I had originally planned on publishing this article on November 14th, in commemoration of the two-year anniversary of the New Jersey Assembly Judiciary Committee meeting where then Assemblyman (now State Senator) John McKeon laid bare the true intentions of the policy goals behind the state’s response bill to the Supreme Court’s historic decision in NYSRPA v. Bruen. But on October 22, news broke on an important win in New York Federal District Court by the Second Amendment Foundation. The case, Hunter v. Cortland Housing Authority, offers a timely intersection on the larger issue.
This latest case serves as a good inflection point: the time has come for more concrete political, legislative, and legal action which I lay out in the conclusion below.
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On November 14, 2022, some of my colleagues and I (who have since become some of my very best friends) appeared before the New Jersey Assembly Judiciary Committee to offer testimony in opposition to Assembly Bill A4769.
Like its counterpart in New York, the Concealed Carry Improvement Act, which was passed and signed into law by Governor Kathy Hochul just weeks after the Supreme Court struck down the Sullivan Act, Bill A4769 proposed to declare nearly every square inch of the State of New Jersey a so-called “sensitive place.” This Bruen-response law made it so the carriage of firearms would essentially be illegal, in complete defiance of the Supreme Court.
The proposal further radically increased the permitting fees, added to the training requirements to obtain a permit, expanded the rigor of the application process, added a requirement to obtain liability insurance, and functionally replaced the “may issue” regime that was struck down in Bruen with an equally subjective, arbitrary, and vague disqualifier:
“A handgun purchase permit or firearms purchaser identification card shall not be issued…to any person where the issuance would not be in the interest of the public health, safety or welfare because the person is found to be lacking the essential character of temperament necessary to be entrusted with a firearm.” – (NJ Rev. Statutes, Title 2C:58-3(c)(5)) [emphasis added to new requirement] This statute pertains to permits to carry via N.J. Stat. § 2C:58-4(c)(4).
In advance of the committee meeting, I scheduled a video conference call with Assemblywoman Lisa Swain from Legislative District 38 where I had a lengthy, polite – but otherwise unproductive session – where I made the simple case that hiding protected Constitutional rights behind a paywall would perpetuate a system that disproportionately harms the poor and, by extension, such a policy would necessarily create a disparate impact on Black and Hispanic communities in New Jersey.
On the day of the Judiciary Committee hearing, I brought prepared remarks specifically addressing this issue where I highlighted the socio-economic issues and demographic data for residents of major cities in New Jersey including Paterson, Newark, Camden, and Elizabeth (the recording of the entire session can be found here, my testimony begins at timestamp 21:22). My colleague, Trevor Ferrigno, offered a similar theme in his testimony. From the dais, in response to our testimony, Assemblyman Robert Auth from Legislative District 39 offered, in support, an example of a woman in Paterson who was gunned down as part of an apparent attempted robbery while working as a Doordash delivery driver and asked whether she should have been denied the right to protect herself outside of her home. He then mused that perhaps fees for firearms-related licenses should be either scaled or subsidized based on the income level of the applicant. Assemblywoman Vicky Flynn from Legislative District 13 echoed those comments.
While we had hoped this testimony would at least cause some legitimate debate on the issue, if not change some minds, we expected that most of this would fall on deaf ears. What we got was far worse than anything we expected. Bill sponsor Sen. McKeon went on the record and said:
In my opinion and maybe tone deaf isn’t the word as opposed to maybe a little bit disingenuous, do you really, do either of you, does anybody really want to put more guns in the hands of people that live in Paterson and Newark and Elizabeth and Camden, to say here that the money you are charging isn’t fair? That will make things safer? Please! … How can anybody think putting guns in the hands of the people in the city, to make it easier, to want to provide a supplement like we would for food so they can have a concealed and carry weapon would be really something that you mean. I can’t believe that to be the case. And if it is, so be it.
