Politics & Policy

New Jersey Flouts the Second Amendment — Congress Should Intervene


Lieutenant Colonel Terry S. Russell is no stranger to firearms. During his 27 years as a soldier, Russell has “been fully trained and qualified, at a minimum annually, to skillfully employ handguns and rifles.” Now, he is stationed at New Jersey’s Picatinny Arsenal, where he serves as the “Product Manager for the Army’s Individual Weapons and Small Arms program.” This, by all accounts, is a senior role. Picatinny is not merely one installation of many but the national headquarters of the United States Army Armament Research, Development and Engineering Center; and Lieutenant Colonel Russell oversees not only the weapons on his own base but all “small arms” for the U.S. Department of Defense. There are few people in the United States of America who know more about guns.

And yet the state of New Jersey will not give Russell a concealed-carry permit.

Almost exactly a year ago, Lieutenant Colonel Russell applied for a license so that he might carry a handgun when driving from his base at Picatinny to his home in Oceanport, N.J. In support of his request, Russell explained that “service members, including family members, have been specifically targeted by radical extremist” groups; that the U.S. military has “verified” that “ISIS has placed a significant emphasis to actively identify US military personnel”; and that Picatinny itself had been evacuated recently “due to the discovery of a dry run attempt to drive a Vehicle Borne Improved Explosive Device onto Post.” In addition, Russell noted that he has been “vetted through the Department of Defense security office every five years for the past 25 years”; that he has a “Top Secret (TS) Sensitive Compartmented Information (SCI) clearance”; and that he is already in possession of a “Texas concealed handgun license.”

And the powers that be just shrugged.

Responding to the application, Oceanport’s chief of police, Daniel W. Barcus, contended that Russell had failed to demonstrate “justifiable need”: “There are no specific threats or previous attacks on you,” Barcus wrote, and neither is there any “special danger to your life that cannot be avoided by means other than by issuance of a permit to carry a handgun.” The answer to the question was “no.”

RELATED: The Deadly Consequences of Draconian Gun Laws

Leaving aside the thoroughly risible idea that one should be able to exercise one’s right to self-defense only if one has already survived an attack — and ignoring for a moment how unacceptable it is to require free men and women to give a “good reason” before they may enjoy their constitutional rights — one is left wondering here who exactly would qualify under these conditions? If New Jersey does not consider high-target military-arms experts to be eligible, whom precisely will it accept? There is no plausible manner in which Lieutenant Colonel Russell represents a security threat to the public, and it is arrogance of the highest order for the Oceanport police department to so casually dismiss the danger that American servicemen face on domestic soil. Given the state’s overt and routine hostility toward the Second Amendment, one could be forgiven for thinking that New Jersey has effectively instituted a concealed-carry regime that is impossible for anybody to navigate, and that it has done so quite deliberately to boot.

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That, certainly, is the charge that Lieutenant Colonel Russell’s attorney made in the course of his appeal. Arguing that the state has implemented an egregiously “narrow interpretation of the ‘justifiable need’ requirement,” Evan F. Nappen charged that the way in which concealed-carry licensing works in New Jersey is unconstitutional. “A denial of this license,” Nappen proposed, “would be a violation of Lt. Col. Russell’s Second Amendment rights under Heller and McDonald, which not only guarantee his fundamental right to bear arms, but his right to self-defense.” As regards the specific justification that police chief Barcus proffered, Nappen explained that “the higher the rank, the more of a target a soldier is,” and noted for the record that, absent certain security clearances, Russell was unable to divulge the specific threats that the state had rendered prerequisite.

In its brief, the state remained wholly unmoved. “Although there may have been threats received at the Picatinny Arsenal,” Monmouth County prosecutor Christopher J. Gramiccioni wrote, “none of these threats appear to specifically relate to this applicant — he is in no different position than any other person who is assigned to that facility.” Two weeks ago, the judge in the case concurred, writing that “there is no justifiable need to issue the Petitioner a permit to carry” and confirming that “Petitioner’s application for a Permit to Carry a Handgun is DENIED.”

#share#For the sake of argument, let us presume that a) the current interpretation of New Jersey’s state law is reasonable and b) under that interpretation, Lieutenant Colonel Russell’s permit application can legally be denied. In such circumstances, wouldn’t the appropriate next question be, “Then must we not call the law an ass?” Or, put another way: If New Jersey’s legislative status quo is so wholly absurd as to deliver valid outcomes such as these, doesn’t it need changing?

Suppose that, tomorrow afternoon, Lt. Colonel Russell receives exactly the sort of explicit, well-tailored threat that the State of New Jersey evidently requires. Is he supposed to be comforted by that? Even in gun-friendly states, the concealed-carry permitting process can take anywhere from three weeks to six months to complete. What, pray, should he do in the meantime? Just wait it out and hope for the best? Such a course did not work out well for Carol Bowne, a resident of New Jersey who was murdered last year while waiting for the local police department to stop dragging its feet. Or should he make a choice that nobody at liberty should have to make, and put his unalienable right to self-defense above his fealty to the law?

NR EXPLAINER: Of Course the Second Amendment Protects an Individual Right to Keep and Bear Arms

I rarely endorse federal responses to state inefficiencies, but in this case the time seems ripe for some careful intervention. Whatever the state of New Jersey might like to believe, the Second Amendment represents neither a quotidian policy preference nor the transient desire of a temporary majority but an integral and compulsory part of the American constitutional order. If, like New Jersey, some parts of this country refuse to abide by the rules — and if the judges who are supposed to provide relief refuse to do so — there is a role for Congress in plugging the gaps.

#related#How vehement that role should be is a matter of taste. Should it so wish, Congress could limit its interference to the case at hand, by, say, amending the 2004 Law Enforcement Officers Safety Act so that it covers certain military personnel as well as “qualified law enforcement officers” and “qualified retired law enforcement officers.” Alternatively — preferably, perhaps — Congress could make it clear that even selective acquiescence to the precepts within the Bill of Rights will not be tolerated, and it could use the powers granted by the 14th Amendment to protect residents of states whose governments deny them their basic constitutional liberties. As Adam Winkler has observed, “the men behind the Fourteenth Amendment — America’s most sacred and significant civil-rights law — clearly believed that the right of individuals to have guns for self-defense was an essential element of citizenship.” That “sacred” law still obtains. There is no good reason that, as the University of Tennessee’s Glenn Harlan Reynolds has proposed, Congress should refrain from setting a limit on the severity of the punishments that states may dish out to those who violate constitutionally illegitimate laws.

For now, though, the game is one primarily of publicity. Zealous as New Jersey’s authorities may be in their fight against the Second Amendment, the state’s leading lights have a tendency to crumble under pressure. It was sunlight that helped to free Shaneen Allen, notoriety that released Gordon Gilder, and noise that pardoned Steffon-Josey Davis. Were Lieutenant Colonel Russell to become a household name, too, some crucial mechanisms might start to crank slowly into place . . . 


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