Constitutional challenge to part of New Jersey's gun carry law rejected

[KpdPipes 388]

You guys did catch the part where I predicted Illinois would get Shall Issue CC before NJ, right? Two years ago. That was the reason I bumped this thread. It really is stunning.

That was a no brainer..Il had a total ban, which was the basis of the suit.  NJ's hangs solely on the "Justifiable Need" which is utterly subjective and arbitrated solely by the Judge.  EVERY Appellate division challenge to a rejection on JN grounds has failed, which is why SAF and ANJRPC have the Class-action waiting to be heard on the Federal Level.  Right now on Federal District courts we have 2 opposing rulings on Justifiable Need.  One Saying hat it is in fact Unconstitutional, and one (NY case) saying that it is NOT Unconstitutional.  At this point since the only way to go next is to SCOTUS, SAF and ANJRPC might be better off pulling their suit, depending on the makeup of the Jurisdictional court if they feel that the ruling would go against them.  Better to go into SCOTUS on a Tie than 2-1 against our position.

[raz-0 1,259]

Heller & McDonald has nothing to do with Conceal Carry. Did either have Conceal Carry laws? Was either about Bearing arms outside the house? No & No!

 

The important part is that courts keep on saying that they declared that your 2A protections only apply to the home and outside the home is entirely "compelling state interest" territory. What was in fact stated was that the rulings are NOT limited to the home, that there must be some implicit right to make use of arms outside the home, but that the decisions offer no definition of where the line between compelling state interest and the right to bear arms might be. 

 

The anti courts are probably right that they can get away with some severe restrictions on carrying. However, they seem to think that arbitrary and ill defined mystery requirements such as NJ have aren't a problem because you can have some degree of limitation, completely ignoring that the fact they are arbitrary makes them insufficient. 

 

They could drop the language they have now, and have a requirement that if you have ever had a moving violation or parking ticket, you cannot have a carry permit as you clearly have demonstrated a blatant disregard for the law. They'd be much more likely to get away with that, except it would exclude most everyone, including folks they currently hand them out to. 

[Anselmo 87]

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.

 

Justice Scalia on 2A

[Stonecoldchavez 92]

I didn't know this. Is he trying to pack the court, like FDR tried?

Are state court judges for life above a certain level or all reappointed? I vaguely remember a controversy where he didn't reappoint someone and was called a racist for it.

All State judges are apppointed/nominateed by the Governor. They have to be vetted first, then come before the Senate Judicial Committee for appointment. Christie wants to change the make-up of the state Supreme Court as they are 'activist' judge's (ie: COAH, Mt. Laurel decision, school funding). They passed unmandated and unfunded decisions into law. That is not their job; their job is to interpret the laws and not make them.

 

They get tenure after 7 years if they are reappointed and are for life or age 70 (in the NJ Constitution) which by the way they are trying to change to raise the retirement age. Once a judge retires at 70, they can be "rehired" for $ 300 a day as what is called a Recall Judge. They can only be a Recall Judge until age 80.

Yes, two years ago Christie did not reappoint a black Supreme Court Judge. He was a Democrat and had some very poor decisions. The Dems are livid at Christie for not reappointing the only black SCJ. That is why Sweeney is stonewalling him on other appointments down to the Superior Court level.

[SlipperyPete 0]

So with the way NJ denies/permits CCW is it reasonable to say that under these restrictions alone that a well regulated malitia could never exist in the state?  Therefore, the limitations posed by the state violate the 2A?  Or, have we effectively abandoned that part of the 2A, due to the military that we have from a Federal level?

[DevsAdvocate 112]

"Ahhh man, you guys actually ask for permission to carry a gun on you?  Shit, I just do it anyways"

-- Some gangbanger in Newark/Trenton/Camden/etc.

[SlipperyPete 0]

So with the way NJ denies/permits CCW is it reasonable to say that under these restrictions alone that a well regulated malitia could never exist in the state?  Therefore, the limitations posed by the state violate the 2A?  Or, have we effectively abandoned that part of the 2A, due to the military that we have from a Federal level?

Maybe I am confusing the collective right argument and the individual right argument.

[ryan_j 0]

So with the way NJ denies/permits CCW is it reasonable to say that under these restrictions alone that a well regulated malitia could never exist in the state?  Therefore, the limitations posed by the state violate the 2A?  Or, have we effectively abandoned that part of the 2A, due to the military that we have from a Federal level?

