“New Jersey’s justifiable need standard is a longstanding, presumptively lawful regulation that operates as an exception to the Second Amendment.” – John J. Hoffman, acting attorney general of New Jersey, quoted in Supreme Court weighs appeal to concealed-carry gun laws [via washingtontimes.com]
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I read this quote over several times and I’m damned if I can tell, semantically, which side he is arguing for or against.
He MIGHT be saying that because it is “longstanding” without challenge it should be forever exempt from being challenged, but a logical person would assume that he is arguing that in spite of being longstanding it is only “presumptively” lawful and that it does indeed appear to be an infringement of Second Amendment protections against government infringement.
Since lawyers tend to be precise in what they say and how they say it I suspect he is being intentionally vague.
Bingo on this.
That’s a VERY good statement when you don’t know who will be in power, only that you don’t want them mad at you.
Let’s take this back in time a bit in order to demonstrate how absurd the assertion is:
“Georgia’s justifiable need standard is a longstanding, presumptively lawful regulation that operates as an exception to the Thirteenth Amendment.”
I love comparing against the 13th….makes things pretty obvious.
Here, I punched it up a bit to make it even more obvious:
“New Jersey’s justifiable need standard for slaves is a longstanding, presumptively lawful regulation that operates as an exception to the Thirteenth Amendment.”
– John J. Hoffman, acting attorney general of New Jersey, quoted in Supreme Court weighs appeal to own slaves.
Precisely. I immediately thought “Slavery was a longstanding, presumptively lawful situation, too.”
Try again, bucko.
Nice. From now on I’ll just presume everything I want to own/do/use is lawful and I’m good to go.
Well, shire_man, maybe it’s time you tore Sharky’s ridiculous list of rules off the wall and figured for yourself how the Shire should be run.
I had to look up that reference. I’m not up on my hobbits and wizards or whatever. Never read the books and fell asleep trying to watch the movie. I do live in New HampSHIRE though. I could be Ham-man but then folks would think I was really into pork I guess.
There are worse things to be really into.
If everyone ate bacon there would be world peace.
And everyone would be fat.
We’re already fat. And old. And white guys.
Slavery and segregation were long standing regulations as well…
Look into the determination of evil. Claims to work for the people while denying the rights if citizens of lawful self protection.
The nine have been using “justifiable need” to shred the Constitution for a long, long time….
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Note: What part of “shall not be infringed” do the legal eagles misunderstand?
Didn’t you know? When you become a federal judge they issue you with secret goggles that reveal the invisible ink that reads “…except on days of the week ending in ‘day.'”
More seriously, they only lose one word in their reading, the word “not.”
Our founding fathers had the foresight to write that “with exceptions” part in real expensive invisible ink. So only the wealthy elite could know its there, brah.
The Supreme Court usurped Judicial Review and refuses to hear many cases. The court picks and chooses. The 2A is crystal clear; shall not be infringed. If the Supreme Court, through stolen power, is able to duck and weave on that, then there is no limit on governmental power in our nation. Currently, there are no real constitutional constraints on government and our government operates outside of the Constitution. As the Constitution is what gave privilege to our government to even exist then that would mean current government is illegitimate. So-called “constitutional protections” are but an illusion in the modern day. The nation is merely pretending to be a free nation and full tyranny will be upon us in time.
What often seems to be missed in relation to SCOTUS, is that every time a case is submitted to them and they DECLINE to hear arguments they have in fact made a SCOTUS decision on that issue by letting the lower court(s) decisions stand. It is exactly the same as saying, “Fine by us, now go away.”
They can thereby re-write the Constitution one Circuit Court at a time without even having to hear the arguments.
Yup. Lee Iacocca said it: “To not make a decision is a decision.”
I agree with you, Cliff H. That’s the “ducking” part. If they don’t take a case then they are condoning the lower court ruling on the matter.
His argument can be used for everything. For example, the “1st amendment zones” probably came about because the feds believe that people do not have a justifiable need to exercise that right unless within an approved government zone hidden away so no one will see or hear them. (Wait until they make those zones the diameter of a politician’s heart.) So, they take away the ability for the people to affectively resist a totalitarian government, i.e., 2nd amendment, then the rest of the dominos fall. Welcome to the new America.
