In the Matter of Application of Jonathan R. Wheeler for a Retired officer Permit to Carry a Firearm Openly and/or Concealed in the Matter of Application of George A. Daudelin for a Retired Officer Permit to Carry a Firearm Openly and/or Concealed

• Court: New Jersey Superior Court Appellate Division
• Decided: December 30, 2013
• Docket: A-3704-11
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3704-11T4

IN THE MATTER OF APPLICATION OF APPROVED FOR PUBLICATION JONATHAN R. WHEELER FOR A RETIRED OFFICER PERMIT TO CARRY A FIREARM December 30, 2013 OPENLY AND/OR CONCEALED. APPELLATE DIVISION IN THE MATTER OF APPLICATION OF GEORGE A. DAUDELIN FOR A RETIRED OFFICER PERMIT TO CARRY A FIREARM OPENLY AND/OR CONCEALED. _______________________________

Argued March 6, 2013 - Decided December 30, 2013

Before Judges Grall, Koblitz and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Essex County.

J. Sheldon Cohen argued the cause for appellants Wheeler and Daudelin (DeCotiis, FitzPatrick & Cole, LLP, attorneys; Steven C. Mannion, on the brief).

Maria I. Guerrero, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Guerrero, of counsel and on the brief).

The opinion of the court was delivered by

GRALL, J.A.D. TABLE OF CONTENTS

I. Introduction 3

II. Facts 5

III. The Firearms Law 7

A. The Purpose, Requirements, Narrow Scope and Role of the Carry Permit Law 8 1. The Purpose and Requirements 8 2. The Narrow Scope 10 3. The Similar Roles of Employment-Based Exemptions from the Carry Permit Law and the "Justifiable Need" Standard 15 4. The Role of Special Permits for Retired Police Officers 18 5. The Legislature's "Justifiable Need" Requirement is Consistent with the Lawful Defensive Use of Firearms 23 B. The History of the Carry Permit Law 24 C. The Factual Justifications for the Carry Permit Law 26 D. Summary 31

IV. The Second Amendment 32

A. The Claim Presented 32 B. The Right 34 1. The Narrow Holdings in Heller and McDonald 35 2. The Broad Reasoning Supporting the Narrow Holdings in Heller and McDonald 37 3. The Threshold Question Raised by the Court's Narrow Holdings and Broader Reasoning 38 4. Limitations on the Right 42 5. The Standard of Scrutiny 52 6. "Justifiable Need" Passes Muster 62

V. Equal Protection 76

VI. Privileges and Immunities 83

VII. Preemption 85

2 A-3704-11T4 I. Introduction

Jonathan R. Wheeler and George A. Daudelin retired from the

Arson Investigation Unit (AIU) of Newark's Fire Department and

later applied to the Division of State Police (Division) for a

special permit authorizing certain retired law enforcement

officers to carry handguns. N.J.S.A. 2C:39-6l(1)-(4).1 These

special carry permits may be issued to retirees who either

served in an enumerated law enforcement agency or served with an

agency in another state and are "qualified retired law

enforcement officer[s], as [that term is] used in the federal

'Law Enforcement Officers Safety Act of 2004' [(LEOSA)], Pub. L.

No. 108-277, domiciled in this State." N.J.S.A. 2C:39-6l; In re

Casaleggio, 420 N.J. Super. 121, 128-29 (App. Div. 2011) (so

interpreting subsection l's reference to LEOSA, 18 U.S.C.S. §

926C).

Another type of carry permit is available to any qualified

person who can demonstrate a "justifiable need" for carrying a

handgun. N.J.S.A. 2C:58-4d. To acquire one, an applicant must

show "'an urgent necessity . . . for self-protection'" based on

"specific threats or previous attacks demonstrating a special

danger to the applicant's life that cannot be avoided by other

1 Subsection l is italicized to distinguish the lowercase letter "l" from the numeral "1."

3 A-3704-11T4 means." In re Preis, 118 N.J. 564, 571 (1990) (quoting Siccardi

v. State, 59 N.J. 545, 557 (1971)). Neither Wheeler nor

Daudelin applied for that type of carry permit, because they

concluded they could not show "justifiable need."

The Division denied Wheeler's and Daudelin's application.

Challenging the constitutionality of the carry permit laws, both

requested a hearing in the Law Division. N.J.S.A. 2C:39-6l(5).

After consolidating the cases and taking testimony, the judge

affirmed the denials.

On appeal, the applicants acknowledge their ineligibility

for either type of carry permit and renew and expand their

constitutional challenges. The questions presented are: 1)

whether the "justifiable need" requirement of N.J.S.A. 2C:58-4d

violates the Second Amendment; 2) whether subsection l of

N.J.S.A. 2C:39-6 arbitrarily distinguishes between eligible

retired officers and others; 3) whether distinctions between

retired officers domiciled in New Jersey and elsewhere violate

the Privileges and Immunities Clause of Article IV, Section 2 —

an issue not raised in the trial court; and 4) whether LEOSA

would preempt these applicants' prosecution for possessing a

handgun without a permit in violation of N.J.S.A. 2C:39-5b — an

issue not properly raised in the Law Division.

4 A-3704-11T4 Because the facts are not in dispute and the questions turn

on interpretation of statutes and the Constitution, we owe no

deference to the judge's determinations. Borough of Harvey

Cedars v. Karan, 214 N.J. 384, 401-02 (2013); In re Liquidation

of Integrity Ins. Co., 193 N.J. 86, 94 (2007); Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).2 For

the reasons that follow, we conclude the applicants are not

entitled to relief on any ground asserted.

II. Facts

Daudelin was assigned to Newark's AIU in 1984 and served in

that unit for about sixteen years before retiring in 2000; he

first applied for a special carry permit in April 2011. Wheeler

was assigned to the AIU in 1997 and retired with no more than

eleven years of service in 2008; he filed this application for a

special permit in February 2011.3 Both held leadership positions

and retired in good standing.

2 The Attorney General participated in the Law Division but, regrettably, declined to participate here. This matter implicates criminal laws, involves a determination of the Division and presents constitutional challenges to State statutes. The Attorney General is the State's Chief Law Enforcement Officer, N.J.S.A. 52:17B-98; the head of the Department of Law and Public Safety and generally responsible for the Division, N.J.S.A. 52:17B-2 to -4; and is entitled to defend a challenge to a statute, R. 4:28-4; R. 2:5-1(h). 3 This was Wheeler's second application. On a prior appeal decided before Casaleggio, we upheld a denial of his first (continued)

5 A-3704-11T4 Acknowledging their ineligibility for special permits, they

offered evidence to demonstrate that their exclusion from the

list of eligible retirees is arbitrary. Active members of an

AIU have powers equivalent to those of police officers only

"while engaged in the actual performance of arson investigation

duties," N.J.S.A. 40A:14-7.1d, and may carry handguns only

"while either engaged in the actual performance of arson

investigation duties or while actually on call to perform arson

investigation duties and when specifically authorized . . . to

carry weapons." N.J.S.A. 2C:39-6a(8) (emphasis added).4 But

these applicants were on duty or on call except when on

vacation, and they intervened whenever they observed crimes in

progress, even crimes unrelated to their duties, and they worked

with officers from the police department, county prosecutor's

(continued) application for a special permit on the ground that AIUs are not among the agencies enumerated in subsection l, but we allowed Wheeler to reapply asserting eligibility as a LEOSA-qualified retired officer. In the Matter of Jonathan R. Wheeler, No. A- 3329-08 (App. Div. Nov. 20, 2009) (slip op. at 7-10). The Division and the Law Division relied on Casaleggio to deny his second application. As the parties agree that Casaleggio is rightly decided, that question is not before us. 4 Firefighters not assigned to an AIU have police powers only while en route to, attending to or returning from a fire, and they have no authority to carry firearms beyond that of private citizens. N.J.S.A. 40A:14-54.

6 A-3704-11T4 office and the Bureau of Alcohol, Tobacco and Firearms when

investigating arsons related to other crimes.

They also presented evidence of inconsistent application of

the special carry permit law. Some AIU retirees had been issued

special carry permits based on subsection l's reference to

LEOSA, but they received those permits prior to this court's

decision in Casaleggio.

Neither Wheeler nor Daudelin made any attempt to establish

the "justifiable need" necessary to obtain an ordinary carry

permit. Instead, they argued that if retired officers, who have

no police powers, can obtain a carry permit without showing

"justifiable need," then no one should be required to make that

showing.

III. The Firearms Law

Discussion of the constitutional challenges to the

"justifiable need" component of the carry permit law requires an

understanding of the role of "justifiable need" in the "'careful

grid' of regulatory provisions" comprising our firearms law.

Preis, supra, 118 N.J. at 568 (quoting State v. Ingram, 98 N.J.

489, 495 n.1 (1985)). Accordingly, the importance of this

component of that grid is best understood in context.

The carry permit law is distinct from laws that provide

enhanced punishment for persons who commit crimes with guns or

7 A-3704-11T4 other deadly weapons, which are also part of the careful grid.

Id. at 568-69. As the discussion that follows demonstrates, the

carry permit law is one of the regulatory provisions of the

firearms laws designed to protect the public before any harm is

caused. The regulatory provisions address the danger of serious

injury inherent in the ownership and carrying of firearms.

A. The Purpose, Requirements, Narrow Scope and Role of the Carry Permit Law

1. The Purpose and Requirements

Some regulatory provisions of the firearms laws "keep

firearms from all such persons whose possession would pose a

threat to the public health, safety or welfare," under any

circumstance. Burton v. Sills, 53 N.J. 86, 93 (1968), appeal

dismissed, 394 U.S. 812, 89 S. Ct. 1486, 22 L. Ed. 2d 748

(1969). In order to lawfully acquire a handgun, rifle or

shotgun, one must demonstrate that he or she is not disqualified

by reason of youth, criminal record history, domestic violence

restraining order or disability affecting one's ability to carry

a firearm. N.J.S.A. 2C:58-3a-c (requiring prior authorization -

a permit to purchase a handgun or a purchaser identification

8 A-3704-11T4 card for rifles and shotguns — and enumerating the disqualifying

conditions).5

The carry permit law serves a different purpose —

addressing the "serious dangers of misuse and accidental use"

inherent even when the person carrying a handgun is law-abiding

and responsible. Siccardi, supra, 59 N.J. at 558 (construing

N.J.S.A. 2A:151-44 (L. 1966, c. 60, § 35, p. 501)). An

applicant for a carry permit must demonstrate more than absence

of a disqualifying condition. The applicant must show that he

or she is "thoroughly familiar with the safe handling and use of

handguns" and that he or she has "a justifiable need to carry a

handgun." N.J.S.A. 2C:58-4d. These two additional requirements

make the carry permit "the most closely-regulated aspect of

[this State's] gun-control laws." Preis, supra, 118 N.J. at

568-69.

The additional requirements minimize the danger the carry

permit law is intended to address. The showing of proficiency

reduces the risk of mishandling. Moore v. Madigan, 702 F.3d

933, 941 (7th Cir. 2012) (noting the obvious menace when the

untrained carry guns in public), reh'g en banc denied, 708 F.3d

5 N.J.S.A. 2C:39-10a(1) (violation of this restriction is a crime of the fourth degree); N.J.S.A. 2C:39-5c (violation is a crime of the third degree where an exemption stated in N.J.S.A. 2C:39- 6 does not apply); see also N.J.S.A. 2C:58-3.1, -3.2 (exempting certain temporary transfers).

9 A-3704-11T4 901 (7th Cir. 2013). And the demonstration of particularized

need that serves to limit "widespread handgun possession in the

streets, somewhat reminiscent of frontier days, would not be at

all in the public interest." Siccardi, supra, 59 N.J. at 558.

2. The Narrow Scope

Although the carry permit is the most closely-regulated

aspect of our firearms laws, it affects a very narrow range of

conduct.

The core of the carry permit law is a broadly-stated

prohibition against knowing possession of a handgun "without

first having obtained a permit to carry the same as provided in

N.J.S. 2C:58-4." N.J.S.A. 2C:39-5b(1). But the scope of that

prohibition, and consequently the obligation to establish

"justifiable need" in order to carry and use a handgun, is

greatly diminished by numerous statutory exceptions that make

N.J.S.A. 2C:39-5b inapplicable in a wide range of circumstances.

See N.J.S.A. 2C:39-6 (codifying the exceptions).

As a practical matter, the exceptions make the prohibition

against carrying a handgun applicable only in public places. We

use the term "public places" throughout this opinion to mean

places other than one's home, business premises, property,

places where handguns are lawfully sold and repaired, and places

where handguns may be lawfully used for training and practice or

10 A-3704-11T4 recreationally for hunting, competition and exhibition.

N.J.S.A. 2C:39-6e, f, g. Because of the exceptions, one does

not need a carry permit to keep, carry or use a handgun about

one's home, business premises or land, N.J.S.A. 2C:39-6e, or

while lawfully hunting or shooting at a range or in an

authorized exhibition, N.J.S.A. 2C:39-6f(1)-(3), or while

transporting a handgun, unloaded and secured, between those

places and places where guns are sold or repaired. N.J.S.A.

2C:39-6e, f, g.

In each of the instances covered by the foregoing

exceptions, a lawful reason, or need, for having a handgun is

obvious: keeping or transporting a handgun for lawful use;

using it in lawful defense of home, family and property; using

it recreationally or for training where that conduct is lawful;

and transporting it, secured, in connection with acquisition,

maintenance or use for one of the lawful purposes.

