Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
Three gun rights organizations filed a federal lawsuit Monday challenging carry laws in the state of New Jersey in a case that could have far-reaching ramifications.
The case, known as Bennett v. Davis, was filed by the Second Amendment Foundation (SAF), Firearms Policy Coalition (FPC), New Jersey Second Amendment Society (NJ2AS) and two private citizens identified as Stanley Bennett and Michael Hucker. The lawsuit was filed in U.S. District Court for the District of New Jersey. Plaintiffs are represented by attorneys David Jensen of Beacon, NY., Raymond M. DiGuiseppe of Southport, NC and Adam Kraut of Sacramento, CA.
Named as defendants are Clayton Police Chief Andrew Davis, Guttenberg Public Safety Director Robert D. White, Guttenberg Police Officer-in-Charge Juan Barrera, State Police Supt. Patrick J. Callahan and Attorney General Gurbir S. Grewal.
To obtain a carry permit, the lawsuit notes, “a private citizen must apply to either their chief police officer or to the state police superintendent, depending upon their circumstances, as required” by law. The full complaint may be read here.
“This police official has the discretion determine whether the requirements, including “justifiable need, have been met, and to approve or disapprove the application accordingly,” the complaint alleges.
The 47-page complaint details the Garden State’s “justifiable need” requirement, explaining that this provision “conditioning the issuance of a permit to carry a handgun on proof of an ‘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. statutorily disqualifies all ordinary law-abiding citizens, preventing them from obtaining a Carry Permit.”
The federal complaint goes on to assert, “The State of New Jersey’s laws, regulations, policies, practices, and customs individually and collectively deny millions of individuals who reside in New Jersey, like Plaintiffs, their members and supporters, and others like them, their fundamental, individual right to bear loaded, operable handguns outside the home through oppressive criminal statutes combined with a Carry Permit system that requires ‘justifiable need’ and other subjective requirements that regular citizens cannot meet (the ‘Regulatory Scheme’).”
“The right to bear arms must be available to all citizens, not just a privileged few,” said SAF Founder and Executive Vice President Alan Gottlieb after the lawsuit was filed. “Like other rights protected by the Constitution, that right is not limited to the confines of one’s home. Ever since the SAF victory in McDonald v. City of Chicago ten years ago, the Second Amendment absolutely applies in New Jersey. We will continue to sue whoever we need to as we restore the Second Amendment one lawsuit at a time.”
FPC President Brandon Combs was equally scathing in his criticism of New Jersey’s gun control scheme.
“The people of New Jersey have been oppressed by an abusive, authoritarian government for far too long, and we intend to remedy that beginning today,” Combs said. “Our nation fought the Revolutionary War to forcefully reject the Crown’s heavy-handed rule and denial of fundamental liberties, including the right to bear arms, but the State has regressively called back to that tyranny as inspiration for its current policies. Governor Murphy, Attorney General Grewal, and other anti-rights government officials may not like that people have the right to carry loaded guns in public, but their opinion doesn’t trump the Constitution. It’s time to bring freedom back home to the Garden State.”
NJ2AS President Alexander Roubian, who has discussed Garden State gun control during presentations at the annual Gun Rights Policy Conference, called the state’s gun control statutes “draconian.”
“New Jersey’s…prohibition on the right to protect yourself with a firearm, the same way politicians and judges protect themselves, has endangered lives and created countless victims,” Roubian said. “New Jersey residents want nothing more than to protect themselves and their loved ones, as they are entitled to. We are confident the courts will agree and proud to join forces with the nation’s leading organizations, the Second Amendment Foundation and Firearm Policy Coalition, to help take this battle to the highest court.”
“This case is fundamentally a simple but important one,” noted attorney DiGuiseppe. “In New Jersey today, the right to carry loaded handguns in public for all lawful purposes, including self-defense, is completely denied to law-abiding people, like and including our clients. But the U.S. Supreme Court has held that such bans are categorically unconstitutional. We look forward to vindicating the rights of our clients and forcing New Jersey to respect the Constitution.”
“The right to keep and bear arms is not limited to the home,” attorney Kraut added. “In Heller, the Supreme Court held that to ‘bear’ arms means to ‘carry’ them for ‘a particular purpose—confrontation.’ And even the late Justice Ginsburg wrote that bearing arms means to ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’ But the State of New Jersey has totally banned the average law-abiding citizen from exercising their rights. That is unconstitutional and unacceptable.”