I noticed those “First Amendment Zones” or as I like to call, “Free Speech Concentration Zone”, was inside a big hole, almost like a crater, so that it would be real easy to shoot/gas/beat, anyone in that area, with little chance of escape.
But the second amendment itself is not long standing?
You wanna know something else longstanding and should be changed?
The fact that you’re employed in any legal capacity.
“Joe’s justifiable need for ice cream and cookies standard is a longstanding, presumptively lawful regulation that operates as an exception to the Laws of Nature.” – Joe J. Everytown, acting attorney general of The World, quoted in Supreme Court weighs appeal to eat excessive amounts of frozen dairy and warm-gooey carbohydrate amalgams.
I have worked (in the past) as a technical consultant for many years.
A common problem with many companies is that you arrive on-site and then they begin to tell you about all their unique and special needs and how they need to spend ridiculous gobs of money on a special custom system that meets those needs. If I was really horrible at my job I would have just said “Ok, we’ll charge you ridiculous gobs of money and build what you want”.
Except I felt compelled to find out what they NEEDED rather than what they preferred and it soon became apparent that an off the shelf system was just fine in almost every case. They weren’t interested in doing things better than their competition, they believed being different was enough.
What does this have to do with NJ and the 2nd Amendment? Everything. They believe they are a unique snowflake that needs some kind of exception to this horrible burden the 2nd Amendment places on them. Except it is not a burden, it would actually make their state safer if they would allow ordinary citizens to take control of their own defense. Police can still be retained for clean-up detail much like they already are. Except they could be cleaning up the room temperature bad guys instead of the slaughtered innocents of today.
LOL! As former IT consultant myself, I know that story well. Every company believes their situation is soooo unique. I also agree with your analogy about the state of NJ.
Truth is NJ, NY, CT, MA and CA seem to always duke it out to see which can be the “more” liberal idea of utopia when it comes to governing.
Where in the Constitution does it say that the Supreme Court has the authority to unilaterally amend the Constitution?
Where in the actual Constitution does it say the Supreme Court even has the right of judicial review?
Must be in one of those “penumbras” that are caused by the “emanations” from the stuff that is actually written there–see Roe v Wade for details.
Actually, Marbury v. Madison: http://en.m.wikipedia.org/wiki/Marbury_v._Madison
Coaxing judicial review out of the Constitution allowed Marshall to get out of issuing an obviously correct, but highly politically inconvenient writ, while still making the obviously correct ruling.
It doesn’t. The court gave it to itself (read: usurped) through one case. The court lied and then perpetuated that lie. Now, the court believes its own lie. http://constitutionality.us/SupremeCourt.html
Yow! John, thanks for that link. Has anybody thought to e-mail it to Mr. Hoffman?
You ever notice in the comments section on the articles themselves, there’s little engagement by the anti-gunners? You would think for all their rhetoric they’d be willing to debate.
Many people have opinions in the anti-gun world and happy to be vocal about them, few have conviction. We have a vested interest, many antigun groups are limousine liberals for the cause du jour or completely clueless and are simply following the crowd opinion.
See this video and tell me what you see and hear:
That’s good; it’s also why so many people fashion themselves as Democrats when voting. The Dems do a better job of marketing their product, even when it is falsely labeled and deceitfully misrepresented.
Certainly the lady here is one of those fashionably Democrat drones peddling wares she knows little or nothing about.
She and the rest of the numb nuts in the video spewing sound bite rhetoric without foundation for their professed beliefs.
Anti-gunners idea of debate is spouting some emotional bullshit, then interrupting and shouting down your response. Doesn’t translate well to a comments format. Sort of like NASCAR racing on the radio.
It’s not an exception at all. It’s a rule that completely reverses the idea of the 2nd Amendment, turning an right held by the people into a special privilege conferred by the state.
We need another wave of Heller/McDonald decisions to defeat:
A. “May” issue states
B. Assault weapons bans
C. High Mag bans
Time to disarm the antis.
