301 A.3d 393
N.J. Super. Ct. App. Div.2023Background
- On May 4, 2019 police stopped a vehicle in New Brunswick, searched it, and found two loaded handguns; neither Wade nor Stringer had a permit to carry.
- Both were indicted for second-degree unlawful possession of a handgun without a permit (N.J.S.A. 2C:39-5(b)(1)); additional charge for hollow-point bullets.
- After the U.S. Supreme Court decided Bruen (2022), defendants moved to dismiss, arguing New Jersey's then-justifiable-need permit requirement (N.J.S.A. 2C:58-4(c) (2018)) was facially unconstitutional, making the possession offense unenforceable.
- The trial court granted dismissal; the State appealed and the Appellate Division stayed the dismissal and heard the consolidated appeals.
- The Appellate Division held defendants lacked standing because neither applied for a permit, but on the merits found the justifiable-need clause unconstitutional yet severable; the remainder of the permitting statute and N.J.S.A. 2C:39-5(b)(1) remained enforceable; reversal and remand followed.
Issues
| Issue | State's Argument | Defendants' Argument | Held |
|---|---|---|---|
| Standing to challenge permit law without applying for a permit | Defendants lack standing because they never applied; dismissal improper | Defendants may facially challenge and need not apply because requirement made application futile | No standing: neither applied and record insufficient to show futility; trial court erred |
| Validity of justifiable-need requirement under Bruen | Concedes justifiable-need is unconstitutional under Bruen but contends statute is severable | Argues the unconstitutional provision invalidates the permitting scheme and bars prosecutions | Justifiable-need provision unconstitutional under Bruen, but concession accepted on that point |
| Severability of the justifiable-need clause | Statute's other requirements are independent and severable; permitting and possession provisions remain enforceable | The unconstitutional clause so permeated the scheme that the whole permitting regime is invalid | Severable: remaining provisions form a complete, constitutionally permissible shall-issue framework; possession statute enforceable |
| Futility exception to application requirement | Futility not shown on record; defendants failed to prove they would have qualified absent justifiable-need | Defendants assert showing justifiable need was virtually impossible, so applying would be futile | Futility not established (insufficient factual proof); exception not satisfied |
Key Cases Cited
- New York State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (U.S. 2022) (adopted historical-tradition test and struck licensing regimes requiring special need)
- District of Columbia v. Heller, 554 U.S. 570 (U.S. 2008) (recognized individual right to possess handguns in the home)
- McDonald v. City of Chicago, 561 U.S. 742 (U.S. 2010) (applied Second Amendment to the states)
- Shuttlesworth v. City of Birmingham, 394 U.S. 147 (U.S. 1969) (First Amendment standing for facial challenges to licensing laws)
- Borough of Collingswood v. Ringgold, 66 N.J. 350 (N.J. 1975) (invalidated vague denial discretion but upheld ordinance as sufficient on its face)
- State v. Natale, 184 N.J. 458 (N.J. 2005) (severability analysis for statutes)
- In re M.U.'s Application for a Handgun Purchase Permit, 475 N.J. Super. 148 (App. Div. 2023) (construed post-Bruen amendments and upheld certain public-safety qualifications)