Amicus Curiae Brief — Mark Cheeseman, Petitioner v. Joseph Polillo, Chief of Police, City of Glassboro, New Jersey, et al.

No. 19-27

In the

Supreme Court of the United States

__________________

MARK CHEESEMAN,

Petitioner,

v.

JOHN POLILLO, CHIEF OF THE GLASSBORO, NEW JERSEY

POLICE DEPARTMENT; AND KEVIN T. SMITH, SUPERIOR

COURT JUDGE, GLOUCESTER COUNTY, NEW JERSEY,

Respondents.

__________________

On Petition for Writ of Certiorari to the

Superior Court of New Jersey Appellate Division

__________________

BRIEF OF AMICUS CURIAE COALITION OF

NEW JERSEY FIREARM OWNERS IN

SUPPORT OF PETITIONER

__________________

Alan Alexander Beck

Law Office of Alexander Beck

2692 Harcourt Drive

San Diego, CA 92123

(619) 905-9105

Alan.Alexander.Beck@gmail.com

Stephen D. Stamboulieh

Counsel of Record

Stamboulieh Law, PLLC

P.O. Box 4008

Madison, MS 39130

(601) 852-3440

Stephen@sdslaw.us

Counsel for Amicus Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

CORPORATE DISCLOSURE STATEMENT

The Coalition of New Jersey Firearms Owners is a

nonprofit corporation with no parent corporation, and

no publicly held corporation owns it stock.

ii

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

INTEREST OF THE AMICUS CURIAE . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1. New Jersey’s URGENT NECESSITY requirement of

“specific threats or previous attacks” for 2C:58-4

permit issuance is neither “longstanding” or

“presumptively lawful.” . . . . . . . . . . . . . . . . . . . . 2

2. The theory of preventing the “known and serious

dangers of misuse and accidental use” was not

Legislative Intent. . . . . . . . . . . . . . . . . . . . . . . . 17

3. Any New Jersey claim that their URGENT

NECESSITY RULE is “presumptively lawful” and

“longstanding” is a mathematic impossibility. . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

iii

TABLE OF AUTHORITIES

CASES

Burton v. Sills,

53 N.J. 86, 248 A.2d 521 (1968) . . . . . . . . . passim

District of Columbia v. Heller,

554 U.S. 570, 128 S. Ct. 2783 (2008) . . . 10, 11, 17

Drake v. Filko,

724 F.3d 426 (3d Cir. 2013) . . . . . . . . . . . . . 10, 22

In re Application of X,

59 N.J. 533, 284 A.2d 530 (1971) . . . . . . . . . 11, 19

In re Preis,

118 NJ 564 (1990) . . . . . . . . . . . . . . . . . . . . passim

In re Winston,

438 N.J. Super. 1 (Super. Ct. App. Div. 2014). . 22

Piszczatoski v. Filko,

840 F. Supp. 2d 813 (D.N.J. 2012) . . . . . . . . . . . 23

Reilly v. State,

59 N.J. 559, 284 A.2d 541 (1971) . . . . . . 11, 12, 19

Serv. Armament Co. v. Hyland,

70 N.J. 550, 362 A.2d 13 (1976) . . . . . . . . . . 24, 25

Siccardi v. State,

59 N.J. 545, 284 A.2d 533 (1971) . . . . . . . . passim

State v. Gratz,

86 N.J.L. 482, 92 A. 88 (1914) . . . . . . . . . . . . . . . 4

iv

State ex rel. Duncanson,

No. A-3318-14T2, 2016 N.J. Super.

Unpub. LEXIS 2222 (Super. Ct. App. Div. Oct. 7,

2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

STATUTES

Administrative Procedure Act,” P.L.1968, c.410

(C.52:14B-1 et seq.) . . . . . . . . . . . . . . . . . . . . . . . 12

L. 1966, c. 60. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

NJAC 13:54-2.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

N.J.S. 2A:151-1 et seq. . . . . . . . . . . . . . . . . . . . . . . . 25

NJSA 2A:141-44, now 2C:58-4. . . . . . . . . . . . . passim

N.J.S.A. 2A:151-44 . . . . . . . . . . . . . . . . . . . . . . . . 2, 16

NJSA 2C:58-2.6 . . . . . . . . . . . . . . . . . . . . . . . . . 12, 16

1 N.J.R 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

23 N.J.R 2251 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

OTHER AUTHORITIES

Assembly Chamber, State House, Trenton NJ.

March, 2, 1966 . . . . . . . . . . . . . . . . . . . . . . . . 7, 10

Crime Against Small Business: A Report of the

Small Business Administration. April 3, 1969.

