2nd Amendment vs NJ Administrative Code

[Downr@nge 22]

Since the McDonald vs Chicago ruling, isn't it correct to say that NJ will eventually have to add the 2nd amendment to the state constitution and get rid of the Administrative Code in regards to firearms?

 

Also, Black's Law Dictionary 9th Edition defines "Bear" as "to carry or burden with extra weight" (para). The SCOTUS justices also said we have a right to keep and bear arms. Isn't this legal groundwork for national "shall issue" carry based on the Mcdonald vs Chicago ruling?

[FFDP82 4]

Yes, it does.

 

However, it won't come overnight, and if it ever does get to a point where NJ has gun laws that are similar to the rest of the country, it will be after several legal battles and probably almost another decade of work.

 

In NJ you have one hell of an uphill battle - from politicians who never change the laws willingly, to a large majority of citizens who have no experience whatsoever with guns and know only the bad things they've been told, to even gun enthusiasts who are perfectly complacent with and in some cases even supportive of NJ's highly repressive laws.

 

I would contend that NJ's mix of people and extremely well-thought out gun control is the most difficult fight of all. For example, did you know we do not have an "assault weapons" ban, you "just" need a special may-issue license to own them. Same with CCW. Places like Chicago and DC were easier to fight in court because they outright banned things. NJ was more clever in their wording and accomplished bans through may-issue instead.

[Downr@nge 22]

I sure hope Alan Gura and Alan Gottlieb have their sites set on NJ's unfair gun laws. For me, it all starts this Nov 2nd when I vote for the pro 2A candidate!

[FFDP82 4]

I sure hope Alan Gura and Alan Gottlieb have their sites set on NJ's unfair gun laws.

 

They're looking at us. Unfortunately, we're so vastly different than almost anywhere else in the USA's gun laws, that they need to first set precedents with pretty much every other gun control state before they can even start to work on NJ.

 

The only other state in the entire USA where you need a permit to buy a rifle or shotgun is Illinois, and Illinois's FOID system is nowhere close to as bad as NJ's is (done by mail, only $10 in fees, tied to Driver's License) No other state allows local officials to hold complete power over the citizen and arbitrarily deny/delay the exercise of someone's 2A rights for ridiculous amounts of time, or has the "cluster-fugg" of inconsistency from town to town that NJ has.

 

And don't even get me started on the hilarious mess of laws that classify a Daisy Red Rider BB gun the same as a Barrett .50cal sniper rifle.

[Parker 213]

The only other state in the entire USA where you need a permit to buy a rifle or shotgun is Illinois, and Illinois's FOID system is nowhere close to as bad as NJ's is (done by mail, only $10 in fees, tied to Driver's License) No other state allows local officials to hold complete power over the citizen and arbitrarily deny/delay the exercise of someone's 2A rights for ridiculous amounts of time, or has the "cluster-fugg" of inconsistency from town to town that NJ has.

How the state implemented this and got away with it still galls me, yet this statement is so true. It is pretty amazing that these measures have been in place so long and yet have gone unchallenged in New Jersey. The culture of New Jersey reflects that unchallenged stance. How things will ever change here to a more pro-2A position still has me concerned. And I agree too, that it will take a L...O...N...G... time to affect change. God-willing, I'll be retired and moved in a few years and New Jersey will be a memory for me. From a big-picture perspective, New Jersey is not the state I will retire in.

[intercooler 41]

well if you notice, the NRA collects the dues, but doesn't do anything to help anything here in NJ. I suspect that If they came here, challenged and lost, they stand to lose credibility with the rest of the states....so they don't contest NJ gun laws. This in effect affirms them and makes our laws more attractive to other gun control crazy places and elected officials.

I will be 98% certain that nothing here is going to change anytime soon, unless it gets worse.

[GoNRA 12]

I sure hope Alan Gura and Alan Gottlieb have their sites set on NJ's unfair gun laws. For me, it all starts this Nov 2nd when I vote for the pro 2A candidate!

 

+1 that is the attitude every gun owner needs in this state, especially the ones on the couch at home flipping threw channels when it takes 5 minutes to get out to the polls and vote.

[EngineerJet 191]

http://www.youtube.com/watch?v=ve8ExIdPEC8 (part 1)

http://www.youtube.com/watch?v=MY5i7ty-ZOY&NR=1 (part 2)

 

alan gura explaining what happened with mcdonald. this is why i let my NRA membership lapse... although he never mentions them by name, he takes a couple innocent shots at them if you pay attention

[Bob B 103]

I apologize in advance for the long post.