Quite possibly the most recent, and egregious example of how New Jersey’s gun control laws leave residents vulnerable was the case involving Carol Bowne, a Berlin Township resident whose application for a permit to buy a gun gathered dust at the local police department for weeks in 2015.
She had a protection order against a former boyfriend. She applied for the gun permit on April 21, 2015.
Just 48 hours after Bowne contacted the police department in early June to inquire about the status of her application, the ex-boyfriend brutally stabbed her to death in the driveway of her own home. That slaying made national headlines, but only for a short time. The killer committed suicide.
“Consequently,” the lawsuit contends, “because of the Regulatory Scheme and Defendants’ enforcement of it, neither Plaintiffs nor any other ordinary law-abiding adult can exercise their fundamental right to bear arms in New Jersey without being subject to severe criminal sanction.”
Bennett is a firearms dealer. He applied for a carry permit in November 2019. His application “included the endorsement of three reputable persons who had known him for at least three years and who certified that he is a person of ‘good moral character and behavior, in accordance with the statutory requirements, as well as evidence of the certification necessary to demonstrate sufficient familiarity with the safe handling and use of handguns, as further required under state law,” the lawsuit says.
“Nevertheless,” the complaint alleges, “on or about July 28, 2020, Plaintiff Bennett received notice from the Clayton Police Department that he had been denied a handgun carry permit for lack of ‘a justifiable need’ under the Regulatory Scheme.”
Hucker submitted his application back in October 2018 and included a statement explaining his justifiable need. He’s a real estate professional who often carries cash from renters, and to take care of expenses. But on Feb. 19, 2019, his application was rejected by the Guttenberg Police Department.
Contrast this situation with Washington State, where the law requires concealed pistol licenses to be issued to anyone who qualifies. There is no “justifiable need” requirement—although Seattle-based gun prohibition groups would like to see one—and as of Nov. 1, according to the state Department of Licensing monthly report, there are more than 636,400 active CPLs in the state, and that is down more than 14,000 from the record high of more than 650,000 back on April 1, because of Washington’s COVID-19 lockdown that allowed police agencies to “suspend” taking new CPL applications, despite there being no provision for such a suspension in state law.
Most agencies have re-opened their application process, but it took six months. The King County Sheriff’s Department, serving the most populous county in the state, has this notice on its website: “Please be aware that there is a tremendous number of individuals wanting to get their CPLs. We are limiting how many daily appointments we can schedule at all locations at this time. When we are able to process appointments more quickly, while continuing to maintain COVID safety precautions, we will be making adjustments to the number of appointments we can do per day. NO WALK-IN APPOINTMENTS at this time.
“Fingerprinting for CPL application is conducted during the application process – no 3rd party prints accepted,” the notice adds.
Compared to the situation in New Jersey, Washington would be considered friendly territory for gun owners.
In the Garden State, as noted in the federal lawsuit, “any ordinary citizen who knowingly has in his or her possession any handgun without first having obtained a permit to carry the same is guilty of a crime in the second degree.” Conviction will result in the loss of Second Amendment rights.
As described in the lawsuit over the course of several pages, it is difficult if not impossible for average citizens to get carry permits allowing them to carry a loaded sidearm for personal protection, as there are various hoops through which they must jump that amount to a legal obstacle course.
As summed up in the lawsuit, “nothing in the text itself, nor in the applicable history or tradition, of the Second Amendment supports the restrictions and burdens that the Regulatory Scheme imposes on law-abiding citizens, like Plaintiffs, and their right to lawfully and peaceably carry loaded handguns for all lawful purposes, including self-defense, in the exercise of their fundamental right to bear arms.
“Indeed,” the complaint adds, “nothing in that historical background even justifies the preliminary requirement that ordinary law-abiding citizens must obtain a permit— through an already onerous scheme that tests their ‘good character and good repute in the community’—before they can even purchase or acquire a handgun in the first place.
“It makes a mockery of the fundamental right to keep and bear arms under the Second Amendment to require that ordinary citizens apply for a permission slip from State agents to carry the handgun which they already had to jump through hoops to acquire,” the lawsuit observes, “and then to grant those same State agents essentially unimpeachable discretion to deny that permission whenever they find, in their subjective judgment, an insufficient “justifiable need,” that the applicant has not proven “good moral character and behavior,” or that issuing the permit is otherwise contrary to some “interest of the public health, safety and welfare.”