The full active bench of the United States Court of Appeals for the Third Circuit — all fourteen judges sitting en banc in Philadelphia — heard argument on February 11, 2026 in Koons v. Platkin and Siegel v. Platkin, the consolidated challenge to New Jersey’s P.L. 2022, c. 131, which designates 25 categories of “sensitive places” where carry permits are void and makes virtually all private property presumptively gun-free. One question dominated the argument: when the Second Amendment demands a historical analog, which period controls — 1791, when the Bill of Rights was ratified, or the post-Civil War Reconstruction era? I have been making the case since Bruen came down that 1791 is the only defensible answer, and the Third Circuit’s en banc argument just forced that fight into the open.
Chief Judge Chagares Puts New Jersey on the Spot
Chief Judge Michael A. Chagares cut right to it during argument, pressing New Jersey’s lawyers on their own briefing. He asked:
“You argue in your brief, in particular your reply page 18, that in the event of a clash between founding-era and Reconstruction-era historical analogs, that the latter ought to control for purposes of the inquiry under Bruen. But doesn’t Bruen tell us something different? Doesn’t Bruen tell us that we should treat evidence from the late 19th century as having minimal probative value when it conflicts with earlier evidence?”
That is exactly the right question, and the answer is settled. New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), explicitly said that late-19th-century evidence carries “minimal probative value” when it conflicts with founding-era evidence. New Jersey’s lawyers are asking the Third Circuit to invert the Supreme Court’s own hierarchy of evidence. That is not a close legal call.
Why 1791 Is the Only Defensible Answer
I have been hammering this point in the Harvard Journal of Law & Public Policy since Bruen came down: the Second Amendment codifies a pre-existing right. It does not create one. If the right pre-existed 1791 and was codified in 1791, then its meaning must be understood from the historical record at and before that moment. Laws passed 80 to 100 years later — much of it motivated by a desire to disarm freed Black Americans after the Civil War — cannot illuminate the original public understanding of a right already fixed.
Post-Civil War history serves only as a confirmatory analytic, a one-way ratchet. Late-19th-century evidence can confirm the 1791 understanding; it cannot contradict or shrink it. That is black-letter Bruen.
The Supreme Court’s First Amendment jurisprudence clinches it. In Espinoza v. Montana Department of Revenue, 591 U.S. 464 (2020), Montana argued that 30 states adopted restrictions on public funding for religious schools after the Civil War, showing a historical tradition of limiting the Free Exercise Clause. Chief Justice John G. Roberts, Jr. rejected that flatly: those laws came too late in time to inform the meaning of the First Amendment as ratified in 1791. Identical logic governs the Second Amendment.
The Fake “Historical Silence” Argument
Anti-gun advocates claim there is historical silence in 1791 about regulations on public carry, so courts must look later. That argument is both wrong and circular.
Wrong, because the text of the Second Amendment is itself the primary historical evidence. The unqualified command — “the right of the people to keep and bear Arms, shall not be infringed” — is a historical document. You cannot declare historical silence at the founding when the founding document is staring you in the face.
Beyond the text, founding-era laws addressed public carry directly: affray laws, surety laws, and the Statute of Northampton (2 Edw. 3, c. 3 (1328)) all drew the same line — between peaceable carry for self-defense and the misuse of a weapon to terrorize the public. None established a general prohibition on carry in designated locations. They regulated conduct, not presence. John Adams made the same distinction during the Boston Massacre trials in 1770: colonists had every right to be armed defensively, but not to use arms offensively.
The anti-gunners want that distinction erased because their sensitive-places strategy depends on it. If founding-era law only prohibited terrorizing carry — not peaceable carry — then New Jersey’s 25-category gun-free zone has no historical analog.
The Incorporation Argument That Ends the Debate
There is a structural argument that, in my view, closes this entirely. It is black-letter Supreme Court law that the scope of a Bill of Rights provision is identical whether applied to the federal government or to the states. Before the Civil War, the Second Amendment restricted only the federal government. After McDonald v. City of Chicago, 561 U.S. 742 (2010), it was incorporated against the states through the Fourteenth Amendment’s Due Process Clause — but incorporation does not change the meaning of the right. The Second Amendment as applied to New Jersey today means the same thing it meant when applied to the federal government in 1791. That means there cannot be one meaning before 1868 and a narrower meaning after. The entire Reconstruction-era-controls argument collapses under its own logic.
What Comes Next
The en banc panel now has the case under advisement. The historical-period question Chief Judge Chagares pressed is the fulcrum: if the Third Circuit holds to 1791, New Jersey’s sweeping sensitive-places law has no viable historical analog and most of Chapter 131 falls. If it imports Reconstruction-era gun control — much of it rooted in the Black Codes — into Second Amendment analysis, it creates a direct conflict with Bruen’s plain text and all but invites Supreme Court review. Either way, this fight is not over. The stakes for carry rights across the East Coast could not be higher.
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.