The morning of October 25th, 2023 had the wisps of an Indian Summer and the Philadelphia air was neither crisp nor overly warm. The oral arguments for the combined cases of Siegel v. Platkin and Koons v. Platkin were heard for a preliminary injunction in the Third Circuit Court of Appeals.
The cases are two challenges to New Jersey’s so-called “carry-killer” Bruen response law that was enacted last December. The proceedings were held in the James A. Byrne Courthouse at 601 Market Street, just kitty-corner from the Liberty Bell. Independence Hall could be seen from the corner of Market and South 6th Street, at the foot of the Byrne building. A three judge panel heard the plea of injured New Jersey gun owners, as well as the desperate cries the State of New Jersey put forth, imploring the court to buck last year’s historic NYSRPA v. Bruen decision.
Just outside the Market Street entrance to the building, a contingent of mostly blue haired Moms Demand Action members were there holding a press event. The commie mommies held up signs that read “We’re booing Bruen,” and other craftily designed and deceptive signs. This was not a mob of red shirts, but a smattering. A smattering that was indeed enough in the courtroom later on to give them a false show of force.
A member from the camp of the liberty-minded observed that these individuals were beyond the “mom” status, and appeared to be senior citizens without much else to do…perhaps even were paid to be there. One woman handed out a so-called “fact sheet” in the gallery to another observer. I would have loved to have gotten my hands on that propaganda.
On the 19th floor, just outside of the Maris courtroom, a monitor showed the proceedings going on in the courtroom at the time. The great Paul Clement was arguing for another case, and some familiar patriotic faces were standing by the monitor having quiet small talk prior to the Koons/Siegel cases being heard.
I spied a maroon Coalition of New Jersey Firearm Owners shirt in the small crowd milling about, as well as Dan Schmutter, one of the masterful architects of the Siegel case and lead council for the Association of New Jersey Rifle and Pistol Clubs. Schmutter and I exchanged some pleasantries. It was warming to see friendly faces and recognize patriots among those waiting to gain entrance to the court.
Lead plaintiff Ronald Koons himself was present for the arguments, who I met earlier this year in Camden during the district court preliminary injunction hearing. Mark Cheeseman, the lead plaintiff in several Cheeseman cases, notably a carry related case that was denied certiorari from the Supreme Court, a case that took down New Jersey’s electric weapons ban, and now a so-called “assault weapons” case, was also present.
Cheeseman has been a beacon of citizen involvement for nearly a decade, and when he stood in the court gallery, his profile emanated the essence of the Rockwell painting “Freedom of Speech.” Some people read about history. Some get to witness it. And others are part of it. Cheeseman exemplifies being an active part of history and has shaped policy in meaningful ways.
Attorney General Matthew Platikin skirted about, and stood on the other side of the hallway adjacent to the right hand doorway into the courtroom. I do believe in walking the walk, if I’m going to talk the talk, and when we were all getting seated in the gallery, I introduced myself to Platkin. I shook his hand, gave him a card, and said, “We should get together and chat some time.”
I won’t say Platkin was phased or excited by this proposition, I don’t think he had a clue who I was, but I’m sure he did figure it out after taking a gander at the card – or, maybe I’m being egotistical here. Regardless, as always, Mr. Attorney General, there’s an invitation for civil discourse, coffee, and cigars anytime you want. We just can’t meet somewhere where they serve alcohol at this time.
Out of the corner of my eye I saw the great Rob Romano. If you don’t know who Rob Romano is, you need to hop on X, the platform formerly known as Twitter, and find his handle: @2Aupdates.
Romano is employed by the Firearms Policy Coalition – one of the forces behind the Koons case – and the business card he gave me in Dallas in 2022 said he’s an “Intelligence Associate.” That title undercuts a bit of Romano’s role in my opinion, as he’s a pivotal voice in the Second Amendment community. Romano keeps advocates and activists informed through social media posts and a lawsuit tracker that he engineered. Romano and I chatted a bit and he was happy to take the hour train ride into the City of Brotherly Love to sit in on what we both knew was history unfolding before us.
The three judge panel consisted of Judge Cheryl Ann Krause, Judge David James Porter, and Judge Cindy Kyounga Chung. After sitting through the judges ask their questions of both the State and plaintiffs, things do seem to lean towards Krause and Chung being more amicable towards restrictions put in place by the Garden State.
Cam did a rundown on what he thought about the proceedings, which he listened to via a live link – now archived – and came to a similar conclusion about the leanings. Cam also pointed out that Krause is an Obama appointee, Porter a Trump appointee, and Chung a Biden appointee
While who nominated who is not always the best barometer to go by on how a judge or justice may rule, the line of questions may expose a hand more accurately. The two judges who were appointed by left of center administrations, as noted, did seem more sympathetic towards the verboten community caretaking philosophies that NYSRPA v. Bruen said were no longer acceptable.
During Chung’s recent confirmation hearing, Senator Ted Cruz did pose the following question, “Is the Supreme Court’s ruling in New York Rifle & Pistol Association v. Bruen settled law?” Chung stated that it was and when prodded if it was correctly decided said:
If I am confirmed, it will be my duty to apply Supreme Court and Third Circuit precedent, including Bruen. As a judicial nominee, it is generally inappropriate for me to offer an opinion on whether these precedents are correctly decided.
Whether or not Chung’s assertions will be evident in her opinion in this case remains to be seen, however we must remain hopeful that she’s a woman of her word.
