SJG 253 Posted September 17, 2013 PRECEDENTIALUNITED STATES COURT OF APPEALSFOR THE THIRD CIRCUIT____________No. 12-3621____________ASSOCIATION OF NEW JERSEY RIFLE AND PISTOLCLUBS INC.,Appellantv.PORT AUTHORITY OF NEW YORK AND NEW JERSEY,andSCOTT ERICKSON____________On Appeal from the United States District Courtfor the District of New Jersey(D.C. No. 2-06-cv-00402)District Judge: Hon. Katharine S. Hayden____________Argued and Submitted May 31, 2013Before: JORDAN and VANASKIE, Circuit Judges, and2RAKOFF,* District Judge.(Filed: September 13, 2013)____________OPINION OF THE COURT____________Richard E. Gardiner, Esq. - Argued3925 Chain Bridge Road, Suite 403Fairfax, VA. 22030Counsel for AppellantThomas R. Brophy, Esq. – ArguedPort Authority of New York & New JerseyOne Path PlazaJersey City, NJ 07306Counsel for AppelleesRAKOFF, District Judge.Section 926A of Title 18 of the United States Codeconfers the following protection upon those who wish toengage in the interstate transportation of firearms:Notwithstanding any other provision of any lawor any rule or regulation of a State or anypolitical subdivision thereof, any person who is* The Honorable Jed S. Rakoff, District Judge for theUnited States District Court for the Southern District of NewYork, sitting by designation.3not otherwise prohibited by this chapter fromtransporting, shipping, or receiving a firearmshall be entitled to transport a firearm for anylawful purpose from any place where he maylawfully possess and carry such firearm to anyother place where he may lawfully possess andcarry such firearm if, during such transportationthe firearm is unloaded, and neither the firearmnor any ammunition being transported is readilyaccessible or is directly accessible from thepassenger compartment of such transportingvehicle: Provided, That in the case of a vehiclewithout a compartment separate from thedriver’s compartment the firearm orammunition shall be contained in a lockedcontainer other than the glove compartment orconsole.The provision amended a far more expansive entitlement to“transport an unloaded, not readily accessible firearm ininterstate commerce,” which was passed just two monthsearlier as part of the Firearms Owners’ Protection Act. SeePub. L. No. 99–308, § 107(a), 100 Stat. 449 (May 19, 1986),amended by Pub. L. No. 99–360, § 1(a), 100 Stat. 766 (July 8,1986). The question before us is whether section 926A, asamended, creates a right enforceable by the appellant, theAssociation of New Jersey Rifle and Pistol Clubs Inc. (“theAssociation”), pursuant to 42 U.S.C. § 1983.The Association’s cause of action seeks injunctiverelief pursuant to 42 U.S.C. § 1983 that would enjoin the PortAuthority of New York and New Jersey and Scott Erickson(collectively, the “Port Authority”) from enforcing certain4New Jersey statutes, which prohibit possession of a firearmwithout a permit and possession of hollow-pointammunition,1 against non-resident members of theAssociation “who are entitled to transport firearms throughNew Jersey pursuant to 18 U.S.C. § 926A.” J.A. at 26-30.The Association seeks this relief because, it alleges, the PortAuthority enforces these state gun laws in Newark Airportagainst non-resident members of the Association, who arethus “coerced and intimidated into taking one of two coursesof action: (i) When traveling with firearms . . . they avoidNewark Airport and other Port Authority sites to avoidunlawful arrest and/or detention . . . even though they have aright . . . to travel unmolested through such locations withfirearms; or (ii) . . . they refrain from possessing firearmswhen traveling through Newark Airport and other PortAuthority sites . . . .” Id. at 29.21 See N.J. Stat. Ann. § 2C:39–5(b) and N.J. Stat. Ann.§ 2C:39–3(f).2 In a prior non-precedential decision, another panel of thisCourt reversed the District Court’s dismissal of this case onstanding grounds and directed the District Court to permit theAssociation to amend its complaint to allege facts sufficientto demonstrate standing. See Revell v. Port Auth. of N.Y. andN.J., 321 F. App’x 113 (3d Cir. 2009). The Association did soby properly asserting the rights of its non-resident members.While the Concurring Opinion below references a secondreported opinion in Revell, the panel in that case expresslydeclined to reach the question before us. See Revell v. PortAuth. of N.Y. and N.J., 598 F.3d 128, 136 n.13 (3d Cir. 2010).5On August 20, 2012, the district court granted the PortAuthority’s motion for summary judgment, holding thatsection 926A does not create a right enforceable under section1983. Because we hold that, in enacting the amended section926A, Congress did not intend to confer the right upon theAssociation’s non-resident members that the Associationseeks to enforce in this case, we affirm.Section 1983 imposes liability on anyone who, undercolor of state law, deprives a person “of any rights, privileges,or immunities secured by the Constitution and laws” of theUnited States. On its face, section 1983 provides a remedy fora violation of federal rights, privileges, or immunities, but“not merely a violation of federal law.” Blessing v. Freestone,520 U.S. 329, 341 (1997); see also Gonzaga Univ. v. Doe,536 U.S. 273, 283–90 (2002). Determining whether a federalstatute creates a federal right enforceable under section 1983is a two-step process.The first step is to determine whether the federalstatute creates a federal right. To make this determination,three requirements must be met. “First, Congress must haveintended that the provision in question benefit the plaintiff.Second, the plaintiff must demonstrate that the rightassertedly protected by the statute is not so ‘vague andamorphous’ that its enforcement would strain judicialcompetence. Third, the statute must unambiguously impose abinding obligation on the States . . . [i.e., it] must be couchedin mandatory, rather than precatory, terms.” Blessing, 520U.S. at 340–41 (internal citations omitted).If all three requirements are met, a rebuttablepresumption arises that the statute creates a right enforceable6under section 1983. In such circumstances, “[p]laintiffs suingunder § 1983 do not have the burden of showing an intent tocreate a private remedy because § 1983 generally supplies aremedy for the vindication of rights secured by federalstatutes.” Gonzaga Univ., 536 U.S. at 284. However, in thesecond step of the Blessing analysis, this presumption may beovercome if a defendant shows that Congress has eitherexpressly or impliedly foreclosed the section 1983 remedy forthat particular right. Blessing, 520 U.S. at 341. “Implied”foreclosure of a remedy -- the more elusive rebuttal to thepresumption that a federal right has a remedy under section1983 -- means that notwithstanding the fact that Congresscreated an individual right with a given statute, Congress also“creat[ed] a comprehensive enforcement scheme that isincompatible with individual enforcement under § 1983.” Id.In our view, plaintiff here has failed to satisfy even thefirst requirement of the first step of the process, i.e., thatCongress intended that section 926A benefit this particularplaintiff. This is evident from the plain meaning of the statute.Although the unwieldy sentence that comprises section 926Ais drafted in a roundabout way, on a careful reading itslanguage is clear and unambiguous. It begins by establishinga clear positive entitlement: a person who meets itsrequirements “shall be entitled” to transport firearms incertain circumstances. Cf. Gonzaga, 536 U.S. at 287(contrasting the rights-creating language of “no person . . .shall be . . . subjected” with language typical of spendingclause statutes, e.g., “no funds shall be made available.”). Butthe part of the sentence that immediately follows expresslyconditions this entitlement as only being operative “if, duringsuch transportation the firearm is unloaded, and neither thefirearm nor any ammunition being transported is readily7accessible or is directly accessible from the passengercompartment of such transporting vehicle.” 