In a few states — including New Jersey — people need a license to even get a firearm to keep at home, and the police may deny such a license if they think the person poses a danger to others. This isn’t limited to getting concealed carry licenses; it applies to having a gun in the first place. And it isn’t limited to people who have been convicted of a felony or a violent misdemeanor, or even to people who have been found by a preponderance of the evidence to have committed or threatened violent acts (that’s the standard usually used for domestic restraining orders).
In the Matter of Novello (N.J. Super. Ct. App. Div. July 15) offers a striking example of how this can be used: Novello was denied the ability to get any firearm (whether handgun or long gun) because his ex-wife says he “became angry at times, slammed doors with force and caused damage,” which made her fear him. (The wife also alleged that “Novello stated that his stomach was ‘turned’ by the idea of her having a boyfriend and he was going to get a gun,” but the trial judge expressly said “that it was difficult for him to determine whether Novello had actually threatened to kill Pissucci if she dated someone else,” so it sounds like he wasn’t relying on that.) Here’s what seems to me to be the heart of the appellate court’s analysis:
[Novello] acknowledged that he and Pissucci argued at times. He admitted that, on one occasion, he slammed a door and a piece of the door stop “snapped off.” …
After hearing argument from counsel for the parties, the court rendered an opinion from the bench. The court noted that Pissucci’s behavior probably contributed “to the situation.” The court found that Novello’s relationship with Pissuci involved “a great deal of acrimony” and was “very argumentative[.]” The court stated that Novello and Pissucci
trigger each other into verbal arguments. They trigger each other into losing their temper[s]. They trigger each other so that doors are slammed. They trigger each other so that doors are slammed and broken. They trigger each other so that the wife is now fearful [that] if he gets a gun … she is going to be killed.
The trial judge stated that it was difficult for him to determine whether Novello had actually threatened to kill Pissucci if she dated someone else. The judge also stated that, while Novello said that he wanted to obtain a gun to protect himself in Scotch Plains, there were “very little incidents of crime, at least incidents of violent crime” in that municipality….
The court found that the Police Chief had properly determined that issuance of a handgun purchase permit and FPIC to Novello would not be in the interest of the public health, safety or welfare [the statutory standard -EV]. In our view, the court’s finding is supported by credible evidence.
As we have explained, the testimony presented at the hearing established that Novello and his former wife have a volatile and argumentative relationship, which has at times prompted Novello to act in an angry manner. It is undisputed that Novello’s actions have included the forceful slamming of doors, which has resulted in property damage, although the damage was relatively minor. Furthermore, Novello failed to establish that he had a legitimate need for the weapon.
We are satisfied that the court’s factual findings support its conclusion that it would not be in the interest of the public’s health, safety and welfare for Novello to possess a handgun, particularly in view of his volatile relationship with his former wife.
It seems to me that the right to possess the tools needed for effective self-defense — especially if that’s seen as a constitutional right, but even if it is not — shouldn’t be lost simply because someone has lost his temper to the point of slamming doors hard. Nor should it be denied based on a government official’s discretionary judgment that this person gets too angry.
Of course, there is indeed a risk that angry people will misuse guns, with harmful or fatal results, just as there’s a risk that people who are denied guns will be unable to defend themselves, with harmful or fatal results. But the way our legal system has long dealt with this — and, I think, ought to deal with it — is through threatening punishment for violent behavior, and denying liberty to those who have been proven to have committed crimes. Occasionally getting angry, and once slamming a door so hard that it splinters, shouldn’t suffice. (Note, to the extent it matters, that while intentionally damaging another’s property, even in a minor way, is a crime, negligently damaging your own property, even if you coown it with a spouse, is not.)
It seems to me that while the Second Amendment probably doesn’t preclude nondiscretionary licensing requirements for guns — much as the Constitution doesn’t preclude requirements of getting a marriage license or a demonstration permit, if those are routinely given to all applicants who satisfy clear and constitutionally sound criteria (see PDF pp. 103-107 of this article) — it does guarantee a right to buy a gun, unless one falls within some category of people who may constitutionally be denied this right. And licensing schemes that deny the right to people who have not been convicted of any crime, but who have simply occasionally gotten quite angry, should therefore be unconstitutional. The Novello court summarily rejected the Second Amendment argument, by citing In re Dubov, 981 A. 2d 87 (N.J. Super. Ct. App. Div. 2009). But Dubov simply said that:
[T]he Court [in D.C. v. Heller] expressly indicated that its holding did not require invalidation of statutes that require a license to purchase or possess a firearm. In fact, the Court noted that “[r]espondent conceded at oral argument that he does not `have a problem with … licensing’ and that the District’s law is permissible so long as it is `not enforced in an arbitrary and capricious manner[,]‘” thus obviating the need for the Court to address the validity of the specific provisions of the District of Columbia’s gun licensing statutes. Therefore, Heller has no impact upon the constitutionality of N.J.S.A. 2C:58-3(c)(5).
This is probably correct if it simply means that the licensing requirement is constitutionally permissible. But if the New Jersey courts are taking the view that all denials of a license are constitutionally permissible, at least if they are based on a plausible judgment that the person might be a danger — even when that is based simply on past anger and door slamming — that strikes me as inconsistent with Heller‘s recognition of a constitutional right to own a gun.