Towards the end of questioning, Judge Krause did ask a question a couple of times that I think is telling [emphasis added]:
Could you…could you address and is is there, just one tradition? And is there any room at all for the different states to have different laws in in particular places of concern to citizens of that state?
Pete Patterson on behalf of the Koons plaintiffs answered Krause’s query. Patterson addressed the latter question by discussing the state’s duty to define and make proper “sensitive locations,” that are screened for firearms/weapons, and the state shall provide security to the people.
This question from Krause I think exposes the kind of two-tiered system that many still want to have in place. Krause might as well have asked, “Would it be okay for slave states to remain slave states in a Postbellum United States?” The ideas are completely akin to another and personally, after sitting through the full arguments, the question leads me to believe Krause might try to weasel the state out of any hot water they are indeed in over their reactionary law.
Was that question fair game? Would I be out of line for saying that’s an intellectually and judicially insulting idea to put out there? I don’t know. But it shows a potential lack of respect for the Supreme Court’s ruling over New York’s discretionary measures, and completely ignores equal protection under the law.
If Krause is okay with states having different levels of rights for the people concerning arms, does that mean she’d be okay with other states restricting Blacks from enjoying the same liberties of Whites? How about women? Should she just hang up her robe, take off her shoes, and head to the kitchen – presumably pregnant – if she left Pennsylvania and went to Delaware or say the Virgin Islands, if those jurisdictions did not respect the rights of women the same? Are those the types of ways that jurisdictions should be able to govern people?
Angela Cai, the Deputy Solicitor General for New Jersey argued on behalf of Platkin who sat in the gallery – often nodding off to sleep during arguments. Cai was much better rehearsed for this performance than she was for the preliminary injunction hearing at the Federal District Court of New Jersey level. Cai was more assertive and prepared with her material, even if the state still failed to provide a proper burden of proof to subvert civil liberties, in my opinion. For sensitive location examples, Cai continued to bring up Postbellum examples from the Jim Crow south as analogues.
I think the core of this is that the legislature’s not just you know, in, in territories and not just in the Reconstruction South, although in the Reconstruction South during eras, a Radical Republican rule…to try to protect the rights of people like voters, like people seeking privileges with the court, prohibited firearms at places like schools, specifically…
Cai’s assertions are a complete misrepresentation of actual history and this is where she should lose credibility with the panel. Was Cai pointing to the “Radical Republican rule,” specifically based on the party that emancipated the slaves? Or does she mean the Republicans who were against Democratic Governors like George Wallace in a post Brown v. Board of Education U.S.? What’s she referencing? In my opinion Cai made a severe error in trying to thread that needle.
Patterson addressed this idea in his own answering of questions. Patterson observed the state is erring in their analogues and argued:
I think the Reconstruction Era South is a particularly poor place to look to define it. We would like to say, “Okay, we’re going to define our voting rights by what they were doing in Texas in 1870.” So I think it’s a particularly poor place to look to define our rights.” So, I think it’s a particularly poor place to look to define our rights.
Watching Cai I observed, as noted earlier, she was more prepared than the last time I saw her in court, however, she did get rather manic in her rebuttal closing arguments. While she did shift her weight from foot to foot while talking to the judges earlier in the proceedings, in closing she was speaking with her entire body. Not only was she shifting the burden from foot to foot, she was physically swaying from side to side, quite a distance, like a tree in a strong wind or a child clutching a blanket and rocking for some sort of comfort. Her body language gave off the impression that she knew her arguments were weak tea. Cai needs to work on her poker face, well at least her poker posture.
Erin Murphy argued on behalf of the Siegel plaintiffs and commanded the inquiry. Murphy artfully answered all the questions asked and handled the round-robin that she was confronted with with an even keel.
While it did seem that the panel put Cai through the paces and made her really work to deliver her weak arguments, it did seem like Murphy took even more heat – especially from Krause – than her friends on the other side. The vigor of the questions asked was interesting, especially since it’s been determined it’s the state’s duty to meet the burden of constitutionality rather than challengers show unconstitutionality. At a minimum, the state did fail.
Overall, the arguments were sound coming from liberty’s camp. How this is all going to shake up, we’ll have to see. Some commenters felt that this is going to be a slam dunk, 3-0 opinion for the plaintiffs. Others, such as Cam and myself, feel there’ll be a mixed bag.
I do however think that these judges are going to steer clear of the radical moves that the 9th Circuit have continued to make in mishandling such cases. I also think this court does not want to fall derelict in their duties, as the 2nd Circuit has in dealing with New York’s Bruen response law, or the 4th’s in giving an opinion on Maryland’s so-called Assault Weapons ban. I do think that we’ll be somewhere in the middle at this stage of the game.
One person whose opinion I was able to grab was that of Ronald Koons, one of the lead plaintiffs. Koons observed:
I thought both sides presented their case well, even though the state’s argument was based in politics. The judges SEEMED fair and asked both sides legitimate questions. Yet, with two liberal judges and one conservative, I’m not real optimistic.
The opinion on this preliminary injunction can come any day. I don’t think it’s going to be dragged out for over a year, and do believe we might have an answer before Christmas – maybe sooner. Regardless, the plaintiffs have laid out some solid groundwork, and the state continues to have bupkis from a racist era that Democratic political hacks still cling to. I don’t think they’ve met the burden, but we’ll have to wait to see if there are any acrobats in maneuvering around settled law.