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US Firearm Permit and Licensing Laws are Facially Unconstitutional

In the case titled Marc Stephens vs Jere­jian, et al, 15–3992, 2:14-cv-06688-WJM-MF, Plain­tiff Marc Stephens is seek­ing to strike down New Jersey’s Firearm law as facial­ly uncon­sti­tu­tion­al and in vio­la­tion of the Sec­ond and Four­teenth Amend­ment of the Unit­ed States Con­sti­tu­tion. The Sec­ond Amend­ment of the Unit­ed States Con­sti­tu­tion reads: “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.”

The Four­teenth Amend­ment reads, “All per­sons born or nat­u­ral­ized in the Unit­ed States, and sub­ject to the juris­dic­tion there­of, are cit­i­zens of the Unit­ed States and of the State where­in they reside. No State shall make or enforce any law which shall abridge the priv­i­leges or immu­ni­ties of cit­i­zens of the Unit­ed States; nor shall any State deprive any per­son of life, lib­er­ty, or prop­er­ty, with­out due process of law; nor deny to any per­son with­in its juris­dic­tion the equal pro­tec­tion of the laws.
Marc Stephens lays out the blue­print on how to strike down Firearm per­mit and licens­ing laws in all 50 States.  Marc reveals that the Unit­ed States Supreme Court already ruled that the right to keep and bear arms of “any descrip­tion” is allowed under the sec­ond amend­ment of the U.S. Con­sti­tu­tion, and that “no State can enact gun con­trol laws”, or inter­fere with the people’s right to keep and bear arms “at home” and “in public”.

Marc’s legal argu­ment is as follow:


1.  The Right to Keep and Bear Arms Is a Guar­an­teed and Fun­da­men­tal Right

In Heller and McDon­ald, the court rec­og­nized the right to keep and bear arms to be fun­da­men­tal. “The right to keep and bear arms was “one of the fun­da­men­tal rights of Eng­lish­men,” McDon­ald v. City of Chica­go, Ill., 130 S. Ct. 3020 — Supreme Court 2010 at 3036, 3037, 3040, 3041, 3042, 3046, 3061, 3064, 3068, 3073, 3131. “It can­not be doubt­ed that the right to bear arms was regard­ed as a sub­stan­tive guar­an­tee”, McDon­ald v. City of Chica­go, Ill., 130 S. Ct. 3020 — Supreme Court 2010 at 3043. “The right to keep and bear arms applies to the States through the Four­teenth Amendment’s Due Process Clause because it is “fun­da­men­tal” to the Amer­i­can “scheme of ordered lib­er­ty,” ante, at 3036 (cit­ing Dun­can v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)), and “‘deeply root­ed in this Nation’s his­to­ry and tra­di­tion,’” ante, at 3036 (quot­ing Wash­ing­ton v. Glucks­berg, 521 U.S. 702, 721, 117 S.Ct. 2302, 138 L.Ed.2d 772 (1997)), McDon­ald v. City of Chica­go, Ill., 130 S. Ct. 3020 — Supreme Court 2010 at 3059.
(“[I]t has always been wide­ly under­stood that the Sec­ond Amend­ment, like the First and Fourth Amend­ments, cod­i­fied a pre-exist­ing right”). Dis­trict of Colum­bia v. Heller, 128 S. Ct. 2783 — Supreme Court 2008 at 2797; McDon­ald v. City of Chica­go, Ill., 130 S. Ct. 3020 — Supreme Court 2010 at 3066. See Com­mon­wealth v. Bland­ing, 20 Mass. 304, 314 (1825) (“The lib­er­ty of the press was to be unre­strained, but he who used it was to be respon­si­ble in case of its abuse; like the right to keep fire arms, which does not pro­tect him who uses them for annoy­ance or destruc­tion.”); Respub­li­ca v. Oswald, 1 US 319 — Supreme Court 1788 at 329 (“The right of pub­li­ca­tion, like every oth­er right, has its nat­ur­al and nec­es­sary bound­ary; for, though the law allows a man the free use of his arm, or the pos­ses­sion of a weapon, yet it does not autho­rize him to plunge a dag­ger in the breast of an inof­fen­sive neigh­bor.”). Id at 329. “The right to keep and bear arms is guar­an­teed by the Four­teenth Amend­ment as a priv­i­lege of Amer­i­can cit­i­zen­ship”, McDon­ald v. City of Chica­go, Ill., 130 S. Ct. 3020 — Supreme Court 2010 at 3088.
“Where rights secured by the Con­sti­tu­tion are involved, there can be no rule mak­ing or leg­is­la­tion which would abro­gate them.” Miran­da v. Ari­zona, 384 US 436 at 491. No right grant­ed or secured by the Con­sti­tu­tion of the Unit­ed States can be impaired or destroyed by a state enact­ment”. Con­nol­ly v. Union Sew­er Pipe Co., 184 US 540 at 558.


2.  The State Can­not Inter­fere With the Right of the Cit­i­zen to Keep and Bear Arms

“[T]he State can­not inter­fere with the right of the cit­i­zen to keep and bear arms. The right to keep and bear arms is includ­ed in the four­teenth amend­ment, under ‘priv­i­leges and immu­ni­ties.’” Pro­ceed­ings in the Ku Klux Tri­als at Colum­bia, S. C., in the Unit­ed States Cir­cuit Court, Novem­ber Term, 1871, p. 147 (1872)”, McDon­ald v. City of Chica­go, Ill., 130 S. Ct. 3020, at 3077–3083.


