State Right to Bear Arms in New Jersey

Posted on Friday, July 24th, 2015

The New Jersey Constitution contains no provisions relating to the keeping or bearing of arms.  However, New Jersey courts have generally upheld in-state firearm regulations that were otherwise challenged on Second Amendment grounds.

In the 2010 case Crespo v. Crespo, 989 A.2d 827 (N.J. 2010), the Supreme Court of New Jersey held that the “seizure of a defendant’s firearms upon a finding of domestic violence” did not violate an individual’s Second Amendment right to bear arms.1  The court noted that the Second amendment right to keep and bear arms “is incorporated as against the States by the Fourteenth Amendment,” and that “the right to possess firearms clearly may be subject to reasonable limitations.”2

In 2013, the Superior Court of New Jersey concluded that a statute requiring a showing of justifiable need prior to the issuance of a firearm permit did not violate the Second Amendment right to bear arms.3  The court held that “[the] state law governing permits to carry handguns does not ‘burden any protected conduct’ under the Second Amendment,”4 and noted that it was unclear, in the Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008), whether the Second Amendment right extended outside the home.5

  1. 989 A.2d at 828. []
  2. Id. []
  3. In re Patano, 60 A.3d 507 (N.J. Super. Ct. App. Div. 2013). []
  4. Id. at 513, quoting Piszczatoski v. Filko, 840 F.Supp.2d 813, 829 (D.N.J. 2012). []
  5. 60 A.3d at 514.  See also In re Wheeler, 81 A.3d 728 (N.J. Super. Ct. App. Div. 2013) (upholding a similar standard of justifiable need for permits authorizing certain retired law enforcement officers to carry handguns). []

State Right to Bear Arms in Nevada

Posted on Friday, July 24th, 2015

The Constitution of the State of Nevada, Article 1, § 11(1) provides that “[e]very citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes.”

There is little case law interpreting Article 1, § 11(1).

In 1968, the Supreme Court of Nevada held, in a case interpreting the Second Amendment to the United States Constitution, that “the authority to regulate weapons comes from a state’s police powers.”1 However, Hardison predated the 1982 enactment of Article 1, § 11(1).

More recently, in the 2012 case Pohlabel v. State, the Supreme Court of Nevada upheld a felon-in-possession statute against a defendant who argued that the statute violated his right to bear arms under article 1, § 11(1) by barring him from possessing a black powder rifle.2  The court held that the right to bear arms was not unlimited,3.)) and that barring a convicted felon from possessing firearms is rational because of the increased potential for danger.4  The court further concluded that “unpardoned felons are not included among those to whom the Nevada Constitution guarantees the right to keep and bear arms.”5

  1. Hardison v. State, 437 P.2d 868, 871 (Nev. 1968) (rejecting a Second Amendment challenge to a state law prohibiting a convicted felon from possessing a concealable firearm). []
  2. 268 P.3d 1264 (Nev. 2012). []
  3. Id. at 1268 (quoting District of Columbia v. Heller, 554 U.S. 570 (2008 []
  4. 268 P.3d at 1268. []
  5. Id. at 1272. []

Local Authority to Regulate Firearms in New Jersey

Posted on Friday, July 24th, 2015

Article 4, § VII, par. 11 of the New Jersey State Constitution confers broad powers on municipalities and counties:

The provisions of this Constitution and of any law concerning municipal corporations formed for local government, or concerning counties, shall be liberally construed in their favor. The powers of counties and such municipal corporations shall include not only those granted in express terms but also those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or by law.

State statutes treat municipalities and counties differently in terms of their local regulatory authority, however.

