NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3704-11T4
IN THE MATTER OF APPLICATION OF APPROVED FOR PUBLICATION
JONATHAN R. WHEELER FOR A RETIRED
OFFICER PERMIT TO CARRY A FIREARM December 30, 2013
OPENLY AND/OR CONCEALED.
APPELLATE DIVISION
IN THE MATTER OF APPLICATION OF
GEORGE A. DAUDELIN FOR A RETIRED
OFFICER PERMIT TO CARRY A FIREARM
OPENLY AND/OR CONCEALED.
_______________________________
Argued March 6, 2013 - Decided December 30, 2013
Before Judges Grall, Koblitz and Accurso.
On appeal from Superior Court of New
Jersey, Law Division, Essex County.
J. Sheldon Cohen argued the cause for
appellants Wheeler and Daudelin (DeCotiis,
FitzPatrick & Cole, LLP, attorneys; Steven
C. Mannion, on the brief).
Maria I. Guerrero, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent State of New Jersey
(Carolyn A. Murray, Acting Essex County
Prosecutor, attorney; Ms. Guerrero, of
counsel and on the brief).
The opinion of the court was delivered by
GRALL, J.A.D.
TABLE OF CONTENTS
I. Introduction 3
II. Facts 5
III. The Firearms Law 7
A. The Purpose, Requirements, Narrow Scope
and Role of the Carry Permit Law 8
1. The Purpose and Requirements 8
2. The Narrow Scope 10
3. The Similar Roles of Employment-Based
Exemptions from the Carry Permit Law
and the "Justifiable Need" Standard 15
4. The Role of Special Permits for Retired
Police Officers 18
5. The Legislature's "Justifiable Need"
Requirement is Consistent with the
Lawful Defensive Use of Firearms 23
B. The History of the Carry Permit Law 24
C. The Factual Justifications for the Carry
Permit Law 26
D. Summary 31
IV. The Second Amendment 32
A. The Claim Presented 32
B. The Right 34
1. The Narrow Holdings in Heller and
McDonald 35
2. The Broad Reasoning Supporting the
Narrow Holdings in Heller and McDonald 37
3. The Threshold Question Raised by the
Court's Narrow Holdings and Broader
Reasoning 38
4. Limitations on the Right 42
5. The Standard of Scrutiny 52
6. "Justifiable Need" Passes Muster 62
V. Equal Protection 76
VI. Privileges and Immunities 83
VII. Preemption 85
2 A-3704-11T4
I. Introduction
Jonathan R. Wheeler and George A. Daudelin retired from the
Arson Investigation Unit (AIU) of Newark's Fire Department and
later applied to the Division of State Police (Division) for a
special permit authorizing certain retired law enforcement
officers to carry handguns. N.J.S.A. 2C:39-6l(1)-(4).1 These
special carry permits may be issued to retirees who either
served in an enumerated law enforcement agency or served with an
agency in another state and are "qualified retired law
enforcement officer[s], as [that term is] used in the federal
'Law Enforcement Officers Safety Act of 2004' [(LEOSA)], Pub. L.
No. 108-277, domiciled in this State." N.J.S.A. 2C:39-6l; In re
Casaleggio, 420 N.J. Super. 121, 128-29 (App. Div. 2011) (so
interpreting subsection l's reference to LEOSA, 18 U.S.C.S. §
926C).
Another type of carry permit is available to any qualified
person who can demonstrate a "justifiable need" for carrying a
handgun. N.J.S.A. 2C:58-4d. To acquire one, an applicant must
show "'an urgent necessity . . . for self-protection'" based on
"specific threats or previous attacks demonstrating a special
danger to the applicant's life that cannot be avoided by other
1
Subsection l is italicized to distinguish the lowercase letter
"l" from the numeral "1."
3 A-3704-11T4
means." In re Preis, 118 N.J. 564, 571 (1990) (quoting Siccardi
v. State, 59 N.J. 545, 557 (1971)). Neither Wheeler nor
Daudelin applied for that type of carry permit, because they
concluded they could not show "justifiable need."
The Division denied Wheeler's and Daudelin's application.
Challenging the constitutionality of the carry permit laws, both
requested a hearing in the Law Division. N.J.S.A. 2C:39-6l(5).
After consolidating the cases and taking testimony, the judge
affirmed the denials.
On appeal, the applicants acknowledge their ineligibility
for either type of carry permit and renew and expand their
constitutional challenges. The questions presented are: 1)
whether the "justifiable need" requirement of N.J.S.A. 2C:58-4d
violates the Second Amendment; 2) whether subsection l of
N.J.S.A. 2C:39-6 arbitrarily distinguishes between eligible
retired officers and others; 3) whether distinctions between
retired officers domiciled in New Jersey and elsewhere violate
the Privileges and Immunities Clause of Article IV, Section 2 —
an issue not raised in the trial court; and 4) whether LEOSA
would preempt these applicants' prosecution for possessing a
handgun without a permit in violation of N.J.S.A. 2C:39-5b — an
issue not properly raised in the Law Division.
4 A-3704-11T4
Because the facts are not in dispute and the questions turn
on interpretation of statutes and the Constitution, we owe no
deference to the judge's determinations. Borough of Harvey
Cedars v. Karan, 214 N.J. 384, 401-02 (2013); In re Liquidation
of Integrity Ins. Co., 193 N.J. 86, 94 (2007); Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).2 For
the reasons that follow, we conclude the applicants are not
entitled to relief on any ground asserted.
II. Facts
Daudelin was assigned to Newark's AIU in 1984 and served in
that unit for about sixteen years before retiring in 2000; he
first applied for a special carry permit in April 2011. Wheeler
was assigned to the AIU in 1997 and retired with no more than
eleven years of service in 2008; he filed this application for a
special permit in February 2011.3 Both held leadership positions
and retired in good standing.
2
The Attorney General participated in the Law Division but,
regrettably, declined to participate here. This matter
implicates criminal laws, involves a determination of the
Division and presents constitutional challenges to State
statutes. The Attorney General is the State's Chief Law
Enforcement Officer, N.J.S.A. 52:17B-98; the head of the
Department of Law and Public Safety and generally responsible
for the Division, N.J.S.A. 52:17B-2 to -4; and is entitled to
defend a challenge to a statute, R. 4:28-4; R. 2:5-1(h).
3
This was Wheeler's second application. On a prior appeal
decided before Casaleggio, we upheld a denial of his first
(continued)
5 A-3704-11T4
Acknowledging their ineligibility for special permits, they
offered evidence to demonstrate that their exclusion from the
list of eligible retirees is arbitrary. Active members of an
AIU have powers equivalent to those of police officers only
"while engaged in the actual performance of arson investigation
duties," N.J.S.A. 40A:14-7.1d, and may carry handguns only
"while either engaged in the actual performance of arson
investigation duties or while actually on call to perform arson
investigation duties and when specifically authorized . . . to
carry weapons." N.J.S.A. 2C:39-6a(8) (emphasis added).4 But
these applicants were on duty or on call except when on
vacation, and they intervened whenever they observed crimes in
progress, even crimes unrelated to their duties, and they worked
with officers from the police department, county prosecutor's
(continued)
application for a special permit on the ground that AIUs are not
among the agencies enumerated in subsection l, but we allowed
Wheeler to reapply asserting eligibility as a LEOSA-qualified
retired officer. In the Matter of Jonathan R. Wheeler, No. A-
3329-08 (App. Div. Nov. 20, 2009) (slip op. at 7-10). The
Division and the Law Division relied on Casaleggio to deny his
second application. As the parties agree that Casaleggio is
rightly decided, that question is not before us.
4
Firefighters not assigned to an AIU have police powers only
while en route to, attending to or returning from a fire, and
they have no authority to carry firearms beyond that of private
citizens. N.J.S.A. 40A:14-54.
6 A-3704-11T4
office and the Bureau of Alcohol, Tobacco and Firearms when
investigating arsons related to other crimes.
They also presented evidence of inconsistent application of
the special carry permit law. Some AIU retirees had been issued
special carry permits based on subsection l's reference to
LEOSA, but they received those permits prior to this court's
decision in Casaleggio.
Neither Wheeler nor Daudelin made any attempt to establish
the "justifiable need" necessary to obtain an ordinary carry
permit. Instead, they argued that if retired officers, who have
no police powers, can obtain a carry permit without showing
"justifiable need," then no one should be required to make that
showing.
III. The Firearms Law
Discussion of the constitutional challenges to the
"justifiable need" component of the carry permit law requires an
understanding of the role of "justifiable need" in the "'careful
grid' of regulatory provisions" comprising our firearms law.
Preis, supra, 118 N.J. at 568 (quoting State v. Ingram, 98 N.J.
489, 495 n.1 (1985)). Accordingly, the importance of this
component of that grid is best understood in context.
The carry permit law is distinct from laws that provide
enhanced punishment for persons who commit crimes with guns or
7 A-3704-11T4
other deadly weapons, which are also part of the careful grid.
Id. at 568-69. As the discussion that follows demonstrates, the
carry permit law is one of the regulatory provisions of the
firearms laws designed to protect the public before any harm is
caused. The regulatory provisions address the danger of serious
injury inherent in the ownership and carrying of firearms.
A. The Purpose, Requirements, Narrow Scope and Role of the
Carry Permit Law
1. The Purpose and Requirements
Some regulatory provisions of the firearms laws "keep
firearms from all such persons whose possession would pose a
threat to the public health, safety or welfare," under any
circumstance. Burton v. Sills, 53 N.J. 86, 93 (1968), appeal
dismissed, 394 U.S. 812, 89 S. Ct. 1486, 22 L. Ed. 2d 748
(1969). In order to lawfully acquire a handgun, rifle or
shotgun, one must demonstrate that he or she is not disqualified
by reason of youth, criminal record history, domestic violence
restraining order or disability affecting one's ability to carry
a firearm. N.J.S.A. 2C:58-3a-c (requiring prior authorization -
a permit to purchase a handgun or a purchaser identification
8 A-3704-11T4
card for rifles and shotguns — and enumerating the disqualifying
conditions).5
The carry permit law serves a different purpose —
addressing the "serious dangers of misuse and accidental use"
inherent even when the person carrying a handgun is law-abiding
and responsible. Siccardi, supra, 59 N.J. at 558 (construing
N.J.S.A. 2A:151-44 (L. 1966, c. 60, § 35, p. 501)). An
applicant for a carry permit must demonstrate more than absence
of a disqualifying condition. The applicant must show that he
or she is "thoroughly familiar with the safe handling and use of
handguns" and that he or she has "a justifiable need to carry a
handgun." N.J.S.A. 2C:58-4d. These two additional requirements
make the carry permit "the most closely-regulated aspect of
[this State's] gun-control laws." Preis, supra, 118 N.J. at
568-69.
The additional requirements minimize the danger the carry
permit law is intended to address. The showing of proficiency
reduces the risk of mishandling. Moore v. Madigan, 702 F.3d
933, 941 (7th Cir. 2012) (noting the obvious menace when the
untrained carry guns in public), reh'g en banc denied, 708 F.3d
5
N.J.S.A. 2C:39-10a(1) (violation of this restriction is a crime
of the fourth degree); N.J.S.A. 2C:39-5c (violation is a crime
of the third degree where an exemption stated in N.J.S.A. 2C:39-
6 does not apply); see also N.J.S.A. 2C:58-3.1, -3.2 (exempting
certain temporary transfers).
9 A-3704-11T4
901 (7th Cir. 2013). And the demonstration of particularized
need that serves to limit "widespread handgun possession in the
streets, somewhat reminiscent of frontier days, would not be at
all in the public interest." Siccardi, supra, 59 N.J. at 558.
2. The Narrow Scope
Although the carry permit is the most closely-regulated
aspect of our firearms laws, it affects a very narrow range of
conduct.
The core of the carry permit law is a broadly-stated
prohibition against knowing possession of a handgun "without
first having obtained a permit to carry the same as provided in
N.J.S. 2C:58-4." N.J.S.A. 2C:39-5b(1). But the scope of that
prohibition, and consequently the obligation to establish
"justifiable need" in order to carry and use a handgun, is
greatly diminished by numerous statutory exceptions that make
N.J.S.A. 2C:39-5b inapplicable in a wide range of circumstances.
See N.J.S.A. 2C:39-6 (codifying the exceptions).
As a practical matter, the exceptions make the prohibition
against carrying a handgun applicable only in public places. We
use the term "public places" throughout this opinion to mean
places other than one's home, business premises, property,
places where handguns are lawfully sold and repaired, and places
where handguns may be lawfully used for training and practice or
10 A-3704-11T4
recreationally for hunting, competition and exhibition.
N.J.S.A. 2C:39-6e, f, g. Because of the exceptions, one does
not need a carry permit to keep, carry or use a handgun about
one's home, business premises or land, N.J.S.A. 2C:39-6e, or
while lawfully hunting or shooting at a range or in an
authorized exhibition, N.J.S.A. 2C:39-6f(1)-(3), or while
transporting a handgun, unloaded and secured, between those
places and places where guns are sold or repaired. N.J.S.A.
2C:39-6e, f, g.
In each of the instances covered by the foregoing
exceptions, a lawful reason, or need, for having a handgun is
obvious: keeping or transporting a handgun for lawful use;
using it in lawful defense of home, family and property; using
it recreationally or for training where that conduct is lawful;
and transporting it, secured, in connection with acquisition,
maintenance or use for one of the lawful purposes.