3.  The State Can­not Enact Gun Con­trol Laws

Drake v Filko rul­ing does not super­sede the Unit­ed States Supreme court opin­ion that states can­not enact licens­ing laws. In addi­tion, New Jer­sey admits that they are enact­ing gun con­trol laws, “Per­mits to car­ry hand­guns are “the most close­ly reg­u­lat­ed aspect” of New Jersey’s gun con­trol laws. In re Preis, 118 N.J. 564, 573 A.2d 148, 150 (1990). Indi­vid­u­als who wish to car­ry a hand­gun in pub­lic for self-defense must first obtain a license. N.J.S.A. § 2C:39–5(b)”, see Drake v. Filko, 724 F. 3d 426 — Court of Appeals, 3rd Cir­cuit 2013 at 428–429. “The state can­not “enact any gun con­trol law” that they deem to be rea­son­able. Time and again, how­ev­er, those pleas failed. Unless we turn back the clock or adopt a spe­cial incor­po­ra­tion test applic­a­ble only to the Sec­ond Amend­ment, munic­i­pal respon­dents’ argu­ment must be reject­ed”, McDon­ald v. City of Chica­go, Ill., 130 S. Ct. 3020 — Supreme Court 2010 at 3046.
When slaves became cit­i­zens all 50 states passed firearm per­mit and license laws on all cit­i­zens which the Unit­ed States Supreme Court has reject­ed in McDon­ald. In McDon­ald v. City of Chica­go, Ill., 130 S. Ct. 3020 — Supreme Court 2010, the City argued, “Arti­cle IV, § 2, pro­hibits only state dis­crim­i­na­tion with respect to those rights it cov­ers, but does not deprive States of the pow­er to deny those rights to all cit­i­zens equal­ly”. Id at 3075. The U. S. Supreme Court reject­ed this argu­ment as “implau­si­ble”, Id at 3077.


4.  The State Can­not Ban Arms, Firearms, Ammu­ni­tion, And Inter­fere With Citizen’s Right To Keep And Bear Arms Of Any Descrip­tion Due To Pub­lic Safe­ty Concerns

Heller states, In Nunn v. State, 1 Ga. 243, 251 (1846) “Its opin­ion per­fect­ly cap­tured the way in which the oper­a­tive clause of the Sec­ond Amend­ment fur­thers the pur­pose announced in the prefa­to­ry clause, in con­ti­nu­ity with the Eng­lish right: “The right of the whole peo­ple, old and young, men, women and boys, and not mili­tia only, to keep and bear arms of every descrip­tion, and not such mere­ly as are used by the mili­tia, shall not be infringed, cur­tailed, or bro­ken in upon, in the small­est degree; and all this for the impor­tant end to be attained: the rear­ing up and qual­i­fy­ing a well-reg­u­lat­ed mili­tia, so vital­ly nec­es­sary to the secu­ri­ty of a free State. Our opin­ion is, that any law, State or Fed­er­al, is repug­nant to the Con­sti­tu­tion, and void, which con­tra­venes this right, orig­i­nal­ly belong­ing to our fore­fa­thers, tram­pled under foot by Charles I. and his two wicked sons and suc­ces­sors, re-estab­lished by the rev­o­lu­tion of 1688, con­veyed to this land of lib­er­ty by the colonists, and final­ly incor­po­rat­ed con­spic­u­ous­ly in our own Magna Char­ta!” Id at 2809.
“It may be object­ed that if weapons that are most use­ful in mil­i­tary service—M-16 rifles and the like—may be banned, then the Sec­ond Amend­ment right is com­plete­ly detached from the prefa­to­ry clause. But as we have said, the con­cep­tion of the mili­tia at the time of the Sec­ond Amendment’s rat­i­fi­ca­tion was the body of all cit­i­zens capa­ble of mil­i­tary ser­vice, who would bring the sorts of law­ful weapons that they pos­sessed at home to mili­tia duty. It may well be true today that a mili­tia, to be as effec­tive as mili­tias in the 18th cen­tu­ry, would require sophis­ti­cat­ed arms that are high­ly unusu­al in soci­ety at large. Indeed, it may be true that no amount of small arms could be use­ful against mod­ern-day bombers and tanks. But the fact that mod­ern devel­op­ments have lim­it­ed the degree of fit between the prefa­to­ry clause and the pro­tect­ed right can­not change our inter­pre­ta­tion of the right”. Id at 2817.

(“A statute which, under the pre­tence of reg­u­lat­ing, amounts to a destruc­tion of the right, or which requires arms to be so borne as to ren­der them whol­ly use­less for the pur­pose of defence, would be clear­ly uncon­sti­tu­tion­al”, State v. Reid, 1 Ala. 612, 616–617 (1840)). Id at 2818.
“A right deemed fun­da­men­tal car­ries with it an implic­it and inher­ent recog­ni­tion of its neces­si­ty to a free peo­ple. States have no com­pelling (or even legit­i­mate) inter­est in depriv­ing peo­ple of their con­sti­tu­tion­al rights, and the State can­not point to the impact of its prac­tice – the sup­pres­sion of con­sti­tu­tion­al rights – as its inter­est”. See Simon & Schus­ter, Inc. v. N.Y. State Crime Vic­tims Bd., 502 U.S. 105, 120 (1991).
“We express­ly reject­ed the argu­ment that the scope of the Sec­ond Amend­ment right should be deter­mined by judi­cial inter­est bal­anc­ing”, 554 U.S., at ___ — ___, 128 S.Ct., at 2820–2821, McDon­ald v. City of Chica­go, Ill., 130 S. Ct. 3020 — Supreme Court 2010 at 3047. No mat­ter how laud­able the end, the Supreme Court has long made clear that the Con­sti­tu­tion dis­ables the gov­ern­ment from employ­ing cer­tain means to pre­vent, deter, or detect vio­lent crime. See, e.g., Unit­ed States v. Jones, 132 S. Ct. 945 (2012); Kennedy v. Louisiana, 554 U.S. 407 (2008); Kyl­lo v. Unit­ed States, 533 U.S. 27 (2001); Miran­da v. Ari­zona, 384 U.S. 436 (1966); Mapp v. Ohio, 367 U.S. 643 (1961); see also Heller II, 670 F.3d at 1296 (Kavanaugh, J., dis­sent­ing).


