Gun Lawyer Episode 119
firearm, sbr, gun, prohibited, brace, places, pistol, litigation, state, blocked, new jersey, law, short barrel rifle, carry, court, protect, possess, preliminary injunction, lawyer, atf
Evan Nappen, Speaker 3
Evan Nappen 00:20
I’m Evan Nappen, and welcome to Gun Lawyer. Well, these sure are exciting times that we’re living in. As I’m sure you’ve been following, we’ve had tremendous successes in the litigations that have been ongoing against Murphy’s onslaught against our Second Amendment rights in New Jersey. The Governor is spearheading the anti-civil rights bills that are focused on destroying Constitutional rights, particularly the Second Amendment. Just recently I am happy to say that his Industry-Killer Bill, which was designed to allow abuse through the civil system by way of the Attorney General being able to sue gun companies all over America and anyone associated with firearm manufacturing, etc, and go at them under this guise of consumer safety, etc. This whole gambit has been granted a preliminary injunction against that law taking place. That’s one of their main missions there. To become a national destroyer of firearm rights for the country not just for New Jerseyans, and to eliminate the right for all Americans throughout the country. It has now been the recipient of a preliminary injunction, and congratulations are due to those folks in gaining that preliminary injunction.
Evan Nappen 02:08
At the same time, the New Jersey Carry Killer bill, which was and still is a bill designed to limit and destroy our ability to no longer be victims, but instead to become defenders against violent criminals. Of course, as soon as the Court in the Bruen decision came out with their ruling and the great Justice Thomas’ opinion, empowering and putting teeth into the Second Amendment and our ability to carry a firearm outside the home, the most effective means of self-defense, and be able to defend ourselves, New Jersey jumped jammed through the legislature a bill to try to limit, in every way possible, the carrying of a firearm in New Jersey. Because now that permits had to be issued, they wanted to make the permits themselves a nullity, and what they did was pass this what we call “Carry Killer” law.
Evan Nappen 03:29
The Carrier Killer law was immediately challenged. As soon as it became effective, there was litigation brought, essentially two major lawsuits. One by what we call the Coalition. Four pro-gun groups together bringing an action that was somewhat limited, but very effective. It focused on the “sensitive places” restrictions. The State Association, the Association of New Jersey Rifle & Pistol Clubs, is a proud sponsor of Gun Lawyer. They brought a more comprehensive litigation, but it was heard after the Coalition litigation had been granted the TRO. The Association litigation got consolidated into the same action in court as the Coalition’s litigation and that actually worked out tremendously. Remember these Page – 2 – of 7
groups are not in competition with one another and here, it actually worked beautifully. Because the first action, which was somewhat more limited than the Association’s action, got an injunction and that got the camel’s nose in the tent, so to speak. Then the Association’s litigation more comprehensive, additional injunctive relief by way of a Temporary Restraining Order was expanded.
Evan Nappen 05:10
So, now I want to review with you, the listener, because I know you want to know where you can and cannot carry under the new litigation that was put forward by the Association of New Jersey Rifle & Pistol Clubs. We have the following places where there were carry restrictions, but those restrictions have now been blocked by the court as to being unconstitutional. These places specifically include, very important, the vehicle prohibition. The “Carry Killer”, anti-civil rights bill by Murphy had a provision that said when you get in a vehicle, your gun had to be unloaded and locked in a box. We call that provision, the “Car Jacker Protection” law, because that’s what it did. It protected criminals and carjackers and those bent on violently attacking you in your car. It protected them while forcing you to be a victim and to be disarmed. That has been enjoined and restricted, blocked by the court. So, it is not in effect, and you can carry with a Carry Permit a loaded handgun in your vehicle.
Evan Nappen 06:44
There is a private property restriction in which it mandated that the property owners had to affirmatively state, affirmatively state, that you could carry your gun on private property where you were otherwise, the default setting, if you will, the default setting was that you could not carry and that has been blocked by the court. So, that private property rule is not enforceable. Additionally, there was a prohibition on having a firearm in a bar or in a restaurant where alcohol is served. That has been blocked by the court. You can have your gun at a bar or restaurant where alcohol is served. Now, that doesn’t mean that you can drink alcohol or that you can have alcohol consumption. But if you’re in a place where alcohol is being served, you can still have your firearm under your carry permit.
