Permits to Carry and Sensitive Places (Part 32)

by | May 30, 2023 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

Permits to Carry and Sensitive PlacesThe District Court continued: Also, at oral argument the State attempted to minimize the plain language of the legislation by suggesting that the only real injury to the gun owner is “having to ask for permission.” [Id. at 67.] Again, Defendants miss the mark. Putting aside how a gun owner goes about asking the question whether the private owner consents, Defendants’ position, in essence, requires a gun owner in certain cases to “read his neighbor’s mind.” Other than suggesting that the permit holder check the establishment’s website or make a call to a property owner, Defendants offered little guidance as to how a holder of a permit to carry a firearm would know whether he had consent before his possession of a firearm made him criminally liable.

A fundamental basic principle has long undergirded criminal law in this country, “namely, the importance of showing what Blackstone called ‘a vicious will.’” Rehaif v. United States, 139 S. Ct. 2191, 2196 (2019) (citing 4 W. Blackstone, Commentaries on the Law of England 21 (1769)). “The understanding that an injury is criminal only if inflicted knowingly ‘is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.’” Id. (citations omitted). It is this “knowingly” requirement that helps to “separate those who understand the wrongful nature of their act from those who do not.” U.S. v. Xb. The cases in which the Supreme Court has emphasized the importance of scienter to separate wrongful from innocent acts are legion. See Rehaif, 139 S. Ct. at 2196–97 (collecting cases). But here, by Defendant’s own admission, the wrongful conduct includes scenarios in which the permit holder does not know, or even know how to know, if he has the owner’s consent to carry until it is too late. This, by definition, is the criminalization of an innocent act, to wit, the lawful possession of a firearm. Stated differently, by removing any requirement of a permit holder’s mens rea, the legislation punishes an individual for the exercise of his Second Amendment rights. In sum, no matter how the State tries to dress up Section 7(a)(24),24 the legislation presents considerable constitutional problems.

The State is accustomed to courts finding creative ways to justify their position. This is especially true when a statute is challenged as unconstitutional since the Judiciary is supposed to give enhanced deference to the Legislature. This could explain the State’s and Legislature’s complacence is passing and supporting the unconstitutional statue at issue.