5.  The Peo­ple Do Not Need to Obtain a Per­mit, License, or to Reg­is­ter Firearms In order To Exer­cise Guar­an­teed and Fun­da­men­tal Con­sti­tu­tion­al Rights

“No State may con­vert a Right into a Priv­i­lege and require a License of Fee for the exer­cise of the Right”. Mur­dock v. Penn­syl­va­nia, 319 US 105. “A state may not impose a charge for the enjoy­ment of a right grant­ed by the Fed­er­al Con­sti­tu­tion. The pow­er to impose a license tax on the exer­cise of these free­doms is indeed as potent as the pow­er of cen­sor­ship which this Court has repeat­ed­ly struck down”, Mur­dock v. Penn­syl­va­nia, 319 US 105 at 113. “A per­son can­not be com­pelled “to pur­chase, through a license fee or a license tax, the priv­i­lege freely grant­ed by the con­sti­tu­tion.“Mur­dock v. Penn­syl­va­nia, 319 US 105 at 114.
“An ordi­nance which, like this one, makes the peace­ful enjoy­ment of free­doms which the Con­sti­tu­tion guar­an­tees con­tin­gent upon the uncon­trolled will of an official—as by requir­ing a per­mit or license which may be grant­ed or with­held in the dis­cre­tion of such official—is an uncon­sti­tu­tion­al cen­sor­ship or pri­or restraint upon the enjoy­ment of those free­doms.” Staub v. Bax­ley, 355 U. S. 313, 322; Shut­tlesworth v. Birm­ing­ham, 394 US 147 at 151.
“Cit­i­zens are not required to reg­is­ter Firearms under the 5th Amend­ment of the Unit­ed States Con­sti­tu­tion”, Haynes v. Unit­ed States, 390 US 85 at 95.
In Zabloc­ki v. Red­hail, 434 U.S. 374 (1978) the U.S. Supreme Court deci­sion held that Wis­con­sin Statutes §§ 245.10 (1), (4), (5) (1973) vio­lat­ed the Four­teenth Amend­ment equal pro­tec­tion clause. Sec­tion 245.10 required non­cus­to­di­al par­ents who were Wis­con­sin res­i­dents attempt­ing to mar­ry inside or out­side of Wis­con­sin to seek a court order pri­or to receiv­ing a mar­riage license. In order to receive such a court order, the non­cus­to­di­al par­ent could not be in arrears on his or her child sup­port, and the court had to believe that the child(ren) would not become depen­dent on the State. Mar­riage, just like the right to keep and bear arms, was held to be a fun­da­men­tal right. On the mer­its, the three-judge pan­el ana­lyzed the chal­lenged statute under the Equal Pro­tec­tion Clause and con­clud­ed that “strict scruti­ny” was required because the clas­si­fi­ca­tion cre­at­ed by the statute infringed upon a fun­da­men­tal right, the right to mar­ry, Id at 381. “Since the means select­ed by the State for achiev­ing these inter­ests unnec­es­sar­i­ly impinge on the right to mar­ry, the statute can­not be sus­tained”, Id at 388. The “right to mar­ry” and “the right to car­ry” firearms are fun­da­men­tal rights.
Just like Wis­con­sin license Stat­ue, New Jer­sey Firearm Stat­ues are forc­ing cit­i­zens to obtain court approval before obtain­ing a per­mit or license to keep and bear arms, which are facial­ly uncon­sti­tu­tion­al. “Per­mits to car­ry hand­guns are “the most close­ly reg­u­lat­ed aspect” of New Jersey’s gun con­trol laws. In re Preis, 118 N.J. 564, 573 A.2d 148, 150 (1990). Indi­vid­u­als who wish to car­ry a hand­gun in pub­lic for self-defense must first obtain a license. N.J.S.A. § 2C:39–5(b)”, see Drake v. Filko, 724 F. 3d 426 — Court of Appeals, 3rd Cir­cuit 2013 at 428–429.
“The state can­not “enact any gun con­trol law” that they deem to be rea­son­able. Time and again, how­ev­er, those pleas failed. Unless we turn back the clock or adopt a spe­cial incor­po­ra­tion test applic­a­ble only to the Sec­ond Amend­ment, munic­i­pal respon­dents’ argu­ment must be reject­ed”, McDon­ald v. City of Chica­go, Ill., 130 S. Ct. 3020 — Supreme Court 2010 at 3046.
The pre­dic­tive judg­ment of New Jersey’s leg­is­la­tors is that lim­it­ing the issuance of per­mits to car­ry a hand­gun in pub­lic to only those who can show a “jus­ti­fi­able need” will fur­ther its sub­stan­tial inter­est in pub­lic safe­ty. Drake v. Filko, 724 F. 3d 426 — Court of Appeals, 3rd Cir­cuit 2013 at 437, 438, 439, 453, 457.
“A right deemed fun­da­men­tal car­ries with it an implic­it and inher­ent recog­ni­tion of its neces­si­ty to a free peo­ple. States have no com­pelling (or even legit­i­mate) inter­est in depriv­ing peo­ple of their con­sti­tu­tion­al rights, and the State can­not point to the impact of its prac­tice – the sup­pres­sion of con­sti­tu­tion­al rights – as its inter­est”. See Simon & Schus­ter, Inc. v. N.Y. State Crime Vic­tims Bd., 502 U.S. 105, 120 (1991).
“The Gov­ern­ment may not pro­hib­it or con­trol the con­duct of a per­son for rea­sons that infringe upon con­sti­tu­tion­al­ly guar­an­teed free­doms”, Smith v. Unit­ed States, 502 F. 2d 512 — Court of Appeals, 5th Cir­cuit 1974 at 516.
“The State can­not choose means that unnec­es­sar­i­ly bur­den or restrict con­sti­tu­tion­al­ly pro­tect­ed activ­i­ty”, Dunn v. Blum­stein, 405 US 330 — Supreme Court 1972, at 343. “The Con­sti­tu­tion does not per­mit fun­da­men­tal civ­il rights to be abridged by pub­lic safe­ty fears”. See, e.g., Near v. Min­neso­ta, 283 U.S. 697, 721–22 (1931). It is well set­tled that, quite apart from the guar­an­tee of equal pro­tec­tion, if a law “impinges upon a fun­da­men­tal right explic­it­ly or implic­it­ly secured by the Con­sti­tu­tion [it] is pre­sump­tive­ly uncon­sti­tu­tion­al.” Mobile v. Bold­en, 446 U. S. 55, 76 (plu­ral­i­ty opin­ion). Har­ris v. McRae, 448 US 297 — Supreme Court 1980 at 312. “Laws which plain­ly for­bid con­duct which is con­sti­tu­tion­al­ly with­in the pow­er of the State to for­bid but also restrict con­sti­tu­tion­al­ly pro­tect­ed con­duct may be void either on their face or mere­ly as applied”, Coates v. Cincin­nati, 402 US 611 — Supreme Court 1971 at 617.


