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Heller was not Just an “in the home” case. It applied to 2C:58-4 Permits as well.

March 12, 2018 4:32 PM | Anonymous member

There were three complaints in Heller, one of which dealt exclusively with carrying handguns in Public. 

An investigatory reading of Heller reveals the ruling in Heller was not “in the home” or outside the home viz., in public. True enough, SCOTUS held that "the District's ban on handgun possession in the home” (and the District’s) “prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense … violates the Second Amendment” [Heller at 2821-2822. Inside the parenthesis and emphasis by Factor.]

However, the actual ruling in Heller also contained the phrasing that:

(a)ssuming (Dick Anthony) Heller was “not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home. [Heller at 2822. Inside the parenthesis and emphasis by Factor.]

The lower Courts fail to recognize that SCOTUS recognized the carrying of handguns in public 94 years before Heller [See Patsone v. Pennsylvania, 232 US 138 - Supreme Court 1914. Second to last sentence at 143 (The prohibition does not extend to ((t)he possession of) weapons such as pistols that may be supposed to be needed occasionally for self-defence.)] and focus on the last three words “in the home.”

The lower Courts start with an incomplete reading of the Heller decision nearsightedly holding only that,

the Second Amendment creates individual rights, one of which is keeping operable handguns at home for self-defense. [US v. Skoien, 614 F. 3d 638 - Court of Appeals, 7th Circuit 2010. SYKES, Circuit Judge Sykes, dissenting at 647.]

In Factor A-5202-08T4 (App. Div.), Judges Lihotz and Ashrafi myopically held that:

(t)he Court in Heller did not "undertake an exhaustive historical analysis . . . of the full scope of the Second Amendment[.]" It was reviewing the constitutionality of a District of Columbia law banning possession of firearms in the home.” [At 9.]

But the phrase “banning possession of firearms in the home is only 33% true.

The Federal District Court also clung to an “in the home” reading of Heller erroneously holding that the Heller Court (only),

explicitly recognized … that the Second Amendment confers an individual right to keep and bear arms,” but that “(t)he Court held that a District of Columbia law which forbade the individual possession of useable handguns in the home violated the Second Amendment.” [Piszczatoski v. Filko, 840 F. Supp. 2d 813 - Dist. Court, D. New Jersey 2012 at 819. Emphasis by Factor.]

***

held that a total ban on handgun possession in the home is unconstitutional under “any of the standards of scrutiny that we have applied to enumerated constitutional rights…” [Piszczatoski at 819. Emphasis by Factor.]

The Piszczatoski Court myopically used the term “in the home” thirty five times.  Myopically is not used disparagingly here but scholarly. Piszczatoski also claimed that,

the historical sources cited by Heller do not establish that the individual right necessarily extended to a broad general right to carry for self-defense. At most, they suggest that there may be a limited right to carry a handgun outside the home for certain purposes in certain situations that should be explored and determined on a case-by-case basis. [At 827]

This, like “in the home” will be proven to be impossible viz., completely false, in the next section of this Application. But nevertheless, the last two paragraphs of Heller 2792 which make up all but one sentence of the page, were devoted to the phrase “keep arms.” Pages 2793, 2794, 2795, 2796 and three quarters of page 2797; four and three quarter pages in total, were devoted to the term “bear arms.”

Although Heller fully explained the difference between ‘the phrases "keep arms" and “bear arms stating that:

‘we think … "bear arms" means … simply the carrying of arms.’ [Heller at 2796. (Arraignment of the sentence’s clauses adjusted by Applicant for ease of reading and does not disturb the meaning.)]

This wasn’t dicta, this is how Heller arrived at its individual rights decision. [See Heller at 2796 (But if "bear arms" means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add "for the purpose of killing game." The right "to carry arms in the militia for the purpose of killing game" is worthy of the mad hatter. Thus, these purposive qualifying phrases positively establish that "to bear arms" is not limited to military use.)]

