Nappen Law Firm files Second Amendment Brief with NJ Supreme Court

Date posted: February 1, 2016

The New Jersey Supreme Court, for the first time in 45 years, will be considering Second Amendment rights. The Nappen Law Firm has filed its brief with the Supreme Court. A website version may be read here.

The brief strikes at the heart of New Jersey’s gun control scheme. NJS 2C:39-5b Unlawful Possession of Weapons-Handgunsreads as follows:

“Any person who knowingly has in his possession any handgun, including any antique handgun, without first having obtained a permit to carry the same as provided in N.J.S.2C:58-4, is guilty of a crime of the second degree.” (Emphasis added)

Nappen argues that currently, in New Jersey, individuals who possess a handgun, even in their home, without a permit to possess (so called – “permit to carry”) do so under a “presumption of illegality.” They must prove they fall under one of the “strictly construed” exemptions listed in N.J.S. 2C:39-6 to establish their innocence. (N.J.S. 2C:39-6e exempts possession in one’s residence.)

Without a permit to possess, the only way to legally possess a handgun in one’s home in New Jersey, is by exemption. Individuals, who rely on exemptions, are perpetually at risk of arrest, prosecution and having to prove facts at trial necessary to establish one’s innocence.

To be granted a New Jersey permit to possess a handgun, one must demonstrate “justifiable need.” This is an extraordinarily difficult requirement. The only way a private citizen may meet the requirement is if the applicant can “specify in detail the urgent necessity for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot be avoided by means other than by issuance of a permit to carry a handgun.” N.J.A.C. § 13:54-2.4.

The United States Constitution does not contain a Bill of Needs. It contains a Bill of Rights. No “need,” justifiable or otherwise, should ever be required for an individual to exercise the rights guaranteed by that document.

The average private citizen who wishes to possess a handgun in his or her home, whether for protection, target practice, hunting, collecting or any other legitimate purpose, can not meet such an absurdly burdensome need requirement. It is a defacto ban.

The justifiable need a requirement has to be struck as unconstitutional, and average citizens must to be granted  permits to possess.  Otherwise, New Jersey’s handgun possession law, N.J.S. 2C:39-5b, is itself unconstitutional because it converts a right into an exemption.  Rights may have exemptions, but rights themselves must not merely be exemptions.

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