Federal Court Enjoins Portion of New Jersey’s New Firearms Law

In June of 2022, the Supreme Court of the United States struck down New York’s concealed carry permitting system.  The case, New York State Rifle & Pistol Association, Inc v. Bruen, essentially ruled that citizens have a right to carry firearms in public for self-defense.  If the government wishes to limit that right, it must provide historical analogues from the Founding period (late 1700’s) or the post-Civil War Reconstruction Period (1866 – 1870s). 

If the state could not provide an historically analogous law banning firearms, then the presumption would be that a general ban on firearms was not constitutional.  In deciding all this, the Court stated that bans on firearms in “sensitive areas” were allowable, but again conditioned the determination of what a “sensitive area” was on historical analogue.  Schools and government buildings had “longstanding” prohibitions on firearms, for example.  The Court did caution against overbroad bans on firearms.  The Court specifically rejected New York’s argument that “all places where people typically congregate and where law-enforcement . . . are presumptively available” constituted a sensitive area.  That was expanding the definition too far and “would eviscerate the general right to publicly carry arms for self-defense.” 597 U.S. 22

In response, several states (including New Jersey) passed a series of statutes seeking to broadly define “sensitive area.”  Among other things, New Jersey’s law defines the following places as “sensitive areas”:

  • “publicly owned or leased library or museum”;
  • “a bar or restaurant where alcohol is served, and any other site or facility where alcohol is sold for consumption on the premises”;
  • “a privately or publicly owned and operated entertainment facility within this State, including but not limited to a theater, stadium, museum, arena, racetrack or other place where performances, concerts, exhibits, games or contests are held”;
  • “private property, including but not limited to residential, commercial, industrial, agricultural, institutional or undeveloped property, unless the owner has provided express consent or has posted a sign indicating that it is permissible to carry on the premises . . .”

The plaintiffs in this case (Koons v. Reynolds) all licensed New Jersey concealed carry permit holders, challenged the law as a violation of the Bruen decision.  The Federal District Court in New Jersey issued a temporary restraining order against the State’s enforcement of this portion of the law.

The decision is about sixty pages long, but there were several points the judge relied on.  The decision relied heavily on the fact that the government has the burden to demonstrate why the presumptively legal right to carry should be restricted.  Though the State asked for more time to fully brief the issue of historical analogue the Court noted that the State was required to find historically analogous laws before passing the law.  As to the laws the State did present, the Court was not convinced. 

Libraries, the Court noted, have been around since Benjamin Franklin established the first free public library in Philadelphia.  The fact that the State failed to provide any laws prohibiting firearms in libraries from either of the relevant time periods was convincing enough to the Court to find that there was no historical analogue there.  The State only provided one law from 1867 (in Kansas, no less), that prohibited intoxicated individuals from carrying firearms in a restaurant.  There was no law prohibiting any person from carrying in a restaurant that the State presented.  Regarding entertainment facilities and the like, the Court noted that the State’s examples often failed to include the entire statute.  A Virginia law, for example, only prohibited concealed carry for an individual carrying so as to “terrorize the county.”  The State did not include the last half of the statute and so improperly relied on it.

Just as importantly, the Court found that the State’s requirement that a property owner affirmatively allow activity that is presumptively allowable to be an absurd inversion of the normal interpretation.  While private property owners have an absolute right to deny firearms on their property, since the presumption is that it is legal to do so, the property owner must notify the individual that no firearms are permitted.  Indeed, the Court noted that in standard trespassing laws, the trespasser must be notified that they are, in fact, trespassing, and so the landowner is required to put up signs stating “no trespassing” at the property boundary to warn passersby that by continuing on, they are both on private property and the landowner objects.  Similarly, if the presumption is that firearms may be lawfully carried by a permit holder, then the property owner must notify the carrying individual that the presumption is no longer valid on their property.

