has NRA brought a shall issue case for New Jersey Yet?

[Carl N. Brown]

Let us suppose I dropped off a relative's NFA paperwork for a CLEO signoff at the sheriff's department. Let us suppose another relative has a papered silencer, and we all thought it was a cool range toy (and easy on the ears) and that shooters in Washington State deserve the same rights as we exercise. Suppose we would have legal standing to sue for the right of Washington Staters to own and use a silencer? No. It would have to be a Washington State resident. With a squeaky clean background, like Heller or McDonald.

 

[ldcarson]

bearing them is carrying them...to KEEP and bear is to own and carry.

 

[Demitrios]

Keep focused on a few other things going on here. Earlier someone said that NJ is a "may issue" state, which is not only true for carry permits but also for pistol purchase permits. Now another law in NJ is that if no ruling on your pistol purchase permit has been made at the end of 30 days completion of your paper work it is automatically assumed that that you are approved for your permit and therefore should have it as quickly as it takes your local police chief to sign the permit.

In short you can attack the may issue clause of a CCW Permit if you are denied your Pistol Purchase Permit. Get denied, file a claim against NJ's 'may issue' status on the basis that it denies you your 2nd ammendment right, hopefully have a competent attorney who can win and turn NJ into a 'Must Issue' state.

 

[Demitrios]

Come to think of it, where would you begin if you wanted to start a class action law-suit in this case?

 

[geekWithA.45]

My sense of the zietgiest tells me that we need to consolidate and extend gains on the "keep" part before moving on to "bearing".




Once people have accepted that their next door neighbor, Hank, a guy they talk to every coupla days actually keeps arms (the scary fighting kind, not the genteel duck harvesting kind), as opposed to some hypothetical redneck far far away, they will be less resistant to the idea that Hank might actually walk around with his arms.

Irrational fear is a real thing with consequences, and NJ, the state with the fewest guns, is full of both.


If you have read the Heller and McDonald rulings, you would see that while no focus was placed on bearing, no distinction is made from keeping and bearing, they are held to be fully co-equal and supported as fundamental rights, thus setting the stage for subsequent actions.

This was very wise.

 

[Tom488]

Earlier someone said that NJ is a "may issue" state, which is not only true for carry permits but also for pistol purchase permits.

As written, NJ is a shall-issue for purchase permits ("no person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other section of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card" - 2C:58-3c).

Contrast that to the issuance of a permit to carry, which IS may-issue ("No application shall be approved by the chief police officer or the superintendent unless the applicant demonstrates that he is not subject to any of the disabilities set forth in 2C:58-3c., that he is thoroughly familiar with the safe handling and use of handguns, and that he has a justifiable need to carry a handgun." - 2C:58-4c(3))

Now another law in NJ is that if no ruling on your pistol purchase permit has been made at the end of 30 days completion of your paper work it is automatically assumed that that you are approved for your permit

First - there's no automatic assumption of approval on a purchase permit. The law simply says it shall be approved/denied within 30 days for residents, 45 for non-residents. Applications for permits to carry are deemed to be approved if not denied within 60 days.

Further, there is subsequent case law that states a PD can take as much time as reasonably necessary to complete their investigation of the applicant, even if it takes longer than 30 days.

 

[geekWithA.45]

Judges in NJ have a long and celebrated history of making spit up that directly contradicts the text of the statutes.

Apparently, this is not "judicial activism" or "legislating from the bench", however.


The real world consequence of this bit of judicial nitwittery is that any of the parties whose approval is necessary for a pistol purchase permit (or a FID, necessary to purchase long guns) can deny a citizen the ability to obtain a gun by simply taking no action.

There is a procedure for appealing a *rejected* permit application, but there is no recourse available for a *sat*upon* application.

And the issuing authorities know it.

 

[Demitrios]

Tom488 wrote:

As written, NJ is a shall-issue for purchase permits ("no person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other section of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card" - 2C:58-3c).

Who do you think makes such a decision? My brother was denied an FID card simply because the Police Chief didn't like him and even went so far as to send a nasty letter to the gun club which resides in my town, pertaining to my brother. Mind you my brother, father and myself were all EMT's and had recieved commondations from the mayor of our town for helping during a hurricane that flooded most of the surrounding area. So no, NJ is not a "shall issue" state regarding permits and ID's in accordance to any law when action like that can be taken without any explanation or reproach.

 

[NJGunOwner81]

Hey BushMaster...

Hey BushMaster! I'm with ya on this one ... NJ is such a pain in the butt when it comes to ... everything! No concealed carry, the whole piece of nonsense with the "assault rifles" and the look-alikes, and the fact that we are the only state around here where you have to jump through hoops to get a permit for a handgun ... well except for NY ... I think NY and NJ are battling it out for biggest P.I.T.A. state!