“We need another wave of Heller/McDonald decisions to defeat:”
As has been discussed above and elsewhere, from a purely Constitutional standpoint the SCOTUS has no Constitutional authority to decide if something is Constitutional or not, it is a built-in conflict of interest.
This seems to be one of the few areas the Founding Fathers overlooked when writing the document – there is no specific instruction for challenging the Constitutionality of any legislation or government act.
But we seem to be stuck with the present state of affairs for now, so I would amend your comment to say that the only case that should be heard and the only decision to be rendered should be short and sweet and precise, like the Second Amendment itself:
“In the matter of People of the United States vs. All Federal, State and local governments of the United States of America and its territories and protectorates, we find by unanimous vote that the Second Amendment to The Constitution of the United States of America means just exactly and precisely what it says.
It is the opinion of this court that no government entity has the authority to infringe upon the natural right of the people to keep and bear arms and that therefore all such legislation, laws, ordinances or regulations are immediately and forever null and void.”
This is nullifacation. If you can get your town, then your county, and then your state to do this we would be much better off. You will also need to get the “well regulated Militia” around at the same time to put the peoples force behind the nullifacation.
Article 1, Section 8: Clause 16
Article 2, Section 2: Clause 1
These are parts of the constitution that mandate that the Federal Government is supposed to “provide for organizing, arming, and disciplining, the Militia”.
The states are to appoint the officers “reserving to the states respectively, the appointment of the officers,”.
It is also seperates the Militia from the Standing Army/Navy “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;”
Look into your state constitutions, I found in the older constitutions in Michigan defines the Militia
“The militia shall be composed of all able-bodied male citizens between the ages of 18 and 45 years,”
it also requires the state to provide order, supplies, and training
“The legislature shall provide by law for organizing, equipping and disciplining the militia in such manner as it shall deem expedient, not incompatible with the laws of the United States.”
It also reinforces the states right to appoint the officers
“Officers of the militia shall be elected or appointed and be commissioned in such manner as may be prescribed by law.”
By no real surprise the current constitution of Michigan has had its many feferences to the Militia gutted. However, it still states “The militia shall be organized, equipped and disciplined as provided by law.”
If I can get people who support the true 2A in Michigan I belive we have more legal means than needed to back nullifacation. My one friend thinks that the courts will just say we cant Nullify ending the movement. I don’t think he understads how simple the non-compliance of nullifacation is. I think he is usually to overburdend with complicated things to enjoy the simplicity of it. All we would really need is a single town in a single county to start the change.
You are only reading the parts you want to read.
“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”
Those are powers of Congress, not the state.
Also, there is a difference between a well-regulated militia, and a general militia of all (male) citizens, that militia is unorganized, and by definition that cannot be well-regulated.
There is a militia group that fits the description above pretty well though, the National Guard.
Holy crap! NJ was bad when I escaped to PA over 25 years ago, but this guy takes it to a new low. I’m absolutely flabbergasted that this guy has a job in government.
He really concentrated hard to get that cold truculent stare & Gestapo icy eyes. Must have practiced before a mirror.
Government is the only place he could hold a job.
We will soon correct your presumption, Mr Attorney General . Just say the following to your spouse:
“My justifiable need standard is a longstanding, presumptively lawful regulation that operates as an exception to me visiting the in laws. Or paying for your shoes.”
Of course it’s “lawful”… anything in the law books is automatically “lawful”.
However, it’s completely unconstitutional.
And even more importantly, immoral.
Those pesky Founders, how dare they try to enshrine the transcendental morality of individual freedom into the charter of a nation’s government!
The problem with this guy is even more basic than gun rights: he is under the decidedly unAmerican delusion that ‘freedom’ stems from government and its laws.
He needs to go back and research the meanings of the words “endowed by their Creator” and “inalienable” and a few others along those lines.
Dare I point out that in Germany between 1939 and 1945 it was “lawful” to incarcerate and slaughter Jews, homosexual, gypsies, fortune tellers, Communists, and anybody else appearing to oppose the government or annoy the Fuehrer?