A. Municipal Regulatory Authority

New Jersey explicitly authorizes municipalities (defined to include cities, towns, townships, villages and boroughs, but not counties) to “[r]egulate and prohibit the sale and use of guns, pistols, [and] firearms…”1 Municipalities may also enact ordinances, regulations, rules and by-laws that are consistent with state and federal law for, inter alia, the “preservation of the public health, safety and welfare of the municipality and its inhabitants.”2 In 1973, the New Jersey Supreme Court recognized that N.J. Stat. Ann. § 40:48-2 grants municipalities “broad police power over matters of local concern and interest.”3 Furthermore, municipalities are described under state law as broad repositories “of local police power in terms of the right and power to legislate for the general health, safety and welfare of their residents.”4

Municipal regulatory power is constrained, however, by the doctrine of preemption. The essence of preemption is that a municipality, as an agent of the state, cannot act contrary to state law or policy.5 This is true even where the state has granted to municipalities explicit authority to regulate in a particular subject-matter area. Preemption does not exist, however, simply because the legislature has legislated in a subject-matter area; rather, “intent to occupy the field must appear clearly.”6

In Overlook Terrace Management Corp. v. Rent Control Board of West New York,7 the Supreme Court of New Jersey created, in 1976, a two-step test for courts to use when determining whether state law preempts a municipality from regulating a particular subject matter. Under this test, a court must initially determine “whether the field or subject matter in which the ordinance operates, including its effects, is the same as that in which the State has acted.”8 If the subject matter is not the same, “preemption is clearly inapplicable.”9 If it is the same, the court must then consider the following five preemption factors to determine if the legislature intended to preempt the subject matter:

  • Whether the ordinance conflicts with state law, either because of conflicting policies or operational effect (i.e., does the ordinance forbid what the legislature has permitted or permit what the legislature has forbidden?);
  • Whether the legislature intended, expressly or impliedly, that state law be exclusive in the field;
  • Whether the subject matter reflects a need for uniformity;
  • Whether the state scheme is so pervasive or comprehensive that it precludes the coexistence of municipal regulation; and
  • Whether the ordinance stands “as an obstacle to the accomplishment and execution of the full purposes and objectives” of the legislature.10

Courts applying these factors do not always analyze each factor separately, but often blend them together in the analysis, ultimately relying on what the court believes to be the intent of the legislature when deciding whether state law or policy preempts a municipal ordinance.11

In addition, municipal authority to adopt ordinances regulating criminal activity is constrained by the preemption provisions of N.J. Stat. Ann. § 2C:1-5d. Those provisions are relevant because ordinances regulating firearms are often penal in nature, in that they impose criminal penalties. Section 2C:1-5d (enacted after section 40:48-1(18)) provides:

Notwithstanding any other provision of law, the local governmental units of this State may neither enact nor enforce any ordinance or other local law or regulation conflicting with, or preempted by, any provision of this code or with any policy of this State expressed by this code, whether that policy be expressed by inclusion of a provision in the code or by exclusion of that subject from the code.

Under this statutory provision, a court must determine whether the absence of a state ban on certain conduct indicates legislative intent to “decriminalize” that conduct. Any local regulation prohibiting such conduct will be deemed preempted by exclusion under section 2C:1-5d.12

Moreover, under N.J. Stat. Ann. § 2C:1-5d a municipality may not regulate a subject-matter area that the state has comprehensively regulated. State regulation may preempt that area due to the subject matter’s inclusion in state law.13

Township of Chester v. Panicucci,14) is the most authoritative case concerning municipal power to regulate firearms in New Jersey. In Panicucci, the Supreme Court of New Jersey, in 1973, interpreted section 40:48-1(18), holding that a statute regulating firearm discharge for hunters did not preempt a more stringent local law regulating firearm discharge for hunting and other activities. The court determined that the legislature did not intend to completely occupy the field of hunting safety to “preclude municipalities from also dealing with local aspects of the problem.” ((Id. at 389.)) Regarding section 40:48-1(18), the court held that the legislature did not intend to preempt the field of firearm control when it adopted a state gun control scheme, and that section 40:48-1(18) may be used by municipalities to regulate the sale and use of firearms.15

Panicucci supports municipal authority to regulate the sale and use of firearms under N.J. Stat. Ann. § 40:48-1(18). Because Panicucci predates the adoption of section 2C:1-5d, the creation of the Overlook Terrace factors, and the enactment of many of New Jersey’s firearm-related statutes, however, it is uncertain how much municipalities may rely on it. Subsequent pronouncements by the Supreme Court of New Jersey (in decisions not involving firearm regulation) do suggest, however, that local firearm ordinances are valid regulations not preempted by state law.

