View Full Version : Mother of God - N.J. Court Says Americans Have No Right To Buy Handguns

Bud Fox
10-31-2009, 11:34 AM
It's coming folks, get ready to saddle the horses.

October 28, 2009 7:50 PM
N.J. Court Says Americans Have No Right To Buy Handguns

Posted by Declan McCullagh
(AP Photo/Judi Bottoni)
A New Jersey appeals court has concluded that Americans have no Second Amendment right to buy a handgun.

In a case decided last week, the superior court upheld a state law saying that nobody may possess "any handgun" without obtaining law enforcement approval and permission in advance.

That outcome might seem like something of a surprise, especially after the U.S. Supreme Court ruled last year in the D.C. v. Heller case that the Second Amendment guarantees "the individual right to possess and carry weapons in case of confrontation."

But New Jersey Appellate Division Judge Stephen Skillman wrote on behalf of a unanimous three-judge panel that Heller "has no impact upon the constitutionality of" the state law.

That's because, Skillman said, the Supreme Court did not strike down the District of Columbia's de facto handgun ban but instead simply ordered the city to issue a permit. In other words, while Americans may have the right in general to possess arms, the exact contours of that right have not been mapped, especially as the Second Amendment applies to state laws. (The court's majority opinion last year said: "We therefore assume that petitioners' issuance of a license will satisfy respondent's prayer for relief and do not address the licensing requirement.")

Look for the Supreme Court to revisit this question in a few months when it hears a case called McDonald v. Chicago. It's a constitutional challenge to Chicago's restrictive gun laws, which prohibit anyone from possessing firearms -- even in their homes -- "unless such person is the holder of a valid registration certificate for such firearm."

New Jersey's laws are similar. They say: "No person shall sell, give, transfer, assign or otherwise dispose of, nor receive, purchase, or otherwise acquire a handgun unless the purchaser, assignee, donee, receiver or holder... has first secured a permit to purchase a handgun as provided by this section."

Another section dealing with licensing says: "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." Some of the exceptions involve criminal records, for instance.

What prompted the current lawsuit was a request for a handgun purchase permit that Anthony Dubov submitted to the East Windsor Chief of Police. The police chief denied Dubov's request without giving any reason, in what the appeals court later ruled was a violation of state law. The current East Windsor police chief is William Spain.

Oddly, the trial judge upheld that denial, without asking the police chief to testify to explain himself (another violation of state law) and after taking the unusual step of contacting Dubov's previous employers to ask about his background.

Dubov's attorney, Michael Nieschmidt, argued that the state licensing scheme was unconstitutionally vague and therefore violated the Second Amendment.

Skillman concluded that while the Second Amendment doesn't apply, state law and precedent nevertheless required that Dubov receive more due process than he did. The appeals court wrote: "Accordingly, the trial court's affirmance of the police chief's denial of appellant's application for a firearms purchase permit is reversed, and the case is remanded for an evidentiary hearing in conformity with this opinion."


10-31-2009, 11:45 AM
:dupe: This was posted yesterday.

Bud Fox
10-31-2009, 11:47 AM
:dupe: This was posted yesterday.

Well add another to the list. You just have to read my sig to know that. Mods please delete, sorry for the trouble.

10-31-2009, 11:49 AM
Well add another to the list. You just have to read my sig to know that. Mods please delete, sorry for the trouble.



Gray Peterson
10-31-2009, 7:16 PM
I'm sorry, but the reporting on this I think was a little on the shoddy side.

Read the decision for yourself:

In The Matter of Anthony Dubov (http://www.judiciary.state.nj.us/opinions/a0832-08.pdf)


We conclude that the trial court's conduct of the
proceedings on the appeal from the denial of appellant's
application for a permit to purchase firearms did not conform
with the requirements of procedural due process set forth in
Weston. Therefore, the order affirming the denial of that
application must be reversed and the matter remanded for a
rehearing conducted in conformity with Weston..........

Appellant suggests that the Supreme Court of the United
States' decision in District of Columbia v. Heller, ___ U.S.
___, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), requires
reconsideration of the constitutionality of N.J.S.A. 2C:58-
3(c)(5). However, Heller did not involve a claim that a
firearms licensing statute was void for vagueness. The issue in
Heller was whether the Second Amendment protects only the right
to possess and carry a firearm in connection with military
service or also protects an individual's right to possess a
firearm for other purposes such as self-defense and hunting.
Id. at ___, 128 S. Ct. at 2789, 171 L. Ed. 2d at 648. The Court
held that the Second Amendment protects an individual right to
keep and bear firearms, id. at ___, 128 S. Ct. at 2799, 171 L.
Ed. 2d at 659, and that this holding required invalidation of
District of Columbia statutes that totally prohibited handgun
possession in the home and required any lawful firearm in the
home to be disassembled or bound by a trigger lock, thus
rendering it inoperable. Id. at ___, 128 S. Ct. at 2817-22, 171
L. Ed. 2d at 678, 679-84.

However, the Court expressly indicated that its holding did
not require invalidation of statutes that require a license to
purchase or possess a firearm. Id. at ___, ___, 128 S. Ct. at
2816-17, 2819, 171 L. Ed. 2d at 678, 680-81. In fact, the Court
noted that "[r]espondent conceded at oral argument that he does
not 'have a problem with . . . licensing' and that the
District's law is permissible so long as it is 'not enforced in
an arbitrary and capricious manner[,]'" thus obviating the need
for the Court to address the validity of the specific provisions
of the District of Columbia's gun licensing statutes. Id. at ___,
128 S. Ct. 2819, 171, L. Ed. 2d at 681. Therefore, Heller has no
impact upon the constitutionality of N.J.S.A. 2C:58- 3(c)(5).