The Court also addressed the restrictions on carrying in one’s private vehicle.  In this context, the law did not change.  It requires the gun owner to keep the firearm in the trunk, with ammunition and firearm in separate containers, while transporting it.  The State acknowledged that this infringed on the ability of the driver to defend himself.  Once again, since the presumption is that an individual can carry legally for self-defense, the State’s burden is to show historically analogous laws prohibiting the carry of firearms in personal vehicles.  While cars, of course, had not been invented during either of the relevant time periods, the State couldn’t point to any law restricting the carrying of firearms in personal modes of transportation.  (The few that were presented tended to focus on concealed carrying of firearms on public modes of transportation.  As an aside, in the relevant time periods, the open carry of firearms was seen as perfectly acceptable, whereas concealed carry indicated a deceptive intent.  Today, the general view is that concealing a firearm is less likely to cause public concern, and so it is the preferred method of carrying a firearm.  Thus, the laws proscribing concealed carry were specifically preventing that method of carrying, rather than generally proscribing the carrying of firearms.)

Finally, the Court rejected the State’s arguments regarding the balancing of the constitutional right to carry and public safety.  The Court noted repeatedly that the Bruen decision expressly took that ability away from the Courts, primarily because the balancing act (called intermediate scrutiny in legal jargon) reliably fell on the side of the government and against the constitutional right.  Thus, reviewing courts were no longer allowed to weigh public interest concerns with the Constitution.  Instead, the historical analysis became the sole means of determining whether a restriction was valid or not. 

The Court had no trouble finding that the “sensitive areas” restrictions violated the constitutional rights of the plaintiffs.  The remaining question to issue the temporary restraining order was whether irreparable harm would occur without it.  The Court held that the “constitutional deprivations alleged [were] irreparable by their very nature” and thus granted the restraining order.

Whether the restraining order will remain in place while the issues continue through the litigation process will remain to be seen.  A similar New York law temporarily enjoined, but the Second Circuit Court of Appeals issued a stay (meaning the restraining order was unenforceable).  The Supreme Court of the United States just declined an emergency hearing for the stay, so the New York restraining order will remain unenforceable for the time being.  However, if New Jersey sought a stay of the restraining order, it would take it to the Third Circuit, rather than the Second Circuit.  Historically, though, both circuits have interpreted firearms restrictions similarly.

URGENT! Firearms Law for Reenactors: No Pistols at NJ Reenactments!

It is currently the position of the New Jersey State Police and the New Jersey State Park Police (part of the NJ Department of Environmental Protection, under which the Division of Parks and Forestry falls) that reenactors may not carry reproduction or original pistols or revolvers at reenactment events.  The Park Police is currently advising all reenactors not to bring pistols to events on state property.

New Jersey state law provides no distinction between antique and modern pistols.  While the law provides an explicit definition of “antique firearm,” this definition only includes rifles and shotguns.  The handgun definition, by contrast, covers all firearms designed to be fired one-handed.  In New Jersey, in order to carry a handgun, an individual is required to obtain a carry permit which, as is well-known, is nearly impossible to obtain for non-law enforcement individuals.  Thus, carrying a sidearm at a reenactment is technically a violation of New Jersey’s firearms law and subject to arrest and prosecution.

To my knowledge, there have not been any arrests made due to the carrying of a revolver at a reenactment.  However, both NJSP and the State Park Police have advised reenactors to leave all functioning pistols at home.  (Note: The statute does not apply to non-firing reproductions.  However, since most non-firing reproductions are indistinguishable on their face from firing reproductions, you may still encounter initial problems from law enforcement.  Therefore, it is advisable to leave even non-firing revolvers at home).

There are some exceptions for the travel and display of firearms, including pistols, for events sponsored by law enforcement, rifle & pistol clubs, and collector events.  Reenacments, however, do not fall under these provisions.  Therefore, it is highly recommended that all reenactors avoid bringing pistols as part of their impression.  This, of course, makes it very difficult to accurately portray officers of any branch and reduces the options for more unique impressions, such as bushwhackers, home guards, militia, armed civilians, etc.

This issue will likely seriously affect the ability to host and participate in living history and battle reenactment events.  It is my hope that everyone interested in history, the preservation of history through education, and historical interpretation will contact their legislators to address this problem.

