Judge Geiger continued in relevant part: Considering these statutes in pari materia, the J.D. court reasoned: The expungement privilege, however, is not absolute. The holder of the privilege has discretion to determine whether to waive it. In the context of gun ownership, the legislature has crafted a strict regulatory scheme. It protects society, and it protects individuals from themselves. Where, as here, the individual has a prior psychiatric commitment, gun ownership could result in harm to himself or to others. If the applicant wishes to proceed with his application for a gun permit, then he must waive the privilege because government has a duty to determine whether the applicant qualifies lawfully to own a handgun.
It follows, therefore, that an application for a gun permit is tantamount to filing a civil complaint, and the privilege-holder must make a choice. He may apply for the permit, but only upon waiver of the privilege. This allows the government to investigate the applicant’s medical history. Alternatively, he may exercise his privilege by withdrawing the application for a firearms permit. The choice is entirely at his discretion.
The court deemed the firearm permit application to be a “constructive waiver” of the expungement privilege, allowing the court to “inquire into” and consider the expunged evidence. Id. at 328.
The version of N.J.S.A. 2C:58-3(c) in effect when the Law Division heard and decided this case provided that a HPP or FPIC shall not be denied to a “person of good character and good repute in the community” but that no such permit or card shall be issued to those within certain enumerated categories. Among those barred for specific reasons are convicted criminals. N.J.S.A. 2C:58-3(c)(1).
A counter-point is that a gun permit applicant should not have to forfeit one fundamental right to the confidentiality of expunged records in order to exercise their fundamental right to bear arms. However, it could also be argued that there is no fundamental right to the confidentiality of expunged records since some states do not even allow for expungements.
