The most fundamental requirement for a legitimate legal regime is that a person must be able to know what the law requires before being held accountable to it. As a recent case out of New Jersey shows, however, the state’s oppressive laws for gun businesses no longer meet even this minimal threshold.
New Jersey arguably has the nation’s strictest gun control laws; it is difficult even for well-meaning people and businesses to thread their way through them to exercise their Second Amendment rights. On top of those laws, in 2022, the state enacted new requirements for each “gun industry member” to “establish, implement, and enforce reasonable controls regarding its manufacture, sale, distribution, importing, and marketing of gun-related products.” These “reasonable controls” are supposed to be geared toward preventing bad outcomes from the diversion and misuse of the industry member’s products by criminals.
Yet just what is expected, on top of the mountain of explicit requirements these businesses already face, is not explained. Gun industry members are supposed to figure that out for themselves. The price for guessing wrong, moreover, could be ruinous litigation from the state’s anti-gun office of the attorney general (AG).
On July 22, a judge from the Chancery Division of the Superior Court of New Jersey granted AG Matthew Platkin’s motion for summary judgement against Butch’s Gun World of Vineland in an enforcement action of the “reasonable controls” statute. The court also granted the AG’s request to force the shop to comply with a list of requirements that go well beyond codified law.
The case concerned two undercover buys from the shop by agents of the AG’s office. The first was a box of .223 caliber ammunition and a 6-round magazine for a Walther .380 caliber pistol. The second was a 1,000 round case of .223 caliber ammunition. The buyer in each case paid cash.
New Jersey law imposes various explicit (and likely unconstitutional) requirements for the sale of “handgun ammunition.” Sellers must be licensed gun businesses. Buyers who are not so licensed must display a valid Firearms Purchaser Identification Card, a permit to purchase a handgun, or a permit to carry a handgun. Retail sellers of handgun ammunition must record sales and make these records available to state authorities. Sales of 2,000 or more rounds must be “immediately” reported to the State Police.
Following the undercover buys, the state AG initiated a civil enforcement action against Butch’s Gun World under the reasonable controls statute. Significantly, the complaint did not claim .223 caliber ammunition or the Walther magazine were “handgun ammunition” nor claim the sales were a direct violation of the “handgun ammunition” requirements.
Instead, the complaint relied entirely on the idea that Butch’s Gun World had an affirmative duty under the reasonable controls law to apply additional safeguards to the sales of “gun-related products” beyond those specifically dictated by the New Jersey legislature. These “products,” moreover, include not just all types of firearms and ammunition, but “any … ammunition magazine, firearm component or part including, but not limited to, a firearm frame and a firearm receiver, or firearm accessory ….”
The complaint asserted, for example, that Butch’s Gun World should have understood the “reasonable controls” statute as extending certain requirements of the “handgun ammunition” statutes to ALL “gun-related products,” even though there is no language in the laws that actually specifies this.
Indeed, it would be odd (to say the least), that the New Jersey legislature would have been so specific as to the sales requirements for “handgun ammunition” if it had meant for the same sales requirements to apply to EVERY conceivable “gun related product.” This would violate the ancient legal principle of expressio unius est exclusio alterius, which means the express mention of one thing in a legal enactment implies the exclusion of all others.
To give such a reading to these two laws would seem, instead, to attribute to the legislature an intent to hide the ball and deceive gun industry members as to their legal responsibilities.
In resolving the case, in fact, the superior court washed its hands of trying to untangle what reasonable controls the law actually required of Butch’s Gun World in making the sales in question. Instead, it simply held that because the shop hadn’t imposed any additional measures (beyond following explicit statutory laws) in making the sales, the reasonable controls statute must have been violated in some fashion.
The case at bar does not require the Court to determine whether a driver’s license, firearms purchaser identification card or a criminal background check is required and would be sufficient to satisfy the statute. That is because the record before the Court is devoid of the Defendant having established ANY controls regarding the sale of gun related products. Thus, it is clear that the Plaintiff has established that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. [Emphasis added.]
Having thus determined that the gun shop should have thought of something extra to do, the court simply deferred to the AG’s suggestions on what that something should be:
The Plaintiff has proposed injunctive compliance obligations or what they consider to be reasonable controls to ensure compliance with the statutory scheme. The Court finds that the injunctive relief which is being sought is not overly burdensome and consistent with the relief afforded by the statute and would ensure compliance with the spirit and intent of the statute. [Emphasis added.]
The court similarly washed its hands of the shop’s contention that the reasonable controls statute violated due process by not explaining its requirements: “This Court is not positioned to determine whether the statute is unconstitutionally vague and will not do so.”
Ultimately, New Jersey’s anti-gun AG managed to get a court to extend statutory requirements that apply to one specific category of ammunition to a whole universe of products never actually subjected to those requirements by the legislature. Butch’s Gun World must, according to the AG’s office, now comply with the following requirements for sales of ALL gun-related products:
- Sell gun-related products only to (a) fellow licensed firearms businesses, or (b) persons who hold and possess a valid New Jersey firearms card or permit and first exhibit the card or permit to staff;
- Ask for a government-issued photo identification, such as a driver’s license, if a potential buyer presents a card or permit that lacks photo identification;
- Keep records for all sales of gun-related products detailing the verification means used for each sale and, for three years, transmit those records to the [Statewide Affirmative Firearms Enforcement Office]; and
- Write a set of policies used to educate and train each of its staff on the terms of the injunction and post those written policies in a space accessible to staff during business hours.
In essence, the AG’s office is making up the laws on firearms commerce one enforcement action and court decision at a time. What future requirements might be added are only limited by their imagination.
Of course, this is exactly what the U.S. Supreme Court recently said the federal Protection of Lawful Commerce in Arms Act (PLCAA) was meant to prohibit. Concurring with the decision in Smith & Wesson Brands v. Estados Unidos Mexicanos, liberal Justice Ketanji Brown Jackson recognized, “Activists had deployed litigation in an effort to compel firearms manufacturers and associated entities to adopt safety measures and practices that exceeded what state or federal statutes required.” And the “PLCAA embodies Congress’s express rejection of such efforts—stymying those who, as Congress put it, sought ‘to accomplish through litigation that which they have been unable to achieve by legislation.’”
Unfortunately, eight other states have similar “reasonable controls” statutes, including California, Colorado, Delaware, Hawaii, Illinois, Maryland, New York, and Washington.
All of them facilitate the same tactics AG Plakin used against Butch’s Gun World, which can be summarized by paraphrasing a maxim attributed to various tyrants throughout history: “Show me the [gun industry member], and I’ll show you the crime.”
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