.
All historical places that banned carry in the founding era generally had security.Q: but what about schools, often have no security.
Patterson says schools not open to the public.Patterson says if a criminal can freely enter armed because no security to stop them, than people have right to carry to defend themselves.Q: what about polling places? Most today don't have security.
Patterson says founding era polling places did, because there was no secret ballot. With adoption of secret ballot, intimidation no longer a concern and security faded.Patterson points out that in truly vulnerable places that weren't secured, carry was REQUIRED. Key founding era example was churches.Q: Four circuits went the other way, but the district courts in Hawaii, CA, and NJ went your way. Where did circuits go wrong?
Patterson says circuits adopted too-loose historical analysis. Like "Crowded place."
(Actual answer: what went wrong is that antigun appellate judges had the result they wanted already decided and worked backwards from that)
We are about to get started in the Koons v. Platkin oral argument. Will be live tweeted here. ... ... First they will here my emergency motion to delay this three hours so I can go back to sleep. ... hear* ... Koons v. Platkin up first.
State of NJ up first. ... NJ says it identified modern locations as sensitive.
But what it means is it identified basically every place imaginable as sensitive. Including even private property held open to the public (Vampire Rule). ... Interesting that NJ just conceded that when historical legislatures faced the same problem and didn't respond with bans, that means such a ban may be unconstitutional.
Antigun states have generally resisted that idea very fiercely. ... Their examples of sensitive places are always "daycares and playgrounds", because that sounds scary, but they never list the far more absurd places they have banned.
(Not that banning carry at such places is OK - parents have the right to be able to defend their kids at playgrounds) ... First question is why reconstruction should control over founding era, as NJ argues. Didn't Bruen say founding era control?
NJ says don't overread what SCOTUS said (lol).
Judge reads from Bruen where it says that late 19th century evidence is irrelevant when it contradicts founding era evidence.
NJ says that was just to explain why a Texas outlier law was unpersuasive (but NJ does rely on outlier local laws, let alone state laws!) ... Another judge asks if NJ is overreading Heller's dicta on sensitive places, just like people apply the label "assault weapon" to everything (CHEESEMAN HINT!). Need a definition.
NJ responds that the term was repeated in other cases too. But that doesn't really answer the question. ... Judge asks what places can't be regulated as sensitive places?
NJ says bakeries and individual shops. But they have banned those by default under the vampire rule!!! ... Judge asks again where else can people carry besides bakeries?
NJ lists more private businesses, which again, are banned by default under this law unless the owner gives consent. ... Q: What is the historical tradition of banning carry in schools?
NJ: School rules banned carry (not really true, just banned STUDENTS from being armed, not adults).
Judge says Bruen and Rahimi are concerned about state action, not private rules. ... Question about historical silence.
NJ says if there is an acute historical problem and nothing is done, that's relevant evidence that a solution is unconstitutional.
NJ says they don't have that problem here (but they do have that problem here - lots of places that exist today also existed back then without banning carry) ... Q: assume that only 1791 matters. What can you use under those circumstances to justify your laws? Judge suggests affrays and other laws about terrorizing the populace. (Dumb comparison; people legally carrying aren't terrorizing anyone)
NJ responds that if you make that assumption, then you can't ban carry basically anywhere (trying to scare the judges out of a 1791-only focus)
But then says yes, affrays are enough to ban carry at all the places NJ wants, because some laws included broad restrictions on carrying at "fair or markets." ... Q: what is the new social problem that was identified to justify expansive analogues?
NJ says people bringing firearms to daily life. They solved that problem by banning carry at specific places, not everywhere. (But NJ has banned carry basically everywhere)
Judge asks why is that a new social problem, doesn't this go all the way back to the Statute of Northampton?
NJ says it became more common in the 1850s. Nobody really exercised the right to carry before 1850 due to social mores (lol). ... Erin Murphy up now for first set of plaintiffs.
She argues that NJ defies Bruen, requiring 4 character endorsements, insurance mandates, application fee, and broad sensitive place restrictions. ... Murphy notes that of the 25 places NJ has banned, plaintiffs are only challenging about half, and some of those only as applied in certain circumstances. I.e. plaintiffs are reasonable, unlike NJ.
Don't challenge places where carry is banned because it serves a core governing function, like polling places and court houses.
But places they don't challenge tend to be places with restricted access and heightened security. ... Murphy points out that sensitive places bans were very rare even in the 1860s. What you saw instead were concealed carry restrictions, with open carry allowed. ... Q: what if youth sporting events take place at schools, doesn't that defeat facial challenge.
Murphy says they understand that section to apply to events not at schools, since schools are already banned. ... Murphy says that while Plaintiffs don't challenge school restrictions in this case, she doesn't concede all such restrictions are constitutional. ... Judge asks why it's unreasonable for legislatures to ban guns in lots of places, when guns today can be used to kill lots of people?
Murphy says by that standard, there is no limiting principle. You can ban carry everywhere even slightly crowded. State even said you can only carry on the streets.
(Should have mentioned that NJ vets everyone who carries, as they require a permit; and people with such permits almost never commit crimes) ... Judge says every circuit to uphold such laws has used similar attribute tests to uphold bans on carry at discrete locations. (Of course, only antigun circuits until now have heard such cases)
Murphy says it's not "discrete", carry is banned everywhere. ... Judge Mascott asks can places like schools, but aren't schools (e.g. youth sports facilities) ban carry? (I am simplifying that one as I missed part of it)
Murphy answers depends on how SCOTUS justifies school restrictions, which is as of yet not explained. For example, if it is based on in loco parentis doctrine, then it's only places where children are entrusted to the government. Also K-12 schools usually restrict access to the public.
A single security guard is not enough, but if govt puts heightened security at a place, it does indicate government may actually believe it is sensitive. ... Lots of facial challenge confusion. Judges should read Doe v. Reed from SCOTUS:
"The label is not what matters. The important point is that plaintiffs’ claim and the relief that would follow...reach beyond the particular circumstances of these plaintiffs. They must therefore satisfy our standards for a facial challenge to the extent of that reach." ... Koons plaintiffs up now. Pete Patterson.
Says they take a different approach than other plaintiffs, focus is on security, which is the guiding principle for when carry can be banned at a place.
All historical places that banned carry in the founding era generally had security. ... Q: but what about schools, often have no security.
Patterson says schools not open to the public. ... Patterson says if a criminal can freely enter armed because no security to stop them, than people have right to carry to defend themselves. ... Q: what about polling places? Most today don't have security.
Patterson says founding era polling places did, because there was no secret ballot. With adoption of secret ballot, intimidation no longer a concern and security faded. ... Patterson points out that in truly vulnerable places that weren't secured, carry was REQUIRED. Key founding era example was churches. ... Q: Four circuits went the other way, but the district courts in Hawaii, CA, and NJ went your way. Where did circuits go wrong?
Patterson says circuits adopted too-loose historical analysis. Like "Crowded place."
(Actual answer: what went wrong is that antigun appellate judges had the result they wanted already decided and worked backwards from that)
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