N.J. Court: 2-A Doesn’t Apply Outside Your Door
The Second Amendment Foundation and Association of New Jersey Rifle & Pistol Clubs will appeal a federal judge’s ruling Friday that “the Second Amendment does not include a general right to carry handguns outside the home.”
Federal Judge William H. Walls, a Clinton appointee, dismissed a case filed by both organizations challenging New Jersey’s handgun carry laws, which have all but eliminated the right to self-defense with a firearm outside the home.
“The Second Amendment Foundation and ANJRPC are prepared to take this case all the way to the U.S. Supreme Court, where SAF has already won a landmark case defending the rights of gun owners,” said SAF founder and Executive Vice President Alan Gottlieb.
In upholding the New Jersey law, which effectively denies the right to carry a firearm for self-defense outside the home, Judge Walls wrote “the protection of citizens from potentially lethal force is compelling.”
“The judge has it backwards,” said ANJRPC President Scott Bach. “If he really cared about protecting citizens from lethal force, he wouldn’t be interfering with their constitutional right to defend themselves against violent criminals. Ironically, the U.S. Supreme Court has repeatedly held that the police owe no duty to protect individual citizens, so you’re on your own when you step outside your home. This decision wrongly demonizes those who want to take responsibility for their own safety and turns all but a privileged few into helpless victims.”
More at the PRNewswire link above.
27 Responses to “N.J. Court: 2-A Doesn’t Apply Outside Your Door”
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on 16 Jan 2012 at 7:16 am # egoist
And if / when you get past this conflict, bullets will be banned in guns. And if / when you get past that, lead will be banned (for EPA reasons). There’s such a spaghetti mess of controls, that even the ultimate set of politicians couldn’t possibly untangle it.
on 16 Jan 2012 at 7:31 am # Bill
So what other amendments are only applicable in your own home, but restricted outside of it? Free speech only in your own home?
on 16 Jan 2012 at 7:47 am # Arch
Buy your firearms with cash and start reloading. For $400, you can buy a basic single stage press, a good scale, trimmer, caliper and a set of dies. For another $100 you can start casting bullets from wheel weights which makes shooting shooting a .45 cheaper than a .22. CCI rimfires cost eight cents a shot. I can reload a .45 ACP for a nickel. You won’t save any money, but you will shoot a lot more.
There are three reasons I reload. Better ammunition, cheaper ammunition and freedom from political hacks like this judge.
on 16 Jan 2012 at 8:10 am # Mark L
Q. Why are New Yorkers all so grumpy?
A, Because the light at the end of their tunnel is New Jersey.
on 16 Jan 2012 at 9:06 am # McGehee
@Bill,
That’s easy: according to people like Judge Walls, you can only practice the free exercise of religion in your own home (but don’t invite others to practice there with you — zoning laws, don’t you know), and you can only peaceably assemble to petition the government for a redress of grievances in your own home (but don’t sit at a computer using the internet to do it, because when you’re on the internet you’re effectively out in public — ditto freedom of speech and of the press).
What part of “the right of the people” do judges like Walls not understand?
on 16 Jan 2012 at 9:44 am # retro
Rope, tree, activist Judge; some assembly required.
on 16 Jan 2012 at 10:16 am # Allan E.
Tar and Feathers optional.
on 16 Jan 2012 at 10:43 am # rboatright
McGhee and Bill,
What judges like Walls know is that the first amendment has any number of specific regulations about where and when you can exercise your right to free speech.
Does your right to free speech include the right to set up a powerful amplifier on a truck and speak through it in a residential neighborhood at night?
Roe v Wade changed the law so that a woman controls the right to have an abortion. Roe is based on the well established principle of Dr. Patient confidentiality, just like Atty client and Priest/confessor confidentiality. Does this mean there are no limits on those confidentiality rules? That the state can IN NO WAY regulate abortion or any other medical practice (euthanasia, etc) ?
Walls decision, that there is no -inherent- right to concealed carry, that the right to keep and bear arms has appropriate limits just as speech and privacy do and that the limits that are appropriate should be established by our elected legislators and not the courts is not an utterly irrational decision.