6.  The Indi­vid­ual Fun­da­men­tal And Inalien­able Right To Bear Arms For The Pur­pose Of Self-Defense Extends Beyond The Home. 

“The under­stand­ing that the Sec­ond Amend­ment gave freed blacks the right to keep and bear arms was reflect­ed in con­gres­sion­al dis­cus­sion of the bill, with even an oppo­nent of it say­ing that the found­ing gen­er­a­tion “were for every man bear­ing his arms about him and keep­ing them in his house, his cas­tle, for his own defense.” “ It was plain­ly the under­stand­ing in the post-Civ­il War Con­gress that the Sec­ond Amend­ment pro­tect­ed an indi­vid­ual right to use arms for self-defense”, Dis­trict of Colum­bia v. Heller, 128 S. Ct. 2783 — Supreme Court 2008 at 2810–2811.
The Supreme Court in Dred Scott v. Sand­ford stat­ed if African Amer­i­cans were con­sid­ered U.S. cit­i­zens, “It would give to per­sons of the negro race, who were rec­og­nized as cit­i­zens in any one State of the Union, the right…to keep and car­ry arms wher­ev­er they went…”. Dred Scott v. Sand­ford, 60 US 393 — Supreme Court 1857 at 417. McDon­ald v. City of Chica­go, Ill., 130 S. Ct. 3020 — Supreme Court 2010 at 3068.
In a line of deci­sions, how­ev­er, the Supreme Court has rec­og­nized that a right to keep and bear arms in pub­lic does exist under the Con­sti­tu­tion. Quot­ing Heller, “At the time of the found­ing, as now, to “bear” meant to “car­ry.” See John­son 161; Web­ster; T. Sheri­dan, A Com­plete Dic­tio­nary of the Eng­lish Lan­guage (1796); 2 Oxford Eng­lish Dic­tio­nary 20 (2d ed. 1989) (here­inafter Oxford). When used with “arms,” how­ev­er, the term has a mean­ing that refers to car­ry­ing for a par­tic­u­lar purpose—confrontation. In Mus­carel­lo v. Unit­ed States, 524 U. S. 125 (1998) , in the course of ana­lyz­ing the mean­ing of “car­ries a firearm” in a fed­er­al crim­i­nal statute, Jus­tice Gins­burg wrote that “[s]urely a most famil­iar mean­ing is, as the Constitution’s Sec­ond Amend­ment … indicate[s]: ‘wear, bear, or car­ry … upon the per­son or in the cloth­ing or in a pock­et, for the pur­pose … of being armed and ready for offen­sive or defen­sive action in a case of con­flict with anoth­er per­son.’ ” Id., at 143 (dis­sent­ing opin­ion) (quot­ing Black’s Law Dic­tio­nary 214 (6th ed. 1998)). We think that Jus­tice Gins­burg accu­rate­ly cap­tured the nat­ur­al mean­ing of “bear arms.”


7.  NJ Per­mit and Licens­ing Laws Oper­ates As A Pri­or Restraint and Vio­late the First Amend­ment Free­dom of Expression 