 

Just to clarify, there are two main components of NJ “law” that cause problems for us.

 

The first are the statutes themselves, N.J.S.A. (New Jersey Statutes Annotated), specifically, 2C:39-1 et seq, and, 2C:58-1 et seq (“et seq” is fancy lawyer talk for “and what follows”).

 

Next is the Administrative Code, N.J.A.C (New Jersey Administrative Code), specifically, Title 13, Chapter 54. Title 13 covers Law and Public Safety, Chapter 54 covers Firearms and Weapons.

 

The New Jersey State Police (NJSP) are authorized by the statutes mentioned above to create administrative rules in order to be able to enforce the statutes. For example, they can make a rule that requires ammunition retailers to documents that they verified the age of purchasers of handgun ammunition to be at least 21. The NJSP are also authorized to verify that these rules are being followed, in this case by inspecting the retailers’ log books. These rules, once adopted, become the Administrative Code.

 

The Administrative Code is not punitive. You cannot go to jail for violating the Administrative Code. However, it still has teeth, because, the licensing of firearms and ammunition retailers is governed by N.J.A.C. and if the retailers don’t follow the code, they can lose their licenses. When the N.J.A.C. goes beyond what the N.J.S.A. requires, or the NJSP inspectors create requirements that go beyond what the N.J.A.C. requires, the retailers generally just comply. They don’t want to risk losing their license, even temporarily.

 

An example of this is that, by statute, only the sale of hollow nose and dum dum ammunition is required to be recorded in a permanent log. However, N.J.A.C. requires that any ammunition that is interchangeable with a handgun must be recorded. Then the inspectors come along and hand a print out of all of the Thompson Contenders and tell the retailers that they must record nearly all ammunition sales.

 

Statutes can only be changed by passing a new bill into law, or by litigating. The Administrative Code can be challenged by any citizen with what is called a “petition for rulemaking.” I have a test petition in the works right now challenging the requirement described above. After experiencing some delay tactics, I am now supposed to receive a reply by mid Nov.

 

If anyone comes across anything in N.J.A.C. that does not match the requirements in N.J.S.A. please let me know and I will investigate to see if there is a potential to submit another petition.

 

The New Jersey Administrative Code can be found here: http://www.michie.com/newjersey/lpext.dll?f=templates&fn=main-h.htm&cp=

 

The New Jersey Statutes Annotated can be found here:

 

http://lis.njleg.state.nj.us/cgi-bin/om_isapi.dll?clientID=26751858&depth=2&expandheadings=off&headingswithhits=on&infobase=statutes.nfo&softpage=TOC_Frame_Pg42

 

 

[Downr@nge 22]

"Statutes can only be changed by passing a new bill into law, or by litigating. The Administrative Code can be challenged by any citizen with what is called a “petition for rulemaking.” I have a test petition in the works right now challenging the requirement described above. After experiencing some delay tactics, I am now supposed to receive a reply by mid Nov.

 

Well, now, as I understand it, you have a STRONG weapon in your camp in the form of Strict Scrutiny. Now, as I understand it, the government now has the burden of proving that a law. ordinance, or statute is necessary within a strictly narrow scope. Am I correct in this? Also, some of the language in Heller 1 & 2 (if I remember correctly) states that States cannot use any study they want as their proof when complying with strict scrutiny. I could be wrong, but I think I'm remembering correctly.

[Bob B 103]

"Statutes can only be changed by passing a new bill into law, or by litigating. The Administrative Code can be challenged by any citizen with what is called a “petition for rulemaking.” I have a test petition in the works right now challenging the requirement described above. After experiencing some delay tactics, I am now supposed to receive a reply by mid Nov.

 

Well, now, as I understand it, you have a STRONG weapon in your camp in the form of Strict Scrutiny. Now, as I understand it, the government now has the burden of proving that a law. ordinance, or statute is necessary within a strictly narrow scope. Am I correct in this? Also, some of the language in Heller 1 & 2 (if I remember correctly) states that States cannot use any study they want as their proof when complying with strict scrutiny. I could be wrong, but I think I'm remembering correctly.

 

A standard of scrutiny was not established in Heller or McDonald, but, generally, it is thought that at least intermediate scrutiny will apply. Either way, there is no important or compelling government interest in forcing a retailer to maintain a log of purchasers of ammunition that I can think of. But, the petition process is not a lawsuit, so who knows what may happen.

