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Old January 26, 2009, 10:32 AM   #1
jg0001
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New Jersey CCL Legal Fight

For those not in the know, New Jersey (NJ) is a can issue state. For the most part, they do not issue.

Here are my questions:
(1) Has there ever been a legal battle brought by a civilian to get a concealed carry permit in NJ? And I'm talking about a plain, non-ex con civilian, non-ex military or police, not a security guard, etc. A regular 'Joe' if you will.

(2) What really would be required of someone to bring such a suit against the state? Honestly, if I wanted a CCL why should I need ANY reason to actually have one, rather than simply point to the 2nd Amendment? Granted, that's not likely to get me anywhere, but isn't the whole point that we shouldn't NEED a particular reason to be issued a CCL?

Having fought against NJ once for a first amendment case (versus a judge -- and won), I've been paying serious thought to making a go at the 2nd amendment -- I just don't want to end up in a dozen pratfalls that have befallen those before me. Somehow I don't think saying to a judge/court "give me a permit because the 2nd amendment says so" is going to work, in and of itself - even if that should be the proper understanding of it.

Thoughts? Suggestions?

Last edited by jg0001; January 26, 2009 at 11:16 AM.
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Old January 26, 2009, 11:01 AM   #2
Al Norris
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Knowing nothing about NJ law, is open carry available?
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Old January 26, 2009, 11:15 AM   #3
jg0001
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From the NRA site -- http://www.nraila.org/media/misc/nj.htm
"...no differentiation is made between carrying openly or concealed..."
... when referring to the need to have a concealed permit to 'carry', period.

Guns are taboo enough in NJ that someone openly carrying probably wouldn't get 10 feet without having the cops called on them. I live in the metro NYC area, not in the backwoods of NJ, so it would be quite a surprise to see someone openly carrying.
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Old January 26, 2009, 11:37 AM   #4
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On what basis would you challenge the law?

When it comes to concealed weapons the state has a great deal of discretin in deciding what the permit process should be and who should get permits.

Unless they are denying permits based upon some protected class (race, gender, religion, etc...) then there is really no argument to be made to force the state to issue a permit.
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Old January 26, 2009, 12:20 PM   #5
Al Norris
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The argument would have to be made in light of Heller. Even then, it presupposes an incorporation element to the argument.

A compelling argument can be made that if the state regulates, by licensing, all forms of carry, then the State has infringed the right to carry for the lawful use of arms in self-defense. There is dicta in Heller that alludes to this.

It would however, be an uphill battle and would ultimately be reviewed by the 3rd Circuit.
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Old January 26, 2009, 12:22 PM   #6
Cerick
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If a plain clothes civilian were to openly carry, one in the first 3 people that he or she incountered would most likely yet "Everyone run, he/she's got a gun!" and everyone would start running frantically and crying in fear for their life.
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Old January 26, 2009, 12:32 PM   #7
maestro pistolero
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Quote:
Unless they are denying permits based upon some protected class (race, gender, religion, etc...) then there is really no argument to be made to force the state to issue a permit.
Some questions:

When and if incorporation via the 14th happens, couldn't it be a straight up 2A challenge?

Although it was in dicta, didn't Scalia make clear that 'keep' meant own, possess, and that 'bear' meant carry?

Regarding the 'sensitive places' issue: Wouldn't the fact that that, since the nation's capitol itself is not a sensitive place, the bar has been raised for what could be considered a 'sensitive' place? (Think Nordyke/county fairgrounds)

There doesn't seem to be much point to an unambiguous ruling on an amendment (Heller), if state law can just turn the amendment on it's head, right?
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Old January 26, 2009, 12:36 PM   #8
jg0001
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The argument itself would be that the 2nd Amendment provides that I have a right to keep and BEAR arms. It doesn't limit that to inside my house, at a range, or on approved hunting grounds. It seems that everyone just takes it as a matter of course that the states can throw out limitations and it's no big deal. Were any other bill of rights freedom being reduced by a state law, it would be challenged.

Granted, my argument would be little more than any and all laws further restricting my right to carry are a violation of the Constitution. How has this not been challenged already? Where are the states given the right to create laws that supercede the Constitution?
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Old January 26, 2009, 12:54 PM   #9
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I think we can safely assume incorporation. While not the case yet I can't see any argument against incorporation in light of precedent on the issue.

While "bear" does mean "to carry" I think state governments are going to be given wide lattitude to determine the limits of when, where, and how you may carry. Do you have a right to carry a loaded firearm or one that is uinloaded and cased with the ammunition separate?

Now I do believe the 2A does give you the right to carry a firearm subject to limitation based upon place. But I am not the one making the final decision.
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Old January 26, 2009, 01:00 PM   #10
maestro pistolero
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Quote:
Do you have a right to carry a loaded firearm or one that is uinloaded and cased with the ammunition separate?
That would seem to be an even greater impediment to 'immediate use for self defense' than D.C's trigger lock requirement.
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Old January 26, 2009, 01:50 PM   #11
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I think there is going to be a different standard for possession and use in the home and possession and use outside of the home.
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Old January 26, 2009, 02:13 PM   #12
jg0001
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I think there is going to be a different standard for possession and use in the home and possession and use outside of the home.
I don't recall the 2nd Amendment differentiating the two. If we as gun-owners don't hold the line somewhere, we'll soon enough find everything we do to be outlawed into a small pocket of freedom that exists only in our homes and under government outlined conditions.
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Old January 26, 2009, 02:33 PM   #13
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You are preaching to the choir. You are talking about the way you want it to be or think it should be. I am talking about the way I think it will shake out.
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Old January 26, 2009, 02:40 PM   #14
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Remembering, that incorporation is not settled, there are precedents (in State Law and, State Case Law) that can be used for the "bear" portion, outside the home.