For example, in State v. Crawley, the Supreme Court of New Jersey held that the legislature’s repeal of a state law prohibiting loitering had the effect of preempting, by exclusion, a Newark ordinance that criminalized loitering. While the court found that the legislature made a conscious decision to decriminalize loitering, it emphasized that “a municipal ordinance will not be invalidated on preemption grounds merely because it deals with substantially the same subject matter as a state statute.”16 The court cited Panicucci as support for this proposition, noting that although in Panicucci “the statute and [firearm] ordinance overlapped, we found no preemption because we concluded that the legislature did not intend to prohibit complementary local [gun] legislation.”17

In an unpublished case from 2010, Faraci v. Monmouth County Bd. of Rec. Comm’rs, 2010 N.J. Super. Unpub. LEXIS 151 (Jan. 25, 2010), a state appeals court found that a municipal ordinance banning the discharge of firearms and other weapons was in conflict with, and preempted by, a county measure adopted pursuant to state authority that specifically intended to enable county commissioners to have exclusive control over the regulation of county parks.18 The appeals court found that the municipal ordinance met all five Overlook Terrace factors, favoring preemption, while noting that its decision is consistent with the ruling in Panicucci.

Finally, in 2008, a New Jersey appeals court affirmed a superior court ruling that had invalidated a Jersey City ordinance limiting handgun sales and purchases to one per person within a 30-day period, on the grounds that state law preempted the local law. ((Association of N.J. Rifle & Pistol Clubs, Inc. v. City of Jersey City, 955 A.2d 1003 (N.J. Super. Ct. App. Div. 2008).)) However, that appellate court opinion and judgment were vacated, and the appeal dismissed as moot, by the Supreme Court of New Jersey because the state legislature adopted an identical 30-day handgun sales limitation while the appeal was still pending.19

In sum, the intent of the legislature to make a gun law exclusive of local regulation, or to permit local regulation regardless of state law, is the paramount question in determining whether municipal gun ordinances are valid local regulations or are preempted by state law. The validity of such ordinances likely will be determined on a case-by-case basis.

B. County Regulatory Authority

The power of counties to regulate locally is provided under Art. 4, § VII, par. 11 of the New Jersey State Constitution, discussed above. New Jersey Statutes Annotated § 40:41A-27b expressly permits charter counties to, among other things, “[a]dopt, amend, enforce, and repeal ordinances and resolutions.” Counties in New Jersey appear to be authorized to use their constitutionally-conferred regulatory authority to enact ordinances that complement current state firearm policies.

  1. N.J. Stat. Ann. § 40:48-1(18). []
  2. N.J. Stat. Ann. § 40:48-2. []
  3. Twp. of Chester v. Panicucci, 299 A.2d 385, 387-88 (N.J. 1973). []
  4. N.J. Stat. Ann. § 40:41A-28. []
  5. Summer v. Teaneck, 251 A.2d 761, 764 (N.J. 1969). []
  6. Id. []
  7. 366 A.2d 321 (N.J. 1976). []
  8. Id. at 326. []
  9. Id. []
  10. []
  11. See, e.g.Mack Paramus Co. v. Mayor and Council of Borough of Paramus, 511 A.2d 1179, 1184-86 (N.J. 1986). []
  12. See State v. Crawley, 447 A.2d 565 (N.J. 1982). []
  13. See Mack Paramus Co.supra note 10. []
  14. 299 A.2d 385 (N.J. 1973 []
  15. Id. at 390. []
  16. Crawley, 447 A.2d at 569-70. []
  17. Id. at 570. []
  18. Faraci, 2010 N.J. Super. Unpub. LEXIS 151, at *10-*11. []
  19. See Association of N.J. Rifle & Pistol Clubs, Inc. v. City of Jersey City, 992 A.2d 1 (N.J. 2010). []

