NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-2377-22 A-2378-22
STATE OF NEW JERSEY,
Plaintiff-Appellant, APPROVED FOR PUBLICATION v. August 10, 2023 APPELLATE DIVISION DAANDRE J. WADE,
Defendant-Respondent. _________________________
Plaintiff-Appellant,
v.
MALIK T. STRINGER,
Defendant-Respondent. __________________________
Argued June 6, 2023 – Decided August 10, 2023
Before Judges Gilson, Rose, and Messano.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 22-11-1041.
Nancy A. Hulett, Assistant Prosecutor, argued the cause for appellant (Yolanda Ciccone, Middlesex County Prosecutor, attorney; Nancy A. Hulett, of counsel and on the briefs).
Scott M. Welfel, Assistant Deputy Public Defender, argued the cause for respondent Daandre J. Wade (Joseph E. Krakora, Public Defender, attorney; Scott M. Welfel, of counsel and on the briefs).
James R. Lisa, attorney for respondent Malik T. Stringer, joins in the briefs of respondent Daandre Wade.
David Chen, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Attorney General, attorney; Angela Cai, Deputy Solicitor General, and David Chen, of counsel and on the briefs).
The opinion of the court was delivered by
GILSON, P.J.A.D.
The issue presented on these appeals is whether New Jersey's gun-carry
permit statute and the statute criminalizing permit violations were facially
unconstitutional in 2019 under the Second Amendment to the United States
Constitution. In May 2019, defendants Daandre Wade and Malik Stringer were
found in possession of two loaded handguns while driving a car on public roads.
Neither defendant had a permit to carry a handgun. Both defendants were
indicted for second-degree unlawful possession of a handgun without a permit
in violation of N.J.S.A. 2C:39-5(b)(1).
A-2377-22 2 Following the United States Supreme Court's decision in New York State
Rifle & Pistol Ass'n v. Bruen, 597 U.S. ___, 142 S. Ct. 2111 (2022), defendants
moved to dismiss those criminal charges, arguing that the version of the gun-
carry permit statute in effect at the time of their arrest, N.J.S.A. 2C:58-4 (2018),
was facially unconstitutional under Bruen. Defendants contended that because
the "justifiable need" provision in N.J.S.A. 2C:58-4(c) (2018) was
unconstitutional, all provisions of N.J.S.A. 2C:58-4 (2018) and N.J.S.A. 2C:39-
5(b)(1) were unconstitutional. The trial court agreed, granted defendants'
motion, and issued an order dismissing those charges. We granted the State
leave to appeal the order as it related to both defendants and now consolidate
the appeals for purposes of this opinion.
We hold that defendants did not have standing to challenge the statutes
because neither defendant had applied for a permit to carry a handgun.
Nevertheless, we address the merits of the constitutional challenge because it is
a significant issue that warrants consideration. See Petro v. Platkin, 472 N.J.
Super. 536, 564 (App. Div. 2022) (explaining that we can decide to reach the
merits of a constitutional challenge even when the challenger lacks standing).
We hold that N.J.S.A. 2C:58-4 (2018) and N.J.S.A. 2C:39-5(b)(1) were not
facially unconstitutional because the justifiable need requirement set forth in
A-2377-22 3 N.J.S.A. 2C:58-4(c) (2018) was severable and the remaining provisions of
N.J.S.A. 2C:58-4 (2018), as well as N.J.S.A. 2C:39-5(b)(1), were constitutional
and enforceable. Therefore, in 2019, each defendant needed a permit to carry
handguns outside their homes and if the State proves that they did not have
permits, they will be guilty of a crime under N.J.S.A. 2C:39-5(b)(1).
Accordingly, we reverse and vacate the order dismissing the two counts of the
indictment charging defendants with unlawful possession of a handgun without
a permit. We remand and direct the trial court to reinstate both counts.
I.
The matter came before the trial court on a motion to dismiss two counts
of a criminal indictment. Consequently, on this appeal, we accept the facts as
alleged by the State. 1 See State v. Cobbs, 451 N.J. Super. 1, 5 (App. Div. 2017).
