Association of New Jersey Rifle & Pistol Clubs v. Port Authority

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 12-3621

____________

ASSOCIATION OF NEW JERSEY RIFLE AND PISTOL

CLUBS INC.,

Appellant

v.

PORT AUTHORITY OF NEW YORK AND NEW JERSEY,

and

SCOTT ERICKSON

____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-06-cv-00402)

District Judge: Hon. Katharine S. Hayden

____________

Argued and Submitted May 31, 2013

Before: JORDAN and VANASKIE, Circuit Judges, and

RAKOFF,* District Judge.

(Filed: September 13, 2013)

____________

OPINION OF THE COURT

____________

Richard E. Gardiner, Esq. - Argued

3925 Chain Bridge Road, Suite 403

Fairfax, VA. 22030

Counsel for Appellant

Thomas R. Brophy, Esq. – Argued

Port Authority of New York & New Jersey

One Path Plaza

Jersey City, NJ 07306

Counsel for Appellees

RAKOFF, District Judge.

Section 926A of Title 18 of the United States Code

confers the following protection upon those who wish to

engage in the interstate transportation of firearms:

Notwithstanding any other provision of any law

or any rule or regulation of a State or any

political subdivision thereof, any person who is

*

The Honorable Jed S. Rakoff, District Judge for the

United States District Court for the Southern District of New

York, sitting by designation.

2

not otherwise prohibited by this chapter from

transporting, shipping, or receiving a firearm

shall be entitled to transport a firearm for any

lawful purpose from any place where he may

lawfully possess and carry such firearm to any

other place where he may lawfully possess and

carry such firearm if, during such transportation

the firearm is unloaded, and neither the firearm

nor any ammunition being transported is readily

accessible or is directly accessible from the

passenger compartment of such transporting

vehicle: Provided, That in the case of a vehicle

without a compartment separate from the

driver’s compartment the firearm or

ammunition shall be contained in a locked

container other than the glove compartment or

console.

The provision amended a far more expansive entitlement to

“transport an unloaded, not readily accessible firearm in

interstate commerce,” which was passed just two months

earlier as part of the Firearms Owners’ Protection Act. See

Pub. 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, as

amended, creates a right enforceable by the appellant, the

Association of New Jersey Rifle and Pistol Clubs Inc. (“the

Association”), pursuant to 42 U.S.C. § 1983.

The Association’s cause of action seeks injunctive

relief pursuant to 42 U.S.C. § 1983 that would enjoin the Port

Authority of New York and New Jersey and Scott Erickson

(collectively, the “Port Authority”) from enforcing certain

3

New Jersey statutes, which prohibit possession of a firearm

without a permit and possession of hollow-point

ammunition,1 against non-resident members of the

Association “who are entitled to transport firearms through

New Jersey pursuant to 18 U.S.C. § 926A.” J.A. at 26-30.

The Association seeks this relief because, it alleges, the Port

Authority enforces these state gun laws in Newark Airport

against non-resident members of the Association, who are

thus “coerced and intimidated into taking one of two courses

of action: (i) When traveling with firearms . . . they avoid

Newark Airport and other Port Authority sites to avoid

unlawful arrest and/or detention . . . even though they have a

right . . . to travel unmolested through such locations with

firearms; or (ii) . . . they refrain from possessing firearms

when traveling through Newark Airport and other Port

Authority sites . . . .” Id. at 29.2

1

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 this

Court reversed the District Court’s dismissal of this case on

standing grounds and directed the District Court to permit the

Association to amend its complaint to allege facts sufficient

to demonstrate standing. See Revell v. Port Auth. of N.Y. and

N.J., 321 F. App’x 113 (3d Cir. 2009). The Association did so

by properly asserting the rights of its non-resident members.

While the Concurring Opinion below references a second

reported opinion in Revell, the panel in that case expressly

declined to reach the question before us. See Revell v. Port

Auth. of N.Y. and N.J., 598 F.3d 128, 136 n.13 (3d Cir. 2010).

4

On August 20, 2012, the district court granted the Port

Authority’s motion for summary judgment, holding that

section 926A does not create a right enforceable under section

1983. Because we hold that, in enacting the amended section

926A, Congress did not intend to confer the right upon the

Association’s non-resident members that the Association

seeks to enforce in this case, we affirm.

