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Insight and commentary, call it like I see it

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Fear Mongering in N.J. 2A

It’s no secret that it isn’t easy being a New Jersey firearm owner. We battle gun control activists, all branches of our State government, and most recently, ourselves. With the reduction of permissible magazine capacity from 15 to 10 rounds, firearm owners, Second Amendment advocates, and others have voiced concern from “the sky is falling” to “so what?”   I’m not in either camp. I do not believe the sky is falling, nor am I indifferent to the new restrictions on our constitutional rights. That said, powerful voices within the Second Amendment community are seeking to warn that the sky is falling. Many call this fear mongering, and I agree. It may be an attempt to rally the troops, so to speak, but I don’t think that is the outcome or the intent of the warnings.  Members of the pro 2a community have seen warnings of varying severity as of late.  There have been warnings of mass raids on those who own firearms capable of accepting large capacity magazines.  There have been warnings that Governor Phil Murphy must conduct raids for fear of political retribution.  There have been articles posted speaking of searches of homes without probable cause (during a search for terrorist bombers).  There have been threats that people are facing consecutive 18 month prison terms and aggregated sets of $10,000 fines totaling 115 years in jail and a million in fines.   Let me say that I disagree with the new restrictions on our constitutional rights, disagree with recent court opinions upholding these restrictions, and support the advent of a system that would allow from the permissible carry of firearms in New Jersey.  Full disclosure, I can’t call this legal advice as I can’t predict every scenario, but I can offer some perspective and try and quell some of the fear that has been heightened over the last few days. That’s not to say that there should be no fear, the government has just infringed on our constitutional rights and our Governor and Attorney General are hostile to our cause, but the onslaught currently occurring, is making people think tomorrow is the day my local PD raids my home because I own a Glock 19 or a Beretta 92fs.  As we stand here, on the eve of many of our friends turning into criminals for doing nothing more than inaction, and we stand here having had our constitutional rights limited, illegally and against our will, I thought people could use another perspective.  A perspective on seeking to help some of us figure it out, and not scare some of us into hiding or moving out of state and reducing the size of the community here to support the Second Amendment.  We, those of us on discussion groups and forums, are among the most educated gun owners in the State. There are hundreds of thousands of gun owners in the state, but Facebook groups and forums have 2,000 to 10,000 people participating in the discussion. Quite honestly, I’d expect Joe Schmo gun owner, who got a pistol after watching the expendables because it looked cool, who really has no idea about the mag ban or his Second Amendment rights, to run afoul of the law before any of us do. That said, I hope, that any person who unknowingly or mistakenly brings a “large capacity magazine” to a range or gun club, is told to take it home or throw it out, and not have the police called on them. I can’t imagine any range that did that would be in business long anyways. I have a hard time with someone, especially someone knowledgeable, suggesting that the simple act of owning a gun that can accept large capacity magazines, is grounds for large scale raids.  That IS fear mongering.  Raids require search warrants. Search warrants require probable cause. Probable cause has to be determined by a Judge, yes a New Jersey Judge, but a Judge nonetheless.  It’s not some willy nilly standard. There have to be proofs of the illegality, descriptions of the items they are seeking, and enough facts, specific facts, to overbear your fourth amendment rights. I have participated in a large amount of search warrants, from the drafting of the affidavit, to appearing with the officer in front of a Judge, defending search warrants on motions to suppress, and challenging searches based on the fourth amendment. I would not approve an officer seeing a judge, nor would I ever expect a judge to approve a search warrant based on the following: “John Doe is a resident of New Jersey.  In 2009, he purchased a Beretta 92fs, a 9 millimeter pistol.  That firearm is capable of accepting a magazine that contains more than 10 rounds. Based upon the previous, we believe that we have probable cause to believe that he has a large capacity magazine.”   Even in New Jersey that isn’t going to fly.  