Opinion
New Jersey – -(AmmoLand.com)- Jay Factor is a small businessman and resident of New Jersey.
The life-long inhabitant of the Garden State is also at the center of a new challenge to the “justifiable need” standard which is a requirement when trying to apply for a permit to carry in the State. This is not Factor’s first rodeo, by a long shot.
In fact, Factor’s first application for a permit to carry was on October 10, 2006. A lot has happened in over the decade and a half since his first denial, including the Heller decision, the McDonald decision, the orders and remand of Caetano, and also being part of the brain trust behind the Cheeseman case, which was denied cert by the Supreme Court of the United States.
One of the things that first attracted me to Factor is that he’s a fantastic study on the history of firearm laws in New Jersey. There are several podcast interviews that he’s done where he talks about some of the inception of the Garden State’s first gun control measures. He ought to have a documentary made of him talking about the history of oppression in NJ!
What makes Factor’s arguments unique is that he put the time in to get all the little details of the laws. Where and why they came about. I remember talking to him once, telling him he needs to write a book on the subject, and he had told me there are about a hundred pages of reading involved in being able to get one page of material that’s worth discussing in our context.
I had the pleasure to meet Jay Factor at a rally in Trenton on March 26, 2019.
Cheeseman, Factor, and I were musing while standing in the forum of the Legislative Annex in the thick of the viper pit. We noted that by that time the following year we’d all be holding up freshly issued carry permits. That did not come to fruition. The only thing about that narrative that I believe to be false is just the timeline. One day I do think we’ll be waving our cards in New Jersey under the hubris noses of the legislators that look down upon us peasants as if we’re subhuman.
Factor’s latest round started on September 16, 2020, when he applied for another carry permit.
Besides that, the entirety of New Jersey’s permitting system is a giant racketeering scheme of RICO proportions, the “roadblock” to New Jersey citizens qualifying for their permit to carry is the “justifiable need” provision in the law. But that law wasn’t always the law, which is something that Factor points out in both his argument during his permit hearing, as well as in his filing documents.
At a minimum, Factor’s civil rights have been infringed upon just based on the timeline of his latest crack at trying to get a permit to carry. He filed in September of 2020 and got his denial from the Chief of Police of his jurisdiction on October 29, 2020. From there, after extensive back and forth, up to and including every COVID-19 excuse the county had in the book, he finally had his permit denial hearing on July 7, 2021.
During that hearing, Factor laid out his arguments which were also repeated in his filing, spoiler alert, the judge denied the issuance of his permit in an “envelope” opinion which was issued on July 21, 2021. Going from the hearing to receiving the opinion from the judge had to have been the most expeditious part of the process Factor had suffered. Everything else has been ripe with infringement in the way of slow-rolling and putting up red tape at every turn. Speculation is that the State does not want all this information out in the open, what Factor found.
Factor filed and served his brief in the matter of Docket Number A-003678-20 to the Superior Court of New Jersey, Appellate Division.
From the statement of facts filed in Factor’s brief:
1. Argument: Factor was under no constitutional obligation to provide Chief McGovern, the County Judge, or Prosecutor Brennan with specific threats, previous attacks, or a “special purpose” with his application.
2. Argument: New Jersey’s core substantive standard of Siccardi for determining when a permit to carry should be issued to a private citizen has failed THE CAETANO CONJUNCTIVE TEST.
3. Argument: Judge O’Malley failed to examine the new evidence submitted by Factor that THE SICCARDI RULE and thus 2C:58-4c ¶ 3 violated the Administrative Procedures Act.
4. Judge O’Malley failed to take into account new Evidence which proves the Siccardi Police Chiefs, and the State Police Investigation Unit, did not have valid rules in force in late 1969 & 1970 and the Siccardi Rule was therefore nullity making N.J.S.A. 2C:58-4c ¶ 3 void.
5. The Prosecutor should not have been allowed at the Zoom Hearing and all of his “objections to (this) particular applicant” should be thrown out.
