Episode 173-Assault Firearms 101

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Gun Lawyer Episode 173


firearm, assault, semi, gun, new jersey, law, part, m1 carbine, automatic firearms, substantially, type, definition, identical, guns, attorney general, finally, carbine, features, jersey, gun owner


Evan Nappen, Speaker 3

Evan Nappen 00:00

Hi. I’m Evan Nappen, and welcome to Gun Lawyer. So, I’ll tell you what keeps cropping up a lot, and there’s a lot of confusion still. We see people always asking questions. I see nonsense on the internet, and people inadvertently, possibly, ending up in serious trouble. What is an assault firearm under New Jersey law? Some folks like to talk about assault firearms, and they’ll just talk about the so-called offending features. And I’ll say, oh, that gun is compliant, and that gun is not, blah, blah, blah, . . . But that’s barely touching the surface. So, what I want to do today is take the time to fully explain, to the best of my knowledge, which is fairly extensive, the definition of assault firearm in New Jersey. The reason I say it’s fairly extensive is I’ve been part of battling the ban on modern sporting rifles since it was first proposed in the late 1980s.

Evan Nappen 01:37

Believe it or not, it didn’t pass in New Jersey until May of 1990. That’s right, folks. We’ve been living with this piece of crap law for 34 years. It’s just outrageous. And it’s done zero, zip, nothing about actual crime. But it sure has harmed untold numbers of law-abiding citizens that have got trapped in New Jersey’s bizarre matrix of what is an assault firearm under New Jersey law. I don’t want any of you to have that problem. So, I want to explain the definition of assault firearm. I’m calling it an “assault firearm” only because that is actually the legal term for it in the statutes. New Jersey calls these guns “assault firearm” as defined by the definition found under New Jersey law. Now, this definition of assault firearm is one of the absolute worst criminal definitions of anything found in criminal law. And I’m not just saying that because I hate this law. But it’s the truth. This law is essentially incomprehensible. It is an absurdity beyond being useless.

Evan Nappen 03:28

But, as a New Jersey gun owner, you don’t want to fall into the trap. I don’t want you to fall into the trap. So, let’s talk about exactly how and what is a so-called “assault firearm” under New Jersey law. Now the definition of assault firearm is found under New Jersey Statutes (N.J.S.) 2C:39-1 w. It is a very complex, five-part definition that was written by a bunch of imbeciles, frankly. The very first part of the definition is a laundry list of about 67 named firearms. These named firearms include firearms that don’t even exist by the way. We don’t even know where they got these names. I can’t even find an example of some of them. It is just a jumble of makes, models, and descriptions, and it is something that requires a very technical knowledge of each of these guns as we proceed further into the definition. Page – 2 – of 8

Evan Nappen 05:02

So, what are the guns on the list? Well, there’s the “Algimec AGM1 type”. I bet most of you have never even seen an Algimec, but it’s on the list. “Any shotgun with a revolving cylinder such as a ‘Street Sweeper’ or a ‘Striker 12’.” Now Street Sweeper and Striker 12 are NFA (National Firearms Act) under Federal law. They are considered destructive devices under the National Firearms Act. They were declared such when the Treasury Secretary Lloyd Benson, in a propaganda move to pass the Federal assault firearm ban, decided to do one of those ATF Special Deals where they make something that’s been legal illegal and declaring a 12-gauge shotgun, which is really all these guns are, to be a destructive device and therefore requiring NFA registration. They had an open period of registration for a number of years where you could register it as a DD for free. But it still didn’t clear you for Jersey, because Jersey had it separately prohibited as a named “assault firearm”.

Evan Nappen 06:18

Then there’s the “Armalite AR-180 type”. Suddenly, it’s, you know, a type here. The “Australian Automatic Arms SAR”. The “Avtomat Kalashnikov type semi-automatic firearms”. Well, that’s cute. Avtomat Kalashnikov, and it’s A V T O M A T Kalashnikov. I didn’t know we had to speak Russian to obey New Jersey gun law, but apparently, you have to. If you do speak Russian, then you know that Avtomat means automatic. Tell me what an automatic semi-automatic is, please. Well, it’s banned. “Beretta AR-70 and BM59 semi-automatic firearms”. “Bushmaster Assault Rifle”, which, keep in mind, is not a Bushmaster XM. The Bushmaster assault rifle was a specifically made firearm called an Assault Rifle by Bushmaster, but there it is. “Calico M-900 Assault carbine and M-900”. Really? Okay, so it’s a M-900 assault carbine and the M-900. I wanted to be clear on that.