Senate Document No. 91-14 . . . . . . . . . . . . . 20, 21

Final Report, National Commission on the Causes

and Prevention of Violence (1969) . . 15, 21, 25, 26

v

Hearings before the Committee on Ways and

Means, 89th Congress. First Session on

Proposed Amendments to the National Firearms

Act. July 1965. Part 1. US Govt. Printing Office,

Washington 1965 . . . . . . . . . . . . . . . . . . . . . . . . 23

HEARINGS BEFORE THE SUBCOMMITTEE TO

INVESTIGATE JUVENILE DELINQUENCY OF THE

COMMITTEE ON THE JUDICIARY. US Senate, 89th

Congress, First Session. US Govt. Printing

Office. Washington . . . . . . . . . . . . . . . . . . . 5, 6, 13

Knight, Michael. “Studies of Gun Law Divided on

Impact” New York Times. [New York] 21,

January 1981 . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

PROPOSED AMENDMENTS TO THE NATIONAL

FIREARMS ACT. January 4, 1965. Part 1. US

Govt. Printing Office, Washington 1965 . . . . . 5, 6

Sills Demand Curbs on Sale of Firearms, Asbury

park Evening Press, Thursday Dec. 5, 1963 . 3, 24

Sills Fights for Tougher Gun Laws, The (Red Bank)

Daily Register. March 11, 1965 . . . . . . . . . . 10, 25

Testimony of AG Sills PL 90-618 H.R. 510, 89th

Cong., 1st Sess. (1965) . . . . . . . . . . . . . . . . . . . 5, 6

Testimony of Victoria Bramson, Esq., Deputy

Attorney General, Division of Criminal Justice.

S UBCOMMITTEE ON A DMINISTRATION OF

FIREARMS STATUTES, ASSEMBLY JUDICIARY

COMMITTEE, New Jersey Legislature, State

House Annex, Trenton NJ 08625. Second Public

Hearing, Tuesday September 22, 1987 . . . . . . . . 3

1

INTEREST OF THE AMICUS CURIAE

The Coalition of New Jersey Firearm Owners

(“CNJFO”) is a New Jersey non-profit and a tax exempt

501(c)(3) non-profit organization.1 CNJFO was formed

to eliminate “justifiable need” in New Jersey and to

advocate for lawful, safe and responsible firearms

ownership in New Jersey. CNJFO strives to return to

the citizens of New Jersey the basic human right to

self-defense, a right that is guaranteed to all

Americans by the Constitution but denied to New

Jersey residents by the Executive, Legislative and

Judicial branches of New Jersey government.

SUMMARY OF THE ARGUMENT

New Jersey’s urgent necessity and justifiable need

scheme for allowing its citizens to carry pursuant to a

fundamental and enumerated right cannot stand.

First, the permit issuance based on urgent necessity is

neither longstanding nor presumptively lawful.

Secondly, New Jersey has perverted the legislative

intent of the Gun Control Law and, as currently

applied, does not comport with the legislative intent of

when it was passed. Thirdly, it is a mathematical

impossibility for New Jersey to claim that its scheme of

urgent necessity is presumptively lawful or

longstanding. For the following reasons, this Court

1

No counsel for any party authored this brief in whole or in part,

nor did any counsel or party make any monetary contribution

intended to fund the preparation or submission of this brief. All

parties’ counsel of record received timely notice of the intended

filing of this brief, and all consented to its filing.

2

should grant the Petition of Mark Cheeseman and

grant certiorari in this case.

ARGUMENT

1. New Jersey’s URGENT NECESSITY requirement

of “specific threats or previous attacks” for

2C:58-4 permit issuance is neither

“longstanding” or “presumptively lawful.”

In Siccardi v. State, 59 N.J. 545, 284 A.2d 533

(1971), the New Jersey Supreme Court would explain

that “(t)he constitutionality of the (Gun Control) Law

was upheld in [Burton v. Sills, 53 N.J. 86, 248 A.2d 521

(1968)], but the opinion in that case did not cite nor did

it have occasion to deal with N.J.S.A. 2A:151-442 which

is the specific statutory provision applicable to the

issuance of permits for the carrying of handguns.”

Twenty years after Siccardi, the New Jersey

Supreme Court would explain that:

…the most relevant definition of “justifiable

need” was set forth in Siccardi … the Court also

took notice of an internal policy of Assignment

Judges, which wisely confines the issuance of

carrying permits to … limited personnel who can

establish an urgent necessity for carrying guns

for self-protection. One whose life is in real

danger, as evidenced by serious threats or

earlier attacks, may perhaps qualify… [In re

Preis, 118 NJ 564, 571 (1990) citing Siccardi at

557.]

2

The former designation of today’s 2C:58-4 prior to recodification.

3

Since Siccardi upheld URGENT NECESSITY in 1971,

the New Jersey Attorney General’s Office, “has been on

record for a long time as opposing the carrying

privileges of any person.” [Testimony of Victoria

Bramson, Esq., Deputy Attorney General, Division of

Criminal Justice. SUBCOMMITTEE ON ADMINISTRATION

OF F IREARMS S TATUTES, ASSEMBLY J UDICIARY

COMMITTEE, New Jersey Legislature, State House

Annex, Trenton NJ 08625. Second Public Hearing,

Tuesday September 22, 1987, Page 23.]