Local Authority to Regulate Firearms in Nevada

Posted on Friday, July 24th, 2015

The Nevada Legislature has broadly preempted counties and cities from regulating firearms. Nevada Revised Statutes Annotated § 268.418(1) provides:

Except as otherwise provided by specific statute, the Legislature reserves for itself such rights and powers as are necessary to regulate the transfer, sale, purchase, possession, ownership, transportation, registration and licensing of firearms and ammunition in Nevada, and no city may infringe upon those rights and powers. As used in this subsection, “firearm” means any weapon from which a projectile is discharged by means of an explosive, spring, gas, air or other force.

Nevada provides identical prohibitions for counties and towns.1 As a limited exception, counties and cities, as well as towns, may regulate the “unsafe discharge of firearms.”2

If the governing body of a city in a county whose population is 700,000 or more, or a board of county commissioners in a county whose population is 700,000 or more, or a town board in a county whose population is 700,000 or more, has required by ordinance or regulation (adopted before June 13, 1989) the registration of a firearm capable of being concealed, the governing body or board shall amend such an ordinance or regulation to require a period of at least: a) 60 days of residency in the city, town or county before registration of such a firearm is required; and b) 72 hours for the registration of a pistol by a resident of the city, town or county upon transfer of title to the pistol to the resident by purchase, gift or any other transfer.3

There are no cases interpreting sections 244.364, 268.418 or 269.222.

  1. Nev. Rev. Stat. Ann. §§ 244.364(1), 269.222(1). []
  2. Nev. Rev. Stat. Ann. §§ 244.364(2), 268.418(2), 269.222(2). []
  3. Nev. Rev. Stat. Ann. §§ 244.364(3), 268.418(3), 269.222(3). []

Local Authority to Regulate Firearms in Michigan

Posted on Thursday, July 23rd, 2015

Michigan Compiled Laws Service Section 123.1102 provides:

A local unit of government shall not impose special taxation on, enact or enforce any ordinance or regulation pertaining to, or regulate in any other manner the ownership, registration, purchase, sale, transfer, transportation, or possession of pistols, other firearms, or pneumatic guns, ammunition for pistols or other firearms, or components of pistols or other firearms, except as otherwise provided by federal law or a law of this state.1

Exceptions to Section 123.1102 include local legislation:

  • Prohibiting or regulating conduct with a firearm or pneumatic gun that is a criminal offense under state law2;
  • Prohibiting or regulating the transportation, carrying, or possession of firearms or pneumatic guns by employees of a local unit of government in the course of their employment with that local unit of government3; and
  • Prohibiting the discharge of firearms or pneumatic guns (with some restrictions on the latter prohibition) within the jurisdiction of a city or charter township4.

In the 2003 case Michigan Coalition for Responsible Gun Owners v. City of Ferndale, 662 N.W.2d 864 (Mich. Ct. App. 2003), the Court of Appeals of Michigan sustained a section 123.1102 challenge to a city ordinance making public buildings gun-free zones. The court stated that a local law is preempted by state law if the state law completely occupies the field the ordinance attempts to regulate, or if the ordinance directly conflicts with a state law.5

The court stated that section 123.1102 demonstrates that “in effect, state law completely occupies the field of regulation that the Ferndale ordinance seeks to enter,” namely, the carrying or possession of firearms.6 According to the court, the ordinance would only be allowable if a federal or state law existed which expressly permitted the regulation. Finding no law allowing the Ferndale ordinance, the court determined that the ordinance was preempted by section 123.1102.7

