As often as it happens, it’s difficult to avoid callousness. Once again we are confronted with a state government standing ready to trample on the constitutional rights of its citizens.
This time Gov. Phil Murphy of New Jersey has announced a plan to raise fees on gun ownership permits, concealed carry permits, identification cards and ammunition excise.
Aside from the typical complaints, valid as they may be, about the crushing financial burden placed on our shoulders by our government, this proposal has a bigger problem — it’s not only unjust, it’s unconstitutional.
If Murphy’s proposal passes, it will not set New Jersey’s firearm-related fees at the highest in the nation, but they’ll be awfully close. The problem that New Jersey will face with these fees is that they are absolutely unconstitutional.
New York City’s fees, though higher than those proposed in New Jersey, have been tested by the Second Circuit Court of Appeals in W. Kwong v. Bloomberg, but the court there made a grave mistake in analyzing the fees. They applied the U.S. Supreme Court’s fee jurisprudence, holding that the fees were permissible because they were “designed to defray, and did not exceed, the administrative costs of regulating an individual’s right to bear arms” relying on Cox v. New Hampshire.
The fatal error in the Second Circuit’s analysis is that Cox, a First Amendment case, granted permission for administrative fees only because they were time, place and manner restrictions, meaning that there were alternative methods for the exercise of the First Amendment available. This analysis falls flat for Second Amendment rights, where the only method available for their exercise is to “keep and bear” arms.
Fees associated with ownership and possession of firearms must be analyzed under an alternative framework to Cox. The proper analysis falls under a different Supreme Court case entitled Murdock v. Pennsylvania. In that First Amendment case, the city of Jeannette, Pennsylvania, required anyone wanting to solicit door-to-door to purchase a license.
The Court in Murdock stated, “a state may not impose a charge for the enjoyment of a right granted by the Federal Constitution” and noted that the tax at hand was “not a nominal fee imposed as a regulatory measure to defray the expense of policing the activities in question.” Had it been so tailored, the Court might have decided otherwise.
It is in that light we can analyze the New Jersey proposal and conclude that it is unconstitutional. The right to “keep” arms is a fundamental right, just as is the freedom of speech. The Supreme Court announced that for us in McDonald v. Chicago. The only way to exercise a right to “keep” arms is, well, to “keep” them.
An ownership license fee is exactly the sort of fee that a state “may not impose” if it is “not a nominal fee … to defray the expense of policing the activities in question.”
“Policing the activities in question” could only mean covering the costs of things like background checks necessary for the purchase of the firearm. That is not what he proposes.
Murphy made it abundantly clear what the purpose of the fee increase is when he said that the fee increase is what’s needed “to fight crime and track gun violence, and to combat the trafficking of illegal guns into [New Jersey].”
As noble as that sounds, it doesn’t make it right, and it isn’t tailored to the policing costs the Supreme Court demands.
Murphy is bent on impairing the rights of all firearm owners, showing nothing short of contempt for our Constitution.
Tyler Ginn is a corporate attorney and natural rights advocate who practiced for a number of years as a criminal defense and real estate lawyer in the Mississippi Delta.
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