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halbautomatisch

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Posts posted by halbautomatisch

  2. Posted

    if they dont define it.. then it does not exist.. for it to be a loophole they would have to say something like 

     

    "thumbhole stock - is any stock in which the stock is one complete piece attached to the rear of the rifle"

     

    that would create a loop hole because it would take that obvious pistol grip and turn it into a thumbhole stock by being one piece... since that is not the case then the piece protruding off the gun is judged solely on if it meets the criteria of a pistol grip...

     

    ask yourself.. you are in front of a jury.. the prosecutor holds of that gun, which he has already demonized.. and then begins to read the definition of pistol grip.. showing that the thing he is holding meets all that criteria... whats your defense? there isnt one.. because it is a pistol grip as pistol grip is clearly defined in NJ law..

     

    "Pistol grip"

    means a well defined handle check, - that's debateable since it's incorporated into an entire stock, "well defined" is less clear

    similar to that found on a handgun, check - Very rare to see a skelton stock on a handgun

    that protrudes conspicuously beneath the action of the weapon, check - NO, that hand grip is clearly not "beneath" the action of the weapon, it is behind the action of the weapon. The hand grip also is not "protruding conspicuously" since it part of the skeleton stock.

    and which permits the firearm to be held and fired with one hand. check - Yes

     

    it is.. as defined by NJ law.. a pistol grip.. 

    I'm not saying the NJSP or the AG's office will tell anyone it's legal, since they have their own agenda that isn't necessarly based interpreting our laws objectively, as we have seen time and time again with other firearms.

  3. Posted

    Is it ok to bring my 6 year old?  Also kinda an odd question but should I leave my OD carry at home?  Sorry for the completely dumb question I just don't typically leave home without it.

    There are kids much younger than 6 at these shows all the time, the issue for you might be his attention span and how well you can keep him from touching things he shouldn't touch, so you know your kid best. As for carrying, virtually all shows do not allow attendees to carry loaded firearms in the show, but when it comes to OD LEO's, some do allow it and some do not - not sure what Eagle's policy on that is...........

  4. Posted

    i think its time to move to the UK and break into someones house cutting my hand badly on the glass from the door. after i receive free medical treatment, i will then sue the shit out of the homeowner for locking their doors and not letting me into their dwelling without their permission to take their most expensive belongings. i will not be charged with any crimes because i stopped short of the threshold of the door. after i become rich from the pain and suffering lawsuit i will return to the US and never work again and buy guns and invite all of you over to shoot at my private range.

    Only problem with you strategy is that you will get put on a waiting list to receive your free medical treatment and will likely bleed to death  before they get to you.........

  6. Posted

    You'd better have someone you trust covering for you...........I don't go anywhere in winter I can't drive to - can't be at the mercy of the airlines to get me home if a storm is coming. Remember.....this last storm was only snow showers until two days out and Saturday is looking like something will need to be done, salting at a minimum. I've got at least two storms worth of salt, but we're going to get another load tomorrow to make sure we get through the weekend without running out.

  7. Posted

    No, no, no.  The application still has to go to Trenton for other checks(I think they check for stuff like payment of child support etc), the typing up of the permits, and the signature.  This is where my applications always sat for at least a month or two. 

    No.......Trenton turns them around with reasonable (by NJ standards) speed. If that was the case, every town would take that long. Your delay is primarily at your PD.

  9. Posted

    You know, I don't really buy this.  On one hand I can see why someone might think that, on the other it makes no sense. I'm going to guess a lot of this is coming from stores that claim to be special but in fact can't compete with the purchasing power of the big stores. 

     

    First of all, are they using the same part numbers? If they are, then it makes little or no sense for Dewalt or anyone to make the same tool in two ways, it is bad for their supply and warranty chain.  I'll buy that the are selling 123-ABC at HD which has smaller batteries and less torque and 456-XYZ elsewhere with different specs, sure, just like not every Chevy dealership has 3500's in stock when they mostly sell Silverado's. But I don't believe that they will make the same tool number differently.

     

    Secondly, it is a reputation killer. You don't really care if the markets are vastly different, but a lot of contractors now buy their stuff at HD and Lowes so how long before you brand is in the crapper? That would be a very bad plan.

     

    Lastly, I found the following link where a Dewalt rep states that there is no difference in their tools regardless of where you buy it: http://www.contractortalk.com/f40/hey-gatorb888-tell-us-about-dewalt-109676/

    I can speak for power tools, but I know that a lot of the hand tools sold at HD and other big box stores are made (crappier) just for them. I sell Jackson wheelbarrows, the same heavy duty contractor model that's been made since the 1950's. When I was looking at the model that they had at HD, it looked very similar to the one I sell, but had a model number I didn't recognize. When I got back to my office, I looked up the model number in the full line catalog but it was not listed in there. So, that means that they are making this model specifically for HD (and probably Lowes and TSC, and other similar stores) and they cheapen it by making the tray a little thinner, the handles a little thinner and so on.

  10. Posted

    if you think about NJ it is really not as confusing as it seems...

     

    the wording was never intended to allow you to buy altered mags.. the intention was to ban ALL large cap mags.. in an ideal universe large capacity mags would no longer exist to them..

    but they knew people would freak out.. since people already owned large cap mags..

    so the reason it addresses that is so it allows people to get compliant with what they had.. and ideally moving forward only buying factory complaint mags..

     

    this has not occurred in practice.. as modified mags are common place... but I am pretty confident the intention was to stick with mags that from the manufacturer were compliant.. 

    if you look at everything in that mindset... it all becomes far more clear..

     

    "large cap mags are banned you cant have them PERIOD"

    "if a large cap mag is permanently altered to no longer be a large cap mag then it is no longer a large cap mag and thus legal"

     

    the intention is not to stop you from making a 700 round mag out of sheet metal (which if done would obviously still be illegal)

    the intention has not much to do with what you MIGHT build...

    the intention is instead just to ban large cap mags.. as large capacity mag is defined.. 

    Sure there intent was to ban all "large capacity magazines", however the statute was poorly written and doesn't specify whether or not mags need to be permanently blocked or not. 

     

    It's obvious that "they" intended to ban all AK type firearms, but because the statute is poorly written, so MAK 90's and other AK pattern rifles are not banned even though that was their intent.

