Sunday, September 22, 2013

Burden of Proof is On Government in Concealed Carry Case

This Fall, the New Jersey Supreme Court will hear "a very important if not the most important case yet on the Second Amendment and New Jersey gun laws." 

So said Evan Nappen, the lawyer representing a Monmouth County man challenging NJ's strict 89-year-old concealed carry law. That 1924 law "says people must show 'justifiable need' if they want permits to carry handguns."

The law is extremely strict. Nappen's client, businessman Richard Pantano, must routinely carry large bundles of cash, and he claims to need a gun to protect himself and his property. Yet, the courts have refused to grant him a carry permit, because (believe it or not) "he had never been assaulted and hadn't proved a 'justifiable need' to carry a gun."

Gun-rights supporters say ordinary citizens almost never get permits to carry handguns because the law is one of the most restrictive in the country and state judges rarely find that applicants need to be armed.

New Jersey Courts have held that gun rights only pertain to the home. Pantano and others are suing on Second Amendment grounds, arguing that gun rights extend beyond the home. Federal courts are "unsure," saying that "It remains unsettled whether the individual right to bear arms for the purpose of self-defense extends beyond the home."

It is absurd to say that the right of self-defense ends at the individual's door. But that is exactly what NJ law assumes, unless some judge says otherwise.

But rights are not subject to a judge's whims. Rights, including the right of self-defense—the underlying justification for the right to bear arms— are inalienable. 

I have argued that the state should have the power to deny gun ownership to certain people, such as those with a violent criminal history or who are mentally ill. But the burden of proof is properly on the state to show why someone may not carry a gun. For stable, law abiding adults of sound mind, the state has no business demanding that they go hat-in-hand, begging for permission to own or carry a gun. 

The NJ case is likely heading for the US Supreme Court, since it is believed virtually certain that the NJ Supreme Court will reject Pantano's challenge to state law. Let's hope that the high court affirms the Second Amendment right to own and carry a gun for the purpose of self-defense, wherever the individual happens to be.

Related Reading:

Gun Control Should Focus On Principles, Not Guns

What Does it Mean to Say that Government is the Individual's "Agent of Self-Defense?"

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