Evan Nappen 07:32

“CETME G3”. Well, gee, the CETME G3 didn’t say semi-automatic firearm. So, are they talking about the select fire G3? That’s already prohibited as a machine gun. They added semi-automatic firearm to a number of these. Then to a number of them, they don’t. I mean, get your act together. “Chartered Industries of Singapore SR-88 type”. Have you ever seen one in the wild? Pretty rare. “Colt AR-15 and a CAR-15 series.” Of course, the CAR-15 “series”. Oh, that’s just a series, you see, folks. It’s not a semi-automatic firearm or type. It’s a series. How nice. Daewoo K-1, K-2, Max 1 and Max 2, AR 100 types”. “Demro TAC-1 carbine type”. “Encom MP-9 and MP-45 carbine type.” “FAMAS MAS223 types.” “FN-FAL, FN-LAR, or an FN-FNC type semi-automatic firearms.” There they threw in type and semi-automatic firearms. “Franchi SPAS 12 and Law 12 shotguns”. “G3SA type.”

Evan Nappen 09:02

Galil type Heckler and Koch HK91, HK93, HK94, MP5, PSG-1.” “Intratec TEC 9 and 22 semi-automatic firearms.” Really? Did they mean a TEC 22? Just throw in a 22. “M1 carbine type.” You know, the dreaded M1 carbine. One of the finest collectible guns of World War II that the DCM (Division of Civilian Marksmanship) would sell direct to your door at one time for around 15 bucks for Civilian Marksmanship. You know that gun? Yeah. Assault firearm. “M14S type.” Notice, it doesn’t say M1A. “M14S type” is what it says. “MAC 10, MAC 11, MAC 11-9 mm carbine type firearms.” Oh, that’s a nine mm. They put the caliber. It’s a type, but it’s not a semi-automatic. But it’s a firearm. How nice, again. Page – 3 – of 8

They’re so consistent. “PJK M-68 carbine type.” Lots of them out in the wild. “Plainfield Machine Company Carbine.” Well, that’s actually like an M1 carbine except made in New Jersey. How nice.

Evan Nappen 10:42

“Ruger K-Mini-14/5F and Mini-14/5RF.” Very important nomenclature there, folks. The “F” is a really great “F”. It doesn’t mean what we usually think “F” means. It means “folding”. The folding stock mini. That’s why the straight stock Mini is legal in Jersey because only the folding stock is a named gun. I did the case on that. It was State v. Rose, and it established the straight stock mini as Jersey legal. Distinguishing it from its definition that I just read you. “SIG AMT, SIG 550SP, SIG 551SP, SIG PE-57 types.” “SKS with detachable magazine type.” Okay, that’s “with detachable magazine”. That’s not the fixed 10 round that’s hinged. It’s not detachable. That’s the relatively hard to find SKS that used AK mags, which they only made for a couple of years. Or if you convert your SKS by taking it apart, removing the fixed magazine and letting it accept those Duckbill magazines. Then you could have a problem there.

Evan Nappen 12:15

“Spectre Auto carbine type.” So, is that a thing like James Bond’s enemy would use? I don’t know. “Springfield Armory BM59 and SAR-48 type.” Hey, I thought they mentioned the Beretta BM-59. They did. But now they covered Springfield BM-59. Why not just say BM-59? No, no, no. We’re brand distinguishing now. Twice, how nice. “Sterling MK-6, MK-7 and SAR types.” Well, we talked about SARS already but no, no point. Let’s just repeat it again. We’re saying types. “Steyr A.U.G. semi-automatic firearms.” “USAS 12 semi-automatic type shotgun” “Uzi type semi-automatic firearms.” Well, Uzi come Uzi go, as they say. “Valmet M62, M71S, M76, or M78 type semi-automatic firearms”. “Weaver Arm Nighthawk.” We can’t forget that Weaver Nighthawk. Okay, so there’s the list and that’s just the first part of the definition, just the first part.