Evan Nappen 07:49
Entertainment facilities – that was attempted to be banned where you could not have your gun in a movie theater. You could not have your gun at entertainment venues. That has been blocked by the court. You are allowed to have your firearm, your personal protection at entertainment facilities. There was a block on parks and beaches and other recreational facilities that has been blocked. You can have your firearm at parks and beaches and other recreational facilities. The only one of the sensitive places in that section to not be blocked is playgrounds, children’s playgrounds. You are still prohibited from having your firearm even with a carry permit. Additionally, there is the restriction that was on State Park Service properties. That has been enjoined from state parks – blocked by the court. Casinos, believe it or not, casinos and casino or casino simulcast facilities – that has been blocked, that has been restricted. So, you can carry in the casino or casino facilities. Also, publicly owned library or museum – that was attempted to be a sensitive place and that has been blocked. These are all the places that the court has stepped in and said no, you can’t enforce that. That’s not enforceable, and blocking the enforcement so that law- abiding citizens can protect themselves.
Evan Nappen 09:36 Page – 3 – of 7
Now, there still are a bunch of places that you are prohibited. This is just the initial stages of this litigation. Keep in mind as it proceeds, the next step is whether there’ll be a preliminary injunction and then after that a final injunction and these things can change. We may, in fact, see more places blocked from being enforcement of so-called sensitive places, barring us from having guns, or we may see, it’s possible, that some of the places currently being blocked from enforcement may suddenly be unblocked and found to be constitutional. I doubt it. Because the standard is so high to get that Temporary Restraining Order with that likelihood of success. But it could happen. So, this is an evolving situation.
Evan Nappen 10:32
But currently, in the places that I’ve discussed, you are lawful to still carry there. Additionally, the Court made it clear about educational facilities where there’s prohibition that these things are narrowly construed. The State even conceded in the hearings, narrow construction. My colleague, Dan Schmutter, is an excellent attorney, and he litigated this. He did a great job there for ANJRPC, and he ended up getting some really great concessions out of the state as well as a victory from the court.
Evan Nappen 11:17
But the following places are still prohibited, and I want you to be aware of that. Places of government administration, you know, administration buildings, essentially, police stations are still prohibited. That’s a good example. Courthouses, correctional facilities, all right. Don’t bring your gun to state prison. Okay? I mean, seriously, I had to tell you that, but okay. It’s in the law. State contracted halfway house, don’t go armed to the halfway houses. Playgrounds are still prohibited. No guns at a playground. Polling places, election etc. Don’t have your guns at polling places. Public gatherings are still on the list. This can seemingly be somewhat vague, and I’m sure there’s going to be challenges. These things have to be narrowly construed. But beware of public permitted gatherings where there may be restriction there. Be cautious about that.
Evan Nappen 12:20
Childcare facilities prohibited – nursery school, preschool, zoo and summer camps. This is still prohibited area, but these are narrowly construed, of course. But still, they’re prohibited. I think it’s interesting how they group nursery schools, preschools, summer camps, and zoos. With kids running around, I guess it is like a zoo. Hmm. But zoos are still right in there. College, school, university, other educational institutions and youth sporting events. These are still prohibited places. Homeless shelters. Licensed community residences for disabled and terminally ill.
Evan Nappen 13:06
Cannabis retailers or dispensaries. So, if you’re going to go buy weed, do not carry your gun into the dispensary. Not only is it prohibited under New Jersey law, but if you’re using weed, it’s prohibited for you to have a gun at all. That’s federal law. Now, it’s actually illegal as well for the state to be selling marijuana, because it’s still prohibited under federal law. But that they don’t worry about. They just don’t want you carrying a gun in their drug dealing facilities, you see? So, please don’t do that.
Evan Nappen 13:40 Page – 4 – of 7
Additionally, there’s a prohibition on the energy plants, whatever this means, where energy is produced. It’s kind of vague. It’s kind of broad. I mean, if you have solar panels, you can’t ever carry? It’s got to be narrowly construed, but watch out for energy plants, airport or transportation hubs. These are also problems and prohibited and sensitive places. Addiction or mental health treatment facility. Then the movies, public filmmaking, that we call the Alec Baldwin prohibition. You cannot have your gun if you’re making movies. So, those are still in place. Now whether they will remain in place remains to be seen. Beware and be careful.
Evan Nappen 14:32
But there has been expansion and the ability to carry has been broadened here by Judge Bumb, who has done a great job in Federal Court. Really laying out the case beautifully and showing why the Temporary Restraining Order should issue and in fact did issue, but the fight is not over. We’re going to be heading into that preliminary injunction phase and from there to what will be final injunction. I’m sure there’ll be continued litigation. This is why it’s so important that you belong to the Association of New Jersey Rifle & Pistol Clubs, anjrpc.org. They’re funding and fighting for our rights, not just in court, but also legislatively, with our lobbyists, full time paid down in Trenton. This keeps you, as a member, up to date with the email alerts that come out. It really tells you what’s going on up to the minute so you can get the hottest, freshest, most important gun news. Make sure you belong to the Association of New Jersey Rifle & Pistol Clubs. When we get back, we’re going to tell you about the impact of the Biden Pistol Brace ban. It is also in a state of evolution, but there are important things you need to know now that it’s been promulgated.
