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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.

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In welcome news this morning, the Supreme Court agreed to hear arguments in the potentially far-reaching Second Amendment case of “McDonald vs. City of Chicago.” At issue is whether last year’s historic Heller vs. District of Columbia decision affirming the individual right to bear arms also applies to state law, a doctrine known as “incorporation.” The Court said it will hear the case this coming January or February.

But the case also presents opportunities to expand all civil liberties, not just Second Amendment rights. As Doug Kendall of the progressive think tank, the Constitutional Accountability Center, noted in their recent brief supporting McDonald:

“McDonald v. City of Chicago is about more than guns: it is about whether the Court will restore the precise constitutional text that requires states to honor the fundamental rights of all Americans.”

Background:

In the 2008 Heller decision, the Supreme Court unequivocally affirmed the civil right of citizens to keep loaded handguns “at the ready” in their homes. However, the ruling specifically said that their decision applied only to federal, not state law.

Writing for the majority in favor of Second Amendment rights, Justice Scalia said:

“It held that the Second Amendment protects an individual right to possess firearms and that the city’s [Washington, D.C.] total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.”

The McDonald case has the potential to solidify the Heller ruling and, hopefully, strike down once and for all restrictive state or city ordinances that amount to total handgun bans, as well as laws that insist that handguns must be stored in a “nonfunctional” state, e.g. in a safe or with trigger locks in place. (Note: If you have kids around the house, use common sense about the relative risks of home invasion vs. curious young hands.)

All five of the justices who supported last year’s Heller decision are still serving, with the addition of Justice Sonya Sotomayor (recently appointed by President Obama) whom we expect to join with the majority in applying the Second Amendment rights and protections to the states.

Arbitrary and Capricious

Chicago’s handgun ban was instituted in early 80s during the anti-gun sentiment following the attempted assassination of Ronald Reagan. Local feelings about the law are mixed, but there is no evidence that the law’s intent of lowering violent crime has worked in any way. Chicago residents face up to a year in jail as well as fines for mere possession of a handgun.

However, like most gun prohibitions, the law has not been uniformly or equitably enforced, as was shown in 1994 when Illinois state senator Rickey Hendon, representing west Chicago, reported a handgun stolen from a burglary but was not prosecuted for owning it. This is clear evidence that enforcement of the ban is both “arbitrary and capricious” (see below). We suspect lawyers arguing the case will find more instances of inequity without having to look very hard.

Earlier this year, gun rights activists became especially concerned after another far-reaching gun control bill, The Blair Holt Bill, was introduced to a chilly reception in Congress by Chicago Congressman, Bobby Rush. Rush’s bill included conditions for gun ownership, such as a requirement that guns be disassembled while not in use, that would be unconstitutional if the Heller decision is applied to the states.

Modest Change

If the Supreme Court determines that citizens of all states have the same inalienable rights to self-defense and firearms ownership, it will not result in a complete overhaul of all state restrictions. In the Heller ruling, the Supreme Court listed a number of permissible restrictions which it seemed to leave up to local jurisdictions to decide for themselves.

Quoting from the Heller decision, these restrictions include the following:

• “prohibitions on the possession of firearms by felons and the mentally ill”
• “laws imposing conditions and qualifications on the commercial sale of arms.”
• “concealed weapons prohibitions”
• “the historical tradition of prohibiting the carrying of dangerous and unusual weapons”

The Heller decision also upholds governments’ right to require registration or licensing:

“Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.”

 While the court does not require any of these listed restrictions, in the tradition of federalism it leaves the door open to local sentiment and control within specified bounds as long as they are well short of de jure or de facto bans. This is in line with the emerging policy of the Obama administration, which favors federalism and local control in matters of firearms policy. AHSA believes this approach is in the best tradition of our federal system; but we would also argue that state-level pre-emption laws that apply a single legal standard throughout a state are better than a patchwork of confusing and draconian local laws that make criminals out of law-abiding citizens who innocently cross unmarked or unposted boundaries.

Our bet is that the Supreme Court will rule on the side of gun owners and of the original intent of the founders of our republic by incorporating the Second Amendment to apply to all jurisdictions. If you have an FFL in the Chicago area, you can expect some new customers come this spring.

