I would like to draw your attention to pg 51 of the PDF, Part B of the dissent.
Quote:
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One facet of New Jersey’s history of firearm regulation is particularly important to the longstandingness inquiry. Until 1966, New Jersey allowed the open carry of firearms without a permit. Only concealed carry without a permit issued upon a showing of need has been banned since 1924. This distinction is significant because courts have long distinguished between these two types of carry, holding that although a State may prohibit the open or concealed carry of firearms, it may not ban both because a complete prohibition on public carry violates the Second Amendment and analogous state constitutional provisions.
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This is significant as Judge Hardiman has just stated what Alan Gura has been arguing from the first carry case filed after
McDonald. The dissent doesn't just stop there. Judge Hardiman next lays out the cases that the Court in
Heller cited with favor, and tells the majority why those cases were cited. Judge Hardiman then ends that portion of his dissent with:
Quote:
The crux of these historical precedents, endorsed by the Supreme Court, is that a prohibition against both open and concealed carry without a permit is different in kind, not merely in degree, from a prohibition covering only one type of carry. After all, if a State prohibits only one type of carry without a permit, an opportunity for the free exercise of Second Amendment rights still exists. That opportunity disappears when the prohibition is extended to both forms of carry.
The same logic applies to the 1966 New Jersey law. Prior to that year, New Jersey prohibited only concealed carry without a permit. Accordingly, individuals were able to exercise their Second Amendment rights without first obtaining permission from the State. By enacting a prohibition on open carry without a permit in the 1966 law, New Jersey eliminated that right.
Thus, when the majority identifies 1924 as the operative date for its longstandingness inquiry, it does so in derogation of historical precedents, cited approvingly by the Supreme Court in Heller, that draw an important distinction between concealed and open carry. Under these precedents, when New Jersey eliminated the ability of its residents to openly carry arms without a permit in 1966, it was, as a constitutional matter, enacting an entirely new law.
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Having destroyed the Majorities "Long Standing" argument, Judge Hardiman goes on to destroy their reliance upon the
Kachalsky case, that was just as rife with error as the Majority is here.
There are many more things in that dissent that can be drawn upon in requesting a hearing en banc.
What we should look for, is that the request is granted and that Hardiman's dissent carries the day. That would force the State to petition the SCOTUS for cert, which would almost guarantee a grant (the Supreme Court is more likely to grant cert to a State whose law has been struck down).