There are additional exceptions that apply to certain
persons carrying a loaded handgun in public places. Those
eligible are designated by their employment. N.J.S.A. 2C:39-6a,
b. Where those exceptions apply, the likely need for use of
lawful defensive force is apparent — either because the persons
or things the employee must secure are inherently likely to be
of interest to those bent on crime, or because the job is to
11 A-3704-11T4
keep the peace, prevent crime, apprehend, secure or prosecute
suspects, or supervise and secure those convicted.
The employment-based exceptions applicable to workers in
the private sector are for guards employed by railway express
companies, banks, public utilities transporting explosives,
nuclear power plants or companies transporting prisoners
pursuant to government contract. N.J.S.A. 2C:39-6c(5), a(10),
c(8), c(15). Exempted government employees are members of the
military on active duty, police and sheriffs' officers, prison
and jail guards, parole officers, criminal investigators and
prosecutors. N.J.S.A. 2C:39-6a(1)-(5), c(6), c(10)-(14), c(16).
Generally, the carrying privileges afforded to these exempt
employees are strictly tied to performance of duties warranting
the arming of the employees. See N.J.S.A. 2C:39-6a(10), c(5),
c(8), c(15) (private sector); N.J.S.A. 2C:39-6a(1)-(2), a(6),
a(7)(c), a(8), b(1), c(2), c(4), c(6), c(7) (public sector).
The exceptions for some in the public sector are not limited to
times when they are on duty or on call, but those officers have
statutory duties and police powers not limited to performance of
duty.6 Thus, the employment exemptions are tailored to need.
6
Examples of law enforcement officers with broad privileges and
police powers are provided in footnote 8.
12 A-3704-11T4
Employment-based exemptions are also conditioned on
demonstration of competence in handling firearms. Every exempt
employee must successfully complete training and periodically
re-qualify under standards set by the New Jersey's Police
Training Commission (PTC). See N.J.S.A. 2C:39-6a, c
(enumerating the exceptions); N.J.S.A. 2C:39-6j (requiring
training and qualification). That condition minimizes the risk
of misuse and accident.7
When the Legislature established the PTC in 1961, it
recognized the need for better trained officers upon whom the
public could rely. The Legislature determined that professional
training for police was required "to better protect the health,
safety and welfare of its citizens," in this "State whose
population is increasing in relation to its physical area, and
in a society where greater reliance on better law enforcement
7
The danger of widespread carrying of handguns has been cited
in connection with expansion of officers' off-duty carrying
privileges. See, e.g., Governor's Reconsideration and
Recommendation Statement, Assembly No. 940, L. 1982, c. 154
(noting the "salutory" purpose of a Bill "intended to afford
greater protection to the citizens of certain urban areas by
permitting special police who live in those areas to carry
weapons while off duty"; expressing concern about the "greater
chance" of "mishap" resulting in harm to an "innocent civilian"
inherent in arming off-duty special police who, unlike
"[r]egular police," were not "specifically trained and tested to
see how they will use a firearm under stress"; and conditioning
gubernatorial approval on an amendment requiring additional
training); N.J.S.A. 40A:14-146, L. 1982, c. 154, § 2, pp. 707-09
(incorporating the recommendation).
13 A-3704-11T4
through higher standards of efficiency is of paramount need
. . . ." N.J.S.A. 52:17B-66; L. 1961, c. 56, § 1, p. 542,
(emphasis added). This explanation demonstrates the
Legislature's consistent focus on "need" in addressing the
dangers of carrying handguns in public places. In addition to
regulating the carrying of handguns, it has made efforts to
address conditions that could reasonably lead the public to
perceive a need for being armed in public places.
All of the foregoing demonstrates the limited, but
important, role that the carry permit law has in the grid of New
Jersey's firearms laws — protection of those in public places of
this densely populated State. Despite the apparent breadth of
the statute criminalizing the possession of a handgun without
first obtaining a carry permit, N.J.S.A. 2C:39-5b, because of
the numerous exceptions available where a good reason for having
a handgun is apparent, N.J.S.A. 2C:39-6, a carry permit is
necessary only if one wants to have a handgun where it cannot be
lawfully used to do anything but repel an unlawful attack. And
where a person's employment gives reason to anticipate a need to
use defensive force in places such as the highways, streets,
sidewalks, alleys, parks and beaches of this densely populated
State (where hunting and target shooting is not allowed),
14 A-3704-11T4
exceptions exempt those employees from the obligation to obtain
a carry permit.
3. The Similar Roles of Employment-Based Exemptions
from the Carry Permit Law and the "Justifiable Need"
Standard
In the context of the grid of our firearms laws, the
"justifiable need" component of the carry permit law is best
understood as accommodating, on a case-by-case basis, those who
have a reason — one based on more than a generalized concern
about the prevalence of crime — to anticipate a violent attack
in a public place warranting lawful defensive use of a handgun.
Siccardi, supra, 59 N.J. at 557; see, e.g., In re Application of
"X", 59 N.J. 533, 534-35 (1971) (affirming denial of carry
permit to a businessman because his "situation [did] not differ
materially from those confronting many businessmen" and because
he had not shown any "special dangers to him"). So viewed, carry
permits available on a showing of "justifiable need" serve the
same purpose as the categorical employment-based exceptions,
which allow those the Legislature has recognized as having jobs
likely to require lawful use of a handgun to carry them in
public places if adequately trained.
There are other similarities between carry permits and the
employment-based exemptions. Pursuant to N.J.S.A. 2C:58-4d, a
carry permit may be tailored to the need established by the
15 A-3704-11T4
applicant. A permit may "restrict the applicant as to the types
of handguns . . . and for what purposes such handguns may be
carried." N.J.S.A. 2C:58-4d. As previously noted, the
employment-based exceptions are also tailored to need. For
example, firefighters assigned to AIUs and charged with
investigating suspicious fires and explosions, N.J.S.A. 2C:39-
6a(8), have authority to carry handguns only while performing or
being on call to perform those duties. In contrast, officers
who have broader police powers even when off duty have equally
broad carrying privileges. See, e.g., N.J.S.A. 2C:39-6a(7)(a);
N.J.S.A. 2A:157-2.1 (officers of county or municipal police
departments).
Moreover, consistent with the Legislature's attention to
personal need, for example sport and defense of home, and need
based on employment, for example guards and police officers, the
obligation to show "justifiable need" can be established in two
ways — a particularized individual need or a particularized need
related to employment. As previously noted, applicants for
carry permits generally must show "'an urgent necessity . . .
for self-protection'" by pointing to "specific threats or
previous attacks demonstrating a special danger to the
applicant's life that cannot be avoided by other means." Preis,
supra, 118 N.J. at 571 (quoting Siccardi, supra, 59 N.J. at
16 A-3704-11T4
557). But carry permits are also available to individuals
employed in businesses licensed by the State if they can show:
"(1) that . . . in the course of performing statutorily-
authorized duties, [they are] subject to a substantial threat of
serious bodily harm; and (2) that carrying a handgun is
necessary to reduce the threat of unjustifiable serious bodily
harm to any person." Id. at 576-77; see N.J.A.C. 13:54-2.4(d)
(codifying the standards stated in Preis).
The final similarity is related to the Legislature's focus
on the risk inherent in the carrying of handguns in public.
Both exempt employees and applicants for carry permits must
acquire training necessary to minimize the risk that misuse and
accidental use of handguns poses to others. The PTC-approved
training for exempt employees has been discussed above. The
regulation adopted to give content to the showing of "thorough
familiarity with the safe handling of handguns" that must be
made by an applicant for a carry permit, N.J.S.A. 2C:58-4d,
also requires comparable training in the lawful use as well as
the proficient use of handguns. N.J.A.C. 13:54-2.4(b) (1.
firearms training substantially equivalent to that approved by
the PTC as described in N.J.S.A. 2C:39-6j; 2. recent
qualification scores; and 3. a passing score on a test measuring
knowledge of laws "governing the use of force").
17 A-3704-11T4
We do not minimize the significance of the "justifiable
need" requirement where it applies. Regardless of training and
absence of a disqualifying condition, a well-trained and wholly
law-abiding and responsible person cannot lawfully carry a
firearm in a public place unless that person can demonstrate
that he or she has "a justifiable need to carry a handgun."
N.J.S.A. 2C:58-4d. This important component of the law is
unmistakably designed to prohibit the public carrying of
firearms unless the person has a "justifiable need" for being
armed.
4. The Role of Special Permits for Retired Police
Officers
The role of special permits for designated retired law
enforcement officers is less apparent. The Legislature's
authorization of special carry permits for these retirees
pursuant to subsection l of N.J.S.A. 2C:39-6 appreciably relaxes
the "justifiable need" standard. These special permits were
first authorized in 1997. L. 1997, c. 67, § 1 (adding
subsection l to N.J.S.A. 2C:39-6). Before that all retired law
enforcement officers, like others without police powers or an
express statutory employment-based exemption, had to show
"justifiable need" to be authorized to carry a handgun in public
places under one of the standards enunciated in Preis.
18 A-3704-11T4
The absence of a "justifiable need" requirement for these
statutorily designated retirees was intended. A statement
accompanying the 1997 legislation states: "Retired law
enforcement officers are afforded no special treatment under
current law. In order to carry a handgun after retirement, a
retired officer, just like any other citizen, must establish a
'justifiable need' to carry a handgun pursuant to [N.J.S.A.]
2C:58-4." Assembly Law & Public Safety Committee Statement to
Assembly Committee Substitute for A. 1762, A. 1834, A. 949 (May
13, 1996) (enacted as L. 1997, c. 67, § 1).
Some basis for the special treatment can be inferred from
the officers' pre-retirement duties, police powers and carrying
privileges. Subsection l designates ten categories of retired
law enforcement officers eligible for special permits. Eight of
the ten are designated by reference to employment with state,
interstate and local law enforcement agencies. N.J.S.A. 2C:39-
6l. Prior to retiring, full-time officers in the designated
agencies had police powers that were not limited to the time or
place of duty and their duties were not tied to investigation of
narrow categories of crime, like the investigation of suspicious
fires and explosions.8 N.J.S.A. 40A:14-7.1d. As previously
8
The listing that follows includes the eight groups listed with
citations to the statutes stating their carrying privileges and
(continued)
19 A-3704-11T4
discussed, however, retirees who served in AIUs are ineligible,
but they, like many other ineligible retirees, had carrying
privileges while employed that were tied to actual performance
of duties.9 The alignment is not perfect because some retirees
with broad authorization to carry weapons while employed are
ineligible for a special permit. But the converse is not true;
no retiree with limited authority to carry while employed is
eligible.
(continued)
police powers prior to retirement. They are those retirees who
served "full-time" and "regularly" in 1) the State Police,
N.J.S.A. 2C:39-6a(3) and N.J.S.A. 53:2-1; 2) an interstate
police force, N.J.S.A. 2C:39-6a(7)(a), see, e.g., N.J.S.A. 32:2-
25 (setting forth the police powers of members of the Port
Authority of New York and New Jersey's police force); 3) a
county or municipal police department in this State, N.J.S.A.
2C:39-6a(7)(a) and N.J.S.A. 2A:157-2.1; 4) a State law
enforcement agency, N.J.S.A. 2C:39-6a(4) and N.J.S.A. 52:17B-
100.1; 5) a sheriff, undersheriff or sheriff's officer of a
county of this State, N.J.S.A. 2C:39-6a(4) and N.J.S.A. 2A:157-
2.1; 6) a State or county corrections officer, N.J.S.A. 2C:39-
6a(5), (11) and N.J.S.A. 2A:154-3, -4; 7) a county park police
officer, N.J.S.A. 2C:39-6a(7)(a) and N.J.S.A. 40:37-155; and 8)
a county prosecutor's detective or investigator, N.J.S.A. 2C:39-
6a(4) and N.J.S.A. 2A:157-10. See N.J.S.A. 2C:39-6l.
9
Among the ineligible officers are: civilian employees of the
United States Government; special agents of the Division of
Taxation; deputy conservation officers; employees of the
Division of Parks and Forestry who have the power of arrest;
court attendants; and officers of the Society for the Prevention
of Cruelty to Animals. N.J.S.A. 2C:39-6a(6),(7); N.J.S.A.
2C:39-6c(1),(2),(4),(7) (defining their respective limited
authorization to carry handguns while employed).
20 A-3704-11T4
The two remaining categories of retirees eligible for
special permits are those who were "full-time federal law
enforcement officer[s]" and those domiciled in this State who
are eligible as a retiree who is "a qualified retired law
enforcement officer" within the meaning of that term as it was
defined in LEOSA when adopted in 2004. N.J.S.A. 2C:39-6l. As
these applicants were not federal officers and acknowledge their
ineligibility under subsection l's reference to LEOSA, these
categories have no relevance to them.10
Two reasons for special permits for retirees consistent
with the "justifiable need" requirement are suggested in the
legislative record developed by the congressional committee that
released LEOSA. Those reasons are that: 1) arming retirees who
are trained and experienced law enforcement officers is a means
of preventing crime; and 2) such retirees and their families
face a risk of retaliatory criminal violence to which others are
not exposed. See H.R. Rep. No. 108-560, accompanying H.R. 218,
108th Congress 2d Session (then entitled the "Law Enforcement
Officers Safety Act of 2003" and adopted on July 22, 2004 as
10
Since its adoption in 1997, subsection l has been amended to
make special carry permits more readily available: the reference
to LEOSA-qualified retirees domiciled here was added; the age
limit for eligibility was raised; and the requirement to apply
within six months after retirement was eliminated. Compare L.
1997, c. 67, § 1 with L. 2007, c. 313, § 1.