I -disagree- with New Jersey’s CCW laws, and I feel that they ill serve the population of the Garden state, but Walls decision is not unexpected. The function of the courts in this context, even as it is in speech and privacy is to assist in drawing the line between what a legislator can regulate and what it can not, and where that line ends up being drawn is a complex issue.
The anti-gun community makes a simple and unarguable case. Guns are inherently dangerous. Regulating their acquisition and the public’s exposure to them seems like an appropriate function of a legislature. While the case seems clear that NJ has gone far too far in such regulation, Walls decision that they can so regulate and that where to draw the line is a legislative function is not a horrific perversion of the law.
Remember, as Walls recognized and the NJ defense atty pointed out, NJ does not outlaw all gun use outside the home. NJ has a large and active hunting community, NJ does issue some CCW permits (1500 active in 2010), you can carry your unloaded gun to and from the range, etc etc. so it’s inappropriate to attempt to compare the NJ ccw laws with being unable to exercise free speech or religion outside your home.
This is a tricky bit of law, and JUST like speech or religion, the process of deciding where to draw the line between appropriate regulation and rights guaranteed by the constitution will be a process which will never end. But don’t be too harsh on Walls, his position, even if wrong, is well-considered.
on 16 Jan 2012 at 10:51 am # rboatright
Judge Walls decision is here: http://ia700301.us.archive.org/16/items/gov.uscourts.njd.249720/gov.uscourts.njd.249720.40.0.pdf
Read it before you attribute to him beliefs and actions which he doesn’t have or take.
on 16 Jan 2012 at 10:58 am # Steve
“Roe v Wade changed the law so that a woman controls the right to have an abortion. Roe is based on the well established principle of Dr. Patient confidentiality”
No, it is not. That remark shows an embarassing lack of knowledge of the law.
“Walls decision, that there is no -inherent- right to concealed carry, that the right to keep and bear arms has appropriate limits just as speech and privacy do and that the limits that are appropriate should be established by our elected legislators and not the courts is not an utterly irrational decision”
You just got done citing your (mistaken) approval of Roe, and then you express your wish that the courts let the legislature make the law? Lefties are dee u em dum.
on 16 Jan 2012 at 11:02 am # ted b
In fact, NJ already effectively bans appropriate self-defense ammo by criminalizing the use of hollow-points. You had better have soft-points or full-metal jacketed rounds when you defend yourself or you off to jail you go.
on 16 Jan 2012 at 12:07 pm # Jimmy in Texas
@rboatright
I’m not an attorney but, I pretend to dislike them online.
The simple flaw in your argument for “appropriate limits” is that this judge applied a limit based on potentiality and other actually appropriate “appropriate limits” are applied based on actuality. To follow your logic, we should never be able to pull our cars out of the garage because of the (vastly greater) potential we will kill or maim with the vehicle.
And, to use your example, we should never be allowed to take our mouths out of the house because of the potential we will exceed the “appropriate limits” of our First Amendment right to free speech.
And, if the judge was truly concerned with potentiality, he would look at the violent crime rates in states with liberal (read that, less restrictive) gun laws. The potential more liberal gun laws will result in fewer crimes committed with them is born out in the statistics and experiences of the States that enact them.
Criminals already disobey the law. Criminals that carry guns only exploit stupid jurisprudence that disarms the law-abiding among us.
And, by the way, all tools are inherently dangerous.
on 16 Jan 2012 at 12:10 pm # Jimmy in Texas
I should have added to that first paragraph, there are appropriate limits to our second amendment right to keep and bear arms.
We are appropriately limited, by law, from using that gun — either intentionally or through negligence — to harm another person.
That’s an appropriate limit. One that is generally applied to other potentially dangerous tools we employ; knives, crowbars, cars, pencils, etc…
on 16 Jan 2012 at 12:27 pm # rboatright
Steve,
First, I am far from a lefty.
and I am far from an anti-gun person. NRA member, member of my local gun club, CCW, amateur gunsmith, etc etc.