Evan Nappen 13:38

The second part says, “Any firearm manufactured under any designation which is substantially identical to any of the firearms listed above.” What the hell? Substantially identical? First of all, those guns listed are just arbitrarily picked guns and ridiculousness. But now it has to be, “substantially identical”. What great wordsmith came up with that? Substantial means almost and identical means exact. What the hell does almost exact mean? It doesn’t make any sense. It’s like being a little bit pregnant. I mean, what? Well, that’s called vague. In fact, it’s unconstitutionally vague, and I won a case on that very argument, State v. (Robert) Merrill. In Merrill, the law was declared unconstitutional for vagueness, void for vagueness, folks.

Evan Nappen 14:48

That was then challenged by a state gun group, and we have the Coalition versus Whitman case and the Coalition versus Florio case. What you have in these cases is a challenge to the semi- automatic definitional part as it relates to “substantially identical”. The Attorney General issued the 1996 Attorney General Opinion in the federal civil challenge to save the statute from being declared utterly unconstitutional and void for vagueness. The case that I won involved an MAK-90, which they claimed was substantially identical to an automatic Kalashnikov type semi-automatic firearm. The late Judge (Michael) Farren, a great judge, said, this is absurd. How can anyone know this? How can anyone even Page – 4 – of 8

understand this? It’s so vague. He found that the MAK was not covered, the MAK-90, by the law and declared it unconstitutional. But that only applied to that one case which I had in criminal court where I saved my client from being imprisoned for years in New Jersey, by winning the constitutional argument. That is what gave the incentive to bring that federal challenge and that’s where the Attorney General Opinion came out which we’ve been living under ever since.

Evan Nappen 16:30

Now, after the break, I’m going to explain the Attorney General Opinion and the rest of the definition of assault firearm so you can have a full understanding. Something you really never heard before. Anyone actually explaining every part of this absurd definition of guns based on strictly emotions and foolishness that has made 1000s and 1000s of New Jerseyans suffer in terms of loss of liberty, loss of their freedom, destruction of their careers, turning them into felons, imprisoning them, and destroying their hopes and dreams and accomplishing nothing having to do with the prevention of crime.

Evan Nappen 17:28

In this fight against the assault firearm law, we have the State Association, the Association of New Jersey Rifle & Pistol Clubs. The state Association is battling, as we speak, in federal court challenging under Second Amendment grounds, using the hammer given to us by the Bruen decision, and our hero of the Second Amendment who wrote the majority opinion, Justice Clarence Thomas. I am very optimistic that we may finally see the demise of this piece of crap. But it’s still a fight, and it’s going to be ongoing. We should see some action, some results, some things happening, relatively soon. It will eventually die a well-deserved death. I’m confident. But we need your help. The Association needs your help. You need to become a member if you’re not of the Association of New Jersey Rifle & Pistol Clubs, anjrpc.org. Please join today. You’ll reap all the benefits of membership. You’ll get those email alerts and the finest newsletter in the state. You’ll know that you are part of the solution. So, join ANJRPC.org today.

Evan Nappen 19:00

If you are looking for a great place to shoot, there is none better than WeShoot in Lakewood, New Jersey. WeShoot is an indoor pistol range. They are a top line facility and so conveniently located right in Lakewood. Right off the parkway if you live in Monmouth or Ocean County, etc. Easy to get to. They treat you like family. They are a wonderful, wonderful range. They have great training programs, and they have all kinds of various fun events. They have an excellent pro shop. They can set you up, soup to nuts, with everything you need. From your gun, your rig, your training, and your ability to practice in a wonderful safe, fun environment. Check out WeShoot in Lakewood. That’s where I got my certification for my carry. My brother, my son, and so many others that are friends and listeners. Everybody raves about WeShoot. We’re lucky to have such a great resource as WeShoot. You can check them out on the web at weshootusa.com. They have fantastic photography, top of the line photography, and they really pride themselves on that too. Check out WeShoot. You’ll be glad you did.