The Pledge of Alle­giance of the Unit­ed States is an expres­sion of alle­giance to the Flag of the Unit­ed States and the repub­lic of the Unit­ed States of Amer­i­ca, orig­i­nal­ly com­posed by Fran­cis Bel­lamy in 1892 and for­mal­ly adopt­ed by Con­gress as the pledge in 1942, Elk Grove Uni­fied Sch. Dist. v. New­dow, 542 U.S. 1, 6–7, 124 S. Ct. 2301, 2305, 159 L. Ed. 2d 98, 105–06 (2004).
Just as pro­duc­ing film is a pro­tect­ed expres­sion of art, the right to keep and bear arms is an expres­sion illus­trat­ing the nat­ur­al rights of self-defense, resis­tance to oppres­sion, and the civic duty to act in con­cert in defense of the state. “all men are born equal­ly free and inde­pen­dent, and have cer­tain nat­ur­al, inher­ent and inalien­able rights,” includ­ing the “right to wor­ship Almighty God accord­ing to the dic­tates of their own con­sciences” and the “right to bear arms for the defence of them­selves and the state”, McDon­ald v. City of Chica­go, Ill., 130 S. Ct. 3020 — Supreme Court 2010 at 3066.
When the peo­ple assem­ble and bear arms in defense of the state it is an expres­sion of loy­al­ty and togeth­er­ness which is “one nation, under god, indi­vis­i­ble, with lib­er­ty, and jus­tice for all”, N.J.S.A. 18A:36–3. Pri­or restraints vio­lat­ing free­dom of expres­sion are uncon­sti­tu­tion­al under the first amend­ment, Near v. Min­neso­ta, 283 U.S. 697, 721–22 (1931).
“The First Amend­ment con­tains the free­dom-of-speech guar­an­tee that the peo­ple rat­i­fied, which includ­ed excep­tions for obscen­i­ty, libel, and dis­clo­sure of state secrets, but not for the expres­sion of extreme­ly unpop­u­lar and wrong-head­ed views. The Sec­ond Amend­ment is no different”…”A con­sti­tu­tion­al guar­an­tee sub­ject to future judges’ assess­ments of its use­ful­ness is no con­sti­tu­tion­al guar­an­tee at all.
Con­sti­tu­tion­al rights are enshrined with the scope they were under­stood to have when the peo­ple adopt­ed them, whether or not future leg­is­la­tures or (yes) even future judges think that scope too broad”, Dis­trict of Colum­bia v. Heller, 128 S. Ct. 2783 — Supreme Court 2008 at 2821. The State have the bur­den of prov­ing that [keep­ing and bear­ing arms in defense of the state] is an expres­sion unpro­tect­ed by the Con­sti­tu­tion, Freed­man v. Mary­land, 380 U.S. 51 (1965) at 58.


8.  NJ Per­mit and Licens­ing Laws Can­not Sur­vive Strict Scrutiny 

In order to con­vince the court to apply strict scruti­ny, it is nec­es­sary to show that the state’s action was “moti­vat­ed by a dis­crim­i­na­to­ry” pur­pose. “Leg­isla­tive his­to­ry,” of course, refers to the pre-enact­ment state­ments of those who draft­ed or vot­ed for a law; it is con­sid­ered per­sua­sive by some, not because they reflect the gen­er­al under­stand­ing of the dis­put­ed terms, but because the leg­is­la­tors who heard or read those state­ments pre­sum­ably vot­ed with that under­stand­ing. The his­to­ry of the per­mit and license scheme around the Unit­ed States has always relat­ed to slaves and African Amer­i­cans.
“The Supreme Court rec­og­nizes race, nation­al ori­gin, reli­gion and alien­age as sus­pect class­es; it there­fore ana­lyzes any gov­ern­ment action that dis­crim­i­nates against these class­es under strict scruti­ny”. Hirabayashi v. Unit­ed States, 320 U.S. 81 [5] and Kore­mat­su v. Unit­ed States, 323 U.S. 214 (1944); Adarand Con­struc­tors v. Peña, 515 U.S. 200 (1995); see Unit­ed States v. Marz­zarel­la, 614 F.3d 85, 89 (3d Cir. 2010). “Strict scruti­ny” was required because the clas­si­fi­ca­tion cre­at­ed by the statute infringed upon a fun­da­men­tal rightZabloc­ki v. Red­hail, 434 US 374 – Supreme Court 1978 at 381.
Drake v Filko rul­ing does not super­sede the Unit­ed States Supreme court opin­ion that race dis­crim­i­na­tion is a vio­la­tion of the 14th amend­ment of Unit­ed States Con­sti­tu­tion. Drake v. Filko argu­ment was about “jus­ti­fi­able need” require­ments in New Jer­sey license scheme. Appel­lant argu­ment is about dis­crim­i­na­tion. In addi­tion, Drake v. Filko was incor­rect­ly reviewed under inter­me­di­ate scruti­ny.
The long pre­sump­tive his­to­ry regard­ing the reg­u­la­tion of firearms and license is only traced to slaves and black African Amer­i­cans. After the end of slav­ery and the rat­i­fi­ca­tion of the four­teenth amend­ment, in order to keep firearms out the hands of blacks, New Jer­sey, and many oth­er states, basi­cal­ly turned all cit­i­zens, black and white, into slaves by requir­ing per­mits and licens­es to obtain firearms. “It is the duty of the courts to be watch­ful for con­sti­tu­tion­al rights of the cit­i­zen, against any stealthy encroach­ments there­on.” Boyd v. U.S., 116 US 616, 635, (1885) at 635.
“A Col­lec­tion of All the Acts of Assem­bly, Now in Force, in the Colony of Vir­ginia 596 (1733) (“Free Negros, Mulat­tos, or Indi­ans, and Own­ers of Slaves, seat­ed at Fron­tier Plan­ta­tions, may obtain Licence from a Jus­tice of Peace, for keep­ing Arms, & c.”), Dis­trict of Colum­bia v. Heller, 128 S. Ct. 2783 — Supreme Court 2008 at foot­note 7. (“the late slave­hold­ing States” had enact­ed laws “depriv­ing per­sons of African descent of priv­i­leges which are essen­tial to freemen,” includ­ing “prohibit[ing] any negro or mulat­to from hav­ing fire-arms”… to “[m]ake a col­ored man a cit­i­zen of the Unit­ed States” would guar­an­tee to him, inter alia, “a defined sta­tus … a right to defend him­self and his wife and chil­dren; a right to bear arms”). McDon­ald v. City of Chica­go, Ill., 130 S. Ct. 3020 — Supreme Court 2010 at 3075.
In McDon­ald the City argued, “Arti­cle IV, § 2, pro­hibits only state dis­crim­i­na­tion with respect to those rights it cov­ers, but does not deprive States of the pow­er to deny those rights to all cit­i­zens equal­ly”. Id at 3075. The Supreme Court reject­ed this argu­ment as “implau­si­ble”, Id at 3077.
“Many leg­is­la­tures amend­ed their laws pro­hibit­ing slaves from car­ry­ing firearms to apply the pro­hi­bi­tion to free blacks as well”. McDon­ald v. City of Chica­go, Ill., 130 S. Ct. 3020 — Supreme Court 2010 at 3081. Many states such as Flori­da, Ken­tucky, Louisiana, Mary­land, Mis­sis­sip­pi, Mis­souri, New Jer­sey, North Car­oli­na, South Car­oli­na, Ten­nessee, Texas, and Vir­ginia took arms and firearms away from slaves and freed­men by enforc­ing a “Black Code”, (pro­hibit­ing slaves from using firearms unless they were autho­rized by their mas­ter to hunt with­in the bound­aries of his plan­ta­tion); Act of Dec. 18, 1819, 1819 S.C. Acts pp. 29, 31 (same); An Act Con­cern­ing Slaves, § 6, 1840 Tex. Laws pp. 42–43 (mak­ing it unlaw­ful for “any slave to own firearms of any descrip­tion”), McDon­ald v. City of Chica­go, Ill., 130 S. Ct. 3020 — Supreme Court 2010 at foot­note 18.
“Many ear­ly 19th-cen­tu­ry state cas­es indi­cat­ed that the Sec­ond Amend­ment right to bear arms was an indi­vid­ual right uncon­nect­ed to mili­tia ser­vice, though sub­ject to cer­tain restric­tions”. Dis­trict of Colum­bia v. Heller, 128 S. Ct. 2783 — Supreme Court 2008 at 2808. The cer­tain restric­tions only applied to Blacks. Blacks were rou­tine­ly dis­armed by South­ern States after the Civ­il War. Those who opposed these injus­tices fre­quent­ly stat­ed that they infringed blacks’ con­sti­tu­tion­al right to keep and bear arms. Dis­trict of Colum­bia v. Heller, 128 S. Ct. 2783 — Supreme Court 2008 at 2810.
“Short­ly after Con­gress approved the Four­teenth Amend­ment — con­tained numer­ous exam­ples of such abus­es”. McDon­ald v. City of Chica­go, Ill., 130 S. Ct. 3020 — Supreme Court 2010 at 3039.