It was also “lawful” under German law to invade neighboring countries, murder the people who lived their under any pretense or sometimes no pretense at all, and take everything they owned.
And it was similarly “unlawful” (and dangerous in the extreme) to voice any sort of opposition to those “lawful” activities.
I have been in court because the CLEO in NJ refused to give me an FPID. The judge in the hearing told me “The Second Amendment is a priveladge not a right”. I really really really really hate that guy.
I hope somewhere along the line it was communicated to that judge that he was a pompous ass and clearly must have some Limey Redcoat somewhere in his lineage.
Move to Kansas. Or Texas.
Kinda blows the whole “well he had his day in court, and he lost” type of arguments completely to hell. It is becoming ever more difficult to realize justice in a nation where the courts are vehemently opposed to freedoms recognized in the Bill of Rights. The truly sad thing is that they would deny lawful firearms to responsible citizens in the name of *safety.* The bad guys are armed – legal or not. Politicians are surrounded by tax payer funded armed guards. It takes some serious mental gymnastics to justify disarming taxpayers.
Serious mental gymnastics only for people like us; not for elitist statists and progressives. When it’s inconvenient for them, the Constitution either doesn’t apply or only applies in the way they approve. They love the idea of a dynamic “living Constitution” as a way to perpetuate incursions into individual liberty and constitutional protections.
Can you immagine how mucked up stare decisis would be if we had a “living Constitution”?
There was a man in my hometown here that was denyed a concealed carry permit even though he was kidnapped out of his store by a 1%er biker gang, tourtured and dragged all the way out to Wisconsin by the time he escaped. yeah. New Jersey sucks.
What this schmuck didn’t say is that you “justifiably need” to be best buddies with a judge, police chief, or some other legal/political figure (being rich helps too) if you ever want to get a permit, just like in NYC. If joe citizen applies, even with a decent case, he will be denied, it happens all the time. I’ve met exactly one person with an NJ permit in my life, and he was a retired cop.
And my girlfriend wonders why I won’t even consider moving to Jersey…
So, if a “standard” is longstanding it is therefore a “presumptively lawful regulation”?
Abortion was illegal for something like 190 years in our nation. That sounds like a longstanding presumptively lawful regulation to me. And yet the U.S. Supreme Court ruled otherwise in 1971.
If the courts can overturn abortion laws, they can overturn “good cause” laws.
When looking at the forceful determination in his eyes, I see a man who has completely justified his actions. To him, the debate is settled, and there is no reason to listen to any dissent. He will fight any dissent with “righteous” determination. Will there be a peaceful solution to the control of statists like this man? Doubtful.
He may not even realize that his justification is as constitutionally crooked as his face (fact, not meant as ad hominem). That’s how it is for progressive statists. They truly buy into the garbage they dispense.
It kind of reminds me of Independence Day when the president figure in the movie was talking to the captured alien in the lab underneath Area 51.
President: Can there be peace between our species?
Alien: Peace? No peace. Die!!!!
Yes, and like the Terminator T-1000 mimetic poly-alloy assassin, they keep relentlessly comming back for another shot at you.
You have observed the manifestation of the classic quote from C.S. Lewis, describing the most oppressive tyrant:
“Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to Heaven yet at the same time likelier to make a Hell of earth. This very kindness stings with intolerable insult. To be “cured” against one’s will and cured of states which we may not regard as disease is to be put on a level of those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals.”
Sounds like an excerpt from “Mere Christianity.”
Will there be a peaceful solution to the control of statists like this man? Doubtful.
More like a snowball’s chance in Hell. There isn’t enough time. IMHO, this country turns out more people with a diluted sense of true Liberty faster than is turns out those who really understand. There will always be statists and they will always use the ignorance, willful or simple, of those who do not understand the importance of being free. Unless huge (and I mean gargantuan) leaps are made to restore constitutional government soon (within a generation); no peaceful solution will be possible. We’re fighting entropy. The order imposed upon our government by the Constitution is mandated to deterioration by the laws of nature. Each generation allows constitutional government order to slip a little more. We take back some in a few areas but lose order in other areas even more. The net will be a loss unless major renovation occurs. All one must do is sit down and list out, in detail, every way that government has drifted from the original, limited, privileges upon which it was founded to see what I mean. Without a lot of hard work, entropy wins and peaceful solutions would be ineffective.
