WEAPONSWEAPONSWEAPONSWEAPONSWEAPONS
Chapter 39 of the Code of Criminal Justice (Code)
sets forth various crimes relating to weapon possession,
use and disposition, as well as pertinent definitions.
Several subsections have not been subject to published
judicial interpretation, including N.J.S.A. 2C:39-12,
which provides for voluntary surrender of firearms,
weapons and other instruments; N.J.S.A. 2C:39-13,
which prohibits persons engaged in certain crimes to
wear bullet-resistant body vests; N.J.S.A. 2C:39-14,
which prohibits instruction in the use or making of
firearms, explosions and destructive devices; N.J.S.A.
2C:39-15, which prohibits advertising the sale of a
machine gun, semiautomatic rifle or assault firearm
without specifying that the purchaser must hold a
license; and N.J.S.A. 2C:39-16 which defines the crime
of “leader of a firearms trafficking network” and prescribes
penalties therefor. See also chapter 58 of the Code for the
statutory subsections relating to the licensing of firearms
and to N.J.S.A. 2C:39-10 for the penalties relating to
violations of that chapter.
I. DEFINITIONS (N.J.S.A. 2C:39-1)
N.J.S.A. 2C:39-1 sets forth various definitions that
apply in chapters 39 and 58 of the Code. See also N.J.S.A.
2C:11-1 (criminal homicide) and N.J.S.A. 2C:43-7.2d
(No Early Release Act), which define “deadly weapon,”
and N.J.S.A. 2C:2-1, which defines “possession.”
A. Constitutionality
Coalition of New Jersey Sportsmen v. Whitman, 44 F.
Supp.2d 666 (D.N.J. 1999). The Federal District Court
granted the State’s motion for summary judgment and
denied the Coalition’s challenge to the constitutionality
of New Jersey’s assault firearms act, N.J.S.A. 2C:39-1, et
seq. The court determined that the assault firearms law
was not vague on its face and refrained from deciding if it
was vague as applied, leaving the resolution of that issue
for the state courts on a case-by-case basis. The court
further ruled that the assault weapons law did not violate
equal protection, the freedom of association, or the
freedom of speech, and did not constitute a bill of
attainder. See also, State v. Auringer, 335 N.J. Super. 94
(App. Div. 2000) (discussing federal Gun Control Act of
1968 vis-a-vis New Jersey weapons statutes); State v.
Rackis, 333 N.J. Super. 332 (App. Div. 2000) (holding
federal statutes concerning imitation firearms not
preempt New Jersey statutes criminalizing carrying a BB
gun without a permit).
State v. Warriner, 322 N.J. Super. 401 (App. Div.
1999), held that N.J.S.A. 2C:39-1w(1), listing “M1
carbine type“ as an illegal assault weapon was not
unconstitutionally vague, either facially or as applied,
and reversed the trial court’s dismissal of the indictment
charging defendant with unlawful possession of an
assault firearm under N.J.S.A. 2C:39-5f.B. Firearms GenerallyN.J.S.A. 2C:39-1f defines a firearm, in part, as any
gun capable of firing a projectile, vapor or other noxious
thing.- Operability (N.J.S.A. 2C:39-1)
In State v. Elrose, 277 N.J. Super. 548 (App. Div.
1994), defendant was convicted of unlawful possession of
assault firearms and unlawful possession of large capacity
ammunition magazine. The Appellate Division affirmed
the convictions and held that (1) showing that firearms
had been rendered “inoperable” within meaning of
statute did not prevent conviction where defendant failed
to file required certificate of inoperability; (2) conviction
for possession of assault firearm did not require that State
prove that weapon was “operable” and (3) conviction for
unlawful possession of large capacity ammunition
magazine was supported by evidence that at least three of
the magazines contained more than 15 rounds, even if all
of them did not.State v. Orlando, 269 N.J. Super. 116 (App. Div.
1993), certif. denied, 136 N.J. 30 (1994), held there was
sufficient evidence that a shotgun met statutory
definition of “firearm” to support weapon convictions,
even though gun was allegedly inoperable because barrel
was stuffed with wooden dowel and lacked a firing pin.State v. Harris & Formato, 218 N.J. Super. 251 (Law
Div. 1986). Prior to enactment of N.J.S.A. 2C:39-1r(4)
and N.J.S.A. 2C:39-3h stun guns were not expressly
defined as weapons, and the possession of stun guns was
not specifically prohibited under the Code. The trial
court found the unamended statute unconstitutionally
vague as applied to a defendant indicted for unlawful
possession of a stun gun under N.J.S.A. 2C:39-5d and
unlicenced disposition of a stun gun under N.J.S.A.
2C:39-9d. According to the court, the Legislature’s
subsequent prohibition of stun guns was not a
clarification of the weapons provisions of the Code, but
a broadening of the legislative scheme for weapons
control. Consequently, the defendant, who was indicted