18 U.S.C. § 926A(emphasis supplied).It is plain from the latter condition that the statuteprotects only transportation of a firearm in a vehicle, andrequires that the firearm and ammunition be neither readilynor directly accessible from the passenger compartment ofsuch vehicle. In particular, the word “such,” in “suchtransporting vehicle,” by definition refers back to earlierpart(s) of the sentence, and the only parts it could possiblyrefer to are the parts referring to the transportation of afirearm or ammunition. The use of “such” therefore makesclear that the transportation the statute protects must occur ina “transporting vehicle.”Moreover, if there were any doubt about the statute’svehicular limitation, the final part of the sentence that follows-- the “Provided” clause -- again makes clear that onlyvehicular transportation is included in the statutory grant. Itstates: “Provided, That in the case of a vehicle without acompartment separate from the driver’s compartment thefirearm or ammunition shall be contained in a lockedcontainer other than the glove compartment or console.” 18U.S.C. § 926A (emphasis supplied). This clause, on its face,presupposes transportation of the firearm in a vehicle.It follows from this plain meaning that an ambulatoryplaintiff who intends to transit through Newark Airport isoutside the coverage of the statute.3 But it is precisely such3 We note that our reading of the statute is perfectlyconsistent with the view that the statute might protect travel8people whose alleged rights under section 926A theAssociation seeks here to vindicate.Despite the plain meaning of the statute, theAssociation urges this Court to conclude that the “readilyaccessible” clause is “grammatically disconnected” from therest of the statute and thus that the “operative entitlement” ofthe statute contemplates non-vehicular transportation offirearms. Aside from its violation of the most elementaryrules of grammar and punctuation, this argument posits theabsurdity that Congress intended -- in a single sentence, noless -- to create two disjunctive categories, one cabined withall kinds of conditions and the other with none. Thus, on thisreading, the Association argues that because the first clause ofthe sentence is divorced from the rest, its members should beable to walk through Newark airport with their firearms in,for example, their wheeled luggage or in holsters attached totheir belts. To account for the remainder of the sentence, theAssociation argues that it simply provides limitations on thespecial case of firearms and ammunition that are transportedby vehicle.This otherwise grammatically strained disjunctivereading of the statute, the Association argues, avoids the sinof rendering “directly” redundant to “readily,” since boththat occurs via aircraft or train—each of these modes of travelmight be considered “vehicular.” The relevant question iswhether ambulatory travel (i.e., walking) through an airportterminal is also protected by the statute.9terms purportedly convey the same meaning.4 Yet “readily”and “directly” are clearly not redundant adverbs, and readingthem both as part of the same limitation upon the permissibleaccessibility of a firearm in a “transporting vehicle” offendsno grammatical rule. On the contrary, reading “readilyaccessible” and “directly accessible” as both modifying theextent to which firearms and ammunition can be “accessiblefrom the passenger compartment of such transportingvehicle” gives meaning to all of the statute’s terms: a keyrequirement of any statutory construction. That is to say,reading them as part of the same continuous entitlement totransport firearms in vehicles (i.e., the guns and ammunitionmust be neither readily nor directly accessible from thepassenger compartment of a vehicle) renders neither adverbsuperfluous, and permits the Court to make sense of the finalclause “such transporting vehicle” without re-writing thestatute to read “a transporting vehicle,” as the Association’sreading would in effect require.4 While the Concurring Opinion states that theAssociation’s reading of the statute is not “untenable,” werespectfully disagree. The critical word is “such” in “suchtransporting vehicle.” “Such is properly used as an adjectivewhen reference has previously been made to a category ofpersons or things.” Bryan A. Garner, A Dictionary of ModernLegal Usage, 526-27 (1987). As noted, the only possibleantecedent to which “such transporting vehicle” could refer isthe transporting of a firearm mentioned in the main clause ofthe statute, from which it follows that both of the limitingconditions following the word “if” refer to vehicletransportation.10Furthermore, the Association’s reading is unable tosensibly account for the “Provided” clause (“Provided, Thatin the case of a vehicle without a compartment . . .”). Underour straightforward reading, the proviso presumes, oncemore, that the protected transportation must be in a vehicle.But under the Association’s reading, the proviso is entirelyunnecessary, for while, e.g., storage of a firearm in a glovebox would possibly evade the limitation that firearms not be“directly” accessible in a vehicle, storage in the glove boxwould already be prohibited by the supposedly freestandinglimitation that the firearms cannot be “readily accessible.” Itis not credible that Congress would have added the entire“Provided” clause when, on the Association’s reading, it wasentirely unnecessary. See Kungys v. United States, 485 U.S.758, 778 (1988) (plurality opinion by Scalia, J.) (noting the“cardinal rule of statutory interpretation that no provisionshould be construed to be entirely redundant”).And there is more, for even assuming, arguendo, someambiguity in the wording of section 926A -- and we find none-- the legislative history strongly supports the view that theamended statute protects only vehicular transportation offirearms and ammunition. To be sure, the unusualcircumstances attending the enactment of section 926A meanthat