In Morgan v. United States DOJ, 473 F. Supp. 2d 756 (E.D. Mich. 2007), a federal district court held that a Redford Township zoning ordinance restricting the sale of firearms in a designated residential area was not preempted by section 123.1102. The Bureau of Alcohol, Tobacco, Firearms and Explosives denied renewal of plaintiff’s Federal Firearms License over concerns that the township interpreted its residential zoning plan as prohibiting the sale of firearms in premises located in residential districts. Plaintiff sued on several grounds, including that section 123.1102 preempted the zoning restriction. The court found that section 123.1102 does not preempt the zoning restriction because “zoning ordinances of general application merely regulate the location of certain categories of businesses, activities, or dwellings” and do not enter into the substantive field of regulation governing a particular business, activity or dwelling.8

The Michigan Attorney General has opined that local units of government “may not require an applicant for a license to purchase a pistol to provide his or her fingerprints” before issuance of the license.9 While the opinion was supported by several statutes, the Attorney General found primary support for this conclusion in section 123.1102 – a statute which, in the Attorney General’s opinion, occupies the “field of firearm regulation.”10

  1. Mich. Comp. Laws Serv. § 123.1102. []
  2. Mich. Comp. Laws Serv. § 123.1103 []
  3. Id. []
  4. Mich. Comp. Laws Serv. § 123.1104 []
  5. Responsible Gun Owners, 662 N.W.2d at 868. []
  6. Id. at 872. []
  7. Id. at 872-874. []
  8. Morgan, 473 F. Supp. 2d at 770 (emphasis in original). []
  9. Mich. Op. Att’y Gen. 7152 (2004), 2004 Mich. AG LEXIS 9, *8. []
  10. Mich. Op. Att’y Gen. 7152 (2004), 2004 Mich. AG LEXIS 9, *7. []

State Right to Bear Arms in Michigan

Posted on Thursday, July 23rd, 2015

Article I, § 6 of the Constitution of the State of Michigan provides that “[e]very person has a right to keep and bear arms for the defense of himself and the state.”

The Supreme Court of Michigan and the state’s other appellate courts have repeatedly held that Article I, § 6 is subject to the reasonable exercise of the state’s police power.1

In 2014, the Court of Appeals of Michigan ruled, in People v. Wilder, that a conviction for “possession of a firearm while intoxicated” did not violate the state right to bear arms.2 In doing so, the court noted that the right to bear arms was not universal, and that “there are constitutionally acceptable categorical regulations of gun possession.”3 Wilder distinguished an earlier case, People v. Deroche, 829 N.W.2d 891 (Mich. Ct. App. 2013), which had affirmed the dismissal of a charge for possession of a firearm while intoxicated, by observing that the possession of the firearm in Wilder was actual, rather than simply constructive.4

Michigan courts have also held that Article I, § 6 applies only to the possession of arms for the purpose of self-defense and provides no right regarding the use of firearms for hunting or sport.5

