Episode 305-BACK TO BASICS

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Gun Lawyer — Episode 305 Transcript

SUMMARY KEYWORDS

Gun laws, New Jersey, Machine guns, Handguns, Rifles, Shotguns, Assault firearms, Legal exemptions, Carry permits, Firearm ID, Second Amendment, Defensive use, CDC data, Gun rights, Application errors

SPEAKERS

Evan Nappen, Speaker 2

Evan Nappen 00:18

I’m Evan Nappen, and welcome to Gun Lawyer. So, my cohort in crime, Teddy, will not be joining us on the show today because Teddy is a brand new daddy. That’s right, he’s a father of a beautiful baby girl, which of course makes me a grandfather. Oh my God, I can’t even believe I’m saying that. She is just cute as a button, and I’m not just saying that because it’s my granddaughter. She really is. Her name is Alianna, and we are all so excited and happy about this. I can’t even begin to tell you. But Teddy has got his hands full with his beautiful wife and his beautiful new daughter, so I will be flying solo today with you.

Evan Nappen 01:17

at I want to talk about is something important for gun owners in New Jersey to know, and even outside New Jersey. And that is the basics of how New Jersey bans all guns, and then creates a legal system that essentially allows and permits possession by exemption. I think this is why the entire foundation of New Jersey gun laws can eventually be completely wiped out because it takes what is a constitutional right and just reverses how that right is supposed to work. But nonetheless, the law is something you need to understand in New Jersey. And for those who don’t live in New Jersey, you want to understand this so you don’t ever see this happen in your jurisdiction.

Evan Nappen 02:18

he place to begin is under New Jersey law, under N.J.S. 2C:39-5 (Unlawful possession of weapons.). Now, the 39-5. gun laws in New Jersey are where you see basically every firearm banned. Then the exemptions get created in two ways that essentially permit limited possession. It’s really insane when you think that a constitutional right is treated in this way, but yet it is. So, let’s take a look, beginning with 39-5., 2C:39-5. Now, subsection a. is a ban on machine guns, and what it says there is that any person who knowingly has in his possession any machine gun or any instrument or device adaptable for use as a machine gun, without being licensed to do so pursuant to (2C:)58-5, is guilty of a crime of the second degree. So, the only way to possess a machine gun in New Jersey is if you have a 58-5. machine gun license, and the machine gun license historically has been an impossibility to obtain. Page – 2 – of 9

Evan Nappen 03:51

But interestingly, I think we’re going to see some serious challenges because the way New Jersey structured this law, the machine gun license required you first to get a carry permit. At the time, virtually no one could get a (New Jersey permit to) carry. Now, over 100,000 Jerseyans and non-residents do have carry permits, and the standard that you’re left with the machine gun license is quite bizarre of having to show somehow it’s in the public interest for you to have it. And that’s absolutely contrary to Bruen, but for now, the number one thing to keep in mind is the machine gun prohibition does not have any other exemptions within New Jersey law. Only this license is the exemption. And when I say no other exemption, I’m talking about for an otherwise law-abiding citizen to possess. There are exemptions for certain military, police, etc. There’s exemptions even for dealers, but we’re not focused on that. We’re focused on other normal, law-abiding, average citizens. So, forget about it for machine guns.

Evan Nappen 05:02

But let’s move now to the b. section of 39-5. Now that’s one that applies to a hell of a lot of folks in New Jersey. The b. section of 39-5 is handguns. Listen to how New Jersey bans handguns. New Jersey’s law says: Handguns. Any person who knowingly has in his possession any handgun, including any antique handgun, without having first obtained a permit to carry the same as provided in (2C:)58-4., is guilty of a crime of the second degree. Let that sink in, folks. The only way you can lawfully possess a handgun, possess. We’re not even talking about carry. The only way to lawfully possess that handgun on the face of the statute that prohibits the possession of a handgun is if you have a (New Jersey) permit to carry a handgun.