the kind of legislative history to which we ordinarilyaccord the greatest weight, such as committee reports, isirrelevant here, since section 926A was the result of a lastminuteamendment proposed on the floor of the Senate. SeeDavid T. Hardy, The Firearm Owners’ Protection Act: AHistorical and Legal Perspective, 17 Cumb. L. Rev. 585, 625,677 (1987). Nevertheless, “its late origin has given us alegislative history adequate to address most issues.” Id. at678.11The present version of section 926A was intended toforge a compromise between those who supported the muchbroader version passed earlier and those who favored its totalrepeal. As Senator Kennedy noted when the current, finalversion of section 926A came to a vote in the Senate:I would just like to note that in the compromisereached on the interstate transportation portionsof the bill, it is the clear intent of the Senate thatState and local laws governing thetransportation of firearms are only affected if—first, an individual is transporting a firearm thatis not directly accessible from the passengercompartment of a vehicle. That means it cannotbe in the glove compartment, under the seat, orotherwise within reach. The only exception tothis is when a vehicle does not have a trunk orother compartment separate from the passengerarea. The weapon must be contained in a lockedcontainer other than the glove compartment orconsole. Second, any ammunition beingtransported must be similarly secured.132 Cong. Rec. 9607 (May 6, 1986). 55 In reviewing the legislative history of section 926A,it is crucial to distinguish which of the two versions of section926A a given speaker or committee is describing. As notedabove, the current section 926A narrowed a far moreexpansive version contained in the Firearm Owners’Protection Act. Statements describing the earlier version ofsection 926A reveal that the problem Congress initially12intended to remedy was that “nder current law, suchpersons can be prosecuted under some State and local gunlaws even where they are simply on a hunting trip, travelingto a sporting event, or moving.” See 131 Cong. Rec. S18177-78 (July 9, 1985) (statement of Sen. Dole). Thus, in somestatements made while considering the current version, somemembers, in passing, referred back to this earlier purpose.See, e.g., 132 Cong. Rec. H4102-03 (Jun 24, 1986) (statementof Rep. Hughes) (“[T]he purpose which everyone supportedwas to allow travelers who lawfully possessed weapons totravel to hunting grounds in other States.”). Such statements,which speak retrospectively about an earlier form of section926A, do not bear upon the purpose of the current statute,which was intended as a compromise to address concernsabout the expansiveness of the predecessor entitlement. Thereason why the current language and the previous language ofthe statute were discussed at the same time was that, as part ofa “horse trade” designed to prevent filibuster, the Senate firstpassed FOPA, including the “broader” predecessor of 926A,but immediately acted to amend 926A. See generally Hardy,supra, at 625. Unlike the statements quoted in the ConcurringOpinion, infra, Senator Kennedy’s statements on the floor ofthe Senate, excerpted in full above, reflect the narrowed,compromise version of 926A that is the current federal law.As the final pre-vote statement summarizing the nature of thecompromise reached, Senator Kennedy’s statement is entitledto particular weight. The broader statements of opponents ofthe compromise, by contrast, are, given this legislativehistory, largely irrelevant. Of similarly diminished utility arestatements that appear in committee reports relating to stillearlier versions of the Firearm Owners Protection Act, whichhad a long and tortured history in Congress, see id., though13In light of the plain meaning of the statute, fullycorroborated by the legislative history, we hold that section926A benefits only those who wish to transport firearms invehicles—and not, therefore, any of the kinds of“transportation” that, by necessity, would be involved shoulda person like those represented by the Association wish totransport a firearm by foot through an airport terminal or PortAuthority site. Here, the Association seeks injunctive reliefthat would permit its nonresident members to travel“unmolested” through Port Authority sites such as airports.Self-evidently, such travel must occur outside a vehicle, andthus will, in every instance, bring the Association’s membersoutside the particular class of persons to whom Congressintended to confer a right under section 926A. Consequently,the Association has no federal right to invoke and thus cannotavail itself of section 1983.We are mindful that a divided panel of the SecondCircuit -- in addressing the overall question of whetherpersons like those represented by the Association have aremedy under section 1983 for purported violations of sectionwe note that even committee reports regarding the mostexpansive draft versions of section 926A assume that thestatute’s protection would extend only to vehiculartransportation. See, e.g., S. Rep. No. 98-583, at 28 (1984) (“Itis anticipated that the firearms being transported will be madeinaccessible in a way consistent with the mode oftransportation—in a trunk or locked glove compartment invehicles which have such containers, or in a case or similarreceptacle in vehicles which do not.”) and S. Rep. No. 97-476, at 25 (1982).14926A -- reached the same result as we do, but for differentreasons. See Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d129 (2d Cir. 2010). The majority of that panel held thatsection 926A does not create an enforceable right because itsterms are too vague and amorphous to satisfy the secondBlessing factor. See id. at 139. In a concurrence (thereasoning of which was adopted by the District Court in ourcase), Judge Wesley disagreed that the statute was so vagueand amorphous as to strain judicial competence, butnevertheless found that under the “second step” of theBlessing framework, Congress had impliedly foreclosed asection 1983 action under the statute insofar as it enactedsection 926A against the background of the “remedialmechanisms” of direct appeal and collateral attack of criminalconvictions. Id. at 150. Because, Judge Wesley reasoned,collateral attacks upon criminal convictions are subjected toparticular procedures by the Antiterrorism and EffectiveDeath Penalty Act of 1996 (“AEDPA”), Congress has“impliedly” foreclosed a section 1983 remedy for violationsof rights established by section 926A. Because, however, wefind the first of the Blessing factors dispositive, and concludethat Congress did not intend the amended section 926A tobenefit those who wish to transport firearms outside ofvehicles, we need not reach the concerns that motivated oursister Circuit in Torraco.For the foregoing reasons, we will affirm the judgmentof the District Court.AFFIRMED1Assoc. of N.J. Rifle & Pistol Clubs, Inc. v. Port Authority ofN.Y. & N.J., et al. (No. 12-3621)JORDAN, Circuit