On Wednesday, February 11, 2026, the full U.S. Court of Appeals for the Third Circuit will sit en banc in Philadelphia to rehear Koons v. Platkin and Siegel v. Platkin, the consolidated challenges to New Jersey’s Concealed Carry Improvement Act, P.L. 2022, c. 131 — the sweeping sensitive-places law New Jersey enacted in direct response to Bruen. The timing could not be more significant: a major new historical study landed on SSRN just days before argument, and it demolishes the legal foundation the anti-gun majority relied upon last September.
What New Jersey’s Law Actually Does
The Concealed Carry Improvement Act created roughly 25 categories of “sensitive places” where carry is prohibited: public gatherings, parks, recreation facilities, beaches, public libraries, museums, entertainment facilities, casinos, health care facilities, and public transit, among others. Chief Judge Renée Marie Bumb of the District of New Jersey issued a 230-page opinion finding much of the law likely unconstitutional back in May 2023. The Third Circuit’s three-judge panel then reversed course in a 2–1 decision in September 2025, with Judge Cheryl Ann Krause writing for the majority (joined by Judge Cindy K. Chung) and Judge David J. Porter issuing a powerful dissent that raised serious flags about whether the majority applied Bruen correctly. I do not think the majority had it right.
The en banc grant came after Judges Jennifer L. Mascott and Emil J. Bove III — both Trump appointees, with Bove confirmed in July 2025 and Mascott in October 2025 — joined the court. The full active en banc panel is now 14 judges. Wednesday’s argument is the real ballgame.
The McClellan Study: History Confirms the Security Requirement
The study that just hit SSRN is titled “The Second Amendment, Sensitive Places, and Comprehensive Government Security” by Angus McClellan (SSRN abstract ID: 6105246). McClellan holds a PhD from Claremont Graduate University, served as a postdoctoral research associate at Princeton University’s James Madison Program, and taught at Hampden-Sydney College. This is about as serious a historical compendium as you will find — nearly 100 pages of sourced founding-era evidence.
McClellan’s central finding is exactly the principle I have been hammering for years: whenever the founding generation wanted to designate a location as a “sensitive place” and prohibit arms, they paired that prohibition with comprehensive government security — armed personnel, sergeants at arms, sheriffs, marshals, and bailiffs. This was not coincidental; it was the constitutional quid pro quo.
Bruen identified three classic founding-era sensitive places: courthouses, legislative assemblies, and polling places. McClellan walked through all 13 original states and demonstrated that every single one of those locations came with armed government protection. Congress had sergeants at arms. Polling places had sheriffs and deputies. Courthouses had marshals and bailiffs. The principle is universal and documented.
The study also addresses what happened when the founders faced dangerous locations they couldn’t fully secure — churches on the frontier, for instance. Did they post “no tomahawks allowed” signs and call it a day? No. They directed citizens to bring their own arms to church. That is the opposite of the gun-free-zone model New Jersey is running.
The Beccaria Thread
McClellan also connects the founding-era thinking to Cesare Beccaria (1738–1794), the Italian Enlightenment criminologist whose work was read and cited by both Thomas Jefferson and John Adams. I have written about Beccaria at length in the Pepperdine Law Review, and I believe McClellan’s article references that scholarship as well.
Beccaria wrote — in the late 18th century, long before any NRA slogan existed — that arms-ban laws do nothing but harm the law-abiding while leaving the criminal class armed. The law-abiding citizen follows the prohibition; the person willing to commit robbery, murder, or rape does not obey a gun restriction. Our Founders absorbed this insight before they ever drafted the Second Amendment. Gun-free zones, stripped of real security, are not a founding-era tradition — they are an invitation.
What the Panel Majority Got Wrong
The September 2025 majority quoted its own reasoning back to me, so let me address it directly. The panel wrote that “democratically elected leaders acknowledge that there are tradeoffs between protections of the Second Amendment and fellow citizens’ enjoyment of functional government.” It said those leaders work “to achieve a balance of these interests.”
That is interest-balancing. Bruen explicitly threw interest-balancing out. The Second Amendment test is text and history, full stop. The majority dressed it up as “distilling principles from history,” but the actual principle history teaches — as McClellan now proves — is the security-exchange principle. If government wants to disarm you in a location, it must provide comprehensive security: armed guards, metal detectors, the full apparatus we see at federal courthouses, the White House, Congress, and TSA-screened airport terminals. Anything short of that is not a constitutionally permissible sensitive-place restriction.
What En Banc Needs to Deliver
As I see it, the Third Circuit en banc court needs to articulate one clear rule: a government-imposed gun-free zone is constitutional under the Second Amendment only if the government simultaneously provides comprehensive security — armed protection and physical screening sufficient to keep bad actors disarmed. New Jersey’s beach ban comes with no metal detectors, no armed guards, no security apparatus of any kind. The government just says “no guns here” and leaves law-abiding citizens unprotected. That is not a sensitive place under the founding-era understanding. That is just a label.
Judge Porter’s dissent already signaled this reasoning. With two additional originalist judges now on the en banc panel, there is a real opportunity to produce a ruling that corrects the panel decision and gives Bruen’s sensitive-places framework the coherent historical grounding it requires.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.