[halbautomatisch 60]

I apologize in advance for the long post.

 

Just to clarify, there are two main components of NJ “law” that cause problems for us.

 

The first are the statutes themselves, N.J.S.A. (New Jersey Statutes Annotated), specifically, 2C:39-1 et seq, and, 2C:58-1 et seq (“et seq” is fancy lawyer talk for “and what follows”).

 

Next is the Administrative Code, N.J.A.C (New Jersey Administrative Code), specifically, Title 13, Chapter 54. Title 13 covers Law and Public Safety, Chapter 54 covers Firearms and Weapons.

 

The New Jersey State Police (NJSP) are authorized by the statutes mentioned above to create administrative rules in order to be able to enforce the statutes. For example, they can make a rule that requires ammunition retailers to documents that they verified the age of purchasers of handgun ammunition to be at least 21. The NJSP are also authorized to verify that these rules are being followed, in this case by inspecting the retailers’ log books. These rules, once adopted, become the Administrative Code.

 

The Administrative Code is not punitive. You cannot go to jail for violating the Administrative Code. However, it still has teeth, because, the licensing of firearms and ammunition retailers is governed by N.J.A.C. and if the retailers don’t follow the code, they can lose their licenses. When the N.J.A.C. goes beyond what the N.J.S.A. requires, or the NJSP inspectors create requirements that go beyond what the N.J.A.C. requires, the retailers generally just comply. They don’t want to risk losing their license, even temporarily.

 

An example of this is that, by statute, only the sale of hollow nose and dum dum ammunition is required to be recorded in a permanent log. However, N.J.A.C. requires that any ammunition that is interchangeable with a handgun must be recorded. Then the inspectors come along and hand a print out of all of the Thompson Contenders and tell the retailers that they must record nearly all ammunition sales.

 

Statutes can only be changed by passing a new bill into law, or by litigating. The Administrative Code can be challenged by any citizen with what is called a “petition for rulemaking.” I have a test petition in the works right now challenging the requirement described above. After experiencing some delay tactics, I am now supposed to receive a reply by mid Nov.

 

If anyone comes across anything in N.J.A.C. that does not match the requirements in N.J.S.A. please let me know and I will investigate to see if there is a potential to submit another petition.

 

The New Jersey Administrative Code can be found here: http://www.michie.com/newjersey/lpext.dll?f=templates&fn=main-h.htm&cp=

 

The New Jersey Statutes Annotated can be found here:

 

http://lis.njleg.state.nj.us/cgi-bin/om_isapi.dll?clientID=26751858&depth=2&expandheadings=off&headingswithhits=on&infobase=statutes.nfo&softpage=TOC_Frame_Pg42

 

 

 

I find what you are saying here interesting since unless I missed it under 2C I believe most of the criteria used to define an "assault weapon" is listed in title 13

 

2C describes "assault weapons" as any firearm listed by name on the original Florio ban or a "substantially identical" firearm or a semiauto shotgun that holds more than 6 rounds, has a pistol grip or a folding stock and rifles with a fixed mag. capacity of more that 15 rounds.

 

Title 13 is where you find the language that says an "assault weapon" is defined as:

A semiauto rifle with a detach mag and two or more of the following: folding/tel stock, pistol grip, bayonet mount, threaded barrel/flash sup, or grenade launcher

A semiauto pistol with a detach mag and two or more of the following: mag that attaches outside the pistol grip, threaded barrel, shroud, weight in excess of 50oz, or semiauto version of a fullauto

A semiauto shotgun with two or more of the following: a folding/tel stock, pistol grip, fixed mag cap over six rounds or a detach mag

[Bob B 103]

I find what you are saying here interesting since unless I missed it under 2C I believe most of the criteria used to define an "assault weapon" is listed in title 13

 

2C describes "assault weapons" as any firearm listed by name on the original Florio ban or a "substantially identical" firearm or a semiauto shotgun that holds more than 6 rounds, has a pistol grip or a folding stock and rifles with a fixed mag. capacity of more that 15 rounds.

 

Title 13 is where you find the language that says an "assault weapon" is defined as:

A semiauto rifle with a detach mag and two or more of the following: folding/tel stock, pistol grip, bayonet mount, threaded barrel/flash sup, or grenade launcher

A semiauto pistol with a detach mag and two or more of the following: mag that attaches outside the pistol grip, threaded barrel, shroud, weight in excess of 50oz, or semiauto version of a fullauto

A semiauto shotgun with two or more of the following: a folding/tel stock, pistol grip, fixed mag cap over six rounds or a detach mag

 

Well, that's a whole other issue. Where that comes from is an Attorney General Opinion (see attached file).