21 A-3704-11T4
P.L. 108-277, the "Law Enforcement Officers Safety Act of
2004").11
It is unlikely that our Legislature was primarily focused
on the public benefits of arming retired law enforcement
officers. While private persons may lawfully use force to
protect a third person from imminent harm threatened by one
using unlawful force, N.J.S.A. 2C:3-5, they have limited
authority to use force to effect an arrest. N.J.S.A. 2C:3-7.
The Legislature likely focused on the risk of retaliation faced
by these retirees — that threat distinguishes them from others.
And the Legislature could have distinguished these retirees from
other well-trained persons based on their experience in
assessing street crime and the need for lawful force, on and off
duty, prior to retirement.12
11
A section of that congressional report, explains that the
organizations of rank and file officers supporting the proposal
viewed it as "allow[ing] tens of thousands of additionally
equipped, trained and certified law enforcement officers to
continually serve and protect our communities" and allow active
and retired officers "to defend themselves . . . from criminals
whom they have arrested." Id. at 4. The views of the committee
members opposing and supporting the measure and the adequacy of
the justifications for it are also set forth in the report.
Notably, there was no discussion of arming all law-abiding
citizens with comparable training.
12
The other two branches of government considered experience and
training in connection with off-duty carrying privileges
afforded in the employment-based exceptions for law enforcement
(continued)
22 A-3704-11T4
5. The Legislature's "Justifiable Need" Requirement is
Consistent with the Lawful Defensive Use of Firearms
The Legislature has determined that the presence of readily
accessible handguns in public places of this densely populated
State presents an inherent risk of serious injury from accident
and misuse. The risk of accident and misuse in public places of
this State where a carry permit is required is enhanced — if for
no other reason than a handgun poses a greater danger in public
than it would if left at home. Moore, supra, 702 F.3d at 937.
The use of force to repel an attack or a perceived threat of
attack is not lawful if the actor negligently or recklessly
creates a risk of injury, causes injury to a non-aggressor or
causes injury based on an unreasonable perception of the
necessity or lawfulness of the force. See N.J.S.A. 2C:11-4a(1),
b(1); N.J.S.A. 2C:12-1a(1)-(2), b(1); N.J.S.A. 2C:3-4 to -5
(requiring a reasonable assessment of threat and its immediacy);
N.J.S.A. 2C:3-9 (making justifications for the use of defensive
(continued)
officers. See Governor's Reconsideration and Recommendation
Statement, Senate No. 1480, L. 1985, c. 150 (explaining that
because AIU members do not receive training comparable to that
of municipal police officers, their police powers should be
limited to times when "they are actually performing arson
investigation duties" and their carrying privileges limited to
times when they are actually performing, or are on call to
perform, their duties); L. 1985, c. 150, § 1, pp. 473-74
(following the Governor's recommendations).
23 A-3704-11T4
force unavailable where the actor is mistaken about the law or
recklessly or negligently injures a bystander).
B. The History of the Carry Permit Law
We address the history of the carry permit law only because
of the importance history has under the United States Supreme
Court's recent interpretations of the Second Amendment, which we
discuss in Part IV of this opinion. That history is discussed
in both Siccardi and Preis.
The first measure addressing the danger of carrying
firearms was adopted in 1882, and it applied only to youngsters.
L. 1882, c. IV, §§ 2-4; Siccardi, supra, 59 N.J. at 553. The
first carry permit law was enacted in 1905. L. 1905, c. 172,
§ 43a, p. 324. It prohibited possession of concealed weapons in
public places by anyone who did not hold exempt employment or
have a carry permit. Ibid. The 1905 law did not provide a
standard for the issuance of carry permits; it left that to the
discretion of the mayor or township committee. Ibid.
The Legislature first limited issuance of carry permits to
those who could demonstrate "need" in 1924, and at the same time
it assigned final responsibility for assessing need to judges.
L. 1924, c. 137, § 2, pp. 305-06. The Supreme Court has
concluded that the Legislature's involvement of the judiciary
signals the importance legislators place on "the dangers
24 A-3704-11T4
inherent in carrying handguns and the urgent necessity for their
regulation." Preis, supra, 118 N.J. at 576; see Siccardi,
supra, 59 N.J. at 553. Since 1924, all iterations of the carry
permit law have continued those critical elements. See, e.g.,
L. 1924, c. 137, § 1, p. 305; L. 1966, c. 60, § 34, pp. 499-501
(N.J.S.A. 2A:151-41). Even when the Legislature extended the
law to require carry permits for pistols and revolvers, whether
carried openly or concealed, the Legislature left the need
standard intact. L. 1966, c. 60, § 34, pp. 499-501 (N.J.S.A.
2A:151-41).
The Legislature changed the label from "need" to
"justifiable need" when it codified the criminal laws and the
firearms laws in Title 2C. But the Legislature did not alter
the substance of the standard as interpreted in Siccardi.
Preis, supra, 118 N.J. at 570; see Siccardi, supra, 59 N.J. at
557 (construing L. 1966, c. 60, § 35, pp. 501-02 (N.J.S.A.
2A:151-44)); II Final Report of the New Jersey Criminal Law
Revision Commission, The New Jersey Penal Code: Commentary §
2C:58-4 at 370 (1971) (noting the drafters' intention to
continue to current law).
In short, limiting the possession of handguns in public
places to those who have a "justifiable need" for carrying them
is a longstanding measure and one long understood as essential
25 A-3704-11T4
to addressing the dangers of misuse and accidental use. As
early as 1925, a three-judge panel considered a Second Amendment
challenge to the 1924 law and rejected a defendant's claim that
these measures impermissibly burdened his right. State v.
Angelo, 3 N.J. Misc. 1014, 1014 (Sup. Ct. 1925). The panel
assumed, without discussion, that Amendment applied and afforded
an individual right. The panel succinctly stated these reasons
for concluding the law did not violate the Amendment:
The right of a citizen to bear arms is
not unrestricted. The state government, in
the exercise of its police power, may
provide such conditions precedent to the
right to carry concealed weapons as the
safety and welfare of the people of the
state in its judgment require. The statute
upon which the indictment was based is a
valid exercise of the police power.
[Id. at 1015.]
C. The Factual Justifications for the Carry Permit Law
The factual basis for the New Jersey Legislature's
longstanding perception of the danger inherent in widespread
handgun possession in public places was addressed in Siccardi
and based on evidence presented in the Law Division. Because
the Court discussed that evidence in Siccardi, there is no
reason to provide more than a brief summary here. 59 N.J. at
549-53.
26 A-3704-11T4
The evidence included testimony from several chiefs of
police departments in urban and suburban municipalities and from
a representative of the New Jersey Division of State Police.
None of the officers were aware of any instance in which a
citizen had used a firearm to thwart an attack or successfully
defend himself in a public place, and several officers were of
the opinion that handguns had limited utility in preventing
public attacks because such attacks are sudden, unexpected,
brief and made at a time the attacker deems advantageous. Id.
at 550-52. The Court also considered a report prepared for the
National Commission on the Causes and Prevention of Violence
(NCCPV), in which the authors concluded that there was no data
establishing the value of firearms as a defense against attack
on the street, but recognized that there was evidence that the
ready accessibility of guns significantly increases the number
of unpremeditated homicides and the seriousness of the injuries
sustained in assaults. Id. at 552. The Court quoted a portion
of the NCCPV's recommendations suggesting federal legislation
encouraging states to limit handgun ownership "'to police
officers and security guards, small businesses in high crime
areas, and others with a special need for self-protection.'"
Ibid. (quoting Final Report, National Commission on the Causes
and Prevention of Violence, p. 181 (1969)). And, the Court
27 A-3704-11T4
cited numerous law review articles addressing gun control laws
and their efficacy. Id. at 552-53.
The Legislature also considered evidence before amending
the carry permit law in 1966 to cover the open, as well as the
concealed, carrying of pistols and revolvers. See Assembly
Committee on State Government, Public Hearing on Assembly Bill
A-165, "an Act concerning firearms and other dangerous weapons
and revising, repealing and supplementing parts of the statutory
law," Mar. 2, 1966. That evidence is not discussed in Siccardi.
Although the hearing is fairly characterized as spirited, the
proposed extension of the carry permit law to reach unconcealed
handguns drew little comment.
The then Attorney General, Arthur J. Sills, advised that
the F.B.I. Uniform Crime Reports for 1964 showed that "96 per
cent of the 225 police officers slain [between 1960 and 1964]
were killed with firearms." Id. at 8. The Attorney General
also compared the rate at which homicides were committed with
firearms in cities that did and did not have strict gun control
laws. Id. at 11-12. In New York City, where the state gun
control laws were, in the Attorney General's view, strict, "[o]f
the 637 homicides . . . in 1964, firearms were used in 26 per
cent of the cases." Id. at 11. In Texas, which in his view had
28 A-3704-11T4
very little gun control, "firearms were involved in 72 per cent
of all murders in 1963 in Dallas." Ibid.
The focus of the proponents and the opponents of the
legislative reform was on new measures concerning acquisition,
not the carrying of firearms. Id. at 2-7, 18-20. The disputes
centered on measures like finger-printing and record-keeping and
aimed at keeping firearms from the irresponsible and violators
of law. Id. at 2-7, 19-21. In the Attorney General's view
those measures were the major thrust of the reform. Id. at 2,
7. With respect to carry permits, he simply noted that permits
would be "required as under present law." Id. at 5.
Secretary L. Arthur Burton spoke for a "Citizens Committee
for Firearms Legislation," which was comprised of "fifteen
individuals" representing local and national associations that
were then "the major sporting and shooting organizations in the
State." Id. at 17-18. Mr. Burton implicitly endorsed the
prohibition against the public carrying of revolvers and pistols
without a carry permit by noting his Committee's support for
proposed restrictions on transporting loaded and uncased pistols
and revolvers. Id. at 27. The only objection to carry permits
he voiced were: 1) that the Bill, as then drafted, might be
understood to require a carry permit for rifles and shotguns;
and 2) that the obligation to "demonstrate familiarity with" and
29 A-3704-11T4
"sufficient skill and knowledge" of handguns was meaningless
without prescribed standards. Id. at 21-22, 24.
Similarly, a member of the Executive Committee of the
Directors of the National Rifle Association, Louis A. Benton,
testified in opposition to some aspects of the proposed reform.
He did not comment on carry permits or the prohibition against
carrying a pistol or revolver openly without one. Id. at 54-60.
Another witness, the operator of a licensed detective
agency, mentioned the "need" component of the carry permit law,
but he simply suggested addition of a standard for assessing the
"need of the applicant," id. at 78A-79A, which the Court
supplied in Siccardi. He also urged an amendment that would add
a new exception — one he viewed as a trade off for the new
limitation on carrying openly — for persons in "fresh pursuit of
a criminal, in the act of preventing a crime, defending
[themselves] against a crime, and attempting to apprehend a
criminal." Id. at 78A.
For the most part, no change in the permit law was required
to address the detective's concerns. As a matter of law, in
"those rare and momentary circumstances where an individual arms
himself spontaneously to meet an immediate danger," self-defense
and defense of others are viable defenses to possession in
violation of a regulatory offense, like the carry permit law.
30 A-3704-11T4
State v. Harmon, 104 N.J. 189, 208-09 (1986). In contrast, "the
policies embodied in our gun control laws, N.J.S.A. 2C:39-3 and
-5, [do] not allow self-defense as an excuse or justification to
a charge of unlawful possession under a regulatory offense when
a person arms himself prior to a danger becoming imminent."
Ibid. (discussing cases decided under laws of the District of
Columbia, Maryland, Tennessee and Texas reaching the same
conclusion).
D. Summary
Some might argue, as these applicants do, that the
"justifiable need" requirement is unnecessary to prevent the
danger of misuse and accidental use inherent in the widespread
carrying of handguns in public places of this densely populated
State. In their view, limiting carry permits to law-abiding and
responsible persons with adequate training is enough. But the
wisdom of this policy choice involves a predictive judgment of
the Legislative and Executive Branches to make in furtherance of
one of the government's primary obligations — the safety of the
public. United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct.
2095, 2100, 95 L. Ed. 2d 697, 707-08 (1987).
The only question for us is whether conditioning the
issuance of carry permits on a showing of "justifiable need" is
31 A-3704-11T4
a step the Second Amendment allows. With the foundation for
that inquiry now in place, we turn to consider the question.
IV. The Second Amendment
A. The Claim Presented
These applicants argue that New Jersey's "justifiable need"
requirement makes carry permits "unobtainable by all but a few
applicants," rendering the right to use a handgun in lawful
self-defense "illusory" and, thereby, violative of their Second
Amendment right. The weight of authority is against them.
New Jersey's law is far from unique. Hawaii,13 Maryland,14
Massachusetts,15 New York,16 and Rhode Island17 similarly condition
the carrying of handguns on a showing of particularized need.18
13
Authorizing issuance "[i]n an exceptional case, when an
applicant shows reason to fear injury to the applicant's person
or property . . . ." Haw. Rev. Stat. § 134-9(a).
14
Maryland conditions issuance on "good and substantial reason
to wear, carry or transport a handgun . . . as a reasonable
precaution against apprehended danger," which cannot be
established by "the applicant's vague apprehensions of danger
and personal anxiety over the crime situation." Scherr v.
Handgun Permit Review Bd., 880 A.2d 1137, 1140, 1144 (Md. Ct.
Spec. App. 2005).
15
"[G]ood reason to fear injury to his person or property,
or . . . any other reason, including the carrying of firearms
for use in sport or target practice." Mass. Gen. Laws ch. 140,
§ 131(d); Ruggiero v. Police Comm'r of Boston, 464 N.E.2d 104,
108 (Mass. App. Ct. 1984) (assertion of a perception of being a
victim of crime is inadequate).
