Gun Lawyer Episode 169
gun, firearm, new jersey, hunting, expunged, carry, expungement, law, bill, handgun, person, state, prohibit, substitute, folks, fighting, covert, record, lawyer, rights
Evan Nappen, Speaker 3
Evan Nappen 00:00
Hi. I’m Evan Nappen, and welcome to Gun Lawyer. So, we have some breaking news to discuss, and it’s taken an interesting turn. You’re going to want to understand this fully, which is apparently quite difficult to do if you’re simply relying on internet sources. So, I’m going to give you the straight scoop, and I’m going to explain what’s happening. You may have heard that you can carry a handgun if you have a Permit to Carry in New Jersey while hunting. You may have heard this, and you may have even heard that Governor Murphy actually signed this legislation. As a matter of fact, if you go to Governor Murphy’s website, the official website, the official site of the State of New Jersey, it says Governor Murphy takes action on legislation. (https://nj.gov/governor/news/news/562024/approved/20240116m.shtml) There are a whole bunch of various bills that he signed into law.
Evan Nappen 01:17
One of these bills listed there, almost shockingly, says ACS for the Assembly Committee Substitute for A-5495, which is the Assembly Bill 5495, and the Senate Committee Substitute for S-3846. So, it is essentially Assembly Bill A-5495. (ACS for A-5495/SCS for S-3846 (Danielsen/Scutari, A.M. Bucco) – Clarifies types of firearms allowed to be carried or transported while hunting) And who sponsored this legislation? Well, good old (Joe) Danielsen. You may recall Danielsen as the author of the Carry Killer bill in New Jersey. The one we’re battling as we speak. The one trying to limit all our gun rights, limit where we can carry to defend ourselves and our loved one and try to limit our Second Amendment right to not be victims, but rather, defenders. Yeah, that guy. He sponsored this bill because he’s taken, obviously, so much heat and so much criticism. He would say, oh, he’s not against hunting, and he’s not against guns. This is just a logical thing to do.
Evan Nappen 02:32
So, here’s this bill that “Clarifies the types of firearms allowed to be carried or transported while hunting.” Now that is what’s on Murphy’s website. And lo and behold, when you go to the bill, Assembly 5495, the original bill, and this bill was introduced by the way back in May (2023), I believe. Let me see if I can find the exact date of introduction. Yes, May 11 (2023), my friends, May 11. And what did it say on May 11 when this bill was put forward by Danielsen? Well, it is in the R.S. and under Chapter 23, the Fish & Game Code. It does make modifications to when deer hunting, and it talks about you know, cleans it up, you can only use a firearm that’s prescribed by the State Fish and Game Code while Page – 2 – of 9
hunting deer. Okay so far. Then you know that you cannot have or possess or under your control any shotgun or muzzle loader at any time while hunting with a bow and arrow. Okay, fine.
Evan Nappen 03:57
But then it has this paragraph. This paragraph says, Nothing in this section shall prohibit a person engaged in hunting for wild deer from carrying a handgun if that person has obtained a permit to carry a handgun pursuant to Chapter 58 or is otherwise authorized to carry a handgun at all times in this State pursuant to N.J.S. 2C:39-6. That would be the exemptions for law enforcement and what have you. Provided that the person does not use the handgun to hunt wild deer. A person who has obtained a permit to carry a handgun issued pursuant to (N.J.S. 2C:)58-4 and carries a handgun pursuant to this section shall maintain the permit on their person in accordance with section six of the law, blah, blah, blah. So, guess what? That’s really great, right? That makes it crystal clear. While hunting deer, you can have your handgun on your person as long as you’re not using that handgun to hunt deer.