Evan Nappen 06:06

Now I know there are a lot of folks out there that don’t have permits to carry that simply acquired a handgun with a permit to purchase a handgun. So, how can this be? How can you lawfully possess that handgun if you don’t have a carry permit when the statute requires you to have a carry permit? And if you don’t have a carry permit, you’re guilty of unlawful possession of a handgun right on the face of the statute, which is an extraordinarily serious offense. Unlawful possession of a handgun in New Jersey is a second-degree crime. New Jersey doesn’t use the term felony. They use the term crime, but it’s the equivalent of a felony. You can think of it in that way. It carries up to 10 years in State Prison, and it has a minimum mandatory three and a half years under what is called the Graves Act. Where if you’re convicted of unlawful possession of a handgun after a trial, a judge has absolutely zero discretion and must impose at least three and a half years as a minimum component of your sentence with no ability to be paroled. You do every day of that three and a half years before you’re even eligible for parole.

Evan Nappen 07:31

So, since you have to have a carry to possess it, what about everyone who doesn’t? Well, the answer to that lies in the exemptions, and we’ll get to the exemptions in a moment because we’re going to talk about exemptions. But right now, we’re just talking about the statute itself that mandates a (New Jersey) carry permit in order to legally possess a handgun. Under subsection c., is rifles and shotguns, and there it says: any person who knowingly has in his possession any rifle or shotgun without having first obtained a firearm purchaser ID card in accordance with (2C:)58-3, is guilty of a crime of the third degree. So, that makes it a third degree crime, up to five years in State Prison, if you have a shotgun or Page – 3 – of 9

rifle without a firearm ID card. The law goes further to say, unless otherwise permitted by law, any person who knowingly has in his possession any loaded rifle or shotgun is guilty of a crime in third degree. So, what about those that possess rifles or shotguns without a firearms ID card? Well, on the face of this statute, you’re looking at up to five years in State Prison. However, we’re going to discuss the exemptions, and the exemptions are critical in understanding how these possessory laws actually work. Even though the exemptions are technically a defense that you, as a law-abiding citizen, can be put to the proofs where you have to prove the defense.

Evan Nappen 09:03

Then there’s subsection d. of 39-5. Subsection d. is “other weapons”, and that says: any person who knowingly has in his possession any other weapon under circumstances not manifestly appropriate for such lawful uses as it may have, is guilty of a crime of the fourth degree. So, that’s up to a year and a half in State Prison for any “other weapon”, anything that may be construed as a weapon, if it’s possessed under circumstances not manifestly appropriate for such lawful uses as it may have. Look at that vague, ridiculous language there. So, anything that can be construed to be a weapon, and then the circumstances not manifestly appropriate become subject for a jury trial. So that 12 people who aren’t smart enough to avoid jury duty get to decide whether those circumstances were manifestly appropriate or not. Isn’t that cute? And you need to further know that New Jersey case law, through Kelly and Montalvo, they found that the so-called circumstance is not manifestly appropriate for such lawful uses as it may have. In Kelly, the court specifically found that self-defense was not a manifestly appropriate lawful use. Imagine that! You cannot preemptively arm yourself with a weapon under Kelly. Self-defense doesn’t cut it. But then Kelly got modified with Montalvo. If it’s in your home, if it’s in your home and you have it for self-defense, then the court actually finally came to its senses, at least on that, and said, yeah, self-defense possession in your home is manifestly appropriate circumstances, but not outside the home. So, we still need a case that says outside the home, where you’re lawfully allowed to use self-defense, where you have a right to self-defense. That even outside the home, it’s a manifestly appropriate use for any other weapon. We’ll talk more about that one in the future. Okay, but there you go. Those are the prohibitions.

Evan Nappen 11:32

Then, of course, we have the infamous subsection f., and that’s where assault firearms are banned. It says: any person who knowingly has in his possession an assault firearm is guilty of a crime of the second degree. Again, that draconian Graves Act, up to 10 years, minimum mandatory three and a half. Except if the assault firearm is licensed pursuant to (2C:)58-5. And by the way, that’s the same license as a machine gun license, which virtually no one could ever get. Or rendered inoperable, and that render inoperable period went from May of ’90 to May of ’91. And you had to do a rendered inoperable form. If you didn’t do it then, you’re out of the box. You couldn’t do it. Or if it was registered. Again, that registration period expired back in ’90. It may have ’90 to ’91 as well. So, assault firearms became prohibited with no way of making them lawful after May of ’91, unless you could somehow get an assault firearm license, which was a de facto impossibility, a de facto ban.