Judge, concurring in the judgment.My colleagues in the Majority have set forth aplausible reading of § 926A, but I am not as convinced asthey are that the statute is clearly limited to vehicular travel.Here is the language again:Notwithstanding any other provision of any lawor any rule or regulation of a State or anypolitical subdivision thereof, any person who isnot otherwise prohibited by this chapter fromtransporting, shipping, or receiving a firearmshall be entitled to transport a firearm for anylawful purpose from any place where he maylawfully possess and carry such firearm to anyother place where he may lawfully possess andcarry such firearm if, during such transportationthe firearm is unloaded, and neither the firearmnor any ammunition being transported is readilyaccessible or is directly accessible from thepassenger compartment of such transportingvehicle: Provided, That in the case of a vehiclewithout a compartment separate from thedriver’s compartment the firearm orammunition shall be contained in a lockedcontainer other than the glove compartment orconsole.18 U.S.C. § 926A.2Awkwardly worded though the statute may be, it canreasonably be construed as a comprehensive defense forpeople traveling with firearms. Of particular importance inthis case, § 926A provides that the transported firearms mustnot be either “readily accessible” or “directly accessible fromthe passenger compartment of such transporting vehicle.” Id.The disjunctive “or” can be read as providing two separatelimitations on the transportation of a firearm. That view issupported by contrasting § 926A’s current language with itsprior version, which provided:Any person not prohibited by this chapter fromtransporting, shipping, or receiving a firearmshall be entitled to transport an unloaded, notreadily accessible firearm in interstatecommerce notwithstanding any provision of anylegislation enacted, or any rule or regulationprescribed by any State or political subdivisionthereof.Pub. L. 99-308, 100 Stat. 449 (May 19, 1986). The “notreadily accessible” requirement has remained in the currentversion, with the addition of the not “directly accessible”requirement when transporting a firearm in a passengervehicle. That addition thus can be seen as reinforcing theconclusion that, while the words “directly accessible” dorelate specifically to vehicular travel, the words “readilyaccessible” do not.11 What the Majority calls the “Provided clause” – thatis, the last sentence of the statute, which states: “Provided,That in the case of a vehicle without a compartment separatefrom the driver’s compartment the firearm or ammunition3The Majority calls that reading of the statute“strained.” (Maj. Op. at 8.) I disagree. There aregrammatical difficulties with the statute, no matter how it isapproached, but that does not make the broader readinguntenable.2 Indeed, the disjunctive clauses in § 926A areshall be contained in a locked container other than the glovecompartment or console,” 18 U.S.C. § 926A – does notforeclose the broader reading noted here. That clause can beunderstood as merely an additional limitation if thetransportation of a firearm occurs in a vehicle without acompartment separate from the driver’s compartment.2 The Majority focuses on the word “such” in “suchtransporting vehicle” (Maj. Op. at 8 n.4,), saying that “such”is appropriately used only when there has been a previousreference to “a category of persons or things.” (Id. (internalquotation marks omitted).) My colleagues therefore contendthat “the only possible antecedent to which ‘such transportingvehicle’ could refer is the transporting of a firearm mentionedin the main clause of the statute.” (Id.) But there is noantecedent category of persons or things in the statute. Theword “vehicle” appears nowhere before the phrase “suchtransporting vehicle.” That deficiency leads to at least twointerpretive possibilities: (1) we insert the word “vehicle” intothe statutory language before introducing “such transportingvehicle,” the approach the Majority favors, or (2) weconclude that Congress failed to follow the proper rules ofgrammatical construction when using “such.” Either is apossible reading of the statutory language, and the latter is nomore strained than the former. Rather than wrestle withgrammar, I believe, as discussed below, that we should focuson the one thing that is clear about § 926A: it does not permit§ 1983 liability.4each introduced separately by the word “is” (“is readilyaccessible or is directly accessible from the passengercompartment”). The reading the Majority adopts – which ties“readily accessible” to the passenger compartment of avehicle – would be more persuasive if the statute werephrased with a single copula, thus: “… neither the firearm norany ammunition being transported is readily or directlyaccessible from the passenger compartment of suchtransporting vehicle.” But that is not how Congress wrote thestatute, and, despite my colleagues insistence to the contrary,their reading renders the words “directly accessible”superfluous.Although there is legislative history supporting theMajority’s narrow reading of the protection afforded by§ 926A, there are other portions of the legislative history thatsupport a broader reach for the statute.3 Given such3 Certain parts of the legislative history cast theprotection more broadly, speaking of “travel” generally,rather than specifically of vehicles. See 132 Cong. Rec.H4102-03 (Jun 24, 1986) (statement of Rep. Hughes) (“[T]hepurpose which everyone supported was to allow travelerswho lawfully possessed weapons to travel to hunting groundsin other States ... .”); see also 131 Cong. Rec. S9101-05 (July9, 1985) (statement of Sen. Dole) (explaining that § 926Awas necessary because, “nder current law, such personscan be prosecuted under some State and local gun laws evenwhere they are simply on a hunting trip, traveling to asporting event, or moving”). The Majority attempts todiscount that history as irrelevant because it pertains to theprevious version of the statute. (Maj. Op. at 11 n.5.) Not so.The legislative history for § 926A indicates that its current5language and the previous language were discussed at thesame time and, in fact, before the previous language becamelaw, amendments had already been proposed. See, e.g., 132Cong. Rec. S5358-04 (May 6, 1986) (statement of Sen.Hatch) (explaining that amendments to the previous versionof § 926A would not compromise its substance); 131 Cong.Rec. S9101-05 (July 9, 1985) (statement of Sen. Symms)(discussing proposed amendments to the previous version of§ 926A, which had not yet been passed). Moreover, thelegislative history the Majority leans on is from a singlemember of Congress, which is something we havetraditionally been careful to eschew. See In re Channel HomeCtrs., Inc., 989 F.2d 682, 685 n.2 (3d Cir. 1993) (“[W]erefuse to attribute so much significance to a single worduttered by a single member of Congress, even one in aposition of particular authority with respect to the legislationin