There are additional exceptions that apply to certain

persons carrying a loaded handgun in public places. Those

eligible are designated by their employment. N.J.S.A. 2C:39-6a,

b. Where those exceptions apply, the likely need for use of

lawful defensive force is apparent — either because the persons

or things the employee must secure are inherently likely to be

of interest to those bent on crime, or because the job is to

11 A-3704-11T4 keep the peace, prevent crime, apprehend, secure or prosecute

suspects, or supervise and secure those convicted.

The employment-based exceptions applicable to workers in

the private sector are for guards employed by railway express

companies, banks, public utilities transporting explosives,

nuclear power plants or companies transporting prisoners

pursuant to government contract. N.J.S.A. 2C:39-6c(5), a(10),

c(8), c(15). Exempted government employees are members of the

military on active duty, police and sheriffs' officers, prison

and jail guards, parole officers, criminal investigators and

prosecutors. N.J.S.A. 2C:39-6a(1)-(5), c(6), c(10)-(14), c(16).

Generally, the carrying privileges afforded to these exempt

employees are strictly tied to performance of duties warranting

the arming of the employees. See N.J.S.A. 2C:39-6a(10), c(5),

c(8), c(15) (private sector); N.J.S.A. 2C:39-6a(1)-(2), a(6),

a(7)(c), a(8), b(1), c(2), c(4), c(6), c(7) (public sector).

The exceptions for some in the public sector are not limited to

times when they are on duty or on call, but those officers have

statutory duties and police powers not limited to performance of

duty.6 Thus, the employment exemptions are tailored to need.

6 Examples of law enforcement officers with broad privileges and police powers are provided in footnote 8.

12 A-3704-11T4 Employment-based exemptions are also conditioned on

demonstration of competence in handling firearms. Every exempt

employee must successfully complete training and periodically

re-qualify under standards set by the New Jersey's Police

Training Commission (PTC). See N.J.S.A. 2C:39-6a, c

(enumerating the exceptions); N.J.S.A. 2C:39-6j (requiring

training and qualification). That condition minimizes the risk

of misuse and accident.7

When the Legislature established the PTC in 1961, it

recognized the need for better trained officers upon whom the

public could rely. The Legislature determined that professional

training for police was required "to better protect the health,

safety and welfare of its citizens," in this "State whose

population is increasing in relation to its physical area, and

in a society where greater reliance on better law enforcement

7 The danger of widespread carrying of handguns has been cited in connection with expansion of officers' off-duty carrying privileges. See, e.g., Governor's Reconsideration and Recommendation Statement, Assembly No. 940, L. 1982, c. 154 (noting the "salutory" purpose of a Bill "intended to afford greater protection to the citizens of certain urban areas by permitting special police who live in those areas to carry weapons while off duty"; expressing concern about the "greater chance" of "mishap" resulting in harm to an "innocent civilian" inherent in arming off-duty special police who, unlike "[r]egular police," were not "specifically trained and tested to see how they will use a firearm under stress"; and conditioning gubernatorial approval on an amendment requiring additional training); N.J.S.A. 40A:14-146, L. 1982, c. 154, § 2, pp. 707-09 (incorporating the recommendation).

13 A-3704-11T4 through higher standards of efficiency is of paramount need

. . . ." N.J.S.A. 52:17B-66; L. 1961, c. 56, § 1, p. 542,

(emphasis added). This explanation demonstrates the

Legislature's consistent focus on "need" in addressing the

dangers of carrying handguns in public places. In addition to

regulating the carrying of handguns, it has made efforts to

address conditions that could reasonably lead the public to

perceive a need for being armed in public places.

All of the foregoing demonstrates the limited, but

important, role that the carry permit law has in the grid of New

Jersey's firearms laws — protection of those in public places of

this densely populated State. Despite the apparent breadth of

the statute criminalizing the possession of a handgun without

first obtaining a carry permit, N.J.S.A. 2C:39-5b, because of

the numerous exceptions available where a good reason for having

a handgun is apparent, N.J.S.A. 2C:39-6, a carry permit is

necessary only if one wants to have a handgun where it cannot be

lawfully used to do anything but repel an unlawful attack. And

where a person's employment gives reason to anticipate a need to

use defensive force in places such as the highways, streets,

sidewalks, alleys, parks and beaches of this densely populated

State (where hunting and target shooting is not allowed),

14 A-3704-11T4 exceptions exempt those employees from the obligation to obtain

a carry permit.

3. The Similar Roles of Employment-Based Exemptions from the Carry Permit Law and the "Justifiable Need" Standard

In the context of the grid of our firearms laws, the

"justifiable need" component of the carry permit law is best

understood as accommodating, on a case-by-case basis, those who

have a reason — one based on more than a generalized concern

about the prevalence of crime — to anticipate a violent attack

in a public place warranting lawful defensive use of a handgun.

Siccardi, supra, 59 N.J. at 557; see, e.g., In re Application of

"X", 59 N.J. 533, 534-35 (1971) (affirming denial of carry

permit to a businessman because his "situation [did] not differ

materially from those confronting many businessmen" and because

he had not shown any "special dangers to him"). So viewed, carry

permits available on a showing of "justifiable need" serve the

same purpose as the categorical employment-based exceptions,

which allow those the Legislature has recognized as having jobs

likely to require lawful use of a handgun to carry them in

public places if adequately trained.

There are other similarities between carry permits and the

employment-based exemptions. Pursuant to N.J.S.A. 2C:58-4d, a

carry permit may be tailored to the need established by the

15 A-3704-11T4 applicant. A permit may "restrict the applicant as to the types

of handguns . . . and for what purposes such handguns may be

carried." N.J.S.A. 2C:58-4d. As previously noted, the

employment-based exceptions are also tailored to need. For

example, firefighters assigned to AIUs and charged with

investigating suspicious fires and explosions, N.J.S.A. 2C:39-

6a(8), have authority to carry handguns only while performing or

being on call to perform those duties. In contrast, officers

who have broader police powers even when off duty have equally

broad carrying privileges. See, e.g., N.J.S.A. 2C:39-6a(7)(a);

N.J.S.A. 2A:157-2.1 (officers of county or municipal police

departments).

Moreover, consistent with the Legislature's attention to

personal need, for example sport and defense of home, and need

based on employment, for example guards and police officers, the

obligation to show "justifiable need" can be established in two

ways — a particularized individual need or a particularized need

related to employment. As previously noted, applicants for

carry permits generally must show "'an urgent necessity . . .

for self-protection'" by pointing to "specific threats or

previous attacks demonstrating a special danger to the

applicant's life that cannot be avoided by other means." Preis,

supra, 118 N.J. at 571 (quoting Siccardi, supra, 59 N.J. at

16 A-3704-11T4 557). But carry permits are also available to individuals

employed in businesses licensed by the State if they can show:

"(1) that . . . in the course of performing statutorily-

authorized duties, [they are] subject to a substantial threat of

serious bodily harm; and (2) that carrying a handgun is

necessary to reduce the threat of unjustifiable serious bodily

harm to any person." Id. at 576-77; see N.J.A.C. 13:54-2.4(d)

(codifying the standards stated in Preis).

The final similarity is related to the Legislature's focus

on the risk inherent in the carrying of handguns in public.

Both exempt employees and applicants for carry permits must

acquire training necessary to minimize the risk that misuse and

accidental use of handguns poses to others. The PTC-approved

training for exempt employees has been discussed above. The

regulation adopted to give content to the showing of "thorough

familiarity with the safe handling of handguns" that must be

made by an applicant for a carry permit, N.J.S.A. 2C:58-4d,

also requires comparable training in the lawful use as well as

the proficient use of handguns. N.J.A.C. 13:54-2.4(b) (1.

firearms training substantially equivalent to that approved by

the PTC as described in N.J.S.A. 2C:39-6j; 2. recent

qualification scores; and 3. a passing score on a test measuring

knowledge of laws "governing the use of force").

17 A-3704-11T4 We do not minimize the significance of the "justifiable

need" requirement where it applies. Regardless of training and

absence of a disqualifying condition, a well-trained and wholly

law-abiding and responsible person cannot lawfully carry a

firearm in a public place unless that person can demonstrate

that he or she has "a justifiable need to carry a handgun."

N.J.S.A. 2C:58-4d. This important component of the law is

unmistakably designed to prohibit the public carrying of

firearms unless the person has a "justifiable need" for being

armed.

4. The Role of Special Permits for Retired Police Officers

The role of special permits for designated retired law

enforcement officers is less apparent. The Legislature's

authorization of special carry permits for these retirees

pursuant to subsection l of N.J.S.A. 2C:39-6 appreciably relaxes

the "justifiable need" standard. These special permits were

first authorized in 1997. L. 1997, c. 67, § 1 (adding

subsection l to N.J.S.A. 2C:39-6). Before that all retired law

enforcement officers, like others without police powers or an

express statutory employment-based exemption, had to show

"justifiable need" to be authorized to carry a handgun in public

places under one of the standards enunciated in Preis.

18 A-3704-11T4 The absence of a "justifiable need" requirement for these

statutorily designated retirees was intended. A statement

accompanying the 1997 legislation states: "Retired law

enforcement officers are afforded no special treatment under

current law. In order to carry a handgun after retirement, a

retired officer, just like any other citizen, must establish a

'justifiable need' to carry a handgun pursuant to [N.J.S.A.]

2C:58-4." Assembly Law & Public Safety Committee Statement to

Assembly Committee Substitute for A. 1762, A. 1834, A. 949 (May

13, 1996) (enacted as L. 1997, c. 67, § 1).

Some basis for the special treatment can be inferred from

the officers' pre-retirement duties, police powers and carrying

privileges. Subsection l designates ten categories of retired

law enforcement officers eligible for special permits. Eight of

the ten are designated by reference to employment with state,

interstate and local law enforcement agencies. N.J.S.A. 2C:39-

6l. Prior to retiring, full-time officers in the designated

agencies had police powers that were not limited to the time or

place of duty and their duties were not tied to investigation of

narrow categories of crime, like the investigation of suspicious

fires and explosions.8 N.J.S.A. 40A:14-7.1d. As previously

8 The listing that follows includes the eight groups listed with citations to the statutes stating their carrying privileges and (continued)

19 A-3704-11T4 discussed, however, retirees who served in AIUs are ineligible,

but they, like many other ineligible retirees, had carrying

privileges while employed that were tied to actual performance

of duties.9 The alignment is not perfect because some retirees

with broad authorization to carry weapons while employed are

ineligible for a special permit. But the converse is not true;

no retiree with limited authority to carry while employed is

eligible.

(continued) police powers prior to retirement. They are those retirees who served "full-time" and "regularly" in 1) the State Police, N.J.S.A. 2C:39-6a(3) and N.J.S.A. 53:2-1; 2) an interstate police force, N.J.S.A. 2C:39-6a(7)(a), see, e.g., N.J.S.A. 32:2- 25 (setting forth the police powers of members of the Port Authority of New York and New Jersey's police force); 3) a county or municipal police department in this State, N.J.S.A. 2C:39-6a(7)(a) and N.J.S.A. 2A:157-2.1; 4) a State law enforcement agency, N.J.S.A. 2C:39-6a(4) and N.J.S.A. 52:17B- 100.1; 5) a sheriff, undersheriff or sheriff's officer of a county of this State, N.J.S.A. 2C:39-6a(4) and N.J.S.A. 2A:157- 2.1; 6) a State or county corrections officer, N.J.S.A. 2C:39- 6a(5), (11) and N.J.S.A. 2A:154-3, -4; 7) a county park police officer, N.J.S.A. 2C:39-6a(7)(a) and N.J.S.A. 40:37-155; and 8) a county prosecutor's detective or investigator, N.J.S.A. 2C:39- 6a(4) and N.J.S.A. 2A:157-10. See N.J.S.A. 2C:39-6l. 9 Among the ineligible officers are: civilian employees of the United States Government; special agents of the Division of Taxation; deputy conservation officers; employees of the Division of Parks and Forestry who have the power of arrest; court attendants; and officers of the Society for the Prevention of Cruelty to Animals. N.J.S.A. 2C:39-6a(6),(7); N.J.S.A. 2C:39-6c(1),(2),(4),(7) (defining their respective limited authorization to carry handguns while employed).

20 A-3704-11T4 The two remaining categories of retirees eligible for

special permits are those who were "full-time federal law

enforcement officer[s]" and those domiciled in this State who

are eligible as a retiree who is "a qualified retired law

enforcement officer" within the meaning of that term as it was

defined in LEOSA when adopted in 2004. N.J.S.A. 2C:39-6l. As

these applicants were not federal officers and acknowledge their

ineligibility under subsection l's reference to LEOSA, these

categories have no relevance to them.10

Two reasons for special permits for retirees consistent

with the "justifiable need" requirement are suggested in the

legislative record developed by the congressional committee that

released LEOSA. Those reasons are that: 1) arming retirees who

are trained and experienced law enforcement officers is a means

of preventing crime; and 2) such retirees and their families

face a risk of retaliatory criminal violence to which others are

not exposed. See H.R. Rep. No. 108-560, accompanying H.R. 218,

108th Congress 2d Session (then entitled the "Law Enforcement

Officers Safety Act of 2003" and adopted on July 22, 2004 as

10 Since its adoption in 1997, subsection l has been amended to make special carry permits more readily available: the reference to LEOSA-qualified retirees domiciled here was added; the age limit for eligibility was raised; and the requirement to apply within six months after retirement was eliminated. Compare L. 1997, c. 67, § 1 with L. 2007, c. 313, § 1.

