Episode 80-I Aint Fraid’a No Ghosts– Plus Byrna Guns in Jersey

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Gun Lawyer Episode 80


serial numbers, gun, exemption, firearm, weapon, guns, lawyer, registration, defense, problem, new jersey, person, pepper spray, possession, plainly, privacy, manifestly, firearms, carry, fired


Evan Nappen, Speaker 3

Evan Nappen 00:00

Hi. I’m Evan Nappen, and welcome to Gun Lawyer. I’ve been thinking about the anti-gun attacks lately and their machinations, their schemes and the constant barrage of propaganda that we get out of them. In one way, they’re pretty good at it. They’re creative, and they sure come up with a lot of fun descriptions to push their propaganda efforts. And you know, one of the big ones now that’s really taken on a lot is “ghost guns”, you know, “ghost guns”. I was thinking about this whole thing about ghost guns, and what’s the underlying thing going on there with ghost guns? And really, what it is, it’s about guns that don’t have serial numbers. I mean, if you boil right down to it, it is unserialized numbered guns. Whether it’s a gun you built yourself with no serial number or a gun that was made before with no serial number, even manufactured. The whole thing behind ghost gun and the danger of ghost guns, is that guns are not serial numbered.

Evan Nappen 01:40

So, let’s think this through. Why are serial numbers so important? Who cares? Oh, well, we have to trace guns. Yeah, bullshit, frankly. Okay. Frankly, it is. Because gun tracing is about the lamest, least crime solving thing out there. Oh, it’s great for statistical twisting to show the number of crime guns from a dealer that were sold. Except they’re not crime guns, it’s just any gun seized. Because they seize or the dealer has been in business a long time, so they’ve sold lots of guns. This is a problem dealer; one of those bad apples. So, it’s used for propaganda purposes. That’s true. And it’s used to aid in their ultimate goal and that’s universal registration. We’ve talked about it before, and I’m sure you know, they want registration. Because with registration, that’s how you get the confiscation. Now, look, folks, either you believe that registration leads to confiscation, which I believe with all my heart, or you can just quit listening to me now, honestly, because that’s the game.

Evan Nappen 03:01

History has repeated itself over and over. Legislation, Registration, Confiscation, then Extermination. And history goes on and on doing this. So, what does all this boil down to? It boils down to registration is a threat, an immediate present danger threat to our Second Amendment rights. And the fundamental requirement of registration is serial numbers on guns. And I’m going to tell you right now, I oppose all serial numbers on guns. And what I want to see is a Firearms Privacy Protection Act. Guns that you and I own are private and need to remain private. All a serial number does is make it registerable so Page – 2 – of 7

that our privacy to our firearm possession is now violated. I want Firearm Privacy Protection Law, which means the absolute elimination of mandatory serial numbers on firearms.

Evan Nappen 04:34

Now, you may say, well, what about theft? What about theft? Well, I understand we want to keep our valuables and be able to identify valuables. But you know, there’s plenty of very valuable things in our society that aren’t serial numbered. Gold bullion coins aren’t serial numbered. Your jewelry isn’t serial numbered. All right. There’s lots of valuables out there, that somehow theft protection is still available, still able to deal with it. Even though they don’t have serial numbers, and it’s not registered. Right. So, that doesn’t cut it. Plus, it’s not actually a theft deterrent. Because, frankly, for all these years that we’ve operated in this country with a stolen firearm database, do you know who’s able to access it? Only law enforcement. No, no, no, think about this now. Only law enforcement.

Evan Nappen 05:45

I’m a gun dealer, and someone comes to my shop. They want to sell me a gun. I take their name, address info, and I do the acquisition disposition. All good. But can I check that gun off a stolen gun list before I accept it? Hell no. It’s not available for that. It’s only after the fact. If they’re just doing some investigation or this gun has come into the police, to their attention somehow that a check actually gets done. But citizens aren’t allowed to do it. You’re not allowed just to check. I mean, think how feasible it is to have a database that we could just go online, put in a gun and serial number, see if it comes up stolen or not. I wouldn’t want to purchase a stolen gun, and I don’t think you would want to purchase a stolen gun. I know damn sure that dealers don’t want to purchase stolen guns. But we don’t know what guns are stolen.

