N.J. Attorney General Acknowledges N.J. Must Now Go "Shall-Issue" on Concealed Carry Permits

AG's Enforcement Directive No. 22-07, issued Friday, makes clear that (effective immediately) applicants no longer need to submit a "written certification of justifiable need to carry a handgun." As with California, it appears that no further legislative change is required for New Jersey's may-issue system to switch to, effectively, shall-issue.

The law still continues to require, though, that the applicant "be endorsed by three reputable persons who have known the applicant for at least three years preceding the date of application, and who shall also certify thereon that the applicant is a person of good moral character and behavior." As I mentioned in my post about the California AG's letter, it's not clear to me that such a character-reference requirement is a permissible condition for exercising what the Court has said is a constitutional right. The Court has made clear that objective disqualifications for things such as felony conviction or mental illness are constitutionally permissible, but requiring character references as to "good moral character and behavior" strikes me as much harder to justify.

I understand why people might think that someone who can't round up even three people who can speak highly of him is likely to be an odd duck. (Note that the people needn't be New Jersey residents, so this shouldn't be a huge burden even to people who have just moved to New Jersey.) Still, it seems to me that a constitutional right can't be a right at the sufferance of one's friends or acquaintances.

Comments

[Bored Lawyer]

Can Moe, Larry and Curly endorse?

I mean, if the dead can vote, they can certainly endorse someone's good moral character and behavior.

[Frank Drackman]

I'd say "Yes" but draw the line at Shemp, and even more so with "Curley Joe"

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

But "Larry, Moe, and Curly Joe" rhymes and scans so nicely!

[Caphon]

Curly Joe from Idaho?? The ramblin' gamblin' rover? I heard his dealin' was over.

[WuzYoungOnceToo]

The Cohen Bros. version is better.

He was never any fun
Now his grumpy race is run
Kisser blown to kingdom come
Oh, Surly Joe

[PeteRR]

There is no time limit for issuing permits and no teeth if they delay indefinitely.

[Mr. Bumble]

...and you ca n be sure NJ, CA and other states will throw up every roadblock they can to avoid issuing a permit..

[Mr. Bumble]

See Whitaker V District of Columbia

https://www.scotusblog.com/2022/06/another-gun-case-waits-in-the-wings/

[Nisiiko]

Thomas' footnote made very clear that unreasonable delays give rise to challenges.

[Mr. Bumble]

Of course. So your are now force to institute a suit, bear the cost and face an indefinite wait as the wheels of justice creep forward.

[Mr. Bumble]

"you're"

edit button please

[Nisiiko]

The first few people, yes. But my guess is at some point there will be clear guidance as to how long jurisdictions have.

[Mr. Bumble]

Just like after Heller?

You are the eternal optimist.

[Nisiiko]

Big difference. The court was a little different in 2008 than it is today. I don't see Thomas, Alito, Gorsuch, and Barrett tolerating this for long, and I can see Kavanagh swinging over to their side. Roberts is a lost cause.

[Mr. Bumble]

Nothing goes directly to the SC.

[BadLib]

The Santa Clara County Sheriff's CCW page states:

The Santa Clara County Sheriff's Office is currently accepting and processing CCW applications. However, due to the extremely large number of applications we received during the federal case Peruta v. San Diego, we have a tremendous backlog. At this time, we are not able to provide status updates on individual applications. Please be patient as we work our way through the backlog.

Peruta was over when the Supreme Court denied cert on June 26, 2017 and let the 9th en banc ruling that "there is no Second Amendment right for members of the general public to carry concealed firearms in public" stand. That was exactly 5 years ago. Since, ultimately, the court ruled against Peruta, I would assume that the vast majority of those CCW permit requests came in well before denial of cert since after that there would have no longer been a heightened interest in applying (and the more traditional approach of insuring permit issuance by making a $10,000 contribution to Laurie Smith's campaign fund was, IIRC, still active).

So it seems likely a lot of patience will now be required with the inevitable tsunami of new applications after Bruen which will surely make the Puruta application flow look like a clogged low flow bathroom faucet. Although perhaps the pile of paper will get so big that the Sheriff might actually hire a "Kelly Girl" for a day or two to process the applications and stamp a big red "Denied" on each one.