Alaska, Arizona, Idaho, Montana, Vermont, and Wyoming have long held that citizen carry is a fundamental right.

There are other SCOTUS decisions that when used along with the incorporation argument and the decision in Heller would tend to preclude absolute regulation and licensing of firearms carry by citizens for lawful purposes.

This would all have to be argued before your State courts, up to and likely including your State Supreme Court (or whatever its called), before you get to the Circuit Court.

Plus, you have to achieve "standing" to challenge these laws, right from the beginning. Since NJ precludes any open carry, you would have to apply for and be denied a concealed carry permit. That should get you standing, not only to carry concealed, but to carry openly (that right being fully restricted).

Aside: If the 9th Circuit, incorporates, via Nordyke, then the current CA. open carry laws are open to challenge under the same reasoning that the DC law for trigger locks or disassembled storage laws were struck down. Oh, and a NJ case becomes better equipped, because of 9th Circuit interpretation.

Each little step has to build upon the others.

Myself, I would wait to see what the 9th does with Nordyke (which decision should be out in a few more weeks).
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Old January 26, 2009, 03:09 PM   #15
maestro pistolero
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I think there is going to be a different standard for possession and use in the home and possession and use outside of the home.
And there is certainly is a different standard even now, even in the 39 or so 'shall-issue' states. The CCW or CHL is almost never required in the home or on private property. If a state either allows open carry or adopts to a shall-issue policy for concealed carry, they would likely meet the requirements of the 2A. If not, we sic a pack of Guras on 'em!

Open carry may be a great tool to force concealed carry reform in some of the recalcitrant states, California, for example. If there's one thing a liberal hates more than an armed citizen, it's actually having to see the damn thing!

Last edited by maestro pistolero; January 26, 2009 at 03:23 PM.
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Old January 26, 2009, 03:21 PM   #16
maestro pistolero
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Myself, I would wait to see what the 9th does with Nordyke (which decision should be out in a few more weeks).
Al, is there any chance that Nordyke could lose, but the court could still incorporate?
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Old January 26, 2009, 03:23 PM   #17
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"New Jersey (NJ) is a can issue state. For the most part, they do not issue."

When do they issue, under what circumstances, what are the requirements for the permit to be issued? If you comply with all the requirements, they have to issue. Get the law. Better yet, get a lawyer. Restrictions within the law have to be reasonable not to infringe on the right, they can't be arbitrary and/or the right can't be completely restricted AAMOF.

Get a LAWYER and pay the piper.
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Old January 26, 2009, 10:40 PM   #18
Al Norris
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Originally Posted by maestro pistolero
Al, is there any chance that Nordyke could lose, but the court could still incorporate?
Oh, absolutely. Should the 9th rule for incorporation, they will probably send the case back to district court for further remediation consistent with the Circuits decision. There, they can most certainly lose.

Wash, rinse and repeat.

Maromero, NJ is a may issue state. That's an euphemism for "even if you do everything correctly" they can still refuse to issue. Having an attorney won't get you a CCW, if they don't want you to have it.
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Old January 26, 2009, 11:28 PM   #19
rem870hunter
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open carry allowed? nope not without a permit.

other than police officers and game wardens. i've only seen armored car men and women open carrying. obviously the armored car persons can do it becase of the job,while on the clock. when they are done they probably have to put the firearm away.

we can only have a firearm in our immediate possession when hunting,at the shooting range and in our homes/on our land. once we set foot off our land we're breaking the law,if in immediate possession of an uncased and loaded firearm :barf:. without a permit.
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Old January 27, 2009, 03:32 AM   #20
maestro pistolero
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Oh, absolutely. Should the 9th rule for incorporation, they will probably send the case back to district court for further remediation consistent with the Circuits decision. There, they can most certainly lose.
And we would still have incorporation? I'm less concerned about Nordyke's case than it's implications to incorporation. It sounds like you're saying incorporation could stand though it came out of a case that was ultimately lost. They don't get their gun show, but we get incorporation? I'm sorry if I misunderstood your answer.

Last edited by maestro pistolero; January 27, 2009 at 03:39 AM.
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Old January 27, 2009, 11:10 AM   #21
Al Norris
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Yes, that is one possible outcome.

Remembering that this would only be for the geographic area served by the 9th circuit, such a decision can be cited in other cases as non-binding precedent... Such as the proposed case by jg0001.
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Old January 27, 2009, 02:33 PM   #22
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I am not a lawyer but I live in NJ, IIRC CCLs are issued only by Superior Court judges, since they are appointed, they are not subject to much in the way of pressure as opposed to states where the CCLs are issued by police chiefs or sheriffs who may have to run for reelection.
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Old January 30, 2009, 05:26 PM   #23
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NJ law does not differentiate between concealed and open carry of firearms. Any carry of a firearm without a NJ permit to carry is illegal. Carry permits are only granted to retired LEO's, those working private security, and those who can demonstrate a "justifiable need."

Applications are made through the police department, where the police chief must approve the application. Then it gets submitted to a superior court judge, who grants the permit. Permits then, are court orders, and are good for either 6 months (for retired LEO's) or 2 years (for civilians and armed security).

Judges may, and often do, impose restrictions on the permits, such as "work restricted" (for those working armed security).

If you are serious about this, I would suggest contacting Evan Nappen, who is an attorney specializing in firearms law in NJ. You can read about him here:

http://www.evannappen.com/
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