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In
a landmark written opinion filed February 27, a New Jersey Superior
Court recognized the Second Amendment of the U.S. Constitution and held
that a citizen’s Constitutional Right to Keep and Bear Arms cannot be
involuntarily waived under a New Jersey firearms forfeiture law.
“The recognition of Second Amendment rights in New Jersey is long
overdue,” said ANJRPC Regional Vice President and attorney Evan F.
Nappen, who represented appellant Dennis W. Peterson in the Warren
County case. In the appeal, the Second Amendment was applied to New
Jersey via the Constitutional doctrine of fundamental fairness,
overcoming a significant legal hurdle needed for the Federal Bill of
Rights to apply to the State.
This decision coincides with the recent Parker v. District of Columbia
case, in which the U.S. Court of Appeals for the District of Columbia
struck down a decades-old handgun ban in Washington, D.C. on the ground
that it violates the Second Amendment.
“The legal significance of the Second Amendment is finally being
recognized by American courts,” Nappen continued, “and this New Jersey
case is part of a growing trend in American jurisprudence.”
In
the New Jersey case, the appellant was denied re-issuance of his
Firearms Purchaser ID card based on his consent to relinquish firearms
seized in a domestic dispute in 2000. In 2004, New Jersey enacted a law
barring Firearms Purchaser ID cards to any person whose firearms have
been seized and not returned.
The
Honorable John H. Pursel, J.S.C. held that the statute did not apply and
the Firearms Purchaser ID card should be issued because the appellant
did not know that his prior consent to relinquish his firearms would
subject him to permanent loss of his Second Amendment rights under the
2004 law.
The
ruling states in key part:
“Fundamental fairness is a doctrine to be sparingly applied. It is
appropriately applied in those rare cases where not to do so will
subject the defendant to oppression, harassment, or egregious
deprivation.” Doe v. Poritz, 142 N.J. 1 (1995), citing State v.
Yoskowitz, 116 N.J. 679, 712, 563 A.2d 1 (1989) (Garibaldi, J.,
concurring and dissenting). Egregious deprivation would surely be the
result if this applicant were precluded from obtaining a firearms
purchaser identification card by virtue of the fact that he consensually
surrendered his weapons at a time when it was impossible for him to have
known that such action would later subject him to lifelong deprivation
of his second amendment right.
Additionally, it is clear that in consenting to the disposition of the
weapons seized as a result of the temporary restraining order, the
applicant did not intend to waive his right to bear arms as provided by
the second amendment of the U.S. Constitution. He therefore could not
have knowingly, intelligently, or voluntarily waived that right.”
(Emphasis added.)
The
full text of the opinion is available here:
http://www.evannappen.com/lawupdate1gunbook/pdfs/peterson.pdf
The
Warren County Prosecutor has filed a notice of appeal in the case.
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