Even if the argument is made that 2796’s “(i)f "bear arms" means, as we think, simply the carrying of arms” is dicta, the Courts,

should not idly ignore considered statements the Supreme Court makes in dicta. The Supreme Court uses dicta to help control and influence the many issues it cannot decide because of its limited docket. "Appellate courts that dismiss these expressions [in dicta] and strike off on their own increase the disparity among tribunals (for other judges are likely to follow the Supreme Court's marching orders) and frustrate the evenhanded administration of justice by giving litigants an outcome other than the one the Supreme Court would be likely to reach were the case heard there." [Official Committee ex rel. Cybergenics v. Chinery, 330 F. 3d 548 - Court of Appeals, 3rd Circuit at 561 citing In re McDonald, 205 F.3d 606, 612-13 (3d Cir.2000) (brackets in original) (quoting United States v. Bloom, 149 F.3d 649, 653 (7th Cir.1998)). ]

Piszczatoski simply ignored Heller’s five and three-quarter page explanation from 2792 to 2797 of the difference between to keep and to bear, as well as Heller’s culmination of:

(p)utting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.

As if the Court never actually reads Heller, the  Piszczatoski  Court went on to boldly proclaim that,

the specific question before the Supreme Court was whether the District of Columbia's prohibition of keeping useable handguns in the home violated the Second Amendment, Heller clearly held that the Second Amendment protects at its core an individual right to possess and use a handgun for self-defense within the home. [Piszczatoski at 820. Emphasis by Applicant.]

Piszczatoski’s blinders are most revealing within the Court’s citations:

(t)he court wrote "it is clear that prohibition of firearms in the home was the gravamen of the certiorari questions in both Heller and McDonald and their answers. [Piszczatoski at 825 citing Williams v. State, 417 Md. 479, 10 A.3d 1167, 1177-78 (2011), cert. denied, Williams v. Maryland, ___ U.S. ___, 132 S.Ct. 93, 181 L.Ed.2d 22 (2011). Emphasis by Applicant.]

But these “in the home” claim(s) are the “incomplete reading” of Heller that Circuit Judge Sykes’s dissent in Skoien spoke of. [See US v. Skoien, 614 F. 3d 638 - Court of Appeals, 7th Circuit 2010, at 647 (My colleagues start with an incomplete reading of the Supreme Court's opinion in Heller. They say the Court held only that "the Second Amendment creates individual rights, one of which is keeping operable handguns at home for self-defense.)]

Judge Sykes was correct. There were six separate DC Codes that Heller specified on 2788.

            I.          7-2501.01(12), [at 2788]

          II.          7-2502.01(a),   [at 2788; post at 2854]

        III.          7-2502.02(a)(4) [at 2788; post at 2854]

       IV.          22-4504(a),      [at 2788]

         V.          22-4506,           [at 2788; post at 2853]

       VI.          7-2507.02.        [at 2788 & 2818, post at 2853 & 2862]

Of these six Codes, there were three separate complaints in Heller.

The present suit involves challenges to three separate District firearm restrictions. [Heller post at 2853.Justice Breyer dissenting.]

The first complaint regarded the prohibition of handguns via the inability to legally register them and the fact that it is a crime to carry of handguns in public.

The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. See D.C. Code §§ 7-2501.01(12), 7-2502.01(a), 7-2502.02(a)(4) (2001). [Heller at 2788]

The second complaint regarded the carrying of handguns in public; the equivalent of NJSA 2C:58-4 which is the New Jersey statue concerned in this case:

(w)holly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods. See §§ 22-4504(a), 22-4506. [Heller at 2788; See Heller post at 2853. Justice Breyer dissenting. (The first challenge is to the District firearm restriction which requires a license from the District's Chief of Police in order to carry a "pistol," i.e., a handgun, anywhere in the District.) Emphasis by Factor]

The only difference between the DC law and NJ law is that New Jersey ‘has constructed a "careful grid" of possessory and purposive offenses requiring that close attention be paid to the specifics of each offense.’ [State v. Ingram, 488 A. 2d 545 - NJ: Supreme Court 1985 at 495] and does not consider the home as a zone of unlawful carry. [See State v. Harmon, 516 A. 2d 1047 - NJ: Supreme Court 1986 at 198-199 (A homeowner who possesses a gun in his home (presumably as a precaution against crime) does not violate N.J.S.A. 2C:39-5 because under N.J.S.A. 2C:39-6(e), he is not carrying it.)] Whereas DC first requires a license from the District's Chief of Police in order to carry a "pistol," i.e., a handgun, anywhere in the District. [See Heller post at 2853. Justice Breyer dissenting. Citing D.C. Code § 22-4504(a) (2001); see also §§ 22-4501(a), 22-4506.]