 

The Heller decision was that the 2A was an individual right. So the militia isn't really at issue here. 

 

The circuit courts have upheld discretionary issue in most cases.

Maryland was upheld because you could carry long guns in public without a permit.

New York was upheld because their law existed before the 2A.

Illinois was of course struck down because they had an outright ban. They are getting CCW.

 

 

NJ will be upheld/struck down because...?

[stever 16]

 

 

Are they serious???? Completely unacceptable. The right to keep and BEAR arms SHALL NOT BE INFRINGED. How do judges come to these decisions? They should be ashamed of themselves.

 

well, ya see the judges and a lot of politicians already carry...they have theirs...they are afraid of criminals and you..you don't have those worries..be happy, have a soda-pop..

[wooly bugger 1]

 

 

NJ will be upheld/struck down because...?

99% of applicants here are granted, so discretion isn't used as a de facto ban.

[ryan_j 0]

99% of applicants here are granted, so discretion isn't used as a de facto ban.

 

Well, that would work except that only ~600 people a year get carry permits, compared to how many in neighboring states like PA, DE, CT, or even NY.

[ryan_j 0]

   

 

How bout it.

 

Lisa Madigan got a 30 day extension of the deadline from the courts. Man, they are really dragging this one out.

 

http://wuisnews.wordpress.com/2013/06/04/illinois-receives-concealed-carry-deadline-extension/

[Stonecoldchavez 92]

The Heller decision was that the 2A was an individual right. So the militia isn't really at issue here. 

 

The circuit courts have upheld discretionary issue in most cases.

Maryland was upheld because you could carry long guns in public without a permit.

New York was upheld because their law existed before the 2A.

Illinois was of course struck down because they had an outright ban. They are getting CCW.

 

 

NJ will be upheld/struck down because...?

 

I unfortunately think NJ will win its court case. Not good for us. If I understand correcty, the NJ constitution (1947) does not state anywhere about the individual's right to carry and protect oneself. Even though the Federal Constitution has the 2A that does state we can have weapons. Unlike PA's Constitution which has that the people can arm themselves for protection.

 

Can some one else confirm my interpretation of the NJ vs. PA Constitutions?

[brocglock23 4]

You guys did catch the part where I predicted Illinois would get Shall Issue CC before NJ, right? Two years ago. That was the reason I bumped this thread. It really is stunning.

Don't worry, I did. Per our other conversation.

[CMJeepster 2,777]

"ARTICLE I - RIGHTS AND PRIVILEGES

1.   All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness."

[ryan_j 0]

I unfortunately think NJ will win its court case. Not good for us. If I understand correcty, the NJ constitution (1947) does not state anywhere about the individual's right to carry and protect oneself. Even though the Federal Constitution has the 2A that does state we can have weapons. Unlike PA's Constitution which has that the people can arm themselves for protection.

 

Can some one else confirm my interpretation of the NJ vs. PA Constitutions?

 

How does that work with the 10th amendment though? If it's in the state constitution, it doesn't mean that it supercedes the Federal one.  Also, NJ is simply silent on RKBA. It doesn't specifically prohibit RKBA.

 

I do think we will lose but not for that reason. I think we will lose because the LBJ appointee and the Obama appointee on the 3 judge panel will pull out some reason out of their butts to justify denying our rights. 

[ryan_j 0]

Going into history of the ratification of the 2A it gets interesting.

 

NJ was actually the 1st state to ratify the bill of rights, which includes the 2nd amendment. So it's not like NJ can claim that its state constitution doesn't have RKBA so they can simply ignore the 2nd amendment.

[DevsAdvocate 112]

So... what about that plan to get a few thousand NJ gun owners to apply for CCW to bring that 99% down?

[SlipperyPete 0]

So we can't use the justification that we seek CCW because of the 2A interpretation in Heller that the right is individual, because the NJ Courts say that the Constitution is not enough.  The law then further limits our individual right to say that right is limited to the home, unless we have good enough reason, like having been beaten or threatened previously and made it out alive. 

 

So the NJ courts are really saying is you only have the right to protect your property, and not yourself.  Can we use the argument that if we just save one life, it is all worth it, because doing something is better than nothing, or are we not allowed to use that either?

[wooly bugger 1]

So we can't use the justification that we seek CCW because of the 2A interpretation in Heller that the right is individual, because the NJ Courts say that the Constitution is not enough.  The law then further limits our individual right to say that right is limited to the home, unless we have good enough reason, like having been beaten or threatened previously and made it out alive. 

