Opinion: Guns and NJ are not a match

As mass gun violence escalates across the country, New Jersey has thus far remained immune. Just lucky -- or is that status at least a partial result of the state’s rigid gun-control laws?

Checking the Internet, there are at least 20 states which have suffered recent mass shootings, with California (18) and Georgia (10) leading the way. But of course California has strict laws like New Jersey, and Georgia has very lax laws. So that comparison is of little value.

New Jersey law is specifically tough on obtaining concealed carry permits. Such permits are limited to “persons employed in security work … and others who can establish an urgent necessity for self-protection.”

The applicant must submit a detailed explanation to the police chief of the town where s/he resides; an out-of-stater has to apply to the Superintendent of State Police.
The police chief then makes a recommendation  to a Superior Court Judge, who is the only person who can issue such a permit, which is then valid for two years.

But New Jersey’s protection against concealed carry is now threatened by a bill pending in Congress known as the Concealed Carry Reciprocity Act. Being pushed by the National Rifle Association (NRA), the bill would override state concealed carry laws and permit anyone with a valid permit from another state to carry their weapon in New Jersey.

The bill has already passed the House, and is pending in the Senate. An earlier version of the bill received 57 votes in 2013, including seven votes from Democrats. But the bill needed 60 votes to overcome a Senate filibuster.

The good news for New Jersey is that the bill will be unlikely to score even seven Democratic votes this time around in the face of the national aversion to gun violence. If a bill should someday be enacted by both houses and signed by a president, it would likely face a strong constitutional challenge. 

Most of the Republicans supporting the bill rely on the Commerce Clause of the Constitution; but the Commerce Clause is normally cited to protect interstate commerce. The federal Concealed Carry Act would attempt to extend interstate commerce, not protect it; and might run into opposition from conservative  judges who fear extending the reach of the clause to allow Congress more leeway to override state sovereignty.

Other Republican supporters look to the Second Amendment for support. But there are two sides to the Second Amendment. One protects the right to bear arms; but to date, the Supreme Court has only ruled that it protects the right of a person to keep a gun in the home for self-defense, and does not grant the right to “concealed carry.” Additionally, the first clause is a “states’ rights” provision permitting a state to maintain (or not) a militia. It would not appear to authorize the federal government to compel a state to allow outsiders to bring in arms in opposition to its own militia.

But as support for expanded gun rights recedes in the face of the “Never Again” movement, we may yet be spared the necessity of a constitutional showdown. It is also worth noting that the 21st Amendment (repealing prohibition) forbids importation of liquor into a state in violation of that state’s laws.

Concealed or not, New Jersey would also prefer that any guns available in the state be “smart” – a “smart gun” being one that can be fired only by its owner. Such a law was enacted by the Legislature a decade ago. The problem is that the New Jersey law can only go into effect after the gun technology has been effected and gun dealers somewhere have put them on the market. And gun manufacturers refuse to put them on the market even though the technology has long been available. 

Frank Askin is Distinguished Professor Emeritus, Rutgers School of Law; and General Counsel Emeritus, ACLU. His memoir, "Defending Rights," is distributed by Prometheus Press.