DID YOU KNOW? New Jersey Can Permanently Seize Your Firearms Without a Conviction?

Under New Jersey law, the State can file a forfeiture action against any firearms seized due to a domestic violence incident, even if no charges were filed.

Pursuant to N.J.S.A. 2C:25-21, when an officer responding to a domestic violence call concludes there is probable cause that the domestic violence occurred, the office shall arrest the person alleged to have caused the domestic violence.  In addition, the officer shall seize any weapons on the premises that the officer believes would cause a danger to the individual, as well as the firearms purchaser’s identification card (FPID) and/or handgun purchasing permits. Once those weapons (and permits) are seized, they are handed over to the county prosecutor’s office.

Even if any charges or temporary restraining orders are dismissed, the prosecutor then has 45 days to file a forfeiture motion in which the State seeks to obtain title to the firearms.  Under the statute, a hearing must be held within 45 days of the motion (for a statutory maximum of 90 days from the date of seizure).  This 45 day period for a hearing, however, is not necessarily strictly followed in all courts, with some hearings being scheduled several months after the motion was filed and served.  At the hearing, the court will determine whether the individual is a danger to the public safety or otherwise restricted from owning firearms under the law.

Even if you’re not a resident of New Jersey, you may be subject to forfeiture actions based on domestic incidents in New Jersey.  If this is the case, there are often procedural and legal complexities that may prevent the prosecutor from pursuing the motion.  While the court has the authority to review these issues on its own (without you bringing it to the court’s attention), the hearings are often quick and routine, with numerous hearings scheduled for one court session.  Considering the consequences, it is always best to raise these issues.  In some cases, a discussion with the prosecutor’s office may even resolve the issue without the need to go to court.

If your firearms have been seized by law enforcement due to a domestic violence incident or the State has moved to obtain title (forfeiture action) over your firearms, call Thompson Law Offices, LLC today for a FREE CONSULT at (888) 866-6947.

Firearms Law For Reenactors: School Presentations

I’ve been a reenactor since 1997.  One of the most rewarding experiences is being able to take a love of American history and share it with the general public.  Sometimes the opportunity presents itself at a reenactment at a state park, or a living history at a National Military Park.  School presentations, however, present a great opportunity for reenactors to bring a love and knowledge of history to the classroom and demonstrate to younger generations that the history being taught in their textbooks was once the present – alive, exciting, and quickly unfolding.

Unfortunately, there can be major legal hurdles to bringing history into the classroom.  Often, the educational programs brought into the schools revolve around a war, particularly the foundational wars: the American Revolution and the Civil War.  This means that various types of weapons will ultimately be brought into the school.  Given the current climate involving schools and weapons, most schools and police forces enforce zero tolerance for weapons on school grounds, taking no chances that the authorities might inadvertently allow a firearm onto school property.

There are, however, exceptions that allow for these school presentations in New Jersey (see a later post regarding Pennsylvania).  Under N.J.S.A. 2C:39-5(e), bringing a firearm onto school property without the proper permission is a crime of the third or fourth degree, depending on what type of weapon or firearm he or she possessed.  Even imitation firearms can land an individual with a disorderly persons offense.

This means that a violation can result in 3-5 years in prison (for third degree crimes) or up to a year and a half (for fourth degree crimes).  Disorderly persons offenses can result in up to six months in the county jail.  A third degree conviction will automatically result in a prohibition on the carrying of firearms under federal law (other convictions may prohibit, as well, under state laws).

You might be at risk for other violations, as well, such as possessing a firearm without a Firearms Purchaser’s Identification Card “FPID”).  Unlike some states, New Jersey does not distinguish “antique firearms” from their definition of “firearm.”  Thus, a reproduction or original 1861 Springfield, Lorenz, or Sharps (or even a Brown Bess or Charleville) is considered a firearm under New Jersey law and requires an ID to carry it.  Not having the FPID might aggravate any other charges, as you would now be violating two firearms laws on school grounds.

