In a few states — including New Jersey — people need a license to even get a firearm to keep at home, and the police may deny such a license if they think the person poses a danger to others. This isn’t limited to getting concealed carry licenses; it applies to having a gun in the first place. And it isn’t limited to people who have been convicted of a felony or a violent misdemeanor, or even to people who have been found by a preponderance of the evidence to have committed or threatened violent acts (that’s the standard usually used for domestic restraining orders).
In the Matter of Novello (N.J. Super. Ct. App. Div. July 15) offers a striking example of how this can be used: Novello was denied the ability to get any firearm (whether handgun or long gun) because his ex-wife says he “became angry at times, slammed doors with force and caused damage,” which made her fear him. (The wife also alleged that “Novello stated that his stomach was ‘turned’ by the idea of her having a boyfriend and he was going to get a gun,” but the trial judge expressly said “that it was difficult for him to determine whether Novello had actually threatened to kill Pissucci if she dated someone else,” so it sounds like he wasn’t relying on that.) Here’s what seems to me to be the heart of the appellate court’s analysis:
[Novello] acknowledged that he and Pissucci argued at times. He admitted that, on one occasion, he slammed a door and a piece of the door stop “snapped off.” …
After hearing argument from counsel for the parties, the court rendered an opinion from the bench. The court noted that Pissucci’s behavior probably contributed “to the situation.” The court found that Novello’s relationship with Pissuci involved “a great deal of acrimony” and was “very argumentative[.]” The court stated that Novello and Pissucci
trigger each other into verbal arguments. They trigger each other into losing their temper[s]. They trigger each other so that doors are slammed. They trigger each other so that doors are slammed and broken. They trigger each other so that the wife is now fearful [that] if he gets a gun … she is going to be killed.The trial judge stated that it was difficult for him to determine whether Novello had actually threatened to kill Pissucci if she dated someone else. The judge also stated that, while Novello said that he wanted to obtain a gun to protect himself in Scotch Plains, there were “very little incidents of crime, at least incidents of violent crime” in that municipality….
The court found that the Police Chief had properly determined that issuance of a handgun purchase permit and FPIC to Novello would not be in the interest of the public health, safety or welfare [the statutory standard -EV]. In our view, the court’s finding is supported by credible evidence.
As we have explained, the testimony presented at the hearing established that Novello and his former wife have a volatile and argumentative relationship, which has at times prompted Novello to act in an angry manner. It is undisputed that Novello’s actions have included the forceful slamming of doors, which has resulted in property damage, although the damage was relatively minor. Furthermore, Novello failed to establish that he had a legitimate need for the weapon.
We are satisfied that the court’s factual findings support its conclusion that it would not be in the interest of the public’s health, safety and welfare for Novello to possess a handgun, particularly in view of his volatile relationship with his former wife.
It seems to me that the right to possess the tools needed for effective self-defense — especially if that’s seen as a constitutional right, but even if it is not — shouldn’t be lost simply because someone has lost his temper to the point of slamming doors hard. Nor should it be denied based on a government official’s discretionary judgment that this person gets too angry.
Of course, there is indeed a risk that angry people will misuse guns, with harmful or fatal results, just as there’s a risk that people who are denied guns will be unable to defend themselves, with harmful or fatal results. But the way our legal system has long dealt with this — and, I think, ought to deal with it — is through threatening punishment for violent behavior, and denying liberty to those who have been proven to have committed crimes. Occasionally getting angry, and once slamming a door so hard that it splinters, shouldn’t suffice. (Note, to the extent it matters, that while intentionally damaging another’s property, even in a minor way, is a crime, negligently damaging your own property, even if you coown it with a spouse, is not.)
It seems to me that while the Second Amendment probably doesn’t preclude nondiscretionary licensing requirements for guns — much as the Constitution doesn’t preclude requirements of getting a marriage license or a demonstration permit, if those are routinely given to all applicants who satisfy clear and constitutionally sound criteria (see PDF pp. 103-107 of this article) — it does guarantee a right to buy a gun, unless one falls within some category of people who may constitutionally be denied this right. And licensing schemes that deny the right to people who have not been convicted of any crime, but who have simply occasionally gotten quite angry, should therefore be unconstitutional. The Novello court summarily rejected the Second Amendment argument, by citing In re Dubov, 981 A. 2d 87 (N.J. Super. Ct. App. Div. 2009). But Dubov simply said that:
[T]he Court [in D.C. v. Heller] expressly indicated that its holding did not require invalidation of statutes that require a license to purchase or possess a firearm. In fact, the Court noted that “[r]espondent conceded at oral argument that he does not `have a problem with … licensing’ and that the District’s law is permissible so long as it is `not enforced in an arbitrary and capricious manner[,]‘” thus obviating the need for the Court to address the validity of the specific provisions of the District of Columbia’s gun licensing statutes. Therefore, Heller has no impact upon the constitutionality of N.J.S.A. 2C:58-3(c)(5).
This is probably correct if it simply means that the licensing requirement is constitutionally permissible. But if the New Jersey courts are taking the view that all denials of a license are constitutionally permissible, at least if they are based on a plausible judgment that the person might be a danger — even when that is based simply on past anger and door slamming — that strikes me as inconsistent with Heller‘s recognition of a constitutional right to own a gun.
yankev says:
Before he was murdered trying to defend himself and Nicole Simpson, Ronald Goldman would not have been able to establish a need for a firearm either. After he was murdered it was a bit too late.
July 19, 2010, 4:24 pmBostonShepherd says:
Of course you miss the heart of the matter … when the court let slip that “Furthermore, Novello failed to establish that he had a legitimate need for the weapon.”
“Legitimate” is really whatever the police chief has in mind, not the “interest of the public health, safety or welfare.” The chief is applying his own interpretation of the 2nd Amendment! “You don’t need one, so I’m not issuing the permit.” Wow.
Keep in mind that this is permission to purchase a firearm and not a concealed carry permit. It’s the discretion that the issuing authority, in this case the chief of police, has in approving or denying Novello’s 2nd Amendment rights that seems inconsistent with Heller.
Furthermore, is there an appeal process? If not, perhaps that violates NJ’s due process clause in the state constitution.