question.”); GTE Sylvania, Inc. v. Consumer Prod. SafetyComm’n, 598 F.2d 790, 811 (3d Cir. 1979) (“It goes withoutsaying that the views of a single member of Congressconcerning the appropriate interpretation of a statutoryprovision passed some years earlier are not dispositive.”).Therefore, instead of looking at the previous statutorylanguage as its own piece of legislation, it is more appropriatein this particular case to view § 926A’s legislative history asan amalgamation of the debates from both the current § 926Aand its previous version. As the Majority notes, thecongressional debates from as far back as 1984 discussedvehicular travel. (Maj. Op. at 11 n.5.) That, however, doesnothing to add clarity to § 926A’s meaning. It arguably doesthe opposite, because the more broadly worded version of§ 926A was enacted after those 1984 debates. Given thesubsequent legislative history I have noted here, it is certainly6conflicting history, resort to the legislative record is notparticularly helpful. Cf. Rust v. Sullivan, 500 U.S. 173, 185ambiguous whether Congress meant to limit § 926A, orwhether it sought a broader application to planes, trains, andautomobiles.In fact, the Majority concedes that § 926A can covertravel by planes, trains, and automobiles. (Maj. Op. at 7 n.3.)That concession leads to a puzzlement: given the Majority’sinterpretation of § 926A, how does one get to the airport ortrain station, check one’s luggage containing a firearm, butstill come under the protection of § 926A? It may be easy tosay, as the government did during oral argument, thattravelling by plane is permissible, as long as the airport thetraveler is departing from is within a state in which he ispermitted to carry a firearm. But that hardly seems to be thepurpose of the statute. For if that were the case, the statutewould be of very limited utility, as air passengers were neverlikely to face prosecution by the states whose air space theytraversed. The purpose of the statute seems more likely to bethe protection of, for example, a traveler who lives in Easton,Pennsylvania, and wishes to go hunting in Montana. Theclosest place likely to offer a variety of flights is not in thetraveler’s home state, but is in New Jersey, at the NewarkLiberty International Airport. Accepting the Majority’sconcession, but not its statutory interpretation, that travelercomes within § 926A’s scope. But if the Majority’s statutoryinterpretation is controlling, that traveler faces prosecutionwhen attempting to make his trip, unless he has a carry permitin New Jersey. Despite the Majority’s disclaimer, itsinterpretation of § 926A appears to effectively limit thestatutory protection to travel by private vehicles.7& n.3 (1991) (eschewing reliance on legislative history thatwas conflicting and ambiguous).What can be helpful is a consideration of how othershave read the statutory text. The availability of a broaderreading of the statute is apparent from the Second Circuit’scompeting opinions in Torraco v. Port Authority of New York& New Jersey, 615 F.3d 129 (2d Cir. 2010). The majorityopinion in that case held that § 926A’s language did notindicate a congressional intent to make the statute redressableunder 42 U.S.C. § 1983. Id. at 139. The concurrence, bycontrast, indicated that the statutory language could be read toevince such an intent but that the remedial scheme associatedwith § 926A was such that Congress had foreclosed recourseto § 1983 by implication. Id. at 152. Significantly, no oneon the Torraco panel concluded that § 926A is limited tovehicular travel. One may take issue with the conclusionsthey reached (and they disagreed among themselves), butthose judges were not indulging in an outlandish reading ofthe statute. Nor was the District Court whose reasoning wenow have under review. That Court concluded, in keepingwith the Torraco concurrence, that although § 926A’slanguage could be read to permit a § 1983 action, Congresshad impliedly foreclosed any such private remedy. The Courtdid not adopt an “only for vehicular travelers” view of§ 926A.In short, § 926A is not the plain and unambiguousstatute that the Majority portrays, and it is not a stretch tothink that it was meant to protect interstate travel by many8means, not just in private vehicles.4 Rather than dive into thedifficulty of interpreting the scope of § 926A’s coverage,4 See supra note 3. I note that the interpretation theMajority proposes is difficult to reconcile with our previousdecision in this very case. Revell v. Port Auth. of N.Y. & N.J.,598 F.3d 128, 137 (3d Cir. 2010). Specifically, Revell wasdelayed in traveling from Salt Lake City, Utah, to Allentown,Pennsylvania, and was forced to stay overnight in a hotel inNewark, New Jersey. Id. at 130-31. Within his luggage,which he collected at Newark Airport after realizing he wouldhave to stay overnight, was a firearm in a locked container, aswell as hollow-point ammunition, also in a locked container.Id. at 131. After returning to the airport the next day, he wasarrested by the Port Authority for carrying a firearm without alicense, in violation of New Jersey law. Id. He brought suitand sought redress under § 1983. We held that he did notcome within the ambit of § 926A’s protection because he hadhis firearm and ammunition in his luggage, whichaccompanied him to his hotel room. Id. at 139. “Revell thushad access to his firearm and ammunition during his stay atthe New Jersey hotel, whether or not he in fact accessed themand regardless of whether they were accessible while he wastraveling by plane or van. That crucial fact takes Revelloutside the scope of § 926A’s protection.” Id. at 137. Wethus concluded that it was the prolonged time Revell had withhis luggage that brought him outside of § 926A’s protectionbecause he had ready access to his firearm. Under theMajority’s interpretation of § 926A, our decision in Revellshould not have hinged upon Revell spending the night in hishotel with his suitcase; we should have concluded that, assoon as he was outside of an automobile, he was outside the9which is an unnecessary adventure at present, I would affirmthe District Court’s conclusion that § 926A simply does notsupport a claim for relief under § 1983.As explained by the Majority, § 1983 provides a causeof action against anyone who, acting under color of state law,deprives a person “of any rights, privileges, or immunitiessecured by the Constitution and laws.” 42 U.S.C. § 1983.Redress under § 1983 is limited, however, to a “violation of afederal right, not merely a violation of federal law,” andcourts must determine whether a federal statute confers aredressable federal “right.” Blessing v. Freestone, 520 U.S.329, 340 (1997) (emphasis omitted). Again as the Majoritynotes, the Supreme Court’s decision in Blessing lays out threefactors to consider when determining whether “[a] statutecreates enforceable rights, privileges, or immunities withinthe meaning of § 1983.” Pa. Pharmacists Ass’n v. Houstoun,283 F.3d 531, 535 (3d Cir. 2002) (internal quotation marksomitted). First, “Congress must have intended that theprovision in question benefit the plaintiff”; second “theplaintiff must demonstrate that the right assertedly protectedby the statute is not so ‘vague and amorphous’ that itsenforcement would strain judicial competence”; and third“the statute must unambiguously impose a binding obligationon the States ... [;] the provision giving rise to the assertedright must be couched in mandatory, rather than precatory,terms.” Blessing, 520 U.S. at 340-41. In Gonzaga Universityv. Doe, the Supreme Court explained that a plaintiff cannotsucceed just by falling within the general zone of interest thatthe statute is intended to protect. 