Evan Nappen 20:25

And now is when I’m going to shamelessly plug my book, New Jersey Gun Law, which is the Bible of New Jersey gun law. In fact, it explains what I’m telling you about today on assault firearms. It’s hard to remember all this stuff. So, you can always go to that book, look up assault firearms, and read it. I put it Page – 5 – of 8

all in a question and answer format. As a matter of fact, I put 120 topics in question and answer format. That’s why the book is over 500 pages. The book is a weapon in and of itself, because you can hit somebody on the head with it. No, don’t do that, of course. You’d ruin the book. You don’t want to ruin the book. It is absolutely a resource designed for you and to be user friendly. It’s my labor of love. It’s the 25th Anniversary Edition.

Evan Nappen 21:16

When you get the book, make sure you scan the QR code on the front cover, and you get for free the updates. How many things are free, other than Gun Lawyer podcast and this fantastic subscriber database that you can become a part of for free. And what it does is it gives you all the updates. Your book is not going to get out of date. As long as you’re subscribed, I’m letting you know the changes, the updates, as soon as it happens, and things are always breaking and changing in Jersey. So, if you want to be up to date on court decisions, on law changes, on Attorney General rulings, you name it, you’ll have access to all the archives of the other updates that we’ve done. If you want to get a copy of this book, if you don’t have it, boy you need it, go to EvanNappen.com. That’s right. That’s my website, EvanNappen.com.

Evan Nappen 22:12

Now we’re talking about “substantially identical” and how we ended up with the Attorney General Opinion that most people think of as the sole defining source for assault firearms, but it’s not. That opinion simply dealt with the application of part two. If you happen to have a gun that is named on the list, then you’re just done. You don’t have to go to part two. So, if you have a M1 carbine, even if it seems to be Jersey compliant, which I’m going to explain to you, even if it seems to be in full compliance with the Attorney General Opinion, it doesn’t matter. It’s an M1 carbine, and it’s named on the list. Therefore, it is prohibited in and of itself.

Evan Nappen 23:05

But if you have a gun that doesn’t exactly have the name of one of those guns on the list, then the question becomes is it “substantially identical” to a gun on the list. What the Attorney General did was promulgate the guidelines to salvage the unconstitutional vagueness challenge, and they succeeded in doing that. We’ve lived with this. What the Attorney General basically did was take the 1994 Federal Assault Weapon Law and take that definition and say that’s what substantially identical means. Then the Attorney General created, essentially made law, by just signing these guidelines, creating a feature specific test that doesn’t exist in the statutes as to what gun would qualify as substantially identical.

Evan Nappen 24:12

How does that get calculated? Well, first of all, it has to be a semi-automatic firearm and it has to meet the following criteria. It has to be a semi-automatic rifle that has the ability to accept a detachable magazine and has at least two (2) of the following. So, the beginning point is that it has to be identical in all material respects to a named assault weapon. Then it has to meet the following. So, you hear that it has to be identical to all materials specs to a named assault weapon, and then meet the following. Now, first of all, we don’t have assault weapons, we have assault firearms. What are they even talking about? Again, great, phenomenal wordsmithing here. Page – 6 – of 8

Evan Nappen 25:24

Let’s assume that they’re talking about it has to, in all material respects, be identical to a gun named on the list that we just went over. Okay? But geez, how about getting your act together? Why does that matter? Right? It’s only people’s rights and freedom and facing massive prison and having their lives destroyed. Why do we have to get it right? But anyway, so first, we have to have that identified, and the State’s going to have to do that. They seem to all conveniently skip that. Every time they say, oh, well, this has a compliant feature. What gun are you talking about? First ID the firearm on the list that it is identical in all material respects to what you’re claiming is now an assault weapon or more properly an assault firearm.