In my state of Massachusetts, only the “license to carry” a concealed weapon, and use of high-capacity magazines (>10 rounds) is determined in the discretion of your police chief, but not the issuance of the state Firearm ID card, governed by clear and uniform statutes, which permits you to purchase weapons and ammunition (yes, ammunition,) but not to carry concealed.
July 19, 2010, 4:33 pmohwilleke says:
The Police Chief made a fact based determination that a particular individual who may have threatened to kill his wife and at least has a clear and admitted anger management problem that has recently led to violent outbursts, during a period of active and ongoing conflict with an ex-wife, in at a time and place where he has identified no heightened self-defense risks to himself, should not be given a permit to own a gun at this time.
The reasons for concern are individualized and based on evidence of events that have actually happened, and are being made by an individual (the Police Chief) who has more experience to guide him in determining the likelihood that someone who did those things and this community is a threat at this time to his ex-wife.
This is not a lifetime, national ban of the kind that would apply if he had been convicted of a domestic violence misdemeanor, a felony, or was subject to a permanent restraining order. It is a limitation for now, in a particular place.
It isn’t proof beyond a reasonable doubt, but this isn’t subjecting the man to the full range of criminal penalties.
Does it really make sense to constitutionally forbid a state or local government from denying a right to possess a gun temporarily to someone who has demonstrated himself to be a hothead with anger and self-control issues in connection with an ongoing domestic dispute that may have involved a death threat?
Importantly, the Police Chief makes clear that he might have ruled differently if the man could have articulated a reason why he might have a particular need for self-defense, and gave no indication that he would have denied a permit even in the absence of a particular need for self-defense if the particularized evidence that the man seeking the gun permit was had an elevated probability of misusing it had not been presented.
July 19, 2010, 4:33 pmcboldt says:
– the Second Amendment probably doesn’t preclude nondiscretionary licensing requirements for guns — much as the Constitution doesn’t preclude requirements of getting a marriage license or a demonstration permit –
July 19, 2010, 4:45 pmI assume that the finding in Presser, that it is unconstitutional to require a permit for the public to assemble in order to petition for redress of grievances, has been overturned. What case holds that it is constitutional to require a permit to assemble in order to petition the government for redress?
Presser v. Illinois, 116 U.S. 252 (1886)
Houston Lawyer says:
Our rights are no where limited by what others perceive as our needs. If I have one pistol, I will likely want another. I don’t NEED that second one, but I want one and there is no reason to deny it to me.
If door slamming and threats are enough reason to deny a person his rights, I suspect that many more women than men would be denied the right to possess a gun if that rule were evenly applied.
July 19, 2010, 4:47 pmDon Miller says:
We don’t require people to present a need before exercising any of their fundamental rights.
Maybe the Police Chief in New Jersey could issue “free speech” licenses to protestors too. He could deny them to people who don’t have anything meaningful or important to say.
July 19, 2010, 4:52 pmHans Bader says:
New Jersey has a lot of strange court rulings involving family law and purported domestic violence.
The New Jersey Supreme Court once held that a restraining order could be issued against a man who had said in response to wife’s claims that she could take him to the cleaners and he could do nothing about it that, yes, he in fact could.
The court held the trier of fact was not clearly erroneous in finding this utterly vague comment to be a threat.
If the First Amendment had been raised in the case, such a ruling would plainly have violated the First Amendment, since whether speech is an unprotected threat must be reviewed de novo, not for clear error. See the Supreme Court’s ruling in Virginia v. Black and the California Supreme Court’s ruling in In re George T, 93 P.3d 1007 (Cal. 2004).
Even on clearly-erroneous review, it was a pretty strange decision.
July 19, 2010, 5:02 pmScott says:
To paraphrase Alan Gura, we don’t have a bill of needs, but instead a Bill of Rights.
July 19, 2010, 5:02 pmRobert says:
There’s a saying amongst gunnies: two is one and one is none. If your gun breaks at an inopportune time, it helps to have another around to fill in or that can be cannibalized for spare parts (if it’s of the same model) until the first is fixed.
But otherwise, I agree. Need doesn’t enter into it. The 2nd Amendment is a fundamental right, and whether or not I NEED a gun isn’t the call of some bureaucrat. Just as some bureaucrat doesn’t get to tell me whether or not I NEED to be able to comment on articles, have my own blog, or publish a book.
July 19, 2010, 5:07 pmBostonShepherd says:
I have a problem with this line of thinking:
If police chiefs were “more experienced” identifying who is or is not a threat to their communities and ex-wives, then we’d have a lot less crime, no?
Obviously, this is impossible — police chiefs aren’t likely to be more able to predict the violent behavior of Mr. Novello than anyone else. And police chiefs know this, so they err on the “safe” side and deny everyone, or almost everyone, in NJ the right to purchase an handgun. It’s TOO discretionary.
At least some sort of formal complaint against Mr. Novello made, either in a police report, with statements made under oath, etc.
Even temporary retraining orders, at least in Massachusetts, are given out like candy by the courts, and those TRO’s are grounds for total confiscation of an individual’s guns even though the TRO is without merit.
July 19, 2010, 5:22 pmcboldt says:
The way I read the OP, the issue is one of line drawing as to how one “obtains” the right to keep and bear arms (here, a license is required, in advance), and amount of process that leads to denial.
July 19, 2010, 5:32 pm- there are categories of people who may constitutionally be denied the right to keep and/or bear arms
- some judgments that the person might be a future danger are sufficient to support a constitutional denial (e.g., past criminal conviction)
Superimpose the recent Skoien decision on Professor Volokh’s scholarly endorsement of deprivation of the right as a general proposition.
A licensing system that includes a review of police reports, or school records (for fights, arguments, etc.) might provide evidence of future danger. Facts are facts, regardless of whether or not the person “beats the rap” via some luck in a judicial proceeding. Is a person who slaps his wife, but obtains a “not guilty” verdict any less of a future risk than a person who slaps his wife and cops a plea? Same conduct, just in one case, “not proven” in court.
Limaxray says:
It should be pointed out that until McDonald, there was no right to arms in the State on NJ – it will take a lot of kicking and screaming before such a right even begins to be recognised. In this state, getting caught with a firearm locked in your trunk is an automatic trip to jail, until you can prove you own it legally with a valid purpose.