     

    IMO it is legal to possess an unassembled large cap mag "parts kit", but I would not recommend anyone do so because even if it is legal, I wouldn't put it past a prosecutor to charge someone and run them through the mill. Even if you were cleared of all charges, you life will be ruined by the time you are exonerated.

  12. Posted

    again.. you are missing the point.. you don't get to pick and choose parts of the law to follow.. 

     

    the magazine parts go together to form a large capacity magazine as defined by NJ law... 

    you cant argue that its a fact.. 

    so the question remains does taking the mag apart satisfy the law... 

     

    I say it does not because the law says non permanent modification does not satisfy the law..

     

    if you want to follow JUST the part you are focused on you could load up a 30 round mag... or a 100 round drum.. then.. just put a piece of duct tape over the top of it.. OR even just a magpul mag cover.. the mag at that moment can no longer continuously feed more than 15 rounds... the mag in that state is not a mag because it can't feed a gun? you could have to remove the cover for it to work... so you are safe right?

     

    the point is one final time..

    the law says

     

    a large capacity mag is illegal in every instance

    UNLESS

    it is permanently modified to no longer be a large capacity magazine..

     

    putting tape over the top

    putting a magpul cover over the top

    disassemble

     

    are ALL the same.. they are temporary conditions that do not allow the mag to function..  but have no relevance as to the mags legality.. 

    Where in the actual LAW (as in 2C:) does it say that mags need to be permanently blocked to be no longer considered "large capacity magazines"?

  13. Posted 

    

    
Found it........the important section is near the bottom under the section that reads "Order" - I tried to highlight it but it's not working.. I haven't read this entire ruling......
    

     
    

     
    

     
    

    
Cite as Coalition of New Jersey Sportsmen v. Florio, 744 F.Supp.
    

    
602 (D.N.J. 1990)
    

     
    

    
COALITION OF NEW JERSEY SPORTSMEN, et al., Plaintiffs,
    

     
    

    
v.
    

     
    

    
James J. FLORIO, et al., Defendants.
    

     
    

    
Civ. No. 90-2992(GEB).
    

     
    

    
United States District Court, D. New Jersey.
    

     
    

    
Aug. 15, 1990.
    

     
    

    
Evan F. Nappen, Eatontown, N.J., for plaintiffs.
    

     
    

    
Robert J. Del Tufo, Atty. Gen. of N.J., Benjamin Clarke
    

    
(argued), Deputy Atty. Gen., Dept. of Law & Public Safety, Trenton,
    

    
N.J., for defendants.
    

     
    

    
OPINION
    

     
    

    
GARRETT E. BROWN, Jr., District Judge.
    

     
    

    
Plaintiffs in this action [footnote 1] have brought suit
    

    
against the Governor of New Jersey, the Attorney General of New
    

    
Jersey, the Superintendent of the New Jersey State Police, and the
    

    
Prosecutor of Mercer County as prosecutor and as a representative
    

    
of the class of county prosecutors in the State of New Jersey,
    

    
seeking to strike down as unconstitutional portions of New Jersey's
    

    
newly amended gun control law, N.J.S.A. 2C:39-1 et seq. The matter
    

    
is now before the Court on a motion by plaintiffs for a preliminary
    

    
injunction enjoining enforcement of the purportedly
    

    
unconstitutional provisions. The Court has had the benefit of
    

    
able, thorough, and helpful briefing and oral argument by counsel
    

    
for both sides.
    

     
    

    
Plaintiffs raise three challenges to the statute. First, they
    

    
challenge the newly enacted ban on large capacity magazines,
    

    
NJ.S.A. 2C:39-36) (banning possession) and N.J.S.A, 2C:39-9(h)
    

    
(banning manufacture, transport, shipment, sale, or disposal).
    

    
[footnote 2] They contend that the law unconstitutionally
    

    
criminalizes the possession or transfer of large capacity magazines
    

    
without providing owners of such magazines an opportunity to
    

    
conform with the new law before being subjected to its penalties. 
    

    
Second, they argue that the ban on large capacity magazines and
    

    
regulation of semiautomatic, "assault firearms," N.J.S.A. 2C:39-
    

    
5(f) (possession) and N.J.S.A. 2C:39-9(g) (manufacture, transport,
    

    
shipment, sale or disposal), are preempted by federal law to the
    

    
extent these provisions prohibit the sale of air guns and
    

    
"traditional" B-B guns, in violation of 15 U.S.C. section
    

    
5001(g)(ii). Third, they contend that federal law providing for
    

    
the interstate transport of unloaded, inaccessible firearms, 18
    

    
U.S.C. section 926A, preempts the newly amended law to the extent
    

    
that the new law exposes to criminal prosecution people who
    

    
transport weapons through New Jersey in accordance with the federal
    

    
law.
    

     
    

    
The Attorney General has cross-moved for dismissal of all the
    

    
above claims for failure to state a claim upon which relief may be
    

    
granted. See Fed.R.Civ.P. 12(b)(6). In the alternative, and as to
    

    
the first claim only, the Attorney General asks this Court to
    

    
abstain under the doctrine enunciated in Railroad Comm'n of Texas
    

    
v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). 
    

    
The Attorney General concedes that, under the Third Circuit's
    

    
decision in United Servs. Auto. Ass'n v. Muir, 792 F.2d 356 (3d
    

    
Cir.1986), Pullman abstention is inappropriate when a federal court
    

    
is faced with questions of federal preemption under the Supremacy
    

    
Clause. See id. at 363-64.
    

     
    

    
Before this Court may issue a preliminary injunction,
    

    
plaintiffs must show a reasonable probability of success on the
    

    
merits, and that they will suffer irreparable injury pendente lite
    

    
if relief is not granted. The Court also must consider the
    

    
possibility of harm to other interested persons from the grant or
    

    
denial of the injunction, and the public interest. In re Arthur
    

    
Treacher's Franchise Litigation, 689 F.2d 1137, 1143 (3d Cir.1982).
    

    
For the following reasons, the Court will abstain as to plaintiffs'
    

    
first claim, grant preliminary injunctive relief on the second
    

    
claim, and dismiss the third.
    

