Of Spouses and Other Family Members: Guilt by Association

New Jersey uses guilt by association to deny Second Amendment Rights. These denials can be challenged, often successfully.

In 1992, Kathleen Clark resided in a Cape May County community. She applied for two handgun purchase permits. She enjoyed a good reputation in the community. Kathleen indicated that she wanted to go target shooting with her husband, and that her husband would have access to her firearms. None of the disabilities specified in N.J.S. 2C:58-3c applied to Kathleen. New Jersey State Police denied her application anyway. Its reason for that denial was that her husband, with whom she lived, had previously been convicted of burglary. Persons convicted of burglary, or of any indictable crime, are prohibited under both New Jersey and federal law from possessing firearms, until their convictions are expunged.

Under guilt by association, a person is deemed guilty of a crime by virtue of their association with the person or persons who actually committed the deed, whatever it may have been. Under the law, guilt by association is a discredited concept: The law punishes persons for their own misdeeds, not for the misdeeds of those with whom they associate. Except in New Jersey when firearms are involved. New Jersey visits guilt by association upon persons seeking FID cards and handgun permits when other ineligible persons live in the same household.

Kathleen appealed the denial. New Jersey Judge Dennis Braithwaite denied her appeal. Judge Braithwaite held that issuing the handgun permits to Kathleen would “not be in the interest of the public health, safety or welfare,” one of the disqualifications under N.J.S. 2C:58-3c. His opinion affirming the denial is reported at In re Application of Clark, 257 N.J. Super. 152 (Law Div., 1992).

One may agree or disagree with Judge Braithwaite's ruling. Disturbing, however, is how the judge framed the issue:

The question presented on this appeal is whether or not a person who is otherwise not disqualified from obtaining a permit to purchase a handgun can be denied a permit because her husband has a prior burglary conviction.

The issue, as framed by the judge, is whether a permit to purchase a handgun can be denied when hubby has a record. The opinion does not state that hubby's record requires denial under all circumstances. The problem is that framing the issue as the judge did lends itself to an interpretation that categorically disqualifies household members of ineligible persons. This concern is not fanciful. Chiefs of police regularly deny applications under those circumstances. And when a person becomes disqualified, for example, by becoming subject to a domestic violence restraining order, it is police practice to seize all weapons in the household, and all FID cards in the household. This seizure occurs regardless of whether the disqualified person is able to access firearms in the home.

The Clark decision raises ancillary questions. As mentioned elsewhere on this site, no FID card is needed in order to legally possess firearms in the home (as well as at various other locations). If Kathleen Clark already had firearms in her home, would denial of her handgun purchase applications require her to surrender them? Judge Braitwaite does not tell us. We do know however that, without an FID card, Kathleen would be unable to legally acquire additional firearms in New Jersey (except, possibly, by inheritance).

Does a categorical disqualification on the basis of guilt by association violate New Jersey gun owners' Second Amendment rights? Gun Lawyers in New Jersey™ maintain that it does. To date, no New Jersey published opinion has defined the limits of the Clark holding. Gun Lawyers in New Jersey™ believe those limits should be defined. They look forward to reining in the expansive interpretation that now too often prevails.