SCOTUS asked to accept New Jersey "Red Flag" gun case

AP Photo/Bebeto Matthews, FIle

The Supreme Court is going to get a chance to weigh in on “red flag” firearm seizure laws thanks to a case out of New Jersey that left a man permanently prohibited from possessing a gun after what was supposed to be a temporary seizing of his firearms for “safekeeping.”

The case, known as P.Z. v. New Jersey, began several years ago when the plaintiff was the subject of a temporary restraining order; an order that was ultimately dismissed. Still, even though the restraining order was no longer in effect, the state refused to return the firearms to their rightful owner. And because the guns weren’t returned to him, “New Jersey “forever bars him from again possessing firearms.”

At issue in the present petition, N.J.S.A. § 2C:58- 3c states that “No handgun purchase permit or firearms purchaser identification card shall be issued:

(5) To any person where the issuance would not be in the interest of the public health, safety or welfare.” New Jersey does not define “public health, safety or welfare,” and courts are free to interpret what constitutes a reason to deny Second Amendment rights in the name of “public health, safety or welfare.”

Persons are given no notice as to what a judge may find is a reason to deny Second Amendment rights in the name of “public health, safety or welfare.”

Petitioner has no conviction for unlawful possession or use of a firearm or for any other criminal disqualifier to firearm possession, yet the family court below granted Government’s forfeiture motion in “the interest of public health, safety or welfare,” finding:

Pursuant to N.J.S.A. 2C:58-3c(5), it would be contrary to the interest of public health safety or welfare for Defendant to possess firearms as one of the weapons seized in this matter, specifically the Century Arms semi-automatic firearm (s/n 29nC12685), is a prohibited assault firearm, pursuant to N.J.S.A. 2C:39- 1w(2), and defendant knowingly possessed same.

Approximately twenty-five firearms were seized for safekeeping from the petitioner. App. 29-31. One firearm, however, was found to be a prohibited “assault firearm” under New Jersey law due to the Court finding that it was “substantially identical” to a prohibited firearm.

At the same hearing where petitioner was put on notice that the Government considered the firearm (that the Government seized “for safekeeping”) to be unlawful, petitioner was denied the return of all other seized firearms and barred from any firearm possession in perpetuity because he possessed one firearm that could not be returned.

As attorney Evan Nappen lays out in his petition for certiorari, the state’s gun control scheme violate not only the Second Amendment rights of residents, but their due process protections as well. In fact, Nappen argues that a number of constitutionally-protected rights are implicated by the state’s statutes, which haven’t been revised at all since the Heller decision was handed down by the Supreme Court in 2008. SCOTUS treats gun ownership as an individual right, but the state of New Jersey still sees it as a privilege.

New Jersians’ hope lies with this Court to clarify that nebulous disqualifiers such as “public health, safety or welfare” and Due Process-challenged prohibitors (such as once having a firearm taken and not returned) do not constitute “reasonable limitations” upon the Second Amendment right to possess arms at one’s home.

N.J.S.A. § 2C:58-3c’s restrictions upon individual exercise of the right to keep firearms date back to 1966 and are wildly, wrongfully discretionary. N.J.S.A. § 2C:58-3c begins by allowing New Jersey Government authorities to deny Second Amendment rights if a person is not a “person of good character and good repute in the community in which he lives” (whatever that subjective and undefined standard means).

The odds of the Supreme Court accepting any particular case are pretty long, but Nappen’s argument is solid, and his client’s circumstances do provide the Court with the opportunity to not only address the problems in New Jersey’s “red flag” law, but the fact that the state is still treating the right to keep and bear arms as if its no right at all. I’d love to see SCOTUS grant cert here, but at the very least the Court should hold the case over until the justices have released their opinion in the upcoming case dealing with New York’s carry laws (which is also expected to lay out the proper standard of review that should be used by courts considering Second Amendment challenges).