Everyone loves drawing their own analogies to “longstanding.”
Here’s the only one that counts:
If the law is indeed, longstanding, that means by definition it has not been held up against the NOT-so-longstanding STRICT SCRUTINY standard we now have to apply, gained from Heller and McDonald.
Time to say goodbye to this abomination of a law, and yes, add it to the same pile as all the others so referenced here.
“An exception to the Second Amendment?”
Is that how they say unconstitutional in NJ?
I am not sure how much of this quote is an invention of the mouthpiece or borrowed from the Circuit Court of Appeals decision in Drake, where the Court, purporting to rely on language in Heller, held that longstanding regulations are “presumptively lawful.” The regulations in question, by the way, had been enacted in the 1960s, and moreover were unsupported by any sort of legislative findings establishing this “justifiable need.” there was no record of any hearings on the bills, nor any evidence presented in the trial court establishing this “need.” To make matters worse, the Court claimed it was applying intermediate scrutiny–a level of scrutiny that requires actual evidence–but accepted as sufficient the mere say-so of the State that these laws were needed–which is in fact nothing but rational basis review dressed up in pretty words.
The petition for writ of certiorari in Drake v. Filko is being heard in conference by the Supreme Court today. We will know either today or early next week whether cert was granted or denied. Meanwhile, back in California, the motion of AG Kamala Harris to intervene in Peruta v. Gore (which would allow her to pursue en banc review) is still pending, and some of us believe that the Ninth is awaiting the cert decision in Drake before it decides whether to allow it.
Well said Mark, thank you.
There are some on Calguns.net forums who have opined that O’Scanllain let the Presidents Prettiest AG walk into the trap of filing last minute request for intervenor, to give cover to the 9th following a prudent holding pattern, waiting on Drake, which is actually a stronger case, if I understand the legal beagles, for carry outside the home, and maybe even resolving the silly intermediate vs strict standard folderol that goes with the justifiable need hogwash.
If I were a thinking liberal judge right now at the 9th, I’d be both pissed at AG Harris for putting me on the spot, and hoping to breath a sigh of relief, actually, Monday or Tuesday, either way on Drake, as the any intellectually honest and moral judge would be hard put to argue against both the history and masterful opinion by the majority on Peruta, that built so well upon the foundation of Heller, and the scholarship on the legal issues since NJ reliance on this 1960s standard.
One hopes this pending decision to take up Drake will be proof of the patient, strategic predential step by step strategy used by Michel, Gura, Clement, et all, and careful partnering behind the scenes by Calguns, NRA, SAF, along with the Amici filings by the 37? States who agree, need a resolution on the issues, too.
Lets just hope 3 out of 5 at the top agree. Fingers crossed.
I am nervous that the Court will not strike this one down, especially after Roberts upheld Obamacare.
Here’s Volokhs explanation awhile back of what happens next in general:
Also, it’s well known fact that stupidity on a long enough time line will inevitably become intelligence…
So, New Jersey is G2G!
If New Jersey is ready to stop interfering with open carry, then it can restrict concealed carry. But New Jersey cannot restrict concealed carry by law abiding citizens while at the same time prohibiting open carry.
The more I read Peruta, the more I believe that the 9th Circuit got it right.
Hope you are correct- and note the late letter by San Diego County, to the Peruta panel order to opine on the CA AGs motion to intervene….San Diego counsel gives a note to the teacher saying “Mom wont let me play on the playground any more…”
Now, it will be interesting to see how this plays out for Sheriff Gore, in the June elections coming up…
This is from the local independent (read lefist) street rag:
and this from the local main paper, which is pretty conservative:
and poll conducted there: http://www.utsandiego.com/polls/2014/feb/self-defense-enough-concealed-weapon-permit-hp/
This on a somewhat relevant race, for DA, (which is different than county counsel, above) but shows the local LGBT favored RINO candidate is in trouble for getting caught with her hand in cookie jar…
which MIGHT make it harder for the Sheriff to raise money again from the casinos…so I am not surprised he is keeping his head down, and pointing all questions back to the CA AG…
Does this guy always look like he just sat on a broomstick?