32 A-3704-11T4
Other courts have considered and, with the exception of one
whose decision was reversed on appeal, uniformly rejected
challenges to laws that condition the issuance of carry permits
on an objective showing of a need different than that of the
general populace. Drake v. Filko, 724 F.3d 426, 440 (3d Cir.
2013) (New Jersey); Woollard v. Gallagher, 712 F.3d 865, 875-76
(4th Cir. 2013) (Maryland), cert. denied, 187 L. Ed. 2d 281
(U.S. Oct. 15, 2013); Kachalsky v. Cnty. of Westchester, 701
F.3d 81, 92 (2d Cir. 2012) (New York), cert. denied, sub nom.
Kachalsky v. Cacace, ___ U.S. ___, 133 S. Ct. 1806, 185 L. Ed.
2d 812 (2013); Young v. Hawaii, 911 F. Supp. 2d 972, 989 (D.
(continued)
16
New York's law conditions issuance of general carry permits on
a "proper purpose," which is demonstrated by showing a "'special
need for self protection distinguishable from that of the
general community or of persons engaged in the same
profession.'" Kachalsky v. Cnty. of Westchester, 701 F.3d 81,
92 (2d Cir. 2012) (quoting Klenosky v. N.Y. City Police Dep't,
428 N.Y.S.2d 256 (N.Y. App. Div. 1980), aff'd o.b., 421 N.E.2d
503 (1981)).
17
"[G]ood reason to fear an injury to his or her person or
property or has any other proper reason for carrying a pistol or
revolver . . . ." R.I. Gen. Laws § 11-47-11(a).
18
We have not undertaken an exhaustive survey of laws in other
states, because our point is simply that New Jersey's law is not
unique. Moreover, it is apparent, from a review of California
law that firearms laws may be drafted differently to effectively
limit the carrying of loaded firearms in public places to
circumstances where the person has a special need for using them
defensively. See Cal. Penal Code §§ 25850(a), 26045, 26050;
Peruta v. Cnty. of San Diego, 758 F. Supp. 2d 1106, 1115 (S.D.
Cal. 2010) (rejecting Second Amendment challenge).
33 A-3704-11T4
Haw. 2012); Williams v. State, 10 A.3d 1167, 1169 n.2, 1177
(Md.), cert. denied, ___ U.S. ___, 132 S. Ct. 93, 181 L. Ed. 2d
22 (2011). A panel of this court has reached the same
conclusion, and the question is now pending before our Supreme
Court on a grant of certification. In re Pantano, 429 N.J.
Super. 478, 486-90 (App. Div.), certif. granted, 214 N.J. 235
(2013); cf. Mosby v. Devine, 851 A.2d 1031, 1047-48 (R.I. 2004)
(rejecting a challenge under Rhode Island's constitution); but
cf. Moore v. Madigan, 702 F.3d 933, 941-42 (7th Cir. 2012)
(majority opinion invalidating an Illinois law prohibiting the
carrying of handguns in public places without allowing for
issuance of permits on a showing of proper cause), reh'g en banc
denied, 708 F.3d 901 (7th Cir. 2013) (over the dissent of four
judges).
Our discussion of the Second Amendment challenge is
informed by the foregoing persuasive, albeit non-binding,
precedents. In re Contest of Nov. 8, 2011 Gen. Election of
Office of N.J. Gen. Assembly, 210 N.J. 29, 45 (2012). And, for
the reasons that follow, we conclude that New Jersey's law does
not violate the Second Amendment.
B. The Right
The Second Amendment provides: "A well regulated Militia,
being necessary to the security of a free State, the right of
34 A-3704-11T4
the people to keep and bear Arms, shall not be infringed." U.S.
Const., amend. II. There is no longer any serious question that
"the Second Amendment right is fully applicable to the States"
and their political subdivisions; a majority of the United
States Supreme Court concluded that it is in McDonald v. City of
Chicago, ___ U.S. ___, ___, 130 S. Ct. 3020, 3026, 177 L. Ed. 2d
894, 903 (2010).19 There is no question that the Second
Amendment codifies a pre-existing individual right that is
neither dependent upon membership in the militia nor
"unlimited"; that was resolved in District of Columbia v.
Heller, 554 U.S. 570, 580-81, 598-600, 603, 610, 626, 128 S. Ct.
2783, 2790-91, 2800-04, 2807-08, 2816-17, 171 L. Ed. 2d 637,
650-51, 661-62, 664-65, 668, 678 (2008).
1. The Narrow Holdings in Heller and McDonald
The questions before the Court in Heller and McDonald were
narrow, and their holdings are as well. Heller involved
challenges to the District of Columbia's laws effectively
19
The only question is whether the states and their political
subdivisions are bound by the Second Amendment through the
Fourteenth Amendment's Privileges or Immunities Clause as
Justice Thomas concluded, or through its Due Process Clause, as
the plurality concluded. Id. at ___, 130 S. Ct. at 3058-59, 177
L. Ed. 2d at 938-39 (Thomas, J., concurring). Justice Scalia
also concurred but wrote only to address a point raised in
dissent. Id. at ___, 130 S. Ct. at 3050, 177 L. Ed. 2d at 929
(Scalia, J., concurring).
35 A-3704-11T4
"ban[ning] the possession of handguns in the home," and McDonald
involved challenges to "similar" laws of the City of Chicago and
one of its suburbs. McDonald, supra, ___ U.S. at ___, 130 S.
Ct. at 3026, 177 L. Ed. 2d at 903.
Adopting the "original understanding" of the Second
Amendment in Heller, the Court held that "the District's ban on
handgun possession in the home violates the Second Amendment, as
does its prohibition against rendering any lawful firearm in the
home operable for the purpose of immediate self-defense." 554
U.S. at 635, 128 S. Ct. at 2821-22, 171 L. Ed. 2d at 683-84. In
McDonald, the Court held that the Second Amendment right
"recognized in Heller" is applicable to the states and described
it as "the right to possess a handgun in the home for purpose of
self-defense." ___ U.S. at ___, 130 S. Ct. at 3050, 177 L. Ed.
2d at 929 (emphasis added).
The Supreme Court also linked the Amendment's protection to
the home when explaining why the District's laws could not
withstand scrutiny under any standard applied to enumerated
rights. Heller, supra, 554 U.S. at 628, 128 S. Ct. at 2817-18,
171 L. Ed. 2d at 679. The Court reasoned that the home is the
place "where the need for defense of self, family, and property
is most acute" and that the District's laws made "it impossible
for citizens to use [handguns] for the core lawful purpose of
36 A-3704-11T4
self-defense." Id. at 628-30, 128 S. Ct. at 2817-18, 171 L. Ed.
2d at 679-80 (emphasis added) (quoted in part in McDonald,
supra, ___ U.S. at ___, 130 S. Ct. at 3036, 177 L. Ed. 2d at
914-15).
2. The Broad Reasoning Supporting the Narrow
Holdings in Heller and McDonald
Despite the narrow holdings, the Court's reasoning in
Heller and McDonald suggests that the Second Amendment's
protection extends beyond the home. In considering the
Amendment's text as it would have been understood by the voters
approving it, the historical background, and the 19th century
understanding of the Amendment's scope,20 id. at 576-619, 128 S.
Ct. at 2788-2812, 171 L. Ed. 2d at 648-74, the Court discerned
that the individual right protected is a right "to possess and
carry weapons in case of confrontation"; the "central component"
of which is "self-defense"; a right "to bear arms for defensive
purposes"; and a right "to use arms for self-defense." Id. at
592, 599, 602, 672, 128 S. Ct. at 2797, 2801, 2803, 2811, 171 L.
Ed. 2d at 657, 662-63, 672; see also id. at 599, 128 S. Ct. at
2801, 171 L. Ed. 2d at 662 (noting at the time the Amendment was
20
The Court explained that 19th century understandings of the
Second Amendment's scope are informative on the "original"
understanding because they reflect "the public understanding of
a legal text in the period after its enactment." Id. at 605,
128 S. Ct. at 2805, 171 L. Ed. 2d at 665.
37 A-3704-11T4
adopted "most undoubtedly thought [the right] even more
important for self-defense and hunting" than for membership in
the militia) (emphasis added).
In McDonald, the Court referred to Heller's broad
reasoning. Indeed, in the opening paragraph Justice Alito
states that the Heller Court held that the "Second Amendment
protects the right to keep and bear arms for the purpose of
self-defense." ___ U.S. at ___, 130 S. Ct. at 3026, 177 L. Ed.
2d at 903. Elsewhere Justice Alito stated, "the Second
Amendment protects a personal right to keep and bear arms for
lawful purposes, most notably for self-defense within the home."
Id. at ___, 130 S. Ct. at 3044, 177 L. Ed. 2d at 922 (emphasis
added); cf. id. at ___, 130 S. Ct. at 3050, 177 L. Ed. 2d at 929
(Justice Alito's narrower description of the "right recognized
in Heller," which is quoted above).
3. The Threshold Question Raised by the Court's
Narrow Holdings and Broader Reasoning
Several courts considering challenges to laws that
restrict the carrying of handguns outside the home have
identified a threshold question — whether the Second Amendment
as interpreted in Heller and McDonald protects any conduct in
the public sphere. They either reached different conclusions or
avoided the question by assuming the Amendment applies.
38 A-3704-11T4
Declining to assign any greater significance to Heller and
McDonald than the narrow holdings require, Maryland's High Court
has upheld that State's law conditioning issuance of permits
authorizing public carrying of handguns on a showing of "good
and substantial reason" on the ground that it has no application
to conduct in the home. Williams, supra, 10 A.3d at 1177
(noting that "[i]f the Supreme Court, in this dicta, meant its
holding to extend beyond home possession, it will need to say so
more plainly").
In contrast, focusing on the Court's broad reasoning in
Heller and McDonald, the Seventh Circuit has concluded the right
to "bear arms for self-defense" recognized in Heller is as
important outside the home as inside." Moore, supra, F.3d at
935-36, 942. The majority concluded that Illinois' unique and
absolute ban against carrying in public, applicable to all but
law enforcement officers and guards, went too far. Id. at 941-
42.
Other courts, addressing carry permits issued only on a
particularized showing of need to have one in public places for
self-defense, have left the question unresolved. They have
concluded that uncertainties about whether and how the Second
Amendment right applies outside the home left by Heller and
McDonald warrant caution. They have assumed there is a right to
39 A-3704-11T4
carry a handgun outside the home in the event of an encounter
warranting its defensive use, and rejected challenges to these
laws. These courts have rejected the challenge on the ground
that a law conditioning the issuance of a carry permit on a
showing of need is not inconsistent with or does not
impermissibly burden the right. Drake, supra, 724 F.3d at 429-
30, 433; Woollard, supra, 712 F.3d at 874, 876; Kachalsky,
supra, 701 F.3d at 89, 93-94; see also United States v.
Masciandaro, 638 F.3d 458, 475 (4th Cir.), cert. denied, ___
U.S. ___, 132 S. Ct. 756, 181 L. Ed. 2d 482 (2011).21
21
In Masciandaro, the court described the open questions and its
approach as follows:
There may or may not be a Second
Amendment right in some places beyond the
home, but we have no idea what those places
are, what the criteria for selecting them
should be, what sliding scales of scrutiny
might apply to them, or any one of a number
of other questions. . . . The notion that
"self-defense has to take place wherever [a]
person happens to be," Eugene Volokh,
Implementing the Right to Keep and Bear Arms
for Self-Defense: An Analytical Framework
and a Research Agenda, 56 UCLA L. Rev. 1443,
1515 (2009), appears to us to portend all
sorts of litigation . . . . The whole
matter strikes us as a vast terra incognita
that courts should enter only upon necessity
and only then by small degree.
[638 F.3d at 475.]
40 A-3704-11T4
The majority in Heller recognized it was leaving many
questions unresolved. Justice Scalia explained, this "first in-
depth examination of the Second Amendment," should not be
"expect[ed] to clarify the entire field." Heller, supra, 554
U.S. at 635, 128 S. Ct. at 2821, 171 L. Ed. 2d at 683. The
reasons for caution cut in both directions — a risk of extending
the Second Amendment right beyond what the Heller Court
intended, United States v. Skoien, 614 F.3d 638, 640 (7th Cir.
2010) (en banc), cert. denied, ___ U.S. ___, 131 S. Ct. 1674,
179 L. Ed. 2d 645 (2011), and a risk of reading Heller's
discussion of the limited nature of the right too broadly and
thereby improperly limiting Heller's intended scope, United
States v. Marzzarella, 614 F.3d 85, 91 (3d Cir. 2010), cert.
denied, ___ U.S. ___, 131 S. Ct. 958, 178 L. Ed. 2d 790 (2011).
We agree that the principle of "constitutional avoidance" favors
leaving constitutional issues that need not be decided for
another day. Masciandaro, supra, 638 F.3d at 475.
Based upon the broad reasoning of Heller and McDonald, we
think the Second Amendment right to carry a handgun for the
purpose of lawful self-defense exists or extends beyond the
home. Nevertheless, we have no reason to decide that question.
We are confident that New Jersey's "justifiable need" standard
41 A-3704-11T4
would not impermissibly burden the right. We can reject this
challenge to the carry permit law on that ground.
Our conclusion that the "justifiable need" requirement is
permissible rests on the Court's discussion of the limitations
that are consistent with the original meaning of the Second
Amendment.
4. Limitations on the Right
As the Supreme Court explained, "Like most rights, the
right secured by the Second Amendment is not unlimited."
Heller, supra, 554 U.S. at 626, 128 S. Ct. at 2816, 171 L. Ed.