Evan Nappen 26:20

Then it has to meet the following and that is what? It has to be a semi-automatic rifle. It has to take a detachable magazine and then have at least two of any of the following features. If it has only one feature, you’re still okay. If it has more than one, then it’s not okay. It’s prohibited. What are the so-called offending features? One, a folding or telescoping stock. Two, a pistol grip that protrudes conspicuously beneath the action of the weapon. Three, a bayonet mount. Oh yeah, those bayonet mounts, man. That’s because of all the drive by bayonetings. We had better ban them. Four, a flash suppressor or a threaded barrel designed to accommodate a flash suppressor. And finally, a grenade launcher. I don’t want any of you going out grenade launching this weekend. Okay? Don’t go doing that, because you’d have a problem with it.

Evan Nappen 27:34

So, if you have any two or more of those features, and your gun can be identical in all material respects to a named assault weapon, and it’s a semi-automatic rifle, and it takes a detachable magazine, then, by way of these guidelines, you have a prohibited firearm under Jersey law. Now the offending features themselves, that list that I just gave you, those features by themselves are not per se illegal. It’s only if you have them in combination on that firearm that meets the criteria. The first steps of being identical materials specs, a named gun on the list, and a semi-automatic rifle, and takes a detachable magazine and then you have those features in that combination, then you have a problem gun. But the features themselves are not illegal in and of themselves. Now that’s just part two explained of the assault firearm definition.

Evan Nappen 28:53

Part three says the semi-automatic rifle with a fixed magazine capacity exceeding 10 rounds. However, an assault firearm shall not include a semi-automatic rifle which has an attached tubular device, which is capable of operating only with .22 caliber rimfire ammunition. That’s because, for the longest time, New Jersey turned the classic .22 tube fed rifle, like a Marlin Model 60 or a Remington 552 into an assault firearm. Prosecuting law-abiding citizens for having the classic rabbit gun. They took so much heat, a lot of it from me, frankly, I’m proud to say, that amazingly, they changed the law to no longer include those .22s because it was such an embarrassment. The whole law is an embarrassment but that was just untenable, I guess for them at that point. But keep in mind, folks, the tube fed .22 is exempted, but not a tube fed 17 rimfire, for example. Only .22s that are tube fed and semi-auto. So, if you have a detached mag that is semi-auto in any other caliber, that’s an attached tubular mag, then it’s still prohibited, if it’s on a semi-automatic rifle. Page – 7 – of 8

Evan Nappen 30:26

And then finally, actually, I skipped one. I skipped the semi-automatic shotgun with either a magazine capacity exceeding six rounds, a pistol grip or a folding stock. So, if you have a semi-automatic shotgun and it has only one of those features, it is an assault firearm. And of course, going back to the Attorney General Opinion, they talk about semi-automatic shotguns. And what do they say? They say a semi-automatic shotgun that has at least two of the following features, this is back to the guidelines, a folding or telescoping stock, a pistol grip that protrudes conspicuously beneath the action of the weapon, a fixed magazine capacity in excess of five rounds and the ability to accept a detachable magazine. Well, that’s garbage. Because the law says you can have six rounds. You’re only allowed one feature, but the guidelines are claiming two. They had no clue what they even did. They contradicted themselves when they put this out. They’re such morons. It adds more confusion and more misunderstanding that we have to live under and face charges under and see people destroyed over.

Evan Nappen 31:55

Then finally, the last part of this wonderful piece of legislation here, a part or combination of parts designed or intended to convert a firearm into an assault firearm. So, now they’re defining assault firearm by way of the definition itself, which is never helpful. Or any combination of parts which an assault firearm may be readily assembled if those parts are in possession or under the control of the same person. Well, you can kind of take from that that if you have some of those other offending features hanging out and those guns can be readily assembled using those parts to make non-compliant Jersey guns that meet all the other criteria, then you could have yourself a problem under the part or parts definition of assault firearm. Under the complex, absurd contradictory five part definition and guidelines of assault firearm under New Jersey law.

Evan Nappen 33:02

As you can see, this is a law that I battle on a regular basis. With case after case. The penalty for possessing an assault firearm in Jersey is up to 10 years in State Prison. But even worse, it carries 42 months, three and a half years, minimum mandatory prison. So, if you’re convicted of possession of an assault firearm, the very best sentence a judge could give you, no matter what a great person you are, you could be Mother Teresa, it doesn’t matter. The judge has to impose at least three and a half years before you can even see the light of day. You will do every day of three and a half years as a minimum component of your sentence.

