NYSRPA v. Bruen ruled that subjective permitting standards were to be abolished. New Jersey has one on the books and a recent case weakens the government’s ability to use it.
New Jersey has on their books a subjective standard when it comes to issuing firearms-related permits. The law, 2C:58-3(c)(5), says that permits may be denied “to any person where the issuance would not be in the interest of the public health, safety or welfare because the person is found to be lacking the essential character of temperament necessary to be entrusted with a firearm. …” A published N.J. Superior Court opinion defines “temperament” and it’s going to severely impact the way issuing authorities have subverted rights for years.
In the Matter of the Appeal of the Denial of Mikhail Polatov’s Application for a Firearms Purchaser Identification Card and Permit to Purchase a Handgun, Judge Thomas W. Sumners wrote on behalf of a three-judge panel that “essential character of temperament means the basic defining qualities of a person's emotional response.” The ruling directly ties the emotional response to violence, rather than some other subjective reasoning.
Getting this definition in the case law in the Garden State will greatly affect many past and future applicants who have been denied firearm-related paperwork. Previously reported Leonard Mirabal was denied a permit to carry over a non-criminal driving record. While he eventually got his permit, under the new interpretation of the standard, it’s not likely he would have been denied in the first place.
The case was litigated by Robert B. Bell of the Evan Nappen Attorney at Law firm.
While this case is precedential and published, Judge Sumners fell short on ruling on the overall constitutionality of the statute.
“Finally, we decline to address Polatov's constitutional challenges to N.J.S.A. 2C:58-3(c)(5) as they are not ‘imperative to the disposition’ of this Matter,” Sumners wrote. “Our conclusion that Polatov's FPIC and PPH application should have been granted because there is no evidence he is disqualified under A-3720-23 19 the statute, makes it unnecessary to determine his arguments that the statute is unconstitutional.”
Attorneys Bell and Nappen recently discussed the ruling on Nappen’s popular “Gun Lawyer” podcast.
“Mikhail’s journey in trying to exercise his Second Amendment rights started back in 2020,” Bell explained. “He applied for a firearms purchaser identification card and was denied. Not on the basis of any convictions, restraining orders, substance abuse, or anything like that. Nothing objective. Just a 2011 misdemeanor charge that was dismissed and something back in 2002. So, it’s all very remote, and neither of them resulted in convictions, anyway. He gets denied, and he appeals it.”
Bell said that the judge dismissed Polatov’s appeal because he “disliked his “cavalier attitude about it. …””
A subsequent application was drawn by Polatov in 2023, along with his wife. “[They] both [got] denied,” Bell said. “Simply on the basis of a previous denial.”
The couple appealed the denials.
“They deny the wife simply because she lives with him, and they deny him because he was ‘dishonest with us before,’” Bell said. He noted the argument against Polatov during appeal proceedings was that “if he’s telling the truth now, it means he was either lying then or lying now.”
When answering questions in his first denial appeal hearing, Polatov did not understand everything that was being asked. English is Polatov’s second language, and more than once miscommunication has fouled up firearm permit applicants. While being examined during the second appeal hearing, Polatov was essentially being accused of past or present perjury.
Nappen explained why the decision is so monumental.
“Now we have the standard of the violence and danger to [the] public,” Nappen said. “We’ve seen many times in the denial that it has — nothing. They put forward nothing to do with violence or danger — that they don’t ever deny [this], as this case illustrates. What did the judge deny him for? Nothing having to do with violence.”
2C:58-3(c)(5) has ensnared so many would-be gun owners. The “public health, safety or welfare” standard has been used to deny the rights of New Jerseyans for years.
Something that Bell and Nappen both alluded to in the podcast is that when the legislature paired the pre-Bruen statute with the “carry-killer” legislation of 2022, they added “temperament” as a qualifier to the former standard, they actually weakened the subjectivity of the law.
“It’s actually had the opposite effect of what they intended,” Nappen said. “Because in this case law, it creates a limitation, as expressed in Polatov, as to what that actually means. …”
From the opinion:
There is no evidence that Polatov exhibited behavior––criminal conduct, aggressive behavior, threats of violence, emotional instability, alcoholism, substance abuse, or mental health concerns––that establishes he could not be entrusted with a firearm. Likewise, there is no indication in the record that Polatov's lack of credibility correlated to the absence of the essential character of temperament that would make him more likely than not to be a danger to public health, safety, or welfare if he had a firearm.
One of the lynchpins to the court’s reasoning has to do with a federal opinion in the Koons v. Platkin case. Nappen explained that this was the first time an appellate court in New Jersey referenced federal case law in deconstructing firearm regulations. “It’s very significant,” Nappen said. “It bridges the state to the federal.”
“They quoted Koons v Platkin when they said that the ‘weasel clause’ [2C:58-3(c)(5)] must focus on whether the applicant armed with a firearm poses a danger to the public,” Bell concluded. “So, we’re running in circles with vague rules.”
The only data that’s available on firearm-related permits, approvals, and denials is through the New Jersey Permit to Carry Dashboard. Recently reported, that dashboard stalled for a couple of months, and it only reflected permit-to-carry information for civilian applicants. The dashboard, while it can give a glimpse into what’s going on in the Garden State with permits, it does not mention firearm identification cards and/or pistol purchaser permits.
According to the dashboard, 61.5% of all the post-Bruen permit-to-carry denials from June 2022 through to the end of Feb. 2026 utilized “public health, safety or welfare” as the denial criteria. Since permit-to-carry applicants must first have a firearms identification card prior to applying for a permit to carry, it’s going to be difficult to find or prove an applicant is linked to violent tendencies — otherwise it’s likely their other licenses would have been revoked.
These statistics matter, and that’s why there’s a push to statutize reporting requirements on all firearm-related licenses in New Jersey. N.J. Assembly Bill 222 would require such transparency. (A measure that the NRA-ILA is asking Garden State gun owners to take action on.)
To quote Nappen, this opinion throws a “Polatov cocktail” on New Jersey’s subjective licensing standard. There’s likely to be a revisitation of permitting options for most of those who received denials in the past. The issuing authority won’t be able to hang their hat on a “past” denial(s) to prove the public’s interest. Unless a denial was based on statutorily defined disqualifiers or a violent past, it won’t likely stand. Subjective denials now must meet the case law’s definition of “character of temperament.”
If you’re interested, you can listen to attorneys Evan Nappen, Teddy Nappen, and Robert Bell, discuss this big win for New Jersey HERE or in the embed below.
Editor’s Note: Second Amendment advocates aren't giving up on anti-gun states like New Jersey, and even small victories can add up to big wins.
Help us continue to report on and support efforts like this. Join Bearing Arms VIP and use promo code FIGHT to get 60% off your VIP membership.
Join the conversation as a VIP Member