This collection of statements was horrifying for so many reasons. Nonetheless, the Judiciary Committee voted to advance the bill. Despite our horror, we all felt certain at the time that once those statements were brought to light for the general public, the political backlash from making statements so cynical, so dismissive of real people experiencing real consequences, and so racially disparaging in this day and age, would at least pause the process for some self-reflection.
After November 14th, the numbers in the 2A community paying attention to this issue grew rapidly. Colion Noir published a video within 24 hours that received hundreds of thousands of views. My colleagues and I wrote about it in social media publications and we shared links with media contacts. Surely, this would have been picked up by the mainstream media?
The silence was deafening.
Undeterred, we testified at all the remaining Assembly and Senate hearings on Bill A4769. On November 20th, when the full Assembly was convened to vote on the bill, Sen. McKeon doubled down, opening his testimony by saying:
We talked about historical precedent, I don’t want to get too deep into it, I don’t want to quote Thomas Jefferson, but I do know back when the Second Amendment was made part of the Bill of Rights, that the only people that had handguns were real rich people.
Once again, horrifying. The bill was passed on a full party-line vote. And once again, we made the full court press trying to draw attention to the deeply troubling sentiment and intent the bill sponsors were content to place on the public record. Colion Noir published another video within days of the vote, this time with over half a million views.
And once again, the silence in the mainstream media was deafening.
At a subsequent Senate committee hearing, the final step before a full Senate vote that would send the bill to Governor Phil Murphy’s desk, Dan Cruz who at the time was seeking the Republican nomination for U.S. Senate, a Paterson native, gave his testimony opening by saying “[Sen. McKeon’s] statements were appalling and out of line.” In the most direct rebuke yet, he went on to say point-blankly that “The statement that Assemblyman John McKeon made was utterly racist.” This time there was no response from the dais at all, other than some navel gazing. Once again, the bill passed another committee with no serious dialogue from lawmakers.
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It is hard to understate how truly disappointing this was: the complete lack of empathy from our elected officials on the other side of this political issue and the complete apathy of the mainstream media. With all of this on the record, I wrote a 21-page policy memorandum on behalf of Safe Way Out, a nonprofit that provides services for largely indigent victims of domestic violence, that covered the legal issues with the bill, not just the Second Amendment concerns but the growing and clear equal protection implications.
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To be clear, while the Equal Protection Clause of the Fourteenth Amendment would effectively prohibit laws that expressly identify and discriminate against protected classes of people, the Supreme Court held in the 1976 landmark case Washington v. Davis that laws that do not directly implicate suspect classes of people but otherwise have a disparate impact on those classes (“facially neutral laws”) must also be shown to have had a discriminatory intent. Establishing that intent element in cases of clear discrimination is so difficult that, for New Jersey cases, the State Attorney General proposed a rule early this year that eliminates the need to show intent in certain instances. Rarely do legislators so obviously place that intent on the record, but in the legislative proceedings surrounding A4769, they did just that.
The memo I wrote was based, in part, on the bill’s legislative progression laying out that showing of intent. I provided a cursory socio-economic survey of data that demonstrated what should be obvious, that certain minority groups are significantly overrepresented in inner-city communities and that median household income averages for those communities fall well below the state-level median. I sent that entire legislative history, including all the direct quotes you just read to the American Civil Liberties Union of New Jersey and to the Public Defender’s Offices of Passaic, Essex, Union, and Camden Counties.
To which we received zero response.
On December 22, 2022, A4769 was signed into law by Governor Phil Murphy. The Association of New Jersey Rifle and Pistol Clubs, on behalf of several plaintiffs, filed its lawsuit to enjoin the law that same day, followed within hours by a separate challenge from the Firearms Policy Coalition, the Second Amendment Foundation, the Coalition of New Jersey Firearms Owners and the New Jersey Second Amendment Society.
Within 18 days of the bill being signed into law, substantial portions of the law were enjoined by a temporary restraining order granted by the Federal District Court of New Jersey. But the initial focus of these suits was on the low-hanging fruit, the sensitive place restrictions contained in the law.
