Wednesday, March 16, 2011

New Jersey’s response to gun rights: Get Bent

The NJ counter-brief

THIS COURT SHOULD GRANT DEFENDANTS’ MOTION TO CROSSDISMISS PLAINTIFFS’ COMPLAINT BECAUSE THE CHALLENGED PROVISIONS OF N.J.S.A. 2C:58-4 ARE CONSTITUTIONAL. . . . . 3
A. The Challenged Provisions Do Not Implicate the Second Amendment Right to Possess a Handgun in One’s Home for Purposes of Self-Defense And the Second Amendment Does Not Encompass a Right to Carry a Handgun Beyond One’s Home.. . . . . . . . . . 4
B. Even If the Challenged Provisions Implicate the Second Amendment, They Pass Constitutional Review. . . . . . . . . . . . . . . . . . . . . . . . . . 10
1. The Challenged Provisions Are Constitutional Under Any Heightened Scrutiny. . . . . . . . . 11
2. The First Amendment’s Prior Restraint Framework Does Not Apply.. . . . . . . . . . . 15
CONCLUSION .. . . . . . . . . . . . . . . . . . . . . . . . . 19

The doc then proceeds to elaborate. This is in response to this brief, which stated

POINT I: SAF AND ANJRPC HAVE ORGANIZATIONAL STANDING ..................... 4
POINT II: HELLER HOLDS THAT THE SECOND AMENDMENT PROTECTS THE GENERAL RIGHT TO POSSESS AND CARRY A GUN – AND THE RULING IS NOT “LIMITED” TO THE HOME ................................................. 7
A. The Holdings of a Decision are the Parts Necessary to the Result Reached by the Court – Not Just the Boundaries of Relief Ordered ....................................................................................... 8
B. The Plaintiff in Heller Expressly Sought the Right to Possess and Carry a Handgun ............................................................................ 9
C. Heller Holds that the Right to “Bear Arms” is the Right to Carry Guns .......................................................................................... 12
D. The Heller Court Did Not Limit its Ruling to the Home .................... 15
E. The Dicta in Heller (and McDonald) Recognize a General Right to Carry Guns in Public ............................................................. 18
F. Caselaw Does Not Support the Claim that the Second Amendment Protects Only the Possession of Handguns within the Home ............................................................................................. 24
POINT III: THE “JUSTIFIABLE NEED” REQUIREMENT IS INHERENTLY DISCRETIONARY AND FAILS REVIEW AS A PRIOR RESTRAINT ................ 32
A. There is No Basis to Depart from Marzzarella’s Instruction to Utilize First Amendment Standards of Review .................................. 33
B. The Permit Laws Are Prior Restraints Because they Condition Constitutionally Protected Conduct on an Official Grant of Permission ........................................................................................... 35

C. The Determination of “Justifiable Need” is Plainly and Inherently Discretionary ...................................................................... 39
POINT IV: “JUSTIFIABLE NEED” IS AN IMPERMISSIBLE BURDEN ...................... 42
A. The Supreme Court Explicitly Rejected the Attempt to “Balance Away” the Core Protections of the Second Amendment .................... 43
B. There is No Basis for Applying the Proposed “Reasonable Regulation Test” .................................................................................. 45
C. The “Justifiable Need” Requirement is an Impermissible Burden on the Exercise of Constitutional Rights ................................ 49
CONCLUSION .......................................................................................................... 53

Handy that both of them make such easy reading out of their table of contents.

Anyway, now that everyone has drawn up their forces, it goes to the legal battlefield. This is all posturing anyway, since whatever the court of the first instance decides, it’s likely to be appealed. (Faint possibility, Governor Christie could order the NJ AG to stand down after a loss, but I think that vanishingly improbable).

1 comment:

  1. Hello,

    The government provide license to have a gun for your safety by examining all the details about your profession. The rules are very strict for everyone, so it is good always supply all the truth about yourself to the court. Thanks a lot.

    How To Get Federal Firearms License

    ReplyDelete

Please keep it civil