Episode 174-The Foundation of NJ Gun Laws 

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Gun Lawyer Episode 174


new jersey, gun, handgun, carry, firearms, exemptions, law, permit, burden, court, guns, subsection, macro, second amendment rights, gun owner, understand, proven, mag, jersey, place


Speaker 3, Evan Nappen

Evan Nappen 00:00

Hi. I’m Evan Nappen, and welcome to Gun Lawyer. So, what is the foundation of New Jersey gun laws? Let me tell you what the foundation of New Jersey gun laws is. You may not believe it, but it is absolutely true. We are all guilty until proven innocent. Now how can that be? Is that just hyperbole? Is that just Nappen spouting off? No. That’s actually how it functions. It may surprise you, because you probably grew up thinking that you’re innocent till proven guilty in America. But not when it comes to gun law in New Jersey. How can that be? Well, let me explain.

Evan Nappen 00:58

You see, New Jersey prohibits essentially all firearms under the possessory law found under N.J.S. 2C:39-5. When you look at that statute, you’ll see that under subsection a., machine guns are banned, under subsection b. handguns, and under c., rifles and shotguns, etc. They ban all guns there, and then they create certain exceptions to the guns that are banned. Those exceptions come in two forms. One is built into the statute that has to do with licensing. The other is built into the exemptions, which aren’t even listed in the statute that’s doing the banning. You have to know that they exist in a separate statute to actually find them.

Evan Nappen 02:12

Let’s start with understanding New Jersey’s handgun prohibition. Under N.J.S. 2C:39-5.b., this is the b. section, it says, any person who knowingly has in his possession any handgun, including any antique handgun, yes, even antique handguns are covered, without having first obtained a permit to carry the same as provided under N.J.S. 2C:58-4, is guilty of a crime of the second degree. So, what does that mean? That means if you have a handgun and you don’t have a carry permit, you’re unlawfully in possession. Now prior to the Bruen decision, not many folks even had carry permits. But now hundreds of 1000s have carry permits. But still there probably are more than a million handguns in Jersey, for sure, with owners of handguns that don’t have carry permits.

Evan Nappen 03:25

So, are they all illegal? Are they all possessing their handgun unlawfully? I just read you the statute that says if you knowingly possess a handgun, even an antique one, and you don’t have a permit to carry it, you’re in violation of the law. How does that work? Well, it is true that if you don’t have a carry and Page – 2 – of 7

you’re possessing a handgun, you’re in violation. But then you have to know that you have to go to the exemptions. The exemptions are under N.J.S. 2C:39-6.

Evan Nappen 04:05

I want to specifically bring to your attention the most utilized exemptions by law-abiding citizens, and that exemption would come under subsection e. E as in Evan. It says, essentially, I’ll read it to you. Nothing in subsections b., which is handguns, c., which is rifles and shotguns, and d., which is other weapons, of N.J.S. 2C:39-5, we just read the handgun section. But then there are other sections banning rifles and shotguns, unless you first have a Firearms ID Card. Then subsection d. is just other weapons or anything else. “Nothing in subsections b., c., and d. of N.J.S. 2C:39-5 shall be construed to prevent a person keeping or carrying about the person’s place of business, residence, premises or other land owned or possessed by the person, any firearm, or from carrying the same, in the manner specified in subsection g. . . . “, which is basically cased, unloaded, etc, you know, the normal proper ways to transport a handgun, “. . . from any place of purchase to the person’s residence or place of business, between the person’s dwelling and place of business, between one place of business or residence and another when moving, or between the person’s dwelling or place of business and place where the firearms are repaired, for the purpose of repair. For the purposes of this section, a place of business shall be deemed to be a fixed location.”

Evan Nappen 05:45

So, if you have a gun in your home, a handgun, rifle, or shotgun, and you don’t have any license, a Firearms ID Card or a carry permit, you’re still legal for your possession by way of exemption if it’s in your residence, or if you fall under any of the other listed exempted places that I just read you. However, exemptions are a defense. They’re a defense. And how does that work in law when we’re talking about a defense? Well, a defense becomes the burden of the defendant to first show or demonstrate that they’re within that particular defense.

Evan Nappen 06:40

For example, if you use your gun in self-defense, what we call self-defense but legally is called “justification for the use of force”, and if you’re shooting a firearm, that’s justification for the use of deadly force, the burden of proof is actually put back on you, the defendant, to first have to show the elements of the defense are met by you. You have to make that showing by a lower standard of proof than reasonable doubt. You have to make the showing that you were justified normally by preponderance of the evidence or thereabouts. As long as you can make that initial showing, then the court will find that you’ve met that burden. Then the prosecution has to disprove by reasonable doubt that you were not within that defense. So, it switches the burden in a self-defense case to the defendant.