  1. See People v. Brown, 235 N.W. 245, 246-47 (Mich. 1931) (rejecting an Article I, § 6 challenge to a statute criminalizing possession of a blackjack, a weapon of “urban gangsters,” noting that Article I, § 6 provides no right to arms “whose customary employment by individuals is to violate the law”); Eaton County Deputy Sheriffs Association v. Smith, 195 N.W.2d 12 (Mich. Ct. App. 1971) (rejecting an Article I, § 6 challenge to a statute giving sheriffs the power to prohibit deputies from carrying guns while off duty); People v. Perry, 326 N.W.2d 437, 439 (Mich. Ct. App. 1982) (defendant’s conviction for possession of a firearm during commission of a felony did not violate Article I, § 6); People v. Graham, 335 N.W.2d 658, 661 (Mich. Ct. App. 1983) (Article I, § 6 “does not encompass the possession of a firearm during the commission of a felony.”); People v. Smelter, 437 N.W.2d 341, 342 (Mich. Ct. App. 1989) (upholding defendant’s conviction for possession of a stun gun as a “reasonable and constitutional” prohibition by the legislature); People v. Swint, 572 N.W.2d 666, 671 (Mich. Ct. App. 1997) (rejecting an Article I, § 6 challenge to a state law prohibiting possession of a firearm by a convicted felon); and People v. Green, 580 N.W.2d 444, 449 (Mich. Ct. App. 1997) (noting that a felon-in-possession statute did not violate Michigan’s constitutional right to bear arms provision);  but see People v. Yanna, 824 N.W.2d 241, 245 (Mich. Ct. App. 2012) (calling into question the holding from Smelter with respect to stun guns). []
  2. 861 N.W.2d 645, 648 (Mich. Ct. App. 2014). []
  3. Id. at 649. []
  4. Wilder, 861 N.W.2d at 649. []
  5. Kampf v. Kampf, 603 N.W.2d 295, 298 (Mich. Ct. App. 1999) (statute prohibiting firearm possession by an individual subject to a domestic abuse restraining order does not violate Article I, § 6 and is a reasonable exercise of police power, even though the individual wished to possess a firearm for hunting and sporting events); see also People v. Zerillo, 189 N.W. 927 (Mich. 1922) (holding that while a state law could prohibit non-U.S. citizens from possessing handguns for the purpose of hunting, the law would violate Article I, § 6 (previously codified as Mich. Const. art. II, § 5) if it prevented non-U.S. citizens from possessing a handgun to defend themselves or their property). []

Mid-Year Update: Tracking the Trends in Smart Gun Laws

Posted on Monday, July 20th, 2015

Every year, our attorneys comb the thousands of gun bills introduced into state legislatures across the nation. We’re looking for the bills that will have an impact—both positive and negative—on the devastating effects of gun violence in America.

So far, in 2015, we’ve tracked, summarized, and analyzed 1160 gun bills, and there are still more to come—some states, like California, haven’t finished their legislative cycle yet.

Some standout trends we’ve noticed this year include:

  • Defensive Victories: We’ve seen significant momentum in defeating gun lobby priorities like allowing firearms in schools—campus carry bills were defeated in 14 states and another 15 bills allowing concealed weapons at K—12 schools failed, thanks to efforts by gun violence prevention advocates.

To get the full picture of 2015’s legislative trends, check out the Gun Law Trendwatch 2015 Mid-Year Update. And don’t forget–in December we’ll release an end-of-year summary of all the state legislative activity in 2015, as well as our annual Gun Law State Scorecard, which ranks the states based on the strength of their gun laws.

Trafficking in Maine

Posted on Thursday, July 16th, 2015

Maine’s law regarding firearms sales records prohibits giving a false or fictitious name to a firearms dealer.1

Maine has no other laws addressing firearms trafficking.

See our Firearms Trafficking policy summary for a comprehensive discussion of this topic.

 

  1. Me. Stat., 15 § 455. []

Microstamping & Ballistic Identification in Maine

Posted on Thursday, July 16th, 2015

Maine has no laws regarding firearm microstamping or ballistic identification.

See our Ballistic Identification and Firearm Microstamping policy summary for a comprehensive discussion of this issue.

Ammunition Regulation in Maine

Posted on Thursday, July 16th, 2015

Maine law prohibits knowingly selling, furnishing, giving or offering to sell, furnish or give ammunition to a child under 16 years of age.1 Federal age restrictions for ammunition sales are stricter.

Maine law prohibits knowingly possessing armor-piercing ammunition, other than as part of a bona fide collection.2 The Maine definition of “armor-piercing ammunition” differs slightly from the federal definition of armor-piercing ammunition.

Maine does not:

See our Ammunition Regulation policy summary for a comprehensive discussion of this issue.

  1. Me. Stat., 17-A § 554(1)(B). A defense exists if the defendant was the parent, foster parent, guardian or an adult approved by the parent, foster parent or guardian who furnished the child under 16 years of age ammunition for use in a supervised manner. Me. Stat., 17-A § 554(2)(C). []
  2. Me. Stat., 17-A § 1056. []