July 19, 2010, 5:45 pmcboldt says:
There are a non-trivial number of automobile deaths that are caused by angry drivers. Drivers licenses are not protected by any constitution, that I am aware of. If a finding of future danger is sufficient to support a deprivation of the right to keep and bear a firearm (especially for a finding that includes “anger”), surely such a finding is sufficient to revoke and/or deny a drivers license.
I am mocking the leap from “gets angry” to “will shoot somebody if he/she has a gun.” And yet that leap is present over, and over, and over. Everybody experiences anger, to some degree. Most people, even VERY ANGRY people, draw the line in acting out short of use of deadly force.
July 19, 2010, 5:51 pmCheckEnclosed says:
If the fellow was that unhinged and violent, why not suspend his driver’s license, too. There is no express constitutional right to drive.
July 19, 2010, 5:51 pmHenry Bowman says:
That’s certainly true of long guns, but isn’t the ownership of handguns still discretionary in Massachusetts?
July 19, 2010, 6:24 pmegd says:
Presumably the same police officer denied this man his license to attend religious services due to his history of violence.
Makes sense to me.
July 19, 2010, 6:34 pmzippypinhead says:
This opinion would get a failing grade if the hypothetical showed up on a Con. Law exam at any accredited law school in the U.S., even Rutgers-Camden…
First, there’s no absolutely discussion of the applicable standard of review for denials of firearms ownership permits (even assuming discretionary may-issue permit laws for in-home possession are Constitutional after Heller/McDonald). This omission taints the holding, as there’s no way of determining whether the facts as found by the lower court rise to the level that would justify a post-McDonald Second Amendment infringement. At bottom the Appellate Division affirmed denial of a permit with no reasoned explanation why [non-criminal] verbal arguments with one’s ex-wife and a single prior incident of door-slamming posed such a risk of future violent behavior that denying the applicant his Second Amendment rights was warranted.
Even worse, the court seems to have summarily approved burden-shifting onto the permit applicant to affirmatively justify his need to possess a firearm. The court specifically noted that “Novello failed to establish that he had a legitimate need for the weapon.” The stated basis for the applicant’s failure to demonstrate need? He lives in the wealthy North Jersey suburb of Scotch Plains, which apparently doesn’t have a high enough crime rate for its residents to need guns in their homes: “The [lower court] judge also stated that, while Novello said that he wanted to obtain a gun to protect himself in Scotch Plains, there were ‘very little incidents of crime, at least incidents of violent crime’ in that municipality.”
Frankly, even under New Jersey’s restrictive permit statute, N.J.S.A. 2C:58-3(c)(5) would have to be read as giving the authorities discretion to deny permits based on community-wide crime statistics for this reasoning to pass muster – in effect permitting a finding by the police chief that simply letting residents possess guns in his “safe” little community would “not be in the interest of the public health, safety or welfare[.]” Live in a free-fire zone in Newark or Camden? You might be able to get permission to buy a gun. Live in a nicer part of the Garden State? Your Second Amendment mileage may differ…
I really hope this sloppy, unreasoned Appellate Division decision is appealed to the N.J. Supreme Court. Not that the applicant is likely to prevail there, either (but that is a necessary step before a cert. petition to SCOTUS).
July 19, 2010, 6:51 pmBob from Ohio says:
I bet the trial judge is quite proud of that repetitive use of “trigger”. Its a gun case after all.
July 19, 2010, 6:52 pmohwilleke says:
Cities routinely do require parade permits, and routinely do call for some description of what will be involved (how many people, when, where, by what means). The applicant for the permit in this case could have created an issue by asserting, at least, a generalized concern about self-defense and a desire to have a permit for that reason, or better yet, a specific concern that motivated him.
Suppose that you are required to state a purpose on the form, and the purpose is to “shoot my ex-wife” (yes, there really are people that stupid in the world). Does the mere requirement to state a purpose violate the constitution? The requirement to offer some, any, valid purpose, is hardly that burdensome.
There are a few questions lurking. One is whether the “in the interest of the public health, safety or welfare” is unconstitutional on its face. If it is not, or is capable of being construed in a manner that renders it constitutional, then the next question is whether the application in this case is unconstitutional as applied.
This is a situation where the “on its face” challenge to the statute is probably considerably stronger than the “as applied” challenge. There is probably some constitutional test that could be used to prohibit this man from obtaining a gun permit if applied to these facts. For example, I doubt that it would violate the U.S. Constitution to issue a temporary restraining order in these circumstances. The hard part is whether an over broad state standard unavoidably taints any decision that the Police Chief could make in the case.
It is hard to see that affording local officials a right to consider gun permits on a case by case basis after considering the facts is itself unconstitutional, if the standard that the local official is given to apply is appropriate, or that such a standard cannot contain some sort of balancing test between public concerns and individual needs.
The Heller Court rejected the use of balancing tests in determining whether a particular statute is constitutional on its face under the Second Amendment (i.e. whether legislative decisions should be reanalyzed in a balancing test way). But, that is quite different from making a factual as opposed to a policy test analysis.
By analogy, I would suspect that a generalized law requiring that someone be “of good character” to conduct a business in a municipality would be unconstitutional on its face if a prospective gun dealer sought to open a shop in a town. The same standard is routinely applied constitutionally to attorneys, despite the fact that it has some constitutional dimensions there as well.
July 19, 2010, 6:53 pmohwilleke says:
Clearly, in this case, some statement was made by the ex-wife to a policeman, specifically, the Chief of Police, setting forth the circumstances. It sounds like this happened in some sort of hearing, which involved some sort of formal process and either a written or in person oral assertion of an objection. It appears from the appellate opinion that the hearing was an “on the record” hearing. I have no doubt that lying to a police officer in that kind of situation is a crime.
July 19, 2010, 6:58 pmLaura(southernxyl) says:
Wondering about the weird use of passive voice: “doors are slammed”. It sounds like all the temper fits are calling up poltergeists. Actually, it sounds like the courts are trying to make the door-slamming less one-sided than it was.