The AW statute includes firearms that are "substantially identical" to those on the list. Since that is such a vague term, the AG had to come up with a definition of "substatially identical." This is an example of an AG creating law. The definition in the AG letter was then added to the Administrative Code. It can't be added to the statute without a bill going through the legislature, passing and being signed into law.

 

As an aside, this is why I have the opinion that the only thing needed to make NJ almost shall issue is for the AG to issue an opinion that states that post McDonald, self-defense is adequate justifiable need. Chris Christie could tell his AG to do that tomorrow if he wanted. But that's another topic.B)

3assltf.pdf

[njpilot 671]

Well, that's a whole other issue. Where that comes from is an Attorney General Opinion (see attached file).

The AW statute includes firearms that are "substantially identical" to those on the list. Since that is such a vague term, the AG had to come up with a definition of "substatially identical." This is an example of an AG creating law. The definition in the AG letter was then added to the Administrative Code. It can't be added to the statute without a bill going through the legislature, passing and being signed into law.

 

As an aside, this is why I have the opinion that the only thing needed to make NJ almost shall issue is for the AG to issue an opinion that states that post McDonald, self-defense is adequate justifiable need. Chris Christie could tell his AG to do that tomorrow if he wanted. But that's another topic.B)

 

 

I think it will be a very cold day in hell before this would happen.

[BRN169 6]

I think it will be a very cold day in hell before this would happen.

 

Cold as in −459.67°... I think we would have had more luck with Corzine doing that... LOL

[KpdPipes 388]

Yes, it does.

 

However, it won't come overnight, and if it ever does get to a point where NJ has gun laws that are similar to the rest of the country, it will be after several legal battles and probably almost another decade of work.

 

In NJ you have one hell of an uphill battle - from politicians who never change the laws willingly, to a large majority of citizens who have no experience whatsoever with guns and know only the bad things they've been told, to even gun enthusiasts who are perfectly complacent with and in some cases even supportive of NJ's highly repressive laws.

 

I would contend that NJ's mix of people and extremely well-thought out gun control is the most difficult fight of all. For example, did you know we do not have an "assault weapons" ban, you "just" need a special may-issue license to own them. Same with CCW. Places like Chicago and DC were easier to fight in court because they outright banned things. NJ was more clever in their wording and accomplished bans through may-issue instead.

 

yes and no...while there WAS a provision to Register them when the law was enacted, they were NOT transferrable, and NO MORE COULD BE REGISTERED. There is no longer a "May issue" permit for them. While there IS a LE exemption, the firearm actually "Belongs" to the agency, not the individual officer, it CANNOT be retained when he separates, it can only be retained by that agency, or transferred to another Active LEO, under the same provisions. Considering the Authorization letter has some pretty specific language, I dont know of ANY Chiefs who have signed off on an exemption for anything other than a firearm to be used for Duty Purposes... I;m sure there have to be some willing to roll the dice on a Perjury charge, but non I'm familiar with. Same goes for Magazines, although Off-duty weapons are included..with the caveat that upon separation the magazines must be disposed of out of state or retained by the Agency. I had courted the idea of getting an FN 5.7 as a ODW, but our armorer wouldnt authorize it because of the Caliber.

[KpdPipes 388]

"Statutes can only be changed by passing a new bill into law, or by litigating. The Administrative Code can be challenged by any citizen with what is called a “petition for rulemaking.” I have a test petition in the works right now challenging the requirement described above. After experiencing some delay tactics, I am now supposed to receive a reply by mid Nov.

 

Well, now, as I understand it, you have a STRONG weapon in your camp in the form of Strict Scrutiny. Now, as I understand it, the government now has the burden of proving that a law. ordinance, or statute is necessary within a strictly narrow scope. Am I correct in this? Also, some of the language in Heller 1 & 2 (if I remember correctly) states that States cannot use any study they want as their proof when complying with strict scrutiny. I could be wrong, but I think I'm remembering correctly.

Heller does not apply...DC is unique in that it is FEDERAL jurisdiction, which is why McDonals had to happen to get things cha nged on the state level. Heller (1 and 20 can be used as Guidelines, but they cannot be used below the Federal Courts level.

[KpdPipes 388]

Well, that's a whole other issue. Where that comes from is an Attorney General Opinion (see attached file).