[Mr. Bumble]

...and who will vouch for the character references? NJ is attempting to preempt any challenge to the character reference requirement. I'm sure the claim will be "we changed to shall issue, but the gun nuts don't like the rules"

[Mr. Bumble]

I understand why people might think that someone who can't round up even three people who can speak highly of him is likely to be an odd duck. (Note that the people needn't be New Jersey residents, so this shouldn't be a huge burden even to people who have just moved to New Jersey.)

Sure Candide, listen to Dr. Pangloss.

Exactly what is the criteria for a "character reference"?

[Frank Drackman]

State Medical Boards used to have this "reference" requirement, needing 3 already Licensed Physicians to testify to your "Character, Competence, Etc)
Sort of tough if you were doing your residency in a different state from your Med School, and some Programs didn't want you to get licensed right away, because then you could "Moonlight" (The Horror! Medical Residents getting paid Market Rates for their Services)
So we'd just get 2d, 3rd, or 4th year Residents to sign, just like they did when they were gettting licensed, maybe even buy them a Beer and a Lap Dance.

Frank M.D. (Mentally Deranged)

[great Unknown]

Three Orthodox Rabbis come in as character witnesses and testify that the applicant's good moral character and behavior is demonstrated by a) being anti-abortion on demand b) being anti-SSM and c) voting straight Republican.

Any guesses as to how that would go over?

[Frank Drackman]

Do we certify Crabs?? We certify anybody!!!!!!!!!!!
My first CCW required an "Interview" with the County Sherriff (Holdover from Reconstruction, so the Sherriff could see if you were a "Willie" or a "Willleeeeeeeeeee")
Sherriff was on Vacation, so was his Deputy, got a cursory one-over from whoever was running the booking desk (did have to get fingerprinted)
Funny, they were able to run my prints in a few minutes (in 1985!) almost like there's a Federal Fingerprint Database or something,
Still have that gun, S&W Model 28 "Highway Patrolman" .357 mag, little too big for concealed carry, so I'd have it in my backpack (got called some names in 1985) also had a Raven 25 auto (permit didn't specify what you could carry)

Frank

[great Unknown]

Note that one the "r"s in carry must be a gun, and Professor Volokh is concealing it.

[great Unknown]

for those who didn't see the original "cary", it's been corrected.

[dwb68]

Footnote 9: The standard needs to be objective, narrow, and definite. It cannot leave discretion to law enforcement.

Under this standard references are likely constitutional if all references are treated the same. That includes a standard script of questions pertinent to the carry of guns ( "does applicant have a propensity towards violence").

In Maryland, references are something called, sometimes not. The questions vary and are often irrelevant.

[Mr. Bumble]

In Maryland, references are something called, sometimes not. The questions vary and are often irrelevant.

That doesn't seem "objective, narrow, and definite. It cannot leave discretion to law enforcement."

[dwb68]

Correct. I suspect it's the same elsewhere: references are not treated equally.

If there is even one applicant where references were not called, nobody's references can be called.

[QuantumBoxCat]

To summarize: The historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation. Under the common law, individuals could not carry deadly weapons in a manner likely to terrorize others. Similarly, although surety statutes did not directly restrict public carry, they did provide financial incentives for responsible arms carrying. Finally, States could lawfully eliminate one kind of public carry—concealed carry—so long as they left open the option to carry openly.

A blue state should prohibit concealed carry altogether, but allow open carry. Then, everyone who carries a weapon must do so openly. Additionally, the state should criminalize "carrying deadly weapons in a manner likely to terrorize others." The statute should give a broad meaning to the type of carrying that is "likely to terrorize others." Since every carry has to be open, everyone that openly carries risks criminal liability. They can accept the risk and openly carry, or leave their gun at home. Also, the law should include a severability clause that requires any court to excise only the unconstitutional portions.

But what about pre-enforcement challenges!? Instead of a criminal law, enact a civil law that permits anyone to sue a person who carries a deadly weapon in a manner likely to terrorize others. Make sure that the law favors the person suing with awards and attorney fees, while wrapping the defendant up in civil litigation as they argue their conduct is protected by the Second Amendment.