Evan Nappen 12:52

In fact, as determined in the federal court decision Coalition versus Florio that I brought, it was determined that it was a de facto ban. So, that license is known, you know, essentially it was viewed as Page – 4 – of 9

fake in so many words. You know, yeah, good luck. Like it was just structured to be an impossibility and even recognized as such by essentially by the court. So, if you had an assault firearm, there was nothing that could be done there. Exemptions that we’re going to discuss next do not apply to assault firearms. he exemptions only apply to B, C, and D. So remember, B. is the ban on handguns unless you have a (New Jersey) carry permit. C. is a ban on rifles and shotguns unless you have a firearms ID card, and D. is a ban on “other weapons” without manifest lawful purpose.

Evan Nappen 13:52

However, what the statute in 39-5 does not reference, but you need to know, is that under N.J.S. 2C:39-6, you will find an entire host of exemptions. There’s exemptions for law enforcement, military, all kinds, tons of exemptions. But the exemptions that have the most bearing to the average, law-abiding citizen, they’re found in subsection e. and subsection f. of the exemptions. Let me read you what these exemptions say. The exemptions say that nothing in subsection b., c., and d. of 39-5, so that is handguns, rifles and shotguns, and other weapons under the 39-5 ban, shall be construed to prevent a person keeping or carrying about the person’s place of business, residence, premises or other land owned or possessed by the person, any firearm, or from carrying the same, in the manner specified in subsection g., which is unloaded and in a case or in the trunk, or in a securely wrapped package, from any place of purchase to the person’s residence or place of business, between the person’s dwelling and place of business, between one place of business or residence and another when moving, or between the person’s dwelling or place of business and place where the firearms are repaired, for the purpose of repair. For the purposes of this section, a place of business shall be deemed to be a fixed location.

Evan Nappen 15:42

So, subsection e. of 39-6 exempts law-abiding citizens in New Jersey for possession of handguns, rifles and shotguns, and other weapons in their home, and you do not need a (New Jersey) carry permit. You do not need a firearms ID card. You do not need to have manifest lawful purpose, so-called. As long as you are simply possessing in your home, you are exempted from those requirements under 39-5. It is a law that allows possession by exemption unless one has licenses, and if you have licenses, then you’re exempt under the face of the statute. And if you have a license and you’re within exemption, you have double protection, essentially. And the exemption under subsection e. applies to home. It applies to place of business. Now that means a business you actually own. It’s not just the place you work. It’s got to be your place of business that you own. The courts have narrowly interpreted it to mean that. Not even a place you just manage. You’ve got to be an owner. It’s got to be your business. But if it is, then you have exemption there. You’re exempted for moving between your residences while moving, etc. That’s the exemption under subsection e.

Evan Nappen 17:22

Then there’s an exemption under subsection f., and f. again exempts b., c., and d. of 39-5; handguns, rifles and shotguns, and other weapons under 39-5. ere the exemptions say that those prohibitions shall not apply to any member of a rifle or pistol club organized in accordance with the rules prescribed by the National Board for Promotion of Rifle Practice, in going to or from a place of target practice, carrying firearms necessary for target practice, provided the club has filed a copy of its charter with the superintendent and annually submits its list of members to the superintendent, and provided further that Page – 5 – of 9

the firearms are carried in a manner specified in subsection g., which is, of course, cased and unloaded.

Evan Nappen 18:08

Here’s another exemption under f. under subsection (2). A person carrying a firearm or knife in the woods or fields, or upon the waters of the state for the purpose of hunting, target practice, or fishing, provided that the firearm is or knife is legal and appropriate for hunting and fishing purposes in the state, and the person has in the person’s possession a valid hunting license, or with respect to freshwater fishing, a valid fishing license. Number three, a person transporting any firearm or knife while traveling directly to or from place for purpose of hunting, fishing, provided you have a valid license, or directly to or from the target range, or other authorized place, for the purpose of practice match target trap skeet shooting expeditions. Provided during that whole time you’re transporting, you’re transporting pursuant to subsection g.