Likewise, bayonets, pocket knives, blackpowder, minie balls, etc. all constitute prohibited items.  Many reenactors and reenacting organizations do not consider some of these ancillary weapons (even a tent stake might constitute a weapon).

Obtaining the proper permission from the school is vital.  Thompson Law Offices, LLC can provide you with guidance even if your organization already has forms in use.  Remember that even if your organization has been presenting to a particular school for a long time, administrations change, in both the school and police force, and just because one administrator was comfortable with the forms does not guarantee that the forms were properly drafted or completed.  This has the potential to open up the organization and its members to both criminal and civil liability.

Likewise, if your organization does not currently have any forms or procedures for securing the proper authorization from the school, Thompson Law Offices can provide you with the necessary forms and guidelines to obtain the authorization for you and your members.

Call today for a FREE CONSULT at (888) 866-6947, or e-mail questions to Inquiries@TLawLLC.com.

Opportunity to Change NJ Carry Permit Laws: Assembly Bill 2955

On February 16, Assemblymen R. Bruce Land and Bob Andrzejczak (both of District 1 in Atlantic, Cape May, and Cumberland Counties) introduced a bill into the Assembly, No. 2955, which they’ve entitled the “Citizens’ Protection Act.”  The bill provides amendments that would make it realistic for a law-abiding individual to obtain a carry permit in New Jersey.  Because the legislation is new and the issues important, at the end of the post, you’ll find links to a map of New Jersey’s Assembly districts and a list of members of the Assembly and their contact information.

New Jersey is notorious for having some of the strictest firearms laws in the country.  Perhaps the most public aspect of this has been the “justifiable need” provision in the application process to obtain a permit to carry a handgun.  As the law currently stands, the individual seeking to obtain a permit must demonstrate justifiable need, which has been defined by the state courts to mean 1) “specific threats or previous attacks” that 2) “demonstrat[e] a special danger to the applicant’s life that cannot be avoided by other means.”  In re Pantano, 60 A.3d 507, 510 (NJ Super. 2013) (Emphasis added).  Thus, to get a carry permit in New Jersey today, you must have already been threatened or attacked and a carry permit must be the only way you can protect yourself.

While the law holds no liability against municipalities for failure to protect an individual, most police officers will tell you that they view it as their duty to protect individuals against crime; while there are some notable examples to the contrary, this is true in most cases.  However, as rightly noted by many firearms experts, life-threatening situations such as muggings occur very quickly and often there is no chance to even call police, much less time to wait for their arrival, no matter how quick it may be.  Likewise, mass shootings often occur quickly and, by design, as a surprise to the victims.  Thus, the bulk of the damage is done before police have an ability to arrive and assess and control the situation.

Despite the serious constitutional questions as to New Jersey’s firearms permitting statutes, the federal courts have been content to let them stand.  In a very recent case, the Third Circuit Court of Appeals held that it could not say with certainty that there was any right to carry a firearm outside the home inherent in the Second Amendment. See Drake v. Filko, 724 F.3d 426 (3d Cir. 2013).  In Drake, the plaintiff had been approved for a carry permit by the local police chief, but when he applied to the Superior Court, the State Police objected to the permit.   The Superior Court agreed with the State Police and denied the permit.  That decision was appealed to the Third Circuit, which then held that the U.S. Supreme Court precedents – D.C. v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. 742 (2010) – applied strictly to the home (which is a very, very strict and selective reading of those cases).  The plaintiffs then appealed the Third Circuit’s decision to the U.S. Supreme Court, which ultimately declined the hear it.  With the death of Justice Antonin Scalia, is remains unlikely that any substantial changes to firearms laws will occur in the near future.

All of which makes this bill so important for individuals who desire to carry firearms.  Assemblymen Land and Andrzejczak begin the bill with a series of whereas clauses, in which they accurately state that the courts have found that the police have no affirmative duty (either federally or under state law) to protect an individual citizen. See Wuethrich v. Delia, 382 A.2d 929 (N.J. Super. 1978) (“Municipalities are expressly immunized from tort liability for the failure to provide police protection or the failure to provide sufficient police protection”).  (It should be noted that under Federal procedure, a plaintiff sues the municipality in police force liability cases, rather than the police force, itself.)  In addition, the Assemblymen spell out the New Jersey constitutional provisions under which citizens have a liberty interest in self-defense.