Law Review article in the making!

[CindyF]

New Jersey will turn into the "wild wild West" with blood in the streets. People will shoot each other over parking spaces. For everyone knows that no one in New Jersey has any self control.

[Commenter_XY]

Oh please. I live in the People's Republic of NJ. It ain't the Wild Wild West by any stretch of the imagination.

[DonP]

You really need a sarcasm emoji for that. Sooo, pretty much all the same recycled bilge water quality claims that came as 50 states passed Concealed Carry? Nine years in Illinois and we're still waiting for the promised bloodbath from the 300,000 lawful concealed carry permit holders. No shortage of shootings in Chicago on any given weekend, but none of them ever seem to have carry permits.

[Mr. Bumble]

Hope that was sarcasm. Dem controlled cities are already "wild, wild West" except the good guys can' posses guns to defend themselves.

How about "wild. wild Mid-West, like Chicago?

[John F. Carr]

New Jersey lawyers: Is the Attorney General's supervisory power over criminal justice as broad as he claims, so that he can issue a binding order on gun permit processing by a memo instead of by notice and comment regulation, or not at all?

[SKofNJ]

Yes. He is recognized as the state's chief law enforcement officer with the authority to issue directives that bind all law enforcement officers in the state.

[SKofNJ]

As one example among many, in Paff v. Ocean County Prosecutor's Office, 235 N.J. 1 (2018), the New Jersey Supreme Court began its analysis of the issue before that by "[r]ecognizing the Attorney General's role as New Jersey's chief law enforcement officer, with the authority to adopt guidelines, directives, and policies that bind police departments statewide." Id. at 19.

[Scribe]

Yes. He can also "supersede" local (county) prosecutors in prosecuting (or not) any case, for any reason he chooses. And county prosecutors are not elected D.A.s like in many states, but rather are appointed by the governor with the advice and consent of the state Senate.
The structure of NJ state government is very, very top-down, centralized, one might say corporatist-authoritarian. The governor can re-arrange the executive branch at whim. The chief justice can assign or reassign judges at whim (rule incorrectly, and you'll be over in landlord-tenant for a long time...). The legislature is mostly a Greek chorus of cheerleaders.

[ReaderY]

Professor Volokh,

You’ve given a meaning to the term “law-abiding.” What meaning would you give the term “responsible” in Kavanaugh’s concurrence? Is it just ignorable surplusage because inconsistent with your existing views? Is the whole opinion ignorable? Or are you attempting to give the words in the opinion a meaning?

It seems to me “good moral character” is at least an arguably reasonable interpretation of “responsible.”

[SKofNJ]

Professor Volokh,
I was also wondering what to make of the term "responsible." Does it mean something more than someone without mental disabilities? If it was just meant to preclude persons with mental-health problems from acquiring guns, that could certainly have been stated directly. I believe this vague term will be the basis for rulings by courts that are hostile to the Second Amendment, such as the courts of NJ, that the question of character or a propensity towards violence are still useable criteria for assessing an application to either possess or carry a firearm. Perhaps that is why the NJ Attorney General is still requiring applicants to submit references.

[Caphon]

Think "credit check".

[Caphon]

On a more serious note, perhaps the language from Connecticut is illustrative. Their issuance law refers to "suitability", and their office of Legislative Research has said this:

"suitability “is not defined by the law so that its application can be determined as mere matter of eye-sight, but it is left necessarily to be determined solely by the judgment of the commissioners based upon inquiry and information. And that the particular manner of exercising such judgment cannot be controlled by any court is too obvious to require the citation of any authorities.

The word “suitable” as descriptive of an applicant for license under the statute, is insusceptible of any legal definition that wholly excludes the personal views of the tribunal authorized to determine the suitability of the applicant. A person is “suitable” who by reason of his character – his reputation in the community, his previous conduct as a licensee – is shown to be suited or adapted to the orderly conduct of [an activity] which the law regards as so dangerous to public welfare that its transaction by any other than a carefully selected person duly licensed is made a criminal offense. It is patent that the adaptability of any person to such [an activity] depends upon facts and circumstances that may be indicated but cannot be fully defined by law, whose probative force will differ in different cases, and must in each case depend largely upon the sound judgment of the selecting tribunal....
“personal views of the agency members are necessarily a factor in the decision, and similar facts and circumstances will have varying probative force in different cases,” but the facts found by the board should provide a logical inference that the person poses some danger to the public if allowed to carry a weapon outside the home or business."