Section 1983 imposes liability on anyone who, under

color of state law, deprives a person “of any rights, privileges,

or immunities secured by the Constitution and laws” of the

United States. On its face, section 1983 provides a remedy for

a 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 federal

statute creates a federal right enforceable under section 1983

is a two-step process.

The first step is to determine whether the federal

statute creates a federal right. To make this determination,

three requirements must be met. “First, Congress must have

intended that the provision in question benefit the plaintiff.

Second, the plaintiff must demonstrate that the right

assertedly protected by the statute is not so ‘vague and

amorphous’ that its enforcement would strain judicial

competence. Third, the statute must unambiguously impose a

binding obligation on the States . . . [i.e., it] must be couched

in mandatory, rather than precatory, terms.” Blessing, 520

U.S. at 340–41 (internal citations omitted).

If all three requirements are met, a rebuttable

presumption arises that the statute creates a right enforceable

5

under section 1983. In such circumstances, “[p]laintiffs suing

under § 1983 do not have the burden of showing an intent to

create a private remedy because § 1983 generally supplies a

remedy for the vindication of rights secured by federal

statutes.” Gonzaga Univ., 536 U.S. at 284. However, in the

second step of the Blessing analysis, this presumption may be

overcome if a defendant shows that Congress has either

expressly or impliedly foreclosed the section 1983 remedy for

that particular right. Blessing, 520 U.S. at 341. “Implied”

foreclosure of a remedy -- the more elusive rebuttal to the

presumption that a federal right has a remedy under section

1983 -- means that notwithstanding the fact that Congress

created an individual right with a given statute, Congress also

“creat[ed] a comprehensive enforcement scheme that is

incompatible with individual enforcement under § 1983.” Id.

In our view, plaintiff here has failed to satisfy even the

first requirement of the first step of the process, i.e., that

Congress intended that section 926A benefit this particular

plaintiff. This is evident from the plain meaning of the statute.

Although the unwieldy sentence that comprises section 926A

is drafted in a roundabout way, on a careful reading its

language is clear and unambiguous. It begins by establishing

a clear positive entitlement: a person who meets its

requirements “shall be entitled” to transport firearms in

certain circumstances. Cf. Gonzaga, 536 U.S. at 287

(contrasting the rights-creating language of “no person . . .

shall be . . . subjected” with language typical of spending

clause statutes, e.g., “no funds shall be made available.”). But

the part of the sentence that immediately follows expressly

conditions this entitlement as only being operative “if, during

such transportation the firearm is unloaded, and neither the

firearm nor any ammunition being transported is readily

6

accessible or is directly accessible from the passenger

compartment of such transporting vehicle.” 18 U.S.C. § 926A

(emphasis supplied).

It is plain from the latter condition that the statute

protects only transportation of a firearm in a vehicle, and

requires that the firearm and ammunition be neither readily

nor directly accessible from the passenger compartment of

such vehicle. In particular, the word “such,” in “such

transporting vehicle,” by definition refers back to earlier

part(s) of the sentence, and the only parts it could possibly

refer to are the parts referring to the transportation of a

firearm or ammunition. The use of “such” therefore makes

clear that the transportation the statute protects must occur in

a “transporting vehicle.”

Moreover, if there were any doubt about the statute’s

vehicular limitation, the final part of the sentence that follows

-- the “Provided” clause -- again makes clear that only

vehicular transportation is included in the statutory grant. It

states: “Provided, That in the case of a vehicle without a

compartment separate from the driver’s compartment the

firearm or ammunition shall be contained in a locked

container other than the glove compartment or console.” 18

U.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 ambulatory

plaintiff who intends to transit through Newark Airport is

outside the coverage of the statute.3 But it is precisely such

3

We note that our reading of the statute is perfectly

consistent with the view that the statute might protect travel

7

people whose alleged rights under section 926A the

Association seeks here to vindicate.

Despite the plain meaning of the statute, the

Association urges this Court to conclude that the “readily

accessible” clause is “grammatically disconnected” from the

rest of the statute and thus that the “operative entitlement” of

the statute contemplates non-vehicular transportation of

firearms. Aside from its violation of the most elementary

rules of grammar and punctuation, this argument posits the

absurdity that Congress intended -- in a single sentence, no

less -- to create two disjunctive categories, one cabined with

all kinds of conditions and the other with none. Thus, on this

reading, the Association argues that because the first clause of

the sentence is divorced from the rest, its members should be

able to walk through Newark airport with their firearms in,

for example, their wheeled luggage or in holsters attached to

their belts. To account for the remainder of the sentence, the

Association argues that it simply provides limitations on the

special case of firearms and ammunition that are transported

by vehicle.

