Tuesday, March 20, 2007

A NEW JERSEY Court Recognizes the Second Amendment

The case is In the Matter of Firearms Appeal by Dennis W. Peterson, Superior Court of NJ, Warren County. LINK to PDF download of the court's opinion. Peterson was represented by Evan Nappen.

Pertinent part of the decision:

Quote:
Fundamental fairness is a doctrine to be sparingly applied. It is appropriately applied in those rare cases where not to do so will subject the defendant to oppression, harassment, or egregious deprivation.” Doe v. Poritz, 142 N.J. 1 (1995), citing State v. Yoskowitz, 116 N.J. 679, 712, 563 A.2d 1 (1989) (Garibaldi, J., concurring and dissenting). Egregious deprivation would surely be the result if this applicant were precluded from obtaining a firearms purchaser identification card by virtue of the fact that he consensually surrendered his weapons at a time when it was impossible for him to have known that such action would later subject him to lifelong deprivation of his second amendment right.

Additionally, it is clear that in consenting to the disposition of the weapons seized as a result of the temporary restraining order, the applicant did not intend to waive his right to bear arms as provided by the second amendment of the U.S. Constitution. He therefore could not have knowingly, intelligently, or voluntarily waived that right.”
While this is surprising and encouraging coming from a court in NJ, of all places, keep in mind that this case does is not binding on the entire state. Also note that the court assumes that requiring Peterson to obtain permission from the state in the form of firearms owner's card is permissible under the Second Amendment. But the mere fact that the court implicitly assumed that the Second Amendment protects an individual right to keep and bear arms is noteworthy.

The county prosecutor in the case has filed a notice of appeal, so this one ain't over.

1 comment:

NJ Traffic Court Guy said...

Very interesting. Nice to see the Warren County Superior Court is stepping up for the RKBA. Hopefully the prosecutor will be too busy to follow through on the appeal.