And like Bramson, Siccardi revealed New Jersey’s

antithesis to the right to bear arms. In 1966 New

Jersey revised its Gun Control Law to include handgun

carry permits3 regardless of mode of carry. Attorney

General Sills explained in the press why he changed

the 2C:58-4 carry permit law from concealed, to all

forms of carry:

[Sills] said there is no law against walking down

the street with a weapon in your hand or on your

body as long as it isn’t concealed. He cited the

case a few years ago of a Paterson restaurant

owner who was refused a permit to carry a

concealed weapon so he strapped two pistols on

his hips, in plain view, and walked down the

street. Police stopped him and called Mr. Bergin

to find out how he should be charged. “We

couldn’t charge him with a darn thing”, Mr.

Bergin said. [Sills Demand Curbs on Sale of

Firearms, Asbury park Evening Press, Thursday

Dec. 5, 1963. Pg. 27.]

3

Formerly NJSA 2A:141-44, now 2C:58-4.

4

Prior to 1966, as long as the weapon wasn’t

concealed, there was no crime. See State v. Gratz, 86

N.J.L. 482, 92 A. 88 (1914).

Attorney General Sills, the drafter of the Gun

Control Law, explained in documented testimony in

both 1965 and 1966, why he changed the carry permit

law from concealed to all forms of carry. In 1965, to the

SENATE COMMITTEE ON THE JUDICIARY, Sills he

explained the Newark via Maryland straw purchasing

ring where handguns, without purchase permits, were

coming across New Jersey’s borders diminishing the

effect New Jersey’s laws have against criminals:

Although under present New Jersey law a

permit to carry a pistol or revolver is required,

there is no way to detect weapons which are

smuggled into New Jersey without a permit to

purchase or carry … Our experience with the

State of Maryland highlights … the urgency of

this measure. Chairman Dodd pointed out in his

opening statement … that our State police, in

cooperation with Maryland authorities, had

revealed the purchase of handguns by New

Jersey residents in that State.

These people were able to buy 65 handguns from

3 retail stores located in Aberdeen, Md. Eight of

these persons used fictitious names or

addresses, and five of the eight used the same

address … one Hector Gomez, later found to

have had a lengthy police record for such

offenses as extortion, robbery, assault, and

attempted rape, purchased 12 handguns in the

5

same store on locations within a period of 12

days and 3 more in another store….

It is apparent that … the purchases by Gomez

were made for illegal resale.

…business records indicated that he had sold …

handguns … with 29 having been purchased by

New Jersey residents.

The sales ledger of the second proprietor …

indicated …18 having been purchased by New

Jersey residents. This proprietor stated …

Hector Gomez had bought an estimated 200

handguns … in the Aberdeen area.

Records of the third establishment showed …

that 18 (handguns) having been sold to New

J e rs ey i tes. [HEARINGS BEFORE THE

SUBCOMMITTEE TO INVESTIGATE JUVENILE

DELINQUENCY OF THE COMMITTEE ON THE

JUDICIARY. US Senate, 89th Congress, First

Session. US Govt. Printing Office. Washington

1965. Hereinafter 1965 Dodd Hearings.

Testimony of AG Sills at 404-405. See Testimony

of AG Sills PL 90-618 H.R. 510, 89th Cong., 1st

Sess. (1965). As introduced and referred to the

House Committee on Ways and Means on

PROPOSED AMENDMENTS TO THE NATIONAL

FIREARMS ACT. January 4, 1965. Part 1. US

Govt. Printing Office, Washington 1965. Pg. 57.

¶3. (Hereinafter “H.R. 510 Testimony”.)].

Sills also explained the problem he was having with

mail order guns being shipped to New Jersey “with no

permits issued”:

6

Our experience in Maryland … involved the

purchase of handguns for illegal importation in

New Jersey. We have had similar problems with

dealers in California who … have been

accomplices to the mail-order sale of guns

illegally purchased and shipped into our State …

It was discovered that of the 126 guns sold and

shipped by mail by Seaport Traders Inc., of Los

Angeles, Calif., … no permits were issued for 56.

Of the 28 handguns sold and shipped by

Weapons Inc., … no permits were issued for 5.

Of the 154 guns sold and mailed by these two

outfits, 61 were sold and mailed without permits

being issued. It was also ascertained that 26

persons with criminal records were among those

who had the 61 weapons from these 2 mail-order

houses. I trust that the testimony I have offered

to the subcommittee has given some indication

of the problem we face in New Jersey. This

problem derives not only from the wanton and

indiscriminate importation and resale of lethal

weapons of all varieties which we cannot legally

control with the legislation we now have, but

also from the violation of existing laws which

cannot be prevented without Federal assistance.

[Dodd Hearings supra at 404-405; Testimony of

AG Sills; See Testimony of AG Sills H.R. 510

Testimony supra pg. 57. ¶3.]

Sills’ testimony, “there is no way to detect weapons

which are smuggled into New Jersey without a permit

to purchase or carry,” in the 1965 Dodd Hearings must

be read in tandem with Sills’ testimony in the PUBLIC

HEARING ON ASSEMBLY BILL NO. 165. Assembly

7

Chamber, State House, Trenton NJ. March, 2, 1966

(hereinafter “A-165 Debates”):

For those who wish to obtain the permits … it

will be necessary … to be fingerprinted in order

to determine if they are any of the unfit persons

described in the bill. This is the only effective

way I know of checking an individual’s

background… [emphasis added].