This otherwise grammatically strained disjunctive

reading of the statute, the Association argues, avoids the sin

of rendering “directly” redundant to “readily,” since both

that occurs via aircraft or train—each of these modes of travel

might be considered “vehicular.” The relevant question is

whether ambulatory travel (i.e., walking) through an airport

terminal is also protected by the statute.

8

terms purportedly convey the same meaning.4 Yet “readily”

and “directly” are clearly not redundant adverbs, and reading

them both as part of the same limitation upon the permissible

accessibility of a firearm in a “transporting vehicle” offends

no grammatical rule. On the contrary, reading “readily

accessible” and “directly accessible” as both modifying the

extent to which firearms and ammunition can be “accessible

from the passenger compartment of such transporting

vehicle” gives meaning to all of the statute’s terms: a key

requirement of any statutory construction. That is to say,

reading them as part of the same continuous entitlement to

transport firearms in vehicles (i.e., the guns and ammunition

must be neither readily nor directly accessible from the

passenger compartment of a vehicle) renders neither adverb

superfluous, and permits the Court to make sense of the final

clause “such transporting vehicle” without re-writing the

statute to read “a transporting vehicle,” as the Association’s

reading would in effect require.

4

While the Concurring Opinion states that the

Association’s reading of the statute is not “untenable,” we

respectfully disagree. The critical word is “such” in “such

transporting vehicle.” “Such is properly used as an adjective

when reference has previously been made to a category of

persons or things.” Bryan A. Garner, A Dictionary of Modern

Legal Usage, 526-27 (1987). As noted, the only possible

antecedent to which “such transporting vehicle” could refer is

the transporting of a firearm mentioned in the main clause of

the statute, from which it follows that both of the limiting

conditions following the word “if” refer to vehicle

transportation.

9

Furthermore, the Association’s reading is unable to

sensibly account for the “Provided” clause (“Provided, That

in the case of a vehicle without a compartment . . .”). Under

our straightforward reading, the proviso presumes, once

more, that the protected transportation must be in a vehicle.

But under the Association’s reading, the proviso is entirely

unnecessary, for while, e.g., storage of a firearm in a glove

box would possibly evade the limitation that firearms not be

“directly” accessible in a vehicle, storage in the glove box

would already be prohibited by the supposedly freestanding

limitation that the firearms cannot be “readily accessible.” It

is not credible that Congress would have added the entire

“Provided” clause when, on the Association’s reading, it was

entirely 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 provision

should be construed to be entirely redundant”).

And there is more, for even assuming, arguendo, some

ambiguity in the wording of section 926A -- and we find none

-- the legislative history strongly supports the view that the

amended statute protects only vehicular transportation of

firearms and ammunition. To be sure, the unusual

circumstances attending the enactment of section 926A mean

that the kind of legislative history to which we ordinarily

accord the greatest weight, such as committee reports, is

irrelevant here, since section 926A was the result of a last-

minute amendment proposed on the floor of the Senate. See

David T. Hardy, The Firearm Owners’ Protection Act: A

Historical and Legal Perspective, 17 Cumb. L. Rev. 585, 625,

677 (1987). Nevertheless, “its late origin has given us a

legislative history adequate to address most issues.” Id. at

678.

10

The present version of section 926A was intended to

forge a compromise between those who supported the much

broader version passed earlier and those who favored its total

repeal. As Senator Kennedy noted when the current, final

version of section 926A came to a vote in the Senate:

I would just like to note that in the compromise

reached on the interstate transportation portions

of the bill, it is the clear intent of the Senate that

State and local laws governing the

transportation of firearms are only affected if—

first, an individual is transporting a firearm that

is not directly accessible from the passenger

compartment of a vehicle. That means it cannot

be in the glove compartment, under the seat, or

otherwise within reach. The only exception to

this is when a vehicle does not have a trunk or

other compartment separate from the passenger

area. The weapon must be contained in a locked

container other than the glove compartment or

console. Second, any ammunition being

transported must be similarly secured.