     
    

    
I. THE LARGE CAPACITY MAGAZINE BAN
    

     
    

    
New Jersey's newly enacted ban on the possession, sale,
    

    
manufacture, disposal, shipment, or transport of large capacity
    

    
magazines became effective on March 30, 1990, the date Governor
    

    
Florio signed the bill into law. Plaintiffs argue that, with the
    

    
stroke of a pen, previously law-abiding owners of such magazines
    

    
instantly became criminals without being given an opportunity
    

    
lawfully to conform their conduct with the new law. Plaintiffs
    

    
seek a preliminary injunction to protect themselves from the threat
    

    
of prosecution.
    

     
    

    
The Attorney General contends that the immediate effective
    

    
date of the large capacity magazine ban does not render the
    

    
provision constitutionally infirm because New Jersey's voluntary
    

    
surrender statute provides an opportunity for owners of such
    

    
magazines lawfully to turn in such items without fear of
    

    
prosecution. The statute provides:
    

     
    

    
No person shall be convicted of all offense under this
    

    
chapter for possessing any firearms, weapons, destructive de-
    

    
vices, silencers or explosives, if after giving written notice
    

    
of his intention to do so, including the proposed date and
    

    
time of surrender, he voluntarily surrendered the weapon,
    

    
device, instrument or substance in question to the
    

    
superintendent or to the chief of police in the municipality
    

    
in which he resides, provided that the required notice is
    

    
received by the superintendent or chief of police before any
    

    
charges have been made or complaints filed against such person
    

    
for the unlawful possession of the weapon, device, instrument
    

    
or substance in question and before any investigation has been
    

    
commenced by any law enforcement agency concerning the
    

    
unlawful possession. Nothing in this section shall be
    

    
construed as granting immunity from prosecution for any crime
    

    
or offense except that of the unlawful possession of such
    

    
weapons, devices, instruments or substances surrendered as
    

    
herein provided.
    

     
    

    
N.J.S.A. 2C:39-12.
    

     
    

    
Plaintiffs respond that the voluntary surrender statute is
    

    
inadequate for three alternative reasons: 1) magazines are neither
    

    
"firearms, weapons, destructive devices, silencers or explosives,"
    

    
the only items covered by the statute; 2) even if magazines were
    

    
considered "weapons," [footnote 3] the voluntary surrender
    

    
provisions would immunize owners only from possessory offenses, not
    

    
manufacture, shipment, disposal, transport, or sale, which are
    

    
proscribed under N.J. S.A. 2C:39-9(h); and 3) even if owners of
    

    
large capacity magazines could turn them in without fear of
    

    
prosecution, the uncompensated voluntary surrender of such property 
    

    
would result in an unconstitutional "taking" under the Fifth
    

    
Amendment.
    

     
    

    
Before reaching the merits of these arguments, however, the
    

    
Court first must consider whether to abstain. Although, as a
    

    
general rule, the federal courts are bound to adjudicate cases
    

    
within their jurisdiction, Pullman abstention is appropriate when
    

    
"questions under both state law and the federal constitution are
    

    
present," and abstention forwards the policies of "promoting comity
    

    
with the state courts and ensuring the smooth functioning of the
    

    
federal judiciary." Hughes v. Lipscher, 906 F.2d 961, 967 (3d
    

    
Cir.1990). Pullman abstention also is appropriate where the state
    

    
court's resolution of an unsettled question of state law may moot
    

    
or change the analysis of the federal constitutional issue.
    

    
Georgevich v. Strauss, 772 F.2d 1078, 1089 (3d Cir.1985) (en banc),
    

    
cert. denied, 475 U.S. 1028, 106 S.Ct. 1229, 89 L.Ed.2d 339 (1986).
    

     
    

    
Although application of Pullman abstention is discretionary
    

    
with the Court, the Third Circuit requires three special circum-
    

    
stances as prerequisites:
    

     
    

    
(1) Uncertain issues of state law underlying the federal
    

    
constitutional claims brought in the district court; 
    

    
(2) Amenability of the state law issues to a state court
    

    
interpretation that would obviate the need for, or
    

    
substantially narrow, adjudication of the federal claims;
    

    
[and]
    

    
(3) Disruption of important state policies through a federal
    

    
court's erroneous construction of state law.
    

     
    

    
Hughes, at 968. Once these elements are present, a district court
    

    
must next determine "whether abstention is appropriate, considering
    

    
such factors as the availability of an adequate state remedy, the
    

    
length of time the litigation has been pending, and the potential
    

    
impact on the parties from the delay in seeking a state ruling."
    

    
Id.
    

     
    

    
All the factors in favor of Pullman abstention are present in
    

    
regard to plaintiffs' claim regarding the large capacity magazine
    

    
ban. First, the uncertain issue of state law underlying the
    

    
constitutional claim is the interaction between the voluntary
    

    
surrender statute and the ban on large capacity magazines. The New
    

    
Jersey courts have not had the opportunity to interpret either
    

    
statute, alone or in combination. Second, state court 
    

    
interpretation of these statutes will materially alter this Court's
    

    
constitutional analysis. If the state court interprets the
    

    
voluntary surrender statute as not providing a remedy for large
    

    
capacity magazine owners, this Court must consider whether the
    

    
statute is constitutionally deficient for insufficient notice. If
    

    
the state court interprets the voluntary surrender statute to the
    

    
contrary, this Court must determine whether such a remedy effects
    

    
an unconstitutional taking, rather than a valid exercise of the
    

    
police power. Third, gun control and regulation is an important
    

    
state policy that would be disrupted if this Court were to construe
    

    
state law erroneously.
    

     
    

    
Other factors also favor abstention at this time. At oral
    

    
argument, defendants indicated that they will move promptly to seek
    

    
a decision in the state courts, and there is no indication that
    

    
those courts would not promptly and adequately resolve the
    

    
questions presented. The present action has been pending for only
    

    
a few weeks, and the Court does not foresee any potential adverse
    

    
impact on the parties from a reasonable delay in seeking a state
    

    
ruling. The Attorney General has taken the position in open court
    

    
that N.J.S.A. 2C:39-12 does in fact provide for the voluntary
    

    
surrender of large capacity magazines and this Court has no reason
    

    
to anticipate that the chief law enforcement officer of the State
    

    
of New Jersey would change his position and authorize prosecution
    

    
of those individuals who voluntarily surrendered such magazines for
    

    
the possession thereof. Moreover, any claimed uncompensated
    

    
"taking" as a result of voluntary surrender could not be
    

    
irreparable because, even assuming such a taking was not a valid
    

    
exercise of the police power, plaintiffs could be made whole
    

    
through monetary compensation.
    