This was the only way for Sills to include pre-1966

purchased handguns with both the illegal Maryland

and mail order handguns into the licensing scheme.

Simply changing 2C:58-4’s wording, by removing

“concealed” from the law, Sills now insured all carried

handguns would have to run through the permit

process, and allow the Police Chief to investigate,

fingerprint and background check all applicants.

Twice in 1966, and once in 1968, Sills explained the

meaning of 2C:58-4’s “public health safety and welfare”

clause in testimony:

The main thrust of A 165 is to make it illegal to

sell or purchase pistols and revolvers in New

Jersey if the purchaser involved has a physical

defect or sickness which makes it unsafe for him

to handle firearms – Now many people have said

this bill prevents a purchaser who has a physical

defect from getting a permit. It does not say

that. It says, which defect makes it unsafe for

him to handle firearms. – also if he has ever

been confined to a mental institution or

sanitarium and cannot produce a doctor’s

certificate indicating he can safely handle a

8

firearm; if he has ever been convicted of a crime,

is an alcoholic, an habitual user of or addicted to

narcotics, goof-balls or pep pills; or he is a

subversive. In other words, standards are set

forth to determine if the issuance to a

permit to purchase or carry a pistol or

revolver would be in the interest of public

health, safety or welfare. [emphasis added.]

Mr. Sills: Well, of course, you who are legislators

know that throughout the entire [statutes], the

terms “public health” and “safety” have been

used on innumerable occasions and courts have

construed it in accordance with the intent of the

legislation. Now in this particular case, the

present law has, and we were asked to maintain,

that a person be of good reputation and good

character. Now it is very easy to for anyone to sit

down and try to construe all of the things which

would make a person of poor character or poor

reputation. One thing, for example, as I sit here

and think, might be a person who is indicted

presently for a felony and who may be out on

bail, but he has not been convicted of a crime; a

person who perhaps has been engaged in every

kind of escapade in his community for many,

many years, but was fortunate in that he

escaped the claws of the law … But as I point

out to you, the present law has these very same

words in it with respect to manufacturers and

wholesalers and we have extended it here to the

point of the granting of the permit and, as I

indicate, it would be construed in the manner in

which I have just suggested.

9

The statute ... provides that no permit or

identification card shall be issued “to any person

where the issuance would not be in the interest

of the public health, safety or welfare.” At oral

argument the Attorney General took the

position, with which we agree, that the quoted

language was intended to relate to cases of

individual unfitness, where, though not dealt

with in the specific statutory enumerations, the

issuance of the permit or identification card

would nonetheless be contrary to the public

interest. [Burton supra at 90-91 (citing Attorney

General Sills.)]

The public safety clause was designed to prevent

permits from going to the “unfit elements of society.”4

The public safety clause was not designed to claim

all 2C:58-4 applicants are dangerous in public when

carrying a handgun for self-defense. Sills is on record

telling “the fit” elements of society that they had a

legitimate right to carry a gun when selling A-165 to

the public:

“Of all people, I can’t understand your

opposition. If you’re all ‘good guys,’ you shouldn’t

be afraid to register.” Sills said. “You have a

legitimate right to own and carry a gun and

4

To understand Sills’ term “unfit elements of society,” See Burton

at 91, 93 and 105 (New Jersey’s Gun Control Law is highly

purposed and conscientiously designed toward preventing criminal

and other unfit elements from acquiring firearms while enabling

the fit elements of society to obtain them with minimal burdens

and inconveniences.)

10

know how to handle guns. I can’t understand

why the so-called ‘good guys’ are raising such

resistance.” [Sills Fights for Tougher Gun Laws,

The (Red Bank) Daily Register. March 11, 1965.

Pg. 1. Emphasis added.]

But claiming all 2C:58-4 applicants are dangerous in

public when carrying a handgun for self-defense is

exactly New Jersey’s claim today:

New Jersey has decided that this somewhat

heightened risk to the public may be outweighed

by the potential safety benefit to an individual

with a “justifiable need” to carry a handgun.

Furthermore, New Jersey has decided that it

can best determine when the individual benefit

outweighs the increased risk to the community

through careful case-by-case scrutiny of each

application, by the police and a court. See Drake

v. Filko, 724 F.3d 426, 439 (3d Cir. 2013).

New Jersey’s “decision” (according to Drake) is

diametrically opposed to Attorney General Sills who

simultaneously explained on page 5 of the A-165

Debates that: “...standards are set forth to determine if

the issuance of a permit to ... carry a pistol or revolver

would be in the interest of the public health safety and

welfare.” And in the very next sentence, “(f)or those

who wish to carry a pistol or revolver, permits will be

required as they are under present law.”

The key to understanding that New Jersey’s

permitting system is neither “longstanding” pursuant

to District of Columbia v. Heller, 554 U.S. 570, 128 S.

