It’s been four years since the Supreme Court struck down “may issue” concealed carry licensing regimes, but some states are still using subjective standards of “suitability” to block some applicants from legally keeping or bearing arms.
One of those states is New Jersey, where a lawsuit challenging a permit denial could soon be taken up by the state Supreme Court.
The applicant, known in the lawsuit as A.A.R., possesses carry permits issued by ten other states, but was denied his New Jersey Firearms Purchaser ID Card because licensing authorities maintain that granting him one “would not be in the interest of the public health, safety or welfare because the person is found to be lacking the essential character of temperament necessary to be entrusted with a firearm.”
As the Second Amendment Foundation wrote in an amicus brief urging the state Supreme Court to accept A.A.R.’s appeal, “the Petitioner in this case has undoubtedly said some reprehensible things.”
His racist and sexist views are despicable, and if that speech leads him into social ostracism, perhaps it would be deserved. But from a constitutional perspective, what is more disturbing than anything the Petitioner has said is what the courts below have ruled, which is that speech that is protected by the First Amendment can be grounds to deny someone their constitutional right to keep and bear arms.
The brief notes that like important cases like Miranda v. Arizona, National Socialist Party v. Skokie, and Snyder v. Phelps all “established important principles despite the unfavorable individuals involved in them,” and the same should be true here. Otherwise, the New Jersey Supreme Court will have adopted the position that “the government cannot punish the deeply offensive (but protected) speech of the Westboro Baptist Church in Snyder or the neo-Nazis in Skokie, but it can deny them their Second Amendment rights based on that same protected speech.”
That’s the very essence of treating the Second Amendment as a second-class right, and it’s constitutionally untenable.
If the First Amendment protects reprehensible speech, then the Second Amendment must protect the right to keep and bear arms for those who make reprehensible remarks or hold views that most people would find objectionable.
The New Jersey courts that upheld A.A.R’s denial relied on an earlier case involving an applicant known as M.U., where the court held that, historically, “legislatures had the authority and discretion to exclude even non-violent offenders from ‘the people’ entitled to keep and bear arms.”
That overly broad conclusion was never correct, but it has now been clearly abrogated by the United States Supreme Court in Hemani, which reaffirmed that objective dangerousness is the only appropriate grounds for disarmament. The Supreme Court declined to give the government the “‘broad power to designate any group as dangerous and thereby disqualify its members from having a gun’, [which] would risk allowing it to ‘quickly swallow’ the Second Amendment.” While class-based disarmament is acceptable in some circumstances, it must be confined in its “reach to those who are categorically and unusually dangerous.”
In M.U., the New Jersey court concluded that entire categories of people can be prohibited from possessing firearms “due to the perceived threat they posed to an orderly society and compliance with legal norms.” As SAF rightfully points out, that simply cannot be squared with what SCOTUS has held in Hemani.
The M.U. case has been petitioned to the state Supreme Court as well, so it’s possible that the court will take up both cases, or at least hold A.A.R. until it has decided the earlier case.
Of course, it’s also possible that the court will deny the cert petitions in both cases and let the judgment of the lower courts stand, even if that means treating the Second Amendment as a second-class right. New Jersey lawmakers certainly have no problem with that treatment, but I hope that the state’s highest court isn’t willing to go along.
Editor’s Note: The radical Left will stop at nothing to enact their extreme gun control agenda and strip us of our Second Amendment rights.
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