Evan Nappen 05:00
Then the law goes on to state in another section that deals with carrying a handgun while hunting, talking about all kinds of other game, any type of swans, geese, or brant and river and sea ducks. On and on. Hunting every creature that walks or crawls or swims. It lists here, you know, wild turkey, prairie chickens, rabbits and squirrels and on and on. Then it says,”The provisions of this section shall not prohibit a person from carrying a handgun if that person has obtained a permit to carry a handgun issued pursuant to N.J.S. 2C:58-4 . . .” Right, that’s where we get our carry permits from. “. . . or is otherwise authorized to carry a handgun at all times in this State pursuant to N.J.S. 2C:39-6 . . . ” The exemptions. ” . . . provided that the person does not use the handgun to kill, destroy, or injure, pursue with intent to kill or injure, or in any manner attempt to take or injure any game bird or game animal protected under this section.” Okay, fair enough. Again, you can carry your handgun that you have a permit to carry for under this bill as proposed while hunting, not just for deer, but birds and other game animals. Good.
Evan Nappen 06:35
Then it says, “It shall be unlawful for any person while hunting any wild bird or animal to have both a firearm and a bow and arrow . . .” “. . . except for . . . ” Guess what? “. . . a handgun which that person is authorized to carry in accordance with a permit to carry issued pursuant N.J.S. 2C:58-4 or which that person is otherwise allowed to carry at all times in this State pursuant to N.J.S. 2C:39-6.” Right. Same stuff. As long as you have obtained the permit and you have it with you, you’re good to go, etc. Sounds great! So, here it is expanding the ability to have your handgun while hunting. And yet again, it’s repeated. They have another section modifying R.S. 23:4-13. This is about hunting fowl or animals, about the amount of ammunition you can have and penalties for that, etc. Then it says, again, you can carry a handgun as long as you have the permit (to carry), and you are not using it to hunt fowl or animals, except as permitted by State Fish and Game Code.
Evan Nappen 07:46
So, we look at that, and we say, hey, that’s really good. It is an advance, and we want to see that pass. Then you read the “STATEMENT” at the end of the bill. This statement to the bill says, “This bill allows persons who obtains a permit to carry a handgun to possess the handgun while hunting. In addition, Page – 3 – of 9
persons authorized to carry a handgun at all times in this State as part of their profession, such as law enforcement officers, also would be permitted to carry a handgun while hunting. Under the bill, a person carrying the handgun in accordance with current law would be prohibited from hunting with the handgun. Under current law, a person engaged in hunting is generally prohibited from carrying a firearm of a smaller caliber than 10 gauge, which includes handguns. However, P.L. 2022, c.131 was recently enacted to remove from current law the justifiable need standard . . .” This allows for carry because of the handgun change in the Supreme Court under the Bruen decision. On and on in the bill. This bill allows a person to carry a handgun at all times while hunting, provided it’s not used for hunting, etc. All great, good and wonderful.
Evan Nappen 08:52
Then what happened? Well, then, lo and behold, on December 4, 2023, there was a substitute bill put in place. Ah, a substitute for A-5495. And what did this substitute bill do? Are you ready for this big shocker, folks? It cut out every one of those paragraphs that I just read to you specifically allowing for the carry of a handgun while hunting. That’s right. Removed, extracted, taken out, gone. And the substitute bill is what was enacted into law. All the substitute bill does is have this new definition put in. It doesn’t say now that you’re good to go with the permit to carry. All that great stuff we just read making it crystal clear that you can carry while hunting as long as you’re not hunting with your handgun. All that is gone, gone, gone, gone, gone.
Evan Nappen 10:10
The new substitute bill (https://pub.njleg.state.nj.us/Bills/2022/A5500/5495_U1.PDF) says that a person engaged in hunting for wild deer shall not be permitted to use a firearm except as prescribed by the State Fish and Game Code. Then it says, it shall be unlawful unless otherwise prescribed by the State Fish and Game Code for any person to possess or have under that person’s control a long gun and possess or have under that person’s control while hunting. It goes on to reiterate the other old prohibitions. Then it defines “long gun”. So, now they’re changing it. It’s now only going to prohibit a long gun. But how is the long gun defined, folks? Well, they give a whole definition and guess what? They take the definition of “long gun” from New Jersey’s criminal code that defines a firearm. I’m not kidding.
