Editor’s note: This is an excerpt from an article in the October 2022 edition of the New Jersey Lawyer, The New Jersey Constitution - 75th Anniversary Issue. Members can read the full edition here.
By Steven M. Richman
The issue of gun control has been punctuated by the spate of tragic and unspeakable mass shootings that have engulfed the United States in 2022, the ongoing “everyday” gun violence and use of guns in suicide, as well as the recent United States decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen.1 States and their units (county and municipality) as well as the federal government have regulatory authority over firearms, but preemption conflicts persist not just between federal and state governments, but between state and local governments. Beyond competing interests at the legislative level, the courts have needed to resolve legal issues that are as much about public policy as they are about law.
New Jersey’s state constitution has never included an equivalent to the federal Constitution’s Second Amendment.2 However, New Jersey does have an “inalienable rights” provision:
All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.3
Perhaps the time has come for a clear statement in the New Jersey Constitution that declares public safety in the area of firearms and similar weaponry to be a matter of fundamental importance. Given that states have a vital function as laboratories for policy within the federal system,4 this article explores the feasibility and desirability of such a provision in the New Jersey state constitution.
Federal law regarding firearms derives from the Second Amendment to the U.S. Constitution, stating the well-known language that “[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.”5 During most of this country’s history the United States Supreme Court interpreted the Second Amendment more in terms of public safety than individual rights to bear arms.6 This changed in 2008 with District of Columbia v. Heller7 and the 2010 decision in McDonald v. City of Chicago.8 The most recent expansion of the Second Amendment’s reach occurred this year in Bruen.
This shift from restriction on societal rights to expansion of individual rights at a time of growing gun violence in the United States demands a solution. Because state constitutional law expands and contracts with the equivalent federal constitutional law, it can grant greater rights but not impose lesser rights. As a general principle, in the federal system of the United States, state courts can interpret their state constitutions to provide greater, but not lesser, protections than those afforded under the federal constitution.9 In such circumstances they are immunized against federal review.10 Consequently, after Heller, McDonald and now Bruen, the arguable effect on the states has been to move from no federal constitutional limits on their authority to regulate firearms to the significant limits of the last generation. Nonetheless, states retain significant space to regulate, constitutionally and statutorily, firearms sales and use. New Jersey, for example, has 78 laws, according to one source, that address items such as legal age for possession of long guns, to purchase of handguns, to where guns may be carried to surrender orders, and so forth.11
Complicating state law regarding regulation of firearms is the issue of preemption, in which state-level governance overrides local regulation.12 This is particularly important in the area of firearms; according to the National League of Cities, “only seven states give their local governments broad authority to regulate firearms and ammunition. These states also rank among those with the lowest gun death rates. In the remaining states, local firearm and ammunition regulation that is more stringent than existing state law is preempted in one way or another.”13
The State Constitutional Right to Firearm Safety
Against this background, consideration is warranted of a state constitutional provision declaring public safety from firearm injury and death to be a fundamental policy of the state, to be enforced within the limits of the Supreme Court’s Second Amendment jurisprudence. Such a provision conceivably could require firearms regulation statutes to be liberally construed in favor of this policy.14 It might go further, in constitutional text, to outlaw or regulate assault rifles, bump-stocks, large magazines, purchases by those under 21, “ghost guns,” and so forth. A model for such a provision would be Wisconsin’s Constitutional statement that enabled legislative and judicial action in another area involving dangers to society, i.e., products liability, declaring as a matter of policy that, “Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws.”15 Here, the statement would amplify and flow from the inalienable rights provision, and provide that every person is entitled to be safe from dangerous weaponry, and adjust automatically.
While statutes may be more easily revoked by legislative action, state constitutions are more durable. Inclusion of policy statements helps ensure permanence by elevating the standards for challenge and amendment, and provides additional support for legislation enacted to implement such constitutional policy.16 What a state constitution declares as a matter of policy may also be relevant to a federal court attempting to predict what a state court would do in a particular area as well.17 Two states, for example—Wisconsin and Arkansas—have placed policy statements in their constitutions to address particular substantive areas.18
Such a provision limited, as it must be, under the Second Amendment interpreted by the United States Supreme Court, would contract or expand according to the reach of the Second Amendment. If, for example, the Supreme Court ruled that states could not ban assault rifles, that provision of New Jersey’s clause would no longer be enforceable. This kind of provision would be self-executing and could certainly be implemented by statutes.19
The “State constitutional space” permitted to the states under the Second Amendment has been contracting, most recently under the Bruen decision. It contracted the states’ competence to regulate firearms in public, thereby reducing their state constitutional space in this regard in an accordion-like fashion. A state constitutional clause like the one suggested here would contract automatically.
One criticism of this proposal might be that these types of policy matters should be treated in ordinary statutory law and not state constitutional text. Yet state constitutions, unlike the federal Constitution, have regularly been used to entrench policy matters since the 1800s. New Jersey, although somewhat less than other states, is no different.20 Consider our recent amendments including minimum wage and cannabis policy in the state constitution. Statutes can be repealed; state constitutional provisions are much more difficult to change.