     
    

    
Plaintiffs assert that the immunity provided by the voluntary
    

    
surrender statute is inadequate because it would not immunize them
    

    
from prosecution for manufacture, sale, disposal, shipment, or
    

    
transport of large capacity magazines. Were the State to attempt
    

    
to prosecute plaintiffs for manufacture, sale, or transport of such
    

    
items based solely upon a voluntary surrender pursuant to the
    

    
statute, the scope of the state immunity, and any constitutional
    

    
questions presented thereby, would best be resolved in the state
    

    
forum, and are too speculative to be dealt with here.
    

     
    

    
II. FEDERAL PREEMPTION RE: B-B AND AIR PELLET GUNS
    

     
    

    
Plaintiffs correctly assert that the New Jersey statute's
    

    
definition of semi-automatic shotguns may include certain B-B and
    

    
pellet-firing air guns. New Jersey law defines a shotgun as, among
    

    
other things, "any firearm designed to be fired from the shoulder
    

    
which does not fire fixed ammunition." N.J.S.A. 2C:391(n). B-B
    

    
guns and pellet-firing air guns fall within the statutory
    

    
definition of firearms. See N.J.S.A. 2C:39-1(f). Also, neither B-
    

    
B nor pellet-firing air guns fire fixed ammunition-i.e., ammunition
    

    
encased in an explosive cartridge which propels the round. Thus,
    

    
semiautomatic B-B and pellet-firing air guns designed to be fired
    

    
from the shoulder and which have either a magazine of more than six
    

    
rounds, a pistol grip, or a folding stock, would be classified as
    

    
assault firearms under N.J.S.A. 2C:39-1(w)(3). Moreover, any semi-
    

    
automatic B-B or pellet guns that had non-detachable magazines in
    

    
excess of fifteen rounds would fall within the statutory definition
    

    
of large capacity magazines. See N.J.S.A. 2C:39-1(y). [footnote
    

    
4]
    

     
    

    
The relevant inquiry, therefore, is whether the language in 15
    

    
U.S.C. section 5001(g), that "no state shall-(ii) prohibit (other
    

    
than prohibiting the sale to minors) the sale of traditional B-B,
    

    
paint-ball, or pellet-firing air guns that expel a projectile
    

    
through the force of air pressure," conflicts with the New Jersey
    

    
statute. At the outset, it is important to understand the
    

    
distinction between B-B guns and air-powered pellet guns. [footnote
    

    
5] "B-B" refers to the smallest calibre of shot. The B-B is ball-
    

    
shaped, and made of lead, lead alloy, or steel. B-Bs need not be
    

    
propelled by air: they may, for instance, be propelled by a spring
    

    
mechanism. It appears that B-Bs generally are fired from
    

    
smoothbore barrels. In contrast, a pellet may be one of three
    

    
higher calibres, .117 [sic] cal., 5 mm, or .22 cal. The pellet is
    

    
a nonspherical, semi-hollow projectile made of lead or lead alloy. 
    

    
When fired from an air gun, the gases in the barrel cause the
    

    
pellet to expand and grip the rifling in the barrel. The rifling
    

    
causes the pellet to spin and thereby produces a more accurate shot
    

    
than the B-B. Thus, the term "B-B gun" refers only to the calibre
    

    
and type of projectile the gun fires, whereas a "pellet-firing air
    

    
gun that expel a projectile through the force of air pressure"
    

    
refers not only to the projectile, but to the means of propelling
    

    
it.
    

     
    

    
The defendants argue that the word "traditional" must be read
    

    
as modifying B-B, paint-ball, and pellet-firing air guns, despite
    

    
the use of the disjunctive "or" in the statute. They further
    

    
contend that, in using the word "traditional," the Congress meant
    

    
to refer only to single-shot B-B and pellet-firing air guns, not
    

    
semiautomatic ones. However, the statute's plain language,
    

    
legislative history, and subsequent interpretation by the
    

    
Department of Commerce suggests a contrary construction.
    

     
    

    
The most apparent contradiction in defendants' position can be
    

    
found in the express language of the statute. For the term
    

    
"traditional" to modify both B-B and pellet-firing air guns, the
    

    
term logically must also apply to paint-ball guns. According to
    

    
the Congressional Record, paint-ball guns fire "projectiles for
    

    
marking trees, or paintball games or other similar purposes." 134
    

    
Cong.Rec. S15531 (daily ed. October 11, 1988) (statement of Sen.
    

    
Dole); 134 Cong. Rec. H10071 (daily ed. October 12, 1988)
    

    
(statement of Rep. Dingell). Such devices are of comparatively
    

    
recent origin and plaintiffs have asserted without opposition that
    

    
there are no "traditional" paint-ball guns, and that those used for
    

    
paintball games are a relatively new development. [footnote 6]
    

     
    

    
The strongest indicia of congressional intent, however, are
    

    
section 5001's enabling regulations established by the Department
    

    
of Commerce at 15 C.F.R. section 1150.1-1150.5. [footnote 7] In 15
    

    
C.F.R. section 1150.1, Commerce interprets "traditional B-B, paint-
    

    
ball, or pellet-firing air guns" as those guns that are described
    

    
in American Society for Testing and Materials standard F 589-85,
    

    
Standard Consumer Safety Specification for Non-Powder Guns (June
    

    
28, 1985). Section 1.1, which defines the scope of the
    

    
specifications, expressly covers "non-powder guns. commonly
    

    
referred to as BB guns, air, guns, and pellet guns, which propel a
    

    
projectile by means of energy released by compressed air,
    

    
compressed gas, mechanical spring action, or a combination there-
    

    
of...." Id. In adopting this definition, Commerce thereby gave a
    

    
very broad reading to the preemptive provisions of section 5001(g),
    

    
for section 1.1 appears to cover all B-B and pellet guns, so long
    

    
as the guns do not use gunpowder to propel their rounds. 
    