On May 4, 2019, defendants were in a motor vehicle, driven by Stringer
with Wade as the sole passenger. While driving in New Brunswick, two police
officers on patrol observed and checked the vehicle's temporary license plate
and learned that it was not valid. Accordingly, the police stopped the vehicle
1 In discerning the facts, we have reviewed the record, including the indictment and a police report that summarized the events leading to the stop and search of the defendants' vehicle.
A-2377-22 4 and Stringer could not produce a valid registration for the vehicle. While
speaking with Stringer, an officer smelled the odor of raw marijuana emanating
from the car, and the officers then searched the vehicle. 2 During that search, the
police found two handguns: a 9 mm. Taurus, loaded with six bullets, in the
center console; and a 9 mm. Springfield Armory XDS, loaded with seven
hollow-point bullets and equipped with a laser sight, under the floormat on the
passenger side of the vehicle. Neither defendant had a permit to carry a
handgun.
A grand jury indicted defendants for three crimes: in count one, Stringer
was charged with second-degree unlawful possession of a handgun without a
permit; in count two, Wade and Stringer were charged with second-degree
unlawful possession of a handgun without a permit; and in count three, both
defendants were charged with fourth-degree possession of hollow-point bullets
in violation of N.J.S.A. 2C:39-3(f).
2 At the time of the stop, unauthorized possession and use of marijuana was illegal. N.J.S.A. 2C:35-10(a)(3), (a)(4), and (b) (1997). Under the automobile exception to the warrant requirement, law enforcement officers can search a vehicle without a warrant if there is "probable cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous." State v. Witt, 223 N.J. 409, 447 (2015). At the time of defendants' arrest, the odor of raw marijuana could supply officers with probable cause to conduct a warrantless search of a vehicle. See State v. Rodriguez, 459 N.J. Super. 13, 25-26 (App. Div. 2019). A-2377-22 5 In December 2022, after the Supreme Court issued its decision in Bruen,
Wade moved to dismiss count two of the indictment and Stringer joined that
motion to include count one. In support of Wade's motion, his counsel submitted
a certification representing that on the day of his arrest, Wade "had never been
convicted of any indictable offense or disorderly persons offense involving an
act of domestic violence" and "had not been adjudicated delinquent for any
offense that, if committed by an adult, would constitute a crime (a) enumerated
in N.J.S.A. 2C:43-7.2 (the No Early Release Act) or (b) that involved the
unlawful use or possession of a weapon, explosive or destructive device." The
certification also asserted that Wade "was not subject to any of the disabilities
enumerated in N.J.S.A. 2C:58-3(c) [(2016)] which would render him unable to
obtain a permit under a licensing scheme that removes the unconstitutional
justifiable need requirement" and that "under a licensing scheme that did not
require . . . Wade to show a justifiable need, he would have otherwise qualified."
Neither Stringer nor his attorney filed a certification in support of the motion to
dismiss. Both defendants do not contest that they had never sought a permit to
carry a firearm.
A-2377-22 6 On March 31, 2023, after hearing oral argument, the trial court granted
defendants' motion and entered an order dismissing counts one and two of the
indictment. The court explained the reasons for its ruling in a written opinion.
The trial court ruled that defendants could challenge the gun-carry permit
statute even though neither defendant had applied for a permit. In reaching that
conclusion, the trial court relied on First Amendment cases, as well as other
constitutional decisions, that reasoned if a permit statute was facially
unconstitutional the person challenging the statute did not need to have first
applied for a license or permit. See Shuttlesworth v. City of Birmingham, 394
U.S. 147, 151 (1969); Staub v. City of Baxley, 355 U.S. 313, 319 (1958); Lovell
v. City of Griffin, 303 U.S. 444, 452 (1938); Smith v. Cahoon, 283 U.S. 553,
562 (1931). The trial court also rejected the State's argument that the provision
in subsection (c) of N.J.S.A. 2C:58-4 (2018), which contained the justifiable
need requirement, could be severed and the remainder of the statute, as well as
N.J.S.A. 2C:39-5(b)(1), could still be enforced. The trial court concluded that
"New Jersey's handgun-carry permitting regime at the time of defendant[s']
arrest prohibited law-abiding citizens from exercising their Second Amendment
right and was, therefore, unconstitutional." Consequently, the trial court
A-2377-22 7 concluded that defendants were free to possess handguns on May 4, 2019,
without a permit.