It’s true that lots of people lose their tempers and don’t go shooting people. It’s also true that every now and then you read about a man who can’t let go of his ex and ends up killing her, and maybe other folks who are in wrong place/wrong time – see Ron Goldman, whom someone else mentioned. Rare as that is, if it happens to your family it’s got to be devastating and the fact that it’s rare isn’t much consolation; Goldman’s father suffered terribly from his loss. I think that if I were a prospective boyriend I’d be a bit concerned.
July 19, 2010, 7:06 pmohwilleke says:
Omitting citations to relevant law is almost always harmless error (or not error at all). The important question is whether the decision was correct. The need to discuss an issue also only arises to the extent that it is disputed by the litigants.
In any case, the statutory standard is cited: “The court found that the Police Chief had properly determined that issuance of a handgun purchase permit and FPIC to Novello would not be in the interest of the public health, safety or welfare [the statutory standard –EV].”
Unless the statute was challenged at trial as unconstitutional, the constitutionality of the statute isn’t before the court and there doesn’t appear to have been an assertion that it was unconstitutional.
No doubt the NJ statute and case law establishes that this is the proper standard and burden of proof. Balancing tests are routine in discretionary permit review jurisdictions and those laws remain valid until established otherwise. Judges don’t simply butt in with their own concerns about constitutionality no raised by the parties.
Is this really so unreasonable? For a security guard or someone living in a high crime neighborhood, self-defense or employment concerns may be great enough to outweigh concerns that you might misuse a firearm. If you don’t even bother to offer a reason you need it, then more modest concerns about the risk you present are in order.
July 19, 2010, 7:08 pmohwilleke says:
The issues raised on appeal were:
The legal standard stating in the appeal was not the applicable standard in the law which was cited and discussed.
I suspect that as a litigant, the thing to do would be to ask for reconsideration based on McDonald, a post-incorporation case that couldn’t be argued before.
July 19, 2010, 7:15 pmLarryA says:
Given that many of these discretionary systems produce highly discriminatory results on the order of “you don’t need to possess a firearm unless you’re politically connected,” they should be abolished. In New Jersey, about the only people who can get permits are retired cops or public officials.
I had a student who, in her pervious state, was turned down because her husband had a license and could protect her.
This isn’t a new issue. Anyone remember Bernhard Goetz?
July 19, 2010, 7:16 pmLaura(southernxyl) says:
…Also there is a timing thing.
Novello filed for divorce in 2005 and the couple divorced in 2006. According to Pissucci, he made his comment about the thought of her having a boyfriend turning his stomach and wanting a gun around Christmas 2008, and then he applied for that permit in January 2009. Hm.
Also, there must be a lot of information left out.
And then there’s the whole “they triggered each other” thing, and that she exhibited unreasonable behavior.
There’s no indication here of what they based that on. So there must be other stuff we’re not seeing.
July 19, 2010, 7:21 pmzippypinhead says:
No. While there was evidence taken in the Superior Court suit challenging the police chief’s denial of the firearms purchase permit, it’s clear from the Appellate Division opinion that there wasn’t a formal hearing (or any other sort of due process) in the initial denial decision. The ex-wife apparently made the statements relied on by the police chief during an interview by a detective doing an “investigation” of the applicant’s background.
The record evidence credited by the court is that the permit applicant and his ex-wife shared the blame for their pattern of arguments, and that during one argument, the applicant slammed a door too hard – once. Although in Heller dicta Justice Scalia favorably cited some of the disabilities found in 18 U.S.C. §922(g), the facts here didn’t even come close. The applicant was not a felon, was not an adjudicated “mental defective,” had never been charged with or convicted of misdemeanor domestic violence, and was never subject to a domestic relations restraining order. There was apparently testimony in the Superior Court appeal of the denial that the ex-wife was afraid of the applicant (but not afraid enough to have ever sought a restraining order). Even in the Superior Court appeal of the permit denial there were no findings akin to those required for a valid 18 U.S.C. §922(g)(8) domestic relations restraining order – which must have specific findings of a “credible threat to the physical safety” of the ex-spouse.
IMHO, as a matter of Constitutional substantive due process resulting in the abridgement of a enumerated fundamental right, this case simply doesn’t pass the laugh test.
July 19, 2010, 7:32 pmDavid M. Nieporent says:
Yes, it’s so unreasonable — and moreover, it contradicts normal gun-control orthodoxy, which treats living in high-crime neighborhoods as a reason to ban guns. (That’s the “guns are fine for Iowa, but not for Chicago” arguments we heard before McDonald.)
July 19, 2010, 8:07 pmOrenWithAnE says:
I always thought the gun-control orthodoxy was guns are fine for Iowa but not for Chicago because the voters in those places chose differently…
July 19, 2010, 8:12 pmDavid M. Nieporent says:
As someone who lives in the neighboring borough, I can say that Scotch Plains is a very safe township. The police blotter, as printed in the local paper, virtually never has anything more serious than petty vandalism or stolen bicycles.
But does anybody notice the logical flaw in the government’s reasoning? The court concludes, based on the lack of ‘violent crime,’ that the town is safe — but simultaneously finds that door-slamming is unsafe. If someone can legitimately fear a gun owner based on the fact that he gets angry and slams doors, then how can someone not legitimately fear potential crime?
July 19, 2010, 8:17 pmcboldt says:
– I always thought the gun-control orthodoxy was guns are fine for Iowa but not for Chicago because the voters in those places chose differently… –
July 19, 2010, 9:09 pmYep, that’s how constitutional issues are decided. If it’s legislation, it’s constitutional.
SuperSkeptic says:
…which should be absolutely irrelevant, correct?
July 19, 2010, 9:27 pmSuperSkeptic says:
This proposed test seems ridiculous to me. I can understand (maybe not agree all the time, but understand) per se class restrictions, e.g., the dicta in Heller. But, this amounts to basically everybody having a different 2nd Amendment.
July 19, 2010, 9:31 pmChris Travers says:
I think it does. I don’t think people should be denied liberty without due process of law, and yes, that liberty can include what you choose to purchase or not.