Fills you with infinite confidence, right?
Hat tip to BearingArms.com for its examination of this: https://bearingarms.com/camedwards/2022/06/26/bruen-deep-dive-is-suitability-the-new-good-cause-n59743

[ReaderY]

Let me ask this question. Kavanaugh’s concurrence was joined b yChoef Justice Toberts and hence is the opinion of 2 justices. The 3 dissenters wanted even greater restrictions on gun licences.

This, I think, makes the Kavanaugh opinion the controlling one on this issue as the narrowest one affirming the judgment, and the one lower courts are bound to follow. It is the opinion of 5 justices that the states can require gun licensees to be not just “law-abiding” but also “responsible.”

Do you disagree that this makes the option nipn the controlling autjority on the subject?

So I think it can’t be ignored.

[mulch]

Roberts and Kavanaugh both joined in the majority opinion, so that's no longer the case.

https://www.scotusblog.com/2013/08/on-a-splintered-court-who-rules/

[ReaderY]

But the majority opinion doesn’t contradict this point. It merely says that a state can’t require a special need to possess a permit. Saying it can deny a permit to people who aren’t “law-abiding” “responsible” “citizens” doesn’t actually contradict the majority opinion.

And there are at least 5 Justices in favor.

[Michael P]

Such a vague scheme would violate the six-vote majority opinion: "The standard needs to be objective, narrow, and definite. It cannot leave discretion to law enforcement."

[Brett Bellmore]

It seems to me that Thomas' majority opinion was signed on to by six of the Justices, so anything in that majority opinion is definitive.

Now, if you'd had a fractured majority that didn't command a majority, but had these justices concurring in part, and those justices concurring in part, that would narrow things.

But essentially what happened, as I read it, is that they all signed the majority opinion, and then some of them used concurrences to add personal dicta.

[ReaderY]

Perhaps. But if Mississipi can flatly comtradict existing precedent on a mere gamble a majority of the newly composed court would agree, New Jersey would seem well within its rights to construct its program around actual dicta that a majority of the Justices have indicated they will support.

Why isn’t what’s sauce for Mississippi sauce for New Jersey?

[Krayt]

This is an improvement, but really this shouod be a direct change by the legislature. That it hid in plain sight, and could be changed on the whim of one man doesn't sound very democratic.

We love democracy. Until we don't.

[ReaderY]

One of the things I notice is the tendency of conservatives over to approve of Red states stretching the Court’s abortion cases to try to interpret them as supporting abortion restrictions, but then vehemently objecting when Blue states stretch the Court’s 2nd Amendment precedents to try to interpret them as supporting gun restrictions.

Why shouldn’t what’s sauce for the goose be sauce for the gander? Blue states here aren’t trying to stretch Heller and progeny any further than Red states tried to stretch Roe and Casey. If we accept that this kind of stretch is a legitimate tactic when we really disagree with the court and wish the precedents we have to work with would just go away, why shouldn’t it be just as legitimate a tactic when others didagree with precedents (and widh they would just go away) that we happen to agree with?

Why should waht’s basically the same tactic be legitimate just because we happen to agree with the result it’s seeking, and somehow illegetimate just because we happen to disagree?

[ReaderY]

After all, the Court really DID overrule Roe and Casey and the whole thing really DID go away.

Why isn’t it open to California and New Jersey to hope that the same thing will happen to Heller the minute there’s a 5-4 liberal majority, and to use the same tactics, getting as many restrictions through as possible, in the meanwhile? Just as red states did with abortion?

[reasonable]

I think a good benchmark would be to compare the time, effort, expense and pass rate for a concealed carry permit to that of a driver's license. If you can't do at least as good as the DMV, you're not trying.