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TIME TO EXIT FROM NEW JERSEY GUN RIGHTS DISCRIMINATION

If you’re a gun rights activist looking for a scary Halloween costume, consider dressing up as New Jersey Appellate Court Judge Stephen Skillman, who this week upheld a de facto ban on handgun ownership in New Jersey. Skillman’s frightening decision contradicts last year’s Heller decision, current New Jersey law, and even the English language.

The case in question is that of Anthony Dubov, who applied for a permit to own a handgun under New Jersey’s “shall issue” laws but was turned down by his local chief of police without explanation—conduct condoned and upheld by Judge Skillman despite clear legal protections for Dubov’s right to own a handgun under current New Jersey law.

A LITTLE BACKGROUND: SHALL VS. MAY

Unlike the majority of states, New Jersey requires a license for mere ownership of handguns. Last year’s Heller v. D.C. Supreme Court decision established that federal jurisdictions, e.g. District of Columbia, must allow handgun ownership but may require citizens to first obtain permits to own guns as long as these requirements are “not enforced arbitrarily and capriciously.” What that should mean is to solidify the “shall issue” concept as a Constitutional right that federal law cannot infringe. In other words, under the Heller decision, handgun license requirements were upheld but only so long as they are fair and do not amount to total bans.

The Heller decision was applied only to federal law, not state law. However, the Supreme Court is scheduled to hear a case this winter (McDonald v. City of Chicago) which will likely result in local bans on firearms ownership or restrictions no different than bans also being declared unconstitutional.

Of those states that currently require permits for gun ownership, there are two kinds of laws: “shall issue” and “may issue.” Under a “shall issue” law, anyone who applies for a permit must be granted one unless he is disqualified for a legitimate reason, such as a criminal conviction. Under a “may issue” law, it is left up to the local authorities to decide whether or not to grant the permit. It’s fair to say that “may issue” laws (which have historically been used to deny immigrants and minorities the rights of self defense) are by their very nature “arbitrary and capricious,” and therefore unconstitutional under the Heller decision. By the same logic, “shall issue” laws that are actually enforced as if they were “may issue” laws should also be illegal.

To help clarify this, lawyers arguing the McDonald v. City of Chicago case should argue this point; because, as will be seen, just because a “shall issue” law is on the books doesn’t mean local authorities or courts will respect it.

NEW JERSEY AND THE ENGLISH LANGUAGE

New Jersey is, technically, a “shall issue” state when it comes to permits to own a handgun. (Note, this is a requirement merely to own a firearm, not to carry one.) The New Jersey law says this:

“No person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card, except as hereinafter set forth [exceptions for criminal records and related behavior]”

Seems like pretty clear language, right? Apparently not for Judge Stillman. In the case referred to as The Matter of Anthony Dubov, Judge Stillman upheld the decision of East Windsor Chief of Police William Spain to deny Dubov a handgun permit without offering any explanation. Dubov was originally granted the permit by an appeals court which held that Chief Spain violated state law, i.e. the “shall issue” phrase. However, Stillman’s decision reversed that court and held that since Heller does not apply to states, the matter is moot, and the state can deny Dubov a handgun permit.

This decision is especially odd since in his decision Judge Stillman quote the New Jersey statute that allows for people denied handgun permits for no specified reason to challenge the decision in court:

“The Legislature's goal was to keep guns out of the hands of unfit persons. To that end it disqualified certain classes which quickly come to mind. To guard against inadvertent omissions, it delegated authority to appropriately designated officials to disqualify any unfit individuals who, though not strictly within the enumerated classes, should not in the public interest be entrusted with firearms. To guard against arbitrary official action the Legislature directed early determination and provided for easy appeal to the county court . . .Review from the county court is readily available in the Appellate Division and, when necessary, in this Court. As has been pointed out elsewhere, these safeguards are probably of greater significance than further details in the statutory standard.”

Despite showing his ability to copy block text from a statute into a decision, in denying Dubov’s application without asking for any testimony or justification from Chief of Police Spain, Judge Stillman showed little ability or inclination to read the text.

This twisted logic, which ignores clear New Jersey law, regardless of how Heller is intepreted, shows the dangers of leaving Constitutional rights under the protection of local authorities. A national standard to protect gun owners is what is needed, and hopefully such will be included in the McDonald vs. City of Chicago arguments and decision early in 2010.