Evan Nappen 06:44

And yet, this database is supposedly out there, and we can’t touch it. And you know, if you think back to the old days before, if you dealt with credit cards, they used to publish lists upon lists of stolen credit cards. And if you worked as a clerk in a store, before you accepted a credit card, you had to check the list to make sure the card wasn’t a stolen card. It was done to stop that. You can’t do that with a gun today. So, for all these years of even having a stolen gun database with serial numbers, we’re not allowed access. It is ineffective, absolutely ineffective. If they really wanted to do it. And I’ll tell you what. I’m talking about here isn’t that you can’t have a gun with a serial number if you want one. You can put a serial number on your gun. The manufacturer may offer guns with or without serial numbers. It’s up to you.

Evan Nappen 07:47

But instead, the whole thing now is mandatory serial numbers. Guns that you can’t even own if they don’t have a serial number, and criminalizing guns with no serial number. I want to ban on mandatory serial numbers. You know, think about this. Many states have the defacement statutes. Oh, you can’t possess a gun that’s had its serial number removed or defaced. Well, here’s a real simple start to my Firearm Privacy Protection Act. Repeal the defaced firearm statutes. You want to remove a serial number from your gun? No problem, remove it. Why not? It’s not a problem. Oh, you think gun tracing works? Of course, it doesn’t. Doesn’t work. Oh, there’s isolated cases. Well, you know, there’s always exceptions. But that’s hardly worth it when you look at the big picture of our privacy, our firearm privacy. Page – 3 – of 7

And if you don’t want to serial number on your guns, you should be able to remove it. Every one of those firearm defacement laws should be repealed.

Evan Nappen 09:05

There should be no mandatory requirement of serial numbers, and guns should not have serial numbers, because that is the gateway to registration and the ultimate violation of our firearm privacy. Our firearm privacy needs to be protected. Why do we give it up for guns? Oh, yeah, you want to know that I own a gun? No problem. I have to register it? Oh sure. Let’s register it. I need a serial number when I buy it so that you know that number, and I bought that gun. Why? Should we have serial numbers on books? Every time you buy a book, we make sure we note the book with the serial number that you bought and that you own. What do you say? Is that right? No, of course not. We want privacy, and we have to start changing our thinking because otherwise we’re just taking it from the other side. They’re grabbing our privacy, grabbing it away and saying, yeah, we got to ban guns with no serial numbers. They’re illegally registering, literally a billion guns because of serial numbers. Do you want federal dealers to do transactions? Yeah. But no serial numbers get recorded. That’s right. No serial numbers. We eliminate the threat.

Evan Nappen 10:32

Listen, there is no reason why we, as gun owners, as believers in the Second Amendment, can’t demand our privacy. No reason we can’t stand up and say we don’t want to risk registration and confiscation on our rights. No reason. We shouldn’t just be taking it. Yet, that’s what’s going on right now. We’re just oh, oh, oh, well, serial numbers. No, not cutting it. Let’s take a stand against them. Let’s repeal the laws that stop us from even removing serial numbers. Let’s stop mandating serial numbers. Every gun should be a ghost gun in my opinion. Every gun. Nothing would better ensure our freedom than every gun being a ghost gun. There’s no reason we should accept this intrusion into our rights. Yet have you ever heard anyone say what I’m saying now? You know you haven’t.

Evan Nappen 11:41

But it’s time we start thinking about it and start taking action to get the legal change that we need, and not accept what they’ve been shoving down our throat for years. Laying a foundation for registration, and confiscation, and maybe even worse. Look, you say this is ridiculous, impossible. Look, I’ll tell you what – 20 or 30 years ago, if you told me that we’d ever have half of America with Constitutional carry, and we can carry a gun with no permit at all. Concealed, loaded for self-defense in half of America already. I wouldn’t be able to stop laughing in your face. But look at where we are now. We can do this. It’s time to change our mindset. Destroy all gun records. Repeal the defacement laws. Make every gun a ghost gun. I’ve got some great letters to talk about when we come back.

Speaker 3 13:04

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 Page – 4 – of 7

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 14:19

You’re listening to Gun Lawyer with Attorney Evan Nappen. Available wherever you get your favorite podcasts.

Evan Nappen 14:35

Hey, welcome back to Gun Lawyer. I got some very interesting letters here that I love to answer and talk about. I want to thank you all for being listeners to Gun Lawyer. It really makes a difference and gives me the opportunity to put these crazy ideas out so folks can start letting it internalize and think about it. Look at that bigger picture. It means a lot to me, and we’re just here. We want our freedom, and we want our rights. You know that we’re under attack, and this gives a platform and the voice. Tell your friends, and please subscribe. Anywhere you get podcasts, you can get Gun Lawyer.

