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This is actually a really great question.  GRIZ, can you point to a place in the laws where it says magazine limits don't apply to the specific class of firearms (in NJ) called BB guns?  Interesting (and maybe one of those cans of worms we don't really want to open!)

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No place in the law that says that. When someone notices all the children with their eyes shot out by Red Ryder's during drivebys they might do something. The only thing that produces more casualities among the children is the drive by bayonetings.

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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)






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.




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



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.




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



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;


(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."



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.




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



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



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



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.





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



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





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).




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



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



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



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.


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