Third Circuit Decision not the Gun Control Victory Phil Murphy Claims It Is


If you only went by the statements of New Jersey politicians, it would be easy to think that the Third Circuit Court of Appeals decision to overturn a trial court judge and re-instate the public nuisance law targeting gun makers and dealers was based on some kind of determination about the law’s constitutionality.

Gov. Phil Murphy congratulated the Attorney General’s office for “winning this important victory in court,” while New Jersey AG Matthew Platkin proclaimed to be “thrilled that a unanimous Third Circuit panel rejected the challenge to New Jersey’s public nuisance law.” Platkin went on to call the law “an important public safety tool”; an ironic statement of epic proportions given why the Third Circuit ruled the way it did.

The three-judge panel didn’t uphold the New Jersey law on its merits. Instead, as the opinion makes clear from the get-go, the ruling is all about the timing of the lawsuit, not the constitutionality of the law itself.

Federal courts are not forecasters. The Constitution limits our jurisdiction to disputes that have ripened fully. We may not prejudge hypothetical cases or offer legal advice. Instead, parties must first be injured before coming to us for redress. Only then do we react. When constitutional rights are at stake, we accelerate that timeline—but only slightly. We may hear a case before a person’s rights are violated only if the threat is imminent. The National Shooting Sports Foundation challenges a new state gun law as violating its members’ constitutional rights. But we see little evidence that enforcement is looming. Because the Foundation has jumped the gun, its challenge must be dismissed.

Now, I happen to disagree with the Third Circuit panel about the imminent threat posed by the New Jersey law. The legislature didn’t pass this law just to “do something”. They want to encourage and empower lawsuits against firearm manufacturers and gun stores for supposedly enticing criminals to do bad things because of their marketing (or, in some cases, their very existence). When anti-gun politicos like Murphy and Platkin are touting how important they think this law is when it comes to public safety, I think it’s a little ridiculous to say that there’s “little evidence” enforcement is looming, but that’s the opinion of the Third Circuit panel.

Pre-enforcement challenges are unusual. To bring one, the plaintiff must show that the stakes are high and close at hand. Normally, that means constitutional rights are at issue, those rights are threatened by significant penalties, and those penalties might well be imposed, as shown by past enforcement in similar situations or some other evidence of the threat. Yet this suit falls far short of even the “normal” preenforcement challenge. A brand-new civil tort statute, without more, does not justify a federal court’s intervention. Because the Foundation’s case is not yet fully formed, we will vacate the preliminary injunction and remand with instructions to dismiss this action for lack of jurisdiction.

Again, the Third Circuit’s decision had nothing to do with the validity of the law in question, only the timing of the National Shooting Sports Foundation’s lawsuit. And as the NSSF’s Larry Keane said in his own statement after the opinion was released, “During oral arguments, the panel appeared to have concerns with the law, as did the district court that enjoined enforcement. Should New Jersey’s attorney general attempt to enforce the law, we will immediately refile our complaint.”

This wasn’t a win for New Jersey, because as soon as Platkin does try to enforce the law NSSF is going to be right back before a judge to ask for an injunction once again and this time there’s no way the appellate court can claim the issue isn’t ripe. The district court has already enjoined the law from being enforced once, and that’s going to be the likely outcome if and when Platkin decides to deploy his “important public safety tool” against the firearms industry.


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