132 Cong. Rec. 9607 (May 6, 1986). 5

5

In reviewing the legislative history of section 926A,

it is crucial to distinguish which of the two versions of section

926A a given speaker or committee is describing. As noted

above, the current section 926A narrowed a far more

expansive version contained in the Firearm Owners’

Protection Act. Statements describing the earlier version of

section 926A reveal that the problem Congress initially

11

intended to remedy was that “[u]nder current law, such

persons can be prosecuted under some State and local gun

laws even where they are simply on a hunting trip, traveling

to a sporting event, or moving.” See 131 Cong. Rec. S18177-

78 (July 9, 1985) (statement of Sen. Dole). Thus, in some

statements made while considering the current version, some

members, in passing, referred back to this earlier purpose.

See, e.g., 132 Cong. Rec. H4102-03 (Jun 24, 1986) (statement

of Rep. Hughes) (“[T]he purpose which everyone supported

was to allow travelers who lawfully possessed weapons to

travel to hunting grounds in other States.”). Such statements,

which speak retrospectively about an earlier form of section

926A, do not bear upon the purpose of the current statute,

which was intended as a compromise to address concerns

about the expansiveness of the predecessor entitlement. The

reason why the current language and the previous language of

the statute were discussed at the same time was that, as part of

a “horse trade” designed to prevent filibuster, the Senate first

passed 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 Concurring

Opinion, infra, Senator Kennedy’s statements on the floor of

the 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 the

compromise reached, Senator Kennedy’s statement is entitled

to particular weight. The broader statements of opponents of

the compromise, by contrast, are, given this legislative

history, largely irrelevant. Of similarly diminished utility are

statements that appear in committee reports relating to still

earlier versions of the Firearm Owners Protection Act, which

had a long and tortured history in Congress, see id., though

12

In light of the plain meaning of the statute, fully

corroborated by the legislative history, we hold that section

926A benefits only those who wish to transport firearms in

vehicles—and not, therefore, any of the kinds of

“transportation” that, by necessity, would be involved should

a person like those represented by the Association wish to

transport a firearm by foot through an airport terminal or Port

Authority site. Here, the Association seeks injunctive relief

that would permit its nonresident members to travel

“unmolested” through Port Authority sites such as airports.

Self-evidently, such travel must occur outside a vehicle, and

thus will, in every instance, bring the Association’s members

outside the particular class of persons to whom Congress

intended to confer a right under section 926A. Consequently,

the Association has no federal right to invoke and thus cannot

avail itself of section 1983.

We are mindful that a divided panel of the Second

Circuit -- in addressing the overall question of whether

persons like those represented by the Association have a

remedy under section 1983 for purported violations of section

we note that even committee reports regarding the most

expansive draft versions of section 926A assume that the

statute’s protection would extend only to vehicular

transportation. See, e.g., S. Rep. No. 98-583, at 28 (1984) (“It

is anticipated that the firearms being transported will be made

inaccessible in a way consistent with the mode of

transportation—in a trunk or locked glove compartment in

vehicles which have such containers, or in a case or similar

receptacle in vehicles which do not.”) and S. Rep. No. 97-

476, at 25 (1982).

13

926A -- reached the same result as we do, but for different

reasons. See Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d

129 (2d Cir. 2010). The majority of that panel held that

section 926A does not create an enforceable right because its

terms are too vague and amorphous to satisfy the second

Blessing factor. See id. at 139. In a concurrence (the

reasoning of which was adopted by the District Court in our

case), Judge Wesley disagreed that the statute was so vague

and amorphous as to strain judicial competence, but

nevertheless found that under the “second step” of the

Blessing framework, Congress had impliedly foreclosed a

section 1983 action under the statute insofar as it enacted

section 926A against the background of the “remedial

mechanisms” of direct appeal and collateral attack of criminal

convictions. Id. at 150. Because, Judge Wesley reasoned,

collateral attacks upon criminal convictions are subjected to

particular procedures by the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), Congress has

“impliedly” foreclosed a section 1983 remedy for violations

of rights established by section 926A. Because, however, we

find the first of the Blessing factors dispositive, and conclude

that Congress did not intend the amended section 926A to

benefit those who wish to transport firearms outside of

vehicles, we need not reach the concerns that motivated our

sister Circuit in Torraco.

For the foregoing reasons, we will affirm the judgment

of the District Court.