    
Conmerce's interpretation is reasonable, and the defendants have
    

    
provided no evidence to the contrary. [footnote 8]
    

     
    

    
Further support for this interpretation may be found in the
    

    
legislative history of section 5001. The Senate introduced section
    

    
5001 as an amendment to the House amendments to Senate Bill 1382,
    

    
the Federal Energy Management Improvement Act. The amendment,
    

    
entitled "Penalties for Entering Into Commerce of Imitation
    

    
Firearms," required that toy, look-alike or imitation firearms have
    

    
a blaze orange plug affixed in their barrels recessed no more than
    

    
6 millimeters from the muzzle end of the barrel. [footnote 9] The
    

    
bill was introduced on the impetus of the Hobby and Toy Industry or
    

    
America and the Toy Manufacturers of America. 134 Cong.Rec. S15531
    

    
(daily ed. October 11, 1988) (statement of Sen. Dole). [footnote
    

    
10] The purpose of the bill was expressed in the House debate:
    

     
    

    
The potential hazards and misuses of an object that
    

    
resembles a deadly weapon ought to be evident to everyone, A
    

    
person threatened with such an object can scarcely conduct a
    

    
detailed examination to determine whether it is in fact real. 
    

    
Similarly, a police officer can hardly be expected to make a
    

    
detailed inquiry concerning just how real the object in the
    

    
hands of an adversary is before firing his gun. For these
    

    
reasons, misuse of toy guns presents a real hazard and a prob-
    

    
lem that needs to be addressed.
    

     
    

    
134 Cong.Rec. H10071 (daily ed. October 12, 1988) (statement of
    

    
Rep. Moorhead).
    

     
    

    
Express reference as to the meaning of the terms "traditional
    

    
B-B, paint-ball, or pellet firing air gun" appears in the statement
    

    
of Senator Dole of Kansas:
    

     
    

    
B-B or pellet firing air guns such as those made by the
    

    
Daisy Manufacturing Co. and Crosman air guns are also ex-
    

    
empted. Similarly, the provision does not intend that paint-
    

    
pellet guns firing projectiles for marking trees, or paintball
    

    
games or other similar purposes such as those manufactured by
    

    
the Nelson Paint Co. be covered.
    

     
    

    
134 Cong.Rec. S15531 (daily ed. October 11, 1988) (statement of
    

    
Sen. Dole); accord, 134 Cong.Rec. H10071 (daily ed. October 12,
    

    
1988) (statement of Rep. Dingell). These comments expressly
    

    
identify Daisy B-B guns and air guns, as well as Crosman air guns,
    

    
as examples of guns exempt from state regulations prohibiting their
    

    
sale. In the absence of any contrary indicia of congressional
    

    
intent, it appears that the exception carved out for air guns
    

    
applied, inter alia, to all air guns made by Daisy and Crosman at
    

    
the time the legislation was enacted.
    

     
    

    
Defendants have submitted the affidavit of Peter Harvey,
    

    
Special Assistant Attorney General, who avers that Daisy and
    

    
Crosman representatives indicated to him that, with one exception,
    

    
none of their airpowered or B-B rifles are semi-automatic. In
    

    
opposition, plaintiffs have submitted recent catalog advertisements
    

    
for various semi-automatic air rifles, albeit rifles manufactured
    

    
by companies other than Crosman or Daisy, [footnote 11] as well as
    

    
semi-automatic pistols with magazines in excess of fifteen rounds. 
    

    
Some of these pistols are made by Crosman and Daisy, [footnote 12]
    

    
and would be banned under New Jersey's prohibition on large
    

    
capacity magazines. The Court finds, therefore, that the Congress
    

    
intended to remove from the states the power to prohibit the sale
    

    
of such B-B and air-powered pellet guns as are covered under the
    

    
New Jersey statute.
    

     
    

    
Having determined that the New Jersey statute regulates a
    

    
class of firearms that falls within the preemptive provisions of
    

    
section 5001(g), the Court next considers whether the statute
    

    
constitutes a prohibition on the sale of such firearms. In the
    

    
case of semi-automatic air pistols with a non-detachable magazine
    

    
exceeding fifteen rounds, the prohibition is express. In the case
    

    
of a person wishing to purchase semiautomatic air rifles classified
    

    
as assault firearms under N.J.S.A. 2C:39-1(w)(3), the prohibition
    

    
is de facto, for that person must go through the extremely rigorous
    

    
qualification process required for receiving a license to own a
    

    
machine gun.
    

     
    

    
To receive a license for air rifles fitting the definition of
    

    
semi-automatic shotguns, the applicant first must be qualified to
    

    
carry a handgun under N.J.S.A. 2C:58-4. [footnote 13] The applicant
    

    
then must file with the New Jersey Superior Court a written
    

    
application, setting forth in detail the reasons for desiring such
    

    
a license. The Superior Court thereafter refers the application to
    

    
the county prosecutor for investigation and recommendation. Based
    

    
upon the recommendation, the Superior Court may grant the license
    

    
only upon an express finding that the public safety and welfare so
    

    
require. The Superior Court also may place any conditions and
    

    
limitations on the license as it deems in the public interest. 
    

    
Applicants must pay a $76 application fee with each application. 
    

    
Any issued license, may be valid for no more than two years. Once
    

    
the license expires, the applicant must reapply as if he or she
    

    
were applying for the first time. See N.J.S.A. 2C:68-5.
    

     
    

    
These restrictions are so substantial that they create a de
    

    
facto prohibition on the sale of B-B and air guns that may fall
    

    
under New Jersey's statutory definition of semi-automatic firearms.
    

    
Any potential owner must qualify under two lengthy application
    

    
procedures, and may be refused at any time the State determines
    

    
such a license does not serve the public interest. This regulatory
    

    
scheme vests unbridled discretion over the licensing process with
    

    
the State.
    

