Saturday, April 27, 2013


Gun Control in The Garden State:
The State Senate Sets Its Sights on Modifying New Jersey Gun Laws

By: Justin M. Smigelsky, Esq.

April 27, 2013

            In response to recent tragedies, such as the tragic shooting deaths of twenty elementary-school children in Newtown, Connecticut this past December, the New Jersey legislature has responded with a proposed package of gun-control bills that may serve as a national model for gun safety. A task force recently assembled by Governor Christie has suggested several revisions to current state gun laws, including prevention of straw purchases of illegal guns from out of state and a presumption against granting gun permits to individuals who have been involuntarily committed to mental institutions. Moreover, the New Jersey Senate plans to introduce a “centerpiece” bill which would create a new photo identification for gun buyers to assist in background checks, mandate firearms safety training to those seeking a permit, and require immediate revocation of gun permits upon involuntary mental health commitment or criminal conviction.

While some New Jerseyans applaud the efforts of the New Jersey Senate, others, including Scott Back, the Executive Director of the Association of New Jersey Rifle and Pistol Clubs, claim New Jersey does not need tougher gun-control laws. According to Bach, “New Jersey already has some of the toughest gun laws in the nation. More of the same will not stop another criminal or a madman – their only impact is on the law-abiding.”

As the result of the recent tragedies in Newtown, Connecticut and Aurora, Colorado the Second Amendment is more hotly debated than ever before. In addition, daily gun-related deaths in New Jersey, including the recent accidental shooting of a six-year-old boy in Toms River, have the effects of gun violence hitting closer to home. However, as the result of state sovereignty issues, evolving technology, differing opinion on constitutional interpretation and legal theory, and the intense passion evoked on both sides of the issue, gun control will remain at the forefront of national debate well into the 21st century.

Tension between the Federal Government and state governments has been in existence since at least 1837, when Georgia passed a law banning handguns. As the Georgian Constitution did not contain an equivalent to the Second Amendment, the Supreme Court of Georgia, in Nunn v. State of Georgia, deemed that the right provided under the U.S. Constitution left the Georgia law null and void. In striking down the 1837 Georgian law, the Nunn court asked:

Does it follow that because the people refused to delegate to the general government the power to take from them the right to keep and bear arms, that they designed to rest it in the State governments? Is this a right reserved to the States or to themselves? Is it not an inalienable right, which lies at the bottom of every free government? We do not believe that, because the people withheld this arbitrary power of disfranchisement from Congress, they ever intended to confer it on the local legislatures. This right is too dear to be confided to a republican legislature.

            Only a few other cases concerning gun control have managed to reach the U.S. Supreme Court, leading to confusion and a lack of clarity in regards to the Second Amendment. In the 2008 landmark decision of District of Columbia v. Heller, the U.S. Supreme Court held that the Second Amendment protects an individual’s right to possess a firearm for traditional lawful purposes, refuting the argument that the right only applies to members of the militia. Two years later, in McDonald v. Chicago the Court cleared up the uncertainty left in the wake of Heller, holding that the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and, therefore, applies to the states. Despite these landmark decisions, many questions have been left unanswered by the lack of judicial attention paid to the Second Amendment in approximately 225 years since its ratification. In fact, only the Third Amendment, which concerns the quartering of soldiers, has received less attention from American courts. 

While many opponents of gun control assert that the Constitution grants an absolute right to possess firearms, technological advancement has steadfastly fueled the debate. In response to an assassination attempt on FDR in 1934, Congress passed the National Firearms Act to regulate automatic weapons, which at the time were considered a modern advancement. Similarly, in 1939 the United States Supreme Court upheld a law mandating registration of shotguns because the weapons were not deemed to be ordinary arms. Modern issues created by evolving technology include whether American citizens have the “right to bear” concealed weapons, assault weapons, and even explosives. New developments in weaponry will certainly continue to stir public passion on the topic for years to come.

            The controversy surrounding the Second Amendment is further complicated by differing constitutional interpretations. Is the Constitution a “living and breathing” document, capable of adapting when necessitated by the times? Or, should the Constitution be strictly construed to honor the intent of the drafters? Regardless, as little documentation regarding the Second Amendment has survived, the intent of James Madison and the original drafters is nearly impossible to decipher. Furthermore, differing theories as to the role of law in our society also contribute to the debate. Although the American legal and political systems are oriented towards protection of the individual, the law cannot provide for the absolute protection of the individual because legitimate state interests are often controlling.


Brooks, Chad. “The Second Amendment & the Right to Bear Arms.”>.

Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis L. Rev. 309 (1998).

District of Columbia v. Heller, 554 U.S. 570 (2008).

Friedman, Matt. “N.J. Senate Democrats to Introduce 12 New Gun Control Measures.” The Star-Ledger, April 12, 2013.

Longley, Robert. “Gun Control Timeline – U.S. Government Info/Resources.”>.

Lott, John R. More Guns, Less Crime: Understanding Crime and Gun-Control Laws. Chicago: University of Chicago, 1998.

M. Ethan Katsh & William Rose. Taking Sides: Clashing Views on Controversial Issues. Dushkin/McGraw-Hill (9th Ed. 2000).

McDonald v. Chicago, 561 U.S. 3025 (2010).

Murphy, Jenna. ”Second Amendment: Why Is There Controversy Surrounding Gun Control?” April 15, 2013. (On file with the author)

“N.J. Governor Proposes Measures to Curb Gun Violence.” USA Today, April 19, 2013.

Nunn v. State of Georgia, 1 Kelly 243 (Ga. 1846).

Links of Interest:


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