The question, therefore, becomes the value or legal import of such a statement of policy in the context of firearms regulation where the state seeks to set a policy rationale in the context of public safety. The individual rights of the firearms owner, while express in the federal constitution, nonetheless are not limitless, as expressly recognized by the majority opinion in Heller.21 One component to the Court’s analysis in Heller was whether the right to bear arms would be destroyed by the regulation.22
Conclusion
New Jersey does not start with the “handicap” of a constitutional right to bear arms provision. Such a provision has not proved an impediment to state or federal courts sustaining appropriate firearms regulation. On the other hand, if the state constitutional amendment were aimed more toward strengthening individual rights to be secure or safe, it might well provide another leg of analysis on which to apply an appropriate level of scrutiny under the state police power. Even though such a statement of policy would expand and contract with federal jurisprudence under the rule that a state constitution can provide more, but not less, protection to the right at issue, such a constitutional statement would be entitled to recognition, as noted even in Bruen. The right to security under the 14th Amendment, and universal jurisprudence recognizing that even in “right to bear arms” states the right is not unlimited or absolute, the question persists if more harm than good will be done by attempting to regulate or legislate by way of constitutional amendment. It remains something to consider. The New Jersey Supreme Court has emphasized that “[t]he New Jersey Constitution not only stands apart from other state constitutions, but also may be a source of individual liberties more expansive than those conferred by the Federal Constitution.”23 However, what should be considered more and how it is to be accomplished is the question.
This is a preliminary idea and deserves serious consideration by political leaders in our state that strives to be a national leader in gun control and protection. There will be many more details to be considered, but maybe now is the time for such consideration.
Endnotes
1. 142 S.Ct. 2111, 2122 (2022)
2. Robert F. Williams & Ronald K. Chen, The New Jersey State Constitution 50 (3d ed. 2022)
3. N.J. Const. (1947), Art. ¶1.
4. New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S. Ct. 371, 386–87, 76 L. Ed. 747 (1932)(Brandeis, J., dissenting) (“To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”).
5. The focus here is on state constitutional law. For an understanding of federal statutory law and the Supreme Court’s jurisprudence on this, see generally Congressional Research Service, Federal Firearms Laws: Overview and Selected Legal Issues for the 116th Congress (March 25, 2019) (crsreports.congress.gov/product/pdf/R/R45629). See also United States v. Cruikshank, 92 U.S. 542 (1875); United States v. Miller, 307 U.S. 174 (1939); District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010).
6. United States v. Miller, 307 U.S. 174, 178 (1939).
7. 554 U.S. 570 (2008).
8. 561 U.S. 742 (2010).
9. PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81 (1980).
10. Michigan v. Long, 463 U.S. 1032, 1040–41 (1983).
11. State Firearm Laws, statefirearmlaws.org/state-state-firearm-law-data.
12. Ballotpedia, Firearms Preemption Conflicts Between State and Local Governments (Sept. 2, 2021), ballotpedia.org/Firearms_preemption_conflicts_between_state_and_local_governments#:~:text=Firearms%20preemption%20conflicts%20between%20state%20and%20local%20governments,-From%20Ballotpedia&text=Ballotpedia%20covers%20preemption%20conflicts%20between,authority%20at%20a%20lower%20level.
13. National League of Cities, City Rights in an Era of Preemption: A State-by-State Analysis (2018 Update) (nlc.org/wp-content/uploads/2017/02/NLC-SML-Preemption-Report-2017-pages.pdf).
14. N.J. Const. (1947), Art. IV, §VII, ¶11 (liberal construction of local government power).
15. See, infra, n.19
16. See, e.g., Dohme v. Eurand Am., Inc., 2011-Ohio-4609, ¶ 18, 130 Ohio St. 3d 168, 172, 956 N.E.2d 825, 829 (“In an action claiming wrongful termination, the terminated employee must assert and prove a clear public policy deriving from the state or federal constitutions, a statute or administrative regulation, or the common law.”).
17. See, e.g., Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 618-620 (3d Cir. 1992), as amended (May 29, 1992).
18. Wisconsin provided policy that was used in the product liability context, see §9, quoted above; see Burton v. E.I. du Pont de Nemours & Co., Inc., 994 F.3d 791, 816 (7th Cir. 2021) (“The role of fungibility in the risk-contribution theory further confirms that it is a legal issue for the court. Fungibility is a prerequisite to applying the risk-contribution theory. The Wisconsin Supreme Court considers it when deciding whether a plaintiff lacks an adequate remedy at law, such that the Wisconsin Constitution authorizes the court to develop one.”). Arkansas also provided a policy statement in its state constitution regarding abortion, which was partially struck down but nonetheless remains for certain purposes. See Ark. Const. amend. LXVIII, §§1-3; Section 2 states that “[t]he policy of Arkansas is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution.”). In Dalton v. Little Rock Fam. Plan. Servs., 516 U.S. 474, 478 (1996) the Supreme Court addressed these clauses and held “[t]he District Court’s invalidation of §§2 and 3 of the amendment was based on the proposition that these sections “have no function independent of” §1. Even assuming that to be true, once §1 is left with the substantial application that the Supremacy Clause fully allows, §§2 and 3 subsist as well.”) (citation omitted). Section one dealt with the use of public funds for abortion. Another example of a policy statement in a state constitution is in Article XXIX of the Massachusetts State Constitution, which addresses impartial interpretation of laws (malegislature.gov/laws/constitution).
19. Robert F. Williams, The Law of American State Constitutions 343-345 (2009) (self-executing provisions are enforceable by the courts without implementing legislation).
20. Williams & Chen, supra, n.2 at 5-6.
21. Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.... For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.... Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” District of Columbia v. Heller, 554 U.S. 570 (2008) (quotations and citations omitted).
22. District of Columbia v. Heller, 554 U.S. 570, 599 (2008).
23. Lewis v. Harris, 188 N.J. 415, 456 (2006) (citation and quotation omitted).
Steven M. Richman is a member of Clark Hill in its Princeton, Philadelphia and New York offices. He is former chair of the of New Jersey Lawyer editorial board, former president of the New Jersey State Bar Foundation, former chair of the American Bar Association’s International Law Section, and currently American Bar Association Representative to the United Nations.