Speaker 3 16:12
For over 30 years, Attorney Evan Nappen has seen what rotten laws do to good people. That’s why he’s dedicated his life to fighting for the rights of America’s gun owners. A fearsome courtroom litigator fighting for rights, justice, and freedom. An unrelenting gun rights spokesman tearing away at anti-gun propaganda to expose the truth. Author of six best-selling books on gun rights including Nappen on Gun Law, a bright orange gun law Bible that sits atop the desk of virtually every lawyer, police chief, firearms dealer, and savvy gun owner. That’s what made Evan Nappen America’s Gun Lawyer. Gun laws are designed to make you a criminal. Don’t become the innocent victim of a vicious anti-gun legal system. This is the guy you want on your side. Keep his name and number in your wallet and hope you never have to use it. But if you live, work, or travel with a firearm, that deck is already stacked against you. You can find him on the web at EvanNappen.com or follow the link on the Gun Lawyer resource page. Evan Nappen – America’s Gun Lawyer.
Speaker 3 17:26
You’re listening to Gun Lawyer with Attorney Evan Nappen. Available wherever you get your favorite podcast.
Evan Nappen 17:33
Hey, welcome back to Gun Lawyer. I’m Evan Nappen, and I appreciate your listening to the show. My being able to get the word out to help you to protect yourself and to see what’s going on. To get the real truth on these gun issues that the media itself does such a poor job of ever communicating. Now recently, we’re seeing movement on the Biden Pistol Brace Ban. It’s really a shame because the pistol Page – 5 – of 7
brace originally was designed to help wounded veterans and other disabled folks be able to shoot more accurately. It is a device that goes on a pistol that helps steady the pistol by creating a brace effect to one’s arm, increasing the size of the handgun, because it has this brace coming off the back. By attaching to one’s arm, it makes a gun more accurate.
Evan Nappen 18:53
So, what you have is Joe Biden and company banning accuracy with handguns. Because that’s all a pistol brace does is help the individual to shoot more accurately. They have created a law that they pulled out of their ass, frankly, because it’s not passed by Congress. It’s done by ATF making an interpretation that’s counter to the interpretation that they’ve had for almost 10 years, saying that a brace is okay and that a brace is lawful. Suddenly putting three to 30 million Americans in jeopardy of now possessing a short barrel rifle (SBR) because their pistol with a brace is now recategorized.
Evan Nappen 19:47
When you get right down to it, what does the brace do on the pistol? It makes it more accurate. Somehow they are saying in so many words that a more accurate firearm is a danger and that we want less accurate firearms. We want handguns that cannot be shot as accurately. We want wild rounds missing the target and going far and broad and hitting innocent persons. We don’t want you to be able to control your gun and control your shot even though they claim to be for “gun control”. But they’re not for this kind of gun control. We’re talking about gun control where you actually can control your gun. No, when it comes to actually controlling your gun, they want to stop that, and they criminalize it.
Evan Nappen 20:41
They, therefore make a braced gun, a declared SBR (Short Barrel Rifle) which puts it in the prohibition category under federal law that is equivalent to possessing a machine gun. So, if you have a braced pistol, it’s the same as having an unregistered machine gun. The Feds put out a rule in which the options are not many for New Jerseyans, particularly. Now generally in America, if you can possess an SBR in whatever state you’re in, the Feds will let you register your pistol braced gun. And with it registered, meaning a federal registration under NFA (National Firearms Act), normally, that’s $200. They are somehow waiving the $200, which is frankly, legally not possible, because only Congress would have the authority to do that. The agency doesn’t have the ability to say no tax. But somehow they’re trying to get away with that by calling it, I don’t know, some other thing other than actual tax waiver. But the bottom line is, they’re normally should be a $200 fee. They’re getting rid of that, whether that’s lawful or not, remains to be seen. You get to file the National Firearms Act (NFA) registration, and once you do that, then it registers your braced pistol as an SBR.
Evan Nappen 22:21
The problem is in New Jersey and other states like Connecticut as well, there is no lawful way to possess an SBR. So, by not being able to possess that SBR under state law, you now simply have contraband. ATF is not allowing for registration of pistol braced firearms in jurisdictions where possession of an SBR would not be lawful. So, if you are in New Jersey, you want to register your pistol braced firearm as an SBR, and you’re willing to file the form to do it and to go through the hoops and loops to do the proper Federal registration, ATF will not allow you to register it. You will not be permitted to do so because the state jurisdiction that you’re in, in this case, New Jersey, or for example, Page – 6 – of 7
if you’re in Connecticut, does not allow your possession of the item as NFA. So, you’re barred from making yourself legal. You cannot make yourself legal by doing that registration.