6. Conclusion: The Siccardi Rule N.J.S.A 2C:58-4c ¶3 was never “presumptively lawful” as per Heller’s Note 26 at 2817.
Some of the more interesting points, in this case, surround what Mr. Factor learned in over the decade and a half he spent engrossed in the subject. The once scorned Factor from 2006 was coming to this new battle armed with dust-covered citations. Had Factor been issued his permit in ‘06 there’s a lot we would not know about the history of these laws. Somewhat humorously, Factor even offered a preamble to the judge presiding over his carry hearing when he delivered arguments concerning the subsequent statement of facts 3 & 4 of his brief.
I don’t want to be disparaging when I say you guys or Government, but when I say the State, is not accurate. You seem to be much younger than myself and the prosecutor. This all took place when we were either very little or before we were born. So I’m just going to tell you how this broke down and I’m just going to tell you that this is not legislative intent and it has never been legislative intent.
What was Factor alluding to? The “justifiable need” provision of the law. In his research, Factor uncovered a very important detail about how “justifiable need” entered into the administrative code in New Jersey. This was not something that was voted on through the legislature, but from an opinion in a challenge to a carry permit denial in 1971.
From his hearing on the permit application:
So the standards are there in 1966 when A-165 becomes the gun control law. In 1968 we get the Administrative Procedures Act. So if we’re in Siccardi in 1971, if the standards become more strict, those standards had to show up somewhere. They’re not in the New Jersey register and they’re not in the New Jersey administrative code, which means they’re not — there’s nothing lawful because they violated the Administrative Procedures Act.
I gave John Chancellari evidence of the New Jersey register 1969, the — the page name is 1 N.J.R. 30. And if you look at 1 N.J.R. 30, there is no urgent necessity. There is no specific threat. There is no previous attack. There is no special danger to the app — to the applicant’s life.
Fast forward back to Siccardi. The special need came from a law review, the final report national commission on the causes and prevention of violence. That didn’t come from the legislature. It says it — (audio interference) Pries (indiscernible) at page 55 citing — citing Siccardi at 552. The previous attacks — previous attacks comes from the assignment judges in Siccardi.
Somehow this goes on as case law for decades, an unwritten rule among prosecutors and judges, until it’s entered into the register going against the Administrative Procedures Act. A further explanation is offered in Factor’s brief.
The post-Wheeler evidence proves that THE SICCARDI RULE never entered the Register, or the Code until 1991. And not an Administrative Rule by the Superintendent of the State Police but as New Jersey Supreme Court precedent:
N.J.A.C 13:54-2.3 reiterates the statutory criteria which must be satisfied in order to obtain the issuance of a permit to carry a handgun. This and other amendments in subchapter 2 reflect the standards enunciated by the Supreme Court decision in In re Preis, 118 N.J. 564 (1990). 1 [23 N.J.R. 2251. Pa. 30.; (Cover page) 23 N.J.R. 2205. Pa 2 31.; .64 Tr. 6-7.; See In the Matter of Factor, GP No. 16-3 2020. Pg. 2. No.10(e). Pa. 32.]
This fact was brought up in the Cheeseman case and it’s everyone’s speculation that’s why the legislature moved to have the “justifiable need” definition entered into the New Jersey statute. Assembly Bill 2758 was signed into law in 2018 adding the following language to the statute:
Each application form shall be accompanied by a written certification of justifiable need to carry a handgun, which shall be under oath and, in the case of a private citizen, shall specify in detail the 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. Where possible, the applicant shall corroborate the existence of any specific threats or previous attacks by reference to reports of the incidents to the appropriate law enforcement agencies.
The irony of this of course, beyond that the state has been operating basically illegally on the matter of permits to carry since the ’90s, in reality, the ’70s, is that the legislature (and Governor Phil Murphy) had codified this crime in a post-Heller world.
The lawmakers and governor knowingly passed and signed into law a provision that goes against the Heller opinion in several ways. Instead of folding their hand, admitting defeat, and trying to reorganize the law to something a little more permissive, something that’ll hold some constitutional muster, the hubris lot of elitists doubled down.
The fact that “justifiable need” goes against Heller is noted in Factor’s arguments at his hearing as well as in his brief.
