Category: Politics

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.

Can be found here. The lawsuit is being filed by the Association of New Jersey Rifle and Pistol Clubs, which is NRA’s State Association for New Jersey, and by the Second Amendment Foundation. This is not an Alan Gura case, though I’m told Gura will be advising in this case, and that SAF is providing the funding for it. The federal complaint is for “Deprivation of Civil Rights under Color of Law,” under 42 U.S.C. Section 1983.

Plaintiff selection in this case appears to be quite good. The first plaintiff, Mr. Muller, was attacked and kidnapped and beaten after the Hell’s Angel’s mistook him for someone else. Fortunately he escaped, but his kidnappers still have yet to stand trial. Mr. Piszczatoski is a civilian employee for the FBI, and a former Coast Guardsman. The FBI informed him of islamic extremist threats against families and employees of the FBI, which caused him to desire a carry permit. A third plaintiff, Mr. Drake, carries large sums of cash in connection with his business. One of the plaintiffs is also a part-time deputy sheriff in Essex County, which aren’t authorized by the State of New Jersey to carry a handgun off duty. All plaintiffs have applied for and been denied a license to carry. They should easily pass standing requirements.

Some of the assertions of this case in terms of constitutionality:

The States retain the ability to regulate the manner of carrying handguns within constitutional parameters; to prohibit the carrying of handguns in specific, narrowly defined sensitive places; to prohibit the carrying of arms that are not within the scope of Second Amendment protection; and, to disqualify specific, particularly dangerous individuals from carrying handguns.

The States may not completely ban the carrying of handguns for self defense, deny individuals the right to carry handguns in non-sensitive places, deprive individuals of the right to carry handguns in an arbitrary and capricious manner, or impose regulations on the right to carry handguns that are inconsistent with the Second Amendment.

That seems to me where we should go with this. We have to accept, because of dicta in Heller about concealed weapons, that the states have the power to regulate how arms may be carried or worn, they just may not prohibit the carrying of defensive arms altogether, or restrict carrying them arbitrarily and unjustly. It’s a very short complaint, so it won’t take long to read, if you’re so inclined.

I would like to take some time to ask readers to join ANJRPC. You don’t have to live in New Jersey to join. Or if you would rather, donate to their litigation fund. Their e-commerce software sucks, and I apologize for that ahead of time. But it’s a worthy cause. Also, donations to SAF would be in order as well, since they are funding the case.

UPDATE: I was informed that my assumption the case was jointly funded was incorrect, and it is being funded by SAF and have adjusted the article accordingly. That was my mistake.

UPDATE: OK, got it wrong again. SAF is funding counsel of record, which is most of the cost of the suit. ANJRPC is funding additional elective resources, so the suit is not without cost to ANJRPC.

For a while now, many have wondered when New Jersey was going to get sued for their gun laws. The answer to that question would appear to be right now:

TRENTON, N.J., Nov. 22, 2010 /PRNewswire-USNewswire/ — The Association of New Jersey Rifle & Pistol Clubs (ANJRPC) announced today that it has joined in a federal lawsuit challenging a provision of New Jersey law that effectively denies law-abiding citizens the civil right to defend themselves with a firearm outside the home.

The suit, brought together with The Second Amendment Foundation and six private citizens, challenges the constitutionality of New Jersey’s extreme and subjective “justifiable need” standard for issuance of handgun carry permits – a nearly impossible standard to meet that has all but eliminated the right of self defense with a firearm in the Garden State.

“The fundamental right to defend yourself does not evaporate when you walk out your front door,” said ANJRPC President Scott Bach. “The U.S. Supreme Court has recently made it clear that this right belongs to all Americans.  This lawsuit will ensure thatNew Jersey finally stops denying its citizens this basic freedom.”

40 states currently have laws recognizing the right of law-abiding citizens to carry a handgun for self defense, 28 of which have been enacted in just the last two decades. Despite the mountain of evidence showing that sustained reductions in violent crime rates result after enactment of these laws,(1) New Jersey has refused to modernize its own laws, instead choosing to imperil its citizens and force them to remain defenseless victims against armed criminals who don’t follow the law.

“It’s no mystery why violent crime rates plummet wherever right to carry laws are enacted,” said Bach.  “Criminals go somewhere else when they think their victims might be armed.  When predators can’t tell the difference between the sheep and the wolves, the whole flock is safer.”

One of the plaintiffs in the new lawsuit is a kidnap victim, another is a part-time sheriff’s deputy, a third carries large amounts of cash in his private business and another is a civilian employee of a law enforcement agency.  The fact that such persons are unable to qualify for a New Jersey carry permit underscores how arbitrary and unreasonable the Garden State’s laws are.  “New Jersey’s carry laws are blatantly unconstitutional,” said Bach.  “We intend to change that.”

I will have more information on this suit as it becomes available.

UPDATE: I’ve linked to the federal complaint here.