Traveling through New Jersey with your handgun this Holiday season and how did a New York gun case change the law in Jersey
The Holiday season begins in a few weeks with Thanksgiving but most stores have already started with their decorations and sales. While most enjoy this time of year, it also represents a large source of criminal cases in Pennsylvania and New Jersey
New Jersey maintains some of the toughest illegal handgun and firearm laws in the United States under its Graves Act (See N.J.S.A. 2C:43-6.). Prohibited weapons which fall under the Graves Act that subject you to mandatory sentencing are:
- Machine guns;
- Sawed-off shotguns; and
- Defaced firearms.
New Jersey does not have gun permit reciprocity with any other state
With that said, many will travel from out of state and either into or through the Garden State during holiday season to see friends and family. If you’re traveling through New Jersey, it is important to understand that New Jersey DOES NOT have reciprocity with any State with regards to the permit to carry a gun or firearm; this includes neighboring states of Pennsylvania, New York and Delaware.
This is very important because if you’re found in New Jersey with a gun or firearm without a valid permit to carry, you face a mandatory minimum of 42-months State prison sentence if arrested and convicted for this crime in the Garden State.
How hard is it to obtain a permit to carry a handgun in New Jersey?
You cannot obtain a permit to carry if you are not a New Jersey resident. If a resident wanted to obtain a permit to carry in New Jersey, he or se must submit an application along with the following:
- 3 good character endorsements
- 4 passport size photos
- Training and marksmanship scores (70% or better)
- Familiarity with safe handling and use of handguns
- Approval by the chief of police
- Final approval from a county superior court judge
What happened in New York State Rifle v. Bruen
In New York, up until June 2022, the permit to carry law was very similar to New Jersey until the case of New York State Rifle vs. Bruen. In that case, the US Supreme Court ruled that it was unconstitutional to require an applicant to show “proper cause” to carry a handgun in public. This Supreme Court ruling effectively made New Jersey a shall issue state and a person in New Jersey could obtain a concealed carry permit provided they satisfied the other requirements.
How did New Jersey react to the Bruen decision?
This ruling occurred in June of 2022, but New York State quickly passed gun regulation laws which made it very difficult for a person to carry a handgun even with the permit to carry in that State. New Jersey followed New York and in December of 2022, Governor Phil Murphy signed a gun safety bill to strengthen concealed carry laws in New Jersey.
Under that law, it is not legal to carry a concealed weapon in three (3) categories of “sensitive places” which were defined as follows:
- High density locations
- Entertainment venues including stadiums, arenas, music parks, casinos, racetracks, and publicly owned libraries and museums.
- Youth sporting events and other recreational facilities such as parks, beaches, and playgrounds
- Bars, restaurants where alcohol is served and any other location that serves alcohol.
- Airports and public transportation hubs
- Locations with populations
- Schools, colleges and universities
- Daycare and childcare facilities.
- Hospitals and healthcare facilities.
- Long-term care facilities and nursing homes.
- Correctional facilities.
- Homeless shelters
- Locations with government and First Amendment activity
- Polling places, Courthouses.
- Law enforcement stations and offices.
- Government buildings and locations with government meetings.
- Demonstrations, protest, and licensed public gatherings.
In addition to these places, the bill also states that a gun cannot be carried on a private home, including homes, businesses, stores or houses of worship unless the property owner expressly communicates permission through express consent or signage.
The law also expanded the ineligibility list for a carry permit to include the following:
- A person with an outstanding arrest warrant for indictable offenses.
- Persons subject to a restraining order.
- Persons subject to restraining orders in other jurisdictions.
- Persons subject to voluntary admissions to mental institutions.
Finally, the bill required that all permit carriers maintain proof of liability insurance with coverage for at least $300,000 to cover injury, death, or damage to property arising out of ownership, operation of firearms. The bill also increased the permit application fee from $25.00 to $2,000.00.
How serious is an illegal handgun charge in New Jersey?
If you’re convicted carrying a gun without a permit under New Jersey statute 2C:39-5(b), you are guilty of a second degree offense. A judge has no discretion and must sentence you to a term of 5-10 years in New Jersey state prison. You are ineligible for parole for at least three years and so you have to serve the minimum of three years of this sentence. If it is your second offense you are looking at a 5-10 year mandatory minimum sentence with no parole eligibility until that 5 year minimum.
Despite these mandatory minimum sentences under the Graves Act a person can still avoid jail in certain situations. A person charged under the Graves Act is still entitled to Pre-Trial Intervention (PTI) or probation but both of these programs would require consent by the Prosecutor’s Office. While a Prosecutors’ Offices in New Jersey cannot categorically deny a PTI application they will normally not consent to a PTI disposition unless the case involves a extraordinary or compelling circumstances.
New Jersey’s Policy on Illegal Guns – Prison not probation
New Jersey’s approach to illegal handguns and firearms is the “promise of imprisonment”, rather than rehabilitation. In 1983, the New Jersey Supreme Court in State v. Des Martes, stated if a person is convicted of a crime against another while using or possessing a firearm in state, that person will go to prison for at least 3 years.”
The law now in New Jersey calls for a mandatory 42 month state prison. The New Jersey Legislature amended the Graves Act in 2013 to increase the mandatory minimum term to the greater of one half or one third of the base term which equals 42 months. The goal of the Graves Act is deterrence through widespread knowledge that one who is convicted of using or possessing a firearm while committing a crime will not escape a mandatory minimum jail sentence!
The Expanded Graves Act
While the decision is Des Martes was initially limited to the imposition of a mandatory minimum term in those situations where a person carried a firearm for an unlawful purpose or used it to commit a “enumerated crime” the New Jersey legislature, in 2008, expanded the scope of the Graves Act. The 2008 amendment imposed the mandatory minimum 42 month sentence on the mere unlawful possession of certain firearms. Despite the mandatory minimum sentencing in New Jersey there is a possibility that a person charged with an illegal gun or firearms offense is eligible for a waiver of the mandatory minimum sentence.
How should you travel through New Jersey with your handgun or firearm?
If you plan on traveling through or into New Jersey, you should keep the gun in your trunk and the ammunition separate from it. The firearm should be unloaded and in a gun box which contains a lock. If you are not traveling in this matter, you are subject to various crimes in the Garden State under its Graves Act. If the gun is found while you are arrested for another crime, there is a strong possibility that you will be arrested for not only the unlawful possession, but unlawful possession for an unlawful purpose.
These are separate offenses in New Jersey and both subject you to a mandatory minimum sentence. Pennsylvania does not have as strict of gun laws as New Jersey, but it is still a felony crime to carry a gun or firearm outside of your home or place of business without a permit to carry. It is a felony charge in Pennsylvania and subjects you to a possible State prison sentence.
If you have questions regarding your gun rights in Pennsylvania or New Jersey, contact our office for more information.
Our criminal defense law firm wish you and your family a happy and safe holiday season!
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