Ruling on New Jersey gun law shows Democrats didn’t do their homework

In Tuesday’s mammoth ruling that puts a halt — for now — to almost all of the new gun law signed by Gov. Phil Murphy last year, there is a footnote that illustrates how New Jersey Democrats screwed the pooch on this one.

U.S. District Judge Renée Marie Bumb notes early in her ruling that attorneys representing the state failed to present “sufficient historical evidence” to support each aspect of the law, a requirement handed down by the U.S. Supreme Court in its Bruen ruling on concealed carry laws.

Bumb then describes a moment from a November Assembly hearing where Republican Assemblyman Brian Bergen sparred with one of the bill’s authors, Democratic Assemblyman Joseph Danielsen, over the bill’s constitutionality.

“Assemblyman Danielsen, how confident are you that this bill will be upheld by the U.S. Supreme Court?” Bergen asked him.

“I’m not answering that question, Mr. Bergen. Stay on the bill, please,” Danielsen responded.

Moments later, Bergen asked, “Assemblyman, did you read the court’s decision for Bruen in its entirety?”

“Me reading the court’s decision is not part of this bill. Please stay on the bill, Mr. Bergen,” Danielsen responded.

As Bumb writes, “The legislative record reveals the Legislature paid little to no mind to Bruen.”

This isn’t the only evidence that the bill’s architects didn’t do their homework. In January, when Bumb issued her first temporary restraining order in this case, she chided the state for not being prepared to make arguments in favor of the bill’s constitutionality, a complaint she aired again in Tuesday’s ruling.

“Defendants must do more than promise they will justify the constitutional basis for its legislation later. Surely, defendants had — or should have had — the historical materials and analyses the state relied upon when it began its legislative response to Bruen,” she wrote.

I wouldn’t call myself a gun rights advocate, but it’s hard for me to see how Democrats intended to respond to Bruen without actually adhering to what Bruen demands. Cross their fingers and hope the conservative majority of the Supreme Court resigns while President Biden can replace them?

I get the bind Democrats are in here. Bruen makes it almost impossible to craft any kind of expansive law restricting gun use that will satisfy the Supreme Court. And making gun laws stricter is popular with voters who lawmakers like Danielsen count on (86% of Democrats and 60% of independent voters nationwide want stricter gun laws, per Gallup), so zero response probably would have hurt the Democratic majority politically.

But the Bruen decision is what we have until some future Supreme Court decides otherwise, so to craft a gun law without taking it into account was foolish. And the sneering tone legislative leaders took with Assemblyman Bergen — Assembly Speaker Craig Coughlin told him, “You don’t get to decide whether we think it’s constitutional or not,” to applause from Coughlin’s Dem colleagues — was a mistake now that it seems like Bergen may be on the right side of the legal argument here.

I asked Bergen about this and here’s what he told me: “Many people don’t realize how important floor discussion is to the way our government works. I am proud to have exposed the flaws in the Democrats’ overreaching bill and to have assisted the courts in their process of overturning the worst parts of this legislation. As long as I’m in the Legislature, I’ll always stand up for freedom.”

Danielsen did not respond to a request for comment.

Look, Bumb is only one judge, and maybe she’ll rule differently as the case marches on. Who knows, maybe the state’s attorneys will start doing the work she’s asked them to do and convince her our gun law is constitutional.

I talked to Eric Ruben, a law professor at Southern Methodist University in Dallas who specializes in gun regulation. He urged caution here, saying it would be premature to read Bumb’s analysis as anything but preliminary (New Jersey is appealing her order).

“There’s widespread confusion in trial courts about how to do Bruen’s novel historical test. As a result, we are seeing courts reach opposite conclusions in Second Amendment cases across issues — from where you can carry guns (as in this case) to who can possess them to what guns can be banned. Courts are applying different glosses on history and different methodologies.”

Fair, Bumb’s word is not final, and the Third Circuit Court of Appeals may indeed feel New Jersey’s gun law is constitutional. But the judges there won’t be the final word, either; the U.S. Supreme Court will be. And I’m skeptical Justice Clarence Thomas, who authored Bruen, and his conservative colleagues will feel any differently than Judge Bumb.