Ct. 2783 (2008) at page 2816-17 or “presumptively

11

lawful” per Heller’s N.26 is to investigate when the

requirement changed from “as they are under present

law” to “urgent necessity.” The first bread crumb comes

from Preis supra, where the New Jersey Supreme

Court said:

Under the Siccardi rule there must be “an

urgent necessity * * * for self-protection.” 59 N.J.

at 557, 284 A.2d 533. The requirement is of

specific threats or previous attacks

demonstrating a special danger to the

applicant’s life that cannot be avoided by other

means. Ibid.; [Preis at 571. Reilly v. State, 59

N.J. 559, 562, 284 A.2d 541 (1971); In re

Application of X, 59 N.J. 533, 534-35, 284 A.2d

530 (1971).]

Preis demonstrates that URGENT NECESSITY and the

requirements of specific threats (plural) and previous

attacks (plural) came from Siccardi in 1971.

Testimony in Siccardi reveals that:

(s)everal police chiefs and a representative of the

State Police testified as expert witnesses before

the County Court; they all supported a highly

restrictive approach in the granting of carrying

permits. Thus Chief Roy of the Elizabeth Police

Department acknowledged that his standards of

“need” were changing “toward the side of more

stringency.” [Siccardi at 550.]

But the question becomes, more stringent than what?

12

In the previous Preis citation, Preis cited Reilly

where Drs. Reilly, Baron, Bernstein and LaBate all

held carry permits prior to 1970:

In earlier years ... Dr. John J. Reilly ... held

carrying permits but his 1970 application for a

carrying permit was denied because of an

insufficient showing of need. [Reilly at 560.]

Dr. Stuart Baron had carrying permits in 1968

and 1969 but his 1970 application was denied ...

the County Judge concluded that he had not

made a sufficient showing of need under

currently governing principles. [Id. at 561.

Emphasis added].

Dr. Michael Bernstein ... held carrying permits

since 1960. His 1970 application was denied

because of an insufficient showing of need. [Id.

at 561.]

Dr. Philip LaBate ... held carrying permits in

1968 and 1969 but his application for a 1970

permit was denied because of an insufficient

showing of need. [Id. at 561-562.]

To answer “more stringent than what?”, it is important

to notice “currently governing principles” in Dr. Baron’s

paragraph above. NJSA 2C:58-2.6 requires that:

The Attorney General, in accordance with the

provisions of the “Administrative Procedure

Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), shall

promulgate rules and regulations to effectuate

the purposes of this act.

13

But there is nothing in the New Jersey Register to

document that any change in the issuance standards

took place. In fact, the NJ Register of December 25th,

1969 13:54-23’s Limitations on issuance simply reads:

A permit to carry a pistol or revolver shall not be

issued to any person who is subject to any of the

disabilities which would prevent obtaining a

permit to purchase a pistol or revolver or a

firearms purchaser identification card as

provided in this chapter. [1 N.J.R 30.]

The 1969 Register stated in 13:54-21 Application for a

Permit to Carry a Pistol or Revolver that:

(e)very person applying for a permit to carry a

pistol … shall furnish such information and

particulars as set forth in the application form

designated SBI 92… [1 N.J.R 30, Emphasis

added].

When Sills testified in the Dodd Hearings a year

earlier, Sills included form SBI 92 as Exhibit No. 20.

There was simply no requirement of URGENT

NECESSITY, “specific threats” or “previous attacks.”

Line number (3) simply reads, “THE REASON OF

SUCH APPLICATION IS.” [Dodd Hearings at 149.]

Mathematically worse, URGENT NECESSITY did not

show up in the Administrative Code until twenty years

after Siccardi in 1991. Not as a rule of the Attorney

General that followed the “Administrative Procedure

Act,” but as a direct result of the 1990 New Jersey

Supreme decision in Preis.

14

NJAC 13:54-2.3 reiterates the statutory criteria

which must be satisfied in order to obtain the

issuance of a permit to carry a handgun. This

and other amendments in subchapter 2 reflect

the standards enunciated by the Supreme Court

decision in In re Preis, 118 NJ 564 (1990). [23

N.J.R 2251.]

The lack of adherence to the Administrative Procedures

Act not only casts doubt on any claim by the State that

their regulation is “presumptively lawful,” but this

twenty-year timeline debunks any “longstanding” claim

as well.

Further research of Siccardi, reveals that the

URGENT NECESSITY RULE was created by the

investigation unit of the State Police:

Sergeant Klauss heads the investigation unit of

the State Police ... (h)e detailed the action taken

by his department in connection with permit

applications ... (h)e noted that “stricter measures

concerning the issuance of permits are being

applied” [Siccardi at 551.]

Siccardi simultaneously explained that the

investigation unit’s URGENT NECESSITY requirement

came from a law review, though oddly enough, that was

a recommendation for ownership of a handgun and

was printed three years after A-165 became the Gun

Control Law:

The National Commission recommended federal

legislation to encourage the establishment of

state licensing systems for handguns with

authority in each state to determine for itself

15

what constitutes “need” to own a handgun

… the Commission recommended that

“determinations of need be limited to police

officers and security guards, small businesses in

high crime areas, and others with a special need

for self-protection.” [Siccardi at 553. Citing

Final Report, National Commission on the

Causes and Prevention of Violence, p.181

(1969). Emphasis added].