It’s probable cause to believe, not a hunch. Without more, that’s simply a hunch. That isn’t to say that information won’t be part of an application for a search warrant, but there must be more. Someone witnessing a large capacity magazine, posting photos of their large capacity magazines to social media, or bragging about keeping them or using them could certainly further the quest to search a home. What I find sad, is with specific knowledge of what is required for a search warrant, people are still stoking the fires of fear regarding mass raids. A general understanding of New Jersey sentencing law, or even common sense demonstrates that no one is actually facing 115 years in jail or a million dollars in fines for possessing non compliant large capacity magazines. That doesn’t mean that those sentiments aren’t being floated around the 2a community.  The law prohibits the possession of magazines over 10 rounds just like it prohibits possessing hollow points outside of the limited exceptions of title 39 of our criminal code. Not even New Jersey would allow for punishment per bullet, a 50 round box allowing for a maximum sentence of 75 years or a super dangerous box of 525 .22’s hollow points allowing for a maximum sentence of 787 years in jail. Similarly, simple possession of 50 large capacity mags will not get you 75 years. With very limited exception, fines other than mandatory ones are not doled out very often in Superior Court. I’d say I’ve seen 10 defendants receive discretionary fines in my career of thousands of cases in Superior Court, and never, ever, have I seen the maximum fine levied. That said, with no record and being a lawful gun owner, possession of a prohibited device such as a large capacity magazine is a fourth degree crime, which means that there is a presumption of non-incarceration. Having no record, a person is more likely to have pretrial intervention or probation than face the grim prospect of 18 months in prison, let alone 115 years. I’m in no way saying I agree that it should be illegal, but likely punishment potential needs to be kept in perspective and not allowed to run amok.  A suggestion was also made by a prominent voice that exigency would allow for warrantless searches of homes. In support, an article was cited Related to the 2013 Boston bombing, though oddly making no mention of the bombing or the search being for the bombers. To place that into context, several people, including an unsuspecting law enforcement officer were murdered. Hundreds were maimed, hurt, and mutilated. The police were on a manhunt for a terrorist who literally blew up part of Boston, not an illegally retained Glock magazine. It’s pretty imbecilic to think that their ulterior motive was to nail unsuspecting gun owners. Instead of stoking the aforementioned flames of fear and telling people to prepare for mass raids for non-compliant magazines, It might be more instructive to inform people, many whom do not posses sophisticated knowledge of the law, with some of their rights.  If Law Enforcement Officers show up and ask to see your weapons or gun safe, you are free to say no.  That is your home and the fourth amendment guarantees that you shall be free from unreasonable searches and seizures in it.  Be careful though, as well trained Law Enforcement are very slick.  They will try their hardest and may say anything to get into your home if that is their mission.  They can’t arrest you for not consenting, but they sure might bluff.  That’s all it is, a bluff.  If Law Enforcement ask you questions such as “do you have magazines that are non-compliant,” you are free to remain silent.  Don’t lie, just be silent and say I don’t wish to speak with you. It is easier said than done as police are instructed on how to manipulate targets to get them to allow searches, waive miranda, etc.   If the Police threaten that they will get a search warrant if you don’t consent, tell them ok.  They have as much a right to attempt to obtain a search warrant as you do to deny their request for a consent search.  It’s an absolute they will get in and search if you consent. It’s not absolute that they will be granted a search warrant, and if they do, you can challenge it later in court.  If people are worried about parts of the law, they should speak directly with a lawyer about their particular situation so that they can get accurate advise.   That’s my 2 cents, feel free to disregard, I won’t force anyone to do or believe anything, I just want you to know their are other informed opinions out there that aren’t total doom and gloom.   About me: I’m a proud supporter of the Second Amendment, a criminal defense attorney and Managing Attorney at the Law Offices of Jonathan F. Marshall, and a former Middlesex County Assistant Prosecutor who ran the County gang, gun, and drugs task force.  See my Blog: An American Thinketh

JasonSeidman

JasonSeidman

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