In two motions, the State sought leave to appeal the trial court's order. We
granted leave and stayed the dismissal of the charges pending this appeal.
II.
On appeal, the State argues:
THE TRIAL COURT ERRED BY RELYING ON NEW YORK STATE RIFLE & PISTOL [ASS'N] V. BRUEN, 597 U.S. ___, 142 S. CT. 2111 (2022), TO HOLD THAT PROSECUTIONS UNDER N.J.S.A. 2C:39-5([b])(1) ARE NOW PRECLUDED BECAUSE BRUEN RENDERED N.J.S.A. 2C:58-4 [(2018)] FACIALLY UNCONSTITUTIONAL.
We also granted the New Jersey Attorney General permission to appear
and submit a brief as an amicus curiae. The Attorney General contends that the
trial court erred for three reasons:
POINT I – NEW JERSEY'S REQUIREMENT TO OBTAIN A PERMIT BEFORE CARRYING A FIREARM IN PUBLIC REMAINS VALID AFTER BRUEN.
POINT II – THREE PRINCIPLES PREVENT COLLATERAL ATTACKS ON THE PERMITTING LAW:
A. Defendants Who Possess Other Disqualifiers Cannot Collaterally Attack
A-2377-22 8 The "Justifiable Need" Requirement As A Defense To Prosecution.
B. Defendants Who Never Applied For The Relevant Permit Cannot Collaterally Attack The Permitting Law As A Defense To Prosecution.
C. Defendants Who Were Denied A Permit By A Court Cannot Collaterally Attack The Permitting Law And Related Court Order As A Defense To Prosecution.
POINT III – [THESE] DEFENDANT[S] [ARE] NOT ENTITLED TO CHALLENGE THE PERMITTING LAW.
In response, defendants argue N.J.S.A. 2C:39-5(b)(1) could not be
enforced while the justifiable need requirement in N.J.S.A. 2C:58-4(c) (2018)
was in effect because that requirement was unconstitutional under Bruen.
According to defendants, the "confluence" of those statutes created a facially
invalid permitting scheme, which they were entitled to disregard because they
would have qualified for a gun-carry permit but for that unconstitutional
requirement. In that regard, they contend that the justifiable need requirement
"was virtually impossible to meet." Therefore, despite not having applied for a
permit, defendants argue that they have standing to challenge the gun-permitting
scheme because it would have been futile for them to have tried to satisfy that
A-2377-22 9 requirement and because they are contesting the permitting scheme's facial
validity.
III.
It is well established that a grand jury indictment is presumptively valid.
See State v. Feliciano, 224 N.J. 351, 380 (2016); State v. Francis, 191 N.J. 571,
587 (2007). "[A] court should dismiss [an] indictment 'only on the clearest and
plainest ground, and only when the indictment is manifestly deficient or
palpably defective.'" State v. Bell, 241 N.J. 552, 560 (2020) (quoting State v.
Twiggs, 233 N.J. 513, 531-32 (2018)). Moreover, legislative acts are
presumptively valid and constitutional. See State v. Comer, 249 N.J. 359, 384
(2022); State v. Buckner, 223 N.J. 1, 14 (2015).
The issues presented on these appeals are questions of law and involve
interpreting the Constitution and New Jersey's gun-carry permitting statutes,
which we review de novo. State v. S.S., 229 N.J. 360, 380 (2017); see also
Twiggs, 233 N.J. at 532 ("When the decision to dismiss [counts of an
indictment] relies on a purely legal question . . . we review that determination
de novo."). To place the issues in context, we briefly review the Supreme
Court's jurisprudence on the Second Amendment. We also summarize New
Jersey's gun-carry permitting laws.
A-2377-22 10 A. The United States Supreme Court's Jurisprudence on the Second Amendment and the Bruen Decision.
The Second Amendment to the United States Constitution states: "A well
regulated Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II.
In 2008, the United States Supreme Court ruled, for the first time, that the
Second Amendment protects the right of individual citizens to keep and bear
arms apart from service in a militia. District of Columbia v. Heller, 554 U.S.
