Contrary to Fed 5th Circuit, NJ Appeals Court Blocks Gun Permit Application

Two courts, one the 5th Circuit, the other the Appellate Division of the Superior Court of New Jersey pose a shocking contrast in approaches to who may lawfully carry a gun.

Finding a path through the hedgerow erected by the United States Supreme Court in New York Rifle and Pistol Ass'n v. Bruen, a New Jersey appellate panel has backed a local Police Chief who rejected a gun purchase permit applicant who did not show that he would not be a threat to public order if  allowed to carry a gun. 

The decision stands in marked contrast to U.S.A. v. Zackey Rahimi. There the United States Solicitor General has filed a petition for certification of a Fifth Circuit decision which answers YES to  the question the SG presents to the high court:

Whether 18 U.S.C. 922(g)(8) possession of firearms , which prohibits the persons subject to domestic violence restraining orders, violates the Second Amendment on its face? 

Rahimi was both subject to a domestic violence order - which he violated, and had engaged in several shootings. In one he retaliated against a man who had bought drugs from Rahimi - but "started talking trash " about him on social media.  Rahimi retaliated by firing   an AR-15 rifle into the man's home.  

The Fifth Circuit ruled that Bruen's command limiting firearms restrictions to those who were not "law abiding"was limited to felons, the mentally ill and "other groups that have been historically stripped of their Second Amendment rights."  Perpetrators of domestic violence were not such a historically recognized categorical group, the Circuit decided.

In the matter of Application of M.U.  New Jersey Appellate Division Judge Richard Geiger defended and applied the statute recently adopted by the state's Legislature to preserve its ability to control the spread of firearms.

In Bruen the Opinion of the Court, authored by Clarence Thomas, declared that judges are not to weigh states' public health or other such concerns against the personal 2d Amendment right to carry a gun:

The Second Amendment “is the very product of an interest balancing by the people” and it “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms” for self-defense. Heller v. D.C.  It is this balance—struck by the traditions of the American people—that demands our unqualified deference.

As amended in 2022 – post Bruen - N.J.S.A. 2C:58-3[c](5) denies a Firearms Purchaser Identification Card

 

(5) To any person where the issuance would not be in the interest of the public health, safety or welfare because the person is found to be lacking the essential character orf temperament necessary to be entrusted with a firearm.

M.U. had no record of criminal convictions but there was a history of dismissed charges and disturbing behaviour.  Four police officers testified that he had a history of vandalizing property – mailboxes, lights, and fences - and of criminal mischief. He once retaliated against a customer for a failure to pay a $300 bill by using a chainsaw to cut down a tree on the victim’s front lawn.  And  he was once arrested for the 2015 theft of a trailer- which he placed for sale on Craigslist.

The Appellate Division found the Oakland Police Chief reasonably found that M.A. was "lacking the essential character or temperament necessary to be entrusted with a firearm" which New Jersey lawfully demands.

- GWC

April 1, 2023