NJ Court recognizes second amendment!

Sherlock Holmes · May 2, 2007

NJ COURT RECOGNIZES SECOND AMENDMENT,

HOLDS THAT IT TRUMPS GUN FORFEITURE LAW

In a landmark written opinion filed February 27, a New Jersey Superior Court recognized the Second Amendment of the U.S. Constitution and held that a citizen’s Constitutional Right to Keep and Bear Arms cannot be involuntarily waived under a New Jersey firearms forfeiture law.

“The recognition of Second Amendment rights in New Jersey is long overdue,” said ANJRPC Regional Vice President and attorney Evan F. Nappen, who represented appellant Dennis W. Peterson in the Warren County case. In the appeal, the Second Amendment was applied to New Jersey via the Constitutional doctrine of fundamental fairness, overcoming a significant legal hurdle needed for the Federal Bill of Rights to apply to the State.

This decision coincides with the recent Parker v. District of Columbia case, in which the U.S. Court of Appeals for the District of Columbia struck down a decades-old handgun ban in Washington, D.C. on the ground that it violates the Second Amendment.

“The legal significance of the Second Amendment is finally being recognized by American courts,” Nappen continued, “and this New Jersey case is part of a growing trend in American jurisprudence.”

In the New Jersey case, the appellant was denied re-issuance of his Firearms Purchaser ID card based on his consent to relinquish firearms seized in a domestic dispute in 2000. In 2004, New Jersey enacted a law barring Firearms Purchaser ID cards to any person whose firearms have been seized and not returned.

The Honorable John H. Pursel, J.S.C. held that the statute did not apply and the Firearms Purchaser ID card should be issued because the appellant did not know that his prior consent to relinquish his firearms would subject him to permanent loss of his Second Amendment rights under the 2004 law.

The ruling states in key part:

“Fundamental fairness is a doctrine to be sparingly applied. It is appropriately applied in those rare cases where not to do so will subject the defendant to oppression, harassment, or egregious deprivation.” Doe v. Poritz, 142 N.J. 1 (1995), citing State v. Yoskowitz, 116 N.J. 679, 712, 563 A.2d 1 (1989) (Garibaldi, J., concurring and dissenting). Egregious deprivation would surely be the result if this applicant were precluded from obtaining a firearms purchaser identification card by virtue of the fact that he consensually surrendered his weapons at a time when it was impossible for him to have known that such action would later subject him to lifelong deprivation of his second amendment right.

Additionally, it is clear that in consenting to the disposition of the weapons seized as a result of the temporary restraining order, the applicant did not intend to waive his right to bear arms as provided by the second amendment of the U.S. Constitution. He therefore could not have knowingly, intelligently, or voluntarily waived that right.”

The full text of the opinion is available here: http://www.evannappen.com/lawupdate1gunbook/pdfs/peterson.pdf

The Warren County Prosecutor has filed a notice of appeal in the case.
Click to expand...

Forbin · May 2, 2007

Yup, read it in the NJARPC bulletin.

'Tis a good ruling.

The Original Faceman · May 2, 2007

Eggregious Deprivation? He based his holding on dicta taken out of a concurrance/dissent?

Sean the Puritan · May 2, 2007

Face said: ↑

Eggregious Deprivation? He based his holding on dicta taken out of a concurrance/dissent?
Click to expand...

The article seems to indicate that, yes.

frontline · May 2, 2007

Its a small victory. Its good, but small. How about getting rid of the damned cards to begin with and allowing folks to exercise their rights free of undue hinderance.

The Original Faceman · May 2, 2007

OK read the case. It was decided because the statute that says he can't have a permit was enacted after his guns were seized and thus cannot be applied ex post facto.

Apparently the government raised another argument, that of waiver, arguing that he waived his second amendment rights when he had his guns taken away. The court correctly held that this was not a 'voluntary' waiver and thus waiver cannot apply here.

Then they issued a very limited holding narrowly construed to the applicant himself by saying that the 2004 statute cannot be applied to his particular case.

And that's all they did.

They didn't strike down the 2004 law. It can't be applied retroactively, but if I had to bet, that had already been decided and the Sheriff just ignored that part here anyway.

Log in or Sign up

NJ Court recognizes second amendment!

Sherlock Holmes Resurrected

Forbin Do you feel fluffy, punk?

The Original Faceman Lasagna Artist

Sean the Puritan Endut! Hoch Hech!

frontline Hedonistic Glutton Staff Member Moderator

The Original Faceman Lasagna Artist

Log in or Sign up

NJ Court recognizes second amendment!

Sherlock Holmes Resurrected

Forbin Do you feel fluffy, punk?

The Original Faceman Lasagna Artist

Sean the Puritan Endut! Hoch Hech!

frontline Hedonistic Glutton Staff Member Moderator

The Original Faceman Lasagna Artist

Useful Searches