Judge Bumb continued: 2. Subpart 15 – Bars, Restaurants, and Where Alcohol is Served bans handguns in “a bar or restaurant where alcohol is served, and any other site or facility where alcohol is sold for consumption on the premises.” 2022 N.J. Laws c. 131 § 7(a). First, the Second Amendment’s plain text covers the conduct in question (carrying a concealed handgun for self-defense in public). As a result, Defendants must be able to rebut the constitutional presumption against this regulation by demonstrating it is consistent with this Nation’s historical tradition of firearm regulation. In short, Defendants have presented no historical support to permit New Jersey to restrict concealed carry in bars and restaurants where alcohol is served. The most they do is cite to an 1867 Kansas statute that prohibited the possession of firearms by intoxicated persons. 1867 Kan. Sess. Laws 25 [Docket No. 20, Ex. 12.] It is a prohibition that gets no quarrel from Plaintiffs, for one, and has no relevance here as the restriction at issue clearly does not address possession of firearms by intoxicated persons. See also Mo. Rev. Stat. 1879 §1274 (declaring it unlawful to possess a firearm when intoxicated) [Docket No. 20, Ex. 10.]
The other analogue Defendants erroneously rely upon is an 1859 Connecticut law. [Id., Ex. 11.] The law is an amendment to “[a]n Act for forming conducting the Military Force.’” [Id.] Thus, on its face it is a law that addresses the conduct of the military, such that the owner of any “booth, shed, tent” or other structure temporarily erected “within one mile of any military parade-ground, muster-field or encampment, [and] used and occupied for the sale of spirituous or intoxicating liquor, or for the purpose of gambling” would be notified by law enforcement to “vacate and close the same immediately.” [Id. § 5.] This statute applies to the military and is not historical evidence probative of the restriction of one’s right to carry a firearm anywhere where alcohol is served. Accordingly, at this stage, Plaintiffs have met their burden of showing that they are likely to succeed on their constitutional challenge as to this provision.
This is another key portion of the opinion for those of us seeking guidance with regard to the ever-changing laws addressing permits to carry firearms in New Jersey. As of the date of this opinion, bars and restaurants that serve alcohol are not considered “sensitive places” where firearms cannot be carried.