Further, allow me to argue that I am neither stupid nor unaware of the law. In citing Roe, I was trying to quickly say that in Roe the Court ruled that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman’s decision to have an abortion. I grant that my sentence was substantially shorter, and apologize for distracting you from the purpose of this discussion. In the context of this case, the basis for the decision in Roe is unimportant.
I wasn’t citing Roe as equivalent to Piszczatoski v Filko, I was referring to the huge mass of court decisions which have happened SINCE Roe outlining the extent to which a legislature can regulate a woman’s control over aborting a pregnancy. Similarly in Piszczatoski Wall’s decision is one of many recent decisions drawing the lines of the limits of the law which changed after Heller.
The basis for the Roe decision, or for other decisions with far ranging social effects like Miranda or Gideon are unimportant. What is important is that a base decision which changes the face of jurisprudence and legislation in regard to an area of behavior inevitably has to be shaken down over a long time to delineate the details of the lines between freedom and liberty and law and regulation.
Scalia’s decision in Heller was very clear that they were not addressing the entirety of the 2nd amendment. Heller sued to get the ability to keep a handgun in his home. They granted that. Gottlieb and Co are, quite rightly, carefully setting up cases in which they attempt to extend the 2nd past the front door which is something of a line in Heller.
In Heller, Justice Scalia wrote: “Whatever else it leaves to future
evaluation, [the Second Amendment] surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Justice Scalia further wrote that the Second Amendment does not confer “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” It then becomes the job of the lower courts, interacting with the legislature to establish where those lines are and makes clear that any extension beyond “hearth and home” will be left, in his own words, to future evaluation.
In order to get a broader ruling on the subject of carry for self defense outside the home, which Heller very explicitly did not address, they have to actually LOSE in the district court. If Gottlieb & Co. want to get another SC case that extends “bear” past your property line, onto public property” then this is exactly the kind of decision they need.
Assuming that we want to live in a nation of laws rather than some libertarian dream state, it is entirely appropriate that the legislature exercise some prior control over actions: Building a stripper club next door to a public school, running your speaker truck through a residential neighborhood at night, explaining that freedom to exercise religion doesn’t justify human sacrifice, etc. Similarly, it is entirely appropriate that the legislature have some control over firearms. The question will be in the details of where those lines get drawn, just as they have in speech, and just as they have in re Roe.
Look at Walls decision, starting on about page 26 where he carefully delineates what he would need to decide this case in a different way. Scalia’s decision in Heller just didn’t go that far, and Gottleib knows that, and he is setting up cases across the country which will eventually make their way to the SC…
Walls isn’t being a creep in this decision. He did a good job. There’s no place in the entire piece where you can point and say “Gun hating lefty.” It just isn’t there. Basically, he said “The SC didn’t go this far, and this is above my pay grade, sorry, but there’s no basis yet for what you claim.”
I profoundly believe that is exactly the decision that Gottleib expected, and probably wanted.
on 16 Jan 2012 at 12:38 pm # rboatright
@Jimmy
Judge Walls didn’t do the analysis you ask him to do for any number of reasons. I’ll mention two.
First, the plaintiffs didn’t go there. No arguments in court discussed comparative crime rates, so he couldn’t include that in his decision.
Second, the suit was to get an injunction against NJ’s carry law because the plaintiffs claimed it was unconstitutional on it’s face. Whether or not it made NJ safer has nothing to do with the question of is it constitutional. The argument on public safety is an appropriate one for the legislature, not the courts.
Jimmy, you’re setting up a pretty silly straw man when you argue that we can’t take our mouths out of the house.
We have any number of areas of prior restraint in the area of speech. There are zoning laws about where, and what size signs may be, there are noise pollution laws, there are parade and public gathering permit laws, there are laws against libel and slander.
Similarly, even in the case of fully accepting the 2nd as the equivalent of the 1st, there would be appropriate limit, prior restraint laws. Don’t ask me to establish what those will be, I don’t know, it will take years of judicial and legislative action to work out a balance, and in accord with the principle of the 10th amendment and states rights, those accords doubtless will differ in detail from place to place and state to state even as your exercise of the 1st does.
on 16 Jan 2012 at 3:13 pm # Ontoliberty
rboatright:
Of course we have no right to self defense outside of our homes.