Of the socio-economic barriers imposed by this new regime, only the most absurd portion of the law was enjoined at the outset, the odd (and largely unworkable) requirement to obtain separate liability insurance in connection with obtaining a permit to carry a firearm in New Jersey. The exorbitant fees, the lengthy application process, the heightened training requirement, and the vague and subjective standards for denial of an application were allowed to take effect and remain in effect today.
Over the following two years, through public transparency initiatives like our NJ NICS Research Center, and the relentless work of writers like John Petrolino, who in just the last few months, has covered this issue no less than five times (examples here, here, here, and here), we have uncovered clear evidence that we can infer that the law was designed to stop people below a certain economic bracket from even attempting to apply (which disproportionately impact BIPOC communities).
For Black applicants that do apply for an N.J. permit to carry, they are denied their government permission slips at over 2.5 times the rate of white applicants. These denials are on the basis of this arbitrary and subjective standard. In May of this year, Petrolino sent an open letter on this issue to every member of the New Jersey legislature. And again, mostly silence.
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Firearms Policy Coalition recently petitioned the Supreme Court for a writ of certiorari in Gray v. Jennings and asked the simple question as to whether the loss of a Second Amendment right constitutes an “irreparable harm,” with the Third Circuit being one of the few Circuit Courts in the U.S. to conclude that the answer to that question is “no.” We would agree with the principle that the loss of any Constitutional right, even temporarily, is in fact an irreparable harm (In its simplest terms, the loss of a Constitutional right can not adequately be compensated for monetarily, thus constituting an irreparable harm. This is one of the legal concepts necessary to support a preliminary injunction in a civil court proceeding).
The data shows that the loss of the right to self-defense is more than an abstract legal concept. While Black applicants are denied at over 2.5 times the normal rate, according to the Brady Campaign, Blacks in the US are 11.5 times more likely to be victims of gun violence. The tragedy of that is that while the Brady Campaign acknowledges that terrible reality, they ignore the fact that centuries of gun control laws were carefully designed to prevent Black people in the U.S. from lawfully exercising their Second Amendment rights.
Those laws galvanized the right as a legal fiction for a class of people most in need of self-protection. Modern laws like New Jersey’s Bruen-response bill continue that tradition. Legislators in this more “modern and progressive” era are so hubristic that they go on the public record, with a straight face, admitting that is the intention.
From the Black Codes of the postbellum South to the era of Jim Crow laws to the Sullivan Act passed in New York in 1911 to the Mulford Act passed in California in 1967 to today’s modern equivalents, the underlying intent has always been the same: to paraphrase Sen. McKeon, keep guns out of the hands of those people.
Those people who are 11.5 times more likely to be victims of criminal gun violence. Those people who are overwhelmingly more likely to be incarcerated for possession of an unlicensed firearm and face civil death due to a firearm-related felony being permanently part of their record because no practical path exists for them to legally exercise their right to self-defense. Those people who statistically make up large percentages of our inner cities where the reality of criminal violence in general is inescapable, in a world where rising overall crime rates are being ignored by politicians in power right now.
The Second Amendment Foundation’s recent victory in Hunter v. Cortland Housing Authority illustrates just one more layer of racial discrimination in the gun control scheme. Across the U.S., over 45% of public housing is occupied by Black households according to HUD, three times their occurrence rate in the general population. For families living in Housing Authorities, the average household income is $17,201.
Laws like New Jersey’s permit-to-carry system make it financially impossible to legally defend themselves from the violence they cannot escape. Also working against them, their lease agreements with federally subsidized Housing Authorities make it contractually impossible to own firearms. These lease agreements are required by the Housing Authorities to prohibit residents from having legally owned firearms in their homes. In mid-October, SAF received a favorable ruling on this topic with a District Court in upstate New York ruling that the lease provisions in question violate tenants’ Constitutional rights. That victory, while noble and significant as a matter of establishing precedent, involves but one Housing Authority, where there are almost 3,900 Housing Authorities in the United States that provide housing for over two million residents.
