Sunday, August 1, 2010

New Jersey Gun Laws - Ripe for Challenge

Daniel Schmutter thinks New Jersey's gun laws are ripe for challenge. He should know. He is the attorney representing the Association of New Jersey Rifle and Pistol Clubs in their lawsuit against the State of New Jersey over the state's one firearm a month rationing law. He also authored amicus briefs in both the Heller and McDonald cases on behalf of Jews for the Preservation of Firearms.

In an op-ed piece in the second-largest newspaper in New Jersey, The Record, he examines what the McDonald decision means for New Jersey's restrictive firearms laws. First, he says gun control advocates who say most of the state's gun laws would pass muster because they are "reasonable restrictions" are wrong. He notes that neither Heller nor McDonald said "reasonable" gun laws are valid under the Second Amendment. Furthermore, "reasonable" is not a legal standard that offers any basis for saying a law would survive a challenge or not.

As it turns out, New Jersey gun law offers fertile ground for challenge, not merely because the state has such strict laws but because New Jersey law is exceedingly aggressive toward the law-abiding gun owner.

New Jersey’s regulatory scheme is highly unusual in that it approaches gun control by categorically banning guns and then carving out extremely limited exceptions to the prohibitions.

Thus, for example, possession of handguns is generally prohibited unless the possession falls within certain narrowly defined exemptions, such as possession inside one’s home or place of business.

This has two main effects. First, it shifts the burden of proving lawful possession to the gun owner. Second, it keeps the circumstances under which one may lawfully possess a handgun very narrow.
Schmutter asks what would happen if one were to substitute "book" for "gun" in the law.  It would force readers and book owners to make absurd contortions in order to exercise a fundamental right. By Schmutter's hypothetical example, you wouldn't be allowed to have Tolstoy's War and Peace because it was a long book and had too many pages (think restrictions on standard capacity magazines) unless you were a Russian lit scholar at Princeton or Rutgers.

He concludes,
The New Jersey Legislature must face the reality that the gun owner and the book owner alike must be treated with equal constitutional dignity. After McDonald, we now see that the emperor has no clothes.

New Jersey gun law is upside down, and if the New Jersey Legislature does not fundamentally reform its scheme of regulating guns, the courts will likely do it for them.

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