2 out of 3 of Brian Aitken Convictions Squashed

Eugene Volokh mentions the case. Aitken’s convictions for unlicensed transport, and high capacity magazines were reversed. His conviction for having hollow point ammunition was allowed to stand. There’s one crime Brian Aitken is guilty of, and that’s believing when he moved to New Jersey he was still living in America.

  • On the charge of transportation without a permit, the court found that the judge’s failure to properly instruct the jury as to exceptions was sufficient to squash the conviction.
  • On the charge of the high capacity magazine, the court ruled that the state failed to introduce proper evidence that the device was a large capacity magazine. At trial they showed that the magazine could hold 16 rounds of ammunition, but they failed to show that it was operable with that many rounds of ammunition, and the court ruled that was required.
  • On the issue of hollow nosed ammunition, Aitken argued that the statute was unconstitutionally vague. He also argued that the rule of lenity should apply, given that the statute didn’t exempt moving between residences, that it should based on a reading of the statute, which allows possession in the home.
  • Aitken also made a Second Amendment claim, which the court summarily dismissed without any discussion. This is wrong.

So Aitken is still a convicted felon and prohibited person, because of the hollow nose bullet charge. I think he should appeal, and appeal all the way to the US Supreme Court if necessary.

9 thoughts on “2 out of 3 of Brian Aitken Convictions Squashed”

  1. I just read this article on the latest development of the Brian Aitken case:


    Here’s an excerpt from this article:

    On Friday, Burlington County Prosecutor Robert D. Bernardi released a statement in which he called the appellate decision “a victory for the prosecution” because the panel ratified the actions of the state as it presented evidence to the grand jury.

    “The Appellate Division sustained the search of Mr. Aitken’s vehicle and sustained the use of the statements made to the police once he was taken into custody,” the statement reads. “Thus, the decision determined there was no Fourth or Fifth Amendment violations by the state.”

    The statement praises the appellate court’s decision to uphold the ammunition conviction and says the state is considering whether to retry Aitken on the weapons charges.

    “With the affirmation of this conviction, Mr. Aitken will now be barred from possessing any firearms in the future,” Bernardi said. “The statute concerning these bullets was enacted by our Legislature in recognition of the devastating impact that the use of this ammunition can cause to human life.”

    He declined to comment further.

    I think New Jersey is the only state in the nation which has a law regarding hollow point ammunition. If I am wrong on this, please say so. If hollow point ammunition really has such a “devastating impact” on people, that is, it is really something umpteen times deadlier than FMJ ammunition, then why is New Jersey the only state that ever passed a law on hollow point ammunition?

    Anyway, I already know that New Jersey has plenty of other gun laws which are firmly rooted in ignorance, falsehoods, and hyperbole, such as the New Jersey law on “smart handguns” being mandatory, even though no such handgun has ever been developed in the nearly ten years since that law’s enactment.

  2. Since hollow-point ammmunition is so deadly as to justify a ban (according to the legislators and jurists of New Jersey) then someone needs to sue the police departments in New Jersey that issue it.

    Since the police department defendants will argue (and win, since this IS New Jersey) that they use it because of its tendency to penetrate less, or some other reason than “… because it devastates the shootee”, then the courts will have become cognizant of the facts, and overturning the law should be easier.

    Finding someone with standing might be an issue. The plaintiff probably needs to have been shot by New Jersey police, but then, if they are still alive, it actually supports the argument that the stuff ISN’T “devastating”.

  3. That’s a little disturbing that there is no “moving between homes” exemption for hollow points. I suspect sloppy bill writing originally. I also hope Mr. Aitken can continue an appeal on the one charge remaining. The hollow point “van” strikes NW as barely worthy or even surviving “rational basis” review, given that they can be purchased with barely any more difficulty than standard ammo.

  4. Yeah, just one of many absurd laws that caused me to leave NJ. You can buy HP ammo at the store, and have it in your home, but legally there is no way to get it from the store to the home!

    Gotta love that kind of law………

    1. Store to home is legal, as is home to range, &c. I had assumed because the other exemptions for hollow points mirrored those for handguns that the house to house exemption existed.

        1. Indeed, or as our host has pointed out, New Jersey gun law is set up such that everything is illegal except for specific exceptions stated in the law.

          Which means there’s a greater change that someday the Federal judiciary will strike it all down, although when judges do that they often allow a state the time to write a replacement (e.g. the West Virginia supreme court and their CCW law, which then became shall issue).

          Massachusetts is not hardly as bad (seriously), but it’s another place you should never make assumptions.

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