In debat­ing the Civ­il Rights Act of 1871, Con­gress rou­tine­ly referred to the right to keep and bear arms and decried the con­tin­ued dis­ar­ma­ment of blacks, McDon­ald v. City of Chica­go, Ill., 130 S. Ct. 3020 — Supreme Court 2010 at 3042. As Rep­re­sen­ta­tive Thad­deus Stevens is report­ed to have said, “[w]hen it was first pro­posed to free the slaves, and arm the blacks, did not half the nation trem­ble? McDon­ald v. City of Chica­go, Ill., 130 S. Ct. 3020 — Supreme Court 2010 at 3081–3082. Some States for­mal­ly pro­hib­it­ed blacks from pos­sess­ing firearms. Ante, at 3038–3039 (quot­ing 1865 Miss. Laws p. 165, § 1, reprint­ed in 1 Flem­ing 289). Oth­ers enact­ed leg­is­la­tion pro­hibit­ing blacks from car­ry­ing firearms with­out a license, a restric­tion not imposed on whites, McDon­ald v. City of Chica­go, Ill., 130 S. Ct. 3020 — Supreme Court 2010 at 3082.
All states around the coun­try ful­ly under­stood that the sec­ond amend­ment was a fun­da­men­tal right to keep and bear arms at home and in pub­lic with­out a need for a per­mit or license. “Keep arms” was sim­ply a com­mon way of refer­ring to pos­sess­ing arms, for mili­ti­a­men and every­one elseDis­trict of Colum­bia v. Heller, 128 S. Ct. 2783 — Supreme Court 2008 at 2792.

The fol­low­ing states although they barred black Cit­i­zens from own­ing arms and firearms, did not infringe the right of the “white Cit­i­zens” to keep and bear arms at home, or in the public.
In Flori­da, advised by the Flori­da gov­er­nor and attor­ney gen­er­al as well as by the Freedmen’s Bureau that it could not con­sti­tu­tion­al­ly revoke Black people’s right to bear arms, the Flori­da leg­is­la­ture refused to repeal this part of the Black Codes. Flori­da made it the “duty” of white cit­i­zen “patrol[s] to search negro hous­es or oth­er sus­pect­ed places, for fire arms.” Act of Feb. 17, 1833, ch. 671, 1833 Fla. Acts pp. 26, 30. If they found any firearms, the patrols were to take the offend­ing slave or free black “to the near­est jus­tice of the peace,” where­upon he would be “severe­ly pun­ished” by “whip­ping on the bare back, not exceed­ing thir­ty-nine lash­es,” unless he could give a “plain and sat­is­fac­to­ry” expla­na­tion of how he came to pos­sess the gun. McDon­ald v. City of Chica­go, Ill., 130 S. Ct. 3020 — Supreme Court 2010 at 3081.
In Ken­tucky, “[T]he civ­il law [of Ken­tucky] pro­hibits the col­ored man from bear­ing arms. … Their arms are tak­en from them by the civ­il author­i­ties. … Thus, the right of the peo­ple to keep and bear arms as pro­vid­ed in the Con­sti­tu­tion is infringed.” Dis­trict of Colum­bia v. Heller, 128 S. Ct. 2783 — Supreme Court 2008 at 2810.

