The District Court continued: Just as in the hunting context, the burden under the criminal trespass statute is not on the unsuspecting actor, but on the landowner to indicate to others not to trespass. The foregoing notwithstanding, Defendants point to others states that have required a property owner’s consent to make their presumption point. Specifically, the State cites the New Jersey Legislature’s finding that “[m]any states require a property owner’s permission before another may enter private dwellings and private lands with a firearm or other weapons.” [State’s Br. at 6 (citing Ch. 131 § 1(h)) (emphasis added).] The State lists several purportedly analogous restrictions. [Id. at 6 n.5 (citing Ak. Stat. Ann. § 11.61.220; D.C. Code § 7-2509.07; Ga. Code Ann. § 16-11-127(b)(4); La. Rev. Stat. § 40:1379.3(O); Ohio Rev. Code Ann. § 2923.126(B)(6); S.C. Code Ann. § 22-31-225; Tex. Parks & Wildlife Code Ann. § 62.012).] The problem with the Defendants’ (as well as the Legislature’s) reliance on these statutes, however, is that they are modern day statutes and the Defendants offer no historical precursors or analogy. As the Bruen Court made clear, and this Court observed above, contemporary statutes that conflict with our nation’s history and tradition have no place in a Second Amendment analysis. See supra at 39 n. 18.
Nonetheless, putting the lack of any historical analysis aside, with the exception of Texas’ law and the District of Columbia’s law, every other statute stands for a much narrower proposition, that a firearm owner must obtain prior consent to enter into or within a private residence or dwelling, and the Ohio and Georgia laws prohibit the carrying of firearms into places of worship. From these few modern-day statutes Defendants cannot leap to an unsupported general conclusion that there was no historical presumption that one had a right to carry firearms onto private property. Not to mention that this all begs the question: was not the longstanding presumption to carry under the Second Amendment the driving force that ultimately led to the enactment of these statutes? It seems so. Defendants’ attempt to argue otherwise is unpersuasive. For the above reasons, the Court agrees with Plaintiffs, at least at this stage, that this provision unconstitutionally turns the presumption of the right to keep and bear arms under the Second Amendment on its head.
The statutes cited by the Defendants have almost certainly not had their constitutionality challenged. Once they do, they will likely be declared unconstitutional and will support end of supporting the Plaintiff’s position.
