ANJRPC Challenges NJ Gun Rationing in Federal Court

I have to admit, I give the Association of New Jersey Rifle and Pistol Clubs, Scott Bach, and Evan Nappen, a lot of credit for thinking this one up. Their Counsel, Daniel Schmutter, deserves credit as well for putting together such a solid case. It’s a novel legal argument, based on an obscure aspect of federal law, and it’s so deliciously clever it’s hard to believe it will work, but I think it has a good chance. This challenge to the one-gun-a-month law hinges on the definition of “firearm” in New Jersey Law. You can see the ANJRPC press release here on their web site:

The lawsuit is based on a federal statute that pre-empts state and local laws regulating the sale of certain firearms. The new law runs directly afoul of that statute because of the way New Jersey’s ultra-strict laws sweepingly define firearms. The suit also asserts claims based on the failure of the State Police to implement procedures under the new law, as well as the unlawful rationing of handgun permits by individual municipalities.

They also have a link to the Federal Complaint which you can find here. The legal basis for this federal complaint is 15 U.S.C. §5001(g)(ii), which provides for federal preemption of laws regulating air guns, if you can believe that. Quoting:

(g) Preemption of State or local laws or ordinances; exceptions

The provisions of this section shall supersede any provision of State or local laws or ordinances which provide for markings or identification inconsistent with provisions of this section provided that no State shall– . . .

(ii) prohibit the sale (other than prohibition the sale to minors) of traditional B-B, paint ball, or pellet firing air guns that expel a projectile through the force of air pressure.

The reason this matter is because New Jersey’s definition of a firearm includes air guns as well. From N.J.S 2C:39-1 (f), where the term firearm is defined:

It shall also include, without limitation, any firearm which is in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eighths of an inch in diameter, with sufficient force to injure a person.

Essentially the argument is, if someone buys an air gun, they are by statute then prohibited from purchasing another during that thirty day period, so it amounts, in practice to a prohibition of the sale of air guns. Now, the important thing here is the lawsuit is over one-gun-a-month. It is not over the definition of firearm under New Jersey law. Therefore we escape the problem of severability, where a judge could rule the air gun language in the definition is superseded by federal law, and thus moot, severing it from the definition, and leaving the rest stand. Because of the subject matter of the lawsuit, the judge may not consider the definition, and will be forced to consider only whether the one-gun-a-month law violates the federal preemption, which is pretty clearly does.

This would mean the legislature would have no choice but to try to pass one-gun-a-month again, though with an exception for air guns this time to get around federal law. Given that Dick Cody is out as President of the Senate, and Stephen Sweeney, who is friendly on the issue, is in, it doesn’t look good for re-passage. Even if it does, Corzine is out, and Chris Christie, who was not supportive of the rationing law, will now occupy the Governor’s mansion. So it doesn’t look good for the other side if this lawsuit prevails.

There are implications for Pennsylvania too, if this case wins, since Pennsylvania is also n the Third Circuit. Philadelphia currently bans sale and possession of air guns in violation of the same federal statute, so getting some favorable precedent in the Third Circuit on this issue will also help air gun shooters in Philadelphia, should anyone subsequently bring suit against the ordinance.

All in all, I think this is a brilliant lawsuit, and ANJRPC, and all those involved with bringing it, deserve a lot of credit for coming up with a novel legal argument against gun rationing that has a serious chance of winning. Ironically, it was New Jersey’s inclusion of air guns in with firearms that may be this law’s undoing. Let’s hope for a favorable outcome in this case.

5 Responses to “ANJRPC Challenges NJ Gun Rationing in Federal Court”

  1. Flighterdoc says:

    Did the NJ law have a severability provision (that says if one part of this law is found invalid, the rest remains valid) or does NJ have a general provision for this? Forget about excluding the airguns, get the whole thing tossed!

  2. Sebastian says:

    As best I know, there’s no severability provision, but (I could be wrong about this) the courts can still sever a piece of law even without that. A severalty provision just make it easier for the judges to do.

    My understanding is the reason severability isn’t on the table is because the section of state law to be severed isn’t at issue in the lawsuit, only one-gun-a-month is.

  3. jdege says:

    “The provisions of this section shall supersede any provision of State or local laws or ordinances which provide for markings or identification inconsistent with provisions of this section provided that no State shall …”

    Seems very poorly written. But I think you could make a good argument that the one-gun-a-month law is not a “provision of State or local laws or ordinances which provide for markings or identification inconsistent with provisions of this section”. That is, the one-gun-a-month law does not address markings or identification of air guns, and so is not preempted by this provision of federal law.

  4. Ian Argent says:

    Hot damn. Go ANJPRC!

  5. Rich says:

    In NJ you need to have a firearms ID before you can purchase an air rifle and even the purchase of pellets are regulated.


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