570, 595, 599 (2008). In Heller, the Court addressed a challenge to the District
of Columbia's restrictions to the possession of handguns in homes and the
requirement that permitted guns in homes be unloaded and disassembled. The
Court held that those restrictions and requirement were unconstitutional
violations of the Second Amendment. Id. at 635.
Two years later, the Court held that the Second Amendment "is fully
applicable to the States" through the Fourteenth Amendment. McDonald v. City
of Chicago, 561 U.S. 742, 750 (2010). In McDonald, the Court addressed
challenges to ordinances of the City of Chicago and one of its suburbs. The
city's ordinances banned the possession of firearms without proper registration
and prohibited the registration of most handguns, and the suburb's ordinances
banned the possession of handguns. Ibid. The city and the suburb argued their
A-2377-22 11 ordinances were constitutional because the Second Amendment did not apply to
the States. Ibid. In rejecting that argument, the Court held that the "Second
Amendment right recognized in Heller" is applicable to the States. Id. at 791
(plurality opinion). In short, in Heller and McDonald, the Court "recognized
that the Second and Fourteenth Amendments protect the right of an ordinary,
law-abiding citizen to possess a handgun in the home for self-defense." Bruen,
142 S. Ct. at 2122.
In 2022, the Court held "that the Second and Fourteenth Amendments
protect an individual's right to carry a handgun for self-defense outside the
home." Ibid. In Bruen, the Court addressed a New York law that required
people seeking to carry a handgun outside the home to show "proper cause" to
obtain a permit to do so. Id. at 2122-23. New York courts had interpreted
"proper cause" to require a showing that the applicant had a "special need for
self-protection distinguishable from that of the general community." Id. at 2123
(citation omitted). The Court held that the proper cause requirement was
unconstitutional because it prohibited most people from obtaining a gun -carry
permit. Id. at 2138, 2156.
In so holding, the Court adopted a textual analysis that requires courts to
look to the text of the Second Amendment and "the Nation's historical tradition
A-2377-22 12 of firearm regulation." Id. at 2130. "Only if a firearm regulation is consistent
with this Nation's historical tradition may a court conclude that the individual's
conduct falls outside the Second Amendment's 'unqualified command.'" Id. at
2126 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).
Accordingly, because "the Constitution presumptively protects [individual
conduct]" covered by "the Second Amendment's plain text," the government
must justify its regulation of that conduct by establishing "not simply . . . that
the regulation promotes an important interest," but that "the regulation is
consistent with this Nation's historical tradition of firearm regulation." Ibid.
Focusing on New York's "proper-cause requirement," the Court held that
provision of New York's gun permitting regime was unconstitutional. Id. at
2138, 2156. In making that ruling, the Court found that requirement was not
justified by an "American tradition." Id. at 2138, 2156. The Court also noted
that New Jersey had a similar restriction in its justifiable need provision in
N.J.S.A. 2C:58-4(c) (2018). Id. at 2124 n.2.
In Heller and Bruen the Supreme Court repeatedly emphasized that its
holdings were not effectuating a wholesale invalidation of state gun licensing
and permit systems. Bruen, 142 S. Ct. at 2138 n.9; id. at 2157-58 (Alito, J.,
concurring); id. at 2161-62 (Kavanaugh, J., concurring); Heller, 554 U.S. at 626-
A-2377-22 13 27. For example, the Court in Bruen expressly endorsed gun-permitting regimes
that contained narrow, objective, and definitive standards to guide officials in
determining whether applicants were "in fact, 'law-abiding, responsible
citizens,'" including specifically referencing "shall-issue" permitting regimes
that "often require applicants to undergo a background check or pass a firearms
safety course." Bruen, 142 S. Ct. at 2138 n.9 (quoting Shuttlesworth, 394 U.S.
at 151). In that regard, the Court explained:
To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the [forty-three] States' "shall-issue" licensing regimes, under which "a general desire for self-defense is sufficient to obtain a [permit]." Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent "law-abiding, responsible citizens" from exercising their Second Amendment right to public carry.
[Ibid. (second alteration in original) (citations omitted).]