536 U.S. 273, 283 (2002).protection of § 926A. But that is not the interpretative routewe took.10Rather, the statute must “unambiguously confer[] [a] right tosupport a cause of action brought under § 1983.” Id. Wehave interpreted Gonzaga and Blessing to require, in additionto satisfaction of the three Blessing factors, that a statutecontain “rights-creating language which clearly imparts anindividual entitlement with an unmistakable focus on thebenefitted class.” Grammer v. John J. Kane Reg’l Ctrs.-GlenHazel, 570 F.3d 520, 526 (3d Cir. 2009) (internal quotationmarks omitted).The paradigmatic examples of such language are foundin Title VI of the Civil Rights Act of 1964, which states that“No person in the United States shall ... be subjected todiscrimination under any program or activity receivingFederal financial assistance” on the basis of race, color, ornational origin, 42 U.S.C. § 2000d, and Title IX of theEducation Amendments of 1972, which states that “Noperson in the United States shall, on the basis of sex ... besubjected to discrimination under any education program oractivity receiving Federal financial assistance,” 20 U.S.C.§ 1681(a). The inquiry into whether Congress intended tocreate a federal right redressable under § 1983 overlaps and isinformed by the precedents on implied rights of action.Gonzaga, 536 U.S. at 284. For example, in Gonzaga, theSupreme Court examined the Family Educational Rights andPrivacy Act of 1974 (“FERPA”), which states that “[n]ofunds shall be made available” to any “educational agency orinstitution,” which has a prohibited “policy or practice.” 20U.S.C. § 1232g(b)(1). The Court concluded that thatlanguage did not contain sufficient rights-creating language,Gonzaga, 536 U.S. at 287, and thus did not create rightsenforceable under § 1983. Id. at 290.11I am unconvinced that § 926A contains the requisite“rights-creating language” to “clearly impart[] an individualentitlement with an unmistakable focus on the benefittedclass.” Grammer, 570 F.3d at 526. While the statute doesspeak specifically of benefiting a person, see 18 U.S.C.§ 926A (stating that “any person who is not otherwiseprohibited by this chapter from transporting, shipping, orreceiving a firearm shall be entitled” to transport thatfirearm), there is a crucial difference between the language of§ 926A and the language used in Titles VI and IX. Section926A appears to be framed only as a legal defense to a stateprosecution for illegal firearm possession. Its location in thecriminal code indicates that Congress did not intend to conferupon travelers a new federal cause of action, but wanted onlyto shield travelers from a certain variety of criminal liability.It is noteworthy in this regard that in 18 U.S.C. § 925A, astatute under the same title and one section away from§ 926A, Congress provided a specific civil remedy to peoplewho are subject to the “erroneous denial of [a] firearm,”saying, that such a personmay bring an action against the State or politicalsubdivision responsible for providing theerroneous information, or responsible fordenying the transfer, or against the UnitedStates, as the case may be, for an order directingthat the erroneous information be corrected orthat the transfer be approved, as the case maybe.18 U.S.C. § 925A(2). So, Congress knew how to beunambiguous about conferring new private rights of action inthis field, when it wanted to grant them.12Moreover, the tremendous impracticality of subjectinglocal law enforcement officials to liability on the basis of§ 926A militates against any conclusion that a redressablesubstantive right was intended by Congress. As we explainedthe last time this case was before us, threatening policeofficers with § 1983 liability would force them to “investigatethe laws of the jurisdiction from which the traveler wastraveling and the laws of the jurisdiction to which the travelerwas going prior to making an arrest.” Revell v. Port Auth. ofN.Y. & N.J., 598 F.3d 128, 137 n.15 (3d Cir. 2010) (internalquotation marks omitted). Without some clearer expressionof congressional intent, I cannot conclude that § 926A wasmeant to impose on the police such a potentially burdensomerequirement, with the risk of civil liability hanging over them.Cf. Gonzaga, 536 U.S. at 286 (“[W]here the text and structureof a statute provide no indication that Congress intends tocreate new individual rights, there is no basis for a private suit… under § 1983.”).Because Congress did not, in enacting § 926A,unambiguously confer upon travelers any right redressableunder § 1983, I would affirm the decision of the DistrictCourt on that basis, and on that basis alone. I thereforeconcur in the judgment. Quote Share this post Link to post Share on other sites
TheLugNutZ 21 Posted September 17, 2013 cliffs? sorry @ work Quote Share this post Link to post Share on other sites
DirtyDigz 1,793 Posted September 17, 2013 So by the 3rd cir. appeals court's rationale that 926A only protects interstate firearms transport "inside a vehicle", does this also mean that travelers who stop overnight for lodging and remove their firearms from their vehicles are also subject to arrest/charges? Edit - read further into the commentary - yes, they specifically mention that examples as not being protected either. Quote Share this post Link to post Share on other sites
DirtyDigz 1,793 Posted September 17, 2013 cliffs? sorry @ work 926A only protects travelers who are "inside a vehicle with the firearm inaccessible". As soon as you step outside of the vehicle with the firearm you are no longer protected by 926A. Quote Share this post Link to post Share on other sites
leahcim 673 Posted September 17, 2013 But it does not define "vehicle." Do you think any vehicle (bicycle, segway, golf cart) as long as it is locked up and neither readily or directly accessible? I guess this is the danger of non-lawyers trying to understand the law. Seems a little absurd that one should need to retain counsel just to figure out how to legally transport. Quote Share this post Link to post Share on other sites
ryan_j 0 Posted September 17, 2013 Screw the Port Authority. They are bloated and extremely corrupt anyway, and the less of my money I hand over to them the better. I will be flying out of ABE from now on. Quote Share this post Link to post Share on other sites
