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Feel like my constitutional rights are being infringed.

Discussion in 'Legal' started by APSolo, Apr 8, 2019.

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  1. APSolo

    APSolo Member

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    Let me reroute this a bit. According to the FOPA, which I just read and then got on the NRA’s site for clarification, I can “transport through NJ” legally, provides the provisions of storage are met. However, if I stop for gas, food or to sleep overnight, it’s illegal and I can literally get arrested over it. Advice was given to “stay off the interstate “ but isn’t that where I’d be if I was traveling through the state? The FOPA doesn’t say you HAVE to use only interstates. Confused again.
     
  2. APSolo

    APSolo Member

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    The huge irony here is that the criminals with 9mm’s stuffed down the back of their pants in NJ are NOT on gun forums doing everything they can to be law abiding- to the point of leaving the state. Funny how all this only affects the law abiding citizen. Strange how that works.
     
  3. rpenmanparker

    rpenmanparker Member

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    You are bumping up against states’ rights now. Doing things differently in different places is a time-honored American tradition. Personally I hate it, but it is the basis of regional difference and highly respected.
     
  4. rpenmanparker

    rpenmanparker Member

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    Not strange. What alternative is there?
     
  5. boom boom
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    boom boom Contributing Member

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    That is actually pretty easy to answer constitutionally speaking. If for example, we use the undue burden test such as the Supreme Court employed in Casey for abortion, it would be regulation that places an undue burden upon the individual's right of privacy. Thus, things like age limit restrictions, parental or spousal consent, even requiring abortions to be at licensed medical facilities could and have been considered an undue burden. Now, apply the undue burden standard to the 2nd which by the way is an actual enumerated right not found in penumbras and emanations.

    If we look at the 4th Amendment, a simple case of infringment would be a search without a warrant and no probable cause. And so forth. The primary reason that the Framers had a Supreme Court is to A) defend the powers of the national government particularly from the states, B) avoid conflict between states, and C) referee conflicts among the branches of the federal government. What set the current constitutional regime was the post Civil War amendments which overturned Barron v. Baltimore and Dred Scott constitutional precedents among others. In particular, the 14th Amendment's due process clause through its fundamental freedoms extension has been interpreted so that in most cases among the states, attempts to treat state residents different than travelers, etc. on basic constitutional rights is well unconstitutional infringement by that particular state.

    In addition, the privileges and immunities clause, although the Supreme Court's eviscerating dicta in Slaughterhouse, has still indicated that Americans have a fundamental right to travel etc. and thus things like two speed limits, one for residents, and one for non-residents or travelers would be held unconstitutional. In a related area, the dormant commerce clause jurisprudence limits state from enacting discriminatory legislation designed to favor state residents/companies. There were some cases involving weight limits on trucks in the 1980's where Arkansas and I believe Illinois had the older 73000 lb limit on trucks instead of 80,000 lbs, allegedly for safety of residents and damage to roads. These were struck down as hindering interstate commerce. Likewise, bans on out of state purchases of wine, despite the 21st amendment, in Michigan were struck down in Granholm v. Heald as discriminatory to out of state wineries.

    For the present, the reason why NJ laws among others has survived is that the preceding Miller case still holds fascination for judges resisting the core findings of Heller. Miller, as well as the odious Cruikshank opinions have not been formally overruled but Heller read Miller as indicating that weapons commonly in use for individuals in the military and other purposes are protected by the 2nd Amendment and its purpose is to allow individuals who are not felons nor mentally ill to possess firearms for such things as militia service and self defense.

    Heller goes lightly on the right to bear arms (aka carry) outside of the home as that was not part of the original question before the court. However, other court precedents, primarily in search and seizure does indicate that a person's car or perhaps RV has greater protection of the 4th Amendment than outside of that. Congruent with that understanding and many state laws that treat automobiles as an extension of the home, it can be argued that NJ is unconstitutionally impinging on the 2nd Amendment, the 14th's privileges and immunities clause (re right to travel), the commerce clause as Congress in FOPA foreclosed state laws contradicting it, perhaps if not directly the commerce clause then the dormant commerce clause and so on.
     