The concurring opinions of Justices Alito and Kavanaugh similarly stated
that the holding in Bruen was limited. Justice Alito explained:
Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may possess. Nor have we disturbed anything that we said in Heller or
A-2377-22 14 [McDonald] about restrictions that may be imposed on the possession or carrying of guns.
[Id. at 2157 (Alito, J., concurring).]
Justice Kavanaugh, joined by Chief Justice Roberts, added:
First, the Court's decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense. In particular, the Court's decision does not affect the existing licensing regimes—known as "shall-issue" regimes—that are employed in [forty-three] States.
....
Likewise, the [six] States including New York [and New Jersey] potentially affected by today's decision may continue to require licenses for carrying handguns for self-defense so long as those States employ objective licensing requirements like those used by the [forty-three] shall-issue States.
Second, as Heller and McDonald established and the Court today again explains, the Second Amendment "is neither a regulatory straightjacket nor a regulatory blank check." Properly interpreted, the Second Amendment allows a "variety" of gun regulations.
[Id. at 2161-62 (Kavanaugh, J., concurring) (citations omitted).]
B. New Jersey's Gun Permit Scheme.
For over 100 years, New Jersey has regulated the carrying of firearms
outside the home. See Siccardi v. State, 59 N.J. 545, 553 (1971) (noting that the
A-2377-22 15 Legislature had regulated the carrying of guns "[a]s early as 1882"). Beginning
in 1905, New Jersey required private citizens seeking to carry a concealed
firearm to have a permit. See L. 1905, c. 172.
An applicant seeking a gun-carry permit must follow a two-step process.
First, the applicant must apply to either the local chief of police or the
superintendent of the State Police. N.J.S.A. 2C:58-4(c). In 2019, the
application required biographical information and the endorsement of "three
reputable persons who ha[d] known the applicant for at least three years . . . and
who . . . certif[ied] . . . that the applicant is a person of good moral character and
behavior." N.J.S.A. 2C:58-4(b) (2018).
In addition, an applicant must satisfy certain criteria. N.J.S.A. 2C:58-3
and -4. An applicant must "not [be] subject to any of the disabilities set forth in
[N.J.S.A. 2C:58-3(c)]," which consider the applicant's age, mental and physical
health, criminal history, and potential danger to public safety. N.J.S.A. 2C:58 -
4(c); see also N.J.S.A. 2C:58-3(c). The applicant must also demonstrate
"familiar[ity] with the safe handling and use of handguns," evidenced by
certified completion of a training course, submission of scores, or passage of a
test. N.J.S.A. 2C:58-4(c); see also N.J.A.C. 13:54-2.4(b) and (c). In 2019, an
A-2377-22 16 applicant also had to establish a "justifiable need to carry a handgun" based on
an "urgent necessity for self-protection." N.J.S.A. 2C:58-4(c) (2018).
Second, the chief of police or superintendent conducts a background
check, including interviews of the applicant and persons endorsing the
application. N.J.S.A. 2C:58-4(c). If the application is denied, the applicant can
request a hearing in the Superior Court. N.J.S.A. 2C:58-4(e). An applicant
dissatisfied with the decision of the Superior Court can appeal the decision "in
accordance with law and the rules governing the courts of this State." Ibid. In
2019, if the chief of police or superintendent of the State Police approved the
application, the applicant also had to submit it to the Superior Court for review.
N.J.S.A. 2C:58-4(d) (2018). If the Superior Court denied the application, the
applicant could appeal that denial. Ibid.
On June 24, 2022, the day after the decision in Bruen was issued, the New
Jersey Attorney General issued Law Enforcement Directive No. 2022-07, which
directed that New Jersey would no longer require applicants to show a justifiable
need for a gun-carry permit. The directive also instructed law enforcement
agencies to consider all other mandatory requirements for obtaining a gun-carry
permit before issuing one. Off. of the Att'y Gen., Law Enf't Directive No. 2022-
A-2377-22 17 07, Directive Clarifying Requirements for Carrying of Firearms in Public 1-2
(June 24, 2022).