Evan Nappen 11:17
So, listen to the definition of long gun now. “For purposes of this section “long gun” means any rifle, shotgun, machine gun, automatic or semi-automatic rifle . . .” so far so good except, “or any gun, any gun, device or instrument in the nature of a weapon from which may be fired or ejected any solid projectable ball, slug, pellet, missile or bullet, or any gas, vapor or other noxious thing, by means of a cartridge or shell or by the action of an explosive or the igniting of flammable or explosive substances. It shall also include, without limitation, any firearm which is in the nature of an air gun, spring gun or pistol . . . “right there, or pistol, folks, “or other weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas, or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eighths of an inch in diameter, with sufficient force to injure a person.” Page – 4 – of 9
Evan Nappen 12:35
So, there you go. They got rid of the explicit permission, the explicit cut out for Permit to Carry holders. Then they put in this so-called “long gun” that they define with a definition that is the general definition essentially of a firearm, using the broad word “gun” and even referring to air pistols in the definition. Oh, boy. Then it repeats the definition of long gun again in the other section. “For purposes of this section ‘long gun’ means any rifle, shotgun, machine gun, automatic or semi-automatic rifle, or any gun.” After semi-automatic rifle, it’s comma, or any gun and comma. Gee, last I checked, a handgun is a gun. Then the statute itself includes air pistols in defining air guns. What idiot did this legislation, huh? And, of course, they cut out the specific language that I read.
Evan Nappen 13:48
What makes it even worse, folks, is that when you read the new statement, the statement, , now this is not the law. This is the statement given to legislators saying what this law is supposed to do. What it claims this law does. The statement is dated December 18, 2023. The statement is put out after the substitute bill dated December 4th was put forward, and this was what was passed into law. The statement says, in the end paragraph, I’ll read you the whole statement. No big deal. “This committee substitute clarifies that a person engaged in hunting would not be permitted to use a firearm except as prescribed by the State Fish and Game Code. The substitute removes from current law a restriction prohibiting bow hunting with a bow drawn, held or released by mechanical means. In addition, the bill increases from $20 to $100 the fine for unlawfully hunting certain game animals and unlawfully hunting with a firearm in certain characteristics. Finally, the substitute incorporates into provisions of current law a prohibition against carrying a ‘long gun’ while hunting. Under the bill, the term ‘long gun’ is to include all forms of firearms, except for handguns . . . “Oh, really? It didn’t say except for handguns, did it? It says any gun. It doesn’t say except handguns. It says any gun! “. . . which may be carried in accordance with Title 2C of the New Jersey Statutes.”
Evan Nappen 15:32
Sorry, that got cut out in the first bill. There’s nothing in there about in accordance with the New Jersey 2C. So, the statement is false. It is false and misleading. And now it has simply created a situation where there is extreme misinformation. If you’re going to hunt in New Jersey, I do not recommend carrying your handgun while hunting. Because if somebody decides to charge you, as New Jersey loves to do, then you can become the test case. The State can argue, oh, no long gun included any gun. It even talks about pistols. By the way, folks, the entire section of the original bill that made it crystal clear that you could carry with your carry permit was removed by the legislature. Oh, what do we call that? Legislative intent, folks. If they intended for you to be able to carry, their removal of the very language that specified you could carry demonstrates the opposite of what their intent is. So, Danielsen didn’t do us any favors, yet again, my friends. I would not be relying on carrying under this disaster of legislation, which is, in my opinion, just another trap being laid by New Jersey to screw law-abiding gun owners. To turn them into criminals, disenfranchise them of their Second Amendment rights and keep them victims instead of defenders. When I come back, I have some good news to tell you.
Speaker 3 17:48
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 Page – 5 – of 9
fighting for rights, justice, and freedom. An unrelenting gun rights spokesman tearing away at anti-gun propaganda to expose the truth. Author of six bestselling 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, the 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 19:02
You’re listening to Gun Lawyer with Attorney Evan Nappen. Available wherever you get your favorite podcast.