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  6. APSolo

    APSolo Member

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    What alternative is there? We could start with not restricting the rights of law abiding citizens. Punish those who break the laws- murder, rape ect.

    I never understood the logic in punishing the innocent and i doubt I’ll “get it” here.

    Statistically the violent crime rate is lower in NJ than neighboring PA, though this could be attributed to the heavy police presence as well. Georgia, where I lived for twenty years, has a high police presence yet has a higher crime rate than both PA or NJ..

    NJ also has a higher percentage of people above the poverty line. Paid people tend to kill each other less.

    Man, I’ve set through thesis presentations on this very thing and they couldn’t even provide anything definitive lol...
     
  7. rpenmanparker

    rpenmanparker Member

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    You guys are something.
     
  8. APSolo

    APSolo Member

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    @boom boom-

    Technically my Jeep IS my home as I have no permanent residence at this point. I have a mail forwarding address in Florida. My physical residence is my Jeep for the duration of this trip, which I knew going in would take a couple years.

    Interesting post you wrote. Would make an interesting court case too....provided I wasn’t paying for it. I think this is also where the FOPA came into play; however it isn’t my FN that’s the issue, it’s my 20rd magazines.

    From what I understand the law to be, having my unloaded FN secured in its steel box within my cargo area is legal as long as it stays there. It’s the outlawed magazines and ammunition that make it illegal. This entire deal was/is confusing and it’s easier to just avoid states like this.

    NJ residents do not have to have a CCP to keep a firearm in their home. So having mine in my car is not applying a different law to travelers, pro or con. NJ residents have difficulty obtaining a CCP. Basically you have to get attacked first, then if you survive, you can apply for one based on perceived “need”. I don’t understand the logic of that either but so it is.

    The baseline question is the constitutionality of the state law as it applies to all persons, not just residents or travelers. Come to think of it, I think there is a current lawsuit vs New Jersey based on that alone.
     
    Last edited: Apr 9, 2019
  9. APSolo

    APSolo Member

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  10. Texas10mm

    Texas10mm Member

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    Thankfully the Supreme Court doesn't agree with you.

    I'll give you this visual aide to help you out.

    breakfast.jpg
     
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  11. APSolo

    APSolo Member

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    I always understood it “to protect the people FROM the state, as a nation”.....

    The very overreach that’s becoming prevalent in our nation is exactly WHY we have the Bill of Rights. All is lost the second we give up defending them.
     
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  12. APSolo

    APSolo Member

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    Are there any legal issues with storing my weapon and supporting gear in something like a safe deposit box in a neighboring state that it’s legal in while exploring a restricted state? May be a strange question but you guys seem well versed in this stuff so might as well ask.
     
    Last edited: Apr 9, 2019
  13. Phaedrus/69

    Phaedrus/69 Member

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    Without meaning to offend residents of NJ it seems like the simplest and best course of action would be to avoid the state entirely. There's nothing really essential there that's utterly unique to NJ that I can think of.
     
  14. boom boom
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    boom boom Contributing Member

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    This would be better addressed in legal subforum but at least from the federal standpoint, if the storage was only accessible to you and under lock and key which a safe deposit box should be, then no transfer of ownership takes place under federal law so no form 4473. I have heard of some folks doing that before entering Canada. State laws can vary a bit though
    It gets a little tangled right now on the whole carry portion of the law under the 2A has not been defined by the Supreme Court. I agree, however, it would suck to be a test case facing criminal charges because the Supreme Court has so many ways to dismiss cases that it does not want to hear for whatever reason. I believe that NJ is in the Third Circuit which is not foremost among other circuits of protecting the 2A and NJ courts are hopeless without a diktat from the Supreme Court that makes them change.

    A better lawsuit bet might be a collateral attack via the dormant commerce clause or claiming that the federal gov. under FOPA essentially has preempted state laws regarding having firearms in the car or luggage. The problem would be how to get standing to challenge the regulation without being charged for violating it. The current Scotus lineup might prefer to address that line of attack than using the 2A directly.