And then — and then Heller — Girda [Gura] said, however, if the licensing requirement is, we only want to give license to people who look a certain way or it depends on how we feel or if the licensing office is only open on Thursdays at 3 o’clock in the morning, that’s what the Siccardi Rule is. It depends on how we feel. We’re going to decide this thing on a case-by-case basis, that’s my case.
Heller has taken the ability of Chief McGovern to decide my permit on a case-by-case basis away from him. There’s a standard. Either I’m qualified to exercise my Second Amendment rights or I’m not. And Heller has taken that away from you. You are to determine whether I’m qualified to exercise my Second Amendment rights or not. You have — you have other standards that you can go on. Did I qualify in the shooting test?
The enumerated items we — we discussed. Did I pass all that? Do I have the firearms ID card? Did I pass a background check? Was I fingerprinted? All that stuff. But the case-by-case determinations are off the table.
That’s my case, Judge. I know no ones ever given you a case like that before, but I’m not the guy who’s going to stand here on front of you and grovel and say I’ve been attacked or I have a special threat. It’s just not going to happen. I’m going to rest on that and I appreciate your time.
The standards were discussed during the hearing and Chief McGovern could not give a specific guideline on what exactly fulfilled the requirements to reach the burden of “justifiable need”. He conceded there was no guidebook to tell the chiefs how to weigh the interests of the applicants. We can be certain the guideline is “Just don’t issue them (Unless they’re connected to one of us, then by all means. Or if they have lots of money.).”
One of the other things that Jay Factor brought up in his filing and arguments is the Caetano Conjunctive Test.
The State’s case is that it’s dangerous for me to have a 2C:58-4 permit and that they need to weigh that danger based on my previous attacks. They need to weigh that danger based on my specific threat or the special danger to my life. But the Court in Catano (phonetic) [Caetano]– and you familiar with Catano [Caetano]?
[…]
It was in my brief. Are you familiar with that case, the Taver (phonetic) [taser] case in Massachusetts?
[…]
[I] tried to point out previously, what Miller said is, if it can contribute to the common defense, the weapon is protected by the Second Amendment. And so by pointing out that it’s a common handgun, I’m pointing out that it contributes to the common defense, that’s under Miller.
So this is — this is my case. Yes, Glock 9-millimeter is very dangerous. We’re all aware of that, but I’m not disqualified from my Second Amendment right and that is the crux of Heller. When Heller says, the very enumeration of the right takes out of the hand of Government, the next couple sentences on page 2822, the decision that Heller makes is, “assuming Dick Anthony Heller is not disqualified from his Second Amendment rights, the District must issue — must allow him to register his handgun.”
Mr. Factor first established that the exact firearm he qualified with and intends to carry is the same make as those commonly used by the police. During the examination of the Chief, he agreed with that summation. The Glock handguns are dangerous, but they’re not unusual, which is the standard that needs to be met, also playing into “common use” outlined in Heller.
I’ve had the chance to review the argument and transcript from the carry hearing and this is an exciting case to follow. As noted more than once, Factor’s grasp of the history on these concepts makes reading the narrative that more appealing. On the page, the fact that New Jersey does not issue carry permits to the regular peasants, the story to get here reads like a pulp noir. This story is filled with corruption, mystery, and a dash of “we’re better than you” from our government officials.
Where’s this leave Factor now? On January 7th 2022, Factor received a “deficiency letter” nitpicking away at his eloquently written pro se complaint. Last I checked in, Factor filed on January 12th an extension in order to meet the requirements of the court, and by the 25th he “got the motion in and accepted.”
Now, like everything else in the judicial system, we wait.
John Petrolino is a US Merchant Marine Officer, writer, author of Decoding Firearms: An Easy to Read Guide on General Gun Safety & Use and NRA certified pistol, rifle, and shotgun instructor living under and working to change New Jersey’s draconian and unconstitutional gun laws. You can find him on the web at www.johnpetrolino.com on twitter at @johnpetrolino and on instagram @jpetrolinoiii .
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