2d at 678. The Amendment's scope is defined by the limitations
and the license taken together. The Second Amendment right and
other "[c]onstitutional rights are enshrined with the scope they
were understood to have when the people adopted them, whether or
not future legislatures or (yes) even future judges think that
scope too broad." Id. at 634-35, 128 S. Ct. at 2821, 171 L. Ed.
2d at 683. The Amendment's scope is a "product of an interest
balancing by the people," a balancing reflecting the
limitations, as well as the protections, that were understood at
the time of adoption — 1791. Id. at 635, 128 S. Ct. at 2821,
171 L. Ed. 2d at 683.
The Court did not attempt to define the complete or entire
"product" of the original interest balancing. Instead it
42 A-3704-11T4
explained, "[w]hatever else [the Amendment] leaves to future
evaluation, it surely elevates above all other interests the
right of law-abiding, responsible citizens to use arms in
defense of hearth and home." Id. at 635, 128 S. Ct. at 2821,
171 L. Ed. 2d at 683 (emphasis added).
The Court's description of the "product" of original
balancing includes two categorical limitations on the
Amendment's scope that the Court deemed part of the original
meaning. The irresponsible and the non-law abiding are excluded
from the Amendment's protection, wherever they may be, even in
the home. Indeed, the Court recognized the permissibility of
these categorical exclusions of persons by including modern laws
applicable to felons and the mentally ill in a partial listing
of longstanding measures the Court declared to be "presumptively
lawful." Id. at 626-27 & 627 n.26, 128 S. Ct. at 2816-17, 171
L. Ed. 2d at 678.
The Court identified other limitations similarly understood
to be part of the pre-existing right. On its understanding of
the original meaning, the Heller Court concluded that from the
time preceding its adoption through the 19th century, the Second
Amendment was not understood to be "a right to keep and carry
any weapon whatsoever in any manner whatsoever and for whatever
purpose." Heller, supra, 554 U.S. at 626, 128 S. Ct. at 2816,
43 A-3704-11T4
171 L. Ed. 2d at 678, (quoted, in part, in McDonald, ___ at ___,
130 S. Ct. at 3047, 177 L. Ed. 2d at 926).
The Court went on to address limitations understood to
leave some weapons, some manners of carrying them, and some
purposes for carrying them outside the scope of the Amendment's
prohibition. The conclusions the Court drew based on laws in
place around 1791 provide some guidance for courts considering
challenges to the modern-day laws. (We use the phrase "around
1791" as a shorthand for the years before and after 1791 that
the Court deemed informative to the original understanding.)
With respect to "bearable" weapons, the Court concluded the
Amendment protects those in common use at the time but not those
"unusual" or "dangerous" weapons "not typically possessed by
law-abiding citizens for lawful purposes." Heller, supra, 554
U.S. at 625-27, 128 S. Ct. at 2816-17, 171 L. Ed. 2d at 677-79.
Thus, the protection was not understood to extend to the
keeping, carrying or using of weapons that were deemed
"dangerous" or "unusual," in the sense that they were not
typically used by the "law-abiding" and "responsible" for
"lawful purposes."
Importantly, however, the Court looked to modern-day
preferences in weapons in addressing the District of Columbia's
restrictions on handguns. Characterizing the claim "that only
44 A-3704-11T4
those arms in existence in the 18th century are protected" as
one "bordering on the frivolous," the Court concluded that the
Amendment's protection "extends, prima facie" to "all
instruments that constitute bearable arms, even those that were
not in existence at the time." Id. at 582, 128 S. Ct. at 2791-
92, 171 L. Ed. 2d at 651. In invalidating the District's laws
effectively banning operable handguns from the home, the Court
focused on the current popularity of handguns as the weapon of
choice for self-defense. The Court did so with reference to
evidence on the current popularity of handguns, not their
popularity around 1791. Id. at 629-30, 128 S. Ct. at 680, 171
L. Ed. 2d at 2818-19; see id. at 628, 128 S. Ct. at 2818, 171 L.
Ed. 2d at 679 (quoting Parker v. District of Columbia, 478 F.3d
370, 400 (D.C. Cir. 2007) (a case relying on Gary Kleck & Marc
Gertz, Armed Resistance to Crime: The Prevalence and Nature of
Self-Defense with a Gun, 86 J. Crim. L. & Criminology 150, 182-
83 (1995), which addresses modern-day preferences to support the
assertion)). We take this to mean that present-day
considerations are relevant to interpretation of the original
understanding — at least in this context of defining the class
of bearable weapons that may be kept, carried and used.
With respect to limitations on the purpose — in our view,
something that is only understandable with reference to the uses
45 A-3704-11T4
or goals that are objects of the "purpose" — the Court
consistently referred to protected purposes as "lawful" and not
"unlawful." In addition to the lawful defensive uses of weapons
discussed in subsection 5 of this Part of our opinion, the Court
identified no lawful purposes other than hunting and training.
Id. at 604, 128 S. Ct. at 2804, 171 L. Ed. 2d at 665.
The only unprotected purposes and uses the Court recognized
were those in furtherance of crimes and the "indiscreet firing
of guns" in one city on specified dates around New Year's, which
the Court concluded would not have been applied to punish one
who fired in self-defense and that, even if it had been, the
minimal sanctions for violation would not deter one from acting
in necessary self-defense. Id. at 632-33, 128 S. Ct. at 2820,
171 L. Ed. 2d at 681-82.22
Most pertinent here, the Court also provided examples of
limitations on the "manner" of carrying and using firearms in
public places, originally understood to be part of the enshrined
right. Immediately following its assertion about limitations on
the manner and purposes of arming oneself that are part of the
22
While possession of a handgun without a carry permit where one
is required is a second-degree crime, N.J.S.A. 2C:39-5b, as
discussed in Part III, A, 2, a defense of self-defense is
available where one arms oneself and fires to repel an imminent
threat. Harmon, supra, 104 N.J. at 206-07.
46 A-3704-11T4
original meaning, the Court stated: "[f]or example, the majority
of the 19th century courts to consider the question held that
prohibitions on carrying concealed weapons were lawful under the
Second Amendment or state analogues." Id. at 626, 128 S. Ct. at
2816, 171 L. Ed. 2d at 678; see also Robertson v. Baldwin, 165
U.S. 275, 281-82, 17 S. Ct. 326, 329, 41 L. Ed. 715, 717 (1897)
(observing in dicta that "the right of the people to keep and
bear arms . . . is not infringed by laws prohibiting the
carrying of concealed weapons").
As previously noted, in the first quarter of the 20th
century, a New Jersey court joined the courts rejecting a Second
Amendment challenge to a concealed weapons ban, which applied
absent a carry permit issued on a showing of need. Angelo,
supra, 3 N.J. Misc. at 1014-15 (quoted in Part III, B above);
cf. Burton, supra, 53 N.J. at 100-06 (concluding the Amendment
has no relevance to state laws — an interpretation now
foreclosed by McDonald).
We take the Heller Court's recognition of the acceptance of
prohibitions against concealed carrying as an indication that
regulation of the manner of carrying bearable arms in public
places — at least the concealed carrying — was understood to be
part of the right. In Kachalsky, the Second Circuit reached
that conclusion after an extensive review of laws in place
47 A-3704-11T4
around 1791. 701 F.3d at 89-91, 94-96. One need not agree with
that court's analysis of every law discussed to agree with its
conclusion that "state regulation of the use of firearms in
public was 'enshrined with[in] the scope' of the Second
Amendment when it was adopted." Id. at 96 (quoting Heller,
supra, 554 U.S. at 634, 128 S. Ct. at 2821, 171 L. Ed. 2d at
683); accord Drake, supra, 724 F.3d at 433 (concluding that the
"'justifiable need' standard fits comfortably within the
longstanding tradition of regulating the public carrying of
weapons for self-defense"); Masciandaro, supra, 638 F.3d at 470
(observing that rights to firearms outside the home "have always
been more limited," because of the implications for public
safety).
The Kachalsky court's conclusion is also supported by
Heller. The Supreme Court has made clear that there are
permissible limitations other than those it expressly identified
in Heller and McDonald as being within the Amendment's original
meaning. In both opinions, the Court stressed that it should
not be understood to "cast doubt on longstanding prohibitions on
the possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of arms."
48 A-3704-11T4
Heller, supra, 554 U.S. at 626-27, 128 S. Ct. at 2816-17, 171 L.
Ed. 2d at 678; McDonald, supra, ___ U.S. at ___, 130 S. Ct. at
3047, 177 L. Ed. 2d at 926.
Pertinent to the "justifiable need" component of the carry
permit law, the Court's partial list approves absolute
prohibitions of bearing firearms, without regard to the need to
use defensive force, in certain public places that are
"sensitive" — schools and government buildings. General
prohibitions of that sort are not based on characteristics of
the person carrying them. Thus, the Court's determination that
bans on carrying in sensitive places are presumptively lawful
had to be based on the Court's recognition that the Amendment
was understood to allow the government to protect against
dangers posed by any person possessing a firearm in these
"sensitive" public places, despite the obvious and absolute
impact on the use of a firearm defensively in those places.
Because of the importance the Court placed on the Amendment's
original meaning, we conclude the Court must have deemed such
regulation in "sensitive" public places consistent with the
original meaning.
True, laws like New York's, Maryland's and New Jersey's,
which condition issuance of carry permits on a particularized
showing of need have no precise models in laws in existence
49 A-3704-11T4
around 1791 or in the Heller Court's list of presumptively
lawful measures. See Kachalsky, supra, 701 F.3d at 90 n.11, 91.
But the Heller Court stressed that it intended its list to
illustrate, not exhaustively define, the class of laws entitled
to a presumption of validity. Heller, supra, 554 U.S. at 627
n.26, 128 S. Ct. at 2817, 171 L. Ed. 2d at 678. As others have
noted, the list is neither a "talismanic formula," Kachalsky,
supra, 701 F.3d at 90 n.11, nor part of a "comprehensive code,"
Skoien, supra, 614 F.3d at 640.
Moreover, Heller makes it clear that the role of
legislatures did not end with the Amendment's adoption in 1791.
As others have noted, Heller's partial listing of "presumptively
lawful" measures includes modern-day laws consistent with the
original meaning that do not parrot laws in place around 1791.
United States v. Booker, 644 F.3d 12, 23-25 (1st Cir.) (noting
that 20th century laws disqualifying felons, included in
Heller's list of presumptively lawful laws, likely bear little
resemblance to their historical predicates), cert. denied, ___
U.S. ___, 132 S. Ct. 1538, 182 L. Ed. 2d 175 (2012); see also
id. at 24 n.13 (noting that the "historical pedigree of laws
disarming those convicted of a crime is subject to substantial
debate among scholars"); accord Skoien, supra, 614 F.3d at 640-
41. Moreover, the plurality opinion in McDonald stated,
50 A-3704-11T4
"incorporation [of the Second Amendment through the Due Process
Clause] does not imperil every law regulating firearms," ___
U.S. at ___, 130 S. Ct. at 3047, 177 L. Ed. 2d at 926, and it
explained that incorporation "by no means eliminates" a state's
"ability to devise solutions to social problems that suit local
needs and values." ___ U.S. at ___, 130 S. Ct. at 3046, 177 L.
Ed. 2d at 925.
Taking the statements, the holdings and the Court's
reasoning on the enshrined limitations together, we conclude
that, since the Amendment's adoption, legislators have been
permitted to address current problems through regulations not
inconsistent with or directed at suppressing or effectively
extinguishing the right. The Court suggested as much when it
stressed that its invalidation of the District of Columbia's law
making it impossible to use a handgun for self-defense in the
home should not be understood to suggest "the invalidity of laws
regulating the storage of firearms to prevent accidents."
Heller, supra, 554 U.S. at 632, 128 S. Ct. at 2820, 171 L. Ed.
2d at 681 (emphasis added). The Court had not discussed any
historical predicates for laws designed to prevent accidental
discharge of a firearm in the home or include such measures in
its illustrative list of presumptively lawful measures. We take
this as an indication that despite the absence of any direct
51 A-3704-11T4
model in older laws, measures short of total bans designed to
prevent accidental injuries with firearms are permissible, even
in the home where the need for lawful defensive use is "most
acute."
Finally, Heller's closing passage must be understood to
leave room for a continuing role for legislatures. There, the
Court acknowledged the problem of "handgun violence" in this
country and explained that the "enshrinement of constitutional
rights" takes some policy choices for dealing with gun violence
"off the table" — "includ[ing] the [option of an] absolute
prohibition of handguns held and used for self-defense in the
home." Id. at 636, 128 S. Ct. at 2822, 171 L. Ed. 2d at 684.
Nevertheless, the Court stressed that "[t]he Constitution leaves
. . . a variety of tools for combating" handgun violence
"including some measures regulating handguns." Ibid. The Court
left identification of the permissible tools for the future,
without providing any specific guidance beyond a cross-reference
to its partial listing of "presumptively lawful" measures.
Ibid.
5. The Standard of Scrutiny
For the purpose of resolving this Second Amendment
challenge before us, we are assuming that the Second Amendment
protects the right of law-abiding and responsible citizens
52 A-3704-11T4
(those protected by the Amendment under Heller), to carry a
handgun (a firearm protected by the Amendment under Heller), in
public places for lawful defensive use (the only protected
purpose for carrying a handgun under Heller in public places
where the obligation to show justifiable need pertains, N.J.S.A.
2C:39-5, -6). On those assumptions, we conclude that
intermediate scrutiny is the proper measure of the validity of
this component of New Jersey's carry permit law.
Heller strongly suggests that one of "the standards of
scrutiny that [the Court has] applied to enumerated
constitutional rights" should be employed in determining whether
a law regulating firearms goes too far. 554 U.S. at 628, 128 S.