I recently attended the Gun Rights Policy Conference in San Diego hosted by the Second Amendment Foundation. While there, I had the pleasure to spend time with Alan Gottlieb, a person whom I greatly admire. He shared with me some personal stories about his interactions with Otis McDonald, the plaintiff in the landmark Second Amendment case McDonald v. City of Chicago.
In particular, Gottlieb shared a touching story about the emotional moment with Otis on the literal steps of the Seat of the Supreme Court in Washington. Otis McDonald was a Black, retired janitor who lived in the Morgan Park section of Chicago. McDonald’s neighborhood, like many on the South Side, faced a steady decline since he moved there in 1971. McDonald’s home was broken into five times but, due to Chicago’s ban on handguns, he was not allowed to effectively protect himself.
It’s easy to focus on the significant legal implications of major cases like McDonald v. City of Chicago, but it is also easy to forget that the plaintiffs in these cases are real people, in the real world, who fully felt and continue to feel the deleterious effects of the laws. Otis McDonald passed away two years after the Supreme Court ruled in his case, having lived 78 years of his 80-year life without the rights he fought to restore.
The people most seriously harmed by these policies are folks like Otis McDonald, the residents of the Cortland Housing Authority, or Kim Henry – one of the plaintiffs in ANJRPC’s case against N.J.’s carry law, an indigent Black woman who was a victim of domestic violence and cannot afford to legally protect herself. The totality of the harm from these policies goes beyond just Second Amendment claims and intersects with conventional civil rights questions and cases.
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The time has come for a broader response:
- We believe there should be a new push for legislation on the floor in Trenton to roll back some of these laws based on the growing body of evidence that suggests that these laws lead to – and are fueled by – a racial bias that harms people in real and dangerous ways. We are eager to find bill sponsors to work with us on this.
- We believe there should be calls in Washington D.C. for the Civil Rights Division of the Department of Justice to open an investigation into firearms licensing laws, practices, and procedures in states that maintain these types of regimes. Just as in the era after Brown v. Board of Education, the federal government should intervene when state agencies blatantly buck federal law to violate civil rights.
- We further believe it is time to begin challenging these laws in court, not on just pure Second Amendment grounds, but on Fourteenth Amendment equal protection grounds. State defendants routinely rely on facially neutral but highly racially charged laws (from both the time of the founding and the time of the passage of the Fourteenth Amendment) as historical pedigree that might confuse lower courts in applying Bruen’s historical analogical reasoning test. These examples from history would not on their own be enforceable in many cases under a strict scrutiny equal protection analysis.
These steps will better address the broader civil liberties issues presented here but will also help reshape the national discussion. Brady and Everytown cite their own research on the racial disparity in gun violence statistics. But they completely miss the point that the very gun control they support contributes to this “epidemic” of violence for these communities. Or, they blatantly ignore it for their own gain.
After the Bruen decision came down, the New York Legal Aid Society issued the following warning:
As lawmakers consider next steps in response to this decision, let us be abundantly clear: it would amount to a historic disservice to both public safety and the best interests of New Yorkers for Albany to reproduce a regulatory scheme that perpetuates the same disparate outcomes yielded under the previous law or to further criminalize gun ownership. Criminalization has never prevented violence and serves only to further marginalize and incarcerate people from BIPOC communities.
In a Harvard Law Review article written by UCLA Law Professor Adam Winkler on the heels of the Bruen decision, he suggested in his conclusion that “the history of racist gun laws also must not be forgotten, and if nothing else, it should inspire gun reform advocates and lawmakers to craft efforts to reduce gun violence without a racially disproportionate impact.” [Emphasis added]
My colleagues and I have relentlessly focused on this issue here in the State of New Jersey for over two years, to hear only deafening silence from the government and the mainstream media.
The silence must end.
*Special thanks to John Petrolino whose tireless coverage laid some of the important groundwork for this essay and who I forced to suffer through the endless editing for this project. And special thanks to our team at the NJNICS Research Center for their constant effort on this important issue!
