Handguns Banned in New Jersey!
That’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 ). 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 ). 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.
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!
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.