Evan Nappen 23:48
This period of time that’s available to make yourself legal is 120 days, that’s it. After that 120 days, if you haven’t registered it as an SBR, then you’re unlawfully in possession of that SBR. The other options are you can destroy and get rid of your firearm. I’m sure you’re all going to run out and do that. Or it appears that you can remove the brace and that currently, right now, the best advice is to remove the brace from the handgun.
Evan Nappen 24:33
With the brace removed from the handgun, it is no longer an SBR, and there’s case law that talks about how this has to be interpreted. That’s the Supreme Court case of Thompson Center. In that case, the Court essentially decided that even if you have the parts that could make, for example, an SBR or short barrel rifle, if you have not assembled it into that, and you have other parts there that you could make it into a lawful firearm, that under what’s known as a rule of lenity, you are legal for your possession.
Evan Nappen 25:19
So, for example, let’s say you have an AR pistol that has an AR brace on it, and you’re in New Jersey. You cannot register it as an SBR federally because Jersey doesn’t allow you to possess your SBRs. If you remove the stock, that is satisfactory to the feds, apparently, but you must have another gun, that would be legal for you to have that brace on. Something like an AR rifle with a 16 inch or greater barrel that that brace could go on. Then you have essentially met under Thompson Center the criteria to have the brace removed from the other one, not on it, and you have another gun that could actually use it, you don’t actually put it on it though. Therefore with it removed simply having the two components, the pistol and the brace does not give you an SBR. You don’t have a problem at that point with the individual possession, since you happen to have that AR rifle that would fit the brace part. I know it’s convoluted and bizarre, but this is essentially where New Jerseyans are left. The option for registration cannot be utilized by New Jerseyan, and therefore, it’s going to end up being the removal.
Evan Nappen 27:10
Now further complicating this are the guns that are considered “others”. Guns that are considered like the Troy A4s, etc. When you add an “other” and there was reliance on pistol brace, then you see that no longer is a brace considered just that, a brace, and the configuration of that firearm changes. What you may very well end up with there is an “assault firearm” under New Jersey law because now it’s going to be deemed as a rifle that uses a detachable magazine. Then it has more than two offending features, and you’ve got a problem. This is all very gun specific, and we’re going to have to see how this continues to roll out. But Jerseyans have special problems here and other jurisdictions as well, that do not recognize the SBR possession.
Evan Nappen 28:14
Even though all this is going on, there’s also major litigation. Litigation in multiple circuits going at this very law. The arguments that are being put forward are, of course, bringing in the Second Amendment. One of the very interesting arguments and I’ll just share with you as to how pistol brace is arguably Page – 7 – of 7
protected by the Second Amendment is because of what the Second Amendment protects. The Second Amendment protects the arms that are “in common use”. Now the NFA that has prohibited short barrel rifles. Well, ATF is now taking a ruling, and it’s making essentially 30-40 million guns under a definition of short barrel rifle. Well, when you have 30-40 million guns, that’s called “common use”, folks, and you’ve just placed the very item that you’re attempting to prohibit squarely under what is protected by Heller and McDonald and Bruen. And that is commonly possessed firearms. When they’re in the millions and millions and possessed by Americans in such a way, then they’re commonly possessed, and they’re protected by the Second Amendment. So, in effect, ATF has hung itself by its own petard by creating this ridiculous interpretation of the old rule. Banning these braces, whose design is simply to make something more accurate, and particularly to be of aid to wounded and disabled veterans and others. So, the fight is on. But if you’re in any of these jurisdictions where action needs to be taken, please take the appropriate action because you don’t want to become the test case.
Evan Nappen 30:38
Meanwhile, make sure you belong to your state association. Make sure you belong to the Association of New Jersey Rifle & Pistol Clubs, easily found at anjrpc.org. Stand up for your rights and protect yourself and your future generations’ rights to have firearms and to not be victims but to be defenders. This is Evan Nappen reminding you that gun laws don’t protect honest citizens from criminals. They protect criminals from honest citizens.
Speaker 3 31:17
Gun Lawyer is a CounterThink Media Production The music used in this broadcast was managed by Cosmo Music, New York, New York. Reach us by emailing Evan@gun.lawyer. The information and opinions in this broadcast do not constitute legal advice. Consult a licensed attorney in your state.