Ct. at 2851, 171 L. Ed. 2d at 714. And the Court effectively
narrowed the potentially applicable standards to strict and
intermediate scrutiny by concluding that the rational basis test
"could not be used to evaluate the extent to which a legislature
may regulate a specific, enumerated right, be it freedom of
speech, the guarantee against double jeopardy, the right to
counsel, or the right to keep and bear arms." Id. at 628 n.27,
128 S. Ct. at 2817, 171 L. Ed. 2d at 679.
With respect to the bases for selecting between strict and
intermediate scrutiny, the Heller Court avoided that
constitutional question by noting the District of Columbia laws
53 A-3704-11T4
at issue would not pass muster under either. 554 U.S. at 628-
29, 128 S. Ct. at 2817-19, 171 L. Ed. 2d at 679-80.
Consequently, from Heller, we know little more than that a law
will not pass intermediate or strict scrutiny if it effectively
bans an "entire class of 'arms' that is overwhelmingly chosen by
American society for . . . lawful purposes" — handguns — and
extends to the home, where the "need" for use of lawful
defensive force is "most acute." Id. at 628, 128 S. Ct. at
2817, 171 L. Ed. 2d at 679. Those were the bases for the Heller
Court's holding — that the District's law "banning from the home
'the most preferred firearms in the nation to keep and use for
protection of one's home and family,' would fail constitutional
muster." Id. at 628-29 n.27, 128 S. Ct. at 2817-18, 171 L. Ed.
2d at 679.
Each of the three federal courts of appeals that have
scrutinized laws comparable to New Jersey's "justifiable need"
standard have determined that an "intermediate" level of
scrutiny is appropriate. In selecting intermediate scrutiny,
all three courts considered Heller's reference to the "core"
right of self-defense in the home. Drake, supra, 724 F.3d at
429-30; Woollard, supra, 712 F.3d at 876; Kachalsky, supra, 701
F.3d at 93. Because we are assuming a right that extends beyond
54 A-3704-11T4
the home, we do not rely on anything special about the right in
the home.
We deem an intermediate level of scrutiny appropriate for
laws restricting only conduct in public places, because
restrictions on the right imposed in the interest of safety and
order in public places have always been understood to be part of
the Amendment's scope. Kachalsky, supra, 701 F.3d at 96-97
(determining that state regulation of firearms in public was
enshrined with the Amendment and favored intermediate scrutiny);
Woollard, supra, 712 F.3d at 876 (same, noting that "'outside
the home, firearm rights have always been more limited, because
public safety interests often outweigh individual interests in
self-defense'" (quoting Masciandaro, supra, 638 F.3d at 470)).
After all, the Heller Court identified absolute bans against
possession of firearms in some "sensitive" public places as
presumptively lawful and illustrated the limited nature of the
right by noting the widespread acceptance of concealed carrying
bans by 19th century courts. 554 U.S. at 626-27, 627 n.26, 128
S. Ct. at 2816-17, 171 L. Ed. 2d at 678.
As the Fourth Circuit explained in Masciandaro, 638 F.3d at
470-71: "One of the principal [19th century] cases relied upon
in Heller upheld a state concealed carrying ban after applying
55 A-3704-11T4
review of a decidedly less-than-strict nature. See Nunn v.
State, 1 Ga. 243, 249 (1846)." In Nunn, the court concluded,
a law which is merely intended to promote
personal security, and to put down lawless
aggression and violence, and to this end
prohibits the wearing of certain weapons in
such a manner as is calculated to exert an
unhappy influence upon the moral feelings of
the wearer, by making him less regardful of
the personal security of others, does not
come in collision with the Constitution.
[1 Ga. at 249.23]
In our view, the extent of the burden a law imposes on
exercise of the right is also relevant to the degree of
scrutiny. Kachalsky, supra, 701 F.3d at 93; Marzzarella, supra,
614 F.3d at 97. In Moore, the Seventh Circuit invalidated an
Illinois law that imposed "a flat ban on carrying ready to use
guns outside the home." 702 F.3d at 937, 940-42. As we
understand the decision, it is primarily based on the extremity
of the burden. The majority noted that its decision rested not
on "degrees of scrutiny" but on the state's failure to "justify
23
It is appropriate to consider here the reasoning of the 19th
century courts addressing concealed carry laws. The Heller
Court looked to the reasoning in those decisions in concluding
that the right was understood to be an individual right of self-
defense. The Court had no reason to consider those courts'
understanding of the original balance of public and individual
interests in public places, because the laws the Court was
considering in Heller involved exercise of the right in the
home. 554 U.S. at 610-14, 128 S. Ct. at 2807-10, 171 L. Ed. 2d
at 669-71.
56 A-3704-11T4
the most restrictive gun law of any of the 50 states," which
went "too far." Ibid. The court invalidated the law because
Illinois should have but failed to show more than a "rational
basis" for concluding that its "uniquely sweeping ban was
justified by an increase in public safety." Id. at 942.
In the course of its decision, the Moore court referred to
New York's proper cause requirement, noting that, unlike the
Illinois law, it recognized that "the interest in self-defense
extends outside the home." Id. at 940. In staying its mandate
to permit the legislature to draft a new law imposing
"reasonable limitations, consistent with the public safety and
the Second Amendment as interpreted in [its] opinion, on the
carrying of guns in public," id. at 942, the court provided some
guidance. Although the majority viewed the distinction between
regulations applicable in the home and public places with some
disapproval, id. at 941, it observed that other states "have
decided that a proper balance between the interest in self-
defense and the dangers created by carrying guns in public is to
limit the right to carry a gun to responsible persons rather
than to ban public carriage altogether . . . ." Id. at 940.
Thus, while the court did not say so, its description of a law
that would pass muster does not suggest that it be drafted with
an eye toward passing strict scrutiny.
57 A-3704-11T4
We have not found any post-Heller decision in which a court
concluded that a firearms law should be subjected to strict
scrutiny. Even courts considering a new law extending the
presumptively lawful categorical bar that applies to felons,
applicable wherever the person may be, to include persons
convicted of misdemeanors involving physical domestic violence,
have applied a level of scrutiny less stringent than strict.
The Seventh Circuit found no need to "get more deeply into the
'levels of scrutiny' quagmire," because "preventing armed
mayhem, is an important governmental objective" and "logic and
data establish[ed] a substantial relation between [the law] and
this objective." Skoien, supra, 614 F.3d at 642; accord Booker,
supra, 644 F.3d at 25-28.
Intermediate scrutiny is appropriate here. The
"justifiable need" component of the carry permit law does not
target protected conduct. It is an effort to protect the public
and accommodate those who have an objective reason to anticipate
a need to use a gun in self-defense. The law targets the
dangers of misuse and accidental use of handguns that
unquestionably have serious, injurious consequences wholly
outside the purview of self-defense. N.J.S.A.
2C:3-4, -5, -9. While comparisons with other enumerated,
limited rights are strained because each right is enshrined with
58 A-3704-11T4
different understandings, it is important to recognize that the
Second Amendment provides no more protection for unlawful uses
of handguns than the First Amendment does for "fighting words."
Heller, supra, 554 U.S. at 635, 128 S. Ct. at 2821-22, 171 L.
Ed. 2d at 683-84; R.A.V. v. St. Paul, 505 U.S. 377, 386, 112 S.
Ct. 2538, 2545, 120 L. Ed. 2d 305, 319-20 (1992).
A handgun, like other bearable "arms," is a tool long
understood to be equally useful for offensive as well as
defensive and unlawful as well as lawful purposes. See Heller,
supra, 554 U.S. at 581, 128 S. Ct. at 2791, 171 L. Ed. 2d at 651
(quoting accepted definitions of "arms" around 1791). And where
injury with a deadly weapon is inflicted with criminal
recklessness or negligence, it is unlawful even if unintended.
N.J.S.A. 2C:11-3, -4; N.J.S.A. 2C:3-9. Moreover, even if an
accident does not rise to the level of recklessness or
negligence, nothing in Heller suggests that accidental injury is
within the scope of the Amendment's protection. Indeed, the
Court stressed it was not suggesting that regulations concerning
gun storage in the home to prevent accidents were outside the
class of regulations the Amendment permits. Heller, supra, 505
U.S. at 632, 128 S. Ct. at 2819-20, 171 L. Ed. 2d at 681.
In applying intermediate scrutiny to New Jersey's
"justifiable need" standard and the comparable laws of Maryland
59 A-3704-11T4
and New York, the federal courts of appeals have variously
characterized the states' interests — public safety and crime
prevention — as important, substantial and even compelling.
Woollard, supra, 712 F.3d at 882 ("significant"); Drake, supra,
724 F.3d at 437 ("significant, substantial and important");
Kachalsky, supra, 701 F.3d at 97 ("compelling"). And they have
concluded that the "fit" between the adequate governmental
interest and the law need not be perfect but only "reasonable"
or "substantial." Woollard, supra, 712 F.3d at 878
("reasonable"); Drake, supra, 724 F.3d at 436-37 ("reasonable");
Kachalsky, supra, 701 F.3d at 97-98 ("substantially related
to").
In considering whether the fit between New Jersey's
"justifiable need" requirement and the law's purpose is
reasonable, the Third Circuit also considered whether New
Jersey's law burdened more conduct than "reasonably necessary"
to its substantial and important purpose. Drake, supra, 724
F.3d at 436-37. The courts considering New York's and
Maryland's comparable laws did not expressly address that aspect
of the fit. See generally Kachalsky, supra, 701 F.3d at 81;
Woollard, supra, 712 F.3d at 865.
Notably, the federal courts of appeals addressing laws like
New Jersey's have deemed it proper to defer to the state
60 A-3704-11T4
legislatures' predictive determinations. Drake, supra, 724 F.3d
at 438 (noting that restrictions subject to intermediate
scrutiny can be justified "'by reference to studies and
anecdotes,'" and also by reference to "'history, consensus, and
simple common sense'" (quoting IMS Health, Inc. v. Ayotte, 550
F.3d 42, 55 (1st Cir. 2008), abrogated on other grounds, 131
S. Ct. 2653, 180 L. Ed. 2d 544 (2011)); Kachalsky, supra, 701
F.3d at 99 (recognizing the existence of competing studies and
data and observing, "it is the legislature's job, not ours, to
weigh conflicting evidence and make policy judgments"); see also
Woollard, supra, 712 F.3d at 877, 881 (discussing statistical
evidence presented and concluding that it was the legislature's
job to weigh it).
There is no question that New Jersey's "justifiable need"
requirement burdens a law-abiding, responsible and adequately
trained person's right to carry a handgun in the event a need to
use it in lawful defense arises. The standard we apply is
fashioned to account for that admittedly significant burden on
exercise of the right and for the fact that it is imposed only
in public places, where restrictions on its exercise have always
been understood to be part of the right. On the foregoing
understandings and the guidance from the decisions of other
courts addressing similar laws, we will defer to the predictive
61 A-3704-11T4
determinations made by our Legislature from 1882 until today.
And we will consider whether the "justifiable need" component is
supported by a substantial and permissible government interest;
whether the "fit" between that governmental interest and
"justifiable need" is substantial; and whether the law burdens
no more conduct than is reasonably necessary.
For the reasons that follow, we conclude that the law
easily passes muster under that standard.
6. "Justifiable Need" Passes Muster
Without question, the New Jersey Legislature's reasons for
the carry permit law are legitimate. "There is no doubt that
preventing danger to the community is a legitimate regulatory
goal." Salerno, supra, 481 U.S. at 747, 107 S. Ct. at 2101, 95
L. Ed. 2d at 709. As the New Jersey Supreme Court has
determined, the Legislature conditioned the issuance of a carry
permit based on need on its longstanding "aware[ness] of the
dangers inherent in the carrying of handguns and the urgent
necessity for their regulation," a necessity attributable to the
"serious dangers of misuse and accidental use." Siccardi,
supra, 59 N.J. at 553, 558.
True, we do not have a record of the evidence concerning
mishap and accidents with guns the Legislature considered prior
to 1966 — when it prohibited youngsters from carrying firearms
62 A-3704-11T4
in 1882; when it prohibited concealed carrying of handguns
without a permit in 1905; and when it first conditioned issuance
of carry permits on a showing of need in 1924. It is reasonable
to infer that the Legislature was acting on considerations and
evidence similar to that considered by New York's Legislature
when it adopted a carry permit law in 1911. Kachalsky, supra,
701 F.3d at 97-98 (discussing the data).
As discussed in Part III, B of this decision, in 1966 our
Legislature and in 1971 our Supreme Court had significant
evidence relevant to the risks posed by the widespread carrying
of handguns. Thus, we know that the Legislature and the Court
considered statistical and anecdotal evidence as well as the
opinions of informed law enforcement officials and
representatives of well-established and respected organizations
promoting the legitimate and safe use of firearms.
The State at that time made a showing of the basis for the
Legislature's predictive judgment that the "justifiable need"
component of our carry permit law would minimize the risk of
serious injury resulting from misuse and accidents with handguns
in public places of this densely populated State. This
permissible government interest is substantial and significant.
And there is a substantial fit between that interest in securing
order and safety in public places and a law conditioning the
63 A-3704-11T4
issuance of carry permits on a showing of "justifiable need" for
carrying a handgun.
It is also clear that neither the goal nor the effort to
achieve it by conditioning issuance of carry permits on need was
questioned by the gun advocates who addressed the legislative
committee in 1966.
