Bruen
On June 23, 2022, the United States Supreme Court in New York State Rifle & Pistol Association v. Bruen, struck down the “justifiable need” requirement in New York's law. New Jersey then grudgingly conceded that it could not enforce its own “justifiable need” law as written. RTSP, a firearms emporium with outlets in Union and in Randolph New Jersey, now provides step-by-step guidance in seeking and obtaining your New Jersey concealed carry permit.
New Jersey's Response to Bruen
Acknowledging Bruen, the New Jersey Attorney General issued Law Enforcement Directive 2022-07. That directive instructed law enforcement officials to stop enforcing the “justifiable need” requirement. At the same time, however, Gov. Murphy issued Executive Order 299, ordering all levels of New Jersey government to find and impose all possible means to thwart or limit implementation of the Bruen decision.
The New Jersey Legislature resumed its own anti-gun travesty. It enacted L.2022, c.131. That enactment made carrying in virtually all public places unlawful, thereby attempting to emasculate Bruen. Very courageously, in Koons v. Reynolds, Civil No. 22-7464 (RMB/EAP), Judge Bumb in the United States District Court for the District of New Jersey issued a temporary restraining order. Her order enjoined enforcement of major portions of that enactment. That litigation continues.
Present Status
N.J.S. 2C:39-5b(1) still specifies that in order to lawfully carry a handgun, one must first obtain a permit to do so. Persons seeking obtain such a permit run into Section 13:54-2.4 of the New Jersey Administrative Code. N.J.A.C. 13:54-2.4 is the regulation that contains this “justifiable need” provision. As explained above, Bruen has consigned “justifiable need” to the landfill where it belongs. Thus, while N.J.A.C. 13:54-2.4 remains on the books, subsection (d)(1), the obscenity that specifies “justifiable need”, is unenforceable. We provide the entire text of N.J.A.C. 13:54-2.4 on a separate page.
New Jersey is not allowing Bruen to stop its campaign to deny people their Second Amendment rights. Famed Second Amendment lawyer Evan Nappan explains New Jersey's current (as of July 2023) tactics. But the Association of New Jersey Rifle and Pistol Clubs is not taking this lying down. See here its efforts to oppose these newest unconstitutional acts of defiance.
Commentary on “Justifiable Need”
“Justifiable need” was indeed an obscenity. N.J.A.C. 13:54-2.4(b)(1) was analogous to saying you cannot carry a first aid kit in your car unless you have first graduated from medical school. And show us your grades. And give us certifications from your professors.
Under N.J.A.C. 13:54-2.4(d)(1), you had to first be wounded or killed before you can defend yourself or your family. Your life might be threatened. Your family's lives might be threatened. Too bad. New Jersey said 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(b)(1). Those are the people who 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 yourself and your family.
“Exhibit A” in that grotesque state of affairs was 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 did indeed prohibit you from appropriately protecting you or your loved ones, as they did for Lauren Kanarek. Now New Jersey steadily and inexorably, piece by piece, resurrects “Justifiable Need” by its creepy creeping construction of these newest odious requirements. Gun Lawyers in New Jersey™ is confident that these laws, too, will be successfully challenged. Meanwhile, it is necessary to be mindful of their presence.
Judicial Dishonesty
Combining sophistry with circus-quality judicial gymnastics, the United States Court of Appeals for the Third Circuit (pre-Bruen) 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.” Look at this “reasoning”: The United States Court of Appeals for the Third Circuit upheld a State regulation that directly violated the United States Constitution 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:
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A second rationalization the Third Circuit invoked was that regulatory prohibitions of this nature are “longstanding.” Thus, said the Third Circuit, 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.
Challenging N.J.A.C. 13:54-2.4
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, you appeal to the court. The hands of the lower level courts have been completely tied by past decisions of higher courts. That changed, however, on June 23, 2022. That is the date on which the United States Supreme Court issued its ruling in New York State Rifle & Pistol Association v. Bruen. The Bruen decision struck down New York's own law regulating carry permits. New Jersey's law had many similarities to New York's. As a result, New Jersey's “justfiable need” requirement is gone. New Jersey continues doing all that it can, however, to compensate for removal of the “justifiable need” requirement by issuing with a vengeance new requirements.
Gun Lawyers in New Jersey™
Gun Lawyers in New Jersey™ are confident that future litigation will be needed to enforce the Second Amendment protections provided by Bruen.
Stay tuned.
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