     
    

    
In sum, plaintiffs have carried their burden of showing that
    

    
New Jersey's ban on large capacity magazines and regulation of
    

    
semi-automatic assault weapons are preempted by federal law to the
    

    
extent they prohibit the sale of traditional B-B and pellet-firing
    

    
air guns. Plaintiffs also have demonstrated the possibility of
    

    
irreparable injury, because owners of such firearms and large
    

    
capacity magazines face the threat of prosecution. Moreover, the
    

    
public interest is served in ensuring that congressional regulation
    

    
of interstate commerce supercedes conflicting and contradictory
    

    
state regulations. Finally, there is no suggestion of inequitable
    

    
conduct by plaintiffs, or that granting plaintiffs such an
    

    
injunction would in any way be inequitable. Accordingly,
    

    
plaintiffs are entitled to preliminary injunctive relief. See
    

    
Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505
    

    
(1974).
    

     
    

    
The Court is well aware of the ramifications of its findings. 
    

    
The Congress, while attempting to reduce the commission of crimes
    

    
with toy guns, has removed from the states the ability to prohibit
    

    
the sale of more dangerous, high-powered air guns, some of which
    

    
appear capable of inflicting serious bodily injury or death. There
    

    
is no dispute that the Congress may exercise such power under the
    

    
Commerce Clause however, and the wisdom or desirability of such an
    

    
exercise is an issue for the Congress and not this Court.
    

     
    

    
III. FEDERAL PREEMPTION RE: INTERSTATE TRANSPORTATION OF UNLOADED,
    

    
INACCESSIBLE WEAPONS
    

     
    

    
Plaintiffs Covey and Mohler contend that the recent amendments
    

    
to New Jersey's gun control law are preempted by the federal
    

    
statute providing for the interstate transportation of firearms. 18
    

    
U.S.C. section 926A. The federal statute provides, in essence,
    

    
that anyone may transport, firearms from one state in which they
    

    
are legal, through another state in which they are illegal, to a
    

    
third state in which they are legal, provided the firearms are
    

    
transported in a prescribed, safe manner. [footnote 14] Plaintiffs
    

    
argue that, under the recent amendments, they may be arrested for
    

    
transporting firearms through New Jersey, even though they have
    

    
complied with the federal statute. In support, they rely on the
    

    
affidavit of the police chief of Lebanon Township, in which he
    

    
avers:
    

     
    

    
I am aware that there is some federal law that provides
    

    
an exception whereby interstate travellers may travel with an
    

    
unloaded gun locked in their trunk, but so far as I am aware,
    

    
that would not make them an less subject to arrest in New
    

    
Jersey either under the new Act or under previous New Jersey
    

    
gun laws. If the federal law provides them some sort of
    

    
defense, that is up to the prosecutor and/or judge in the
    

    
court in which they are arraigned.
    

     
    

    
Aff. of Harry C. Creveling at para. 5.
    

     
    

    
The Attorney General argues that the federal law does not
    

    
preempt state gun control laws, and that, consequently, there is no
    

    
conflict between section 926A and the new amendments. The Attorney
    

    
General further argues that, although the new statute does not have
    

    
a provision expressly recognizing that the statute is subject to
    

    
preemption by federal law, no such requirement is needed, as the
    

    
Constitution's Supremacy Clause provides such a guarantee.
    

     
    

    
The Attorney General's position on this point is persuasive.
    

    
A straightforward reading of section 926A demonstrates that the
    

    
statute prohibits only regulation of the interstate transport of
    

    
firearms, and in no way restricts a state's power to regulate
    

    
firearms within the state. See Oefinger v. Zimmerman, 601 F.Supp.
    

    
405, 412 (W.D. Pa.1984), aff'd, 779 F.2d 43 (3d Cir.1985). Indeed,
    

    
in section 927, the Congress clearly expressed its intent not to
    

    
occupy the field of intrastate gun control regulation:
    

     
    

    
No provision of this chapter shall be construed as
    

    
indicating an intent on the part of the Congress to occupy the
    

    
field in which such provision operates to the exclusion of the
    

    
law of any State on the same subject matter, unless there is
    

    
a direct and positive conflict between such provision and the
    

    
law of the State so that the two cannot be reconciled or
    

    
consistently stand together.
    

     
    

    
18 U.S.C. section 927. The Court sees no conflict between section
    

    
926A and New Jersey 's recently amended gun control law. The risk
    

    
that a person transporting firearms in accordance with section 926A
    

    
will be arrested in New Jersey for possessing an illegal firearm or
    

    
magazine is the same risk that person encounters whenever he or she
    

    
drives through a state where such weapons are illegal. For
    

    
plaintiffs' predicted irreparable injury to become realized, law
    

    
enforcement officers throughout New Jersey would have to disregard
    

    
the federal law in its entirety. The threat of such arguably
    

    
random and unauthorized acts is speculative at best, and does not
    

    
constitute irreparable injury, the Lebanon police chief's affidavit
    

    
notwithstanding. [footnote 15] Moreover, the Court is aware of no
    

    
requirement that the New Jersey law must contain an express
    

    
acknowledgement of the Supremacy Clause and preemptive legislation
    

    
in order to pass constitutional muster. Accordingly, plaintiffs'
    

    
interstate transportation claim must fail as a matter of law, and
    

    
will be dismissed. An order consistent with this opinion will be
    

    
entered.
    

     
    

    
ORDER
    

     
    

    
For the reasons set forth in this Court's opinion filed this
    

    
day, August 15, 1990;
    

     
    

    
IT IS ORDERED that the Court does hereby abstain from decision
    

    
under Railroad Comm'n of Texas v. Pullman, 312 U.S. 496, 61 S.Ct.
    

    
643, 85 L.Ed. 971 (1941), as to the first claim of plaintiff's
    

    
complaint, until such time that either party can demonstrate that
    

    
the underlying issues of state law have been resolved in the first
    

    
instance by the New Jersey state courts, or that further abstention
    

    
is otherwise unwarranted; and it is
    

     
    

    
FURTHER ORDERED that plaintiffs' motion for a preliminary
    

    
injunction be and is hereby granted in part; and it is
    

     
    

    
FURTHER ORDERED that defendants, their employees, officers,
    

    
and/or agents be and are hereby preliminarily enjoined from
    

    
enforcement of or prosecution under, N.J.S.A. 2C:39-3(j), and
    

    
N.J.S.A. 2C:39-9(h) against any and all owners of semi-automatic B-
    

    
B or pellet-firing air guns whose guns contain non-detachable
    

    
magazines in excess of fifteen (15) rounds; and it is
    

     
    

    
FURTHER ORDERED that defendants, their employees, officers,
    

    
and/or agents be and are hereby preliminarily enjoined from
    

    
enforcement of, or prosecution under, N.J S.A. 2C:39-5(f) and
    

    
N.J.S.A. 2C:39-9(g) against any and all owners of semi-automatic B-
    

    
B or pellet-firing air guns whose guns are designed to be fired
    

    
from the: shoulder, and have either a magazine capacity in excess
    

    
of six (6) rounds, a folding stock, or a pistol grip; and it is
    

     
    

    
FURTHER ORDERED that plaintiffs' motion for a preliminary
    

    
injunction be and is hereby denied in all other respects; and it is
    

     
    

    
FURTHER ORDERED that plaintiffs' interstate travel claim be
    

    
and is hereby dismissed pursuant to Fed.R.Civ.P. 12(b)(6).
    