 

So the NJ courts are really saying is you only have the right to protect your property, and not yourself.  Can we use the argument that if we just save one life, it is all worth it, because doing something is better than nothing, or are we not allowed to use that either?

I thought McDonald found that the 2A is incorporated against the states? So, Heller should apply in NJ.

[SlipperyPete 0]

I thought McDonald found that the 2A is incorporated against the states? So, Heller should apply in NJ.

Should yes, but if that was truly evident, then under that claim alone CCW should be granted, but it is not.

[KpdPipes 388]

I thought McDonald found that the 2A is incorporated against the states? So, Heller should apply in NJ.

 You ARE aware that Neither Heller OR MCDonald had ANYTHING to do with CCW right?  Both cases had to do with all but complete BANS, and neither case addressed anything more than the ability to possess a handgun in your home.  Heller DOES apply to NJ, but Heller doesnt have a DAMNED thing to do with CCW.

[Stonecoldchavez 92]

"ARTICLE I - RIGHTS AND PRIVILEGES

 

1.   All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness."

 

That is in the Federal Constitution. Each State has there own Constitution that can be specific. NJ's does not say anything about self protection. So technically they are not violating our Federal rights. State's can create their own Rights, just as long as they do not violate our Federal Rights. The NJ constitution says nothing about allowing CCW.

[Stonecoldchavez 92]

Going into history of the ratification of the 2A it gets interesting.

 

NJ was actually the 1st state to ratify the bill of rights, which includes the 2nd amendment. So it's not like NJ can claim that its state constitution doesn't have RKBA so they can simply ignore the 2nd amendment.

 

The thing is NJ is not disallowing us our 2A rights. They are just not allowing us to CCW. There is a difference. That is why they can claim they are not violating the US Constitution and list themselves as a "shall issue" state when we all know well and good that the average Joe cannt get a CCW permit. I think it sucks, but that is how the NJ Courts interpret the law.

[68chris 20]

I have been thinking about this topic as of late.

The Pantano case http://law.justia.com/cases/new-jersey/appellate-division-published/2013/a1682-11.html is an example of an applicant who was denied a ccw and fought all the way to the superior ct of Nj, appellate court, wheras he lost. I wont bring up all the details, it is very good reading, but here is a man who clearly showed a justifiable need to carry concealled. Of course the judge ruled otherwise and did not think he showed the court that he had a " justifiable" need.

 

If Pantano can not show a justifiable need, no one can. This is proof positive that the justifiable need clause is just a defacto ban on ccw in nj.

 

My thoughts are to apply for a ccw, and state on the application, " i reject the states request to show justifiable need", and rather assert my second ammendment right to keep and "bear" arms.

Of course I will lose and be denied on all levels, local, municipal, superior and appellate, but I think the ticket is to make it to the 3rd curcuit court of appeals (which is the federal level). That is where you can make the argument that your 2nd amm rights have been violated by the state of NJ, using in re: 7th curcuit lets posner decision. http://www.thegunmag.com/7th-circuit-lets-posner-ruling-stand-huge-win-for-carry-says-saf/

 

That, I think, is the only chance.

[Stonecoldchavez 92]

That might be correct, but who is going to spend all that money and time getting the 3rd circuit court of appeals?

 

The "justifiable need clause" is the kicker here. The Judges do not see the need for the average citizen to protect themselves, but it is good enough for them to carry....

[CMJeepster 2,777]

That is in the Federal Constitution.

Really? http://www.njleg.state.nj.us/lawsconstitution/constitution.asp

[68chris 20]

actually it looks like muller vs manza may be in the 3rd circuit already, i didnt realize.

if you google 3rd circuit court of appeals second amendment, this is the first hit http://blog.californiarighttocarry.org/?page_id=110

[KevD 0]

give it to me straight.. what are the chances we get concealed carry in nj?

[ryan_j 0]

The thing is NJ is not disallowing us our 2A rights. They are just not allowing us to CCW. There is a difference. That is why they can claim they are not violating the US Constitution and list themselves as a "shall issue" state when we all know well and good that the average Joe cannt get a CCW permit. I think it sucks, but that is how the NJ Courts interpret the law.

 

The 3rd circuit and SCOTUS has not ruled on this yet.

 

NJ courts are well known for creative "interpretation" of the laws. Not just gun laws. Live in an Abbott district? Thank the courts.