Stun Gun Legalization: Part 3

by | Dec 16, 2017 | Blog, Criminal Law, Monmouth County, Ocean County

The new Rule proposed by the Superintendent of State Police reads:

The Division of State Police is proposing to amend and supplement N.J.A.C. 13:54 to address regulatory issues related to the sale and possession of stun guns. In Caetano v. Massachusetts, 136 S.Ct. 1027 (2016), the United States Supreme Court struck down a Massachusetts state law prohibiting possession of a stun gun, finding that the absolute ban on possession of a stun gun violated the Second Amendment’s protection of an individual right to keep and bear arms for self-protection. Since 1985, New Jersey law, N.J.S.A. 2C:39-3.h, similarly has established a strict prohibition on possession of a stun gun, regardless of the circumstances or location of the possession. In a Consent Order entered in New Jersey Second Amendment Society v. Porrino, No. 16-4906 (USDC) (April 25, 2017), the United States District Court declared that “N.J. Stat. Ann. § 2C:39-3(h), to the extent this statute outright prohibits, under criminal penalty, individuals from possessing electronic arms, is declared unconstitutional in that it violates the Second Amendment to the United States Constitution and shall not be enforced.” The Consent Order further provided that N.J.S.A. 2C:39-9(d) “shall not be enforced to the extent this statute prohibits, under criminal penalty, the sale or shipment of Tasers or other electronic arms.” The Consent Order stayed proceedings to allow the implementation of any necessary revisions to controlling legal authorities and to establish limitations consistent with the public safety and the Second Amendment.

Accordingly, this notice of proposal is intended to address issues raised by the court invalidating the blanket prohibition on possession and sale of stun guns in New Jersey by maintaining the prohibition on sale and possession of stun guns to minors. Nothing in this rulemaking is intended to supplant or affect any time, place, and manner limitations on the possession, use, and ownership of stun guns established by New Jersey law, other than those set forth in N.J.S.A. 2C:39-3.h and 2C:39-9(d).

Note that at least one well-respected lawyer has interpreted the Attorney General’s memo to prohibit the arrest of juveniles for stun gun possession. That individual pointed to the language below regarding “subject to confiscation”, inferring that this meant that confiscation is the only penalty. The preceding paragraph makes it clear to me that the juvenile possession of stun guns still subjects juveniles to the typical penalties under our criminal code, i.e. they can still be adjudicated delinquent for stun gun possession.