21 A-3704-11T4 P.L. 108-277, the "Law Enforcement Officers Safety Act of

2004").11

It is unlikely that our Legislature was primarily focused

on the public benefits of arming retired law enforcement

officers. While private persons may lawfully use force to

protect a third person from imminent harm threatened by one

using unlawful force, N.J.S.A. 2C:3-5, they have limited

authority to use force to effect an arrest. N.J.S.A. 2C:3-7.

The Legislature likely focused on the risk of retaliation faced

by these retirees — that threat distinguishes them from others.

And the Legislature could have distinguished these retirees from

other well-trained persons based on their experience in

assessing street crime and the need for lawful force, on and off

duty, prior to retirement.12

11 A section of that congressional report, explains that the organizations of rank and file officers supporting the proposal viewed it as "allow[ing] tens of thousands of additionally equipped, trained and certified law enforcement officers to continually serve and protect our communities" and allow active and retired officers "to defend themselves . . . from criminals whom they have arrested." Id. at 4. The views of the committee members opposing and supporting the measure and the adequacy of the justifications for it are also set forth in the report. Notably, there was no discussion of arming all law-abiding citizens with comparable training. 12 The other two branches of government considered experience and training in connection with off-duty carrying privileges afforded in the employment-based exceptions for law enforcement (continued)

22 A-3704-11T4 5. The Legislature's "Justifiable Need" Requirement is Consistent with the Lawful Defensive Use of Firearms

The Legislature has determined that the presence of readily

accessible handguns in public places of this densely populated

State presents an inherent risk of serious injury from accident

and misuse. The risk of accident and misuse in public places of

this State where a carry permit is required is enhanced — if for

no other reason than a handgun poses a greater danger in public

than it would if left at home. Moore, supra, 702 F.3d at 937.

The use of force to repel an attack or a perceived threat of

attack is not lawful if the actor negligently or recklessly

creates a risk of injury, causes injury to a non-aggressor or

causes injury based on an unreasonable perception of the

necessity or lawfulness of the force. See N.J.S.A. 2C:11-4a(1),

b(1); N.J.S.A. 2C:12-1a(1)-(2), b(1); N.J.S.A. 2C:3-4 to -5

(requiring a reasonable assessment of threat and its immediacy);

N.J.S.A. 2C:3-9 (making justifications for the use of defensive

(continued) officers. See Governor's Reconsideration and Recommendation Statement, Senate No. 1480, L. 1985, c. 150 (explaining that because AIU members do not receive training comparable to that of municipal police officers, their police powers should be limited to times when "they are actually performing arson investigation duties" and their carrying privileges limited to times when they are actually performing, or are on call to perform, their duties); L. 1985, c. 150, § 1, pp. 473-74 (following the Governor's recommendations).

23 A-3704-11T4 force unavailable where the actor is mistaken about the law or

recklessly or negligently injures a bystander).

B. The History of the Carry Permit Law

We address the history of the carry permit law only because

of the importance history has under the United States Supreme

Court's recent interpretations of the Second Amendment, which we

discuss in Part IV of this opinion. That history is discussed

in both Siccardi and Preis.

The first measure addressing the danger of carrying

firearms was adopted in 1882, and it applied only to youngsters.

L. 1882, c. IV, §§ 2-4; Siccardi, supra, 59 N.J. at 553. The

first carry permit law was enacted in 1905. L. 1905, c. 172,

§ 43a, p. 324. It prohibited possession of concealed weapons in

public places by anyone who did not hold exempt employment or

have a carry permit. Ibid. The 1905 law did not provide a

standard for the issuance of carry permits; it left that to the

discretion of the mayor or township committee. Ibid.

The Legislature first limited issuance of carry permits to

those who could demonstrate "need" in 1924, and at the same time

it assigned final responsibility for assessing need to judges.

L. 1924, c. 137, § 2, pp. 305-06. The Supreme Court has

concluded that the Legislature's involvement of the judiciary

signals the importance legislators place on "the dangers

24 A-3704-11T4 inherent in carrying handguns and the urgent necessity for their

regulation." Preis, supra, 118 N.J. at 576; see Siccardi,

supra, 59 N.J. at 553. Since 1924, all iterations of the carry

permit law have continued those critical elements. See, e.g.,

L. 1924, c. 137, § 1, p. 305; L. 1966, c. 60, § 34, pp. 499-501

(N.J.S.A. 2A:151-41). Even when the Legislature extended the

law to require carry permits for pistols and revolvers, whether

carried openly or concealed, the Legislature left the need

standard intact. L. 1966, c. 60, § 34, pp. 499-501 (N.J.S.A.

2A:151-41).

The Legislature changed the label from "need" to

"justifiable need" when it codified the criminal laws and the

firearms laws in Title 2C. But the Legislature did not alter

the substance of the standard as interpreted in Siccardi.

Preis, supra, 118 N.J. at 570; see Siccardi, supra, 59 N.J. at

557 (construing L. 1966, c. 60, § 35, pp. 501-02 (N.J.S.A.

2A:151-44)); II Final Report of the New Jersey Criminal Law

Revision Commission, The New Jersey Penal Code: Commentary §

2C:58-4 at 370 (1971) (noting the drafters' intention to

continue to current law).

In short, limiting the possession of handguns in public

places to those who have a "justifiable need" for carrying them

is a longstanding measure and one long understood as essential

25 A-3704-11T4 to addressing the dangers of misuse and accidental use. As

early as 1925, a three-judge panel considered a Second Amendment

challenge to the 1924 law and rejected a defendant's claim that

these measures impermissibly burdened his right. State v.

Angelo, 3 N.J. Misc. 1014, 1014 (Sup. Ct. 1925). The panel

assumed, without discussion, that Amendment applied and afforded

an individual right. The panel succinctly stated these reasons

for concluding the law did not violate the Amendment:

The right of a citizen to bear arms is not unrestricted. The state government, in the exercise of its police power, may provide such conditions precedent to the right to carry concealed weapons as the safety and welfare of the people of the state in its judgment require. The statute upon which the indictment was based is a valid exercise of the police power.

[Id. at 1015.]

C. The Factual Justifications for the Carry Permit Law

The factual basis for the New Jersey Legislature's

longstanding perception of the danger inherent in widespread

handgun possession in public places was addressed in Siccardi

and based on evidence presented in the Law Division. Because

the Court discussed that evidence in Siccardi, there is no

reason to provide more than a brief summary here. 59 N.J. at

549-53.

26 A-3704-11T4 The evidence included testimony from several chiefs of

police departments in urban and suburban municipalities and from

a representative of the New Jersey Division of State Police.

None of the officers were aware of any instance in which a

citizen had used a firearm to thwart an attack or successfully

defend himself in a public place, and several officers were of

the opinion that handguns had limited utility in preventing

public attacks because such attacks are sudden, unexpected,

brief and made at a time the attacker deems advantageous. Id.

at 550-52. The Court also considered a report prepared for the

National Commission on the Causes and Prevention of Violence

(NCCPV), in which the authors concluded that there was no data

establishing the value of firearms as a defense against attack

on the street, but recognized that there was evidence that the

ready accessibility of guns significantly increases the number

of unpremeditated homicides and the seriousness of the injuries

sustained in assaults. Id. at 552. The Court quoted a portion

of the NCCPV's recommendations suggesting federal legislation

encouraging states to limit handgun ownership "'to police

officers and security guards, small businesses in high crime

areas, and others with a special need for self-protection.'"

Ibid. (quoting Final Report, National Commission on the Causes

and Prevention of Violence, p. 181 (1969)). And, the Court

27 A-3704-11T4 cited numerous law review articles addressing gun control laws

and their efficacy. Id. at 552-53.

The Legislature also considered evidence before amending

the carry permit law in 1966 to cover the open, as well as the

concealed, carrying of pistols and revolvers. See Assembly

Committee on State Government, Public Hearing on Assembly Bill

A-165, "an Act concerning firearms and other dangerous weapons

and revising, repealing and supplementing parts of the statutory

law," Mar. 2, 1966. That evidence is not discussed in Siccardi.

Although the hearing is fairly characterized as spirited, the

proposed extension of the carry permit law to reach unconcealed

handguns drew little comment.

The then Attorney General, Arthur J. Sills, advised that

the F.B.I. Uniform Crime Reports for 1964 showed that "96 per

cent of the 225 police officers slain [between 1960 and 1964]

were killed with firearms." Id. at 8. The Attorney General

also compared the rate at which homicides were committed with

firearms in cities that did and did not have strict gun control

laws. Id. at 11-12. In New York City, where the state gun

control laws were, in the Attorney General's view, strict, "[o]f

the 637 homicides . . . in 1964, firearms were used in 26 per

cent of the cases." Id. at 11. In Texas, which in his view had

28 A-3704-11T4 very little gun control, "firearms were involved in 72 per cent

of all murders in 1963 in Dallas." Ibid.

The focus of the proponents and the opponents of the

legislative reform was on new measures concerning acquisition,

not the carrying of firearms. Id. at 2-7, 18-20. The disputes

centered on measures like finger-printing and record-keeping and

aimed at keeping firearms from the irresponsible and violators

of law. Id. at 2-7, 19-21. In the Attorney General's view

those measures were the major thrust of the reform. Id. at 2,

7. With respect to carry permits, he simply noted that permits

would be "required as under present law." Id. at 5.

Secretary L. Arthur Burton spoke for a "Citizens Committee

for Firearms Legislation," which was comprised of "fifteen

individuals" representing local and national associations that

were then "the major sporting and shooting organizations in the

State." Id. at 17-18. Mr. Burton implicitly endorsed the

prohibition against the public carrying of revolvers and pistols

without a carry permit by noting his Committee's support for

proposed restrictions on transporting loaded and uncased pistols

and revolvers. Id. at 27. The only objection to carry permits

he voiced were: 1) that the Bill, as then drafted, might be

understood to require a carry permit for rifles and shotguns;

and 2) that the obligation to "demonstrate familiarity with" and

29 A-3704-11T4 "sufficient skill and knowledge" of handguns was meaningless

without prescribed standards. Id. at 21-22, 24.

Similarly, a member of the Executive Committee of the

Directors of the National Rifle Association, Louis A. Benton,

testified in opposition to some aspects of the proposed reform.

He did not comment on carry permits or the prohibition against

carrying a pistol or revolver openly without one. Id. at 54-60.

Another witness, the operator of a licensed detective

agency, mentioned the "need" component of the carry permit law,

but he simply suggested addition of a standard for assessing the

"need of the applicant," id. at 78A-79A, which the Court

supplied in Siccardi. He also urged an amendment that would add

a new exception — one he viewed as a trade off for the new

limitation on carrying openly — for persons in "fresh pursuit of

a criminal, in the act of preventing a crime, defending

[themselves] against a crime, and attempting to apprehend a

criminal." Id. at 78A.

For the most part, no change in the permit law was required

to address the detective's concerns. As a matter of law, in

"those rare and momentary circumstances where an individual arms

himself spontaneously to meet an immediate danger," self-defense

and defense of others are viable defenses to possession in

violation of a regulatory offense, like the carry permit law.

30 A-3704-11T4 State v. Harmon, 104 N.J. 189, 208-09 (1986). In contrast, "the

policies embodied in our gun control laws, N.J.S.A. 2C:39-3 and

-5, [do] not allow self-defense as an excuse or justification to

a charge of unlawful possession under a regulatory offense when

a person arms himself prior to a danger becoming imminent."

Ibid. (discussing cases decided under laws of the District of

Columbia, Maryland, Tennessee and Texas reaching the same

conclusion).

D. Summary

Some might argue, as these applicants do, that the

"justifiable need" requirement is unnecessary to prevent the

danger of misuse and accidental use inherent in the widespread

carrying of handguns in public places of this densely populated

State. In their view, limiting carry permits to law-abiding and

responsible persons with adequate training is enough. But the

wisdom of this policy choice involves a predictive judgment of

the Legislative and Executive Branches to make in furtherance of

one of the government's primary obligations — the safety of the

public. United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct.

2095, 2100, 95 L. Ed. 2d 697, 707-08 (1987).

The only question for us is whether conditioning the

issuance of carry permits on a showing of "justifiable need" is

31 A-3704-11T4 a step the Second Amendment allows. With the foundation for

that inquiry now in place, we turn to consider the question.

IV. The Second Amendment

A. The Claim Presented

These applicants argue that New Jersey's "justifiable need"

requirement makes carry permits "unobtainable by all but a few

applicants," rendering the right to use a handgun in lawful

self-defense "illusory" and, thereby, violative of their Second

Amendment right. The weight of authority is against them.

New Jersey's law is far from unique. Hawaii,13 Maryland,14

Massachusetts,15 New York,16 and Rhode Island17 similarly condition

the carrying of handguns on a showing of particularized need.18

13 Authorizing issuance "[i]n an exceptional case, when an applicant shows reason to fear injury to the applicant's person or property . . . ." Haw. Rev. Stat. § 134-9(a). 14 Maryland conditions issuance on "good and substantial reason to wear, carry or transport a handgun . . . as a reasonable precaution against apprehended danger," which cannot be established by "the applicant's vague apprehensions of danger and personal anxiety over the crime situation." Scherr v. Handgun Permit Review Bd., 880 A.2d 1137, 1140, 1144 (Md. Ct. Spec. App. 2005). 15 "[G]ood reason to fear injury to his person or property, or . . . any other reason, including the carrying of firearms for use in sport or target practice." Mass. Gen. Laws ch. 140, § 131(d); Ruggiero v. Police Comm'r of Boston, 464 N.E.2d 104, 108 (Mass. App. Ct. 1984) (assertion of a perception of being a victim of crime is inadequate).