     
    

    
FOOTNOTES
    

     
    

    
1. Plaintiffs, are the Coalition of New Jersey Sportsmen, Inc.; the
    

    
National Rifle Association of America; the Congress of Racial
    

    
Equality; the New Jersey Firearms and Sporting Goods Dealers
    

    
Association, Inc. and its president Robert Viden; Law Enforcement
    

    
for Preservation of the Second Amendment, a non-profit organiza-
    

    
tion; Preston K. Covey and David G. Mohler, individual firearm
    

    
owners who transport their guns through New Jersey; and various un-
    

    
named residents of New Jersey who own large capacity magazines.
    

     
    

    
2. The statute defines large capacity magazine as "a box, drum,
    

    
tube or other container which is capable of holding more than 15
    

    
rounds of ammunition to be fed continuously and directly therefrom
    

    
into a semiautomatic firearm." N.J.S.A. 2C:39-1(y).
    

     
    

    
3. Weapons are defined under N.J.S.A. 2C:39-1(r) as "anything
    

    
readily capable of lethal use or of inflicting serious bodily
    

    
injury. The term includes, but is not limited to . . . (2) compo-
    

    
nents which can be readily assembled into a weapon . . . ."
    

     
    

    
4. If the magazines were detachable and not an integral part of a
    

    
firearm not otherwise regulated under the New Jersey statute, then
    

    
only the magazine would be banned, not the firearm. The ban on
    

    
large capacity magazines in such instances would not be preempted
    

    
under section 5001(g), as such magazines are neither traditional B-
    

    
B, paint-ball, or pellet-firing air guns.
    

     
    

    
5. The following definitions derive from American Society for
    

    
Testing and Materials ("ASTM") Standard F 589-85, Standard Consumer
    

    
Safety Specification for Non-Powder Guns (June 28, 1985),
    

    
incorporated by reference in 15 C.F.R. section 1150.1, as well as
    

    
ASTM Standard F 590-84, Standard Consumer Safety Specification for
    

    
Non-Powder Gun Projectiles and Propellants (reapproved 1989),
    

    
referenced in ASTM F 589-84 section 2. 1. See also Toy Guns:
    

    
Involvement in Crime & Encounters With Police, U.S. Justice Dept.
    

    
Bureau of Justice Statistics (June 1990), a research project
    

    
mandated by the United States Congress P.L. 100-615 [15 U.S.C.
    

    
section 5001(c)].
    

     
    

    
6. Neither party asserts that the federal preemptive provision
    

    
concerning paint-ball guns is implicated here. Such guns do not
    

    
appear to be covered by the New Jersey statute which defines a
    

    
"weapon" as "anything readily capable of lethal use or of
    

    
inflicting serious bodily injury." N.J.S.A. 2C:39-1(r). As the
    

    
comments of Rep. Dingell make clear, the paint-ball guns excluded
    

    
from state regulation include those for marking trees and for
    

    
playing paintball games, activities which apparently do not, and
    

    
are designed not to, create a risk of serious bodily injury or
    

    
death.
    

     
    

    
7. Department of Commerce regulations are afforded great deference
    

    
in statutory interpretation. Cf. Helvering v. Winmill, 305 U.S.
    

    
79, 59 S.Ct. 45, 83 L.Ed. 52 (1938).
    

     
    

    
8. While one may suggest that Commerce's reading was overly
    

    
expansive in that standard F 589-85 arguably covers "non-
    

    
traditional" as well as "traditional" B-B guns, this Court does not
    

    
have before it any evidence from which such a distinction can be
    

    
made, and does not consider the argument at this time.
    

     
    

    
9. The statute provides an exception for "any look-alike,
    

    
nonfiring, collector replica of an antique firearm developed prior
    

    
to 1898, or traditional B-B, paint-ball, or pellet-firing air guns
    

    
that expel a projectile through the force of air pressure." 15
    

    
U.S.C. section 5001(c).
    

     
    

    
10. These organizations apparently supported this bill in
    

    
preference to one introduced by Representative Levine of
    

    
California, H.R. 3433, which would have banned such devices
    

    
altogether.
    

     
    

    
11. Such firearms include the Air Arms Firepower K-Carbine Standard
    

    
Air Rifle, a weapon modelled after the M-16 assault rifle, that
    

    
comes available with a 35-shot auto-load system. From 1987 to
    

    
1988, Crosman manufactured and sold its Z-77, a carbon-dioxide-
    

    
powered replica of the Uzi submachine gun.
    

     
    

    
12. Examples of such pistols include the Crosman 338 Auto Pistol, 
    

    
an air-powered B-B pistol with a 20-shot magazine and the 
    

    
Daisy/Youth Line Model 1500 Pistol, a B-B pistol with a 60-shot 
    

    
reservoir and a gravity feed magazine.
    

     
    

    
13. To qualify for a permit to carry a handgun under this
    

    
provision, the applicant must fill out an application, and have it
    

    
endorsed by three reputable persons who have known the applicant
    

    
for at least three years preceding the date of application. The 
    

    
applicant then must be fingerprinted by the chief police officer in
    

    
the municipality where he or she resides and must give the police 
    

    
chief a complete description of each handgun he or she intends to
    

    
carry. Applicants who have been convicted of a crime, who suffer
    

    
from drug addiction, mental illness, alcoholism, or from any
    

    
disability that makes it unsafe to handle firearms, or who are
    

    
under the age of eighteen, or who, in the state's discretion, pose
    

    
a risk to the public health, safety or welfare, may not receive
    

    
such a license. If the applicant does not fall into one of these
    

    
prohibited categories, he or she may be entitled to a permit if he
    

    
or she is "thoroughly familiar with the safe handling and use of
    

    
handguns, and ... has a justifiable need to carry a handgun." If a
    

    
license is issued, the applicant must pay a permit fee of $20. 
    

