http://www.evannappen.com/lawupdate1gunbook/NEW JERSEY COURT RECOGNIZES SECOND AMENDMENT AND HOLDS THAT IT TRUMPS GUN FORFEITURE LAW
Belvidere, N.J, March 19, 2007â€"In a landmark written opinion filed February 27, a New Jersey Superior Court recognized the Second Amendment of the U.S. Constitution and held that a citizenâ€™s Constitutional Right to Keep and Bear Arms cannot be involuntarily waived under a New Jersey firearms forfeiture law.
â€œThe recognition of Second Amendment rights in New Jersey is long overdue,â€ said attorney Evan F. Nappen, whose law firm (including Richard V. Gilbert, Esq. and Louis P. Nappen, Esq.) represented appellant Dennis W. Peterson in the Warren County case. â€œIn this appeal, the Second Amendment was applied to New Jersey via the Constitutional doctrine of fundamental fairness, overcoming a significant legal hurdle needed for the Federal Bill of Rights to apply to the State.â€
This decision coincides with the recent Parker v. District of Columbia case, in which the U.S. Court of Appeals for the District of Columbia struck down a decades-old handgun ban in Washington, D.C. on the ground that it violates the Second Amendment.
â€œThe legal significance of the Second Amendment is finally being recognized by American courts,â€ Nappen continued, â€œand this New Jersey case is part of a growing trend in American jurisprudence.â€
In the New Jersey case, the appellant was denied re-issuance of his Firearms Purchaser ID card based on his consent to relinquish firearms seized in a domestic dispute in 2000. In 2004, New Jersey enacted a law barring Firearms Purchaser ID cards to any person whose firearms have been seized and not returned.
The Honorable John H. Pursel, J.S.C. held that the statute did not apply and the Firearms Purchaser ID card should be issued because the appellant did not know that his prior consent to relinquish his firearms would subject him to permanent loss of his Second Amendment rights under the 2004 law.
The ruling states in key part:
â€œFundamental fairness is a doctrine to be sparingly applied. It is appropriately applied in those rare cases where not to do so will subject the defendant to oppression, harassment, or egregious deprivation.â€ Doe v. Poritz, 142 N.J. 1 (1995), citing State v. Yoskowitz, 116 N.J. 679, 712, 563 A.2d 1 (1989) (Garibaldi, J., concurring and dissenting). Egregious deprivation would surely be the result if this applicant were precluded from obtaining a firearms purchaser identification card by virtue of the fact that he consensually surrendered his weapons at a time when it was impossible for him to have known that such action would later subject him to lifelong deprivation of his second amendment right.
Additionally, it is clear that in consenting to the disposition of the weapons seized as a result of the temporary restraining order, the applicant did not intend to waive his right to bear arms as provided by the second amendment of the U.S. Constitution. He therefore could not have knowingly, intelligently, or voluntarily waived that right.â€ (Emphasis added.) Click here for full text.
The Warren County Prosecutor has filed a notice of appeal in the case.
For more information, contact Evan F. Nappen at 732-389-8888.