32 A-3704-11T4 Other courts have considered and, with the exception of one

whose decision was reversed on appeal, uniformly rejected

challenges to laws that condition the issuance of carry permits

on an objective showing of a need different than that of the

general populace. Drake v. Filko, 724 F.3d 426, 440 (3d Cir.

2013) (New Jersey); Woollard v. Gallagher, 712 F.3d 865, 875-76

(4th Cir. 2013) (Maryland), cert. denied, 187 L. Ed. 2d 281

(U.S. Oct. 15, 2013); Kachalsky v. Cnty. of Westchester, 701

F.3d 81, 92 (2d Cir. 2012) (New York), cert. denied, sub nom.

Kachalsky v. Cacace, ___ U.S. ___, 133 S. Ct. 1806, 185 L. Ed.

2d 812 (2013); Young v. Hawaii, 911 F. Supp. 2d 972, 989 (D.

(continued) 16 New York's law conditions issuance of general carry permits on a "proper purpose," which is demonstrated by showing a "'special need for self protection distinguishable from that of the general community or of persons engaged in the same profession.'" Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 92 (2d Cir. 2012) (quoting Klenosky v. N.Y. City Police Dep't, 428 N.Y.S.2d 256 (N.Y. App. Div. 1980), aff'd o.b., 421 N.E.2d 503 (1981)). 17 "[G]ood reason to fear an injury to his or her person or property or has any other proper reason for carrying a pistol or revolver . . . ." R.I. Gen. Laws § 11-47-11(a). 18 We have not undertaken an exhaustive survey of laws in other states, because our point is simply that New Jersey's law is not unique. Moreover, it is apparent, from a review of California law that firearms laws may be drafted differently to effectively limit the carrying of loaded firearms in public places to circumstances where the person has a special need for using them defensively. See Cal. Penal Code §§ 25850(a), 26045, 26050; Peruta v. Cnty. of San Diego, 758 F. Supp. 2d 1106, 1115 (S.D. Cal. 2010) (rejecting Second Amendment challenge).

33 A-3704-11T4 Haw. 2012); Williams v. State, 10 A.3d 1167, 1169 n.2, 1177

(Md.), cert. denied, ___ U.S. ___, 132 S. Ct. 93, 181 L. Ed. 2d

22 (2011). A panel of this court has reached the same

conclusion, and the question is now pending before our Supreme

Court on a grant of certification. In re Pantano, 429 N.J.

Super. 478, 486-90 (App. Div.), certif. granted, 214 N.J. 235

(2013); cf. Mosby v. Devine, 851 A.2d 1031, 1047-48 (R.I. 2004)

(rejecting a challenge under Rhode Island's constitution); but

cf. Moore v. Madigan, 702 F.3d 933, 941-42 (7th Cir. 2012)

(majority opinion invalidating an Illinois law prohibiting the

carrying of handguns in public places without allowing for

issuance of permits on a showing of proper cause), reh'g en banc

denied, 708 F.3d 901 (7th Cir. 2013) (over the dissent of four

judges).

Our discussion of the Second Amendment challenge is

informed by the foregoing persuasive, albeit non-binding,

precedents. In re Contest of Nov. 8, 2011 Gen. Election of

Office of N.J. Gen. Assembly, 210 N.J. 29, 45 (2012). And, for

the reasons that follow, we conclude that New Jersey's law does

not violate the Second Amendment.

B. The Right

The Second Amendment provides: "A well regulated Militia,

being necessary to the security of a free State, the right of

34 A-3704-11T4 the people to keep and bear Arms, shall not be infringed." U.S.

Const., amend. II. There is no longer any serious question that

"the Second Amendment right is fully applicable to the States"

and their political subdivisions; a majority of the United

States Supreme Court concluded that it is in McDonald v. City of

Chicago, ___ U.S. ___, ___, 130 S. Ct. 3020, 3026, 177 L. Ed. 2d

894, 903 (2010).19 There is no question that the Second

Amendment codifies a pre-existing individual right that is

neither dependent upon membership in the militia nor

"unlimited"; that was resolved in District of Columbia v.

Heller, 554 U.S. 570, 580-81, 598-600, 603, 610, 626, 128 S. Ct.

2783, 2790-91, 2800-04, 2807-08, 2816-17, 171 L. Ed. 2d 637,

650-51, 661-62, 664-65, 668, 678 (2008).

1. The Narrow Holdings in Heller and McDonald

The questions before the Court in Heller and McDonald were

narrow, and their holdings are as well. Heller involved

challenges to the District of Columbia's laws effectively

19 The only question is whether the states and their political subdivisions are bound by the Second Amendment through the Fourteenth Amendment's Privileges or Immunities Clause as Justice Thomas concluded, or through its Due Process Clause, as the plurality concluded. Id. at ___, 130 S. Ct. at 3058-59, 177 L. Ed. 2d at 938-39 (Thomas, J., concurring). Justice Scalia also concurred but wrote only to address a point raised in dissent. Id. at ___, 130 S. Ct. at 3050, 177 L. Ed. 2d at 929 (Scalia, J., concurring).

35 A-3704-11T4 "ban[ning] the possession of handguns in the home," and McDonald

involved challenges to "similar" laws of the City of Chicago and

one of its suburbs. McDonald, supra, ___ U.S. at ___, 130 S.

Ct. at 3026, 177 L. Ed. 2d at 903.

Adopting the "original understanding" of the Second

Amendment in Heller, the Court held that "the District's ban on

handgun possession in the home violates the Second Amendment, as

does its prohibition against rendering any lawful firearm in the

home operable for the purpose of immediate self-defense." 554

U.S. at 635, 128 S. Ct. at 2821-22, 171 L. Ed. 2d at 683-84. In

McDonald, the Court held that the Second Amendment right

"recognized in Heller" is applicable to the states and described

it as "the right to possess a handgun in the home for purpose of

self-defense." ___ U.S. at ___, 130 S. Ct. at 3050, 177 L. Ed.

2d at 929 (emphasis added).

The Supreme Court also linked the Amendment's protection to

the home when explaining why the District's laws could not

withstand scrutiny under any standard applied to enumerated

rights. Heller, supra, 554 U.S. at 628, 128 S. Ct. at 2817-18,

171 L. Ed. 2d at 679. The Court reasoned that the home is the

place "where the need for defense of self, family, and property

is most acute" and that the District's laws made "it impossible

for citizens to use [handguns] for the core lawful purpose of

36 A-3704-11T4 self-defense." Id. at 628-30, 128 S. Ct. at 2817-18, 171 L. Ed.

2d at 679-80 (emphasis added) (quoted in part in McDonald,

supra, ___ U.S. at ___, 130 S. Ct. at 3036, 177 L. Ed. 2d at

914-15).

2. The Broad Reasoning Supporting the Narrow Holdings in Heller and McDonald

Despite the narrow holdings, the Court's reasoning in

Heller and McDonald suggests that the Second Amendment's

protection extends beyond the home. In considering the

Amendment's text as it would have been understood by the voters

approving it, the historical background, and the 19th century

understanding of the Amendment's scope,20 id. at 576-619, 128 S.

Ct. at 2788-2812, 171 L. Ed. 2d at 648-74, the Court discerned

that the individual right protected is a right "to possess and

carry weapons in case of confrontation"; the "central component"

of which is "self-defense"; a right "to bear arms for defensive

purposes"; and a right "to use arms for self-defense." Id. at

592, 599, 602, 672, 128 S. Ct. at 2797, 2801, 2803, 2811, 171 L.

Ed. 2d at 657, 662-63, 672; see also id. at 599, 128 S. Ct. at

2801, 171 L. Ed. 2d at 662 (noting at the time the Amendment was

20 The Court explained that 19th century understandings of the Second Amendment's scope are informative on the "original" understanding because they reflect "the public understanding of a legal text in the period after its enactment." Id. at 605, 128 S. Ct. at 2805, 171 L. Ed. 2d at 665.

37 A-3704-11T4 adopted "most undoubtedly thought [the right] even more

important for self-defense and hunting" than for membership in

the militia) (emphasis added).

In McDonald, the Court referred to Heller's broad

reasoning. Indeed, in the opening paragraph Justice Alito

states that the Heller Court held that the "Second Amendment

protects the right to keep and bear arms for the purpose of

self-defense." ___ U.S. at ___, 130 S. Ct. at 3026, 177 L. Ed.

2d at 903. Elsewhere Justice Alito stated, "the Second

Amendment protects a personal right to keep and bear arms for

lawful purposes, most notably for self-defense within the home."

Id. at ___, 130 S. Ct. at 3044, 177 L. Ed. 2d at 922 (emphasis

added); cf. id. at ___, 130 S. Ct. at 3050, 177 L. Ed. 2d at 929

(Justice Alito's narrower description of the "right recognized

in Heller," which is quoted above).

3. The Threshold Question Raised by the Court's Narrow Holdings and Broader Reasoning

Several courts considering challenges to laws that

restrict the carrying of handguns outside the home have

identified a threshold question — whether the Second Amendment

as interpreted in Heller and McDonald protects any conduct in

the public sphere. They either reached different conclusions or

avoided the question by assuming the Amendment applies.

38 A-3704-11T4 Declining to assign any greater significance to Heller and

McDonald than the narrow holdings require, Maryland's High Court

has upheld that State's law conditioning issuance of permits

authorizing public carrying of handguns on a showing of "good

and substantial reason" on the ground that it has no application

to conduct in the home. Williams, supra, 10 A.3d at 1177

(noting that "[i]f the Supreme Court, in this dicta, meant its

holding to extend beyond home possession, it will need to say so

more plainly").

In contrast, focusing on the Court's broad reasoning in

Heller and McDonald, the Seventh Circuit has concluded the right

to "bear arms for self-defense" recognized in Heller is as

important outside the home as inside." Moore, supra, F.3d at

935-36, 942. The majority concluded that Illinois' unique and

absolute ban against carrying in public, applicable to all but

law enforcement officers and guards, went too far. Id. at 941-

42.

Other courts, addressing carry permits issued only on a

particularized showing of need to have one in public places for

self-defense, have left the question unresolved. They have

concluded that uncertainties about whether and how the Second

Amendment right applies outside the home left by Heller and

McDonald warrant caution. They have assumed there is a right to

39 A-3704-11T4 carry a handgun outside the home in the event of an encounter

warranting its defensive use, and rejected challenges to these

laws. These courts have rejected the challenge on the ground

that a law conditioning the issuance of a carry permit on a

showing of need is not inconsistent with or does not

impermissibly burden the right. Drake, supra, 724 F.3d at 429-

30, 433; Woollard, supra, 712 F.3d at 874, 876; Kachalsky,

supra, 701 F.3d at 89, 93-94; see also United States v.

Masciandaro, 638 F.3d 458, 475 (4th Cir.), cert. denied, ___

U.S. ___, 132 S. Ct. 756, 181 L. Ed. 2d 482 (2011).21

21 In Masciandaro, the court described the open questions and its approach as follows:

There may or may not be a Second Amendment right in some places beyond the home, but we have no idea what those places are, what the criteria for selecting them should be, what sliding scales of scrutiny might apply to them, or any one of a number of other questions. . . . The notion that "self-defense has to take place wherever [a] person happens to be," Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1515 (2009), appears to us to portend all sorts of litigation . . . . The whole matter strikes us as a vast terra incognita that courts should enter only upon necessity and only then by small degree.

[638 F.3d at 475.]

40 A-3704-11T4 The majority in Heller recognized it was leaving many

questions unresolved. Justice Scalia explained, this "first in-

depth examination of the Second Amendment," should not be

"expect[ed] to clarify the entire field." Heller, supra, 554

U.S. at 635, 128 S. Ct. at 2821, 171 L. Ed. 2d at 683. The

reasons for caution cut in both directions — a risk of extending

the Second Amendment right beyond what the Heller Court

intended, United States v. Skoien, 614 F.3d 638, 640 (7th Cir.

2010) (en banc), cert. denied, ___ U.S. ___, 131 S. Ct. 1674,

179 L. Ed. 2d 645 (2011), and a risk of reading Heller's

discussion of the limited nature of the right too broadly and

thereby improperly limiting Heller's intended scope, United

States v. Marzzarella, 614 F.3d 85, 91 (3d Cir. 2010), cert.

denied, ___ U.S. ___, 131 S. Ct. 958, 178 L. Ed. 2d 790 (2011).

We agree that the principle of "constitutional avoidance" favors

leaving constitutional issues that need not be decided for

another day. Masciandaro, supra, 638 F.3d at 475.

Based upon the broad reasoning of Heller and McDonald, we

think the Second Amendment right to carry a handgun for the

purpose of lawful self-defense exists or extends beyond the

home. Nevertheless, we have no reason to decide that question.

We are confident that New Jersey's "justifiable need" standard

41 A-3704-11T4 would not impermissibly burden the right. We can reject this

challenge to the carry permit law on that ground.

Our conclusion that the "justifiable need" requirement is

permissible rests on the Court's discussion of the limitations

that are consistent with the original meaning of the Second

Amendment.

4. Limitations on the Right

As the Supreme Court explained, "Like most rights, the

right secured by the Second Amendment is not unlimited."

Heller, supra, 554 U.S. at 626, 128 S. Ct. at 2816, 171 L. Ed.

2d at 678. The Amendment's scope is defined by the limitations

and the license taken together. The Second Amendment right and

other "[c]onstitutional rights are enshrined with the scope they

were understood to have when the people adopted them, whether or

not future legislatures or (yes) even future judges think that

scope too broad." Id. at 634-35, 128 S. Ct. at 2821, 171 L. Ed.