In Louisiana, the court in Unit­ed States v. Cruik­shank vacat­ed the con­vic­tions of mem­bers of a white mob for depriv­ing blacks of their right to keep and bear arms, Dis­trict of Colum­bia v. Heller, 128 S. Ct. 2783 — Supreme Court 2008 at 2812.
In Mary­land, Waters v. State, 1 Gill 302, 309 (Md.1843) (because free blacks were treat­ed as a “dan­ger­ous pop­u­la­tion,” “laws have been passed to pre­vent their migra­tion into this State; to make it unlaw­ful for them to bear arms; to guard even their reli­gious assem­blages with pecu­liar watch­ful­ness”). Dis­trict of Colum­bia v. Heller, 128 S. Ct. 2783 — Supreme Court 2008 at 2808.
In Mis­sis­sip­pi, “In Mis­sis­sip­pi rebel State forces, men who were in the rebel armies, are tra­vers­ing the State, vis­it­ing the freed­men, dis­arm­ing them, per­pe­trat­ing mur­ders and out­rages upon them; and the same things are done in oth­er sec­tions of the coun­try.” 39th Cong. Globe 40 (1865). McDon­ald v. City of Chica­go, Ill., 130 S. Ct. 3020 — Supreme Court 2010 at 3039.
In Mis­souri, Dred Scott v. Sand­ford stat­ed if African Amer­i­cans were con­sid­ered U.S. cit­i­zens, “It would give to per­sons of the negro race, who were rec­og­nized as cit­i­zens in any one State of the Union, the right…to keep and car­ry arms wher­ev­er they went…and endan­ger­ing the peace and safe­ty of the State”. Dred Scott v. Sand­ford, 60 US 393 — Supreme Court 1857 at 417. McDon­ald v. City of Chica­go, Ill., 130 S. Ct. 3020 — Supreme Court 2010 at 3068.
In North Car­oli­na, cod­i­fied a right to bear arms in 1776: “That the peo­ple have a right to bear arms, for the defence of the State. Dis­trict of Colum­bia v. Heller, 128 S. Ct. 2783 — Supreme Court 2008 at 2802. But North Car­oli­na in State v. New­som, 27 N. C. 250 (1844) stat­ed “an act to pre­vent free per­sons of col­or from car­ry­ing fire arms,” is not unconstitutional”.
In South Car­oli­na, “in some parts of [South Car­oli­na], armed par­ties are, with­out prop­er author­i­ty, engaged in seiz­ing all fire-arms found in the hands of the freemen. Such con­duct is in clear and direct vio­la­tion of their per­son­al rights as guar­an­teed by the Con­sti­tu­tion of the Unit­ed States, which declares that ‘the right of the peo­ple to keep and bear arms shall not be infringed.’ Dis­trict of Colum­bia v. Heller, 128 S. Ct. 2783 — Supreme Court 2008 at 2810.

