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Evan Nappen

Evan Nappen

Eatontown, NJ --(Ammoland.com)-  The New Jersey Supreme Court, for the first time in 45 years, will be considering Second Amendment rights. The Nappen Law Firm has filed its brief with the Supreme Court. A website version may be read here.

The brief strikes at the heart of New Jersey’s gun control scheme. NJS 2C:39-5b Unlawful Possession of Weapons-Handguns reads as follows:

Any person who knowingly has in his possession any handgun, including any antique handgun, without first having obtained a permit to carry the same as provided in N.J.S.2C:58-4, is guilty of a crime of the second degree.(Emphasis added)

Nappen argues that currently, in New Jersey, individuals who possess a handgun, even in their home, without a permit to possess (so called – “permit to carry”) do so under a “presumption of illegality.” They must prove they fall under one of the “strictly construed” exemptions listed in N.J.S. 2C:39-6 to establish their innocence. (N.J.S. 2C:39-6e exempts possession in one’s residence.)

Without a permit to possess, the only way to legally possess a handgun in one’s home in New Jersey, is by exemption. Individuals, who rely on exemptions, are perpetually at risk of arrest, prosecution and having to prove facts at trial necessary to establish one’s innocence.

To be granted a New Jersey permit to possess a handgun, one must demonstrate “justifiable need.” This is an extraordinarily difficult requirement. The only way a private citizen may meet the requirement is if the applicant can;

 “specify in detail the urgent necessity for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot be avoided by means other than by issuance of a permit to carry a handgun. N.J.A.C. § 13:54-2.4.

The United States Constitution does not contain a Bill of Needs. It contains a Bill of Rights. No “need,” justifiable or otherwise, should ever be required for an individual to exercise the rights guaranteed by that document.

The average private citizen who wishes to possess a handgun in his or her home, whether for protection, target practice, hunting, collecting or any other legitimate purpose, can not meet such an absurdly burdensome need requirement. It is a defacto ban.

The justifiable need a requirement has to be struck as unconstitutional, and average citizens must to be granted  permits to possess.  Otherwise, New Jersey’s handgun possession law, N.J.S. 2C:39-5b, is itself unconstitutional because it converts a right into an exemption.  Rights may have exemptions, but rights themselves must not merely be exemptions.

About:
Evan Nappen (www.EvanNappen.com) is a criminal defense attorney who has focused on New Jersey firearms and weapons law for over 23 years. He is the author of the New Jersey Gun Law Guide. Visit his website at www.EvanNappen.com

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  • 5 User comments to “Nappen Law Firm files Second Amendment Brief with NJ Supreme Court”

    1. Kevin McGonigal on January 24, 2014 at 8:52 AM said:

      Wrong court. This suit should be in US Federal Court. Expecting a NJ court to rule that its own laws are unconstitutional is foolish. The right is a US, federal right and it is the US Federal Courts which should rule and declare that the state’s gun laws essentially nullify a US citizens Second Amendment rights if he happens to reside in NJ.

    2. Anticipate that you are correct about the NJSC. However, this isn’t a foolish tactic. As soon as that body rules the law constitutional, it will be appealed directly to the USSC tagged “URGENT”. The Court just may grant certiorari.

    3. Sometimes small steps are required to get the end result.

      Just as our rights are constantly being challenged and chipped away, it works both ways.

      Mr. Nappen knows what he is doing.

      http://www.evannappen.com/about.html

    4. vom Brunhaus on January 25, 2014 at 6:50 PM said:

      Of all the States NJ is one that needs the most attention. Its firearm laws almost make any gun owner a criminal one way or the other. In NJ there is “no self defense”. The NRA as said many times needs to put NJ at top of their list for States to go after, and stay after them until all Court remedies are exhausted. After that people just move out as many have done and are doing !

    5. It’s a pity that Nappen didn’t write the Cert Petition for Drake. He made the arguments that Gura should have made were it not for the SAF being hell bent on losing cases.

      http://CaliforniaRightToCarry.org

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