Handguns Banned in New Jersey!

handgun-ban-symbolThat’s not a headline…it’s a fact. You may not possess a handgun in the State of New Jersey unless you fall into certain, very restricted, categories which state law describes as “exemptions”. For instance, you are granted an automatic exemption for possession of a handgun if it is kept in your home.

However, unless you have been issued a New Jersey Permit to Carry a Handgun you may only transport your handguns from your home to the firing range and back, and the guns must be unloaded and inaccessible (generally in the trunk or in a gun case).

You may also transport your unloaded and inaccessible handguns from one residence to another while in the process of moving. Anything outside of this violates New Jersey law:

N.J.S.A. 2C:39-5. Unlawful possession of weapons.

b.Handguns. 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 third degree if the handgun is in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eighths of an inch in diameter, with sufficient force to injure a person. Otherwise it is a crime of the second degree.

Your chances of obtaining a carry permit are practically non-existent, thanks to the so-called Siccardi Decision (Siccardi v. State of New Jersey, 59 N.J. 545 [1971]). The court ruled that when applying for a permit to carry, “Generalized fears for personal safety are inadequate, and a need to protect property alone does not suffice.” Therefore, as a New Jersey resident you must rely on one of the exemptions previously noted. This severely infringes upon your right to protect and defend your life outside of your home and puts you at grave peril each time you transport your handguns.

I find it embarrassing to explain that, for practical purposes, the Second Amendment does not really apply to New Jersey. Delegates to the 1947 New Jersey Constitutional Convention believed that the right of the people to keep and bear arms was so obvious and universally accepted that they did not include it the wording in our state Constitution - a presumptive error of epic proportions.

Proceedings of the State of New Jersey Constitutional Convention

Wednesday, August 13, 1947

MR. STANGER: Senator, do you consider that the anti-discrimination clause as to civil rights will cover this provision as to militia, the thought being that civil rights include military rights?

MR. VAN ALSTYNE: Judge Stanger, that point was raised in committee and I can tell you that the committee unanimously felt - there are a number of lawyers on our committee - that the right to bear arms was a civil right. That is very definitely one of the rights of citizens. We therefore did fully cover the situation. (N.J. Constitutional Convention: Vol. 1, Page 305)

You may be thinking that the Bill of Rights applies to all United States Citizens. The short answer is it does not, especially not in New Jersey. If you find that astonishing, you are not alone. Since the 1960’s, case law in New Jersey has determined that the right to keep and bear arms is a “collective” right belonging to the National Guard, and is not an “individual” right (Burton v. Sills , 53 N.J. 86 , 91 [1968]). States’ rights generally take precedence over Constitutional rights when those Constitutional rights are not incorporated against the States through the Fourteenth Amendment’s Due Process Clause. That is just a fancy way of saying that (until recently) the Second Amendment did not automatically apply to the States individually. That fact allowed New Jersey to make its own determination regarding the right to keep and bear arms.

The recent United States Supreme Court rulings (District of Columbia v. Heller and McDonald v. Chicago) have finally determined that the Second Amendment is an individual right and does indeed apply to the States. So why haven’t New Jersey’s Firearms statutes changed to reflect the rulings in the Heller and McDonald cases? The reason is the Constitution is not “self-enforcing”. The Supreme Court ruling does set a precedent against which lower court rulings can be challenged, but that can take years.

MCDONALD v. CHICAGO

Opinion of the Court

Two years ago, in District of Columbia v. Heller, 554 U. S. (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home. The city of Chicago (City) and the village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbia’s, but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States. (emphasis added)

Unless and until the Legislature, Governor and Attorney General of New Jersey manifest the political will to address this issue, anyone living in or passing through New Jersey will not be able to count on the Second Amendment for protection against those who would infringe upon their right to keep and bear arms.

Remember: simple possession of a handgun in New Jersey carries a mandatory sentence of five years in prison with a presumption of seven years and no chance for parole for three years regardless of your intent and the burden is yours to prove that you were within one of the exemptions. See State of New Jersey v. Brian Aitken. It just happened and it’s not an isolated case.

Next time you are in the voting booth, make sure that you know where your candidate stands on the Second Amendment. Check his or her voting record. Is he or she a member of a committee that is acting as an obstacle to your right to defend yourself? Vote accordingly!

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Frank Fiamingo is the President of the New Jersey Second Amendment Society, a highly respected organization dedicated to improving individual, family and community safety through proper training and deterrence as encouraged and protected by the Second Amendment and to securing this right in New Jersey through common sense legislative and administrative change. Please visit www.NJ2AS.com to learn how you can help.

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10 Comments

  1. Ed Mazlish says:

    Frank:

    Two comments on your excellent post.

    1. You wrote:

    “Unless and until the Legislature, Governor and Attorney General of New Jersey manifest the political will to address this issue, anyone living in or passing through New Jersey will not be able to count on the Second Amendment for protection against those who would infringe upon their right to keep and bear arms.”

    There is another way for these rights to become protected in New Jersey. That is by means of lawsuits. Our activism on the Right must be as complete as the activism of the Left - and it also must not wait for politicians to act. Nobody would wait around for the politicians to repeal a censorship law - a lawsuit would be filed as soon as the law took effect. Gun rights activists should consider strategic lawsuits to enforce their Second Amendment rights in New Jersey.

    2. You wrote:

    “Delegates to the 1947 New Jersey Constitutional Convention believed that the right of the people to keep and bear arms was so obvious and universally accepted that they did not include it the wording in our state Constitution - a presumptive error of epic proportions.”

    You do a good job of debuming this later in your piece with your reference to the Heller and McDonald decisions. But the fundamental objection is that your statement erroneously assumes that rights must be enumerated in order to be rights (that is the meaning of the last characterization, about it being an “error of epic proportions”). This is serious error in yoru analysis.