    
N.J.S.A. 2C:58-4.
    

     
    

    
14. The statute provides in full:
    

     
    

    
Notwithstanding any other provision of any law or any rule or
    

    
regulation of a State or any political subdivision thereof, any
    

    
person who is not otherwise prohibited by this chapter from
    

    
transporting, shipping, or receiving a firearm shall be entitled to
    

    
transport a firearm for any lawful purpose from any place where he
    

    
may lawfully possess and carry such firearm to any other place
    

    
where he may lawfully possess and carry such firearm if, during
    

    
such transportation the firearm is unloaded, and neither the
    

    
firearm nor any ammunition being transported is readily accessible
    

    
or is directly accessible from the passenger compartment of such
    

    
transporting vehicle: Provided, That in the case of a vehicle
    

    
without a compartment separate from the driver's compartment the
    

    
firearm or ammunition shall be contained in a locked container
    

    
other than the glove compartment or console. 18 U.S.C. section
    

    
926A.
    

     
    

    
15. Based on the police chief's affidavit, plaintiffs arguably
    

    
could seek a preliminary injunction against him. The police chief,
    

    
however, is not a named defendant, and therefore this issue is not
    

    
before the Court.
    

     
    

    

    

    

    

    

    

    

    

    

    

    

    

    

    14. 

  14. 


    15. 

  15. 

    

    

    


    

    

    

    
Posted 

    

    

    

    IIRC, according to NJ law, found property must be returned to the owner, if known. If not claimed within 90 days, the finder can claim ownership. I am not sure if there is an exemption for firearms.
    

    Yes, but wouldn't this be a different situation? He bought the house and the contents therein now belong to him, he didn't find them in the street or some public space. I understand about the need to have an FPID or PPP to legally acquire firearms in NJ, but this would almost seem like two different aspects in law are conflicting with each other.
    

    

    

    

    

    

    

    

    

    

    

    

    

    

    16. 

  16. 


    17. 

  17. 

    

    

    


    

    

    

    
Posted 

    

    

    

    sigh... I can't build a complete AR till I turn 21 and at that point I will be buying pistols every month until my money or wish list runs out.
    

    I would think you could buy an AR receiver from a non licensed NJ resident. You would only need a valid FPID card and fill out a COE. ATF regs on 21+ for receiver purchase only applies to licensed dealers.
    

    

    

    

    

    

    

    

    

    

    

    

    

    

    18. 

  18. 

    

    

    


    

    

    

    
Posted 

    

    

    

    I understand but aside from the tax issue the transfer would then be legal.  This is an important issue for me at this moment because I have an upper at an FFL in PA who is pinning the muzzle brake and removing the bayo lug to make it nj compliant.  I am also looking to buy a complete lower on Black Friday that I plan to have sent to him for the pinning of the stock and the transfer. 
    

    It would be legal for him to transfer it to you according to ATF regs on what type of firearms can be transferred to out of state residents. But, if he understands the excise tax issue he probably won't want to do the transfer, so you should ask him before you get the receiver sent there..........
    

    

    

    

    

    

    

    

    

    

    

    

    

    

    19. 

  19. 

    

    

    


    

    

    

    
Posted 

    

    

    

    What if the shop in PA has a complete lower with stock and you send them your complete upper and they put it together before transferring it to you?  At that point aren't they transferring a complete rifle to you?  
    

    Then federal excise tax kicks in..........complete guns have this built into the price from the factory, gun parts do not - part of the reason it's cheaper to build your own AR from parts then buy one complete. The dealer would then need to collect the excise tax, most are not set up to do so.
    

    

    

    

    

    

    

    

    

    

    

    

    

    

    20. 

  20. 

    

    

    


    

    

    

    
Posted 

    

    

    

    I purchased my first handgun at 19 FTF, but that was a long time ago. From what I understand, the law now requires one to be 21 to own a handgun, period.
    

    The only thing I could find in the law says you must be 21 to get a PPP. The sections of the law about inheriting don't give a specific age, but do refer to the inheritor having to comply with the other requirements in the chapter - the quick look I took didn't mention age for ownership there either.........so I still don't know.
    

    

    

    

    

    

    

    

    

    

    

    

    

    

    21. 

  21. 


    22. 

  22. 

    

    

    


    

    

    

    
Posted 

    

    

    

    The bottom line is:
    

     
    

    People in NJ have been screwed over and had their lives ruined by cops and prosecutors in NJ when they have done nothing illegal, simply because the "authorities" didn't know the law well enough.  Even if you do clear you name, you will spend tens of thousands, if not into six figures, to clear your name........ this has actually happened to numerous law abiding gun owners. So, unless you have a lot of spare cash, getting charged will become a life changing event.
    

     
    

    Building 80% receivers into 100% receivers in NJ is illegal without a manufacturers license - it's black letter law (unlike a lot of other gun related things in NJ). If you want to do it, have at it, no one here is going to care. But, it's not a chance I would be willing to take.
    

     
    

    If you do get charged, and beat the rap, and set new favorable precedent for all of us, we will hold you up as our hero. But, I will not volunteer to be the martyr and piss away everything I have worked hard for in my life.
    

    

    

    

    

    

    

    

    

    

    

    

    

    

    23. 

  23. 


    24. 

  24. 

    

    

    


    

    

    

    
Posted 

    

    

    

    I am kind of suprised that there has never been any real challange in court of the M1 carbine. I would have figured it would have gotten the colt match target or M1a treatment by now.
    

    Colt and Springfield helped spur these lawsuits because they had a vested interest in getting the law overturned. No one was making M1 carbines at that time (and really have only recently started), so there was no industry support.
    

     
    

    At this point, I think everyone is hoping/striving to have the entire AWB ruled unconstitutional, which was not something even thought remotely possible in the 90's.
    

    

    

    

    

    

    

    

    

    

    

    

    

    

    25. 

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