July 19, 2010, 9:36 pmAllan Walstad says:
I think it’s important maintain a substantial threshold, a burden of demonstration, on officials who would deny individuals their right to keep and bear arms. Door-slamming doesn’t seem to cut it. Nevertheless, I suggest that with Heller and McDonald having established 2A as an individual right, gun rights advocates would do well to talk more about the responsibilities that go along with rights — not merely legal responsibilities imposed by law, but personal responsibilities that armed citizens ought to take very seriously. “An armed society is a polite society” is not necessarily true, but we should do our best to make it true. Violent criminals and gang-bangers are not likely to care much, but if you are an armed, law-abiding citizen, you need to watch your language and gestures and temper; you need to avoid frivolous confrontations and statements that can be interpreted as threatening.
I don’t know if the leadership will be interested, but I sent a note to the NRA (of which I’m a life member and one-time donor of what was for me a pretty hefty chunk of change) suggesting a national public service message along these lines, as well as stressing gun safety principles. I mention this in case some VC followers might be interested in doing the same.
July 19, 2010, 9:39 pmChris Travers says:
I have to wonder. With that logic why do we even guarantee due process before throwing people in jail.
July 19, 2010, 9:40 pmChris Travers says:
there are a couple reasons why it is unreasonable both pre- and post-Heller.
Pre-Heller (looking at Presser), the basic issue is that this would cause the state to be interfering with the federal militia interest in the Second Amendment. If the militia must be called forth, you don’t want the only folks who bring guns to be from high-crime neighborhoods!
Post-Heller, self defence is a right as it is to own a gun to defend yourself. This cannot be deprived without appropriate due process of law. McDonald (unsurprisingly) applies this to the states via the 14th Amendment. I think this precludes prior, discretionary restraint on owning a handgun without this being taken away through the process of being convicted or at least indicted of a crime.
July 19, 2010, 9:53 pmcboldt says:
– With that logic why do we even guarantee due process before throwing people in jail. –
July 19, 2010, 9:54 pmWell, that’s my point. We view deprivation of liberty (incarceration) as a serious decision, and the system is reluctant to do so unless the person deserves the punishment. If a person is found to present a danger to him/herself or others, they are locked up.
I think stripping a sane person of liberty or a fundamental right because of what they MIGHT do in the future is irrational, and wrongly deprives good people (well, they aren’t going to commit murder, with anything) of a tool that facilitates self-defense. When a person is a danger to society, the person should be separated from society.
The logic of denying some people the right to firearms because they MIGHT do something in the future is a precrime deprivation of a liberty interest – the ability to effect self-defense, at least.
cboldt says:
Shorter version, if “Might commit murder, no access to guns” is rational, so is “Might commit murder, lock him up.”
July 19, 2010, 9:58 pmChris Travers says:
I like that idea.
July 19, 2010, 9:58 pmcboldt says:
– Post-Heller, self defence is a right as it is to own a gun to defend yourself. This cannot be deprived without appropriate due process of law. –
July 19, 2010, 10:24 pmI still choke on “self defense can be deprived,” except for small numbers of people who have earned the death penalty, life with ZERO chance of release, or incarceration for mental illness. I can abide by some place restrictions, but would hold the government financially liable for deaths and injuries resulting from wrongful discharge within the sterile premises.
Pure wishful thinking on my part, but I believe those criteria represent fidelity to the constitution.
zippypinhead says:
Good point. All NRA firearms courses do include a heavy dose of responsibility – the goal is to make sure students develop the knowledge, skills and attitude necessary to responsibly possess and use firearms. Frankly, I think one of the (many) reasons trained concealed carry permit holders tend to get into trouble less frequently than the general population is that courses like NRA Personal Protection Outside the Home really hammer on the point that you must hold yourself to a higher standard when armed. And even the Eddie Eagle program for kids (stop, don’t touch, leave the area, tell an adult) is grounded in teaching children to responsibly do the right thing if they encounter a gun.
But making a concerted effort to get the message out to a wider audience would be really worthwhile. And seeing the Brady campaign and their fellow travelers try to do their usual knee-jerk rebuttal to the NRA’s message could be really funny in this case…
July 19, 2010, 10:53 pmwhit says:
it’s really a perfect storm – a confluence of the war on drugs AND the war on domestic violence (i’ve often opined the latter is a bigger threat to individual liberties for the average person than the war on drugs).
the war on DV is all about defining deviancy up. yell at your partner? that’s DOMESTIC VIOLENCE. use belittling words? domestic violence. “controlling behavior?” that’s domestic violence.
who says this? the DV industry. in fact, the pamphlets we used to have (maybe we ran out) at our local precinct on “dating violence”
July 20, 2010, 4:39 amRichard says:
So, do they also now prevent him from buying gasoline and matches or lighters? How about long, pointy knives or swords? Baseball bats? ANY other objects that can be used to hurt someone? Was he allowed to retain his fists?
July 20, 2010, 7:57 amWhen they have finally declared that any object that can be used to inflict violence upon others should never be possessed by anyone, then MAYBE they will get the clue that they are being idiots?
losantiville says:
You do not need a Firearm Owners ID Card to possess a firearm in NJ. You need it and a (one-off) Pistol Purchase Permit for pistols to purchase or acquire a firearm in the state.
If you had a gun when the law took effect (the ’80s, I think), you didn’t need to do anything. If you move into the state bringing your guns with you you don’t need to do anything.
If you move out of the state, acquire guns and move back in, you don’t need to do anything. (In a famous case, a murderer moved to Colorado for 6 weeks, bought a gun and moved back to NJ and shot up the motel where he was living. His possession w/o a card was not in violation.
July 20, 2010, 10:19 amIan Argent says:
Isn’t there some kind of prior restraint issue here too?
For that matter, why interview the ex more than 2 years after the divorce? What happened to privacy? (Not that NJ is very good in this regard; employers are often contacted and 2 references are required).
July 20, 2010, 10:49 amjunyo says:
I’m pretty sure that he can legally drive 30 minutes to Pennsylvania and buy a long gun with no wait and a NICs check. So if he really was a danger to her, either she’d be dead or he’s the laziest danger ever.
July 20, 2010, 12:55 pmIan Argent says:
Per Federal law, you can only buy longarms out of state from an FFL, and the laws of both states must be followed. (This is a loosening up of ht eprevious law that only permitted purchase from FFLs in contiguous states and the laws of both states be followed).