Evan Nappen 08:14

Keep in mind that if you ever use your gun, you’re going to have to first prove by that lower standard, but still, the burden is on you to first prove that you are justified. Well, that same idea is applied in New Jersey to simple possessory statutes. If you possess a gun and you’re relying on the exemptions, you first are going to have to show that you were within those exemptions. That your home is your home. I’ve actually had to prove that somebody’s home was their home. What does that mean? It means that Page – 3 – of 7

in New Jersey, as a function of the law, you are guilty until proven innocent. Let that sink in. They have structured the gun laws in New Jersey so that an individual is guilty until proven innocent. That’s how biased and absurd our laws are.

Evan Nappen 09:16

Not only that but think about what they’re doing here. They’re reversing the burden, finding you guilty until proven innocent on the exercise of a Constitutional right! Good grief. Not only do they screw us over in reversing the burden, but it’s even something that we shouldn’t be burdened at all about when it’s a Constitutional right. And yet here we are. So, as a Jersey gun owner, you need to be aware of this. Because at any time you could be put to your proofs, and literally have to prove that your possession was lawful because you are under an exemption. That’s your burden to first show. That’s actually how it works.

Evan Nappen 10:07

It’s shocking, and it is another travesty. It’s something you never hear discussed in the lamestream media, that’s for sure. But I deal with it every day as a Gun Lawyer. Every day these burdens of proof have to be met by the defendant. Now, hopefully, one day, the entire New Jersey gun law will be declared unconstitutional, because its foundation is so fractured and made of sand. But until that day comes, you have to be aware of it and not become a victim of New Jersey gun laws. But I believe that ultimately, the Achilles heel of New Jersey’s entire gun control scheme, is this reversal of the burden on a Constitutional right, and it is flat out wrong. Yet, you must still be aware of it, and you must deal with it. You can’t deny reality. You can’t be in that river in Egypt over it, you know, de-Nile. Therefore, you have to protect yourself. It’s critical that you do that. It’s critical that you understand how this works and live by it.

Evan Nappen 11:33

The exemptions are narrowly construed, and they get narrowly construed. Don’t go giving expansive meaning to what you think these words mean. For example, your place of business had better be the place of business you own. Not one that you simply manage, or you’re simply an employee of. It’s got to be your business that you own. This is, again, how the court has interpreted. It’s actually a case out there. I believe the name is Valentine, where this guy ran a bar. He did everything in the bar. He hired, he fired, he opened, he closed. He did everything in the bar except actually own it. Every month, he would send a check to the owner down in Florida. He had a gun there, and guess what? The bar was deemed not to be his place of business. That’s how they interpret these things. So, be careful and be aware. Don’t become a victim of New Jersey gun law.

Evan Nappen 12:37

When we come back from the break, I have some great letters with some excellent questions that I know you’ll all get a kick out of and learn from. Let me tell you about our wonderful state Association. The Association of New Jersey Rifle & Pistol Clubs is there defending our rights every day. You must become a member of the Association. If you’re not a member, shame on you. I mean it! You need to join the Association. They’re the number one gun rights advocates in New Jersey. They’re litigating in federal court and have a full time paid lobbyist in Trenton being a watchdog on the shenanigans going Page – 4 – of 7

on down there. They’re dealing with the Attorney General and various issues, getting things resolved in our favor to help us. They are the gun rights group for Jersey, and you need to be part of the solution.

Evan Nappen 13:36

You need to be a member of ANJRPC. To join, simply go to anjrpc.org. You’ll get their newsletter, which is the finest newsletter on gun rights in New Jersey. You’ll also get those email alerts, and you’ll be able to take quick and easy action opposing the next absurdity that some Democrat proposes in Jersey. Basically, it’s always the Democrats doing it, and the Republicans join in and screw us, of course. But hey, for the most part, that’s who’s doing it. It doesn’t matter who’s doing it, but we have got to fight them. We have to oppose them, and we have to let our voices be heard. The Association is your vehicle to do that. So, make sure you do. ANJRPC.org. Join today.

Evan Nappen 14:29

If you’re looking for a great place to shoot, my favorite place to shoot is WeShoot. An indoor pistol range in Lakewood, New Jersey. Conveniently located right off the Parkway, right there. So easy to get to. It’s a wonderful facility. They have great training and a great pro shop. They can set you up with everything you need. Your guns, your accessories, ammunition, training, and practice. Everything to be a responsible gun owner. They can get you certified with your core competency under CCARE so you can get your carry license. They will treat you like family, I guarantee it. It is a wonderful resource, and we need our ranges. Without a place to shoot, what are you going to do? It’s serious. So, make sure you give your business to WeShoot. Go to weshootusa.com and check out their website with the magnificent photography. They have all kinds of cool things that they routinely do. Special events, special sales, special deals. Just go in there, and you’ll see. It’s where I got my certification for my carry. The same with my brother, my son, all my friends, and so many listeners. Everybody raves about WeShoot. Go see what all of it’s about, and you’ll see that what I’m saying is true. weshootusa.com.