2d at 683. The Amendment's scope is a "product of an interest

balancing by the people," a balancing reflecting the

limitations, as well as the protections, that were understood at

the time of adoption — 1791. Id. at 635, 128 S. Ct. at 2821,

171 L. Ed. 2d at 683.

The Court did not attempt to define the complete or entire

"product" of the original interest balancing. Instead it

42 A-3704-11T4 explained, "[w]hatever else [the Amendment] leaves to future

evaluation, it surely elevates above all other interests the

right of law-abiding, responsible citizens to use arms in

defense of hearth and home." Id. at 635, 128 S. Ct. at 2821,

171 L. Ed. 2d at 683 (emphasis added).

The Court's description of the "product" of original

balancing includes two categorical limitations on the

Amendment's scope that the Court deemed part of the original

meaning. The irresponsible and the non-law abiding are excluded

from the Amendment's protection, wherever they may be, even in

the home. Indeed, the Court recognized the permissibility of

these categorical exclusions of persons by including modern laws

applicable to felons and the mentally ill in a partial listing

of longstanding measures the Court declared to be "presumptively

lawful." Id. at 626-27 & 627 n.26, 128 S. Ct. at 2816-17, 171

L. Ed. 2d at 678.

The Court identified other limitations similarly understood

to be part of the pre-existing right. On its understanding of

the original meaning, the Heller Court concluded that from the

time preceding its adoption through the 19th century, the Second

Amendment was not understood to be "a right to keep and carry

any weapon whatsoever in any manner whatsoever and for whatever

purpose." Heller, supra, 554 U.S. at 626, 128 S. Ct. at 2816,

43 A-3704-11T4 171 L. Ed. 2d at 678, (quoted, in part, in McDonald, ___ at ___,

130 S. Ct. at 3047, 177 L. Ed. 2d at 926).

The Court went on to address limitations understood to

leave some weapons, some manners of carrying them, and some

purposes for carrying them outside the scope of the Amendment's

prohibition. The conclusions the Court drew based on laws in

place around 1791 provide some guidance for courts considering

challenges to the modern-day laws. (We use the phrase "around

1791" as a shorthand for the years before and after 1791 that

the Court deemed informative to the original understanding.)

With respect to "bearable" weapons, the Court concluded the

Amendment protects those in common use at the time but not those

"unusual" or "dangerous" weapons "not typically possessed by

law-abiding citizens for lawful purposes." Heller, supra, 554

U.S. at 625-27, 128 S. Ct. at 2816-17, 171 L. Ed. 2d at 677-79.

Thus, the protection was not understood to extend to the

keeping, carrying or using of weapons that were deemed

"dangerous" or "unusual," in the sense that they were not

typically used by the "law-abiding" and "responsible" for

"lawful purposes."

Importantly, however, the Court looked to modern-day

preferences in weapons in addressing the District of Columbia's

restrictions on handguns. Characterizing the claim "that only

44 A-3704-11T4 those arms in existence in the 18th century are protected" as

one "bordering on the frivolous," the Court concluded that the

Amendment's protection "extends, prima facie" to "all

instruments that constitute bearable arms, even those that were

not in existence at the time." Id. at 582, 128 S. Ct. at 2791-

92, 171 L. Ed. 2d at 651. In invalidating the District's laws

effectively banning operable handguns from the home, the Court

focused on the current popularity of handguns as the weapon of

choice for self-defense. The Court did so with reference to

evidence on the current popularity of handguns, not their

popularity around 1791. Id. at 629-30, 128 S. Ct. at 680, 171

L. Ed. 2d at 2818-19; see id. at 628, 128 S. Ct. at 2818, 171 L.

Ed. 2d at 679 (quoting Parker v. District of Columbia, 478 F.3d

370, 400 (D.C. Cir. 2007) (a case relying on Gary Kleck & Marc

Gertz, Armed Resistance to Crime: The Prevalence and Nature of

Self-Defense with a Gun, 86 J. Crim. L. & Criminology 150, 182-

83 (1995), which addresses modern-day preferences to support the

assertion)). We take this to mean that present-day

considerations are relevant to interpretation of the original

understanding — at least in this context of defining the class

of bearable weapons that may be kept, carried and used.

With respect to limitations on the purpose — in our view,

something that is only understandable with reference to the uses

45 A-3704-11T4 or goals that are objects of the "purpose" — the Court

consistently referred to protected purposes as "lawful" and not

"unlawful." In addition to the lawful defensive uses of weapons

discussed in subsection 5 of this Part of our opinion, the Court

identified no lawful purposes other than hunting and training.

Id. at 604, 128 S. Ct. at 2804, 171 L. Ed. 2d at 665.

The only unprotected purposes and uses the Court recognized

were those in furtherance of crimes and the "indiscreet firing

of guns" in one city on specified dates around New Year's, which

the Court concluded would not have been applied to punish one

who fired in self-defense and that, even if it had been, the

minimal sanctions for violation would not deter one from acting

in necessary self-defense. Id. at 632-33, 128 S. Ct. at 2820,

171 L. Ed. 2d at 681-82.22

Most pertinent here, the Court also provided examples of

limitations on the "manner" of carrying and using firearms in

public places, originally understood to be part of the enshrined

right. Immediately following its assertion about limitations on

the manner and purposes of arming oneself that are part of the

22 While possession of a handgun without a carry permit where one is required is a second-degree crime, N.J.S.A. 2C:39-5b, as discussed in Part III, A, 2, a defense of self-defense is available where one arms oneself and fires to repel an imminent threat. Harmon, supra, 104 N.J. at 206-07.

46 A-3704-11T4 original meaning, the Court stated: "[f]or example, the majority

of the 19th century courts to consider the question held that

prohibitions on carrying concealed weapons were lawful under the

Second Amendment or state analogues." Id. at 626, 128 S. Ct. at

2816, 171 L. Ed. 2d at 678; see also Robertson v. Baldwin, 165

U.S. 275, 281-82, 17 S. Ct. 326, 329, 41 L. Ed. 715, 717 (1897)

(observing in dicta that "the right of the people to keep and

bear arms . . . is not infringed by laws prohibiting the

carrying of concealed weapons").

As previously noted, in the first quarter of the 20th

century, a New Jersey court joined the courts rejecting a Second

Amendment challenge to a concealed weapons ban, which applied

absent a carry permit issued on a showing of need. Angelo,

supra, 3 N.J. Misc. at 1014-15 (quoted in Part III, B above);

cf. Burton, supra, 53 N.J. at 100-06 (concluding the Amendment

has no relevance to state laws — an interpretation now

foreclosed by McDonald).

We take the Heller Court's recognition of the acceptance of

prohibitions against concealed carrying as an indication that

regulation of the manner of carrying bearable arms in public

places — at least the concealed carrying — was understood to be

part of the right. In Kachalsky, the Second Circuit reached

that conclusion after an extensive review of laws in place

47 A-3704-11T4 around 1791. 701 F.3d at 89-91, 94-96. One need not agree with

that court's analysis of every law discussed to agree with its

conclusion that "state regulation of the use of firearms in

public was 'enshrined with[in] the scope' of the Second

Amendment when it was adopted." Id. at 96 (quoting Heller,

supra, 554 U.S. at 634, 128 S. Ct. at 2821, 171 L. Ed. 2d at

683); accord Drake, supra, 724 F.3d at 433 (concluding that the

"'justifiable need' standard fits comfortably within the

longstanding tradition of regulating the public carrying of

weapons for self-defense"); Masciandaro, supra, 638 F.3d at 470

(observing that rights to firearms outside the home "have always

been more limited," because of the implications for public

safety).

The Kachalsky court's conclusion is also supported by

Heller. The Supreme Court has made clear that there are

permissible limitations other than those it expressly identified

in Heller and McDonald as being within the Amendment's original

meaning. In both opinions, the Court stressed that it should

not be understood to "cast doubt on longstanding prohibitions on

the possession of firearms by felons and the mentally ill, or

laws forbidding the carrying of firearms in sensitive places

such as schools and government buildings, or laws imposing

conditions and qualifications on the commercial sale of arms."

48 A-3704-11T4 Heller, supra, 554 U.S. at 626-27, 128 S. Ct. at 2816-17, 171 L.

Ed. 2d at 678; McDonald, supra, ___ U.S. at ___, 130 S. Ct. at

3047, 177 L. Ed. 2d at 926.

Pertinent to the "justifiable need" component of the carry

permit law, the Court's partial list approves absolute

prohibitions of bearing firearms, without regard to the need to

use defensive force, in certain public places that are

"sensitive" — schools and government buildings. General

prohibitions of that sort are not based on characteristics of

the person carrying them. Thus, the Court's determination that

bans on carrying in sensitive places are presumptively lawful

had to be based on the Court's recognition that the Amendment

was understood to allow the government to protect against

dangers posed by any person possessing a firearm in these

"sensitive" public places, despite the obvious and absolute

impact on the use of a firearm defensively in those places.

Because of the importance the Court placed on the Amendment's

original meaning, we conclude the Court must have deemed such

regulation in "sensitive" public places consistent with the

original meaning.

True, laws like New York's, Maryland's and New Jersey's,

which condition issuance of carry permits on a particularized

showing of need have no precise models in laws in existence

49 A-3704-11T4 around 1791 or in the Heller Court's list of presumptively

lawful measures. See Kachalsky, supra, 701 F.3d at 90 n.11, 91.

But the Heller Court stressed that it intended its list to

illustrate, not exhaustively define, the class of laws entitled

to a presumption of validity. Heller, supra, 554 U.S. at 627

n.26, 128 S. Ct. at 2817, 171 L. Ed. 2d at 678. As others have

noted, the list is neither a "talismanic formula," Kachalsky,

supra, 701 F.3d at 90 n.11, nor part of a "comprehensive code,"

Skoien, supra, 614 F.3d at 640.

Moreover, Heller makes it clear that the role of

legislatures did not end with the Amendment's adoption in 1791.

As others have noted, Heller's partial listing of "presumptively

lawful" measures includes modern-day laws consistent with the

original meaning that do not parrot laws in place around 1791.

United States v. Booker, 644 F.3d 12, 23-25 (1st Cir.) (noting

that 20th century laws disqualifying felons, included in

Heller's list of presumptively lawful laws, likely bear little

resemblance to their historical predicates), cert. denied, ___

U.S. ___, 132 S. Ct. 1538, 182 L. Ed. 2d 175 (2012); see also

id. at 24 n.13 (noting that the "historical pedigree of laws

disarming those convicted of a crime is subject to substantial

debate among scholars"); accord Skoien, supra, 614 F.3d at 640-

41. Moreover, the plurality opinion in McDonald stated,

50 A-3704-11T4 "incorporation [of the Second Amendment through the Due Process

Clause] does not imperil every law regulating firearms," ___

U.S. at ___, 130 S. Ct. at 3047, 177 L. Ed. 2d at 926, and it

explained that incorporation "by no means eliminates" a state's

"ability to devise solutions to social problems that suit local

needs and values." ___ U.S. at ___, 130 S. Ct. at 3046, 177 L.

Ed. 2d at 925.

Taking the statements, the holdings and the Court's

reasoning on the enshrined limitations together, we conclude

that, since the Amendment's adoption, legislators have been

permitted to address current problems through regulations not

inconsistent with or directed at suppressing or effectively

extinguishing the right. The Court suggested as much when it

stressed that its invalidation of the District of Columbia's law

making it impossible to use a handgun for self-defense in the

home should not be understood to suggest "the invalidity of laws

regulating the storage of firearms to prevent accidents."

Heller, supra, 554 U.S. at 632, 128 S. Ct. at 2820, 171 L. Ed.

2d at 681 (emphasis added). The Court had not discussed any

historical predicates for laws designed to prevent accidental

discharge of a firearm in the home or include such measures in

its illustrative list of presumptively lawful measures. We take

this as an indication that despite the absence of any direct

51 A-3704-11T4 model in older laws, measures short of total bans designed to

prevent accidental injuries with firearms are permissible, even

in the home where the need for lawful defensive use is "most

acute."

Finally, Heller's closing passage must be understood to

leave room for a continuing role for legislatures. There, the

Court acknowledged the problem of "handgun violence" in this

country and explained that the "enshrinement of constitutional

rights" takes some policy choices for dealing with gun violence

"off the table" — "includ[ing] the [option of an] absolute

prohibition of handguns held and used for self-defense in the

home." Id. at 636, 128 S. Ct. at 2822, 171 L. Ed. 2d at 684.

Nevertheless, the Court stressed that "[t]he Constitution leaves

. . . a variety of tools for combating" handgun violence

"including some measures regulating handguns." Ibid. The Court

left identification of the permissible tools for the future,

without providing any specific guidance beyond a cross-reference

to its partial listing of "presumptively lawful" measures.

Ibid.

5. The Standard of Scrutiny

For the purpose of resolving this Second Amendment

challenge before us, we are assuming that the Second Amendment

protects the right of law-abiding and responsible citizens

52 A-3704-11T4 (those protected by the Amendment under Heller), to carry a

handgun (a firearm protected by the Amendment under Heller), in

public places for lawful defensive use (the only protected

purpose for carrying a handgun under Heller in public places

where the obligation to show justifiable need pertains, N.J.S.A.

2C:39-5, -6). On those assumptions, we conclude that

intermediate scrutiny is the proper measure of the validity of

this component of New Jersey's carry permit law.

Heller strongly suggests that one of "the standards of

scrutiny that [the Court has] applied to enumerated

constitutional rights" should be employed in determining whether

a law regulating firearms goes too far. 554 U.S. at 628, 128 S.