Uh, forgive me for asking- is this the guy who will be arguing for NJ, if the Supremes take up Drake?
If so, he has that glazed “good german” look from the thirties, with some spark of intelligence and even fear behind the eyes, that I’d characterize as “how am I going to polish this dog turd they left on my desk?”…
“… presumptively [sic] legal …”
Hmm. This opens a can of writhing, venomous and angry worms.
One wonders about the “due process” for which the Constitution provides. For instance, according to 5A no one shall be placed in jeopardy of life, property et cetera without due process.
Within that framework, the free exercise of any or all rights – enumerated or otherwise – may be curtailed by the State. Typically the curtailment of all rights includes suspension of the right to breathe.
Is it possible, through “due process,” to curtail the rights of all persons in accordance with the will of the majority?
Personally, I do not believe that to be legal within the existing Constitution, but it seems to me that that is the principle here at play.
Perhaps the entire populace has been tried in absentia and found wanting? Therefor, the State may within that context curtail the free exercise of whatever rights We the People are insufficiently mature to exercise without fetter.
I can see the linked list of precedent and procedure by which such a conclusion might appear to be legal, but the aggregate is most certainly not.
It’s equivalent to shaving the production quality of every part in a complicated mechanism to the lower limit of the specification; while technically within the terms of some procurement contracts, the aeroplane, automobile, computer et cetera so produced would be unusable or at the very least unacceptable.
There are Constitutional mechanisms by which 2A may be infringed, but they require a determination that the person whose rights are to be infringed has committed a crime.
Preemptive limitation of rights, be they that of free perch, assembly, KBA et cetera, is limited to the duration of a period of emergency – at least within the Constitution.
How many of you complained about the “free speech zones” a half mile from Shrubbya’s route through Boston a few years back? How many of you approved? There was no emergency there, but that infringement nonetheless flew.
This is similar, but methinks the emergency of the Chicago mobs of ninety years ago is past.
We are governed by weasels.
Agree about the weaselry, but
“There are Constitutional mechanisms by which 2A may be infringed, but they require a determination that the person whose rights are to be infringed has BEEN CONVICTED OF a crime”
Had to fix that one. I’m granting there is (dubious) precedent to deprive a convicted felon of voting and Second Amendment rights, but name me one other amendment that can deprive a citizen of his rights. Free speech? May he be forced to quarter soldiers?
I was referring to the term of incarceration, rather than in perpetuity.
While I do believe that certain persons should probably not have guns, the list is very small and frankly many such persons should probably never get out of prison.
Persons on probation or parole are of ourse still in the system, and may not associate with just anyone or freely speak their minds et cetera, but once they’re clear yeah, 2A should be restored.
I was not defending permanent infringement of rights, but rather stating that any infringement supposedly requires due process. The anti-gun laws of many states and the U.S. et al were enacted against non-offenders – via “undue process,” if you will.
Yeah. I agree.
IF (and that is a big IF) the court takes up Drake I would expect it to be struck down in a decision that closely mirrors the Ninth’s in Peruta (A must read for everyone here, IMO). In Peruta it goes on for considerable length about the ‘longstanding presumptively constitutional’ stuff. My summary would be “It isn’t longstanding and presumptively constitutional unless it was in effect in 1791”, but I might be over-simplifying.
Well, I guess it’s progress when they say it’s not with the Second Amendment. all the other gun-grabber still say they’re all about Second Amendment rights…
Jesus, Hoffman. Find a new tailor.
Well hell, since he put it like that, it makes all the sense in the world!
I support this “justifiable” need exception to the 2nd amendment. And to the 1st, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 13th, 14th, 15th, 16th, 17th, 18th (darn), 19th, 20th, 21st, 22nd, 23rd, 24th, 25th, 26th and the 27th.
Matter of fact. F – it. Let’s just throw the whole thing away. It’s too scary and the childrun, and common sense, safety and such. Demand action!