It is worthy to note an editor of the Final Report

was Franklin E. Zimring. In a 1981 New York Times

article, Zimring was quoted as saying what he does is

similar to “gypsy fortune telling”:

Mr. Zimring also doubted that any study could

determine whether a particular law was a

deterrent to violent crime. “This whole notion of

cause and effect is suspect.” He said.

“Criminologists are very much like forecasting

economists and gypsy fortune tellers. We can’t

explain gun-related behavior, so how can we say

what has affected it, either up or down?”

[Knight, Michael. “Studies of Gun Law Divided

on Impact” New York Times. [New York] 21,

January 1981: Page A17.]

Essentially, the State’s URGENT NECESSITY RULE came

from a criminologist who admitted ten years later that

his recommendations were “suspect.”

Siccardi revealed how the “URGENT NECESSITY RULE”

of the investigation unit by-passed the Administrative

Procedures Act and still made it into the

Administrative Code:

16

the Assignment Judges undertook ... the

furtherance of a strict policy which wisely

confines the issuance of carrying permits to

persons specifically employed in security work

and to such other limited personnel who can

establish an urgent necessity for carrying

guns for self-protection. One whose life is in real

danger, as evidenced by serious threats or

earlier attacks, may perhaps qualify…

[Siccardi at 557. Emphasis added]

According to Siccardi, the Assignment Judges

“furthered” the investigation unit’s “stricter measures

concerning the issuance of permits”.

Siccardi’s rational for the Assignment Judges’

creation of the URGENT NECESSITY RULE was that in

2A:151-44, Judges would study “expert materials” and

arrive at Carry Permit “policy formations.”

In N.J.S.A. 2A:151-44 the Legislature made

provision for other persons who could make a

sufficient showing of “need,” leaving to the

Judges the required policy formulations as to

what constitutes “need.” The Legislature was

fully aware that these formulations would

represent the conscientious determinations of

the Judges arrived at on the basis of their study

of such expert materials as are available within

and without our State. [Siccardi at 557]

As NJSA 2C:58-2.6 makes the Attorney General,

and not the Assignment Judges, the rule promulgator,

when the URGENT NECESSITY RULE entered the

Administrative Code in 1991, it did so by-passing the

17

Administrative Procedures Act. As the Assignment

Judges’ “furtherance” was not ‘in accordance with the

provisions of the “Administrative Procedure Act,”’ the

URGENT NECESSITY RULE was never “presumptively

lawful” until the Legislature entered it into the Statute

in 2018. Which in turn means, THE “URGENT NECESSITY

RULE” is not “longstanding” under Heller.

Likewise, as THE URGENT NECESSITY RULE was a

“stricter measure” of the investigation unit, and

“furthered” by the Assignment Judges, THE “URGENT

NECESSITY” RULE was never legislative intent until

2018.

2. The theory of preventing the “known and

serious dangers of misuse and accidental use”

was not Legislative Intent.

The theory of preventing the “known and serious

dangers of misuse and accidental use” by limiting

permits to the “fit elements of society” was not a

legislative goal in 2C:58-4. [See Burton supra at 105 in

FN3] On page 558, Siccardi explained the prevention

of “misuse and accidental use” theory came from the

Police Chief testimony stating that:

The grant of a permit to him to carry a concealed

handgun on his person or in his automobile

would, AS ALL OF THE EXPERT TESTIMONY

INDICATES, afford hardly any measure of selfprotection and would involve him in the known

and serious dangers of misuse and accidental

use. [Siccardi at 558. Emphasis added].

18

The Police testimony in Siccardi reads as follows:

Chief Roy of the Elizabeth Police Department ...

noted that “what happens is that the criminal

selects his particular time when the victim is

unaware of the attack. It is a sudden, very swift

type of attack where the individual is caught off

guard and has no opportunity to get his weapon

to use it and this is the reason why the

individual, even if he had a weapon, could be

just as much a victim of a robbery as an

individual who did not have a weapon. Siccardi

at 550.

Chief Mass of the Shrewsbury Police

Department ... considered that carrying the gun

has no deterrent effect and noted that the crime

is usually “over and done with” before the person

carrying the permitted weapon can effectively

react. Id.

Chief Haney of the Cranford Police Department

knew of no instance in Cranford where a

permitted gun was used to thwart a holdup or

protect the permittee; he considered that the

private person’s possession of the concealed

weapon did not serve at all as a deterrent to

crime. Id. at 551.

Sergeant Klauss ((of) the investigation unit of

the State Police) not(ed) that the concealed

weapon does not operate as a deterrent and that

attacks happen with “so much suddenness that

they would have very little chance to use the

firearm in the event that they were called upon

19

to do it.” He stressed that “historically” private

people who attempt to thwart robberies through

the use of permitted weapons usually wind up

with serious or fatal injuries to themselves. Id.

at 551-552.