njJoniGuy 2,129 Posted September 17, 2013 never mind Quote Share this post Link to post Share on other sites
plode 0 Posted September 17, 2013 Screw the Port Authority. They are bloated and extremely corrupt anyway, and the less of my money I hand over to them the better. I will be flying out of ABE from now on. Not to worry, the Port Authority is a little more bloated, it now has control over the A.C. Airport too. Not that the SJTA was any better...just as bloated and corrupt. Quote Share this post Link to post Share on other sites
ryan_j 0 Posted September 17, 2013 Not to worry, the Port Authority is a little more bloated, it now has control over the A.C. Airport too. Not that the SJTA was any better...just as bloated and corrupt. Yeah they can keep that. ABE is in Pennsylvania and about the same travel time as Newark for me. Quote Share this post Link to post Share on other sites
kman 56 Posted September 17, 2013 Time to appeal to the Supreme Court. Or fix it in congress. Quote Share this post Link to post Share on other sites
mipafox 438 Posted September 17, 2013 Yeah they can keep that. ABE is in Pennsylvania and about the same travel time as Newark for me. If it's the same travel time, leave two hours later than you would for Newark. I leave my house about an hour before my plane takes off at ABE. You park less than 100 yards from the terminal. I don't even print my tickets online since I have to go to the counter anyway for tell them I have guns. They don't give a flying fuck about your guns, they will simply help you if you don't follow the rules: I had a mess of uncovered loaded mag once (loaded mags must be covered per TSA) and they helped me unload them and box the ammo since I didn't want them to put tape over them. That's service. Make sure you get there at least half an hour before your plane takes off in case they are busy. Yes, you can carry before you go through the checkpoint into secure areas. I prefer to disarm and arm in airports where there is no state law against it. Anybody that flies out of Jersey or NY is fucking crazy. I don't care how many times you have done it, I've done it for 40 years myself. You're crazy. Quote Share this post Link to post Share on other sites
checko 180 Posted September 17, 2013 If it's the same travel time, leave two hours later than you would for Newark. I leave my house about an hour before my plane takes off at ABE. You park less than 100 yards from the terminal. I don't even print my tickets online since I have to go to the counter anyway for tell them I have guns. They don't give a flying fugg about your guns, they will simply help you if you don't follow the rules: I had a mess of uncovered loaded mag once (loaded mags must be covered per TSA) and they helped me unload them and box the ammo since I didn't want them to put tape over them. That's service. Make sure you get there at least half an hour before your plane takes off in case they are busy. Yes, you can carry before you go through the checkpoint into secure areas. I prefer to disarm and arm in airports where there is no state law against it. Anybody that flies out of Jersey or NY is friggin crazy. I don't care how many times you have done it, I've done it for 40 years myself. You're crazy. I've never had to travel with firearms. I assume Philly would be the obvious choice? Quote Share this post Link to post Share on other sites
mipafox 438 Posted September 17, 2013 I've never had to travel with firearms. I assume Philly would be the obvious choice? You are in Somerset. I am assuming Philly and ABE are roughly the same distance. Fly out of ABE. Now, with ABE, you might need an extra connection depending on where you are going. But that beats the traffic, parking, annoying and smelly people, and two hours of bullshit you put up with at Philly. Go ABE. You won't believe what it is like. Quote Share this post Link to post Share on other sites
mipafox 438 Posted September 17, 2013 Just don't tell anybody It's for Citizens and gun people everywhere. Not a party we want the general jersey serfs to crash and burn. Quote Share this post Link to post Share on other sites
Night Prowler 0 Posted September 17, 2013 For some flights out of ABE they put you on a bus and transfer you to Newark. I don't know why but just a heads up. Quote Share this post Link to post Share on other sites
mipafox 438 Posted September 17, 2013 For some flights out of ABE they put you on a bus and transfer you to Newark. I don't know why but just a heads up. That is incredibly rare. I have flown out of ABE dozens of times and never even seen that option come up once. But you may be referring to a story I know. A person planning a short flight to Ohio or Pittsburgh got a quote of like $750 flying out of Newark and $250 or so out of ABE. And the ABE flight included a bus trip to Newark for the exact same flight out of Newark. I have NEVER run into that. So it's very funny, but it sure as hell isn't common. Quote Share this post Link to post Share on other sites
Night Prowler 0 Posted September 17, 2013 That is incredibly rare. I have flown out of ABE dozens of times and never even seen that option come up once. But you may be referring to a story I know. A person planning a short flight to Ohio or Pittsburgh got a quote of like $750 flying out of Newark and $250 or so out of ABE. And the ABE flight included a bus trip to Newark for the exact same flight out of Newark. I have NEVER run into that. So it's very funny, but it sure as hell isn't common. It never was an option. Happened about 2 years ago on a flight to Florida. Strangest thing. Quote Share this post Link to post Share on other sites
Tango Charlie 0 Posted September 17, 2013 OK, I'm a little dense due to the fact that I'm coming down with the flu... Does this mean that I CAN'T fly out of Newark Airport with a firearm or does this ruling affect non-NJ citizens? Quote Share this post Link to post Share on other sites
mark_anthony_78 0 Posted September 17, 2013 I prefer to disarm and arm in airports where there is no state law against it. So how exactly do you do that without drawing attention? I assume you have to unbox your ammo, load your mags, etc? Just make a pit stop in the restroom for all of that? Quote Share this post Link to post Share on other sites
mipafox 438 Posted September 18, 2013   So how exactly do you do that without drawing attention?  I assume you have to unbox your ammo, load your mags, etc?  Just make a pit stop in the restroom for all of that?  When arriving by plane, it's the restroom. I have my primary in a case that I can get out of my luggage in the upright position. When departing by plane, it depends. I have no problem carrying in an airport to pick up people, for example, but I don't want to handle or clear guns in public. If it's daytime and a very safe airport I might disarm in my car to avoid the nonsense. If not, bathroom. For some reason I just feel I need to be armed leaving an airport more than entering one. Not sure if that makes sense. Oh, and loaded mags are fine by TSA if the ammo is covered - like with a mag cover. And that's what I do. Ammo must be "contained" or something. Check the website before you fly and fly out of a friendly airport and no troubles. Quote Share this post Link to post Share on other sites