    Our rights precede government. As the Declaration of Independence states, “to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” Writing a right into a constitution does not create the right - the right pre-existed government, and government was only created to protect rights. This as true for the right to bear arms as it is for the right to speak, as well as for a near infinite list of unenumerated rights.

    Thus, the failure to write gun rights into the 1947 constitution was not an error of epic proportions. The error of epic proportions lies in the substitiution of legal positivism for natural rights theory as the guiding principle of legal/judicial interpretation.

  2. Frank Fiamingo says:

    Ideally, I agree with you, Ed. But practically, the fact that we “possess” the human right to defend our lives and that of our families with the best tool possible, doesn’t play out well here in NJ. I earnestly suggest that you do not transport your loaded handgun on your person unless you have been granted the “privilege” of a carry permit. If you do so in the State of NJ, you will spend a minimum of 3 years in prison if you are caught (probably more).

    The fact that you prepossess the right by reason of birth will not help you here. This State will indeed infringe upon your right. So for that reason, it was indeed a SERIOUS omission not to include the wording.

    So while you are correct the wording does not grant or eliminate the right, The lack thereof certainly does a decent imitation of preventing the exercise of that right.

  3. GHoyas says:

    Frank Fiamingo on December 15, 2010 at 12:09 AM

    My father passed away in March of 2006, bequeathing me - among other things - his .44 Magnum Ruger Superhawk (with scope) and a .22 Ruger that he used to “plink” empty soda cans in his back yard. He lived in Upstate New York in a very remote area outside of Queensbury.

    I contacted the NY State Police and surrendered the handguns with the understanding that they would be transferred to MacGregor’s Gun Shop while I prepared to transfer them to New Jersey.

    I obtained the necessary permits in my home town; the weapons were transferred from MacGregor’s in New York to Ray’s Sport Shop in Plainfield, NJ where I secured them and then brought them home.

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  5. Trevor Hilton says:

    I think I’ll clean and oil my two S&W .357s’, my S&W .38 snubbie, Colt .45 auto, Ruger 9mm auto, Browning .22 auto, Ruger single action .357, and S&W .44 Magnum.

    Then, my rifles and shotguns.

    I’m glad the 2nd Amendment is still recognized here in Oklahoma.

  6. Steve Ostertag says:

    What I find interesting is that “population density” is always cited as a reason for gun control in NJ. Imagine if that were applied to, for example, freedom of religion? Churches take forever to get the permits and other necessaries to build. If that were to happen to other religious communities, busloads of attorneys paid by the appropriate “community defense organizations” would be hauling those officials to court.

    Has anyone notice that in 2003, New jersey voted to re-ratify the Fourteenth Amendment after more than one hundred and thirty-four years of having rescinded its ratification? It’s the worst of both worlds: a bizarre form of Dixie-like aspirations against minority exercise of the Second Amendment overlaid with the armor of Northeastern statism where no one apart from the police and military should be armed.

    Every person is thought a criminal, every object is thought a weapon, and every act is thought a crime until proven otherwise in court. “Liberty and Prosperity” has become the only fraudulent advertising that is lawful.

  7. Logical Lenny says:

    Lets apply Jersey logic to a hypothetical state X
    If State X put severe restrictions on the 1st or 4th amendment under the the same excuses NJ restricts the 1st.Wonder what would happen then.?

    Conservatives and true TEA PARTY members must hold their representatives and candidates responsible BEFORE elections by getting them to sign a pledge to overturn every Anti American gun control law in NJ

  8. Running for Assembly in the 15th District as a Republican, an “uncontested” district, where some would say I have a snowball’s chance in …Hawaii, I just want to say this year, in that district, voters actually have an opportunity to vote for the person who would be the FIRST to propose, sponsor, cosponsor legislation, arm-wrestle and/or otherwise fight to the death to get our second amendment rights restored. And you can take that to the bank! (… maybe a snowbank.) I am NRA endorsed. I can carry in 38 states, but not my own. It’s outrageous what happened to Brian Aitkin, and mine was among the emails supporting him. At least this year I get the chance, the option to vote for someone who will try to restore our “Liberty and Prosperity”, even if nobody else does. ( At least there’s one comforting thought… I guess none of the surrounding Democrats own guns.)

  9. Rebecca Imre says:

    I am originally from Georgia but now live in Pennsylvania. We also have a summer home in New Jersey where I spend most of the summer.

    I have a handgun and a license to carry in Pennsylvania. Apparently that is not enough for New Jersey. Now, my understanding is that I can transport the unloaded weapon and keep it in my home; I just cannot carry it on my person outside my home. Please correct me if I am wrong (someone).

    I would be happy to vote for any candidate who addressed this terrible suppression of our 2nd Amendment rights in New Jersey. Unfortunately, New Jersey also does something equally unconstitutional: taxation without representation. Although we own property there and pay tremendous amounts of taxes, we are not accorded the simple right of voting in your elections.

    However, having become aware of this issue, I would be glad to have information about any candidates who are running for office in New Jersey and are willing to take on this issue. I would be willing to provide financial support to such candidates as is within my means. Maybe that’s the only way my voice can be heard in my beautiful adopted state of NJ.

  10. N.L. Greger says:

    Rebecca, I have almost the same problem. My wife and I moved from NE to NJ, I had a CHP in NE and had to give mine up as I now have a NJ drivers license. I left all my firearms back in Nebraska, it is to easy to get a felony her. Law abiding people are penalized while criminals can carry all day everyday! This is a wiki link on how liberal NJ is even with a “conservative” Governor. http://en.m.wikipedia.org/wiki/Politics_of_New_Jersey