AFFIRMED

14

Assoc. of N.J. Rifle & Pistol Clubs, Inc. v. Port Authority of

N.Y. & N.J., et al. (No. 12-3621)

JORDAN, Circuit Judge, concurring in the judgment.

My colleagues in the Majority have set forth a

plausible reading of § 926A, but I am not as convinced as

they are that the statute is clearly limited to vehicular travel.

Here is the language again:

Notwithstanding any other provision of any law

or any rule or regulation of a State or any

political subdivision thereof, any person who is

not otherwise prohibited by this chapter from

transporting, shipping, or receiving a firearm

shall be entitled to transport a firearm for any

lawful purpose from any place where he may

lawfully possess and carry such firearm to any

other place where he may lawfully possess and

carry such firearm if, during such transportation

the firearm is unloaded, and neither the firearm

nor any ammunition being transported is readily

accessible or is directly accessible from the

passenger compartment of such transporting

vehicle: Provided, That in the case of a vehicle

without a compartment separate from the

driver’s compartment the firearm or

ammunition shall be contained in a locked

container other than the glove compartment or

console.

18 U.S.C. § 926A.

1

Awkwardly worded though the statute may be, it can

reasonably be construed as a comprehensive defense for

people traveling with firearms. Of particular importance in

this case, § 926A provides that the transported firearms must

not be either “readily accessible” or “directly accessible from

the passenger compartment of such transporting vehicle.” Id.

The disjunctive “or” can be read as providing two separate

limitations on the transportation of a firearm. That view is

supported by contrasting § 926A’s current language with its

prior version, which provided:

Any person not prohibited by this chapter from

transporting, shipping, or receiving a firearm

shall be entitled to transport an unloaded, not

readily accessible firearm in interstate

commerce notwithstanding any provision of any

legislation enacted, or any rule or regulation

prescribed by any State or political subdivision

thereof.

Pub. L. 99-308, 100 Stat. 449 (May 19, 1986). The “not

readily accessible” requirement has remained in the current

version, with the addition of the not “directly accessible”

requirement when transporting a firearm in a passenger

vehicle. That addition thus can be seen as reinforcing the

conclusion that, while the words “directly accessible” do

relate specifically to vehicular travel, the words “readily

accessible” do not.1

1

What the Majority calls the “Provided clause” – that

is, the last sentence of the statute, which states: “Provided,

That in the case of a vehicle without a compartment separate

from the driver’s compartment the firearm or ammunition

2

The Majority calls that reading of the statute

“strained.” (Maj. Op. at 8.) I disagree. There are

grammatical difficulties with the statute, no matter how it is

approached, but that does not make the broader reading

untenable.2 Indeed, the disjunctive clauses in § 926A are

shall be contained in a locked container other than the glove

compartment or console,” 18 U.S.C. § 926A – does not

foreclose the broader reading noted here. That clause can be

understood as merely an additional limitation if the

transportation of a firearm occurs in a vehicle without a

compartment separate from the driver’s compartment.

2

The Majority focuses on the word “such” in “such

transporting vehicle” (Maj. Op. at 8 n.4,), saying that “such”

is appropriately used only when there has been a previous

reference to “a category of persons or things.” (Id. (internal

quotation marks omitted).) My colleagues therefore contend

that “the only possible antecedent to which ‘such transporting

vehicle’ could refer is the transporting of a firearm mentioned

in the main clause of the statute.” (Id.) But there is no

antecedent category of persons or things in the statute. The

word “vehicle” appears nowhere before the phrase “such

transporting vehicle.” That deficiency leads to at least two

interpretive possibilities: (1) we insert the word “vehicle” into

the statutory language before introducing “such transporting

vehicle,” the approach the Majority favors, or (2) we

conclude that Congress failed to follow the proper rules of

grammatical construction when using “such.” Either is a

possible reading of the statutory language, and the latter is no

more strained than the former. Rather than wrestle with

grammar, I believe, as discussed below, that we should focus

on the one thing that is clear about § 926A: it does not permit

§ 1983 liability.

3

each introduced separately by the word “is” (“is readily

accessible or is directly accessible from the passenger

compartment”). The reading the Majority adopts – which ties

“readily accessible” to the passenger compartment of a

vehicle – would be more persuasive if the statute were

phrased with a single copula, thus: “… neither the firearm nor

any ammunition being transported is readily or directly

accessible from the passenger compartment of such

transporting vehicle.” But that is not how Congress wrote the

statute, and, despite my colleagues insistence to the contrary,

their reading renders the words “directly accessible”

superfluous.