Evan Nappen 19:18

So, the takeaway here is how New Jersey bans essentially all guns, and how the matrix is set up so that there are exemptions. Exemptions that we’ve just talked about. But keep in mind that the exemptions are a defense. The burden becomes on the defendant to have to prove that you’re within those exemptions. Otherwise you see bans. Bans that have only exemptions by way of licensing, unless you fall within those specific statutory exemptions. I think that structure is frankly disgusting as to how a constitutional right is and has been treated by New Jersey. But because of that structure, I also believe that we have a fantastic opportunity now as we see the empowerment of the Second Amendment to finally take out and take down the very foundation of New Jersey’s oppressive gun laws.

Evan Nappen 20:36

By the way, I want to give you just a little heads up about a threat that is apparently lurking. This is weird and odd. I can’t hammer it down any more than what I’m going to tell you right now. But the news aggregate source called the Daily Caller, some of you may be aware of it, had an article that says “Anti-2A Group Plots New Gun Ban in New Jersey”. (https://dailycaller.com/2026/08/26/anti-2a-group-plots-new-gun-ban-in-blue-state/) This is August 26, 2026, by Harold Hutchison, who is a Second Amendment reporter that says the gun-control organization March for Our Lives, that’s the group headed up by that A one a hole of David Hogg. His group sent out an email fundraiser announcing plans to pass a weapons ban in New Jersey. And reading this is just bizarro. Remember Hogg has made his entire life and career over being a perpetual victim from the Parkland atrocity, and he’s an insane Left wing activist. By the way, if you’ve ever seen the stuff that he puts out. But anyway, this group uses this term “weapons of war”, “weapons of war”, and says, “The proposed weapons ban in New Jersey is a vital step toward getting weapons off our streets and protecting our neighborhoods from preventable tragedy.” This is a fundraiser being done by this group.

Evan Nappen 22:49

When you look at the actual screenshot here from March for Our Lives, here’s what this screenshot says. From March for Our Lives. “We’re bumping this to the top of your inbox because we have a genuine, high-impact opportunity to push real gun safety forward — and we can’t afford to miss it. Right now, New Jersey lawmakers have a chance to pass critical legislation banning weapons of war from Page – 6 – of 9

our communities. When our generation first marched in 2018, people told us we were just angry kids who didn’t understand how politics worked. But together, we’ve proved that hope isn’t just a feeling — it’s an action.” And then it goes on to say, “From helping establish first-ever White House Office of Gun Violence Prevention to passing landmark federal legislation, we’ve seen what happens when young people organize and demand a better future. Passing this weapons ban in New Jersey isn’t just about one state — it sets a benchmark for the entire nation and proves that progress is unstoppable when we stand together.” Then it all says, “Will you take 10 seconds to add your name and show support for the NJ weapons ban today?”

Evan Nappen 24:19

Okay. I’ve got to tell you, folks. I have no clue what the hell they’re talking about. First of all, New Jersey already has the most egregious assault firearm ban on the books and that has just taken a death punch by the Third Circuit Court of Appeals en banc with the magnificent decision wiping it out under the Second Amendment with both mags and guns. Now, granted, it is stayed at the moment because the Supreme Court has also taken up this issue. But what the hell are they talking about? New Jersey’s law is on its deathbed. It’s on life support, barely. Soon to die, and they’re talking about legislators in New Jersey promoting some weapons ban that they’re fundraising on. This is either complete fraud, which who knows with those people, or absolute mistake that they’ve confused states, I guess. Or maybe, just maybe, something else is cooking up in the New Jersey legislature. Maybe they’re tipped off to it, and I can’t find it anywhere. Maybe they’re going to try doing a kicking and screaming routine, just like they did after Bruen permitted carry and made it so New Jersey had to issue carry permits. And maybe now we’re going to see some evil plan after New Jersey’s assault firearm law bites the dust. So, this is maybe a load of B.S. nonsense. But then again, maybe it’s something out there, and we should be ready. hey may be trying to pull another Carry Killeresque maneuver on us. I don’t know, but stay tuned. As soon as we hear about anything that we can pin down, we’ll be sure in letting you know about it on the show.