Evan Nappen 15:17

So, I have a couple letters here. This letter is from Brian, and Brian says regarding firearm instructor, place of employment exception. He says that he does pistol instruction at various locations. And at the range, he has no problem possessing firearms. But what about other places? I do firearm safety at different venues like VFWs, hotels, other conference rooms. Since I’m the owner of the business and renting the room temporarily, would that be covered under the exemption of place of business and allow me to have firearms for instructional purposes? Thank you for all you do. I understand the creative thinking here, but I wouldn’t recommend that. The exemptions are narrowly construed. The exemption for place of business means it has to be your place of business.

Evan Nappen 16:15

A rented hotel room or conference room isn’t your place of business. You’re not receiving mail there, for example. You’re not paying taxes, property taxes, you’re not business to that locale. Place of business isn’t just the place where you’re giving that instruction. Remember, you’re dealing with New Jersey, who is not going to look to expand exemptions, but rather to narrowly tailor them and to do everything in its power to argue that you are outside the exemption. It would be a tough sell to do this. The exemption for firing range and target range is black and white. It’s in the exemptions, and this would not be such a facility. So, it would even be an argument that the exemptions themselves don’t specifically address it, and therefore the legislature didn’t mean to cover it. These are things that I’ve seen the state do to argue.

Evan Nappen 17:30

Remember the exemptions in Jersey, particularly, they’re a defense. They are a defense, and the burden of proof is going to be on you to show it. It is not on the state to disprove it till you first prove it. You’re guilty till proven innocent. That’s how the laws work in Jersey. So, there’s great risk in any of these kinds of activities unless you’re solidly within the exemption. There’s a case, just talking about Page – 5 – of 7

place of business, for example, where the individual ran a bar. Now this person did everything. They opened and closed the bar. They hired and fired. They took all the income and money and bought supplies and did everything to run this bar except actually own the bar. Every month, the person who ran this facility would send a check down to some guy, out of state, that actually owned it. But he did everything that any owner would do, and it was plainly to any layperson, you would say that is his place of business. Yet the court held that it wasn’t his place of business, and that the handgun that he had there was unlawfully possessed by him and not his place of business. So, that’s the kind of things you run into and that’s why that is unfortunately very problematic to try to rely on the exemption.

Evan Nappen 19:01

Now I have another one here from Brian. This is regarding the Byrna. Related to your answer on the carry or possession of Byrna at work. Wouldn’t the pepper spray exemption allow the use of a Byrna? It doesn’t have a restriction on how the pepper spray is deployed. Only the amount which the Byrna is less than the allowed amounts. A problem with the Byrna gun goes to the problem that New Jersey has created in its other weapon prohibition. New Jersey prohibits under subsection d. of NJS 2C:39-5 other weapons. Let me read you, it’s very short, what the prohibition says for other weapons. This applies as well to tasers, stun guns, etc. It says: “d. Other weapons. Any person who knowingly has in his possession any other weapon under circumstances not manifestly appropriate for such lawful uses as it may have is guilty of a crime of the fourth degree.” It’s a Fourth Degree Felony level offense. Even though Jersey doesn’t call them felonies, but it carries a year and a half in state prison, which would make you a felon under federal law or a prohibited person. We just use the term felon to indicate that.

Evan Nappen 20:42

You just heard the prohibition on other weapons. Some of you may say, oh, well, well, look, I’m carrying my Byrna for self-defense, self-defense. It’s plainly a manifestly appropriate lawful use. I just want to defend myself. And, folks, I get that. I agree with you even with the sentiment. The problem is, the courts in New Jersey, the case law in New Jersey, has made it crystal clear that arming yourself preemptively outside your home with a weapon for the purposes of self-defense is specifically not a circumstance that is manifestly appropriate. That language right there, the court has said sorry, self-defense doesn’t count. That’s right. New Jersey, as usual, would rather see us be a victim than a defender. When it comes to other weapons, whether it’s Byrna guns or stun guns, you cannot preemptively arm yourself with that weapon outside your home. This is the prohibition.