    The privileges and immunities clause is dicey because the Supreme Court has repeatedly ruled for a narrow reading of its constitutional protections from that clause in court cases dealing with both the original Constitution (Corfield v. Coryell) and the 14th Amendment (Slaughterhouse) to its shame. The privileges and immunities clause was also in the Articles of Confederation and its primary purpose was to prevent states from treating "strangers" to its jurisdiction differently than its own residents. From the best of my understanding, one such reading of the clause under the Articles was that it incorporated common law protections (which were all derived from Britain as heritage) for some sort of common rights among the U.S.

    Justice Thomas in his McDonald concurrence called out the Court on its strange fixation on using the due process clause to do the work that the privileges and immunities clause was designed to do--incorporate the first eight amendments to the U.S. constitution as binding on the states. Saenz v. Roe is the recent case involving the clause where the Court declared a fundamental right to travel. However, it could be argued that the right to travel with a firearm is not protected although one is enumerated and the right to travel is more a common law right dating from the Magna Carta.
     
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  15. alsaqr

    alsaqr Member

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    No. Do whatever you it takes to get legal in the state of NJ.

    The Oklahoma economy totally sucks. i worked in numerous other states, including two years in NJ. Actually going unarmed in NJ was probably safer than going armed in OK.

    Worked for two years in MA where the violent crime rate is also low. Was pulled over by a MA state trooper who told me to register my Ford Ranger pickup in MA. Then he said: "After you register that truck in MA see the Ford dealer and get a new paint job free of charge". Yep, MA passed a law mandating auto companies re-paint those vehicles whose cheap paint jobs faded and peeled. So i got a nice free paint job.
     
  16. APSolo

    APSolo Member

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    @alsaqr

    Thanks, obviously I got caught with my pants down and am grateful I came here and asked some questions. This issue will come up again as some of the states that have restrictive gun laws also happen to have some of the best hiking grounds in the land, I.E Washington, Oregon and California.

    I should note too that I have nothing against New Jersey. Since arriving here the people are incredibly friendly and the hiking I did get to do was phenomenal. While I don’t agree with the state law-already throughly covered - I have no choice but to leave as I cannot physically comply with the law at this moment. The next time I end up with a randomly chosen state to explore I’ll better prepare to go there. The storage box makes sense and thankfully most restrictive states border free states. I’m heading to Michigan via Ohio tomorrow (free states) and when I’m done there I’ll consider returning to New Jersey, leaving my weapon in Pennsylvania.
     
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  17. <*(((><
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    <*(((>< Contributing Member

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  18. APSolo

    APSolo Member

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    Thanks Luke, I’ve been getting most of my info from the Florida Dept of Ag and the NRA links. Beyond that I go to the States .gov website to get an idea. I usually also stop at a Park Ranger office and get the low down on statewide rules and regs regarding everything from park rules and camping to permits. This time I saw the red flags in New Jersey and after researching a bit came here to vent and learn. Your link wraps up a lot of that in one place so...awesome man.
     
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  19. George P

    George P Member

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    Hike the NV side of the Sierras and you'll be fine; also try the Jarbridge Wilderness areas and all of the National Parks in NV and UT
     
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  20. <*(((><
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    <*(((>< Contributing Member

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    Yeah you should always verify with the state website but the handgunlaw website gets one information quick to see what you’re up against.
     
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  21. Obturation
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    Obturation Contributing Member

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    Welcome friend.
    Your rights are most certainly not in tact, my advice is to avoid states that prohibit your god given rights. Im from illinois which is nearly as bad as NJ. I would recomend you skip this state as well, chicago is horrible and the rest is farmland so you would be missing... nothing.
    Maybe someday we can reclaim our rights from the powers that be, but for now stay legal, stay safe and stay alert. Thanks for your service, even if our elected officials dont recognize your sacrifice and allow you defend yourself anywhere you may wander. At the very least feel good that you live in the finest nation ever to exist.
     
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  22. Zerodefect

    Zerodefect Member

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    Freedom loving people in Jersey are outlaws. Been that way since before I was born. Just the way it is.

    Carry whatever you want to. Drop anyone that doesn't like it. The jersey way?
     