“(T)he known and serious dangers of misuse and

accidental use” is not just an isolated clip in Siccardi.

The relevant cases of the day all read Siccardi the

same way and prove that the “known and serious

dangers of misuse and accidental use” came from the

Police Chief testimony in Siccardi:

-

“… possession of handguns in the streets

would, as the expert testimony referred to in

Siccardi indicates, furnish hardly any

measure of self-protection and would involve

them in the known and serious dangers of

misuse and accidental use. Reilly v. State, 59

N.J. 559, 562 (1971).

-

[h]e has never been assaulted or threatened

and, as the expert testimony referred to in

Siccardi indicates, his possession of a

handgun in the streets would furnish hardly

any measure of self-protection and would

involve him in the known and serious

dangers of misuse and accidental use.” In re

“X”, 59 N.J. 533, 535 (1971).

20

Siccardi then explained that the Police Chief

testimony was the same as Zimring’s5 Staff Report

(which):

found that private possession of a handgun is

rarely an effective means of self-protection; and

so far as the carrying of handguns is concerned,

they noted that “no data exist which would

establish the value of firearms as a defense

against attack on the street” though “there is

evidence that the ready accessibility of guns

contributes significantly to the number of

unpremeditated homicides and to the

seriousness of many assaults.” Siccardi at 552.

Zimring advised on page 66 of the Staff Report,

where this, “guns are not effective” and “crimes are so

“sudden” theory (the Siccardi Police Chiefs’ position)

came from. Zimring cites at note 14, “Verne Bunn” from

the Small Business Administration and their

publication Crime Against Small Business. Bunn

wrote:

Because of the sudden, almost violent action of

robbery, the victims are often taken by surprise

and off their guard. The typical robbery occurs in

a very short period of time---less than a minute.

The victim generally finds it difficult to relate

details of the robbery accurately or reliably to

the police.

5

Zimring – the individual who admitted in the New York Times

that his job was suspect and like that of a gypsy fortune teller.

21

Almost universally, police departments counsel

against the victim of a robbery taking any action

which might antagonize the robber. Instead, he

is cautioned to cooperate fully with the robber’s

wishes, but at the same time, noting factors

relating to the robbery that will be useful to the

police---description, escape route, property

taken, etc.” See Crime Against Small Business:

A Report of the Small Business Administration.

April 3, 1969. Senate Document No. 91-14.

Pg. 242.

Zimring’s Final Report took Verne Bunn’s words and

re-wrote them:

Almost invariably, police departments counsel

against the victim of the robbery taking any

action which might antagonize the robber.

Instead he is cautioned to cooperate fully with

the robber’s wishes .... The typical businessman

is neither adequately trained nor prepared

mentally to face up to the robber. See Zimring’s

Final Report at 66.

The footnotes reveal the entire Police Chief testimony,

preventing the “known and serious dangers of misuse

and accidental use,” and thus the mighty rock upon

which the State rests its URGENT NECESSITY RULE,

came not from the legislature, but Verne A. Bunn, who

was a Management assistance officer in the Small

Business Administration’s Kansas City regional Office.

See Crime against small business, pgs. XI and 242.

New Jersey tries to maintain that: “(t)he Legislature

conditioned the issuance of a carry permit based its

22

“longstanding ‘aware[ness] of the dangers inherent in

the carrying of handguns and the urgent necessity for

their regulation,’ a necessity attributable to the ‘serious

dangers of misuse and accidental use,’” See State ex rel.

Duncanson, No. A-3318-14T2, 2016 N.J. Super. Unpub.

LEXIS 2222, at *3 (Super. Ct. App. Div. Oct. 7, 2016)

(emphasis added). However, the government is citing

erroneous history that has been re-treaded repeatedly:

-

[w]e cannot conclude that the [Second]

Amendment or the Court’s recent decisions

require this State to dismantle its statutory

scheme addressing the risks of misuse and

accidental use [of firearms] in public places

devised long ago and developed over many

years. This scheme is crafted to burden the

exercise of the right to use handguns for

lawful purposes as little as possible, without

abandoning this effort to maintain order and

safety in public places. See In re Winston, 438

N.J. Super. 1, 10 (Super. Ct. App. Div. 2014).

-

The sole reason articulated by New Jersey in

this case is that the justifiable need

requirement is “designed to combat the

dangers and risks associated with the misuse

and accidental use of handguns.” See Drake

v. Filko, 724 F.3d 426, 453 (3d Cir. 2013)

(Hardiman, J., dissenting).

-

New Jersey has asserted that the interests

served by the Handgun Permit Law include

“combating handgun violence and combating

the dangers and risks associated with the

accidental and misuse of handguns” and

23

“reducing the use of handguns in crimes.”

See Piszczatoski v. Filko, 840 F. Supp. 2d

813, 835 (D.N.J. 2012).

3. Any New Jersey claim that their URGENT

NECESSITY RULE is “presumptively lawful” and

“longstanding” is a mathematic impossibility.

It is historically significant to recognize that A-165,

the bill that became New Jersey’s Gun Control Law,

was drafted by Attorney General Sills. See Hearings

before the Committee on Ways and Means, 89th

Congress. First Session on Proposed Amendments to

the National Firearms Act. July 1965. Part 1. US Govt.