Ct. at 2851, 171 L. Ed. 2d at 714. And the Court effectively

narrowed the potentially applicable standards to strict and

intermediate scrutiny by concluding that the rational basis test

"could not be used to evaluate the extent to which a legislature

may regulate a specific, enumerated right, be it freedom of

speech, the guarantee against double jeopardy, the right to

counsel, or the right to keep and bear arms." Id. at 628 n.27,

128 S. Ct. at 2817, 171 L. Ed. 2d at 679.

With respect to the bases for selecting between strict and

intermediate scrutiny, the Heller Court avoided that

constitutional question by noting the District of Columbia laws

53 A-3704-11T4 at issue would not pass muster under either. 554 U.S. at 628-

29, 128 S. Ct. at 2817-19, 171 L. Ed. 2d at 679-80.

Consequently, from Heller, we know little more than that a law

will not pass intermediate or strict scrutiny if it effectively

bans an "entire class of 'arms' that is overwhelmingly chosen by

American society for . . . lawful purposes" — handguns — and

extends to the home, where the "need" for use of lawful

defensive force is "most acute." Id. at 628, 128 S. Ct. at

2817, 171 L. Ed. 2d at 679. Those were the bases for the Heller

Court's holding — that the District's law "banning from the home

'the most preferred firearms in the nation to keep and use for

protection of one's home and family,' would fail constitutional

muster." Id. at 628-29 n.27, 128 S. Ct. at 2817-18, 171 L. Ed.

2d at 679.

Each of the three federal courts of appeals that have

scrutinized laws comparable to New Jersey's "justifiable need"

standard have determined that an "intermediate" level of

scrutiny is appropriate. In selecting intermediate scrutiny,

all three courts considered Heller's reference to the "core"

right of self-defense in the home. Drake, supra, 724 F.3d at

429-30; Woollard, supra, 712 F.3d at 876; Kachalsky, supra, 701

F.3d at 93. Because we are assuming a right that extends beyond

54 A-3704-11T4 the home, we do not rely on anything special about the right in

the home.

We deem an intermediate level of scrutiny appropriate for

laws restricting only conduct in public places, because

restrictions on the right imposed in the interest of safety and

order in public places have always been understood to be part of

the Amendment's scope. Kachalsky, supra, 701 F.3d at 96-97

(determining that state regulation of firearms in public was

enshrined with the Amendment and favored intermediate scrutiny);

Woollard, supra, 712 F.3d at 876 (same, noting that "'outside

the home, firearm rights have always been more limited, because

public safety interests often outweigh individual interests in

self-defense'" (quoting Masciandaro, supra, 638 F.3d at 470)).

After all, the Heller Court identified absolute bans against

possession of firearms in some "sensitive" public places as

presumptively lawful and illustrated the limited nature of the

right by noting the widespread acceptance of concealed carrying

bans by 19th century courts. 554 U.S. at 626-27, 627 n.26, 128

S. Ct. at 2816-17, 171 L. Ed. 2d at 678.

As the Fourth Circuit explained in Masciandaro, 638 F.3d at

470-71: "One of the principal [19th century] cases relied upon

in Heller upheld a state concealed carrying ban after applying

55 A-3704-11T4 review of a decidedly less-than-strict nature. See Nunn v.

State, 1 Ga. 243, 249 (1846)." In Nunn, the court concluded,

a law which is merely intended to promote personal security, and to put down lawless aggression and violence, and to this end prohibits the wearing of certain weapons in such a manner as is calculated to exert an unhappy influence upon the moral feelings of the wearer, by making him less regardful of the personal security of others, does not come in collision with the Constitution.

[1 Ga. at 249.23]

In our view, the extent of the burden a law imposes on

exercise of the right is also relevant to the degree of

scrutiny. Kachalsky, supra, 701 F.3d at 93; Marzzarella, supra,

614 F.3d at 97. In Moore, the Seventh Circuit invalidated an

Illinois law that imposed "a flat ban on carrying ready to use

guns outside the home." 702 F.3d at 937, 940-42. As we

understand the decision, it is primarily based on the extremity

of the burden. The majority noted that its decision rested not

on "degrees of scrutiny" but on the state's failure to "justify

23 It is appropriate to consider here the reasoning of the 19th century courts addressing concealed carry laws. The Heller Court looked to the reasoning in those decisions in concluding that the right was understood to be an individual right of self- defense. The Court had no reason to consider those courts' understanding of the original balance of public and individual interests in public places, because the laws the Court was considering in Heller involved exercise of the right in the home. 554 U.S. at 610-14, 128 S. Ct. at 2807-10, 171 L. Ed. 2d at 669-71.

56 A-3704-11T4 the most restrictive gun law of any of the 50 states," which

went "too far." Ibid. The court invalidated the law because

Illinois should have but failed to show more than a "rational

basis" for concluding that its "uniquely sweeping ban was

justified by an increase in public safety." Id. at 942.

In the course of its decision, the Moore court referred to

New York's proper cause requirement, noting that, unlike the

Illinois law, it recognized that "the interest in self-defense

extends outside the home." Id. at 940. In staying its mandate

to permit the legislature to draft a new law imposing

"reasonable limitations, consistent with the public safety and

the Second Amendment as interpreted in [its] opinion, on the

carrying of guns in public," id. at 942, the court provided some

guidance. Although the majority viewed the distinction between

regulations applicable in the home and public places with some

disapproval, id. at 941, it observed that other states "have

decided that a proper balance between the interest in self-

defense and the dangers created by carrying guns in public is to

limit the right to carry a gun to responsible persons rather

than to ban public carriage altogether . . . ." Id. at 940.

Thus, while the court did not say so, its description of a law

that would pass muster does not suggest that it be drafted with

an eye toward passing strict scrutiny.

57 A-3704-11T4 We have not found any post-Heller decision in which a court

concluded that a firearms law should be subjected to strict

scrutiny. Even courts considering a new law extending the

presumptively lawful categorical bar that applies to felons,

applicable wherever the person may be, to include persons

convicted of misdemeanors involving physical domestic violence,

have applied a level of scrutiny less stringent than strict.

The Seventh Circuit found no need to "get more deeply into the

'levels of scrutiny' quagmire," because "preventing armed

mayhem, is an important governmental objective" and "logic and

data establish[ed] a substantial relation between [the law] and

this objective." Skoien, supra, 614 F.3d at 642; accord Booker,

supra, 644 F.3d at 25-28.

Intermediate scrutiny is appropriate here. The

"justifiable need" component of the carry permit law does not

target protected conduct. It is an effort to protect the public

and accommodate those who have an objective reason to anticipate

a need to use a gun in self-defense. The law targets the

dangers of misuse and accidental use of handguns that

unquestionably have serious, injurious consequences wholly

outside the purview of self-defense. N.J.S.A.

2C:3-4, -5, -9. While comparisons with other enumerated,

limited rights are strained because each right is enshrined with

58 A-3704-11T4 different understandings, it is important to recognize that the

Second Amendment provides no more protection for unlawful uses

of handguns than the First Amendment does for "fighting words."

Heller, supra, 554 U.S. at 635, 128 S. Ct. at 2821-22, 171 L.

Ed. 2d at 683-84; R.A.V. v. St. Paul, 505 U.S. 377, 386, 112 S.

Ct. 2538, 2545, 120 L. Ed. 2d 305, 319-20 (1992).

A handgun, like other bearable "arms," is a tool long

understood to be equally useful for offensive as well as

defensive and unlawful as well as lawful purposes. See Heller,

supra, 554 U.S. at 581, 128 S. Ct. at 2791, 171 L. Ed. 2d at 651

(quoting accepted definitions of "arms" around 1791). And where

injury with a deadly weapon is inflicted with criminal

recklessness or negligence, it is unlawful even if unintended.

N.J.S.A. 2C:11-3, -4; N.J.S.A. 2C:3-9. Moreover, even if an

accident does not rise to the level of recklessness or

negligence, nothing in Heller suggests that accidental injury is

within the scope of the Amendment's protection. Indeed, the

Court stressed it was not suggesting that regulations concerning

gun storage in the home to prevent accidents were outside the

class of regulations the Amendment permits. Heller, supra, 505

U.S. at 632, 128 S. Ct. at 2819-20, 171 L. Ed. 2d at 681.

In applying intermediate scrutiny to New Jersey's

"justifiable need" standard and the comparable laws of Maryland

59 A-3704-11T4 and New York, the federal courts of appeals have variously

characterized the states' interests — public safety and crime

prevention — as important, substantial and even compelling.

Woollard, supra, 712 F.3d at 882 ("significant"); Drake, supra,

724 F.3d at 437 ("significant, substantial and important");

Kachalsky, supra, 701 F.3d at 97 ("compelling"). And they have

concluded that the "fit" between the adequate governmental

interest and the law need not be perfect but only "reasonable"

or "substantial." Woollard, supra, 712 F.3d at 878

("reasonable"); Drake, supra, 724 F.3d at 436-37 ("reasonable");

Kachalsky, supra, 701 F.3d at 97-98 ("substantially related

to").

In considering whether the fit between New Jersey's

"justifiable need" requirement and the law's purpose is

reasonable, the Third Circuit also considered whether New

Jersey's law burdened more conduct than "reasonably necessary"

to its substantial and important purpose. Drake, supra, 724

F.3d at 436-37. The courts considering New York's and

Maryland's comparable laws did not expressly address that aspect

of the fit. See generally Kachalsky, supra, 701 F.3d at 81;

Woollard, supra, 712 F.3d at 865.

Notably, the federal courts of appeals addressing laws like

New Jersey's have deemed it proper to defer to the state

60 A-3704-11T4 legislatures' predictive determinations. Drake, supra, 724 F.3d

at 438 (noting that restrictions subject to intermediate

scrutiny can be justified "'by reference to studies and

anecdotes,'" and also by reference to "'history, consensus, and

simple common sense'" (quoting IMS Health, Inc. v. Ayotte, 550

F.3d 42, 55 (1st Cir. 2008), abrogated on other grounds, 131

S. Ct. 2653, 180 L. Ed. 2d 544 (2011)); Kachalsky, supra, 701

F.3d at 99 (recognizing the existence of competing studies and

data and observing, "it is the legislature's job, not ours, to

weigh conflicting evidence and make policy judgments"); see also

Woollard, supra, 712 F.3d at 877, 881 (discussing statistical

evidence presented and concluding that it was the legislature's

job to weigh it).

There is no question that New Jersey's "justifiable need"

requirement burdens a law-abiding, responsible and adequately

trained person's right to carry a handgun in the event a need to

use it in lawful defense arises. The standard we apply is

fashioned to account for that admittedly significant burden on

exercise of the right and for the fact that it is imposed only

in public places, where restrictions on its exercise have always

been understood to be part of the right. On the foregoing

understandings and the guidance from the decisions of other

courts addressing similar laws, we will defer to the predictive

61 A-3704-11T4 determinations made by our Legislature from 1882 until today.

And we will consider whether the "justifiable need" component is

supported by a substantial and permissible government interest;

whether the "fit" between that governmental interest and

"justifiable need" is substantial; and whether the law burdens

no more conduct than is reasonably necessary.

For the reasons that follow, we conclude that the law

easily passes muster under that standard.

6. "Justifiable Need" Passes Muster

Without question, the New Jersey Legislature's reasons for

the carry permit law are legitimate. "There is no doubt that

preventing danger to the community is a legitimate regulatory

goal." Salerno, supra, 481 U.S. at 747, 107 S. Ct. at 2101, 95

L. Ed. 2d at 709. As the New Jersey Supreme Court has

determined, the Legislature conditioned the issuance of a carry

permit based on need on its longstanding "aware[ness] of the

dangers inherent in the carrying of handguns and the urgent

necessity for their regulation," a necessity attributable to the

"serious dangers of misuse and accidental use." Siccardi,

supra, 59 N.J. at 553, 558.

True, we do not have a record of the evidence concerning

mishap and accidents with guns the Legislature considered prior

to 1966 — when it prohibited youngsters from carrying firearms

62 A-3704-11T4 in 1882; when it prohibited concealed carrying of handguns

without a permit in 1905; and when it first conditioned issuance

of carry permits on a showing of need in 1924. It is reasonable

to infer that the Legislature was acting on considerations and

evidence similar to that considered by New York's Legislature

when it adopted a carry permit law in 1911. Kachalsky, supra,

701 F.3d at 97-98 (discussing the data).

As discussed in Part III, B of this decision, in 1966 our

Legislature and in 1971 our Supreme Court had significant

evidence relevant to the risks posed by the widespread carrying

of handguns. Thus, we know that the Legislature and the Court

considered statistical and anecdotal evidence as well as the

opinions of informed law enforcement officials and

representatives of well-established and respected organizations

promoting the legitimate and safe use of firearms.

The State at that time made a showing of the basis for the

Legislature's predictive judgment that the "justifiable need"

component of our carry permit law would minimize the risk of

serious injury resulting from misuse and accidents with handguns

in public places of this densely populated State. This

permissible government interest is substantial and significant.

And there is a substantial fit between that interest in securing

order and safety in public places and a law conditioning the

63 A-3704-11T4 issuance of carry permits on a showing of "justifiable need" for

carrying a handgun.

It is also clear that neither the goal nor the effort to

achieve it by conditioning issuance of carry permits on need was

questioned by the gun advocates who addressed the legislative

committee in 1966.