Evan Nappen 19:17
Welcome back to Gun Lawyer. I’m Evan Nappen, and I want to tell you all about the state Association, the Association of New Jersey Rifle & Pistol Clubs. Every one of you should be a member of the Association of New Jersey Rifle & Pistol Clubs. And if you’re not, you should be ashamed of yourself. Really you should. Because they are the group that is fighting for our rights. The largest, most successful group, and they are the NRA state affiliate. They are the umbrella organization of our gun clubs. As an individual member, you are part of the solution. They are fighting legislation as we speak in the courts, the Carry Killer bill, the assault firearm bill. You know, it’s really a modern sporting rifle ban. And the large capacity magazine, which is a standard capacity magazine, of course. They’re fighting these, and we’re going to be seeing some important results very shortly. As a matter of fact, we had a case come down in the Third Circuit. You may have heard, regarding 18 to 20 year olds, now, not being able to be precluded from carrying during an emergency. That case is extremely helpful in the litigation by the Association in fighting the carry killer bill, of course. It’s going to be great. So, we’re making great strides, and it’s the Association that’s there at the forefront, defending our rights, with a full-time paid lobbyist, fighting the legislation, and keeping us abreast and informed. You get email alerts, and you get a great newsletter. You know that you’re part of the fight. So, please make sure you are a member of the Association of New Jersey Rifle & Pistol Clubs, anjrpc.org.
Evan Nappen 21:09
I also want to remind all of you about my book, the labor of love that I did. It’s now the 25th Anniversary Edition of the New Jersey Gun Law book. It is the Bible of New Jersey gun law. It’s used by lawyers, judges, police, and most importantly, law-abiding gun owners throughout the state. They rely on it. And it is my pleasure to offer that you can get a copy right online at my website, EvanNappen.com. Go to EvanNappen.com and order yourself a copy. It’s over 500 pages with over 120 topics, in a question and answer format so it’s easy to understand. You can actually try to wrap your mind around this idiocy that we call New Jersey gun laws so that you don’t become a victim of New Jersey gun laws. And what’s really great is right on the front cover, there’s a QR code that you can scan and for free, not much is free these days. But for free, you get the updates to the current laws. As a matter of fact, if you are a subscriber, you received an update about this “carry while hunting” chaos, and you received an update about what I’m going to tell you next. That’s actually some good news. You have full access to the Page – 6 – of 9
archive. You can download all the updates to the book and stay current. And that’s my calling in life. To keep that book current, so you can stay on top of the ever changing environment here in Jersey gun law. So, go to EvanNappen.com and get yourself a copy. When you get a copy, don’t lend it to a friend because you’ll never get it back. I hear that all the time. So, be careful.
Evan Nappen 22:56
Now our good friends at WeShoot, who of course are a sponsor, and we love them, but they did something really cool. They wondered whether a firearm called the “switch gun” is Jersey legal. Now, the switch gun is a firearm that is a .22 mini revolver. It has this covering that folds on the gun, and you can kind of clip it and wear it. The covering keeps it in that folded position. When you hit the button, the firearm springs out from the holder, and the holder becomes the grip. It springs out kind of like the way a blade would open when you push a button on a switchblade knife. What we would call today an automatic knife. Well, that’s why the switch gun instead of a switch blade. It’s kind of cool. You push a button, and it pops up. Then you can fire your mini revolver in this manner. It’s called a switch gun. (https://stdgun.com/switch-gun-2/)
Evan Nappen 24:14
However, the question is, is the switch gun legal in New Jersey because of Murphy’s covert firearm ban? Remember Murphy signed a law banning covert firearms. The question is, is this switch gun a covert firearm? It could arguably be claimed that it looks like a pager, maybe. If people even have pagers today. I don’t even know. Or some other, you know, cell phone device or who knows what. But it doesn’t look like a traditional firearm. And how does that law get interpreted and applied? Is this in fact prohibited? Or can it be sold in New Jersey? Can you own a switch gun in New Jersey?
Evan Nappen 25:02
So, the good folks at WeShoot asked the State Police, and I have the actual emails where they asked the state police. They said, I am reaching out on behalf of WeShoot, a licensed FFL, which by the way, is a great range in Lakewood. We’ve talked about it before. Just wonderful folks there, and you really need to belong. Take advantage of WeShoot. They said, with a query concerning recent legislative changes related to ‘Covert Firearms’. We seek clarification on the status of the Standard Manufacturing Switch Gun in .22 Winchester Magnum Rimfire, .22 WMR, Single Action Folding Revolver in the state of New Jersey.