Of course that’s what the founders envisioned for this nation,that they wanted the state to determine when and where you would be allowed to carry tools for your own security and that of your state,according to the whim of a man or group of men intent on enforcing their tyrannical will upon the general populace.
I’m sure that’s what they had in mind,having just thrown off the yoke of an all powerful and tyrannical King George III.
Otherwise they would have put it in plain wording:
A well regulated Militia,being necessary to the security of a free State,the right if the people to keep and bear Arms,shall not be infringed.
Or something to that effect.
on 16 Jan 2012 at 4:00 pm # rboatright
@Ontoliberty
Agreed.
You’re confusing the procedural discussion with my personal beliefs.
And, since I strongly support a nation of laws created by our elected legislators rather than by the judiciary, I believe that a grass roots campaign to change the gun laws in this country through legislation is a better solution than the courts.
The continued rise of shall issue CCW across the country, the current petition drive to get shall issue on the ballot in California, etc make me hopeful that those rights might be salvaged through the legislative process rather than the courts.
We might finally bury the ghost of the Sullivan act, little more than a century after it passed.
on 16 Jan 2012 at 4:14 pm # Mahon
This doesn’t seem very complicated. What does “bear” mean, in “keep and bear arms?” It clearly does not reference an ursine mammal, so “carry” is the logical definition. If the intent of the Second Amendment was to permit the limitation of firearm possession to the home, “keep” would have been sufficient; the addition of “bear” is unnecessary unless it provides for carrying around in public. As far as I can see, the only possible rebuttal to this is “I don’t need no stinkin’ Constitution; I know better.” If that is what Judge Walls believes, he should say so.
on 16 Jan 2012 at 4:50 pm # fast richard
Some of this discussion seems to assume that the Third World Hellhole of New Jersey is truly a part of the free United States of America. This is only nominally the case, just as the southern states during Jim Crow Segregation were only nominally free. New Jersey, to its shame, is currently the least free state in the union.
New Jersey has been owned lock, stock, and barrel, by the mob for so long that it may take a very long time to liberate it. There are no judges or politicians in that state who are completely free of mob influence. Even those not directly tied in are tainted by the status quo.
Just as it took a while for the thirteenth, fourteenth, and fifteenth amendments to be brought back into force after they had been ignored for many decades, it will take time to reinvigorate the second. Rboatright strikes me as similar to some in the fifties and early sixties who agreed in theory with the civil rights movement, but who thought people like Martin Luther King Jr. were far to impatient and radical.
New Jersey has been allowed to get away with these anti-American gun laws for a long time. It will take a determined assault through the judicial system and/or a more active approach by Congress to remedy the situation. We need better judicial appointments and more pro-gun Senators and Representatives.
on 16 Jan 2012 at 5:13 pm # Ontoliberty
rboatright:
I guess the point I was trying to make us that all of this legal wrangling and discussion of procedure and judicial activism is a moot point.
SHALL NOT BE INFRINGED means exactly that.
The whole point being that there is no legal means to interfere with that right.At All.
Any attempt to do so is a usurpation of authority and beyond indefensible,bordering on sedition.
It does not say the privilege to keep and bear arms is subject to appropriate regulation and judicial review.
Despite the statist ambitions of the enemies of liberty.
on 16 Jan 2012 at 6:13 pm # rboatright
@Ontoliberty
Are you equally willing to put the exact same libertarian rules in place in regard to the First?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
So, it’s perfectly OK for Westboro Baptist Church to picket soldiers funerals right outside the church singing their hymns of hate and interrupt the funeral and cause pain and grief to the family, because Congress can make no law respecting the free exercise of religion, nor abridge the freedom of speech, nor the right of the people to peaceably assemble.
And, it’s perfectly ok for you to sit next to the kiddies playground juggling hand grenades, because your right to keep and bear arms shall not be infringed.
