Episode 181- A Sensitive Place Loophole
Also Available OnPodcast TranscriptGun Lawyer Episode 181

SUMMARY KEYWORDS

places, loophole, new jersey, prohibited, gun, law, gun owners, individuals, permits, sensitive, switchblade, state, issued, carry, nfa, expungement, person, firearm, biden, rule

SPEAKERS

Speaker 3, Evan Nappen

Evan Nappen 00:00

Hi. I’m Evan Nappen, and welcome to Gun Lawyer. I have a really interesting loophole to share with you today, and I love loopholes. Loopholes are simply freedom finding the way. You see loopholes end up carving out freedom. Often, they can carve it out so much that they can give us back what the loophole was getting us around. I’ve seen that occur in a number of instances. One example for you to consider is the National Firearms Act requirements. It used to be when you buy a machine gun, silencer, suppressor, etc, or destructive device, you would do your NFA paperwork, and it would be the registration. You’d be looking to get your tax stamp and all. One of the requirements was that the chief law enforcement officer had to sign off on your paperwork. If the chief law enforcement officer didn’t want to sign it, for any reason, you know, maybe they just didn’t think anyone should have one of these things, they just don’t want to sign it, there was nothing you could do to force them to sign it.

Evan Nappen 01:34

And what happened was, it was figured out that if you were purchasing or acquiring NFA and you did it by way of a Trust, there was no CLE, Chief Law Enforcement, officer sign off for a Trust. So, what got created became known as the NFA Trust. Individuals would be acquiring NFA using a Trust, which is also good for estate planning, so that individuals could inherit your NFA item. But what the Trust did was make it so there was no more CLE involvement in it. No Chief Law Enforcement officer’s involvement. That way you couldn’t be stopped, and it was extremely successful and effective. So about 10,000 NFA Trusts later, ATF decided to finally get rid of that rule which they wouldn’t have gotten rid of before. They changed it so that when you get an anything NFA, the chief law enforcement officer is given notice, but their sign off is not required. So, we’ve actually created and gotten rid of that requirement, gaining freedom for NFA. Of course, in New Jersey, you’re not able to buy anything NFA because New Jersey prohibits machine guns, suppressors and destructive devices. But in other places, in Free America, where you can have those things, the loophole ended up killing the sign off requirement that often could be troublesome for folks.

Evan Nappen 03:25

We also have seen loopholes, even in the development of technology, overcome various bans and prohibitions on things. A good one is switchblade knives. Switchblades were prohibited in the 1950s by way of a Federal law. But they’re not prohibited from possession under Federal law. They are prohibited from interstate transport. So, if you live in a state where they were legal, you could have

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them. There was a workaround for federal laws so that bona fide dealers could sell them. But if you lived in a state where they were prohibited, you couldn’t own them. The advent of the assisted-opening knife really went far to fighting the anti-switchblade laws. An assisted opener opens by way of a spring assist. So, when you push the tab on the blade, the knife opens about 30% manually, and then the rest of the way opens automatically. It almost appears to be a switchblade, but it’s not a switchblade because it doesn’t have a button or device in the handle. It’s integral to the spring mechanism, and there is no button or device in the handle. There was an explosion of assisted openers being sold. You can even buy them in Walmart for that matter.

Evan Nappen 04:54

Because they became so accepted, understood, and recognized, when the fight came to repeal the anti-switchblade laws, people were more understanding about it, having seen the utilitarian value of a one-hand opening knife. These laws were able to drop like flies beginning in 2010, in New Hampshire, where I helped spearhead the first repeal, modern age repeal, of state switchblade laws. Since then, I’ve lost track of how many states, actually 26, 27, 28, 29, I lost track of how many have repealed their switchblade laws with the good work of Knife Rights. (https://kniferights.org) Given other states that didn’t have prohibitions, there’s only a handful that still prohibit switchblades. Of course, New Jersey still does, but most states don’t. Now there are ways in New Jersey to lawfully own a switchblade, and I’ve won cases on that. But generally, don’t possess them. They are known as per se weapons. There is an exemption in the statute, and if you can meet it, then there’s a way to lawfully have one. But this show isn’t about switchblades. It’s more about the impact of loopholes.

