More on the New Jersey Suit

Commenter Patrick noticed that this lawsuit against the State of New Jersey is a facial challenge, rather than an as applied challenge. Meaning the argument is that the law is wrong in all circumstances. Read his entire analysis. One thing I’d add, though cautiously, because I’m not sure about this, is if sections of New Jersey’s carry laws are ¬†found facially unconstitutional, the law is essentially treated like it never existed:

The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed … An unconstitutional law is void.

Since the facial challenge only applies to a few sections of New Jersey’s carry laws (which you could get slapped with if you stop by a Starbucks drive through for some coffee on the way to a match), I don’t think it will affect people who have been convicted for carrying without a license in New Jersey, nor make it suddenly lawful to carry a firearm in the Garden State. But New Jersey law does provide for issuance to non-residents, and you can bet I’ll be the first in line to apply if that ends up being the case. What I don’t know if whether someone could then challenge his conviction as-applied if the current permitting statutes are found unconstitutional.

9 Responses to “More on the New Jersey Suit”

  1. JeremyS says:

    So, if thislaw is found unconstitutional, does anyone convicted under it have that conviction erased?

  2. Sebastian says:

    I don’t think so, because of the nature of the challenge. But what I’m unsure about is whether someone who was caught carrying concealed because they were denied a license unconstitutionally can challenge their conviction? I don’t know the answer to that.

  3. Fodder4Thought says:

    I didn’t know you haunted MDShooters – you should say ‘hi’ every now and then!

  4. Sebastian says:

    I don’t… someone left the link in a comment. Not that I have any problem against Maryland shooters…. I don’t think you smell or anything… there’s just only so much time in a day :)

  5. Fodder4Thought says:

    Yeah – that place has the ability to disappear time like very few others on these here intarwebs.

    On the other hand, it’s also chock-full of wonderfully informed, intelligent and articulate folk who are willing to explain things to the rest of us, and so is DEFINITELY worthwhile.

  6. guest lawyer says:

    You have to read the complaint a little more closely — the complaint only asserts that the laws are facially invalid to the extent they allow for uncontrolled discretion or base issuance on justifiable need. They are not seeking a declaration that the entire law is invalid, just the discretionary need component.

    All of SAF’s carry challenges are facial challenges whether they use “facial” in the suit papers or not.

  7. Sebastian says:

    I see that… but the question I have is, if that aspect is declared unconstitutional, could anyone get their conviction overturned as applied?

  8. Patrick says:

    Guest Lawyer has it right. The facial challenge is to the process, not the concept of gun control in NJ. Sorry if I confused things.

    The issue with NJ is that their entire system is bound up in this process…if the law is held invalid there is little more they can do than start over. MD, on the other hand, just needs to use the same process but leave out the subjective analysis. But the MD State Police would still basically do what they do now. NJ would need to build a permit system from scratch, because the suit challenges the way they do these things.

    As to your question: People caught without a permit are still boned. The fact is that permits to carry are going to remain constitutional (subject to limitation on the processing). I am sure some will try to get a conviction overturned under the basis of “I should have had one”, but it is a hallow cry for many reasons.

    The SAF challenges have been careful up to this point to avoid stating they are making a facial challenge in whole. While the challenges so far do have that aspect to them, they have been careful even in oral arguments to state they are challenging laws in as-applied fashion. I am pretty sure in one case they were asked point blank if this was a facial challenge…the answer was “No.”

    But absolutely, the effect is the same. I just found it remarkable that this time they actually put that out there on the line. It does up the ante a bit.

    MD shooters don’t smell bad unless we are crabbing somewhere on the bay near B’More. But at that point we are just as likely to snag a body as a crab anyway. We’re fans of your blog and your commenters…thanks for taking the time.

  9. Ian Argent says:

    One interesting thought: Governor Christie has national ambitions, apparently. And the NJ Governor has a relatively high amount of input into the legislative process. If/when the carry law has to be redone, the pro-freedom pressures ought to carry more weight than you might expect in NJ…


  1. SayUncle » The Jersey Gun Suit - [...] notes that it is a facial challenge. It will be like the law never [...]