Although there is legislative history supporting the

Majority’s narrow reading of the protection afforded by

§ 926A, there are other portions of the legislative history that

support a broader reach for the statute.3 Given such

3

Certain parts of the legislative history cast the

protection 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]he

purpose which everyone supported was to allow travelers

who lawfully possessed weapons to travel to hunting grounds

in other States ... .”); see also 131 Cong. Rec. S9101-05 (July

9, 1985) (statement of Sen. Dole) (explaining that § 926A

was necessary because, “[u]nder current law, such persons

can be prosecuted under some State and local gun laws even

where they are simply on a hunting trip, traveling to a

sporting event, or moving”). The Majority attempts to

discount that history as irrelevant because it pertains to the

previous version of the statute. (Maj. Op. at 11 n.5.) Not so.

The legislative history for § 926A indicates that its current

4

language and the previous language were discussed at the

same time and, in fact, before the previous language became

law, amendments had already been proposed. See, e.g., 132

Cong. Rec. S5358-04 (May 6, 1986) (statement of Sen.

Hatch) (explaining that amendments to the previous version

of § 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, the

legislative history the Majority leans on is from a single

member of Congress, which is something we have

traditionally been careful to eschew. See In re Channel Home

Ctrs., Inc., 989 F.2d 682, 685 n.2 (3d Cir. 1993) (“[W]e

refuse to attribute so much significance to a single word

uttered by a single member of Congress, even one in a

position of particular authority with respect to the legislation

in question.”); GTE Sylvania, Inc. v. Consumer Prod. Safety

Comm’n, 598 F.2d 790, 811 (3d Cir. 1979) (“It goes without

saying that the views of a single member of Congress

concerning the appropriate interpretation of a statutory

provision passed some years earlier are not dispositive.”).

Therefore, instead of looking at the previous statutory

language as its own piece of legislation, it is more appropriate

in this particular case to view § 926A’s legislative history as

an amalgamation of the debates from both the current § 926A

and its previous version. As the Majority notes, the

congressional debates from as far back as 1984 discussed

vehicular travel. (Maj. Op. at 11 n.5.) That, however, does

nothing to add clarity to § 926A’s meaning. It arguably does

the opposite, because the more broadly worded version of

§ 926A was enacted after those 1984 debates. Given the

subsequent legislative history I have noted here, it is certainly

5

conflicting history, resort to the legislative record is not

particularly helpful. Cf. Rust v. Sullivan, 500 U.S. 173, 185

ambiguous whether Congress meant to limit § 926A, or

whether it sought a broader application to planes, trains, and

automobiles.

In fact, the Majority concedes that § 926A can cover

travel by planes, trains, and automobiles. (Maj. Op. at 7 n.3.)

That concession leads to a puzzlement: given the Majority’s

interpretation of § 926A, how does one get to the airport or

train station, check one’s luggage containing a firearm, but

still come under the protection of § 926A? It may be easy to

say, as the government did during oral argument, that

travelling by plane is permissible, as long as the airport the

traveler is departing from is within a state in which he is

permitted to carry a firearm. But that hardly seems to be the

purpose of the statute. For if that were the case, the statute

would be of very limited utility, as air passengers were never

likely to face prosecution by the states whose air space they

traversed. The purpose of the statute seems more likely to be

the protection of, for example, a traveler who lives in Easton,

Pennsylvania, and wishes to go hunting in Montana. The

closest place likely to offer a variety of flights is not in the

traveler’s home state, but is in New Jersey, at the Newark

Liberty International Airport. Accepting the Majority’s

concession, but not its statutory interpretation, that traveler

comes within § 926A’s scope. But if the Majority’s statutory

interpretation is controlling, that traveler faces prosecution

when attempting to make his trip, unless he has a carry permit

in New Jersey. Despite the Majority’s disclaimer, its

interpretation of § 926A appears to effectively limit the

statutory protection to travel by private vehicles.

6

& n.3 (1991) (eschewing reliance on legislative history that

was conflicting and ambiguous).