ryan_j 0 Posted September 18, 2013 OK, I'm a little dense due to the fact that I'm coming down with the flu... Does this mean that I CAN'T fly out of Newark Airport with a firearm or does this ruling affect non-NJ citizens? I think it's only nonresidents that are affected by this. Quote Share this post Link to post Share on other sites
SJG 253 Posted September 18, 2013 The statute does not protect anyone, residents or non residents from transporting a firearm in or out of the terminal in NJ unless you have a carry permit. The way I read this, you are not protected when you transport the weapon inside the airport to check it in or retrieve it after your flight so long as you are in the airport. This completely changes things in NJ, regarding what we all thought. Quote Share this post Link to post Share on other sites
67gtonut 847 Posted September 18, 2013 Meh..... Not gonna change what I do Quote Share this post Link to post Share on other sites
springfieldxds 0 Posted September 25, 2013 So are they going to arrest everyone trying to fly out of nj with a firearm? And does this ruling prove we can drive into pa with our firearms as long as we don't get out of the vehicle? Quote Share this post Link to post Share on other sites
raz-0 1,256 Posted September 26, 2013 So are they going to arrest everyone trying to fly out of nj with a firearm? And does this ruling prove we can drive into pa with our firearms as long as we don't get out of the vehicle? No the ruling means that essentially all methods of mass transit including planes do not provide safe passage, and attempts to use them during an interstate trip opens you to the peril of state and local laws. If you read actual 926a, it appears that it originally did not make any allowances for vehicles without separate storage compartments like a trunk or cargo area. It appears that in adding them and jsutifying amendments, they added verbiage that referenced a vehicle without cleaning up the grammar. I think the third circuit is on very shaky ground judicially as the act says it covers all interstate transport, then talks about a specific condition regarding vehicles with certain characteristics. Essentially nothing changes for us since we are in NJ to begin with, so we get no safe passage protection until we leave the state and never did. It means a lot if you cross a state line before hopping a plane as based on the ruling, you are taking multiple trips under certain conditions. For anything with checked baggage, trip one is from home to the terminal in another state, trip two is form the terminal to the other terminal. Trip 3 is from the second terminal to your destination. Similar for overnight stays replacing terminals with hotels. Quote Share this post Link to post Share on other sites
ryan_j 0 Posted September 26, 2013 The statute does not protect anyone, residents or non residents from transporting a firearm in or out of the terminal in NJ unless you have a carry permit. The way I read this, you are not protected when you transport the weapon inside the airport to check it in or retrieve it after your flight so long as you are in the airport. This completely changes things in NJ, regarding what we all thought. I kind of figured so which is why I will be flying out of ABE from now on. Screw the port authority. Quote Share this post Link to post Share on other sites
springfieldxds 0 Posted September 27, 2013 No the ruling means that essentially all methods of mass transit including planes do not provide safe passage, and attempts to use them during an interstate trip opens you to the peril of state and local laws. If you read actual 926a, it appears that it originally did not make any allowances for vehicles without separate storage compartments like a trunk or cargo area. It appears that in adding them and jsutifying amendments, they added verbiage that referenced a vehicle without cleaning up the grammar. I think the third circuit is on very shaky ground judicially as the act says it covers all interstate transport, then talks about a specific condition regarding vehicles with certain characteristics. Essentially nothing changes for us since we are in NJ to begin with, so we get no safe passage protection until we leave the state and never did. It means a lot if you cross a state line before hopping a plane as based on the ruling, you are taking multiple trips under certain conditions. For anything with checked baggage, trip one is from home to the terminal in another state, trip two is form the terminal to the other terminal. Trip 3 is from the second terminal to your destination. Similar for overnight stays replacing terminals with hotels. I'm mainly wondering if it changes anything with taking our firearms to PA, I know a lot of lawyers believe fopa protects us as long as we leave from our house and go straight to PA with out any stops Quote Share this post Link to post Share on other sites
ryan_j 0 Posted September 28, 2013 I'm mainly wondering if it changes anything with taking our firearms to PA, I know a lot of lawyers believe fopa protects us as long as we leave from our house and go straight to PA with out any stops In my opinion the transport out of state by car depends on whether or not "place" means "state" or simply an actual place where your firearms are legal such as your home. I am inclined to think it is the latter but some are saying it is the former. It also depends on whether NJ can restrict you to going directly to and from an exempted place. I don't know if they can regulate that across state lines. However other states have tried to do that somewhat successfully such as NY in Beach v Kelly where a NYC resident had his premises handgun license revoked because he took a flight to Nevada with his gun, and the license did not authorize him to do so. It's going to get interesting if and when someone has to challenge the transport laws in NJ and use FOPA as a defense. Quote Share this post Link to post Share on other sites
raz-0 1,256 Posted September 28, 2013 I'm mainly wondering if it changes anything with taking our firearms to PA, I know a lot of lawyers believe fopa protects us as long as we leave from our house and go straight to PA with out any stops The ruling means that if you remove your guns from a vehicle to put them in another (I.e. checked baggage), fopa doesn't protect you and you are subject to the laws of that state and municipality where you do it. Going from places like ny, nj, etc to pa shouldn't be a serious problem. The other direction definitely is. The ruling undermines the whole intent which was to eliminate having to know a vast patchwork of laws to travel with firearms. Quote Share this post Link to post Share on other sites