And most if not all FFLs in PA know to check for the FID and to file a Certificate of Eligibility for the purchase
July 20, 2010, 12:59 pmLibertarian1 says:
I lived in a municipality in NJ for 25 years. While living there I served the township as President of the Board of Health for 4 years, Vice-President of the Board of Education for 7 years, maintained a professional office in town for 20 years, etc. My two letters of reference were from the current mayor and the immediate past mayor. After filing my application, 6 months later I was notified my application was approved and I could purchase a handgun to be kept at home, not carry.
July 20, 2010, 1:11 pmJohn Smith says:
This reminds me of the guy in oregon who had his weapons seized and he being put in a psych ward for mental evaluation because he was suspended from his job pending and investigation into the deeds of his boss. The police cannot suspend your civil rights because something might happen. MIGHT can mean anything or nothing.
July 20, 2010, 1:11 pmSemper Why says:
That doesn’t work. He would have to show proof of residence in PA. The dealer could sell him the weapon, but the FFL would have to ship it to another FFL in NJ to take possession.
July 20, 2010, 1:16 pmIan Argent says:
That’s a tad unusual – a local forum I’m on is doing a survey that suggests that the usual time to permit is 6-12 weeks; with only the really anti-gun municipalities taking longer. My town clerk apologized when I asked after the paperwork at the 6 week mark.
That having been said – NJ statute law requires that a FID be issued in no longer than 30 days unless the chief can show “good cause” for rejection. The NJ supreme court has ruled multiple times that the legislature could not have meant that permits be issued without a background check being complete, rendering the 30 day deadline meaningless.
July 20, 2010, 1:33 pmTinkicker says:
A simple question for the lawyers in this blog – Has this court just denied an individual his second amendment right, and how does that action square with the Second Amendment ?
If it looks like a duck, and quacks like a duck, it must be a duck………..
July 20, 2010, 2:12 pmMercutio says:
They’re Italian. We’re supposed to slam doors.
July 20, 2010, 2:31 pmLibertarian1 says:
Ian, it was several years ago. Maybe the rules have changed.
July 20, 2010, 2:33 pmbroken window says:
Sure is scary, letting people exercise their liberty. I guess that’s why Big Brother first assesses whether your need is legitimate. And then evaluates whether your exercise of that liberty is “in the interest of the public health, safety or welfare.”
Yes, liberty is so precious it must be rationed. We see it everywhere in economic regulation. And didn’t Cass Sunstein once write a book about how speech rights could be similarly rationed? In an enlightened way, natch. For the public health, safety and welfare, you see.
July 20, 2010, 2:50 pmDoDoGuRu says:
Importantly, the Police Chief makes clear that he might have ruled differently if the little girl could have articulated a reason why she might have a need for going into the whites-only restroom.
July 20, 2010, 2:52 pmtom swift says:
Very peculiar. It seems that Mr. Novello has no real anger-management issues; he gets angry, but has so far managed to control it adequately. When peeved, he slams a door. There is no claim that he ever slammed his wife, even though he must have had ample opportunity to do so. If this is a predictor of future behavior, we might expect that if licensed and sufficiently peeved he might shoot a door. If it’s his own door, the only law he might thereby violate would be one prohibiting discharge of a firearm near a dwelling – hardly a major menace to the public safety.
July 20, 2010, 3:25 pmDon Meaker says:
If slamming doors is outlawed, then only outlaws can slam doors.
Since the 2nd is incorporated by the 14th, then the law infringing the right to own firearms in NJ is invalid, and has always been invalid. The actions of the Judge and Police Chief were unconstitutional, and they should be personally liable for their erroneous actions.
July 20, 2010, 3:26 pmpeterm says:
Yes. You cannot possess a “firearm” (in MA law, a “firearm” == “handgun”) without the appropriate LTC-A or LTC-B. Only the LTC-A allows for concealed carry. Both are issued at the discretion of the Chief of Police in the town that you either a) reside or b) own a business in. The FID allows for possession of ammunition and low-capacity long guns. Prior to 1998, you were able to posses a handgun in the home with an FID and a “Permit to Purchase”. That was removed with the Ch.180 gun control law.
July 20, 2010, 3:31 pmRemember That Caveat in the Second Amendment? | Little Miss Attila says:
[...] No, not the “militia” phrase. Rather, that part that says “abridge away, if the citizen involved slams doors.” [...]
July 20, 2010, 3:57 pmgullyborg says:
Hmmm…
Novello failed to establish that he had a legitimate need for free speech
Novello failed to establish that he had a legitimate need for the press
Novello failed to establish that he had a legitimate need to assemble
Novello failed to establish that he had a legitimate need for religion
Novello failed to establish that he had a legitimate need for due process
See any sort of pattern here?
July 20, 2010, 4:07 pmSpendulus says:
Putting on the little psychology hat for a minute, the argument that Novello was alleged to be prone to some fits of anger is a real problem. The real concern would be with someone who displayed little or no anger at disturbing things in personal life, but who bottled it all up – because that’s sooner or later going to come out.
As it was earlier said, few women would qualify if the same criteria were applied to them.
Certainly not Hillary Clinton. Now by the judgement of Novello, Hillary should not be allowed to own dinner plates since when hurled by her in great fits of anger, they could represent deadly missiles.
July 20, 2010, 4:32 pmMalvolio says:
A friend of mine lives in a police state (no, not Massachusetts, a real police state) and I was curious what that meant in practical terms. I asked him, “What would happen, hypothetically, if you wrote a letter to the newspaper, saying the president should be replaced?”
He thought about it. “The police would bring me down to the station. They would ask me why I thought I should write that letter.”
July 20, 2010, 4:42 pmjunyo says:
Ah, my mistake. I’ve only purchased the other way; NJ or DE > back to PA and it was cake. God, NJ truly sucks balls.