Printing Office, Washington 1965. Pg. 408. (“Assembly

Bill No. 165 is the much-publicized bill developed by

the Office of State Attorney General Arthur J. Sills.”)]

In the A-165 Debate, Attorney General Sills stated:

the history of my office to draft suitable

firearms controls precedes by many months

that tragic day in Dallas of November 22, 1963.

This problem was brought to my attention as

early as 1963 by the prosecutors of this State.

See A-165 Debate at 3. Emphasis added.

The newspapers of the time period also printed that

Sills drafted the Gun Control Law:

Atty. Gen. Arthur J. Sills yesterday called for

stringent new regulations governing the sale,

purchase and possession of firearms. Mr. Sills

said his office and the state police have

been studying the problem of easy access to

firearms since last March. However, he said,

“It always seems to take a catastrophic situation

24

to make people act in certain fields.” He reffered

to the death of President John F. kennedy, who

was assasinated with a mail-order rifle …

Sweeping revision of existing laws

governing firearms was recommended to

Mr. Sills last month by a study committee of

three county prosecutors. See Sills Demand

Curbs on Sale of Firearms, Asbury park Evening

Press, Thursday Dec. 5, 1963, Pg. 27. Emphasis

added.

Attorney General Sills presented an affidavit in New

Jersey Supreme Court and stated that he was closely

involved “in the drafting and presentation of the Gun

Control Law...” [Serv. Armament Co. v. Hyland, 70 N.J.

550, 560, 362 A.2d 13 (1976).]

The attorney general said he has an obligation

to draft and introduce the measure because

of the nature of his office. The bill is an

outgrowth of recommendations of Gov.

Richard J. Hughes. The governor has said

that the assassination of John F. Kennedy

“emphasized the need for reconsideration of

the restrictions that should be imposed on

people who buy guns.” The bill would:

---Require the registration of all new

firearms with police officials ***

---Allow local police chiefs to refuse permits

to persons with mental and physical

handicaps that would make it unsafe for

them to handle firearms.

25

---Refuse permits to convicted criminal, drug

addicts, alcoholics, or members of

subversive organizations. [Sills Fights for

Tougher Gun Laws. The Daily Register.

Thursday, March 11,1965. Pg. 2.]

New Jersey’s Gun Control Law was ruled

constitutional because the New Jersey Supreme Court

characterized the Gun Control Law as:

highly purposed and conscientiously designed

toward preventing criminal and other unfit

elements from acquiring firearms while enabling

the fit elements of society to obtain them with

minimal burdens. (Service Armament Co. at 559)

(additional citation omitted).

The Gun Control Law was enacted in 1966. [See Burton

at 89 (citing L. 1966, c. 60; N.J.S. 2A:151-1 et seq.)] It

is impossible that the Gun Control Law was “highly

purposed” or “conscientiously designed” if Sills drafted

it from 1963 to 1966, unknowingly waiting until a

“Management assistance officer in the Small Business

Administration’s Kansas City regional Office”

published a report for the Small Business

Administration, three years later on April 3, 1969.

It is even more historically inaccurate to suggest

that New Jersey’s “highly purposed and conscientiously

designed” Gun Control Law was going to wait for

Franklin Zimring to pick up Verne A. Bunn’s Small

Business Report and reprint citations of it, as his

National Commission recommendations in late 1969.

[See Siccardi at 552 (citing Final Report, dated 1969.]

26

Worse, it contradicts Burton precedent to assume

that the Gun Control Law, as A-165, was so unconscientiously designed by Sills, that the carry

permit statute within the law was going to have to rely

on Zimring’s National Commission’s recommendation

on the owning of handguns to establish its 2C:58-4

carry requirements:

The National Commission recommended federal

legislation to encourage the establishment of

state licensing systems for handguns with

authority in each state to determine for itself

what constitutes “need” to own a handgun.

Final Report, National Commission on the

Causes and Prevention of Violence, p. 181 (1969).

[Siccardi at 552. Emphasis added].

If the constitutionality of 2C:58-4 was upheld in 1971

because the law was, “highly purposed and

conscientiously designed,” in 1966 and the time line of

the investigation unit, the Assignment Judges,

Zimring’s Final Report and Verne Bunn just proved

that the URGENT NECESSITY RULE was not highly

purposed or conscientiously designed, until 1969, then

the constitutionality of “urgent necessity” is now at

odds with the Second Amendment.

CONCLUSION

This Court should grant Mr. Cheeseman’s petition

for a writ of certiorari.

27

Respectfully submitted,

Stephen D. Stamboulieh

Counsel of Record

Stamboulieh Law, PLLC

P.O. Box 4008

Madison, MS 39130

(601) 852-3440

Stephen@sdslaw.us

Alan Alexander Beck

Law Office of Alexander Beck

2692 Harcourt Drive

San Diego, CA 92123

(619) 905-9105

Alan.Alexander.Beck@gmail.com

Counsel for Amicus Curiae