A New Jersey permit denial raises serious First Amendment concerns. Post-Bruen applicants still deal with subjective standards. The Second Amendment Foundation has filed an amicus in a peculiar denial case.
A New Jersey man who has been twice denied a New Jersey firearm purchaser identification card reapplied a third time. The applicant was denied each time under an illegal subjective standard. The case, In the Matter of the Gun Permit Appeal of A.A.R, was decided in the New Jersey Superior Court in the Appellate Division. A.A.R. has appealed the decision that upheld his denial to the New Jersey Supreme Court. The Second Amendment Foundation has filed an amicus brief in support of A.A.R.’s appeal.
The Law in New Jersey
In order to purchase or possess a long gun in New Jersey, one must have a firearm purchaser identification card. There are some narrow exemptions to that law. One of the disqualifiers in New Jersey law is a subjective one that persists even in the post-Bruen landscape.
An issuing authority may deny the issuance of an FPIC, pistol purchaser’s permit, or permit to carry if they believe 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 of temperament necessary to be entrusted with a firearm.”
Interpretation of the Law
The court’s opinion noted that they “upheld the constitutionality of N.J.S.A. 2C:58-3(c)(5) in M.U.” The case that the court references, M.U., has been sitting on appeal from the appellate at the New Jersey Supreme Court for over three years.
The particulars of M.U. are relevant, as M.U. like A.A.R., had no statutorily defined disqualifiers. However, the issuing authority found him disqualified as a matter of opinion. M.U.’s case is even murkier as it includes an expunged record that the issuing authority essentially ignored.
The court quoted their own case law — ignoring the fact that M.U. has been languishing at New Jersey’s highest court without relief — saying that they found “the historical record showed ‘legislatures traditionally imposed status-based restrictions’ that were ‘not limited to individuals who demonstrated a propensity for violence’ but ‘also applied to entire categories of people due to the perceived threat they posed to an orderly society.’”
Denial Criteria
According to the opinion, some of A.A.R.’s denial criteria were matters of when he was a minor. There were alleged mental health issues. “Potentially almost causing a fire” in his home being one. And having received some level of care for the alleged mental health issues another.
“Freehold Township (Freehold) had denied petitioner’s two previous FPIC applications—one of which was affirmed on appeal to the Law Division; and petitioner’s 3A-3192-24 medical history, including a mental health evaluation; involvement in a domestic dispute; and ‘violent tendencies,’” was noted in the court’s opinion.
Other actions A.A.R. is alleged to have participated in, as an adult, include making remarks online that support white supremacy, misogyny, violence, rape fantaices, use of racial slurs, and more. All allegations. None of which, from all accounts, were criminal.
“Petitioner’s testimony confirmed his 2017 confrontation with his parents, he had authored the Reddit posts, and he had publicly uttered racial slurs and had made statements about raping women,” the opinion said.
Ugly People Aren’t Disqualified
Looking at the opinion, A.A.R. can be accused of being a disgusting and uncouth person. However, there’s nothing illegal about being an “a-hole.” Basically he’s a troll on the internet and was a rebellious/disrespectful kid to his parents. Is there more to the story? Probably. But so far, nothing criminal.
As for any of the mental health allegations, A.A.R. has allegedly received a clean bill of health. According to a letter from a mental health professional he submitted as evidence, a clinical said that he’s “not currently a danger to himself and/or others.” There’s no mention of him being involuntarily committed.
A.A.R. Going at it Alone
A.A.R. has been handling his case pro se. This amicus from the Second Amendment Foundation is likely to help his standing. It’s also likely to help not create more bad law in the Garden State. The 24-page amicus starts off observing some very important and inconvenient facts. They’re inconvenient because just because issuing authorities — or even the public at large — don’t agree with or like them, that does not make them less true.
“The Petitioner in this case has undoubtedly said some reprehensible things,” the brief says. “His racist and sexist views are despicable, and if that speech leads him into social ostracism, perhaps it would be deserved. But from a constitutional perspective, what is more disturbing than anything the Petitioner has said is what the courts below have ruled, which is that speech that is protected by the First Amendment can be grounds to deny someone their constitutional right to keep and bear arms. That must not be allowed to stand.”
It’s A.A.R.’s First Amendment right to be “despicable” as well as suffer “social ostracism” from his actions. But, none of that is criminal.
Subjective Permitting Standard in New Jersey
“Bruen is clear: licensing officials may apply narrow, objective, and definite criteria,” SAF Director of Legal Research and Education Kostas Moros said in a statement. “They may not sit in judgment of an applicant’s ‘character’ or ‘temperament.’ If ten other states, including several with some of the strictest gun laws in the country, issued this applicant carry permits, New Jersey’s outlier denial is powerful evidence of the very subjectivity the Supreme Court forbade. Protected speech, even if it is deeply offensive, cannot be converted into a reason to deny a Second Amendment right.”
It’s important to point out that it’s N.J.S.A. 2C:58-3(c)(5) that has also been used to disproportionately deny Black applicants permits to carry. Preliminary findings saw Black applicants being denied more than double their white counterparts. Further analysis found them to be denied 10 times more — 50 times more in Ocean County. The latest look at the post-Bruen to 2026 numbers found that the rate has leveled off and Black people are denied eight times more than white people.
This “interest of the public health, safety or welfare” standard is responsible for the majority of New Jersey permit-to-carry denials. It’s ensnared more, otherwise law abiding, would-be gun owners than any other disqualifier.
SAF’s Take
“Respecting freedom of speech inherently prohibits retaliation against speech the government disagrees with, even when that speech is socially or politically objectionable,” the Second Amendment Foundation’s release says. “The relevant constitutional question is whether New Jersey may use protected speech to deny the FPIC necessary to exercise one’s Second Amendment rights, on the statutory grounds that doing so is in the interest of public safety. The First and Second Amendment protect against such subjective gatekeeping of fundamental rights.”
What we can glean from both the opinion of the lower court and Second Amendment Foundation’s amicus brief is twofold. Just because the court continues to ignore precedent set in Bruen does not mean it’s right — or good law, because it’s not. And two, just because A.A.R. is a despicable human worthy of having no friends, that does not mean he should have his Second Amendment rights subverted.
About John Petrolino
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, facebook at @thepenpatriot and on instagram @jpetrolinoiii.
from https://ift.tt/tMiS5aw
via IFTTT
No comments:
Post a Comment