Oh, and since 4th of July just passed ... we can't have fireworks either!!!

And before somebody else says the old "Well you should move" ... it's not that easy. It's hard to leave a place where you have a life all set up! It's not too easy to sell your home, find another job, buy a new house, uproot your family and your kids. I'm sure if we all had mega money we would move but we don't ... it's not as simple as just picking up and moving.

I hear ya BushMaster! We need to vote out all these Gun Ban nut Dems in this state!!!

Take Care & Be Safe!!!

Frank
NJGunOwner81

 

[geekWithA.45]

And before somebody else says the old "Well you should move" ... it's not that easy. It's hard to leave a place where you have a life all set up! It's not too easy to sell your home, find another job, buy a new house, uproot your family and your kids. I'm sure if we all had mega money we would move but we don't ... it's not as simple as just picking up and moving.

Even without mega money, I did all that, and never regretted it for a minute.

It's not nearly as hard or infeasible as people think.

YMMV.

 

[Tom609]

Still, easier to say than do. MMDV

I agree with you, NJGunOwner81.

 

[Tom488]

Who do you think makes such a decision? My brother was denied an FID card simply because the Police Chief didn't like him and even went so far as to send a nasty letter to the gun club which resides in my town, pertaining to my brother.

And how did his appeal go?

 

[Demitrios]

Better than you can imagine, if by appeal you mean he became a cop in Virginia, can buy a pistol with just his drivers license and can now carry anywhere in America including, as he so eloquently put it, ". . . his (the police chiefs) shi*** little town".

But we're actually getting off topic and you've actually brought something I'm really curious about. Has anyone on this forum been, or know anyone, who's been denied a permit or ID in NJ and appealed the decision? If so, how did it go?

 

[geekWithA.45]

My FID was sat on for 11 mos. It was resolved by rattling the police chief's cage politely, but consistently.

None of the local lawyers I spoke to were interested, so I was getting ready to retain Evan Nappen when they finally coughed up.

 

[Demitrios]

I like this thread so I'll bump it to keep it going.

 

[mack]

NRA is a good organization and I would encourage anyone who is not a member to become a member. They are currently taking undeserved heat for endorsing or potentially endorsing some members of both political parties - as it seems that there is a coordinated or concerted effort by some who support one particular party to gin up public outrage that the NRA would follow their long held policy of endorsing political incumbents of either party who have an A rating. The NRA has to maintain party neutrality or they will lose much of their political influence.

When overturning state gun laws it is in my opinion important to have a state level RKBA organization to do the field work necessary to set the plate. In McDonald vs Chicago the ISRA (Illinois State Rifle Association) recommended Mr. McDonald and a number of others as possible plaintiffs for the court case - as they knew of them - and they worked with Gura and SAF to coordinate the case.

National level organizations - even those as big as the NRA - are still not large enough to coordinate and lobby and organize RKBA efforts in all 50 states at the same time - at the level necessary to respond quickly and effectively without state and local level grassroots RKBA organizations.

So, join the NRA if you aren't a member, contact the state level NRA rep and talk to him, he may be able to tell you about the NRA plans for your state, and find and join the state level RKBA organization or organizations. And be active in expressing your hopes and desires and work towards your goal of restoring the RKBA to NJ.


On NRA and Heller - since it was brought up:

Regarding Heller the NRA did come on board once it was a fait accompli. Frankly one can go back and say that well these two justices were on there then and these two later but that isn't completely true at least in regards to the Supreme Court hearing the case. Justice William H. Rehnquist died September 3, 2005; Justice O'Connor sent notice of her resignation on Saturday, July 2, 2005; Alito was sworn in on Jan 31, 2006 and Roberts before that on Sep 29, 2005. It wasn't until after May 8th of 2007 that Mayor Fenty and the District decided to appeal to the Supreme Court, but already by March of 2007 the NRA was pushing bills in the House and Senate to repeal the DC ban in order to fore close the possibility of the Heller case getting to the Supreme Court - a court that already had Roberts and Alito. The NRA only stopped after Levy and Gura went public complaining that the NRA was trying to sabotage the case, and the NRA got deluged with angry members upset at what they were doing. Basically if the NRA leadership had gotten their way then there would have been no Heller decision.

I'm not NRA bashing, but the NRA did not support the Heller case even after the current conservative majority was in place. Later they did eventually come around in suppport. I support the NRA and I am a member, but I did not support their position at the time. I understand their position and why they did what they did - I just very much disagreed and let them know. That is why all the RKBA organizations are important - the NRA, GOA, SAF, JPFO, etc... and of course state level organizations too.