Evan Nappen 22:16

So, why do you have a Byrna gun on you? What’s its purpose? Well, plainly, it’s for self-defense. And the same is true, why do you have a taser or stun gun? I mean, you’re not herding cattle. Right? I mean, you have it for self-defense. Well, the court has said that’s no good. So, because that’s no good, you’re in a position of not being able to carry it. Now the question that Brian has so what about possession at work? Well, there is the exemption for place of business as we talked about. But place of business is narrowly construed. I told you about the case with the guy running the bar, and this is the same problem. You are not going to fit yourself into that exemption for place of business which does apply to other weapons but won’t work here.

Evan Nappen 23:25 Page – 6 – of 7

The other exemption that he is talking about is the pepper spray exemption. Now, there is only one weapon that a New Jerseyean can carry preemptively for self-defense outside the home and that is pepper spray, but it is a narrow exemption. Let me read you the exemption, very specifically. It goes directly to the subsection d. of NJS 2C:39-5, and it says: it shall not be construed to prevent, by the way this is found at NJS 2C:39-6, subsection little i., shall be construed to prevent any person who is 18 years or older and has not been convicted of a felony, (So, even New Jersey uses the word felony in its own statute) from possession for the purpose of personal self-defense of one pocket-sized device. So, it’s one device which contains and releases not more than three quarters of an ounce of chemical substance, not ordinarily capable of lethal use, or inflicting serious bodily injury, but rather intended to produce temporary physical discomfort or disability through being vaporized or otherwise dispensed in the air. Any person in possession of any device in violation of this subsection shall be deemed and adjudged to be a disorderly person. So, the definition here is pretty clearly on pepper sprays, vaporizing in the air, dispense in the air. The Byrna gun fires a ball, a pepper ball. It isn’t dispensed in the air, and it isn’t vaporized. It’s not until it strikes the target that it has its effect. It is in effect firing this missile or projectile and the weight of chemical is not necessarily going to be by weight of each Byrna ball. It’s going to be the substance inside and how many are in the gun that is contained in it. If that’s over three quarters of an ounce, you’re going to lose your argument on that. It plainly isn’t a traditional pepper spray, aerosol type spray container, that most envision here.

Evan Nappen 26:23

Then you run into problems with it falling under the definition of firearm or the definition of weapon. Now granted, paintball markers, paintball markers are not firearms in New Jersey because of the In Ray Gong case. But paintball markers can be weapons in New Jersey, and anything can become a weapon depending on how it’s used. But the firearm definition on the Byrna gun gets even spookier because the definition for firearm talks about any gun, device, or instrument and 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, it says by means of a cartridge shell or the action of an explosive or the igniting of flammable or explosive substance. So, you have gas or vapor or explosive. Then the statute specifically says, it shall include without limitation (so they want this broad) any firearm which is the nature of an air gun, a spring gun or other weapon of similar nature in which the propelling force is 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. So, this firearm definition with paintball got around the size issue because of it being roughly 68 caliber as opposed to the smaller than three eighths of an inch. But sufficient force to injure starts to make it get a little shaky here.

Evan Nappen 28:51

Then when you go to the actual definition of weapon. Weapon is anything readily capable of lethal use or inflicting serious bodily injury. And this says the term includes, but it’s not limited to, and you go down and it says stun guns and any weapon or other device that projects, releases or emits tear gas or any other substance intended to produce temporary physical discomfort or permanent injuries through being vaporized or otherwise dispensed in the air. So, we’re making full circle now back to other weapons, and the problem with other weapons. And this plainly would fall into the category of at least other weapons even we can fight to keep it out of a category of firearm. Then we have the exemptions Page – 7 – of 7

that do not apply for the place of business, at least it’s extremely shaky. Remember the burden is on us to prove it, and we have case law that cuts against us pretty hard. We have the court saying, preemptively arming yourself outside your home is not a manifest lawful purpose. So, there’s an extremely detailed explanation for you folks out there as to the problems that we have in New Jersey, even on wanting to defend ourselves with less than lethal weapons of self-defense.

Evan Nappen 30:32

Even though this is all depressing, stay tuned, because we may very well have the Supreme Court case, on carry, reverse and change that court opinion so that carrying outside the home for self-defense will be protected expressly by the Second Amendment via the upcoming decision. Let’s keep our fingers crossed that all this opens up, and we can no longer be victims and start being defenders. This is Evan Nappen, reminding you that gun laws don’t protect honest citizens from criminals. It protects criminals from honest citizens.

Speaker 3 31:24

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.

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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.

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