Evan Nappen 26:36

Hey, I want to tell you about our good friends at WeShoot. WeShoot is an indoor range in Lakewood, New Jersey. It’s the range where Teddy and I shoot, and where we train. You’ll love it at WeShoot. It is the greatest range in New Jersey. We just can’t get enough of WeShoot. I know you will really appreciate having a tremendous resource right there in Lakewood, where you can get your training, get your certificates, practice, have state-of-the-art range facilities, a great pro shop, awesome deals on guns and gear. As a matter of fact, they are offering, as we speak, the Canik Mete MC9LS, which is the 2026 Signature Series called “Drip”. It’s pretty cool. You’ve got to see the graphics on the Drip. They also have a Mossberg Silver Reserve Field. Now this is Mossberg’s over and under, very cool, and it’s a great way to get into an over and under shotgun. They also have Precision Firearms, PF15F. That’s your AR-type platform right there at WeShoot. You can go there, check out these guns and so many others. They’re also running their great programs. They have their range safety officers. They’re there with amazing skilled trainers. I’ve got to tell you, folks, make sure you check out WeShoot. You can find them online at weshootusa.com. weshootusa.com. And I know you’re gonna love their website. They’ve got beautiful photography. They really do take extra pride in what they post and how they make their website. You need to check it out and see what I’m what I’m talking about. And their instructors are just fantastic. I have always admired just the unbelievably great professionalism, courtesy, just the way they Page – 7 – of 9

treat their customers. You will be treated like gold at WeShoot. WeShoot is the best. o to WeShootUSA.com.

Evan Nappen 29:22

Hey, I also want to not only shamelessly plug my book, which is New Jersey Gun Law, the Bible of Jersey Gun Law. The indispensable guidebook to helping you navigate New Jersey’s insane matrix of gun laws. It’s all set up in a question and answer format. I also want folks to know that the DOJ has opened up the Federal Relief from Disabilities Program. I’ve been waiting 33 years to be able to do this again, and that is be able to get people’s gun rights restored. That have had federal firearm prohibitors. This will restore your federal gun rights, and it is great. We really owe it to the Trump administration for reopening this program that was killed in ’93 by Chuck Schumer. For 33 years, people have been unable to regain their Second Amendment rights under federal law, if they had prohibitors. o, if you or anyone you know might be eligible, go to my website, go to EvanNappen.com. You can buy my book there. You can also read about the federal relief from disabilities. This is very hot, big stuff going on because the online portal is going to open shortly, and you want to be ready. You want to have counsel, and there’s a lot that has to get done so that we can get you in. They’re talking about probably a million people needing to get their rights restored, and it’s going to be quite a logjam. So, the sooner you’re in, the sooner you can get your rights back. I’d highly, highly recommend taking action and checking it out. Go to evannappen.com, and I’ll be happy to speak to you about your specific situation and if it’s applicable for you.

Evan Nappen 31:40

Hey, I have some good news, and the good news is that the CDC, you know, the CDC, who’s currently headed by Robert Kennedy, and CDC that is now under the Trump administration. Well, guess what they did, folks? They restored defensive gun use data after Biden scrubbed it and covered it up because they didn’t want that really great important information being out there about how many lives guns save, so the corrupt Biden administration just said we’re not going to talk about it. We’re going to wipe it out. We’re not going to put that out there anymore. We’re only going to talk about guns are bad, and not ever talk about why guns are good. Well, it’s a new day. It’s a new administration, and that information has now been put back. I’m talking about an article here from Ammo and. (https://www.ammoland.com/2026/08/cdc-restores-defensive-gun-use-data/?utm_source=Ammoland+Subscribers&utm_campaign=b4aea4936c-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_6f6fac3eaa-b4aea4936c-21268623)