The AW statute includes firearms that are "substantially identical" to those on the list. Since that is such a vague term, the AG had to come up with a definition of "substatially identical." This is an example of an AG creating law. The definition in the AG letter was then added to the Administrative Code. It can't be added to the statute without a bill going through the legislature, passing and being signed into law.

 

As an aside, this is why I have the opinion that the only thing needed to make NJ almost shall issue is for the AG to issue an opinion that states that post McDonald, self-defense is adequate justifiable need. Chris Christie could tell his AG to do that tomorrow if he wanted. But that's another topic.B)

I have personally known every AG but two for the past 23 years....there isnt ONE of those that would issue that opinion with bamboo skewers burning under their fingernails....no matter WHAT the party of the sitting Governor.... Edwards would have entertained it at least..but in the end I dont think he would have put his name on that one, and he was probably the BEST of the lot. RIP

[Bob B 103]

I have personally known every AG but two for the past 23 years....there isnt ONE of those that would issue that opinion with bamboo skewers burning under their fingernails....no matter WHAT the party of the sitting Governor.... Edwards would have entertained it at least..but in the end I dont think he would have put his name on that one, and he was probably the BEST of the lot. RIP

 

I agree that the chances of that happening are very slim, but I am curious - why do you think that is the case? Is it because that is what they believe, or is it out of fear of some kind of consequence?

[KpdPipes 388]

I agree that the chances of that happening are very slim, but I am curious - why do you think that is the case? Is it because that is what they believe, or is it out of fear of some kind of consequence?

personal politics.... AG's are by definition...Attorneys. Take a look at Ivy League Law Schools....they are usually Bastions of raging liberalism. I know dozens if not Hundreds of Attorneys...it comes with the job, and while i consider many of them to be friends..i can count the number of Conservative Attorneys from this state that I know on One hand. NJ doesnt have a "Gun Culture' anymore. MOST people dont have any exposure to firearms, other thna the "Guns-R-Bad mmmmkay" mantra of the Media, so they fear what they dont know.

[halbautomatisch 60]

Well, that's a whole other issue. Where that comes from is an Attorney General Opinion (see attached file).

The AW statute includes firearms that are "substantially identical" to those on the list. Since that is such a vague term, the AG had to come up with a definition of "substatially identical." This is an example of an AG creating law. The definition in the AG letter was then added to the Administrative Code. It can't be added to the statute without a bill going through the legislature, passing and being signed into law.

 

As an aside, this is why I have the opinion that the only thing needed to make NJ almost shall issue is for the AG to issue an opinion that states that post McDonald, self-defense is adequate justifiable need. Chris Christie could tell his AG to do that tomorrow if he wanted. But that's another topic.B)

 

 

 

So, with regards to AW, in the end what does that mean? I can think of several firearms that meet the AG's standard but are clearly not "substantially identical" to anything on Florio's list.

I can assume you would be arrested by the police for possession of an AW but the prosecutor would still have to prove in court that it is "substantially identical" to a listed firearm not using the AG's criteria.

 

Understand, I am under no illusions that NJ judges are likely to look at this objectively. Besides, who would want $20k - $100k proving your right even if by some chance you did win.

[FFDP82 4]

So, with regards to AW, in the end what does that mean? I can think of several firearms that meet the AG's standard but are clearly not "substantially identical" to anything on Florio's list.

I can assume you would be arrested by the police for possession of an AW but the prosecutor would still have to prove in court that it is "substantially identical" to a listed firearm not using the AG's criteria.

 

Understand, I am under no illusions that NJ judges are likely to look at this objectively. Besides, who would want $20k - $100k proving your right even if by some chance you did win.

 

Yes, I believe there are some people with weapons like SCARs etc. that they have left in standard configuration because of this logic.

 

Let's just say that they possess a lot more testicular fortitude than I.....

 

And yes, I can't imagine a court case to determine the legality this being very fair, or cheap.

[Shane45 807]

I have had enough discussion with actual legal council on the topic to know it would be a looser in this state. After listening to 101.5 and hearing how many people called in that got arrested for posetion of paintball guns without pistol permits etc etc have me wondering if it isnt time for a class action lawsuit against the entire state for the grey laws leaving LE in such a state of confusion!!!!!

[ChrisJM981 924]

If we can get a pro-gun organization with a high quality NJ firearms attorney (hmm) to challenge CCW & the AWB I'd gladly contribute a thousand or two towards the cause. I want a WWII era M-1 carbine!