Six months later, in December 2022, the Legislature passed, and the
Governor signed, a law revising the gun-permitting scheme to formally
eliminate the justifiable need requirement and to revise other requirements. See
L. 2022 c. 131. The new law did not change the requirement that a person obtain
a permit before lawfully carrying a gun in public. See id.; N.J.S.A. 2C:39-5(b).
Among other revisions, the new law provides that an applicant for a gun-carry
permit must now be endorsed by four reputable people who certify that the
applicant "has not engaged in any acts or made any statements that suggest the
applicant is likely to engage in conduct, other than lawful self-defense, that
would pose a danger to the applicant or others." L. 2022 c. 131, § 3. The new
law also requires the applicant to obtain liability insurance to carry a gun in
public. Id. §§ 3, 4.
C. Defendants' Lack of Standing.
A defendant may raise a defense that the crime charged in an indictment
or accusation "is based on a statute or regulation . . . which is unconstitutional
or invalid in whole or in part." R. 3:10-2(d). To make that challenge, however,
the defendant must have standing to raise the constitutional objection. State v.
A-2377-22 18 Saunders, 75 N.J. 200, 208-09 (1977). Accordingly, the defendant "must show
sufficient injury before his [or her challenge] will be heard." State v. Varona,
242 N.J. Super. 474, 487 (App. Div. 1990). "Th[is] rule limits a criminal
defendant to constitutional claims related to his [or her] own conduct [and] rests
on the principle that legislative acts are presumptively valid and will not be
overturned on the basis of hypothetical cases not actually before the court."
Saunders, 75 N.J. at 208-09.
Generally, to establish standing to challenge an allegedly unconstitutional
permit statute, the challenger must have applied for a permit or license under the
statute. See, e.g., United States v. DeCastro, 682 F.3d 160, 164 (2d Cir. 2012);
Westfall v. Miller, 77 F.3d 868, 872-73 (5th Cir. 1996); Kendrick v. Bruck, 586
F. Supp. 3d 300, 308 (D.N.J. 2022). Nevertheless, there is a recognized
exception to the submission requirement if the challenger can "make a
substantial showing that submitting to the government policy would [have been]
futile." Bruck, 586 F. Supp. 3d at 308 (citing Ellison v. Am. Bd. of Orthopedic
Surgery, 11 F.4th 200, 206 (3d Cir. 2021)); see also DeCastro, 682 F.3d at 164;
Jackson-Bey v. Hanslmaier, 115 F.3d 1091, 1096 (2d Cir. 1997).
Neither defendant in these appeals applied for a permit to carry a gun.
Wade's counsel submitted a certification representing that Wade had no other
A-2377-22 19 disqualifying factors and that he would have qualified to receive a permit but
for the justifiable need requirement. Stringer and his counsel did not submit a
certification concerning Stringer's qualifications for a permit.
Initially, we point out that neither Stringer nor Wade has established the
factual basis for challenging New Jersey's gun-permit statutes. Stringer has
provided no factual basis whatsoever. The certification submitted by Wade's
counsel is not based on counsel's personal knowledge; rather, it is based on
information received from his client and, therefore, is insufficient to establish
facts in dispute. See R. 1:6-6; see also DeCastro, 682 F.3d at 164 (explaining
that defendant's reliance on the "hearsay statement of an unidentified police desk
officer" was insufficient to make a substantial showing of futility).
Even if we accept the certification of Wade's counsel, it does not establish
that Wade would have qualified for a gun-carry permit excluding the justifiable
need requirement. To receive a permit, Wade would have been required to
demonstrate that he was "thoroughly familiar with the safe handling and use of
handguns." N.J.S.A. 2C:58-4(c) (2018). Moreover, he would have had to
submit certifications from "three reputable persons who ha[d] known [him] for
at least three years" and who certified that he was "a person of good moral
character and behavior." N.J.S.A. 2C:58-4(b) (2018). Nothing in the record
A-2377-22 20 establishes that Wade would have been able to comply with those requirements.
Consequently, the record does not reflect that it would have been futile for Wade
to have applied for a permit even in the absence of the justifiable need provision.
