N.J.S. 2C:39-5b(1) requires that in order to lawfully carry a handgun, it is first necessary to possess a permit to do so. Persons seeking obtain such a permit, however, run into Section 13:54-2.4 of the New Jersey Administrative Code. Here is what it says, in its entirety:
Under N.J.A.C. 13:54-2.4(d)(1), you must first be wounded or killed before you can defend yourself or your family. Your life may be threatened. Your family's lives may be threatened. Too bad. New Jersey says you cannot defend yourself. And you cannot defend your family. New Jersey's answer: Call a cop. Yeah, right. Call for help from a cop and call for a pizza delivery at the same time. See who arrives first. You can be sure that the person who threatens you or your family never complied with N.J.A.C. 13:54-2.4. They benefit from New Jersey's refusal to recognize Second Amendment rights. They benefit because they know that absence of Second Amendment rights in New Jersey means you are less likely to be able to protect you and your family.
Combining sophistry with circus-quality judicial gymnastics, the United States Court of Appeals for the Third Circuit upheld N.J.A.C. 13:54-2.4 against a Second Amendment challenge. The case that upheld N.J.A.C. 13:54-2.4 was Drake v. Filko, 724 F.3d 426 (3rd Cir., 2013). As rationalization for the “specific threats or previous attacks” hurdle (see N.J.A.C. 13:54-2.4(d)(1), above), Drake stated, “presumptively lawful regulatory measures are exceptions to the Second Amendment guarantee.” In other words, the United States Court of Appeals for the Third Circuit upheld a State regulation that directly violates a Constitutional amendment because it is a State regulation. Characterizing this State regulation as “lawful” totally begs the question. One can only marvel at the Third Circuit's amnesia concerning the Supremacy Clause in the United States Constitution. The Supremacy Clause states:
A second rationalization the Third Circuit invoked was that regulatory prohibitions of this nature are “longstanding.” Thus, because a constitutional violation has endured past a certain (unspecified) threshold of time, the violation must be permitted to continue forever. Sophistry of that magnitude has to be respected.
“Exhibit A” in this grotesque state of affairs is the tragedy of Lauren Kanarek. Lauren was a dressage rider. For two years her trainer was one Michael Barisone. Barisone took to bullying Lauren. She was afraid. Aware of her inability to protect herself, Lauren complained to the police. She sought their protection. Several times. Any police response that may have ensued was totally ineffective. Finally, on August 8, 2019, Barison shot Lauren in the chest. Twice. New Jersey's restrictive and unconstitutional laws do indeed prohibit you from appropriately protecting you or your loved ones, as they did for Lauren Kanarek.
Challenges to N.J.A.C. 13:54-2.4 can arise in either of two situations. The first situation occurs when a person has been criminally charged with possession of a handgun. The second situation is when the person has not been charged, but wants a carry permit.
The first situation involves a traditional criminal defense. The criminal defense lawyer's arsenal contains many tools for such occasions. These tools can include entrapment, suppression of illegally obtained evidence, and simple failure of the State to prove its case beyond a reasonable doubt. Gun Lawyers in New Jersey™ handle cases of that nature.
The second situation is completely different. It begins with an administrative application to the local police department. When that application is denied (and it will be), you appeal to the court. But the hands of the lower level courts are tied by past decisions of higher courts. Ultimately, if relief is to come at all, it must be from the Supreme Court of the United States. To grossly understate matters, that kind of challenge is a major undertaking.
Lawyers who care about the Second Amendment have fought such challenges in the past. Until June 22, 2022, all such efforts failed. On that date, however, the United State Supreme Court decided the case of New York State Rifle & Pistol Association, Inc., et al. v. Bruen, Superintendent of New York State Police, et al. That case held that New York's law, similar to New Jersey's, violated the Second Amendment.
Presently pending in the United States District Court for the District of New Jersey is Bennett v. Davis, Case 1:20-cv-15406. Plaintiffs in that matter include the Second Amendment Foundation, and the New Jersey Second Amendment Society. The District Court will take this Bruen decision into consideration when it announces its decision. Come back here for updates!
Allan Marain |
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