Evan Nappen 25:48
Specifically, is it a covert firearm? Is it banned or restricted under New Jersey law? They talk about a customer who wanted to buy one, and they want to know. They’ve attached pictures, and they showed the Switch Gun. You can go online and look at what a switch gun is. (https://stdgun.com/switch-gun-22wmr-single-action-folding-revolver/) The State Police wrote back, and again I have the email where they quoted the law on covert firearms. “Covert or undetectable firearms. Any person who knowingly possesses any covert firearm as defined in subsection 2C39-1, or a firearm enclosed in a container or converting that is designed or modified to allow the firearm to be fired while so enclosed and that disguises or obscures the shape of the firearm such that it does not resemble a handgun rifle shotgun or machine gun is guilty of a crime of the third degree.” The state police asked, can it be fired in the closed position? Please provide more specifications. Page – 7 – of 9
Evan Nappen 26:55
WeShoot answered them saying this gun cannot be fired in the closed position. Then they quoted the manufacturer. “When in the folded position, the grip of the switch gun completely encapsulates the trigger to prevent an accidental discharge. Upon depressing a button, the switch gun immediately springs open as it is ready for the immediate and reliable discharge of five .22 Magnum cartridges. It can be folded into a very small form factor and stored in your pocket to conceal when not in use.” WeShoot continued, Hope this helps. Looking forward to your response. The State Police wrote back, “Yes, it is good to go in NJ.” So, we have the email correspondence chain where the State Police have stated that the switch gun is good to go in New Jersey. This was accomplished by the diligent efforts of WeShoot.
Evan Nappen 27:53
We now have a statement, an official response, from the State Police, and even if they’re wrong, in New Jersey, that is actually a defense called ignorance or mistake of law. Believe it or not. As crazy as Jersey gun laws are, ignorance or mistake of law is a defense in New Jersey. But it’s very specific. Part of that defense is if you rely on an official statement from those authorized to give it and here the State Police Firearms Unit is such an agency authorized to give such an official statement and to correspond as they did. And this is what they said. So, good news, and great work by WeShoot on having another gun that is clearly available now for individuals and it’s kind of a cool gun. It’s interesting and unique. It can now be purchased and possessed clearly and lawfully in New Jersey. So, look, if you’ve never been to WeShoot, you need to go there. It’s a great indoor range in Lakewood. They have great facilities and great trainers. They’re just wonderful people and a family, and I really mean that. I got the certificate for my carry there, so did my son and my brother. Tons of folks that I’ve sent there. Good friends, everybody loves it. They are just a great resource right there in Lakewood. Right off the Parkway. So easy, specifically if you live in Monmouth or Ocean counties where you have easy Parkway access. This is the range for you. So, make sure you go and check out WeShoot. They are part of the 2A community, and they’re dedicated as well to our rights. They are a sponsor of this show. They’re wonderful folks with a great range and a great resource. Check out weshootusa.com They also have fantastic photography. They really pride themselves on that. Go to their website and see their great photos. weshootusa.com. Go there and utilize the range. They also have great deals on guns. It’s a great facility, really clean and so welcoming. So, check out WeShoot.
Evan Nappen 30:17
Now this week’s GOFU, the very popular segment of Gun Lawyer, which is the Gun Owner Fuck Up of the week. We always have GOFUs because they never seem to end in New Jersey. The GOFUs come from actual clients and experiences that seem to repeat themselves. I see them over and over again in the practice. I want you to be aware of these GOFU so that you can learn really cheap lessons here. Because you don’t have to pay the price that these others paid. You’re learning it now from listening to the show. This way, you won’t make the same GOFU.