The insufficient record supporting defendants' constitutional challenge
illustrates why a motion to dismiss criminal charges is not the proper venue for
demonstrating that defendants would have been granted a gun-carry permit but
for the justifiable need requirement. If defendants had applied for gun-carry
permits, there would be a complete record of why they were not granted the
permits. In other words, we would not be left to speculate that defendants were
denied the permits because of the justifiable needs requirement.
Moreover, law-abiding citizens are not free to ignore a statute and
presume that they would have been granted a permit but for one potentially
invalid provision of a permit statute. See Borough of Collingswood v. Ringgold,
66 N.J. 350 (1975). In Ringgold, defendants challenged their municipal-court
convictions for engaging in door-to-door solicitations without a permit. Id. at
354, 364. They contended that the ordinance requiring the permit was
unconstitutional. Id. at 364. The ordinance permitted the chief of police to deny
registrations in certain circumstances but did not set forth the standard or
principle the chief should use in deciding whether to grant or deny a permit. Id.
A-2377-22 21 at 366-67. The Court held that the provision granting the chief discretion to
deny a permit was unconstitutional but concluded that the remainder of the
ordinance was valid. Id. at 367, 371. The Court then affirmed defendant's
convictions explaining that the ordinance was "not a model of clarity," but wa s
"sufficient on its face so that it could not properly be ignored with impunity by
these defendants." Id. at 364.
Defendants contend that their challenge to the facial constitutionality of
N.J.S.A. 2C:58-4 (2018) "is another basis to find that [they have] standing
despite never having applied for a permit." They rely on cases concerning the
First Amendment and argue that a person faced with a facially invalid licensing
law can disregard the law and contest its validity if they are charged with
violating it. See Shuttlesworth, 394 U.S. at 151; Staub, 355 U.S. at 319; Lovell,
303 U.S. at 452.
We reject that argument. No New Jersey decision or federal decision
addressing New Jersey's gun-permit statutes has held that a defendant has
standing to challenge the permit statutes without first having applied for a
permit. Courts from other jurisdictions have looked at First Amendment
jurisprudence in analyzing Second Amendment cases, but generally those courts
have not incorporated wholesale the application of First Amendment law to a
A-2377-22 22 Second Amendment analysis. See Ass'n of N.J. Rifle & Pistol Clubs v. Att'y
Gen. N.J., 910 F.3d 106, 122 n.28 (3d Cir. 2018) (explaining that the United
States Court of Appeals for the Third Circuit has "consulted First Amendment
jurisprudence" but has "not wholesale incorporated it into the Second
Amendment"). Indeed, "[w]hile First Amendment cases have permitted
standing for plaintiffs who have not sought permits, Second Amendment cas es
have not." Bruck, 586 F. Supp. 3d at 309 (collecting relevant cases). We
similarly decline to apply wholesale First Amendment caselaw to a Second
Amendment analysis. In short, defendants' and the trial court's reliance on First
Amendment jurisprudence to support their claim of standing was misplaced.
D. Whether the "Justifiable Need" Provision Could Be Severed.
The holding and analysis in Bruen make it clear that the justifiable need
provision in N.J.S.A. 2C:58-4(c) (2018) is unconstitutional under the Second
and Fourteenth Amendments. Indeed, the State concedes that point. Therefore,
even if defendants had standing to make a constitutional challenge, the question
becomes whether the justifiable need provision was severable.
When a provision in a statute is declared unconstitutional, the remaining
"provision[s] shall, to the extent . . . [they are] not unconstitutional . . . be
enforced and effectuated." N.J.S.A. 1:1-10. Accordingly, courts can "save an
A-2377-22 23 enactment that otherwise would be constitutionally doomed" by "sever[ing] the
offending portion" of the statute. State v. Natale, 184 N.J. 458, 485-86 (2005).
"Severability is a question of legislative intent." Affiliated Distillers Brands
Corp. v. Sills, 56 N.J. 251, 265 (1970). In that regard, the New Jersey Supreme
Court has explained:
The governing principle is whether it can be fairly concluded that the Legislature designed the statute to stand or fall as a unitary whole. In reaching this conclusion, [a court] must determine whether the objectionable feature can be excised without substantial impairment of the principal object of the statute. An entire statute will not be invalidated when one clause is found to be unconstitutional unless that clause is so intimately interconnected with the whole that it can be reasonably said that the Legislature would not have enacted the statute without the offending clause.