The “arm­ing of the Negro mili­tias met with espe­cial­ly fierce resis­tance in South Car­oli­na .… The sight of orga­nized, armed freed­men incensed oppo­nents of Recon­struc­tion and led to an inten­si­fied cam­paign of Klan ter­ror. Lead­ing mem­bers of the Negro mili­tia were beat­en or lynched and their weapons stolen.” Dis­trict of Colum­bia v. Heller, 128 S. Ct. 2783 — Supreme Court 2008 at 2841.
In Vir­ginia, “A Vir­ginia case in 1824 hold­ing that the Con­sti­tu­tion did not extend to free blacks explained that “numer­ous restric­tions imposed on [blacks] in our Statute Book, many of which are incon­sis­tent with the let­ter and spir­it of the Con­sti­tu­tion, both of this State and of the Unit­ed States as respects the free whites, demon­strate, that, here, those instru­ments have not been con­sid­ered to extend equal­ly to both class­es of our pop­u­la­tion. We will only instance the restric­tion upon the migra­tion of free blacks into this State, and upon their right to bear arms.” Aldridge v. Com­mon­wealth, 4 Va. 447, 2 Va. Cas. 447, 449 (Gen.Ct.)”. Dis­trict of Colum­bia v. Heller, 128 S. Ct. 2783 — Supreme Court 2008 at 2808. In any case, it is clear to us that Aldridge’s allu­sion to the exist­ing Vir­ginia “restric­tion” upon the right of free blacks “to bear arms” could only have referred to “laws pro­hibit­ing blacks from keep­ing weapons,” Siegel, supra, at 497–498. Dis­trict of Colum­bia v. Heller, 128 S. Ct. 2783 — Supreme Court 2008 at 2808 at foot­note 21.
In Ten­nessee, freed­peo­ple had no legal sta­tus what­so­ev­er, and local juris­dic­tions often filled the void with extreme­ly harsh Black Codes. The leg­is­la­ture passed two laws on May 17, 1865; one to “Pun­ish all Armed Prowlers, Gueril­la, Brig­ands, and High­way Rob­bers”; the oth­er to autho­rize cap­i­tal pun­ish­ment for thefts, bur­glary, and arson. These laws were tar­get­ed at Blacks and enforced dis­pro­por­tion­ate­ly against Blacks.
In Texas, blacks were not allowed to vote, hold office, sit on juries, serve in local mili­tia, or car­ry guns on plantations.
In New Jer­sey, in Octo­ber 1694, “An Act con­cern­ing Slaves” was enact­ed; [§1] WHEREAS com­plaint is made by the inhab­i­tants of this Province, that they are great­ly injured by slaves hav­ing lib­er­ty to car­ry guns and dogs, into the woods and plan­ta­tions, under pre­tence of gun­ing, do kill swine. Be it enact­ed by the Gov­er­nor, Coun­cil and Deputies in Gen­er­al Assem­bly met and assem­bled, and by the author­i­ty of the same, that no slave or slaves with­in this Province after pub­li­ca­tion here­of, be per­mit­ted to car­ry any gun or pis­tol, or take any dog with him or them into the woods, or plan­ta­tions, upon any pre­tence what­so­ev­er; unless his or their own­er or own­ers, or a white man, by the order of his or their own­er or own­ers, be with the said slave or slaves; [§4] And be it fur­ther enact­ed by the author­i­ty afore­said, that if any per­son or per­sons shall lend, give or hire out to any slave, or slaves, pis­tol, gun or guns, the said per­son or per­sons so lend­ing, giv­ing, or hir­ing, shall for­feit the said pis­tol, gun or guns, or twen­ty shillings to the own­er of the said slave or slaves, to be recov­ered as an action of debt as afore­said. East New Jer­sey Laws, Octo­ber 1694, ch.II, “An Act con­cern­ing Slaves, &c.,” L&S 340–342. As men­tioned in the com­plaint the fear of slaves with guns was a “Pub­lic Safe­ty” Concern.
“An Act to pre­vent the Killing of Deer out of Sea­son, and against Car­ry­ing of Guns and Hunt­ing by Per­sons not qual­i­fied,” [“And be it fur­ther Enact­ed by the Author­i­ty afore­said, That this Act nor any part there­of, shall be con­strued to extend to Negro, Indi­an or Mul­la­to Slaves, so as to com­mit them to prison, dur­ing the Time in this Act limit­ted, in case they should be Guilty of any of the Offences in this Act pro­hib­it­ed, but that and in such case such Indi­an, Negro or Mul­la­to Slave killing and destroy­ing any Deer as afore­said, or car­ry­ing or Hunt­ing with any Gun, with­out Lisence from his Mas­ter, shall, at the Pub­lick Whip­ping post, on the bare Back, be Whipt, not exceed­ing twen­ty Lash­es for every such Offence, for which Whip­ping the Mas­ter shall pay to the Whip­per the Sum of Three Shillings..”]. May 5, 1722, 2 Bush 293, 295; 1 Nevill [8 Geo. I] ch.XXXV, §6, p.102http://njlegallib.rutgers.edu/slavery/acts/A15.html
In 1751, in New Jer­sey “An Act …to pre­vent Negroes and Molat­to Slaves,…from meet­ing in large Companies,…and from hunt­ing or car­ry­ing a Gun on the Lord’s Day was enact­ed. This act is sim­i­lar to N.J.S.A 2C:39–14b. “[§2] AND BE IT FURTHER ENACTED, by the Author­i­ty afore­said, that if any Negro or Molat­to Slaves shall at any Time here­after Meet and Assem­ble togeth­er, more than to the Num­ber of Five, unless being on his, her or their Mas­ters or Mis­tress­es Busi­ness and Employ­ment; the Con­sta­ble or Con­sta­bles on Infor­ma­tion or Knowl­edge there­of, shall, and are here­by required to appre­hend the Negro and Molat­to Slaves that shall so meet, and car­ry them before the next Jus­tice of the Peace, who is here­by required and direct­ed to order him, her or them to be whipped on their bare Backs at his Dis­cre­tion “[§3] AND BE IT FURTHER ENACTED, by the Author­i­ty afore­said, That if any Negro or Molat­to Slave or Slaves, shall be seen or found from his or their Mas­ters House, after the Hour of Nine at Night, except on their Mas­ters or Mis­tress­es par­tic­u­lar Busi­ness, or shall be seen to hunt, or car­ry­ing a Gun on the Lord’s Day; the Con­sta­ble or Con­sta­bles of such Town or Precinct, on Infor­ma­tion or Knowl­edge there­of, shall and are here­by required and direct­ed, to appre­hend and car­ry such Negro and Molat­to Slaves before the next Jus­tice of the Peace, who shall order such Negro or Molat­to Slave or Slaves, if found Guilty, to be whipped as by the pre­ced­ing Clause of this Act is direct­ed”. Oct. 25, 1751, 3 Bush 180–181; 1 Nevill [25 Geo. II] ch.CXI, p.443–444; Allinson ch. CCXLI, p.191–192. Note: Allinson gives date as Oct.23,1751. http://njlegallib.rutgers.edu/slavery/acts/A18.html.
“Today, no less than 50 years ago, the solu­tion to the prob­lems grow­ing out of race rela­tions “can­not be pro­mot­ed by depriv­ing cit­i­zens of their con­sti­tu­tion­al rights and priv­i­leges,” Buchanan v. War­ley, supra, 245 U. S., at 80–81, Wat­son v. Mem­phis, 373 US 526 — Supreme Court 1963 at 539.
As proven here­in, NJ per­mit and licens­ing laws are derived from racism and dis­crim­i­na­tion, and are facial­ly uncon­sti­tu­tion­al and vio­lates 1st, 2nd, 4th, 5th, 8th, 9th, 10th, and 14th amend­ment of the Unit­ed States Con­sti­tu­tion and must be struck down. A claim has “facial plau­si­bil­i­ty when the plain­tiff pleads fac­tu­al con­tent that allows the court to draw the rea­son­able infer­ence that the defen­dant is liable for the mis­con­duct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cit­ing Twombly, 550 U.S. at 556).

 

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