You can take the position that those are the countries you want to live in, but you won’t find a majority of the voters in the republic to back your candidate. Even with a vastly less radical agenda, Ron Paul is unelectable.
@fast richard
I didn’t think King was too radical, and I don’t think Gottleib is pushing too fast. Gottleib is following a carefully plotted arc to get the cases decided he needs to in order to bring these issues before the court. Meanwhile, NRA-ILA and others are working in the legislative arena to get state carry laws in place and things like HR822 passed. Just as it was in the case of 13, 14 and 15, it’s a two pronged strategy.
And of course, since the Court decided McDonald on Commerce Clause grounds, 14 is still largely moot.
on 16 Jan 2012 at 6:15 pm # rboatright
@Mahon
It isn’t Judge Walls job to decide what “bear” means. His job is specifically to decide the constitutionality of the law based on precedent.
He did that. The SC has yet to rule on what “bear” means. Scalia said that was for future cases, and so it shall be.
Read Wall’s decision before you attribute motive to him he didn’t have.
on 16 Jan 2012 at 8:59 pm # Laszlo
“So, it’s perfectly OK for Westboro Baptist Church to picket soldiers funerals right outside the church singing their hymns of hate and interrupt the funeral and cause pain and grief to the family, because Congress can make no law respecting the free exercise of religion, nor abridge the freedom of speech, nor the right of the people to peaceably assemble. ”
These people are there expressly to disturb the peace and to interrupt others’ solemnity. This is seen by many as a violation of the mourners’ rights. This is one right violating another. As with the retarded “yelling fire in a movie” theater example. Doing do violates many peoples’ rights, and thus is an ABUSE of a right.
Keeping and bearing firearms beyond the boundaries of one’s household, in an of itself does NOT violate anyone’s rights. It is not an abuse. The government has no authority whatsoever to step in until and unless an individual abuses the right. And still, their authority only extends to the one person doing the act, not an entire class of non-elite persons who MIGHT do something wrong.
on 16 Jan 2012 at 10:42 pm # Ontoliberty
rboatright:
Yes,the Westboro Baptists have the right to be complete jackasses in public.They also have the right to show the world their lack of respect for the grieving families of the fallen.They also run the risk of provoking a reaction from the family of the dead.
The first amendment is intended to protect offensive speech as polite,inoffensive speech needs no such protection.As soon as we proclaim a right to be free from being offended,we all might as well eat a bullet,because we will all surely be locked up for body odor or manner of dress(Fashion Police) or any number of thousands of possibilities of offending someone.
As for juggling hand grenades on the playground,anyone with an ounce of common sense would agree that that is reckless behavior,myself included.
on 16 Jan 2012 at 10:47 pm # Ontoliberty
Hymns of hate?Is that like hate speech?Another attempt to squelch dissenting opinions predicated upon the right to not be offended.
That is the same logic being used to silence opposition to islam over in Europe.
We either have free speech or we don’t.Simple really.
on 17 Jan 2012 at 7:21 am # Jimmy in Texas
@rboatright
The cruxt of my response was directed at this paragraph from your original post:
“The anti-gun community makes a simple and unarguable case. Guns are inherently dangerous. Regulating their acquisition and the public’s exposure to them seems like an appropriate function of a legislature. While the case seems clear that NJ has gone far too far in such regulation, Walls decision that they can so regulate and that where to draw the line is a legislative function is not a horrific perversion of the law.”
Guns are no more “inherently dangerous” than are a multitude of other tools that could be substituted in that simple and unarguable case. Vehicles being at the top of the list but, to my “straw man” argument, so can mouths be.
Walls has the capacity to also find the State went too far in restricting our constitutional right to keep and bear arms.
on 17 Jan 2012 at 12:16 pm # richard40
I would have thought that the bear part of “keep and bear arms” sort of implied that you might be carrying them along with you outside of your house. I could see the possibility of some time place and manner restrictions. For examle, a law requiring the safety be on, or even that the gun be unloaded, with the ammo carried in a seperate pocket, might be constitutionally permissable (although not something I would vote for). But if you cant even carry the gun in public, how can you get to the the gun club, or the hunting preserve.