The lack of controversy in 1966 is not surprising given the
longstanding practice of regulating the carrying of firearms in
this State and elsewhere. Apparently the commonsensical and
logical consensus that "[a] gun is a potential danger to more
people if carried" outside the home, Moore, supra, 702 F.3d at
937, has long been as obvious as it is now. See Drake, supra,
724 F.3d at 438 (noting the propriety of reliance on common
sense, consensus and history).
Heller supports the conclusion that regulation of the
carrying of handguns in public places, despite some impact on
self-defense, has always been understood to be consistent with
the scope of the limited right to bear arms. The reasoning of
the 19th century state courts upholding laws regulating the
carrying of certain weapons, which the Heller Court relied upon
in discerning the individual nature of the right, was not
consistent on all points. For example, in the extent to which
the public interest could burden the individual right to arm
64 A-3704-11T4
oneself for self-defense in public places. See Kachalsky,
supra, 701 F.3d at 90-91. Although those courts disagreed on
that point and others, including the relevance of militia
membership and the applicability of the Second Amendment to the
states, all but one recognized the permissibility of regulating
the exercise of the individual right to arm oneself in the event
of an occasion giving rise to a need to act defensively. Bliss
v. Commonwealth, 12 Ky. 90, 92-93 (Ky. 1822) (concluding that
the right codified in that state's constitution, which expressly
prohibited laws restricting the right, could not be restrained
in any way to serve the public interest).
More important here, those courts described the
governmental interests that were understood to permit
restriction of the right in public places. They described the
permissible restriction as those: "dictated by the safety of the
people and the advancement of public morals," State v. Reid, 1
Ala. 612, 616 (Ala. 1840); "passed to subserve the general good,
so as not to infringe the right secured, and the necessary
incidents to the exercise of such rights," Fife v. State, 31
Ark. 455, 460 (Ark. 1876); intended "to promote personal
security, and to put down lawless aggression and violence,"
Nunn, supra, 1 Ga. at 246; necessary "to counteract a vicious
state of society, growing out of the habit of carrying concealed
65 A-3704-11T4
weapons, and to prevent bloodshed and assassinations committed
upon unsuspecting persons," State v. Chandler, 5 La. Ann. 489,
489-90 (La. 1850); and "conducive to the public peace, and the
protection and safety of the community from lawless violence,"
Andrews v. State, 50 Tenn. 165, 187-88 (Tenn. 1871). A court of
this state reached the same conclusion in 1925. Angelo, supra,
3 N.J. Misc. at 1014-15 (recognizing that the Second Amendment
right is a limited right and its exercise is subject to such
conditions as the safety and welfare of the people require).
Thus, the New Jersey Legislature's longstanding recognition
of the urgent necessity for regulating the carrying of handguns
in public places is not new, unique or inconsistent with the
right as interpreted in Heller. Such regulations, at least
those falling short of extinguishing the right, were universally
understood as consistent with the limited individual right
during the period following the Second Amendment's adoption.
Kachalsky, supra, 701 F.3d at 96 (discussing New York's "proper
cause" standard and the well-established tradition of
regulations in public places enshrined with the right); see
Drake, supra, 724 F.3d at 432-34 (concluding, on similar
reasoning, that the "justifiable need" standard fits so
"comfortably" within the longstanding tradition as to qualify as
presumptively lawful).
66 A-3704-11T4
There is no basis for suspecting that the carry permit law
is hostile to the Second Amendment right. The goal of the New
Jersey Legislature's commitment to meeting the urgent necessity
of addressing violence in public places is demonstrated by its
efforts to address the problem on several fronts. One example
is the establishment of the PTC to better educate and train
local, county and State law enforcement officers. That effort
was undertaken to minimize the need for widespread carrying of
handguns in public to fend off unlawful aggressive conduct,
which poses a risk that is enhanced in densely populated public
places.
The carry permit law's training requirement is another
example. Wherever the Legislature has authorized the carrying
of handguns in public places — whether by employment-based
exemption or carry permit — the Legislature has conditioned the
license on adequate training and periodic re-qualification.
N.J.S.A. 2C:39-6j, l; N.J.S.A. 2C:58-4d. Proficiency is a
"sensibl[e]" condition imposed on exercise of the right to
minimize the risk of misuse and accident inherent in carrying
handguns in public places. As others have observed, apparently
as a matter of logic and common sense, "[a] person who carries a
gun in a public place but is not well trained in the use of
firearms is a menace to himself and others." Moore, supra, 702
67 A-3704-11T4
F.3d at 941. That assessment entails a predictive determination
that New Jersey's Legislature made long ago; and is not
questioned in this case.
The State does not deny that the "justifiable need"
requirement is designed to address the inherent danger of misuse
and accidental use by keeping the number of handguns in public
places down. Before the Third Circuit, the State argued: "'The
[standard] provides a means to determine whether the increase in
risk and danger borne by the public is justified by a
demonstrated risk and danger borne to the person seeking to
carry a handgun.'" Drake, supra, 724 F.3d at 437 (quoting
Appellees' Brief 34). But as the Second Circuit noted in
Kachalsky, this is not an "arbitrary" basis for addressing the
dangers to order and safety in public places comparable to
limiting public possession to "every tenth citizen." 701 F.3d
at 98. Rather, it is an objective basis that is substantially
related to the important interest in order and public safety and
tailored to serve it by burdening as little conduct as is
reasonably possible. Ibid.
New Jersey's carry permit allows the carrying of handguns
in public places where carry permits are required, despite the
inherent danger, only where the person has adequate training to
minimize the risk to the extent that is possible, and only where
68 A-3704-11T4
there is a reason to conclude that doing otherwise would too
heavily burden the individual right to use handguns lawfully —
in those cases where the person has an objective reason to
anticipate the need of using a handgun defensively that
distinguishes the person from others.
As discussed in Part III of this opinion, the apparent need
to use a firearm for a lawful purpose is the feature that
unifies what otherwise appears to be a rather complex list of
exceptions to the carry permit law found in N.J.S.A. 2C:39-6.
The "justifiable need" requirement serves the same purpose as
the employment-based exceptions, but does so on a case-by-case
rather than a categorical basis. Thus, those who can show an
objective reason — a reason other than a generalized concern
about becoming a crime victim — to anticipate an attack
necessitating the defensive use of a handgun can obtain a carry
permit tailored to their showing of need.
To view this limitation based on an objective showing of
need as inconsistent with the Amendment would be to seriously
misunderstand Heller. Assuming no categorical disqualification
of the firearm or the person carrying it, the Amendment protects
the right to bear arms for self-defense. As the Heller Court
implicitly recognized in noting the "need" for lawful use of
69 A-3704-11T4
defensive force in the home, the right to use lawful defensive
force has always been tied to need.
Lawful uses of defensive force are, and historically have
been, inextricably intertwined with the existence of an
objectively reasonable perception of the need to defend oneself
against an immediate threat of serious harm from an unlawful use
of force. As our Court of Errors and Appeals explained long
ago, "[t]he 'right of self-defense has always been regarded as
founded on necessity . . . .'" Brown v. State, 62 N.J.L. 666,
708 (E. & A. 1899) (quoting 1 Edward Hyde East, A Treatise of
the Pleas of the Crown, 293 (1803)). It is a right to protect
oneself "'from such serious bodily harm as would give him a
reasonable apprehension that his life was in immediate danger.'"
Ibid. (quoting 3 Sir William Oldnall Russell, A Treatise on
Crimes and Misdemeanors 208 (1809)). As Kachalsky recognizes,
there is no right of self-defense until the necessitating
circumstance presents itself. 701 F.3d at 100; see also Harmon,
supra, 104 N.J. at 208-09 (discussed in Part III, C).
In upholding laws conditioning issuance of carry permits on
need, the Second, Third and Fourth Circuits have recognized:
that the laws limit the ability to arm one's self for the
purpose of self-defense; that there is presently conflicting
data on the danger and benefits of widespread carrying of
70 A-3704-11T4
handguns in public places; and that the laws burden but do not
absolutely bar the conduct. Drake, supra, 724 F.3d at 439;
Woollard, supra, 712 F.3d at 880-81; Kachalsky, supra, 701 F.3d
at 98-100. Each of those courts found the state's interest
sufficiently important and the fit between the need-based
standard and the interest in order and safety in public places
adequate to pass muster under the intermediate level of scrutiny
they applied. The Third Circuit went further and determined
that the conditioning of carry permits on "justifiable need" did
not burden more conduct than reasonably necessary to serve the
State's purpose.
We see absolutely no basis for reaching a different
conclusion here. As interpreted in Heller, the Second Amendment
protects lawful, not unlawful uses of firearms. In the public
places where a carry permit is required under the laws of this
State, the only lawful use of a handgun is lawful self-defense.
In our view, "justifiable need" accommodates that right in a
manner that is wholly compatible with the right of self-defense.
The Amendment does not protect conduct resulting in
unlawful injury just because the injury is inflicted with a
protected weapon. Where the result of an accidental use or
misuse of defensive force is injury to someone who is not posing
an immediate threat of unlawful use of injurious force, the
71 A-3704-11T4
injurious conduct, if rising to the level of criminal
recklessness or negligence, is an unlawful infliction of injury,
whether or not the shooter intended to injure. N.J.S.A. 2C:11-
4a(1), b(1); N.J.S.A. 2C:12-1a(2), b(3)-(4); N.J.S.A. 2C:3-4,
-5, -9.
The risk of reckless and negligent injury is minimized but
not eliminated with training, even with training like that
required in New Jersey, which requires that the applicant
demonstrate knowledge of the law as well as proficiency in the
handling of a gun. N.J.A.C. 13:54-2.4; see generally Woollard,
supra, 712 F.3d at 879-80 (discussing increased risks when the
carrying of handguns in public places is widespread, identified
by Maryland, which included escalation of force in
confrontations and the confusion generated when multiple parties
in a confrontation are armed). Unanticipated confrontations
require split-second assessments under stressful circumstances.
See Siccardi, supra, 59 N.J. at 551-52 (noting law enforcement
officer's claim that an attack happens so quickly that in order
to use a concealed weapon the victim does not have much time);
see also Governor's Reconsideration and Recommendation
Statement, Assembly No. 940, L. 1982, c. 154 (discussed in Part
III, A, 2 above).
72 A-3704-11T4
It is true that the "justifiable need" requirement does not
accommodate the interest in use of a handgun defensively to fend
off a random attack in a public place. But that is also true of
random attacks that occur in "sensitive" public places where
laws banning possession of firearms are, under Heller,
presumptively lawful. While the "justifiable need" requirement
has implications beyond schools and government buildings, one
who has an objective reason to anticipate an unavoidable attack
can obtain a carry permit.
The question comes down to whether New Jersey law, in
excluding an accommodation for random attacks in public, has
burdened the right of self-defense too much. Given the limited
nature of this enumerated right, restricted as it has always
been by reasonable regulations addressing the carrying of
firearms in public places (adopted in the interest of public
order and safety), we do not think the Amendment requires New
Jersey to allow every law-abiding, responsible and trained
person to carry a handgun in public absent "justifiable need."
The Legislature, long ago, made the predictive judgment
that the widespread carrying of handguns in public places where
a carry permit is required would not be consistent with public
safety because of the inherent danger it poses. Other state
legislatures have made the same determination. And we cannot
73 A-3704-11T4
conceive of any action the Legislature could take to address
that inherent danger in a manner more accommodating to the right
to bear arms in public for lawful self-defense. The alternative
to requiring a showing of "justifiable need" is widespread
carrying of handguns, which would not address the problem at
all. Siccardi, supra, 59 N.J. at 558.
In McDonald, the plurality indicated that states are not
deprived of their ability, within the Amendment's limits, "to
devise solutions to social problems that suit local needs and
values." ___ U.S. at ___, 130 S. Ct. at 3046, 177 L. Ed. 2d at
925. We cannot conclude that the Amendment or the Court's
recent decisions require this State to dismantle its statutory
scheme addressing the risks of misuse and accidental use in
public places devised long ago and developed over many years.
This scheme is crafted to burden the exercise of the right to
use handguns for lawful purposes as little as possible, without
abandoning this effort to maintain order and safety in public
places.
There is one final argument that must be addressed, which
was not raised in Drake. These applicants argue that in
excepting certain retired officers from making a showing of
"justifiable need" to carry a handgun, the Legislature has
74 A-3704-11T4
undermined the substantiality of its objective. Admittedly, the
argument has some facial appeal.
In Part III, A, 4 of this opinion, we discussed the
distinctions between the pre-retirement duties and carrying
privileges of retirees who are eligible and ineligible for these
special permits. Only those who served full-time and regularly
in designated law enforcement agencies and had broad police
powers and unlimited carrying privileges are eligible. As
previously discussed, AIU officers work for the fire department,
and have limited carrying privileges, N.J.S.A. 2C:39-6a(8), and
police powers, N.J.S.A. 40A:14-7.1d.
In Part III, A, 4, we also discuss that Congress, in
adopting LEOSA, recognized that retired officers face dangers of
retaliation that are different than those faced by others and
that, by virtue of experience and training, they are better able
than others to address them. While the quality of Congress'
predictive judgment is not readily apparent, we cannot conclude
that the New Jersey Legislature was so far off the mark in
relieving retirees from full-time and regular service as police
officers of the obligation of showing "justifiable need" or that
its determination undermines the substantiality of the
governmental interest in otherwise limiting the right to carry
firearms in public places to those private persons who
75 A-3704-11T4
demonstrate "justifiable need." The fact that the Legislature
has determined that retirees who served full-time in jobs that
warranted their possession of firearms at all times, whether or
not on duty, have a reason for needing a handgun that carries
over into retirement is not a reason to view the "justifiable
need" requirement with a different lens. Presumably, it is a
matter the Legislature and Executive will continue to consider
as the scope of the Second Amendment right, as interpreted in
Heller and made applicable to the states in McDonald, is
clarified.