What can be helpful is a consideration of how others

have read the statutory text. The availability of a broader

reading of the statute is apparent from the Second Circuit’s

competing opinions in Torraco v. Port Authority of New York

& New Jersey, 615 F.3d 129 (2d Cir. 2010). The majority

opinion in that case held that § 926A’s language did not

indicate a congressional intent to make the statute redressable

under 42 U.S.C. § 1983. Id. at 139. The concurrence, by

contrast, indicated that the statutory language could be read to

evince such an intent but that the remedial scheme associated

with § 926A was such that Congress had foreclosed recourse

to § 1983 by implication. Id. at 152. Significantly, no one

on the Torraco panel concluded that § 926A is limited to

vehicular travel. One may take issue with the conclusions

they reached (and they disagreed among themselves), but

those judges were not indulging in an outlandish reading of

the statute. Nor was the District Court whose reasoning we

now have under review. That Court concluded, in keeping

with the Torraco concurrence, that although § 926A’s

language could be read to permit a § 1983 action, Congress

had impliedly foreclosed any such private remedy. The Court

did not adopt an “only for vehicular travelers” view of

§ 926A.

In short, § 926A is not the plain and unambiguous

statute that the Majority portrays, and it is not a stretch to

think that it was meant to protect interstate travel by many

7

means, not just in private vehicles.4 Rather than dive into the

difficulty of interpreting the scope of § 926A’s coverage,

4

See supra note 3. I note that the interpretation the

Majority proposes is difficult to reconcile with our previous

decision in this very case. Revell v. Port Auth. of N.Y. & N.J.,

598 F.3d 128, 137 (3d Cir. 2010). Specifically, Revell was

delayed in traveling from Salt Lake City, Utah, to Allentown,

Pennsylvania, and was forced to stay overnight in a hotel in

Newark, New Jersey. Id. at 130-31. Within his luggage,

which he collected at Newark Airport after realizing he would

have to stay overnight, was a firearm in a locked container, as

well as hollow-point ammunition, also in a locked container.

Id. at 131. After returning to the airport the next day, he was

arrested by the Port Authority for carrying a firearm without a

license, in violation of New Jersey law. Id. He brought suit

and sought redress under § 1983. We held that he did not

come within the ambit of § 926A’s protection because he had

his firearm and ammunition in his luggage, which

accompanied him to his hotel room. Id. at 139. “Revell thus

had access to his firearm and ammunition during his stay at

the New Jersey hotel, whether or not he in fact accessed them

and regardless of whether they were accessible while he was

traveling by plane or van. That crucial fact takes Revell

outside the scope of § 926A’s protection.” Id. at 137. We

thus concluded that it was the prolonged time Revell had with

his luggage that brought him outside of § 926A’s protection

because he had ready access to his firearm. Under the

Majority’s interpretation of § 926A, our decision in Revell

should not have hinged upon Revell spending the night in his

hotel with his suitcase; we should have concluded that, as

soon as he was outside of an automobile, he was outside the

8

which is an unnecessary adventure at present, I would affirm

the District Court’s conclusion that § 926A simply does not

support a claim for relief under § 1983.

As explained by the Majority, § 1983 provides a cause

of action against anyone who, acting under color of state law,

deprives a person “of any rights, privileges, or immunities

secured by the Constitution and laws.” 42 U.S.C. § 1983.

Redress under § 1983 is limited, however, to a “violation of a

federal right, not merely a violation of federal law,” and

courts must determine whether a federal statute confers a

redressable federal “right.” Blessing v. Freestone, 520 U.S.

329, 340 (1997) (emphasis omitted). Again as the Majority

notes, the Supreme Court’s decision in Blessing lays out three

factors to consider when determining whether “[a] statute

creates enforceable rights, privileges, or immunities within

the meaning of § 1983.” Pa. Pharmacists Ass’n v. Houstoun,

283 F.3d 531, 535 (3d Cir. 2002) (internal quotation marks

omitted). First, “Congress must have intended that the

provision in question benefit the plaintiff”; second “the

plaintiff must demonstrate that the right assertedly protected

by the statute is not so ‘vague and amorphous’ that its

enforcement would strain judicial competence”; and third

“the statute must unambiguously impose a binding obligation

on the States ... [;] the provision giving rise to the asserted

right must be couched in mandatory, rather than precatory,

terms.” Blessing, 520 U.S. at 340-41. In Gonzaga University

v. Doe, the Supreme Court explained that a plaintiff cannot

succeed just by falling within the general zone of interest that

the statute is intended to protect. 536 U.S. 273, 283 (2002).

protection of § 926A. But that is not the interpretative route

we took.

