A single New Jersey statute is often cited as the justification when applications for a New Jersey Firearms Identification Card (NJ FID) are denied. That statute is N.J.S. 2C:58-3c(5). The New Jersey Legislature adopted that statute in 1979, when it enacted the New Jersey Code of Criminal Justice. Its predecessor statute was N.J.S. 2A:151-33(d), now repealed.
N.J.S. 2C:58-3c(5) says that no firearms purchaser identification card shall be issued “to any person where the issuance would not be in the interest of the public health, safety or welfare.” This “public health, safety or welfare” expression is extremely vague. Neither N.J.S. 2C:58-3c(5) nor any other statute specifies how “not be in the interest of the public health, safety or welfare” is to be determined.
Citing the vagueness of N.J.S. 2A:151-33(d), various gun enthusiasts challenged its constitutionality. The Supreme Court of New Jersey ruled on that challenge in a case called Burton v. Sills, 53 N.J. 86 (1968). Burton v. Sills upheld the statute. In upholding N.J.S. 2A:151-33(d), the Court opined:
In the abstract, the logic behind this reasoning would appear to make sense. New Jersey courts, however, have applied this reasoning to far flung situations that sometimes reduce the Second Amendment to shambles. For starters, and building upon Burton v. Sills, a 1973 court decision defined the spirit in which the law has come to be interpreted. Only five years after Burton v. Sills, State v. Valentine, 124 N.J. Super. 425 (App. Div., 1973), mincing no words, held, “The overriding philosophy of our Legislature is to limit the use of guns as much as possible.”
In the ensuing years, New Jersey courts followed and, indeed, extended this misguided State v. Valentine decision. Thus in IMO Sbitani, 216 N.J. Super. 75 (App. Div., 1987), the court reversed the prior issuance of an FID, on the ground that the applicant was previously convicted in Virginia of possessing less than twenty-five grams of marijuana. In 1992, the court affirmed the ineligibility of Kathleen Clark by reason of her husband, with whom she lived, having been previously convicted of burglary. But by the same token, however, more enlightened New Jersey courts have occasionally held that denials for FID cards were not justified. Case in point is In re Blasko, 2012 WL 2389311.
Justin Blasko lived in Clifton NJ in a third floor studio apartment. One day, building superintendent Sam Mendes entered Blasko's apartment for routine maintenance. Following entry, Mendes saw an alligator, a boa constrictor, a steel jaw leg hold trap, a bow and arrow, knives, a flak jacket, liquid steroids, drug paraphernalia, a shotgun, thirteen rifles, seven handguns, and assorted ammunition. (There is no suggestion that Mendes also saw a partridge in a pear tree.)
Following issuance of a search warrant, Blasko's weapons were seized. Various criminal complaints were signed. Blasko applied for Pretrial Intervention (PTI). The court granted his application. Blasko successfully completed all PTI requirements. Upon PTI completion, the court dismissed all of Blasko's charges.
Blasko then sought return of his seized weapons. The motion judge denied return of the seized weapons, and ordered forfeiture of Blasko's FID card. Blasko appealed.
The Superior Court of New Jersey, Appellate Division, reversed the ruling of the motion judge. The Appellate Division ordered return of Blasko's previously seized firearms, and held that Blasko could keep his FID card. In so ruling, the Appellate Division held:
In re Blasko is unpublished. “Unpublished” means that litigants are not allowed to cite the case as precedent. Regardless, the case exists. New Jersey Second Amendment lawyers arguing cases having issues relating to public health, safety or welfare can use the same reasoning that the In re Blasko judges used in their opinion.
Allan Marain is a New Jersey Second Amendment lawyer. He handles cases involving Second Amendment issues, as well as criminal complaints and indictments, expungement of criminal arrests and convictions, and expungement of commitments, both voluntary and involuntary, to mental health facilities. He will not handle your car accident or your medical malpractice case, but he can connect you with a top New Jersey lawyer who will.
Allan has been in practice for forty-five years. He knows his way around the court house. If you have Second Amendment issues, or face criminal charges, or need an expungement, call him! He can help.
Allan Marain |
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