Judge Bumb continued: Defendants next attempt to defend the legislation by contending that the legislation simply “regulates . . . how property owners communicate their right to exclude.” [Tr. at 58.] Defendants also argue that nothing in Supreme Court jurisprudence suggests that the Second Amendment took away a state’s ability to regulate property rights. [Def. Br. at 23; see also Tr. at 68 (“Nothing about the substantive right to bear arms has changed at all because the property owner always has the right to exclude, and the government is just letting the property owners know of ways to make that clear. This is no different.”).] All that is true, but it is a disingenuous argument by the State: it ignores the other half of the legislation that criminalizes innocent conduct as it relates to the possession of a firearm, that is, one’s Second Amendment right to carry and self-defend.
Under the legislation, a gun owner faces prosecution even when he does not know that the property owner does not consent to his possession of a firearm and by the time he finds out, he has already committed a criminal violation. At oral argument, the State conceded this troubling point: THE COURT: [D]oes the UPS man, woman, violate the law when he gets up to the front door and the owner says you should not have come on my property if you’re armed? MS. CAI: Yes. Yes. [Tr. at 63.] THE COURT: But to make it liable for trespassing under New Jersey, it has to be known to the potential trespasser ahead of time before he or she can be charged with trespassing. This law has no such provision. This law says you can walk down the winding driveway, get to the front door and the [armed] repairmen is told [by the owner you do not have consent and] have just now violated the law, I’m calling the police. MS. CAI: And that’s exactly what the law provides… THE COURT: But I think you’re ignoring one salient fact, is that you’re now making it criminal for a person who has a license to conceal carry to not know in advance what that right is. MS. CAI: So that’s right, Your Honor. [Id. at 66–67.]
It is rare for a Court to refer to the State’s position as disingenuous. It is more common for courts to use euphemisms when describing the State’s weak analysis.