In New Jersey, a person must have a permit to purchase a handgun. The law provides various grounds that disqualify a person from getting or renewing such a permit; among them is this:
Pretty reasonable, yes?
Now let’s consider the curious case of M. S.
In January 1997, M.S., a legal gun owner, and his then-estranged wife, S. R., had an argument that resulted in police responding to a domestic violence complaint. M. was charged with domestic violence, and the police took his firearms card and firearms away. In February, the state prosecutors filed a petition to forfeit M.'s firearms. M. entered into a consent agreement to sell the firearms. This consent agreement contained no admission of wrongdoing, and no hearing, trial, or other process ever found M. guilty of any act that would disqualify him from owning a firearm. In March, in fact, a court dismissed all the charges against him.
In 2005, the police refused to issue M. a firearms card, on the reasoning that he was permanently barred from possessing firearms. After all, his firearms had been seized in 1997 pursuant to the Prevention of Domestic Violence Act, and they had not ever been returned.
So – you be the judge. M.'s point is basically: I was never convicted of anything; there was never any hearing or trial or anything. The state’s point is: the law says “seized” and the guns were seized; the law says “not returned” and the guns weren’t returned. Ipso facto and ergonomic, the law forbids him from having guns.
I believe M. has the legally correct position, for reasons I will expand upon later.
If he entered into a consent agreement to dispose of them, power over them had returned to him. If not, they we not his to give away. Therefore, their effective ownership had been returned to him, even if he never saw them again.
Bingo. He sold the guns - therefore they were his property. Had they been forfeited he could not have sold them. Therefore he had them, was never permanently legally deprived of them and therefore is entitled to possession of firearms now.
On the other hand, the quoted law talks about the gun being returned, not his ownership of it (although, technically, he probably never stopped owning it in the first place…). Likewise someone could be barred from buying another gun if his previous one was confiscated and then lost.
And yup. If I were on the NJ Supreme Court, I would have concurred with the result, but written separately to explain my completely different reasoning.
But the law doesn’t say “permanantly legally deprived.” It says, “…seized pursuant to the ‘Prevention of Domestic Violence Act.” They were. And it says “and … not been returned.” They weren’t.
I am inclined to agree with the posters who suggest that since he was in a position to consent to the selling of the guns they were under his control and thus could be considered returned to him.
However that is my armchair conclusion based on my common sense view of the definitions of “returned” and the implications of “consent”.
A question back to you, Bricker: what probably happens now in an actual court of law? I’d like to think vague common sense notions are not the basis of law, and there would be previous cases that can be drawn on to better define whether this situation meets the criteria for something to be “returned”.
Also, does “consent” really imply a return of ownership? Was he agreeing that he would sell the guns, or was he agreeing that the state would sell the guns that they had seized from him (making them the property of the state, to be sold by the state, meaning they weren’t really returned).
Strikes me that the guys guns were taken as a cautionary measure but ‘seizing’ implies to me a permanent and irrevocable taking of the property and the removal of rights to that property.
Let me try (snipped, of course, for brevity’s sake):
JUSTICE BRICKER, concurring
While I concur in the judgment of my learned brethern reversing the opinion of the Appellate Court, I disagree with the majority’s rationale for their judgment, and therefore write separately.
The relevant statute states: “No handgun purchase permit or firearms purchaser identification card shall be issued: . . . (8) to any person whose firearm is seized pursuant to the ‘Prevention of Domestic Violence Act of 1991,’ and whose firearm has not been returned.” The consent decree FN 1*, stated that M.S. had “the opportunity to sell” the five handguns “to a registered dealer of firearms” on or before October 11, 1997. In the event that the handguns were not sold by that date, the consent judgment provided that they would be forfeited to the State of New Jersey." By the clear terms of the consent decree, ownership of the firearms was indeed “returned” to M.S., and he subsequently sold those firearms. Since the ownership of the firearms were, as required by the statute, “returned” to M.S., N.J.S.A. 2C:58-3(c) does not apply, and his firearm permit must be returned to him.
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for proceedings consistent with this opinion.
Well, as Hamlet’s post hinted, this is an actual case, not a hypothetical. So I have a slight advantage in predicting what a court might do…
The initial tribunal to hear the case ordered that he be granted the card. The state appealed and the appellate court reversed, on the basis that the firearms were seized as a result of a domestic violence complaint and not returned to him, which is the precise language of the law.
The state supreme court just last month ruled on the issue, and they reversed the appellate court, reasoning that the language, if taken literally, yields an absurd result. They point out that if guns were seized and the storage facility burned down the next day, the guns would also “never be returned” but if the accused were exonerated of all charges, surely the legislature wouldn’t have intended the permanent ban to apply.
So, rather than decide the case on the basis of statutory interpretation, you’d go out of your way to find the whole statute is unconstitutional as applied in this case? That’s an intriguing view of judicial restraint you have there.
Well, I admit that doing it sua sponte would have been a bit of a reach.
But not that much of one – if an equivalent law had burdened plaintiff’s First Amendment rights, no one would have time to blink twice before the courts shot it down. In my view, the Second Amendment provides as valid (and valuable) a protection as does the first. And I would rather rely on the plain language of the constitution trumping the plain language of a statute than gaze into the crystal ball to discover that the legislature really meant to say “…when a firearm seized in a domestic violence matter is not returned for a reason set forth in the Domestic Violence Forfeiture Statute” but ran out of ink, or something.
In my experience, courts generally don’t like to decide a case when the issue hadn’t arisen previously and that neither party had an opportunity to brief it. I’ll assume in your hypothetical that you sent the decision back for briefing on the Second Amendment issue and magically it wasn’t considered moot by the majority opinion.
How do you envision that you would you swing this? Find that the entire statute is unconstitutional? That “returned” was too vague? That “returned” was overbroad? Or that the whole statute infringed upon the Second Amendment?
How is this not a Fifth Amendment violation? The guy was deprived of his rights without due process - to wit, denied his rights under the Second Amendment without having been convicted of anything.
Of course. Yes, I realize that this is a major flaw in my sua sponte approach.
An “as applied” problem – interpreting the statute to allow a permanent ban on firearm possession when there had been no hearing, trial, or finding of guilt for any act that would prohibit firearm ownership violates plaintiff’s Second Amendment rights.
Bricker, where is there a well-regulated militia (which is in the 2nd’s “plain language”), or hunting or self-defense (which your favorite Justice recently found were in it too somewhere, perhaps in invisible ink) in this case? The very opposite of self-defense would appear to be present, in fact.
Now, was there anything else in the consent decree, or other court orders, that you’re not mentioning in this latest silly exercise in Socratizing the board? Shodan, the 5th refers to life, liberty, and property, not “rights”. But he was indeed deprived of his property, in spite of due process. You actually have the nub of a good argument there.