[Ibid. (citations omitted).]
In other words, we can sever a statutory provision "where the invalid
portion is independent and the remaining portion forms a complete act within
itself." Inganamort v. Borough of Fort Lee, 72 N.J. 412, 423 (1977). Whether
a statute contains a severability clause is not determinative. See id. at 422; State
by McLean v. Lanza, 27 N.J. 516, 527 (1958).
In 2019, when defendants were charged, New Jersey's gun-permit statutes
were not dependent on the justifiable need provision set forth in N.J.S.A. 2C:58 -
A-2377-22 24 4(c) (2018). The rest of that provision, as well as N.J.S.A. 2C:58-3 (2016),
described other criteria that were independent from, and served purposes
separate from, the justifiable need requirement. For example, in 2019, someone
seeking a permit to carry a handgun had to demonstrate that he or she was
mentally and physically capable of handling a handgun and was not a potential
danger to the public. See N.J.S.A. 2C:58-4(c) (2018); N.J.S.A. 2C:58-3(c)
(2016). An applicant also had to demonstrate that he or she had completed a
training course in the safe handling and use of handguns. N.J.A.C. 13:54-2.4(b)
and (c). Consequently, the Legislature designed the gun-permit statutes to
address several safety concerns. Accordingly, we construe the gun-permit
statutes as they existed in 2019 not to have been dependent on the justifiable
need provision.
Indeed, the Legislature made that statutory construction clear when, six
months after Bruen was issued, it amended various gun-permit statutes,
including N.J.S.A. 2C:58-4. The Legislature deleted the justifiable need
provision but left in and revised various other criteria for obtaining a permit to
carry a gun in New Jersey. In those amendments, the Legislature also revised
New Jersey's gun-permitting scheme to become a shall-issue regime. In that
regard, N.J.S.A. 2C:58-3(c), now states that a person "shall not be denied a
A-2377-22 25 permit to purchase a handgun or a firearms purchaser identification card, unless"
that person has certain disqualifying criteria.
Moreover, following Bruen, we upheld the constitutionality of the "public
health, safety or welfare," requirement for the issuance of a firearms purchaser
identification card or handgun purchase permit set forth in N.J.S.A. 2C:58 -
3(c)(5). In re M.U.'s Application for a Handgun Purchase Permit, 475 N.J.
Super. 148, 163, 193-94 (App. Div. 2023). Accordingly, we have already held
that, consistent with Heller and Bruen, New Jersey can continue to regulate who
can purchase and carry a handgun in public so long as those regulations are
consistent with the text of the Second Amendment and our Nation's historical
tradition of firearm regulation. In M.U., we construed the 2022 amendments to
the gun-permit statutes to be prospective, and not to apply retroactively. Id. at
195. Nevertheless, those amendments demonstrate that the Legislature intended
to enforce the valid provisions of the statutes regulating guns if any provision
was found to be unconstitutional.
The Supreme Court's jurisprudence on the Second Amendment makes
clear that carrying guns in public can still be regulated and subject to a permit
requirement. Consequently, at a minimum, New Jersey's gun-permit statutes
were and continue to be constitutional in requiring background checks to
A-2377-22 26 confirm that the applicant is not a convicted felon or does not have a mental
disability and to ensure that the applicant has reasonable training in the safe
handling of guns. See Bruen, 142 S. Ct. at 2138 n.9; id. at 2161-62 (Kavanaugh,
J., concurring); Heller, 554 U.S. at 626-27. In short, N.J.S.A. 2C:39-5(b)(1) was
constitutional and enforceable at the time of defendants' arrest.
IV.
In summary, we hold that defendants did not have standing to challenge
the gun permit statutes because neither defendant had applied for a handgun-
carry permit. In addition, having considered the merits of defendants'
constitutional challenge, we hold that the justifiable need requirement in
N.J.S.A. 2C:58-4(c) (2018) was severable and the remaining provisions of
N.J.S.A. 2C:58-4 (2018), as well as N.J.S.A. 2C:39-5(b)(1), were constitutional
and enforceable.
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
A-2377-22 27