Court case in NJ could upend entire permitting scheme

Court case in NJ could upend entire permitting scheme
Don Petersen

I recently had a chance to check out a case that’s bound to make waves in New Jersey. The suit involves a story that’s near to a sitcom, except there’s nothing funny about how everything has fleshed out to date. New Jersey’s firearms laws are convoluted to put it lightly. The constitutionality of most of the statutes have not been thoughtfully considered by the courts under the Heller and McDonald decisions when challenged, even though arguments from both have been made in the past. Interest balance, subjectivity, and community caretaking were all on the chopping block for the last decade. With the NYSRPA v. Bruen decision, one big subjective standard in New Jersey’s permitting law is in trouble.

When we look at the disqualifiers on who may or may not own a firearm, most of it is cut and dry, and we can turn to the Federal standard. No felons. No domestics. No restraining orders. You get the picture. New Jersey has something in the law beyond the normal stuff and includes a provision where firearm identification cards and pistol purchaser’s permits don’t have to be issued out to people if the issuing authority does not think it’s in the interest of public health and safety.

Looking at NJ Rev Stat § 2C:58-3 we have the following on who may be issued permits to purchase and or firearms identification cards:

C. Who may obtain. 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 sections of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card, except as hereinafter set forth. 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; [emphasis added]

That’s a subjective standard and exactly what’s being challenged in a case we’ll call M.U.

The M.U. case is being handled by the Nappen Law Firm, with Louis Nappen acting as M.U.’s attorney. M.U. had both firearms and his appropriate paperwork dating back to January of 2017. In December of 2019 M.U. applied for additional pistol purchaser’s permits, as an individual needs a permit for every handgun procured. In March of 2020, well past the statutorily defined time the issuing authority has to act on applications, M.U. received a letter from their issuing authority and was being denied under the cited public health, safety or welfare standard. Before the month’s end, M.U. appealed the issuing authortiy’s decision and about ten months later, the government moved to have all their paperwork revoked and firearms seized.

What happened between 2017 and 2019? Absolutely nothing. There were two incidents that M.U. was involved in prior to obtaining their original firearm licensing paperwork.

At the age of 21, M.U. was charged with criminal mischief for allegedly throwing a cut log through the windshield of a car owned by someone that owed them money. The person was not in the vehicle at the time and the incident has since been expunged from their record.

In 2015 M.U. took possession of what they thought was an abandoned trailer. It was a misunderstanding and the situation was eventually conditionally dismissed.

The police and court unsealed the expungement and used it against M.U. The very nature of the expungement in fact removed any possible disqualifiers from M.U.

In the appeal, one very valid argument that was made was that the caretaking provision of the law is not a disqualifier for possession of a firearm in New Jersey. That provision only applies to the issuance of permits to procure firearms. The court ordering M.U. to surrender their firearms was without statutory authority. This notion was further addressed in the March 2022 reply brief:

It is clear that the Court below wrongfully conflated laws concerning permits to purchase firearms with laws concerning possession and forfeiture of firearms.

It was further alleged that the situation was moot, as M.U.’s firearms were probably irrecoverable since seizure. The injuries went further than just the physical firearms, and I’d personally argue a separate civil rights violation had occurred, with severe punitive damages needing to be awarded to M.U.

Where things get really exciting with this case is that in the middle of it, NYSRPA v. Bruen came in like a wrecking ball. According to a recently filed brief, the court requested M.U.’s representation provide a supplemental brief. The supplemental brief was written to specifically focus on the opinion handed down in the New York case, and present their arguments through that lens.

A N.J.S.A. 2C:58-3c(5) is prima facie unconstitutional and, if not, Government must prove that denying Second Amendment rights upon a “not in the interest of the public health, safety or welfare” standard is consistent with this “Nation’s historical tradition of firearm regulation” (e.g., from 1791 to, arguably, 1868).

The 10 page brief makes short order of NJ’s law as well as the formerly incorrect and unconstitutional directives from the court. Pulling directly from NYSRPA v. Bruen, Nappen built the case.

In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Pp.21-22. (Emphasis added.)

The sweet irony of all this is that in many ways NYSRPA v. Bruen was a restatement of both Heller and McDonald, but further provided a roadmap on how to apply those opinions and the finer details of the case at hand.

Nappen points out the parallels between the directives and how his client was further injured by the court.

M.U. challenges the violation of his constitutional rights upon a “not in the interest of the public health, safety or welfare” standard. Counsel could find no parallel type of regulation in place against the general citizenry at the time of our Constitution’s framing. Absent a finding that N.J.S.A. 2C:58-3c(5) is prima facie unconstitutional, Government must now prove that this subsection—enacted in 1966 [mirroring N.J.S.A. 2A:151-33, enacted in 1954]—is consistent with this Nation’s historical tradition of firearm regulation when the Second or Fourteenth Amendments were ratified.

B. “Not in the interest of the public health, safety, or welfare” constitutes an unconstitutional balancing test per Bruen.

In addition to the above “Nation’s historical tradition of firearm regulation” Test, the U.S. Supreme Court also re-enforced in Bruen that, when it comes to the individual right to keep and bear arms, courts may not apply a balancing test. The Supreme Court did not invoke any “means-end test” and “expressly rejected” any interest-balancing inquiry akin to intermediate scrutiny.

What we’re looking at is something I’d consider a checkmate. Granted, we’re talking about New Jersey, and anything’s possible concerning what’s going to be considered Constitutional. I think any court is going to be hard pressed to not see that the “public health, safety, or welfare” provision of the law is unconstitutional. Louis Nappen’s argumentation, as he is an astute study of these areas of law, I think is going to pay off.

While there are states implementing (Oregon) or promising to implement (Washington) the creation of firearm permitting schemes, there are states like New Jersey and Illinois where there are active suits challenging the notion law abiding citizens need a government permission slip in order to procure and possess firearms.

It’s subjective standards like this provision that allow New Jersey executives to keep people disarmed. It’s not for issuing authorities to pass judgement upon applicants seeking to exercise a right. The person is either a fit or unfit element of society, as statutorily defined. Different jurisdictions are notorious for abusing their powers when it comes to issuing firearms paperwork in New Jersey (one notorious case caught on undercover film involved an Orange, NJ PD officer admitting to inflicting extreme bias, aka “safety and welfare”).  The mere existence of these documents is an insult to the Second Amendment.

Should M.U. be victorious in their challenge to NJ’s unconstitutional law, the case history will undoubtedly provide beneficial in a suit filed in 2021. The case is Kendrick v. Grewal and challenges New Jersey’s entire firearm identification and pistol purchaser’s permit scheme.

We’re truly entering what can be considered the golden age of firearm restriction challenge. The legislators and executives can kick and scream all they want, but if the courts do what’s right, we’ll be regaining our freedoms much quicker than they were taken away.

For more information about the M.U. case you can tune into the Gun Lawyer Podcast by clicking HERE or catching it in the embed below.