Evan Nappen 16:09

And what’s really important is that you own my book, New Jersey Gun Law, the 25th Anniversary Edition. It is my labor of love. I put hundreds and hundreds and hundreds of man hours into this. I could have made more money working at McDonald’s, frankly, than what I put into writing that book. But it’s not about money. It’s about our Second Amendment rights. It’s about not seeing New Jerseyans, law-abiding, honest New Jersey citizens, turned into criminals, what I call law-abiding criminals, that’s what New Jersey does. They get disenfranchised of their Second Amendment rights and get crushed by the system, destroyed by this absurd matrix. I wrote it to be user friendly. Get your copy at EvanNappen.com. That’s my website. Go right there to EvanNappen.com. You’ll see the big orange book. Click it, and you’ll have it in a matter of days. There are 120 topics all in a question and answer format. Everything explained. Make sure you scan the QR code on the front cover, and you can, for free, subscribe. That’s right for free. To my subscriber database where you can get all the updates. You’ll have access to the archive and get updates, normally within 24 hours of any law changes. So, this book that you buy stays current. It stays current, and you stay current. You will know what the law is, as we speak, and you can easily reference it and understand it. Go to EvanNappen.com and get yourself a copy today. Page – 5 – of 7

Evan Nappen 17:43

Hey, let’s take a look at some of these questions. Here’s one that was sent to me. This is from Brad. Love listening to your show every Sunday, and I nearly shit my pants over the weekend from what happened. I was grocery shopping at Sam’s Club when I heard and felt a pop and looked down to find the baseplate, spring, and four nine mm rounds laying on the ground. I quickly covered up the ammo with my shopping cart and collected everything without anyone noticing. It’s an 18 round magazine that was professionally blocked upon gun purchase four years ago to a 10 round commie compliant magazine. Yeah, that is commie compliant. My question is what could have happened if the wrong person saw this happening? Luckily, no one did. And I completed my shopping. I’ve had my PTC for a year and a half, and I am a U.S. Law Shield holder. Thank you in advance for any info, and I will be listening as I always do.

Evan Nappen 18:45

Well, Brad, thank you very much. If you’re at Sam’s Club and suddenly you get that pop. Oh boy, that could be a problem. You don’t want them to revoke your Sam’s Club card for that. That’s for sure. Now, legally, what could happen? Well, actually, no law was broken. There is no law broken. It’s just a magazine malfunction here. Like we have wardrobe malfunctions. Well, you had a magazine malfunction, but it’s not a crime. It could have brought attention to yourself. That’s true. But in your carry of a firearm, it wasn’t a sensitive place. It’s not a sensitive place. So, you weren’t prohibited from carrying there because that’s all that would possibly have alerted someone is that you might have been carrying a gun. But as long as you’re legal to carry, it’s not a sensitive place, and that’s not a problem. So, luckily, as upsetting as this was, especially when your self-defense gun is malfunctioning in your very presence and that’s not a good thing. It wasn’t a crime committed.

Evan Nappen 20:00

But you were smart to keep it low key, just cover it, and get the ammo. Get a better magazine for your gun, that’s for sure. Just get a factory 10 rounder. Don’t play around with blocked mags. I mean, if it’s professionally blocked, the magazine ban says you can’t hold more than 10. If it’s professionally blocked, we can argue that it’s okay. But a lot of the time the State says it’s not sufficiently blocked. Who knows and why get into all kinds of crap because they just see what the side of the mag says that it holds. Even though it doesn’t and yet, could it be converted blah, blah, blah. But who needs that? Just go the extra mile. It’s not really expensive. Get a 10 round factory mag for your gun. Then even the dumbest law enforcement or prosecutor can see that your mag only holds 10 rounds. You can avoid becoming a new case where you have to call me to defend you from being convicted and facing up to 18 months in State Prison for having a large capacity magazine charge. We have to live this way, unfortunately. I know it sucks, but we have to for now.