The lack of controversy in 1966 is not surprising given the

longstanding practice of regulating the carrying of firearms in

this State and elsewhere. Apparently the commonsensical and

logical consensus that "[a] gun is a potential danger to more

people if carried" outside the home, Moore, supra, 702 F.3d at

937, has long been as obvious as it is now. See Drake, supra,

724 F.3d at 438 (noting the propriety of reliance on common

sense, consensus and history).

Heller supports the conclusion that regulation of the

carrying of handguns in public places, despite some impact on

self-defense, has always been understood to be consistent with

the scope of the limited right to bear arms. The reasoning of

the 19th century state courts upholding laws regulating the

carrying of certain weapons, which the Heller Court relied upon

in discerning the individual nature of the right, was not

consistent on all points. For example, in the extent to which

the public interest could burden the individual right to arm

64 A-3704-11T4 oneself for self-defense in public places. See Kachalsky,

supra, 701 F.3d at 90-91. Although those courts disagreed on

that point and others, including the relevance of militia

membership and the applicability of the Second Amendment to the

states, all but one recognized the permissibility of regulating

the exercise of the individual right to arm oneself in the event

of an occasion giving rise to a need to act defensively. Bliss

v. Commonwealth, 12 Ky. 90, 92-93 (Ky. 1822) (concluding that

the right codified in that state's constitution, which expressly

prohibited laws restricting the right, could not be restrained

in any way to serve the public interest).

More important here, those courts described the

governmental interests that were understood to permit

restriction of the right in public places. They described the

permissible restriction as those: "dictated by the safety of the

people and the advancement of public morals," State v. Reid, 1

Ala. 612, 616 (Ala. 1840); "passed to subserve the general good,

so as not to infringe the right secured, and the necessary

incidents to the exercise of such rights," Fife v. State, 31

Ark. 455, 460 (Ark. 1876); intended "to promote personal

security, and to put down lawless aggression and violence,"

Nunn, supra, 1 Ga. at 246; necessary "to counteract a vicious

state of society, growing out of the habit of carrying concealed

65 A-3704-11T4 weapons, and to prevent bloodshed and assassinations committed

upon unsuspecting persons," State v. Chandler, 5 La. Ann. 489,

489-90 (La. 1850); and "conducive to the public peace, and the

protection and safety of the community from lawless violence,"

Andrews v. State, 50 Tenn. 165, 187-88 (Tenn. 1871). A court of

this state reached the same conclusion in 1925. Angelo, supra,

3 N.J. Misc. at 1014-15 (recognizing that the Second Amendment

right is a limited right and its exercise is subject to such

conditions as the safety and welfare of the people require).

Thus, the New Jersey Legislature's longstanding recognition

of the urgent necessity for regulating the carrying of handguns

in public places is not new, unique or inconsistent with the

right as interpreted in Heller. Such regulations, at least

those falling short of extinguishing the right, were universally

understood as consistent with the limited individual right

during the period following the Second Amendment's adoption.

Kachalsky, supra, 701 F.3d at 96 (discussing New York's "proper

cause" standard and the well-established tradition of

regulations in public places enshrined with the right); see

Drake, supra, 724 F.3d at 432-34 (concluding, on similar

reasoning, that the "justifiable need" standard fits so

"comfortably" within the longstanding tradition as to qualify as

presumptively lawful).

66 A-3704-11T4 There is no basis for suspecting that the carry permit law

is hostile to the Second Amendment right. The goal of the New

Jersey Legislature's commitment to meeting the urgent necessity

of addressing violence in public places is demonstrated by its

efforts to address the problem on several fronts. One example

is the establishment of the PTC to better educate and train

local, county and State law enforcement officers. That effort

was undertaken to minimize the need for widespread carrying of

handguns in public to fend off unlawful aggressive conduct,

which poses a risk that is enhanced in densely populated public

places.

The carry permit law's training requirement is another

example. Wherever the Legislature has authorized the carrying

of handguns in public places — whether by employment-based

exemption or carry permit — the Legislature has conditioned the

license on adequate training and periodic re-qualification.

N.J.S.A. 2C:39-6j, l; N.J.S.A. 2C:58-4d. Proficiency is a

"sensibl[e]" condition imposed on exercise of the right to

minimize the risk of misuse and accident inherent in carrying

handguns in public places. As others have observed, apparently

as a matter of logic and common sense, "[a] person who carries a

gun in a public place but is not well trained in the use of

firearms is a menace to himself and others." Moore, supra, 702

67 A-3704-11T4 F.3d at 941. That assessment entails a predictive determination

that New Jersey's Legislature made long ago; and is not

questioned in this case.

The State does not deny that the "justifiable need"

requirement is designed to address the inherent danger of misuse

and accidental use by keeping the number of handguns in public

places down. Before the Third Circuit, the State argued: "'The

[standard] provides a means to determine whether the increase in

risk and danger borne by the public is justified by a

demonstrated risk and danger borne to the person seeking to

carry a handgun.'" Drake, supra, 724 F.3d at 437 (quoting

Appellees' Brief 34). But as the Second Circuit noted in

Kachalsky, this is not an "arbitrary" basis for addressing the

dangers to order and safety in public places comparable to

limiting public possession to "every tenth citizen." 701 F.3d

at 98. Rather, it is an objective basis that is substantially

related to the important interest in order and public safety and

tailored to serve it by burdening as little conduct as is

reasonably possible. Ibid.

New Jersey's carry permit allows the carrying of handguns

in public places where carry permits are required, despite the

inherent danger, only where the person has adequate training to

minimize the risk to the extent that is possible, and only where

68 A-3704-11T4 there is a reason to conclude that doing otherwise would too

heavily burden the individual right to use handguns lawfully —

in those cases where the person has an objective reason to

anticipate the need of using a handgun defensively that

distinguishes the person from others.

As discussed in Part III of this opinion, the apparent need

to use a firearm for a lawful purpose is the feature that

unifies what otherwise appears to be a rather complex list of

exceptions to the carry permit law found in N.J.S.A. 2C:39-6.

The "justifiable need" requirement serves the same purpose as

the employment-based exceptions, but does so on a case-by-case

rather than a categorical basis. Thus, those who can show an

objective reason — a reason other than a generalized concern

about becoming a crime victim — to anticipate an attack

necessitating the defensive use of a handgun can obtain a carry

permit tailored to their showing of need.

To view this limitation based on an objective showing of

need as inconsistent with the Amendment would be to seriously

misunderstand Heller. Assuming no categorical disqualification

of the firearm or the person carrying it, the Amendment protects

the right to bear arms for self-defense. As the Heller Court

implicitly recognized in noting the "need" for lawful use of

69 A-3704-11T4 defensive force in the home, the right to use lawful defensive

force has always been tied to need.

Lawful uses of defensive force are, and historically have

been, inextricably intertwined with the existence of an

objectively reasonable perception of the need to defend oneself

against an immediate threat of serious harm from an unlawful use

of force. As our Court of Errors and Appeals explained long

ago, "[t]he 'right of self-defense has always been regarded as

founded on necessity . . . .'" Brown v. State, 62 N.J.L. 666,

708 (E. & A. 1899) (quoting 1 Edward Hyde East, A Treatise of

the Pleas of the Crown, 293 (1803)). It is a right to protect

oneself "'from such serious bodily harm as would give him a

reasonable apprehension that his life was in immediate danger.'"

Ibid. (quoting 3 Sir William Oldnall Russell, A Treatise on

Crimes and Misdemeanors 208 (1809)). As Kachalsky recognizes,

there is no right of self-defense until the necessitating

circumstance presents itself. 701 F.3d at 100; see also Harmon,

supra, 104 N.J. at 208-09 (discussed in Part III, C).

In upholding laws conditioning issuance of carry permits on

need, the Second, Third and Fourth Circuits have recognized:

that the laws limit the ability to arm one's self for the

purpose of self-defense; that there is presently conflicting

data on the danger and benefits of widespread carrying of

70 A-3704-11T4 handguns in public places; and that the laws burden but do not

absolutely bar the conduct. Drake, supra, 724 F.3d at 439;

Woollard, supra, 712 F.3d at 880-81; Kachalsky, supra, 701 F.3d

at 98-100. Each of those courts found the state's interest

sufficiently important and the fit between the need-based

standard and the interest in order and safety in public places

adequate to pass muster under the intermediate level of scrutiny

they applied. The Third Circuit went further and determined

that the conditioning of carry permits on "justifiable need" did

not burden more conduct than reasonably necessary to serve the

State's purpose.

We see absolutely no basis for reaching a different

conclusion here. As interpreted in Heller, the Second Amendment

protects lawful, not unlawful uses of firearms. In the public

places where a carry permit is required under the laws of this

State, the only lawful use of a handgun is lawful self-defense.

In our view, "justifiable need" accommodates that right in a

manner that is wholly compatible with the right of self-defense.

The Amendment does not protect conduct resulting in

unlawful injury just because the injury is inflicted with a

protected weapon. Where the result of an accidental use or

misuse of defensive force is injury to someone who is not posing

an immediate threat of unlawful use of injurious force, the

71 A-3704-11T4 injurious conduct, if rising to the level of criminal

recklessness or negligence, is an unlawful infliction of injury,

whether or not the shooter intended to injure. N.J.S.A. 2C:11-

4a(1), b(1); N.J.S.A. 2C:12-1a(2), b(3)-(4); N.J.S.A. 2C:3-4,

-5, -9.

The risk of reckless and negligent injury is minimized but

not eliminated with training, even with training like that

required in New Jersey, which requires that the applicant

demonstrate knowledge of the law as well as proficiency in the

handling of a gun. N.J.A.C. 13:54-2.4; see generally Woollard,

supra, 712 F.3d at 879-80 (discussing increased risks when the

carrying of handguns in public places is widespread, identified

by Maryland, which included escalation of force in

confrontations and the confusion generated when multiple parties

in a confrontation are armed). Unanticipated confrontations

require split-second assessments under stressful circumstances.

See Siccardi, supra, 59 N.J. at 551-52 (noting law enforcement

officer's claim that an attack happens so quickly that in order

to use a concealed weapon the victim does not have much time);

see also Governor's Reconsideration and Recommendation

Statement, Assembly No. 940, L. 1982, c. 154 (discussed in Part

III, A, 2 above).

72 A-3704-11T4 It is true that the "justifiable need" requirement does not

accommodate the interest in use of a handgun defensively to fend

off a random attack in a public place. But that is also true of

random attacks that occur in "sensitive" public places where

laws banning possession of firearms are, under Heller,

presumptively lawful. While the "justifiable need" requirement

has implications beyond schools and government buildings, one

who has an objective reason to anticipate an unavoidable attack

can obtain a carry permit.

The question comes down to whether New Jersey law, in

excluding an accommodation for random attacks in public, has

burdened the right of self-defense too much. Given the limited

nature of this enumerated right, restricted as it has always

been by reasonable regulations addressing the carrying of

firearms in public places (adopted in the interest of public

order and safety), we do not think the Amendment requires New

Jersey to allow every law-abiding, responsible and trained

person to carry a handgun in public absent "justifiable need."

The Legislature, long ago, made the predictive judgment

that the widespread carrying of handguns in public places where

a carry permit is required would not be consistent with public

safety because of the inherent danger it poses. Other state

legislatures have made the same determination. And we cannot

73 A-3704-11T4 conceive of any action the Legislature could take to address

that inherent danger in a manner more accommodating to the right

to bear arms in public for lawful self-defense. The alternative

to requiring a showing of "justifiable need" is widespread

carrying of handguns, which would not address the problem at

all. Siccardi, supra, 59 N.J. at 558.

In McDonald, the plurality indicated that states are not

deprived of their ability, within the Amendment's limits, "to

devise solutions to social problems that suit local needs and

values." ___ U.S. at ___, 130 S. Ct. at 3046, 177 L. Ed. 2d at

925. We cannot conclude that the Amendment or the Court's

recent decisions require this State to dismantle its statutory

scheme addressing the risks of misuse and accidental use in

public places devised long ago and developed over many years.

This scheme is crafted to burden the exercise of the right to

use handguns for lawful purposes as little as possible, without

abandoning this effort to maintain order and safety in public

There is one final argument that must be addressed, which

was not raised in Drake. These applicants argue that in

excepting certain retired officers from making a showing of

"justifiable need" to carry a handgun, the Legislature has

74 A-3704-11T4 undermined the substantiality of its objective. Admittedly, the

argument has some facial appeal.

In Part III, A, 4 of this opinion, we discussed the

distinctions between the pre-retirement duties and carrying

privileges of retirees who are eligible and ineligible for these

special permits. Only those who served full-time and regularly

in designated law enforcement agencies and had broad police

powers and unlimited carrying privileges are eligible. As

previously discussed, AIU officers work for the fire department,

and have limited carrying privileges, N.J.S.A. 2C:39-6a(8), and

police powers, N.J.S.A. 40A:14-7.1d.

In Part III, A, 4, we also discuss that Congress, in

adopting LEOSA, recognized that retired officers face dangers of

retaliation that are different than those faced by others and

that, by virtue of experience and training, they are better able

than others to address them. While the quality of Congress'

predictive judgment is not readily apparent, we cannot conclude

that the New Jersey Legislature was so far off the mark in

relieving retirees from full-time and regular service as police

officers of the obligation of showing "justifiable need" or that

its determination undermines the substantiality of the

governmental interest in otherwise limiting the right to carry

firearms in public places to those private persons who

75 A-3704-11T4 demonstrate "justifiable need." The fact that the Legislature

has determined that retirees who served full-time in jobs that

warranted their possession of firearms at all times, whether or

not on duty, have a reason for needing a handgun that carries

over into retirement is not a reason to view the "justifiable

need" requirement with a different lens. Presumably, it is a

matter the Legislature and Executive will continue to consider

as the scope of the Second Amendment right, as interpreted in

Heller and made applicable to the states in McDonald, is

clarified.