Evan Nappen 33:52

On top of that, Jersey has the audacity to make possession of an assault firearm as we’ve talked about in the past, part of the gun owner Gulag where they raise it up to the level of how they treat murderers and lifers when it comes to releasing anyone charged with such an offense. They want to hold you in the Gulag, convicted of nothing under this absurd definition, which is so misunderstood. New Jersey’s assault firearm law is a travesty, a travesty that has caused uncountable, an uncountable amount of harm. I don’t want to see any of you fall into this matrix, this trap. Be careful. Make sure you err on the side of caution until this thing gets killed by the courts.

Evan Nappen 35:00 Page – 8 – of 8

I’m confident that the Second Amendment, which has now been empowered, which has just been given enormous strength to finally go at these absurdities and outrages that the anti-gunners have placed upon us, will finally succeed for us. But you can’t depend on that, and you sure don’t want to wait for that. You don’t want to become a victim of New Jersey gun laws. Because those folks end up traumatized for life. These are the things they never talk about. The anti-gun side, about how their rotten gun laws destroy good people. But I’ve been practicing gun law now for over 35 years, and I’ve seen what it does. It is a harm. It is something that creates absolute misery. And it is done intentionally by the Government to go after us. You better believe it.

Evan Nappen 36:18

Speaking of not becoming victims, I want to tell you this week’s GOFU. That’s right, the Gun Owner Fuck Up of the week. We learn from GOFUs. GOFUs are cheap lessons for all of us. Let me tell you about this one, folks. If you witness some property crime taking place, let’s say from the window of your home, don’t go running outside of your home with your gun in your hand to try to stop that property crime. Because first of all, you now have a multitude of issues. You can be charged for improper display of your firearm. You can be charged with aggravated assault for pointing your firearm. You could, God forbid, if you shoot somebody on a mere property crime, you’re going to have a world of trouble.

Evan Nappen 37:36

Unfortunately, as much as we’d like to stop crime, as much as watching individuals committing property crimes, whether it’s car theft, or vandalism, anything like that, you cannot take your weapon, your firearm, and use it as a magic wand as we’ve talked about before. This particular incident would infuriate any average person. But what you must do is stay in your home and call the police. Do not engage. Do not leave your home. Do not display your gun and be a crime fighter hero. No, no, no. You can end up jammed up and losing your rights. The system will disfavor you. The system would rather charge you than go after the criminals out there destroying our property, destroying our safety and stealing from us. No, no, no. They’d rather get the gun owner. So, don’t do a GOFU and end up jeopardizing yourself. If you have a carry permit, your firearm should stay loaded and concealed on your person. You need to properly have it in that manner. You should not be drawing your firearm unless you are justified in using it. If you’re not justified in the use of it, keep it concealed in your holster. If you’re in your home, don’t go running out of your house with your gun. No matter how justified you may think you are to stop a property crime. This is Evan Nappen reminding you that gun laws don’t protect honest citizens from criminals. They protect criminals from honest citizens.

Speaker 3 39:56

Gun Lawyer is a CounterThink Media Production. The music used in the 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.

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About The Host

Evan Nappen, Esq.

Known as “America’s Gun Lawyer,” Evan Nappen is above all a tireless defender of justice. Author of eight bestselling books and countless articles on firearms, knives, and weapons history and the law, a certified Firearms Instructor, and avid weapons collector and historian with a vast collection that spans almost five decades — it’s no wonder he’s become the trusted, go-to expert for local, industry and national media outlets.

Regularly called on by radio, television and online news media for his commentary and expertise on breaking news Evan has appeared countless shows including Fox News – Judge Jeanine, CNN – Lou Dobbs, Court TV, Real Talk on WOR, It’s Your Call with Lyn Doyle, Tom Gresham’s Gun Talk, and Cam & Company/NRA News.

As a creative arts consultant, he also lends his weapons law and historical expertise to an elite, discerning cadre of movie and television producers and directors, and novelists.

He also provides expert testimony and consultations for defense attorneys across America.

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