 

[dvcrsn]

Bushmaster--I know we have several carry cases going here in California that are looking good. If things go as well as one of the attorneys involved think they should, we should have a victory in the 9th Circus Court in the next year or two, and attorneys in the NE should be able to build on that case as well as due process grounds

 

[bushmaster1313]

Bushmaster--I know we have several carry cases going here in California that are looking good. If things go as well as one of the attorneys involved think they should, we should have a victory in the 9th Circus Court in the next year or two, and attorneys in the NE should be able to build on that case as well as due process grounds

Not sure why you think you will get a victory in the 9th Circuit.

I would assume that you will lose at the District Court and then lose at the Ninth Circuit:

"Bear" does not mean carry
Sup Ct. did not need to hold "Bear" was individual right
Sup Ct. did not need to hold "Bear" was incorporated against states

 

[mack]

"Bear" does not mean carry
Sup Ct. did not need to hold "Bear" was individual right
Sup Ct. did not need to hold "Bear" was incorporated against states


Odd if the above is the case that the McDonald decision held that the right of the people to "keep and bear arms" was incorporated and that it was a fundamental right - odd that Heller held that bearing did mean carrying on ones person and was not limited to a military meaning. Odd that the court in McDonald would take the time in its decision to very specifically state that the carrying or bearing of arms could be constitutionally restricted in sensitive areas such as schools and government buildings if they didn't think that there was some right to carry or bear arms. Odd that Gura the atty that won Heller and McDonald helped bring the Sykes carry case in CA because he believes it is low hanging fruit that is a slam dunk.

 

[bushmaster1313]

Odd if the above is the case that the McDonald decision held that the right of the people to "keep and bear arms" was incorporated and that it was a fundamental right - odd that Heller held that bearing did mean carrying on ones person and was not limited to a military meaning. Odd that the court in McDonald would take the time in its decision to very specifically state that the carrying or bearing of arms could be constitutionally restricted in sensitive areas such as schools and government buildings if they didn't think that there was some right to carry or bear arms. Odd that Gura the atty that won Heller and McDonald helped bring the Sykes carry case in CA because he believes it is low hanging fruit that is a slam dunk.

I hope you are right.
This was just my prediction of how the 9th could foil a challenge.
Note, Heller and McDonald were only about right to keep in the home and it is not sanctionable to argue that anything else is dicta.

More info on Sykes case please (what statute is being challenged)

Edit: complaint in Sykes here:
http://www.hoffmang.com/firearms/sykes/Sykes-v-McGinness-Complaint-2009-05-09.pdf

 

[mack]

You are right that strictly speaking it is dicta - but in practice the lower courts give Supreme Court dicta precedent and use it to - at least if they don't want to get over turned - guide their decisions. There are numerous cases in the lower federal circuits citing dicta from the USSC as the basis of decisions.

I know that the Ninth is generally considered liberal and that they get over turned quite often - but I think this is pretty clear - of course with that and a couple of bucks you can get a cup of coffee.

 

[TexasBill]

IMHO, the first thing to be attacked should be the limitations on firearms acquisition. You can't license a Constitutionally protected right. Seeing how the New Jersey law directly restricts the the very rights the Court did enumerate, those laws would be low-hanging fruit under strict scrutiny. A victory in such a case would also cut the legs out from under the new laws in Chicago and Washington, DC and all other cities and states that require official approval before buying a handgun.

The verb "to bear" has many definitions but, as they apply here, all involve the carrying or possession of something. While the McDonald decision did not specifically define the term, passages in the majority decision clearly show the Justices believed the right to bear arms extended beyond the home. Otherwise, there would have been no reason for the Court to suggest that certain locations might be off limits to those bearing arms. In reality, it may well be a moot point; any first-year law student ought to be able to successfully argue that a license to carry a concealed weapon also is a license to legally be in possession of a concealed weapon, thus satisfying both primary definitions.

The reality is that there are a number of states where lawsuits will have to be filed: so many, in fact, it would stretch the resources of any pro-gun group (including the NRA) to support more than a few.

We have elections coming up in a few months. With the antis effectively neutralized at the federal level, it might be worthwhile to put some extra effort into the state races to see if state laws can be changed. Save the expensive lawsuits for venues where legislative change is unlikely.

 

[Frank Ettin]

...Sup Ct. did not need to hold "Bear" was individual right
Sup Ct. did not need to hold "Bear" was incorporated against states..

Actually, it did.

"Two years ago, in District of Columbia v. Heller, 554, U. S. ___ (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home.The city of Chicago (City) and the village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbia’s, but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States...." (The very first paragraph of McDonald, emphasis added)

Neither Heller nor McDonald involved issues of bearing arms, so the Court could not directly address that question. But Justice Alito repeatedly stated that the Second Amendment was fully incorporated, and, as we all know, the Second Amendment specifically describes the right to both keep and to bear arms. He also repeatedly, and consistently, referred to the right to "keep and bear arms" in so many words.

In the course of deciding Heller and McDonald, the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. And the right as expressly described in the Second Amendment is the right to keep and to bear arms.