V. Equal Protection

We turn to consider the applicants' claim under the Equal

Protection Clause of the Fourteenth Amendment to the United

States Constitution. It rests upon the applicants' objection to

distinctions the Legislature has drawn between retired law

enforcement officers who are and who are not eligible for

special permits to carry handguns under subsection l of N.J.S.A.

2C:39-6.

The Equal Protection Clause prohibits states from

"deny[ing] to any person within its jurisdiction the equal

protection of the laws." U.S. Const. amend. XIV, § 1.

"[A]bsent an impact on a fundamental right or targeting of a

suspect class, a statute [withstands an equal protection

76 A-3704-11T4 challenge] 'so long as it bears a rational relation to some

legitimate end.'" Trautmann ex rel. Trautmann v. Christie, 211

N.J. 300, 304 (2012) (quoting Romer v. Evans, 517 U.S. 620, 631,

116 S. Ct. 1620, 1626, 134 L. Ed. 2d 855, 865 (1996)).

Statutory classifications that are not based on a suspect

classification and statutes that do not implicate exercise of

fundamental rights are deemed impermissible only when the law's

objectives are not legitimate or the relationship between the

permissible goal and classification is so attenuated as to be

arbitrary or irrational. City of Cleburne v. Cleburne Living

Ctr., 473 U.S. 432, 446-47, 105 S. Ct. 3249, 3258, 87 L. Ed. 2d

313, 324 (1985); Doe v. Poritz, 142 N.J. 1, 92 (1995).

These applicants do not contend that the distinctions drawn

in subsection l are subject to scrutiny under a standard

stricter than the rational basis test. Nor could they. Where a

Second Amendment challenge fails and there is no suspect

classification involved, as is the case here, a claim that

others similarly situated are treated differently is reviewed

only for rational basis. In Kwong v. Bloomberg, 723 F.3d 160,

170 n.19 (2d Cir. 2013), the court considered a Second Amendment

challenge to a residential handgun licensing fee, subjected the

fee to intermediate scrutiny under the Second Amendment, and

concluded it passed muster. The court concluded that in that

77 A-3704-11T4 circumstance the Equal Protection challenge to the fee required

no more than rational basis review because the Second Amendment

"analysis sufficiently" protected that right. Id. at 170

(citing Nat'l Rifle Ass'n of Am. v. Bureau of Alcohol, Tobacco,

Firearms & Explosives, 700 F.3d 185, 211-12 (5th Cir. 2012);

Hightower v. City of Boston, 693 F.3d 61, 83 (1st Cir. 2012);

Nordyke v. King, 681 F.3d 1041, 1043 n.2 (9th Cir. 2012) (en

banc), cert. denied, ___ U.S. ___, 133 S. Ct. 840, 184 L. Ed. 2d

652 (2013)).

As discussed in Part IV, B, 5, conditioning the issuance of

a carry permit on a showing of "justifiable need" survives

intermediate scrutiny under the Second Amendment. Accordingly,

this objection, based on the fact that some retired officers are

not obligated to make that showing, is properly reviewed to

discern whether there is a rational basis for the distinction.

The basis for the distinction is discussed in Part III, A, 4.

Unlike the eligible retirees, these retirees had only limited

statutory carrying privileges and statutorily limited police

powers while employed. Accordingly, their position is different

than that of the eligible officers. See Governor's

Reconsideration and Recommendation Statement, Senate No. 1480,

L. 1985, c. 150 (discussed in Part III, A, 4 of this opinion).

78 A-3704-11T4 Given the difference in the work experience, statutory

police powers, and statutory carrying privileges which are the

bases for issuance of these special permits available without a

showing of "justifiable need," the Legislature could have

reasonably concluded that retirees who served broader law

enforcement roles while employed, as a group, face a greater

risk of retaliatory violence following retirement than those

whose statutory responsibilities were limited to investigating

arson, suspicious fires and explosions. The fact that these

applicants may have exercised carrying privileges and dealt with

crimes related to arsons under investigation or detected during

the course of their work, does not make the classification

arbitrary.

The applicants also contend that they each qualify for a

special permit as a "qualified retired law enforcement officer,

as [that term] is used in the federal Law Enforcement Officers

Safety Act of 2004 [(LEOSA)], Pub. L. 108-277" and are treated

differently than those retirees who are eligible on that basis,

having served elsewhere and moved to New Jersey after retiring.

See Casaleggio, supra, 420 N.J. Super. 121, 128-29 (so

interpreting the statute).

The difficulty here is that neither applicant meets the

definition of "qualified retired law enforcement officer, as

79 A-3704-11T4 [that term] is used in the federal Law Enforcement Officers

Safety Act of 2004 [(LEOSA)], Pub. L. 108-277." Ibid. LEOSA

has been amended since 2004, and these applicants rely on

LEOSA's current definition of the term "qualified retired law

enforcement officer." That reliance is misplaced.

Based on our review of the history of this State's well-

established record of closely guarding carry permits and

subsection l's careful enumeration of eligible officers, we are

certain that the Legislature would not intend courts to construe

subsection l's reference to LEOSA to encompass any and all

expansions of LEOSA's definition of qualified retired law

enforcement officer that Congress might deem fit to adopt. See

generally In the Matter of Commitment of Edward S., 118 N.J.

118, 133-36 (1990) (discussing interpretation of statutes

incorporating a specific provision of law and concluding that

the significance of the subsequent amendments to the

incorporated law is a question of the Legislature's intent).

Congress has expanded the scope of LEOSA in ways that are

inconsistent with N.J.S.A. 2C:39-6l. Compare 108 Pub. L. No.

277 (§ 926C(c)(1),(3)(A)) (defining qualified retired law

enforcement officer to mean an individual who "before such

retirement, was regularly employed as a law enforcement officer

for an aggregate of [fifteen] years or more") with Pub. L. No.

80 A-3704-11T4 111-272 (no longer limiting the definition to those "regularly

employed as law enforcement officers" and reducing the necessary

years of aggregate service from fifteen years or more to "[ten]

years or more"); and with N.J.S.A. 2C:39-6l (limiting these

special carry permits to retired officers who "regularly" served

as a law enforcement officer before retiring from a designated

law enforcement agency).

Under LEOSA as initially adopted, fifteen years of service

as a law enforcement officer was required. Pub. L. No. 108-277,

§ 926C(c)(3). Daudelin had fifteen years of service in the AIU.

Wheeler did not. But Daudelin did not have the photographic

identification card required to meet LEOSA's definition. He had

photographic identification cards depicting him as a retired

"police captain" and an "arson captain" issued by the Newark

Police Department, but pursuant to N.J.S.A. 40A:14-7.1a, AIUs

are established within a City's fire department.24 Thus, he did

not have an identification card "issued by the agency from which

24 As a practical matter, it is unclear how a permit can be issued based upon LEOSA qualification. That is so because a retired officer's status under LEOSA depends, in part, upon whether the retired officer is or is not intoxicated while in possession of the firearm — a determination that cannot be made when a permit is issued. See 18 U.S.C.S. § 923C(c)(6); cf. N.J.S.A. 2C:58-3c(2) (precluding issuance of a permit to purchase to a person who is a habitual drunkard); N.J.S.A. 2C:58-4d (requiring a person seeking a permit to demonstrate he or she is not disqualified pursuant to N.J.S.A. 2C:58-3c).

81 A-3704-11T4 [he] retired from service." Pub. L. No. 108-277, § 926C(d)(1-

2). In short, neither is qualified under the LEOSA definition

incorporated by reference with careful precision in N.J.S.A.

2C:39-6l.

To avoid any confusion, it is worth noting that these

applicants acknowledge that Congress, by adopting LEOSA, did not

and could not constitutionally require a state to issue

documents in furtherance of this federal firearms program. See

Johnson v. N. Y. State Dep't of Corr. Servs., 709 F. Supp. 2d

178, 187 (N.D.N.Y. 2010) (relying upon Printz v. United States,

521 U.S. 898, 117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997), which

holds that Congress may not constitutionally compel state

officers to take action to implement a federal program, and

concluding that Congress could not compel states to issue

documents to implement LEOSA).25

25 Following oral argument on this appeal, the State moved to correct the record and the applicants opposed the motion. We reserved decision for disposition in this decision. The motion is more aptly characterized as one to supplement the record. The new information concerns the identification card issued to Daudelin. Our determination based on Daudelin's identification card is not based on that new information. It is based on the card submitted to the trial court, included in the appendix on appeal, and the statute authorizing the City of Newark and others to establish AIUs in their Fire Departments, not their Police Departments. Accordingly, the motion is denied.

82 A-3704-11T4 VI. Privileges and Immunities

The applicants also contend that subsection l of N.J.S.A.

2C:39-6 violates the Privileges and Immunities Clause of Article

IV, Section 2, Clause 1 of the United States Constitution.

Their claim is premised on the fact that subsection l makes

special permits to carry available to retired officers domiciled

in New Jersey qualified under LEOSA, but not to retired officers

domiciled elsewhere. This issue was not raised in the trial

court.

The Clause applies only to those "privileges" and

"immunities" bearing upon the vitality of the Nation as a single

entity with respect to which "the State [must] treat all

citizens, resident and nonresident, equally." Baldwin v. Fish &

Game Comm'n, 436 U.S. 371, 383-84, 98 S. Ct. 1852, 1860, 56 L.

Ed. 2d 354, 365 (1978). Appellants argue that a retired law

enforcement officer's receipt of a permit to carry a handgun in

New Jersey "would certainly facilitate obtaining employment as

an armed security officer in New Jersey."

There is no question that "pursuit of a common calling is

one of the most fundamental of those privileges protected by the

Clause." United Bldg. & Constr. Trades Council v. Mayor &

Council of Camden, 465 U.S. 208, 219, 104 S. Ct. 1020, 1028, 79

L. Ed. 2d 249, 259 (1984) (citing Baldwin, supra, 436 U.S. at

83 A-3704-11T4 387, 98 S. Ct. at 1862, 56 L. Ed. 2d at 367-68). It is also

axiomatic that "[e]very inquiry under the Privileges and

Immunities Clause 'must . . . be conducted with due regard for

the principle that the States should have considerable leeway in

analyzing local evils and in prescribing appropriate cures.'"

United Bldg. & Constr. Trades Council, supra, 465 U.S. at 222-

23, 104 S. Ct. at 1030, 79 L. Ed. 2d at 262 (quoting Toomer v.

Witsell, 334 U.S. 385, 396, 68 S. Ct. 1156, 1162, 92 L. Ed. 2d

1467, 1471 (1948)). Determinations about issuance of permits to

carry handguns in public places are certainly a matter involving

the analysis of local ills and cures.

Because this claim was not raised in the trial court and

because these officers are not in any event "qualified retired

law enforcement officers" within the meaning of that term

incorporated in N.J.S.A. 2C:39-6l, we would ordinarily decline

to consider the point not raised in the trial court.

In this case, there is an additional reason. The record is

inadequate to permit evaluation of the State's justification for

any differential treatment of retired officers domiciled in and

outside of New Jersey. See, e.g., United Bldg. & Constr. Trades

Council, supra, 465 U.S. at 223, 104 S. Ct. at 1030, 79 L. Ed.

2d at 262 (remanding the case because the record was

inadequate). For that reason, deviation from our general

84 A-3704-11T4 practice of declining to consider issues raised for the first

time on appeal would be inappropriate. Nieder v. Royal Indem.

Ins. Co., 62 N.J. 229, 234 (1973). Accordingly, we do not

address the claim.

VII. Preemption

The applicants raise an additional issue that requires only

limited discussion. They contend that they cannot be prosecuted

for violating N.J.S.A. 2C:39-5b because they are "qualified

retired law enforcement officer[s]" within the meaning of LEOSA.

As we understand their argument, the claim is that LEOSA

precludes their prosecution pursuant to N.J.S.A. 2C:39-5b for

possessing a firearm without a permit to carry. In this

circumstance, where the claim is not dependent upon state law,

incorporating LEOSA's definition as stated in a specific

iteration of that statute, current federal law applies. There

is dicta supporting the applicants' position in published

opinions. See Johnson, supra, 709 F. Supp. 2d at 187

(indicating that LEOSA "only demonstrates an intent to bar the

criminal prosecution of retired law enforcement officers who

carry concealed firearms in interstate commerce"); Casaleggio,

supra, 420 N.J. Super. at 128 (citing Johnson for that

proposition and noting that LEOSA has a limited purpose).

85 A-3704-11T4 Nevertheless, the question of whether these applicants

would be subject to prosecution for violation of N.J.S.A. 2C:39-

5b if they were to carry handguns without having obtained

permits in accordance with N.J.S.A. 2C:58-4 is not properly

before us. The disappointed applicants did not file a complaint

for a declaratory judgment in the trial court. That is the

vehicle available for a person wishing to ascertain whether a

proposed course of conduct violates the criminal law. See

Keuper v. Wilson, 111 N.J. Super. 502, 506 (Ch. Div. 1970)

(noting that "[t]he Uniform Declaratory Judgments Law has been

increasingly used in this State to obtain a determination of the

legality of a particular course of action rather than pursuing

the course of action and risking criminal prosecution").

Because neither applicant has been charged with a crime and

neither sought a declaratory judgment, their potential criminal

liability is not before us.

Affirmed.

86 A-3704-11T4