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| NJ Appeals Court Says Americans Do Not Have A Right To Buy Handguns |
| 2009-10-31 |
| A New Jersy appeals court has concluded that Americans have no Second Amendment right to buy a handgun. In a case decided last week, the superior court upheld a state law saying that nobody may possess “any handgun” without obtaining law enforcement approval and permission in advance. That outcome might seem like something of a surprise, especially after the U.S. Supreme Court ruled last year in the D.C. v. Heller case that the Second Amendment guarantees “the individual right to possess and carry weapons in case of confrontation.” But New Jersey Appellate Division Judge Stephen Skillman wrote on behalf of a unanimous three-judge panel that Heller “has no impact upon the constitutionality of” the state law. That’s because, Skillman said, the Supreme Court did not strike down the District of Columbia’s de facto handgun ban but instead simply ordered the city to issue a permit. In other words, while Americans may have the right in general to possess arms, the exact contours of that right have not been mapped, especially as the Second Amendment applies to state laws. (The court's majority opinion last year said: "We therefore assume that petitioners' issuance of a license will satisfy respondent's prayer for relief and do not address the licensing requirement.") Look for the Supreme Court to revisit this question in a few months when it hears a case called McDonald v. Chicago. It's a constitutional challenge to Chicago's restrictive gun laws, which prohibit anyone from possessing firearms -- even in their homes -- "unless such person is the holder of a valid registration certificate for such firearm." New Jersey's laws are similar. They say: "No person shall sell, give, transfer, assign or otherwise dispose of, nor receive, purchase, or otherwise acquire a handgun unless the purchaser, assignee, donee, receiver or holder... has first secured a permit to purchase a handgun as provided by this section." Another section dealing with licensing says: "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." Some of the exceptions involve criminal records, for instance. What prompted the current lawsuit was a request for a handgun purchase permit that Anthony Dubov submitted to the East Windsor Chief of Police. The police chief denied Dubov's request without giving any reason, in what the appeals court later ruled was a violation of state law. The current East Windsor police chief is William Spain. Oddly, the trial judge upheld that denial, without asking the police chief to testify to explain himself (another violation of state law) and after taking the unusual step of contacting Dubov's previous employers to ask about his background. Dubov's attorney, Michael Nieschmidt, argued that the state licensing scheme was unconstitutionally vague and therefore violated the Second Amendment. Skillman concluded that while the Second Amendment doesn't apply, state law and precedent nevertheless required that Dubov receive more due process than he did. The appeals court wrote: "Accordingly, the trial court's affirmance of the police chief's denial of appellant's application for a firearms purchase permit is reversed, and the case is remanded for an evidentiary hearing in conformity with this opinion." |
| Posted by: Anonymoose |
| #12 Except Article I, Section 8 specifically gives Congress that authority to define what it is [not that it has stop the Judiciary from usurping such authority in the past]. It's there because the Founding Fathers were products of hundreds of years of English history which included a little dust up called the English Civil War (1641–1651). A key component of which was 'who', the King or Parliament, got to determine the purse string of the military, who appointed the officers, and who wrote the laws governing the military. The Founding Fathers wrote that in specifically to exclude any question of 'who' was, which was the legislative branch. |
| Posted by: Procopius2k 2009-10-31 18:23 |
| #11 But Procop - this Title 10 thing is unconstitutional - it discriminates against women. |
| Posted by: Glenmore 2009-10-31 18:16 |
| #10 The anti-gunners [want to] argue that "Militia" equates to military and National Guard. However, that is not true. Article I, Section 8 of the Constitution stipulates that Congress regulates the militia which it does already in Title 10 United States Code, Subtitle A > PART I > CHAPTER 13 - Militia: composition and classes (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (b) The classes of the militia are— (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia. In fact, what most people call the 'draft' is actually the selective activation of the unorganized militia. Now what they could put forth is that a 'handgun' is not a proper weapon for the militia outside of officers and members handling crew served weapons, but that in turn would imply that they are entitled to own the standard weapons of the Army and Guard which would be the M16 and its variants. Now in desperation the anti-gun folks could try to repeal subparagraph (2), however then any future 'draft' would run afoul of the 13th Amendment. |
| Posted by: Procopius2k 2009-10-31 15:50 |
| #9 If the courts succeed in gutting the 2nd amendment, I shall suggest that the Tea Parties propose the 28th amendment, to wit: 28th Article of Amendment Section 1. Neither the Congress nor the legislatures of the several states shall impede, encumber or abridge the right of law-abiding citizens to own, purchase and carry ordinary firearms, or to own and purchase ammunition for such firearms. The Congress and the legislatures of the several states may, at their discretion, require a record of firearms ownership, but no such requirement shall be used to abridge, encumber or limit the rights of citizens in this Section. Section 2. The Congress and the legislatures of the several states may, at their discretion, limit, encumber or abolish the right of ownership of ordinary firearms for any person convicted of a serious felony or breach of the peace under due process of law. Section 3. The words of this article shall be interpreted according to their public meaning at the time of its ratification. |
| Posted by: Steve White 2009-10-31 14:49 |
| #8 I actually live in East Windsor NJ and know the attorney Michael Nieschmidt. EW is actually relatively gun friendly in a NJ sort of way. Sounds like some personal issue between Dubov and the Chief. Nieschmidt is a pretty solid lawyer as far as I know. NJ does not have a right to bear arms in it's constitution. We are desperately waiting for 2nd amendment incorporation. |
| Posted by: Hellfish 2009-10-31 12:53 |
| #7 Wasn't the ruling in the D.C. case 5-4 in favor of individuals' rights? Scary, since we now have Sotamayor weighing in. The Chicago case will be the one to watch and, like Steve White states above, I'm really, really hoping it gets a lot of publicity. |
| Posted by: Woozle Uneter9007 2009-10-31 12:49 |
| #6 "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."? The anti-gunners argue that "Militia" equates to military and National Guard. However, the Courts, to my understanding, have decided that the 2nd Admendment is an individual right guaranteed by the Bill of Rights. |
| Posted by: JohnQC 2009-10-31 12:40 |
| #5 I really think that Judges are jealous of how much congress is hated and reviled and want the same. It's rapidly reaching the point where the common American can see that the judges are stepping away from the constitution and committing treason. |
| Posted by: Silentbrick 2009-10-31 12:30 |
| #4 What's so hard about understanding "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."? The Militia being defined as every free able-bodied (white originally) male citizen between the ages of 18 and 45. Hell, they were required to have weapons. |
| Posted by: ed 2009-10-31 12:14 |
| #3 No problem here at all: go ahead and invalidate the 2nd amendment. Go ahead. I dare you. The Tea Party folks need only one more big issue for the coming 2010 election. Go ahead. See what happens. |
| Posted by: Steve White 2009-10-31 12:07 |
| #2 I guess that's OK as long as we have the right to buy long guns and shotguns and take a hacksaw to the stock and barrel. |
| Posted by: SteveS 2009-10-31 12:02 |
| #1 Looks to me like a logical ruling, and a surprisingly intelligent article on it. The irony is the decision on the requirement that the applicant be a 'person of good character and repute' is to be decided by government officials of New Jersey, who are not known for being such people themselves. |
| Posted by: Glenmore 2009-10-31 11:04 |