The District Court continued: See Bruen, 142 S. Ct. at 2133 (“analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.”) In fact, Chapter 131 expressly states that the “sensitive-place prohibitions on dangerous weapons set forth in this act are rooted in history and tradition . . . analogous to historical laws that can be found from the Founding era to Reconstruction, which are also found in modern laws in many states.” 2022 N.J. Laws c. 131 § 1(g).5
That Defendants dedicate a significant portion of their argument discussing the benefits of the firearms regulations and not evidence of historical analogues is quite telling. And although Defendants represent that the “State will offer ample evidence that Chapter 131 is constitutional,” [State’s Br. at 2], they do not adequately explain why—if such evidence was critical to the passage of the legislation that would pass constitutional muster post-Bruen and available to the Legislature as set forth in Section 1(g) of the statute—they have not introduced such evidence. The New Jersey Assembly passed the legislation on November 21, 2022, and the New Jersey Senate passed the bill on December 19, 2022. Both bills were introduced in mid-October. https://njleg.state.nj.us/bill-search/2022/ Thus, the State will not be given significant time moving forward to produce sufficient justification for the new firearm restrictions.
At oral argument the State seemed to clarify that there were not necessarily more historical analogues that this Court might need to consider, but that the historical context and analysis require a deeper inquiry. Certainly, Defendants anticipated challenges to the legislation and should have been better prepared to defend the legislation’s constitutionality.
It seems clear that the State was attempting to use procedure as a weapon as opposed to passing legislation that could withstand a constitutional challenge. If Judge Bumb had not granted the requested relief, this unconstitutional legislation would have been enforced for years and many law-abiding firearms carriers would have been charged with third-degree felonies.
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