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.
With guilt by association, a person is deemed guilty of a crime by virtue of his 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 where 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 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.
Allan Marain |
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