V. Equal Protection
We turn to consider the applicants' claim under the Equal
Protection Clause of the Fourteenth Amendment to the United
States Constitution. It rests upon the applicants' objection to
distinctions the Legislature has drawn between retired law
enforcement officers who are and who are not eligible for
special permits to carry handguns under subsection l of N.J.S.A.
2C:39-6.
The Equal Protection Clause prohibits states from
"deny[ing] to any person within its jurisdiction the equal
protection of the laws." U.S. Const. amend. XIV, § 1.
"[A]bsent an impact on a fundamental right or targeting of a
suspect class, a statute [withstands an equal protection
76 A-3704-11T4
challenge] 'so long as it bears a rational relation to some
legitimate end.'" Trautmann ex rel. Trautmann v. Christie, 211
N.J. 300, 304 (2012) (quoting Romer v. Evans, 517 U.S. 620, 631,
116 S. Ct. 1620, 1626, 134 L. Ed. 2d 855, 865 (1996)).
Statutory classifications that are not based on a suspect
classification and statutes that do not implicate exercise of
fundamental rights are deemed impermissible only when the law's
objectives are not legitimate or the relationship between the
permissible goal and classification is so attenuated as to be
arbitrary or irrational. City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 446-47, 105 S. Ct. 3249, 3258, 87 L. Ed. 2d
313, 324 (1985); Doe v. Poritz, 142 N.J. 1, 92 (1995).
These applicants do not contend that the distinctions drawn
in subsection l are subject to scrutiny under a standard
stricter than the rational basis test. Nor could they. Where a
Second Amendment challenge fails and there is no suspect
classification involved, as is the case here, a claim that
others similarly situated are treated differently is reviewed
only for rational basis. In Kwong v. Bloomberg, 723 F.3d 160,
170 n.19 (2d Cir. 2013), the court considered a Second Amendment
challenge to a residential handgun licensing fee, subjected the
fee to intermediate scrutiny under the Second Amendment, and
concluded it passed muster. The court concluded that in that
77 A-3704-11T4
circumstance the Equal Protection challenge to the fee required
no more than rational basis review because the Second Amendment
"analysis sufficiently" protected that right. Id. at 170
(citing Nat'l Rifle Ass'n of Am. v. Bureau of Alcohol, Tobacco,
Firearms & Explosives, 700 F.3d 185, 211-12 (5th Cir. 2012);
Hightower v. City of Boston, 693 F.3d 61, 83 (1st Cir. 2012);
Nordyke v. King, 681 F.3d 1041, 1043 n.2 (9th Cir. 2012) (en
banc), cert. denied, ___ U.S. ___, 133 S. Ct. 840, 184 L. Ed. 2d
652 (2013)).
As discussed in Part IV, B, 5, conditioning the issuance of
a carry permit on a showing of "justifiable need" survives
intermediate scrutiny under the Second Amendment. Accordingly,
this objection, based on the fact that some retired officers are
not obligated to make that showing, is properly reviewed to
discern whether there is a rational basis for the distinction.
The basis for the distinction is discussed in Part III, A, 4.
Unlike the eligible retirees, these retirees had only limited
statutory carrying privileges and statutorily limited police
powers while employed. Accordingly, their position is different
than that of the eligible officers. See Governor's
Reconsideration and Recommendation Statement, Senate No. 1480,
L. 1985, c. 150 (discussed in Part III, A, 4 of this opinion).
78 A-3704-11T4
Given the difference in the work experience, statutory
police powers, and statutory carrying privileges which are the
bases for issuance of these special permits available without a
showing of "justifiable need," the Legislature could have
reasonably concluded that retirees who served broader law
enforcement roles while employed, as a group, face a greater
risk of retaliatory violence following retirement than those
whose statutory responsibilities were limited to investigating
arson, suspicious fires and explosions. The fact that these
applicants may have exercised carrying privileges and dealt with
crimes related to arsons under investigation or detected during
the course of their work, does not make the classification
arbitrary.
The applicants also contend that they each qualify for a
special permit as a "qualified retired law enforcement officer,
as [that term] is used in the federal Law Enforcement Officers
Safety Act of 2004 [(LEOSA)], Pub. L. 108-277" and are treated
differently than those retirees who are eligible on that basis,
having served elsewhere and moved to New Jersey after retiring.
See Casaleggio, supra, 420 N.J. Super. 121, 128-29 (so
interpreting the statute).
The difficulty here is that neither applicant meets the
definition of "qualified retired law enforcement officer, as
79 A-3704-11T4
[that term] is used in the federal Law Enforcement Officers
Safety Act of 2004 [(LEOSA)], Pub. L. 108-277." Ibid. LEOSA
has been amended since 2004, and these applicants rely on
LEOSA's current definition of the term "qualified retired law
enforcement officer." That reliance is misplaced.
Based on our review of the history of this State's well-
established record of closely guarding carry permits and
subsection l's careful enumeration of eligible officers, we are
certain that the Legislature would not intend courts to construe
subsection l's reference to LEOSA to encompass any and all
expansions of LEOSA's definition of qualified retired law
enforcement officer that Congress might deem fit to adopt. See
generally In the Matter of Commitment of Edward S., 118 N.J.
118, 133-36 (1990) (discussing interpretation of statutes
incorporating a specific provision of law and concluding that
the significance of the subsequent amendments to the
incorporated law is a question of the Legislature's intent).
Congress has expanded the scope of LEOSA in ways that are
inconsistent with N.J.S.A. 2C:39-6l. Compare 108 Pub. L. No.
277 (§ 926C(c)(1),(3)(A)) (defining qualified retired law
enforcement officer to mean an individual who "before such
retirement, was regularly employed as a law enforcement officer
for an aggregate of [fifteen] years or more") with Pub. L. No.
80 A-3704-11T4
111-272 (no longer limiting the definition to those "regularly
employed as law enforcement officers" and reducing the necessary
years of aggregate service from fifteen years or more to "[ten]
years or more"); and with N.J.S.A. 2C:39-6l (limiting these
special carry permits to retired officers who "regularly" served
as a law enforcement officer before retiring from a designated
law enforcement agency).
Under LEOSA as initially adopted, fifteen years of service
as a law enforcement officer was required. Pub. L. No. 108-277,
§ 926C(c)(3). Daudelin had fifteen years of service in the AIU.
Wheeler did not. But Daudelin did not have the photographic
identification card required to meet LEOSA's definition. He had
photographic identification cards depicting him as a retired
"police captain" and an "arson captain" issued by the Newark
Police Department, but pursuant to N.J.S.A. 40A:14-7.1a, AIUs
are established within a City's fire department.24 Thus, he did
not have an identification card "issued by the agency from which
24
As a practical matter, it is unclear how a permit can be
issued based upon LEOSA qualification. That is so because a
retired officer's status under LEOSA depends, in part, upon
whether the retired officer is or is not intoxicated while in
possession of the firearm — a determination that cannot be made
when a permit is issued. See 18 U.S.C.S. § 923C(c)(6); cf.
N.J.S.A. 2C:58-3c(2) (precluding issuance of a permit to
purchase to a person who is a habitual drunkard); N.J.S.A.
2C:58-4d (requiring a person seeking a permit to demonstrate he
or she is not disqualified pursuant to N.J.S.A. 2C:58-3c).
81 A-3704-11T4
[he] retired from service." Pub. L. No. 108-277, § 926C(d)(1-
2). In short, neither is qualified under the LEOSA definition
incorporated by reference with careful precision in N.J.S.A.
2C:39-6l.
To avoid any confusion, it is worth noting that these
applicants acknowledge that Congress, by adopting LEOSA, did not
and could not constitutionally require a state to issue
documents in furtherance of this federal firearms program. See
Johnson v. N. Y. State Dep't of Corr. Servs., 709 F. Supp. 2d
178, 187 (N.D.N.Y. 2010) (relying upon Printz v. United States,
521 U.S. 898, 117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997), which
holds that Congress may not constitutionally compel state
officers to take action to implement a federal program, and
concluding that Congress could not compel states to issue
documents to implement LEOSA).25
25
Following oral argument on this appeal, the State moved to
correct the record and the applicants opposed the motion. We
reserved decision for disposition in this decision. The motion
is more aptly characterized as one to supplement the record.
The new information concerns the identification card issued to
Daudelin. Our determination based on Daudelin's identification
card is not based on that new information. It is based on the
card submitted to the trial court, included in the appendix on
appeal, and the statute authorizing the City of Newark and
others to establish AIUs in their Fire Departments, not their
Police Departments. Accordingly, the motion is denied.
82 A-3704-11T4
VI. Privileges and Immunities
The applicants also contend that subsection l of N.J.S.A.
2C:39-6 violates the Privileges and Immunities Clause of Article
IV, Section 2, Clause 1 of the United States Constitution.
Their claim is premised on the fact that subsection l makes
special permits to carry available to retired officers domiciled
in New Jersey qualified under LEOSA, but not to retired officers
domiciled elsewhere. This issue was not raised in the trial
court.
The Clause applies only to those "privileges" and
"immunities" bearing upon the vitality of the Nation as a single
entity with respect to which "the State [must] treat all
citizens, resident and nonresident, equally." Baldwin v. Fish &
Game Comm'n, 436 U.S. 371, 383-84, 98 S. Ct. 1852, 1860, 56 L.
Ed. 2d 354, 365 (1978). Appellants argue that a retired law
enforcement officer's receipt of a permit to carry a handgun in
New Jersey "would certainly facilitate obtaining employment as
an armed security officer in New Jersey."
There is no question that "pursuit of a common calling is
one of the most fundamental of those privileges protected by the
Clause." United Bldg. & Constr. Trades Council v. Mayor &
Council of Camden, 465 U.S. 208, 219, 104 S. Ct. 1020, 1028, 79
L. Ed. 2d 249, 259 (1984) (citing Baldwin, supra, 436 U.S. at
83 A-3704-11T4
387, 98 S. Ct. at 1862, 56 L. Ed. 2d at 367-68). It is also
axiomatic that "[e]very inquiry under the Privileges and
Immunities Clause 'must . . . be conducted with due regard for
the principle that the States should have considerable leeway in
analyzing local evils and in prescribing appropriate cures.'"
United Bldg. & Constr. Trades Council, supra, 465 U.S. at 222-
23, 104 S. Ct. at 1030, 79 L. Ed. 2d at 262 (quoting Toomer v.
Witsell, 334 U.S. 385, 396, 68 S. Ct. 1156, 1162, 92 L. Ed. 2d
1467, 1471 (1948)). Determinations about issuance of permits to
carry handguns in public places are certainly a matter involving
the analysis of local ills and cures.
Because this claim was not raised in the trial court and
because these officers are not in any event "qualified retired
law enforcement officers" within the meaning of that term
incorporated in N.J.S.A. 2C:39-6l, we would ordinarily decline
to consider the point not raised in the trial court.
In this case, there is an additional reason. The record is
inadequate to permit evaluation of the State's justification for
any differential treatment of retired officers domiciled in and
outside of New Jersey. See, e.g., United Bldg. & Constr. Trades
Council, supra, 465 U.S. at 223, 104 S. Ct. at 1030, 79 L. Ed.
2d at 262 (remanding the case because the record was
inadequate). For that reason, deviation from our general
84 A-3704-11T4
practice of declining to consider issues raised for the first
time on appeal would be inappropriate. Nieder v. Royal Indem.
Ins. Co., 62 N.J. 229, 234 (1973). Accordingly, we do not
address the claim.
VII. Preemption
The applicants raise an additional issue that requires only
limited discussion. They contend that they cannot be prosecuted
for violating N.J.S.A. 2C:39-5b because they are "qualified
retired law enforcement officer[s]" within the meaning of LEOSA.
As we understand their argument, the claim is that LEOSA
precludes their prosecution pursuant to N.J.S.A. 2C:39-5b for
possessing a firearm without a permit to carry. In this
circumstance, where the claim is not dependent upon state law,
incorporating LEOSA's definition as stated in a specific
iteration of that statute, current federal law applies. There
is dicta supporting the applicants' position in published
opinions. See Johnson, supra, 709 F. Supp. 2d at 187
(indicating that LEOSA "only demonstrates an intent to bar the
criminal prosecution of retired law enforcement officers who
carry concealed firearms in interstate commerce"); Casaleggio,
supra, 420 N.J. Super. at 128 (citing Johnson for that
proposition and noting that LEOSA has a limited purpose).
85 A-3704-11T4
Nevertheless, the question of whether these applicants
would be subject to prosecution for violation of N.J.S.A. 2C:39-
5b if they were to carry handguns without having obtained
permits in accordance with N.J.S.A. 2C:58-4 is not properly
before us. The disappointed applicants did not file a complaint
for a declaratory judgment in the trial court. That is the
vehicle available for a person wishing to ascertain whether a
proposed course of conduct violates the criminal law. See
Keuper v. Wilson, 111 N.J. Super. 502, 506 (Ch. Div. 1970)
(noting that "[t]he Uniform Declaratory Judgments Law has been
increasingly used in this State to obtain a determination of the
legality of a particular course of action rather than pursuing
the course of action and risking criminal prosecution").
Because neither applicant has been charged with a crime and
neither sought a declaratory judgment, their potential criminal
liability is not before us.
Affirmed.
86 A-3704-11T4
In the Matter of Application of Jonathan R. Wheeler for a Retired officer Permit to Carry a Firearm Openly and/or Concealed in the Matter of Application of George A. Daudelin for a Retired Officer Permit to Carry a Firearm Openly and/or Concealed
Combined Opinion