“Be the change you want to see in the world.” - Mahatma Gandhi

So what have you done for gun rights lately?

Chances are you’ll answer that you sent money, wrote a letter to your local paper or contacted your Congressional representative. If you’re especially energetic, maybe you staffed your political party’s booth at the state fair or handed out voter registration forms at your local gun show.

I hope you did some or all of these things, because grass-roots political activism is an essential component in the preservation of democracy and civil rights. But the best thing you can do to protect gun rights is even simpler: take a novice shooting. Actually getting more people to own guns and to participate in appropriate firearms-related activities will do more for us in the long run because grass-roots political activism will always take a back seat to grass-roots cultural activism.

The best action a gun rights activist can take is to introduce new shooters to guns and gun culture.

Let me explain. The first time you visited a gun range, it’s unlikely that you gently lowered the smoking weapon, wiped a tear and then remarked to yourself, “Today I am no longer a subject; I am a citizen. I have taken up the essential tools that define my humanity—the tools for hunting and self-defense—these tools, which are my birthright and which forever separate the shepherd from the sheep and the prisoner from the free.” (Cue sunset and Dvorak’s ninth symphony . . . ) If that was your reaction, you are probably in Congress by now. Congratulations. More likely your reaction was something akin to “wow,” “cool,” or “Hey, that hurt!”

I don’t mean to make light of lofty sentiments—I share and strongly believe them. The recent murders of peaceful street protesters in Iran by that country’s government and its state-sanctioned paramilitaries proved that the old adage about never bringing a knife to a gunfight applies to revolutions as well as to home owners. So yes, the Second Amendment is the cornerstone of our democracy. But the attitudes that make the Second Amendment meaningful are cultural and social, not merely political. Culturally people must want to own guns or the right to do so is meaningless, and ultimately endangered.

The Second Amendment (and yes, democracy) will remain safe only as long as gun owners constitute a strong percentage of Americans. People who actually own and use guns are the best ones to understand policy discussions about them. And there is strength in numbers. The assault weapons ban would never have seen the light of day if the general public understood the distinctions between semi- and fully-automatic weapons. Shooters do. Non-shooters might grasp the explanation, but have no visceral understanding of it to inform their opinions. Politicians who own guns are the ones who’ve learned firsthand what is involved in safe storage, legal transportation, licensing (where required) and effective usage of their firearms. And they are the ones least likely to pass new restrictions against their own property and civil rights.

It is always the duty of citizens in a democracy to educate their peers and the next generation. As a gun owners, this means first sharing your cultural knowledge as a bridge to sharing your political knowledge: Take someone shooting. Talk to your anti-gun co-worker or neighbor and offer to pay their range fee if they come with you. Join a youth mentoring program and take a child to a hunter-safety course. Be patient; be polite; be sane. Don’t rave about black helicopters; denounce the fringe that does. The image of the gun owner as a positive force in society is in your hands—take care of it, share it, and most of all, grow it.

This past weekend I had my own chance to “walk the walk.” Over the years I’ve introduced quite a number of people to shooting, and many of them have decided to become gun owners. On Saturday, my friend Donny Adair of the African American Hunting Association and I put together a “new shooters day” at our local skeet range. The turn-out was pretty good—thirteen in all, including three children and seven or eight participants who had never fired a gun before in their lives. The club range master was on hand to explain safety and the functioning of various shotguns. We didn’t talk politics; we just tried to bust clays. Turns out about half of the new shooters came away “hooked.” A couple talked about joining the club, getting a shotgun (the gateway drug to gun ownership), taking lessons, bringing friends, and in short, taking their first steps toward understanding the history, culture and responsibilities of gun culture. Even if these folks ultimately don’t make it back to the range they gained valuable experience and saw firsthand that the guns didn’t fire until they were picked up, loaded, aimed and the triggers pulled (unless they left the safety on.) Not a bad perspective to learn.

As a Second Amendment activist, I’ll take a new shooter over a letter to my Congressman any day.

I went shooting yesterday with my buddy Brian. The gun club is free for members, so shooting didn’t require a second mortgage; it just felt that way. We had a store of .45 and .22 rounds, but had to pick up two boxes of 9 mm and another of .38s for my SP-101. The 150 rounds ran us 65 bucks. The box of 50 .38 rounds was $23.75. For wadcutters! And this was from a FFL who sells out of his garage with no overhead.

