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Culture-war-related court opinion:
NB (♂) and LB (♀) are in the process of divorcing. LB obtains a restraining order against NB, claiming that NB (1) has been harassing LB both in person and via text, (2) owns a gun, and (3) "has made vague statements that LB believes are suicidal".
In this state, a domestic-violence restraining order requires the officer to seize the defendant's (1) guns and (2) permit to buy guns. After being made aware of the restraining order's existence, NB goes to the police station, where an officer asks him about the gun. However, NB cannot remember where he left the gun! At first he says he left it at his cousin's house (intentionally, to prevent his anger issues from leading to violence during the divorce process). Then he says it's in a storage unit. And finally he remembers that, though he originally left it with his cousin, the cousin later gave it to NB's sister and informed NB of the further transfer. He retrieves the gun from his sister's house and gives it to the police.
The trial judge credits NB's claim that this was just a failure of memory in a stressful situation, rather than an intentional series of lies. However, the trial judge also finds that "when possessing a firearm one must have it guarded, protected, and secured where you can control that possession, and clearly that wasn't the case for a period of time", so NB lacks the "essential character of temperament necessary to be entrusted with a firearm", "it is not in the interest of public health, safety, or welfare" for NB to possess guns, his gun is forfeited to the government, and his permit to purchase guns is permanently revoked. The appeals panel affirms.
I seem to be missing something here.
We have licenses and background checks and rules about strawpurchases because the idea is to control who has firearms. If someone buys a gun and then gives it to their cousin none of that makes sense.
I don't see any reason to be mad about this specifically unless you are already mad about our current gun regulations existing.
Buying a gun for another person is illegal only if the other person (1) is ineligible to buy a gun on his own, (2) intends to use the gun in a felony, or (3) intends to give it to a third person who meets criterion 1 or 2. NB did nothing illegal here.
New Jersey requires that everyone that is transferred a firearm has a firearms purchaser identification card and a record of the transaction (N.J.S.2C:58-3). There are temporary exemptions while out hunting and at a firing range and all of them require the person with the firearm is in your immediate vicinity.
Your claim that they did nothing illegal is completely unfounded.
The cousin was in Pennsylvania, not in New Jersey.
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Yeah, but you are also supposed to keep your gun(s) securely. "I gave it to my cousin to keep it safe" is one thing. "Where it is right now I have no idea" is another. In the midst of this maybe my cousin-maybe in storage-maybe my sister, what if the gun went missing? What if it turns up in the possession of criminals who use it to do crime?
Guns are not just harmless collectible objects like funkopops, they are for shooting. If you own something dangerous (be that a gun or a dog) you are supposed to be a responsible owner keeping other people safe by keeping control of what you own. "Man, I get so mad I might shoot my wife so I handed it off to someone else" is not, I submit, the same level as "I have this gun for personal safety/home defence/I like going to the range and shooting guns". Cops and judges want to take the gun away in the second case, protest it and I won't object. Cops and judges think maybe you're not the greatest guy to have guns around in the first case? That's not persecution.
If you gave it to your cousin, you don't know where it is, or at least, you sufficiently don't know where it is that you'd better say under oath "I don't know where it is". Your standard implies that it's not possible to give a gun to someone else temporarily at all.
I don't mean to be saying that. There will of course be situations where you need someone else to hold the gun for you. But the difference is "This one person definitely has it and definitely it is secure" and not "well it could be anywhere".
"Well it could be anywhere" is not going to play well if some twelve year old gets their hands on it and shoots their friend while showing it off. "Yeah I was so careless that I got a kid killed, but that does not mean I should not be able to have as many guns as I want, that's my Constitutional right!"
Yeah, it's your Constitutional right. You are also an idiot, and it's dangerous to let idiots have guns, Constitution or no.
If you give someone an object, they are now in control over its location and you are not. That's how giving people things works.
A standard which says that you must control its location implies that you can never give it to anyone.
The requirement is not limited to knowing that the gun is secure. It has to be "secured where you can control that possession" which does not allow it to be secured by someone else. Even if his cousin puts it in a gun safe, the judge can just say "You do not control that gun safe. Sorry, you are now permanently prohibited from owning guns".
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I agree that safe storage is part of being a responsible gun owner. But it is very much not mandated by US law; the particular transaction might have been illegal, but it's not an inherent fact.
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Yeah, maybe I'm just a female supremacist, but I think if you are telling the cops "I had to hand my gun to my cousin in case I got so angry during the break-up that I'd shoot my wife" then the restraining order might indeed be justified.
Also "Uh, where is the gun? Well I'm not sure - I think I gave it to my cousin? Or it might be in storage? Oh wait, hang on, now I remember - my sister has it!" is not the most convincing thing ever. Again, I think the judge saying "If you have a gun, you have to know where it is and who has it" is reasonable, and taking away his gun ownership is not the most wicked imposition of authoritarianism ever.
Let him work on his anger and memory issues and then come back and argue he should be able to own guns.
Yeah, I broadly agree- this guy clearly shouldn't be owning guns, even if the specific laws involved might not be reasonable.
Now, there is nowhere in the US that has specific safe storage laws, although everywhere criminalizes leaving guns where kids can get at them. Gunsafes are seen as a sign of responsible gun ownership.
It does need to be said, though, that the government ought to compensate him for his property. Even if it was seized for good reason(as it seems to have been), it was still seized.
If you think he shouldn't be owning guns, make a law which says that he shouldn't own guns. Don't twist another law that really isn't supposed to be used for that, because twisting other laws sets precedents that get applied to other people.
The law in New Jersey did say that he can't own a gun.
The statute says that courts can pull guns after a GVRO (or police refuse to issue a purchase permit) for any perceived deficiency of temperament or character, on a bare preponderance of evidence.
The statute no more says you can or can’t possess a gun after this behavior than it does for a speeding ticket, expired car registration, or purely legal behavior like leaving a toilet set up. Leaving aside compliance with Heller, since that’s a sad joke, where’s the fair notice?
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Oh New Jersey. Nybbler's pager must be going off.
But NJ is not alone. Most gun-unfriendly states have similar provisions in their Order of Protection laws, prohibiting firearms for at least the duration of the OP, and the OP often can be extended indefinitely based on various factors. And I doubt any federal judges have the stomach to reverse any of these because domestic violence is, frankly, incredibly common, and commonly deadly. The fastest way one loses their judicial career is denying a motion in a DV case and have the offender then kill the victim the next time around.
Perhaps that should be extended to judges who let violent criminals out on no cash bail.
One would hope, but only the domestics really activate all the right elements most of the time.
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Gives a whole new meaning to the old “surely OP will deliver” skeleton meme
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Yeah, that sounds about standard for New Jersey, and why The_Nybbler's so direct to say that they've made the Second Amendment a nullity: "When dealing with guns, the citizen acts at his peril." Also a large point to why GVRO/Red Flag laws are given such skepticism. It's not hard to see this as what their advocates want, where the standard of proof to remove someone's rights is nearly nil, and they must jump high and arbitrary hurdles to get those rights back. And, of course, none of the takings clause people are going to come climbing out of the woodwork for this stuff.
But no serious org is going try to take this sorta case -- both because of its optics, and also just because he didn't cross every i and dot every t to preserve issues and present evidence perfectly -- and neither would the New Jersey State Supreme Court nor SCOTUS take it up if they did. Nobody that isn't already pro-gun is going to be appalled that they've read Rahimi to cordon Heller to a nullity, even a lot of self-described libertarians. And it shows how badly calibrated anyone must be to expect a 'bank shot' SCOTUS case that rules against its specific person while protecting the class of rights that person was trying to appeal toward.
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