July 20, 2010, 5:28 pmwhit says:
next, they will deny somebody a permit because he “gesticulates wildly with his hands”
July 20, 2010, 5:50 pmwhit says:
when i lived in Mass, i worked as a part-time cop (they have those there), before i got full time employment. I applied for a permit to carry in mass. i had to apply in the town i lived. the police chief (a nyc transplant and a real idiot) denied me the permit for “protection of life and property” saying i hadn’t demonstrated sufficient NEED. he did issue me the permit “for target shooting only” which “authorized’ me to carry to and from the range. of course, i could carry on my badge, but it was a backup.
i ended up renting a place in the town where i worked, and the chief (my boss) promptly issued me a permit for “protection of life and property” valid anywhere in the state.
if that isn’t absurdly arbitrary- NOTHING is
July 20, 2010, 5:54 pmwhit says:
is slamming a door sufficiently “expressive” to be considered a first amendment right?
it’s kind of like an exclamation point…
a la cartman
“screw you guys… i’m going home” … (slams door)
July 20, 2010, 5:57 pmIan Argent says:
As I said upthread – it is entirely possible for an NJ resident to buy a longarm (but not a handgun) from a PA FFL. (It is not possible to buy one in private sale, incidentally). To avoid breaking federal law, the transaction must fulfill the requirements of both PA and NJ law. As far as I know, PA law does not prohibit longarm sales to out of state residents. I *do* know that NJ law does not prohibit out-of-state purchases of firearms by NJ residents as long as the other requirements are fulfilled. To purchase a longarm from an FFL (in or out of state) an NJ resident must furnish ID and an FID card, and a Certificate of Eligibility must be filled out and filed with the NJ government. (As a Federal matter, the FFL must file a form 4473 and perform a NICS or equivalent check).
What becomes interesting is that NJ considers both BB guns and black powder weapons firearms, but neither are considered such federall (or in most other states). NJ law does not require a permit to possess firearms in certain circumstances. Our hypothetical NJ resident may, perfectly legally, obtain a BB gun or black powder weapon out of state. As far as I can tell, he may perfectly legally transport that weapon into NJ (as ong as he complies with the law concerning transport of firearms).
What becomes absurd is that the federal law pre-empting prohibition of sale of BB guns is being used to challenge NJ’s one handgun a month law…
July 20, 2010, 6:02 pmIan Argent says:
That’s an ADA violation – as I learned from my wife, denying an italian the use of their hands to talk with renders them mute.
July 20, 2010, 6:03 pmwhit says:
what’s equally absurd is that there is actually a federal law pre-empting prohibition of the sale of bb guns.
July 20, 2010, 6:08 pmBC says:
Does the mere requirement to state a purpose violate the constitution?
I would say no, provided only that the ‘requirement’ is precisely that pointless. Any purpose — from “all lawful purposes” to “murdering my mother” — is fine, as long as the appropriate line on the form is filled in.
But if the stated purpose has to meet with the satisfaction of some government functionary, as tends to be the case, then we begin to have problems, because:
(a) The requirement operates as a prior restraint.
(b) Subjecting exercise of a constitutional right to the arbitrary discretion of a local official is a denial of equal protection and due process.
July 20, 2010, 6:14 pmIan Argent says:
Well, should a state be able to ban the sale of any product produced outside of the state (other than alcohol – see Amendment XXI)? It’s obviously a law rooted in the Commerce Clause; but is it an overbroad application of the Commerce Clause? In essense, a BB gun that has been properly labeled may not be forbidden from sale by state regulation.
The preemption provision in the Federal Toy Gun Law provides that
July 20, 2010, 6:15 pmwhit says:
except that lots of weapons produced outside the state can be banned in a state. some states ban “stun guns”, etc.
i just thought it was funny that there is actually a LAW exempting bb guns of all things from such intrastate nannyism
July 20, 2010, 7:06 pmwhit says:
i speak fluent ISL – Italian Sign Language.
July 20, 2010, 7:08 pmTEEBONE says:
There is a clear constitutional issue (based upon the ground rules for Due Process – English Common Law) with denying a fundamental right for ANY misdemeanor conviction. That domestic violence is a politically-created pseudo-felony should count for nothing, if our system of justice is to remain faithful and honest. Assaulting your wife is not more nor less terrible than assaulting anyone else. Indeed, simple assault (misdemeanor domestic violence) is not more nor less egregious because it’s committed against an intimate partner.
This is political favoritism at its worst.
Further, any court action based upon a preponderance of evidence (as cited in the article, a restraining order) cannot by any stretch of the imagination rise to a level justifying the attenuation of a fundamental right. If this doesn’t violate Due Process, then NOTHING does.
July 20, 2010, 7:32 pmTEEBONE says:
And then, there’s the Prior Restraint issue…..
July 20, 2010, 7:33 pmzippypinhead says:
That explains why I once had to wait in the gun department at the Cabela’s in Hamburg, PA (45 minutes west of the state line on I-78) behind a guy from Jersey who was playing with a lot of papers that I didn’t need for my own interstate long gun purchase. But then again, I have residency in a MUCH more reasonable state.
I also learned some time ago that New Jersey doesn’t recognize the validity of Federal C&R FFLs (Curio & Relics firearms collector licenses). Which means that even where both parties to the transfer have C&R FFLs, if the buyer is a N.J. resident the C&R firearm still can only be shipped to an in-state Dealer FFL, and the C&R licensee must still jump through all of N.J.’s hoops before he can take possession. Unfortunately, there’s no supremacy clause argument that the state must recognize the Federal license, since the law is clear C&R FFLs remain subject to all state and local rules.
July 20, 2010, 7:41 pmIan Argent says:
Odd – the NJ requirement is a pretty simple questionaire and showing the FID. He probably didn’t bring a copy with him, or the Cabela’s dude brainlocked. (It’s a LOT smaller than the 4473 and takes less time to fill out).
Well, a C&R allows you to claim collector status to apply for an exemption to the one handgun a month law… Cold comfort, that is
July 20, 2010, 8:20 pmLaura(southernxyl) says:
I think – but don’t know for sure – that DV laws originally came about b/c assault against the intimate partner was considered much less terrible than against anyone else. The police kind of threw up their hands and said, well, it’s domestic. I actually witnessed a woman being forced, screaming, into a car back in Memphis by two men. It took them some time because she was fighting and they had to hold her by the hair but they got her in there and drove off. I called the police right away but they never came. A cop my husband knew came into the business where he worked and he asked him about it. The cop checked it out and told my husband that someone had driven by and not seen anything (duh, they were gone by then but I could have described the people and the car) and assumed that it must have been domestic. That was fall of 2004.