This bill removes “justifiable need” from the statutory language by deleting the provision from N.J.S.A. 2C:58-4(c) entirely.  By removing the justifiable need requirement, the burden would no longer be on the individual seeking the permit, but on the State if it intended to deny the application.  Because Pantano interpreted the justifiable need statutory language, that holding would, in essence, be statutorily overruled.

In tandem with justifiable need, the proposed legislation removes the requirement that an applicant take an approved application before the Superior Court.  Currently, under N.J.S.A. 2C:58-4(d), the Superior Court may then reject the application (even though it has been approved by the local police chief) if the applicant’s character is found to be in question.  Indeed, many of the precedential cases on New Jersey’s firearms permitting scheme involve denials by the Superior Court after initial approvals at the local level.  The Citizens’ Protection Act would completely remove this step in the application process.

Firearms owners will also be excited to learn that the bill would explicitly prohibit the State from recording handgun serial numbers and descriptions when granting the permit, nor would it allow the Superintendent of the New Jersey State Police to include additional provisions as part of the application process.

The new application process proposed by the bill would be as follows:

  1.  The individual must provide 2 frontal photographs taken within 30 days of the application;
  2. Take a training and safety course, evidenced by a certificate of completion attached to the application;
  3. Verification by the applicant that the information provided is accurate (which replaces the requirement of witnesses to the signature).
  4. $20 application fee.

The permit would also be valid for 5 years, rather than 2, and place the burden on the State to demonstrate that the individual is not eligible, rather than requiring the individual to prove to the State that he or she does not run afoul of any of the eligibility requirements.  Anyone who is a U.S. citizen 21 years or older, has not been convicted of a felony (including certain juvenile delinquencies); has not been convicted of a domestic violence misdemeanor; has not been convicted of a drug crime in the 5 years prior to applying; does not have a physical or mental health defect that prevents them from safely possessing the firearm*; is not subject to a restraining order for domestic abuse; is not on the Terror Watchlist;  and has not been an alcoholic or addict within the same time period, would be eligible, assuming they pass an 8 hour training course.

Other provisions of note include the amendment of N.J.S.A. 2C:39-2(b), which provides that an individual found to be in possession of a firearm in a vehicle in New Jersey “shall be presumed that he does not possess such a license . . . until he establishes the contrary.”  This means that the law currently grants a legal presumption of the presence of an element of guilt to the State of New Jersey in certain criminal cases.  This bill would delete this language entirely.

Then the bill tackles the carry permit scheme.  It begins by deleting N.J.S.A 2C:58-3(c)(5), which prohibits the issuance of a carry permit to someone in cases where it is considered to be against the public’s health or safety.  Given the other reasons why one may be denied a permit, this particular provision is not only superfluous, but dangerously vague, in that it serves as a fallback provision upon which to deny someone otherwise eligible.  The bill also removes any special provisions for armored car personnel, applying a uniform standard to all applicants.

If you are interested in the constitutional right of citizens to defend themselves against threats, wherever those threats might occur; disappointed (to put it mildly) in the current state of New Jersey’s firearms statutes; or want to get a carry permit in New Jersey for any other legal reason, this bill would greatly increase your ability to do so.

Thompson Law Offices encourages the participation of the individual in both the legal and political system.  If you wish to get involved, you will find links to a map of the Assembly districts and contact information for your representatives below.

Map of New Jersey Assembly Districts

Contact Information for Representatives

* If you have been involuntarily committed for mental health evaluation in New Jersey or Pennsylvania, you are invited contact our office for a free consultation.  You may have the ability to expunge the commitment.  An attorney will be able to advise you as to the effect an expungement may have on your ability to possess or carry a firearm.