At least we could find ammo to buy, which apparently puts us in a minority. The same extreme ammo shortages are being experienced by customers, dealers and stores nationwide. The only shooting accessory not rising through the economic roof is Hoppe’s 9, since there’s no need to clean a gun you can’t shoot.

“I bought a case of .223 last week,” our supplier told us. “I asked for six but [the dealer] said it was restricted. He’d only sell me one.”

What is going on? Are shooters heading headlong into the world of Mad Max 2 - the Road Warrior, where empty guns are abandoned for crossbows and bullets, yes bullets, are handed down as precious family heirlooms?

No, I think not. Bullet scarcity and price inflation is fueled by the same crowd impulse that sparks runs on banks or makes Dot.com start ups and tulip bulbs seems like must-have investments: panic. Panic of losing out or panic of just plain losing. In this case, hysteria was spawned by the panic of losing an election.

The current “run on the blanks” began when the right-wing political establishment went “all in” last November in their attempt to stop the election of Barack Obama. The level of fear-mongering was impressive even for gun politics, a serious issue too often subject to ill-considered attacks. And just look at the response: The Treasury Department reports that in the fourth quarter of 2008, i.e. the quarter immediately following the election, Firearms and Ammunition Excise Tax collections were $98,158,645 compared to $74,783,993 for the same quarter in 2007—an increase of roughly 30%. As proud Democrats might point out—President Obama was helping to stimulate the economy before he even took office! Unfortunately, the effects of current ammo shortages are not so sanguinary.

But other than ammo shortages, all the attacks achieved was to marginalize the right’s traditional proponents of gun rights. The right-wing sound machine now has about as much influence on the Obama administration as a howling coyote envying your campfire has of getting warm. They threw everything they had at the president and got decimated at the polls. As a result, the president and the Democratic-controlled Congress have a free hand to do what they want without right-wing alliances. So do the Democrat’s actions justify the continued hoarding of ammo for a coming ATF Armageddon? The president’s record to date would indicate not:

The Blair Holt Bill, an ill-considered and blatantly unconstitutional gun ban and registration bill died in Congress for lack of enthusiasm. Congress passed bills allowing freedom to transport firearms on Amtrak and to give primacy to state concealed carry laws in national parks, monuments and wildlife refuges. Both bills passed with large, bipartisan majorities and were signed without hesitation by the president. After early missteps by the Attorney General, who repeated in good faith poorly vetted data from the Mexican government which grossly exaggerated the role of straw buyers and gun shows in the U.S. in arming Mexican drug cartels, bipartisan Congressional coalitions and the administration itself moved quickly to assure Americans their Second Amendment Rights would not be abridged by international agreements or treaties, including CIFTA.

Knee-jerk attacks against Supreme Court nominee Sonia Sotomayor as an “extreme gun grabber” proved equally unfounded when a three-judge panel of Republican-appointed judges in the 7th Circuit Court of Appeals reached the same conclusion she had regarding the Second Amendment and the “incorporation doctrine.” (The 7th Circuit decision is currently under appeal, and we at AHSA are hopeful the Supreme Court will extend 2nd Amendment guarantees to protect civil rights from intrusive state law as it did for federal law in the D.C. v. Heller decision. So far it is only the 9th Circuit Court of Appeals—typically viewed as the most liberal—which has ruled that the Heller decision extends to state law.) So far it is Democrat Russ Feingold, the liberal's liberal, who has promised to raise the issue of 2nd Amendment protections during confirmation hearings.

Most importantly, the Obama administration has shown a willingness to engage gun rights organizations, including AHSA, to examine data and move forward with fact-based policy decisions that include the views of the 37 million gun owners who voted for Obama last November as well as the concerned gun owners who didn’t. AHSA believes this engagement is a positive attribute of the administration’s emerging style, which shows the advantages of valuing consensus over conflict.

While the legislative agenda of this and future Congresses will always bear watching, current paranoia over any zealous anti-gun agenda remains exactly that--paranoia.

While it is always good advice to keep your powder dry, there remains no rational basis for hoarding a lifetime’s supply.