To avoid “incomplete reading(s)” of Heller, it is important to notice the Heller Court’s use of the phrase “(w)holly apart from that prohibition.” Clearly the registration of pistols [See Heller at 2788 (citing DC Code §§ 7-2501.01(12), 7-2502.01(a), 7-2502.02(a)(4) (2001).)] and the carrying of pistols in public [See Heller at 2788 (citing §§ 22-4504(a), 22-4506.) were two separate facets of regulation.

Perhaps better said in a Second Amendment context, the first complaint regarded the keeping of arms (in that they could not be registered) while the second complaint regarded the bearing of arms in public (in that no one was issued a permit to carry “anywhere in the District” unless the chief of police issued a license.) [See Heller at 2788, the 4th, 5th and 6th sentence of § 1.]

The third complaint was not a registration or a carry complaint but a possession (intact) complaint and read:

District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, "unloaded and dissembled or bound by a trigger lock or similar device" unless they are located in a place of business or are being used for lawful recreational activities. See § 7-2507.02. [Heller at 2788 .Emphasis by Factor.]

So when Heller ruled at 2822 that “the District must permit him to register his handgun and must issue him a license to carry it in the home,” this ruling addressed two separate complaints from completely separate DC Codes. These separate codes are similar to NJ’s 2C:58-3 Permit to Purchase a Handgun and 2C:58-4’s Permit to Carry a Handgun.

The permit to carry that SCOTUS told DC to issue Dick Anthony Heller was not a permit to carry it only in the home because on June 26th 2008,DC did not have that type of carry permit nor the equivalent of NJ’s  2C:39-6(e) exemption. [See n.8 supra and n.9 supra.] Thus a full reading of Heller reveals the permit SCOTUS told DC it must issue was a permit:

to carry a "pistol," i.e., a handgun, anywhere in the District. [Heller post at 2853. Justice Breyer dissenting. Citing DC Code § 22-4504(a) (2001); see also §§ 22-4501(a), 22-4506.]

The carry permit “anywhere in the District” was the permit that DC conceded Dick Anthony Heller was going to get. [See Heller post at 2853 Justice Breyer dissenting (the first challenge requires a license from the District's Chief of Police in order to carry a "pistol," i.e., a handgun, anywhere in the District citing DC Code § 22-4504(a) (2001) and 22-4506.); See Heller at 2788 (no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods. Citing §§ 22-4504(a), 22-4506.) (The public handgun carry licensing Codes are the same in both the decision and the Breyer dissent.)] Specifically addressing this type of carry permit, there were statements before the Court made by DC that identified,

if the handgun ban is struck down and respondent registers a handgun, he could obtain a license, assuming he is not otherwise disqualified, [Heller at 2819 citing Brief for Petitioners 58.] 

SCOTUS then noted DC’s meaning of “otherwise disqualified” stating,

by which they apparently mean if he is not a felon and is not insane. [Heller at 2819 citing Brief for Petitioners 58.] 

Dick Anthony Heller conceded at oral argument that he did not,

"have a problem with ... licensing" and that the District's law is permissible so long as it is "not enforced in an arbitrary and capricious manner." [Heller at 2819 citing Tr. of Oral Arg. 74-75.]

Heller did not see the need to address the carry permit in the decison because DC conceded Heller could get one. 

The present suit involves challenges to three separate District firearm restrictions. The first requires a license from the District's chief of police in order to carry a "pistol," i.e., a handgun, anywhere in the District. See D.C.Code § 22-4504(a) (2001); see also §§ 22-4501(a), 22-4506. Because the District assures us that respondent could obtain such a license so long as he meets the statutory eligibility criteria, and because respondent concedes that those criteria are facially constitutional, I, like the majority, see no need to address the constitutionality of the licensing requirement. See ante, at 2818 - 2819. [Heller post at 2853.]

So while the Heller Court did not see the need to address the carry permit in its analysis, the Court assumed that DC’s issuance of a license would satisfy Dick Anthony Heller’s prayer for relief and included the §§ 22-4504(a) and 22-4506 carry permit (“anywhere in the District”) in the Court’s actual ruling. [See Heller at 2822 (the District must permit him to register his handgun and must issue him a license to carry it in the home.) Emphasis by Applicant.] 

Consequently a lawyerly reading of the Heller decision cannot focus on the last clause of the decisionary sentence alone viz., “in the home.”  Page 2822’s “license to carry it” was DC’s license to “carry it” “anywhere in the District” viz., in public. Thus one third of the Heller holdings actually concerned a carry permit in public which is the equivalent of NJSA 2C:58-4.



 


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