  23. APSolo

    APSolo Member

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    At first, simply avoiding them was the easiest way to deal with this. But those states, Illinois included, also have tons of really good people I’d like to meet. Part of my open ended trip is to not only hike all the beautiful places in this country, but meet all the different people as well. Honestly some of the cool people I’ve met so far eclipsed even the best waterfall or mountain. I usually stay in a state long enough to explore all corners and most of what’s in between. It took me three months to explore Pennsylvania alone. I’m sure I’d find something awesome in Illinois, even if it’s a few pictures of cornfields and a couple cold ones with farmers. So my only real option right now is to retreat out of New Jersey; hoping a Swat team doesn’t take down my hotel room tonight (lol) and secure my equipment legally before entering a state like this again. At this point I’m just glad I brought this up here, rather than coming here six months from now with a horror story of being arrested and jailed or something. My situation is not normal though as I can’t just “leave it at home”.

    Additionally, this is the first time I’ve had to come head to head with these issues. When I was on duty, as many of you vets understand, we lived in a different “world” disconnected from regular society. After retirement, I moved from Georgia back home to Florida, both very gun friendly states. So even then I always felt that those problems were “people up there” and didn’t concern me. Now that I’m living in these states for a few months, I’m now part of “those people up there” and it’s no longer a distant problem.

    I usually do extensive legwork before entering a state and I won’t make this mistake again. Normally I do this prep before arriving; this time I did it enroute and that’s where I made a mistake.
     
  24. alsaqr

    alsaqr Member

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    Very true. i retired from US Army EOD in 1979. Had little idea what was happening in the civilian world.

    Thanks for your service and good luck.
     
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  25. LiveLife

    LiveLife Member

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    Welcome to THR. Thank you for your service from an Army medic.

    I think you are making this harder on yourself. If I was in your situation, I would store the FN and 20 round magazines in a bank safe deposit box for the duration of the trip and get another pistol that was 50 state legal with 10 round magazines.

    Here is list of CA legal handguns - https://www.oag.ca.gov/firearms/certguns

    This way, when you are traveling through states, possession of pistol and 10 round magazines would be legal.

    I live in California so I will reference CA DOJ and OAG websites as an example. Even though you are temporarily traveling through the state, you would be considered a "personal firearm importer" until you left the state so you must comply with importation and transportation requirements - https://oag.ca.gov/firearms/pubfaqs#25

    "25. I am moving into California and I own several firearms ...

    You are considered a personal firearm importer as defined by California law. You may bring all of your California-legal firearms with you ... You may not bring ammunition feeding devices with a capacity greater than ten rounds ... into California.

    12. I live in another state and have a permit to carry a concealed handgun that was issued in my home state. Does my permit allow me to carry a concealed handgun while in California?

    No. CCW licenses/permits issued in other states are not valid in California."

    You cannot conceal carry firearm under CCW permit issued in another state. But you can certainly keep your CA legal pistol and 10 round magazines legally close enough for self protection in a locked container. I transport my pistols locked in a hard case but with magazines loaded and not inserted in the pistol (So the pistol is not "loaded"). If I stopped at a rest area/camp site to sleep or camp overnight, I would insert the loaded magazine in the pistol and keep with me for self protection. And before I drove off rest area/camp site, I would remove the loaded magazine from pistol and place them in the locked container.

    HANDGUNS - https://oag.ca.gov/firearms/travel

    "Pursuant to California Penal Code section 25610, a United States citizen over 18 years of age who is not prohibited from firearm possession, and who resides or is temporarily in California, may transport by motor vehicle any handgun provided it is unloaded and locked in the vehicle’s trunk or in a locked container."

    For your situation, you may want to consider quick access gun safes like these - https://www.google.com/search?q=fas...wcThAhUPrp4KHZk7AVUQ_AUIDygC&biw=1366&bih=609

    The quick access gun safes meet the "locked container" requirement which can be hard mounted or placed anywhere inside the vehicle (mounted upside down under the seat out of sight?) for easy and quick access if your life was in danger.

    2 year trek across the country sounds fun. I am getting ready to retire with some plans to travel across the country like you and my Gen3 Glock 23 and 10 round magazines will be coming with me (unless large capacity magazines become legal as I plan to start my journey driving around CA first) along with a hard locked case or quick access safe - https://www.thehighroad.org/index.php?threads/happy-days-in-ca.849757/page-4#post-11102503

    Be safe but don't become a victim.
     
    Last edited: Apr 9, 2019
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