Evan Nappen 21:24

But the large capacity magazine is on the chopping block, folks. The Association of New Jersey Rifle & Pistol Clubs is litigating it as we speak. We should see some action on that. That case went all the way up to the Supreme Court after the Bruen decision. They GBR’d it. Grant, Vacate, and Remanded back for further proceedings, and it’s looking very good. I’m cautiously optimistic as we all should be. Let’s hope the standard capacity magazine ban, which is what it really should be called, is declared unconstitutional along with all the other infringements that New Jersey has placed upon us. That’s right. Page – 6 – of 7

Evan Nappen 22:06

Hey, let’s take a look here. I have another question. This is from Dan. Dan says I have a quick question. I don’t know if you’re able to clarify it. I have a court issued permit with two handguns on them. One is a Canik and the other is a SIG X macro. My court order says Sig Sauer X macro serial number x x x x. That’s a nice serial number. Just kidding. I’ve been looking into purchasing the 365 AXG Legion. Nice gun. With the 365 units, the FCU, that’s the Firearm Control Unit for those that don’t know that an acronym, is what is actually serialized and can be dropped into different 365 frames. Would I be able to take the FCU from my current macro and place that into the AXG Legion and carry that legally? I believe the FCU is interchangeable between the AXG and the X macro.

Evan Nappen 23:04

Dan, let me tell you I agree. I understand that it’s convertible if SIG says so. And that’s all well and good. But here’s the problem. You have a court order that names a gun by its name. It says SIG SAUER X macro on the court order. If you make the macro into an AXG, it’s no longer the gun named in the court order. If you’re carrying the AXG in contradiction to what the court order says you can carry, then unfortunately, you’re in a problem situation. You are now outside the court order. Unfortunately, the state of New Jersey has prohibited, barred, permit to carry holders from going back to the court to seek redress over the permits issued by a court. New Jersey gun owners are denied access and redress to the court, for actions taken by the court. This is how much they disrespect us and treat us as second class citizens. It is disgusting that we cannot seek redress in the courts. You thought you lived in America, but aha! You live in New Jersey. Surprise, surprise.

Evan Nappen 24:36

So unfortunately, Dan, you can’t get the court to do anything about it, and you cannot contradict that court order. You take quite a risk if you do. You need to wait. The next permit you get will have to be through the law enforcement officer, the chief of police of your town, or the superintendent of state police. Thank God, judges no longer issue carry permits. When you get your new permit, you can add any gun to it that you may wish to carry, as long as you pass the CCARE, which is just core competency. You don’t have to pass for a specific gun. You don’t have to do that. Just demonstrate core competency and get your CCARE certification. Then you may add guns to your application. You can add guns even after with the form on the State Police website. And it’s no problem because it’s not about the specific gun anymore. It’s about your core competency and can you shoot. I know you can do that, but for now, you’re stuck. You’re stuck because Jersey Justice says jam it to you. You’re going to have to keep your Sig Sauer X macro in its macro configuration until you get your next carry permit, where you’ll have more freedom as to what handgun you can carry.

Evan Nappen 26:13

Hey, what’s the GOFU of the week. That is, of course, the Gun Owner Fuck Up of the week. We learn from the GOFUs. We learn so that we get these cheap lessons, so we don’t repeat the mistakes that others have made. Let me tell you about a GOFU, and the GOFU this week is a little different. But it’s something you need to really consider and think about. You need to make sure, folks, that your spouse or significant other understands guns and understands the importance of firearms to you and their safety and security. And what happens when the Government gets involved in your life. If your Page – 7 – of 7

significant other or spouse doesn’t understand that and they think involving the police in any way in your life is a good thing, firearms get seized, taken, and your gun rights get put in jeopardy.

Evan Nappen 27:23

Not only is the gun owner going to end up facing disenfranchisement of their Second Amendment rights, forfeiture and/or seizure of their firearms, and possibly even criminal charges, but it also impacts the entire family and the relationship. Many times, I get calls from the very person who called the police in the first place and cannot believe what the Government is “doing to my family over this”. I can’t tell you how many times I’ve heard that. So, explain reality to your spouse or significant other. Take them shooting. Let them know and understand firearms. Let them get professional training at WeShoot. They have women training, women training women there, and it’s very comfortable. But if you take your spouse or you take your significant other there, start them off with like a .22, something easy and fun. Don’t go have them shoot the high power centerfire cartridge guns with a lot of recall that we all love. Have them shoot something easy and have them shoot at a relatively close range. They’ll hit the target and enjoy the thrill of shooting. Let them understand firearms are nothing to be scared of. Let them themselves get a love of guns, too. It protects your own rights. It lets there be peace and harmony in the family. It gives that greater understanding, and everybody wins. When you can get your spouse on board or your significant other on board, you will avoid not just legal problems, but you also end up getting another person interested in guns. Another person who may in fact want to become a gun owner. Then that person has a vested interest in not only their own Second Amendment rights, but the Second Amendment rights of everybody in the household. Many, many times folks, I get cases that come in and guess how it started? By this very GOFU that I’m explaining to you now. So, think about your own situation and see if there are things you can do to help prevent that GOFU from happening to you. This is Evan Nappen reminding you that gun laws don’t protect honest citizens from criminals. They protect criminals from honest citizens.

Speaker 3 30:13

Gun Lawyer is a CounterThink Media production. The music used in his 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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