Evan Nappen 30:55
So, this week’s GOFU is important for any of those that get rights restoration. It has to do with expungements. You see New Jersey has an expungement law that lets you clear your record if you Page – 8 – of 9
meet the criteria. If you’ve had certain arrests, convictions, etc., it’s possible to get an expungement and get your rights restored even if you’re a convicted felon. New Jersey, as much as their laws suck, they do have very good expungement laws where you can get your record(s) cleared. If you want to know if you qualify, give my office a call, and we will be happy to let you know if you can get your record cleared. You can get what we call a rights restoration. We do a lot of that work. We love doing that work because it restores you back to full citizenship rights so that you can be a gun owner again. It also restores your rights. It deems your matter not to have occurred as a matter of law. That’s right. And on the gun form where it asks, have you ever been convicted, you legally can say no, if you’ve had an expungement. And that’s a good thing. It gives people a second chance. And we’re all about second chances, aren’t we? We should be. So, that’s a good thing.
Evan Nappen 32:12
But let me tell you what’s happening with expungements. When you get an expungement, the first thing we do is we go through the court process to get the expungement. After we get the court process done, the judge issues an Order of Expungement. Now upon that Order of Expungement, you are officially expunged. Yeah, you’re no longer a convicted felon. You no longer have an arrest record. It’s legally deemed not to have occurred, and you now have a clean slate. You’ve achieved a clean slate and that’s a great thing. It is a second chance. You’ve paid your price to society, you’ve done your time and now your rights get restored. You are expunged.
Evan Nappen 32:53
All that’s great except we have one problem. And it’s a huge problem. You see after you get an Order of Expungement, it goes to the State Police, and the State Police have to take that Order of Expungement and clear the electronic database. They have to clear the computer criminal records. Because even though you’re officially expunged, your computer criminal history still shows that you have a record. If you apply to get a gun or a gun license before your record has been scrubbed, guess what? You get denied. Even though you’ve been expunged, you get denied. You get denied on the gun permit. You get denied on the NICS check. You’re coming up with a hit on the database, even though you’re expunged because the State is negligent. They are ridiculously behind in processing 1000s of expungement orders to clear the record. They are currently being sued by the public defender in a class action lawsuit.
Evan Nappen 34:21
Tens of 1000s of expungements are being unnecessarily delayed in having the data bank cleared. This is not only affecting gun rights, folks. It’s affecting employment because now you are no longer a felon. You no longer have a record. You want to get a good job or a better job. Your background gets run by an employer, and it comes up even though you’re expunged. It’s harming people in improving their lives. It’s harming people that deservedly received expungements but cannot reap their benefit fully because the Government is negligent. This is not the first time they’ve been sued even, and they can’t get their act together. So, look, folks, it’s important if you need to get an expungement that you get it. I hope the State gets its act together and starts processing the clean slate scrubbing of the database, the way it’s supposed to be done, and starts doing it more efficiently. Look, the sooner you get your record expunged, the sooner you’re in line to have your record cleared. Page – 9 – of 9
Evan Nappen 35:40
But the GOFU, folks, is applying for a license or attempting to buy your gun before you’ve confirmed that your record has been cleared. Because then you end up where we have to fight an appeal of the denial, fight an appeal of NICS, get a revocation or a denial, because you applied too soon. They think you have a record which you don’t have. And I’ll tell you, I see that some of these agencies, even though the person is expunged, and they’ve supplied the Order of Expungement to the issuing authority, they still say, oh, well, too bad. It comes up on the database. They’re looking at a freaking court order! What do you mean? He’s expunged! He doesn’t have the disqualifier. He or she doesn’t have it. Oh, the database . . . You know, they’re married to their frickin database. It shouldn’t be that. It’s not true. That’s third party hearsay information. The primary record shows that it is expunged. So, respect it! But look at the fight you have to go through because you didn’t confirm that your record was scrubbed.
Evan Nappen 36:54
I know it’s annoying, and it’s ridiculous having to wait. It’s absurd. Hopefully they’ll finally get their act together. But until then, don’t have a GOFU. You’re going to compound your problems with a denial or revocation that may be from an escalation of a permit denial. From a NICS denial, even though you had your card and suddenly you’re denied. Who knows? We see every variation on a theme here with this topic. So, beware. This is Evan Nappen reminding you that gun laws don’t protect honest citizens from criminals. They protect criminals from honest citizens.
Speaker 3 37:36
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.