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Rather, the statute must “unambiguously confer[] [a] right to

support a cause of action brought under § 1983.” Id. We

have interpreted Gonzaga and Blessing to require, in addition

to satisfaction of the three Blessing factors, that a statute

contain “rights-creating language which clearly imparts an

individual entitlement with an unmistakable focus on the

benefitted class.” Grammer v. John J. Kane Reg’l Ctrs.-Glen

Hazel, 570 F.3d 520, 526 (3d Cir. 2009) (internal quotation

marks omitted).

The paradigmatic examples of such language are found

in Title VI of the Civil Rights Act of 1964, which states that

“No person in the United States shall ... be subjected to

discrimination under any program or activity receiving

Federal financial assistance” on the basis of race, color, or

national origin, 42 U.S.C. § 2000d, and Title IX of the

Education Amendments of 1972, which states that “No

person in the United States shall, on the basis of sex ... be

subjected to discrimination under any education program or

activity receiving Federal financial assistance,” 20 U.S.C.

§ 1681(a). The inquiry into whether Congress intended to

create a federal right redressable under § 1983 overlaps and is

informed by the precedents on implied rights of action.

Gonzaga, 536 U.S. at 284. For example, in Gonzaga, the

Supreme Court examined the Family Educational Rights and

Privacy Act of 1974 (“FERPA”), which states that “[n]o

funds shall be made available” to any “educational agency or

institution,” which has a prohibited “policy or practice.” 20

U.S.C. § 1232g(b)(1). The Court concluded that that

language did not contain sufficient rights-creating language,

Gonzaga, 536 U.S. at 287, and thus did not create rights

enforceable under § 1983. Id. at 290.

10

I am unconvinced that § 926A contains the requisite

“rights-creating language” to “clearly impart[] an individual

entitlement with an unmistakable focus on the benefitted

class.” Grammer, 570 F.3d at 526. While the statute does

speak specifically of benefiting a person, see 18 U.S.C.

§ 926A (stating that “any person who is not otherwise

prohibited by this chapter from transporting, shipping, or

receiving a firearm shall be entitled” to transport that

firearm), there is a crucial difference between the language of

§ 926A and the language used in Titles VI and IX. Section

926A appears to be framed only as a legal defense to a state

prosecution for illegal firearm possession. Its location in the

criminal code indicates that Congress did not intend to confer

upon travelers a new federal cause of action, but wanted only

to shield travelers from a certain variety of criminal liability.

It is noteworthy in this regard that in 18 U.S.C. § 925A, a

statute under the same title and one section away from

§ 926A, Congress provided a specific civil remedy to people

who are subject to the “erroneous denial of [a] firearm,”

saying, that such a person

may bring an action against the State or political

subdivision responsible for providing the

erroneous information, or responsible for

denying the transfer, or against the United

States, as the case may be, for an order directing

that the erroneous information be corrected or

that the transfer be approved, as the case may

be.

18 U.S.C. § 925A(2). So, Congress knew how to be

unambiguous about conferring new private rights of action in

this field, when it wanted to grant them.

11

Moreover, the tremendous impracticality of subjecting

local law enforcement officials to liability on the basis of

§ 926A militates against any conclusion that a redressable

substantive right was intended by Congress. As we explained

the last time this case was before us, threatening police

officers with § 1983 liability would force them to “investigate

the laws of the jurisdiction from which the traveler was

traveling and the laws of the jurisdiction to which the traveler

was going prior to making an arrest.” Revell v. Port Auth. of

N.Y. & N.J., 598 F.3d 128, 137 n.15 (3d Cir. 2010) (internal

quotation marks omitted). Without some clearer expression

of congressional intent, I cannot conclude that § 926A was

meant to impose on the police such a potentially burdensome

requirement, with the risk of civil liability hanging over them.

Cf. Gonzaga, 536 U.S. at 286 (“[W]here the text and structure

of a statute provide no indication that Congress intends to

create 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 redressable

under § 1983, I would affirm the decision of the District

Court on that basis, and on that basis alone. I therefore

concur in the judgment.

12