Evan Nappen 32:56

We love AmmoLand, and this article is by John Crump, who is also one of my favorite authors at AmmoLand. John says that under the Biden administration they had removed the data, and the studies have shown that guns were used in self-defense between 60,000 times and 2.5 million times each year. Think about that, folks. 60,000 to 2.5 million times each year, guns are used in self-defense. So, even at the low range, that dwarfs the number of guns used in murders, which is approximately 15,000. Okay, dwarfs it at the lowest numbers. It approaches or exceeds the total number of gun deaths per year, which is around 40,000, according to Pew. The wide range of estimates is because of different methodologies used. So, the lower figure is drawn on the National Crime Victimization Survey, while the higher figures primarily stem from surveys conducted by criminologist Gary Kleck in the 1990s. Page – 8 – of 9

Evan Nappen 34:41

Now, a National Academies of Sciences report commissioned by the CDC itself in 2013, this is a CDC commission study. Referenced this range of 60,000 to 2.5 million defensive gun uses annually. But in 2022, with pressure from anti-gun groups such as the Gun Violence Archive, the Newtown Action Alliance, and GVPedia, in a private meeting, the CDC scrubbed the website of defensive gun use information. Through a Freedom of Information Act, they revealed that the removal was purely political, folks, and this is all according to emails that Senator Grassley obtained. One of these things here argued, and this is quoting from that email in the article by Mr. Crump, and it says. Get a load of this. This is from the antis here. “That 2.5 million number needs to be killed, buried, dug up, killed again, and buried again.” Mark Bryant, executive director of Gun Violence Archives, wrote to the CDC in one of his emails. See that? They don’t like it, man, when you’re showing that guns save lives. We can’t have truth out there. We can’t have the actual information about how people don’t want to be victims but would prefer to be defenders and live. Right? That’s Biden’s administration for you. That’s the corrupt, evil Biden administration for you, removing that information. Trump and his administration have put that data back public so you can see it and you can read it. Keep in mind that’s the CDC removing specific numeral range and the link from their own research, folks. But now, under Trump and Secretary Kennedy, the CDC is returning the statistics to its firearm injury and death page. The restored language again makes it clear, points it out that defensive gun use varies by studies, and it ranges from 60,000 to 2.5 million per year. That is awesome, and that information belongs out there.

Evan Nappen 37:43

Hey, let me tell you about this week’s GOFU. GOFUs, as you know, are Gun Owner Fuck Ups. It’s where gun owners make expensive mistakes, real mistakes that I hear about and try to help them. But it’s a chance where you can avoid them for free, and this week’s GOFU has to do with references on your gun application. When you need references, please clear your references in advance. Make sure your references know you’re going to use them as a reference. I’ll tell you, we may have mentioned this before in the past, but it can’t hurt to mention it again. They’re going to get an email requesting to know how long they’ve known you and whether they have any issues with you owning guns. I get cases where people don’t bother to clear it, don’t realize the person is anti-gun and doesn’t think anyone should have a gun, or has some problem being a reference. You don’t want to have that problem.

Evan Nappen 38:48

Yet recently, I’ve heard of even a worse problem, and this one is just mind-boggling. I’m still going to put it out there as a GOFU for folks because don’t ever do this. Don’t make up false references. Yeah, I’m not kidding. Do not fill out a gun application with fake references. I can’t believe I even have to say this. But do not fill out a gun application and make up phony references because your phony references are going to be contacted, and that’s called falsification of the application. It’s a crime to do that. Third degree. You’re looking at five years in State Prison. Plus, it’s really stupid, and you’ll get denied your gun license. I mean, okay, do you have to write that one down? Not to put fake references on your application? I hope not, but it’s a GOFU. Make sure you’re good about your references and clear them in advance. Only put real ones down, folks. Page – 9 – of 9

Evan Nappen 39:54

This is Evan Nappen reminding you that gun laws don’t protect honest citizens from criminals. They protect criminals from honest citizens.

Speaker 2 40:05

Gun Lawyer is a CounterThink Media production. The music used in this broadcast was managed by Cosmo Music, New York, New York. Reach us by emailing [email protected]. The information and opinions in this broadcast do not constitute legal advice. Consult a licensed attorney in your state.