I really think there must be more to this story than we see at the link. There’s nothing to back up the assertion that the woman participated in triggering temper tantrums, or that her behavior was unreasonable, so there’s probably some stuff we aren’t getting; if about her, then about him too.
July 20, 2010, 9:22 pmwhit says:
there are several reasons the dv laws came about (and i have been a fierce critic of many overresponse aspects but…)
1) DV victims are often very unlikely to report and/or desire prosecution. often, out of fear. generally speaking, cop and prosecutors are like “no victim no crime” so DV laws came about as an exception
2) there is often an escalating cycle of dv violence, not present in most other assaults (like a bar fight, etc.)
3) dv laws are designed as much civilly as criminal – orders, interrupting the “cycle of violence”, and getting counselors and social workers involved.
that being said, i am not AT ALL suspicious that there is more to this story, because DV laws are often very kneejerk and define deviancy up
July 20, 2010, 9:54 pmLaura(southernxyl) says:
Whit, do you see where the woman’s unreasonable behavior and participating in triggering temper fits comes from?
“The court noted that Pissucci’s behavior probably contributed ‘to the situation.’” I sure hope there’s something else, because the alternative is that they’re making a huge assumption.
I’ve seen one more reason for DV laws … the police get tired of being called back over and over to the same house and the same people. It’s time-wasting and dangerous to the cops. If people know that a DV call means that the police will take the next step, hopefully that cuts down on the frivolous 911 calls.
July 20, 2010, 10:10 pmwhit says:
we call those “frequent flyers”
and we have no problem going to “frivolous calls” if that means a situation where it is not (yet) criminal, but might escalate. we woul;d WAY WAY rather referee a disturbance (non-criminal), offer alternatives, information (like how to obtain a protective order, where the shelters are etc.) etc. and often PREVENT a future crime from happening, than the respond after the fact.
the ones that annoy us are the ones who continually get abused by the partner, then go BACK to them over and over…
also annoying are the ones that claim that they were falsely arrested because their partner lied (they didn’t assault her), but then they keep going back to her. that’s just tombstone stupid.
the most annoying to me are the ones that want the police ot be surrogate parents to their unruly kid.
*i* don’t have a right to smack the little jerk for being mouthy, THE PARENT does.
July 20, 2010, 10:24 pmLaura(southernxyl) says:
I remember a newspaper story about some members of the always colorful, sometimes tragic Ford family in Memphis.
Tamara and John were having a set-to. He had his moments – pulled a shotgun on some utility workers in his yard and such – but she was at least a match for him. (She drove her car into his girlfriend’s house once, right through the wall, and then referred to the gf as a “homewrecker”, apparently without irony.)
Anyway, on this occasion she got after him with a bottle of pepper spray. To get away from her, he went into the garage, got in his car, and locked the doors. She couldn’t get at him there, and couldn’t make him get out, so she had the very poor judgment to call the police, who found him in his locked car and the pepper spray in her hand. Imagine her surprise.
July 20, 2010, 10:34 pmLaura(southernxyl) says:
(This was State Senator John Ford, btw. He’s in prison now.)
July 20, 2010, 10:35 pmJohn Skookum says:
Damn skippy it does. Constitutional rights are not subject to this kind of horse shit under any standard of review. I hope the NRA gets involved and drives this fascist police chief out of a job and into personal bankruptcy. We are on the offensive now and we are going to smash gun control to splinters. Any public “servant” who supports it going forward should take notice that we are going to destroy him or her personally. This is official oppression under color of law and deserves jail time.
July 20, 2010, 11:15 pmIan Argent says:
As you might guess, I’m not a fan of weapon bans, whether it be a gun, stun gun, switchblade/gravity knife, etc…
July 21, 2010, 7:26 amwhit says:
nor am i. i am just demonstrating that there are plenty of examples of states (see: nanny) banning all sorts of weapons produced inside and/or outside their borders.
July 21, 2010, 12:33 pmyankev says:
Ah, like the police chief who was so sure that the DC Sniper was a middle aged angry white male Christian.
Or the cop in Columbus some years back who refused to allow a Jewish citizen to watch (from a public sidewalk) an anti-Israel march — for the citizen’s own good, because the marchers might turn violent. An odd inversion of the heckler’s veto, I suppose.
There is a reason why we do not give individual functionaries veto power over our the exercise of our constitutional rights. Unfortunately, this judge took the lazy way out and abdicated his responsibility by doing just that.
July 21, 2010, 2:55 pmIan Argent says:
Since all of the examples I can think of are “scary” items that are primarily used as weapons, I think the question is still out there. Should the states be able to flat ban the sale, possession, or transportation of items by adults? IT was apparently important enough for alcohol that Amendment XXI has clause 2: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited” – codifying that Alcohol was a special case for transport into a state.
OTOH, while states can’t levy taxes on the product of another state, I can’t see anything prohibiting them from banning products of another state entirely (other than clause 2, amdmt 21).
July 21, 2010, 6:24 pmBambiB says:
We live in a police state.
Whether the People will ever rise up to overthrow it is uncertain.
But let us hope.
July 22, 2010, 8:59 amJohnH says:
Simple solution? Give ‘em both a gun. If there is a real problem, one of ‘em will solve it. Most assuredly the solution will be messy, and most assuredly the survivor,(if any)will get lots of free time to devote to their anger management problem. If they decide not to address that problem, they will be in the company of many who are capable of resolving it for them.
I base this solution on the SCOTUS theory that the police are not responsible for any individuals safety. The real question is just where does the CoP get off making decisions affecting their individual welfare? It’s neither his place nor his charge. Both parties should sue him for his failure to BTFO.
July 22, 2010, 1:00 pmLarryA says:
Based on a quarter century as a civilian firearms instructor, I’d say that the vast majority of gun owners already practice what you’re preaching. I’d add that, given the way gun control folks often treat gun owners, that on some level even they understand how peaceful we really are.
After all, if gun owners really were the violent, camo-wearing, tobacco-spitting Neanderthals we’re pictured to be, we’d have killed off the opposition back in the 1980s.
But it doesn’t hurt to preach to the choir, so you’re suggestion to the NRA is a good one. Unfortunately I can’t see any of the MSM legitimizing gun ownership by printing or airing the PSAs.
July 22, 2010, 3:11 pm