Evan Nappen 06:12

I have a really interesting loophole to share with you that has to do with the “sensitive places” that were put into Murphy’s Carry Killer law. You may recall the Carry Killer law that was passed in response to the Bruen decision. The Bruen decision removed “justifiable need” from carry permits and basically mandated that they be essentially “shall issue”. So, New Jersey now had to issue carry permits, and they only want to do that kicking and screaming. Because of that, they figured, well, we can’t stop permits being issued, so let’s see how dramatically and drastically we can limit the utilitarian value by creating 25 “sensitive places” and all these restrictions. The Association of New Jersey Rifle & Pistol Clubs then litigated. They are at the forefront of the litigation and were able to knock out a number of those provisions. It is currently on appeal, and the Appellate Court reinstituted temporarily some of the enjoined provisions. We’re still in a big fight, and hopefully, we’re going to wipe out most of these. But in the time being, there’s still a number of the sensitive places that we have to suffer under.

Evan Nappen 07:23

However, I found a very interesting loophole that I want to share with you regarding “sensitive places”. Now, the sensitive places restrictions are found in New Jersey law under N.J.S. 2C:58-4.6. Under that first subsection, it lists all the places that we’ve discussed in detail in other shows, and they can become tricky and troublesome for folks. What brought this to my attention were individuals that wanted to protect their house of worship. Now, houses of worship themselves are not sensitive places. There is no prohibition on carrying your handgun, properly concealed, loaded with a carry permit, in a house of worship. They are public places, and they are considered private property. But public places that are private property and that are open to the public, are currently not prohibited under the sensitive places

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restrictions. So, there’s no specific house of worship prohibition. The public place, if it’s open to the public, has been enjoined, as well. The half of it that applies to places open to the public. Now, if it’s private property not open to the public, like your friend’s house, for example, then you have to get consent before you go there carrying your gun. But if it’s open to the public, you don’t.

Evan Nappen 09:11

It looks pretty good on its face for houses of worship to be able to have individuals carrying and being able to protect their congregation and folks that go there. The problem is that many of these religious places have schools. They may have various religious classes, schools, nursery schools, even daycare centers, summer camps, etc. that are on the property that are separate, sensitive places. So how can these places protect themselves? In answering that question, I realized there is a broader application for this loophole. Let’s talk about the loophole itself. You can find it, and you can read it for yourself, under N.J.SS. 2C:58-4.6 small letter e., as in Evan. If you go to that subsection, it reads as follows. “Nothing in this act shall be construed to prohibit the holder of a valid and lawfully issued permit under N.J.S. 2C:58-4 who is lawfully authorized to provide security at a place enumerated in subsection a. of this section,” which are the sensitive places, “from carrying a firearm, openly or concealed, provided that the authorization is set forth in writing, and only to the extent permitted by the entity responsible for security at the place in question.”

Evan Nappen 11:01

So, just focusing for a moment on houses of worship. If they want to have a security team or individual folks that belong to that particular religious institution, if they want to have those folks carrying to protect their people, they simply need to have the entity responsible for security at the place, which could be the person who’s in charge of the church, synagogue, or mosque, or the person who owns the place or the entity that does, whoever that entity is who’s responsible for security, put it in writing, authorizing those persons with carry licenses. Then those persons are able to carry openly or concealed under this statute and provide security. They’re able to go into the sensitive places, which include the schools, camps, nursery schools, etc, that are part of that facility. You can see that exemption is really great because our religious institutions need to protect themselves. Especially in the face of the various terrorist acts that take place against Jews, and against Christians and against Muslims, as we see happening. You can take advantage of this exemption in your own religious institution.

Evan Nappen 12:38

But beyond that, what makes this really interesting is it applies to any sensitive place where the entity responsible for security sets forth in writing the ability for that security to be provided. And this got me thinking. So, if a sensitive place decides via their entity responsible for security to put up a sign, for example, in writing, because the sign is in writing, it’s written, a written sign, saying that anybody who has a SORA (Security Officers Registration Act) card and a carry permit, because the SORA card is how you lawfully provide security in New Jersey, is authorized to carry. Then that person would be able to provide security. They could say provide security while in attendance here for free to the institution. They could say concealed on their person. Therefore, they could then allow concealed carry, even at a sensitive place like a bar, or a restaurant that serves alcohol, or an entertainment venue, or any of the sensitive places. Such written authorization would cover it under that section.

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Evan Nappen 14:21

When you look at the SORA law, which is the registration requirement for security officers, under New Jersey Code Title 45:19A-4 and you go to 4.a., it reads, “No person shall be employed as, or perform the functions and activities of, a security officer unless that person is registered with the Superintendent as required in this section.” So, what you need to get is a SORA card. And look, you don’t have to be employed to provide services. You’re only going to be employed if you’re getting paid for it, but you’re not going to get paid for it in terms of this exemption, particularly when you’re doing it to help out your church, or your synagogue, or mosque. And even these other places that will allow an individual to provide security for free, they’re providing security still, while attending or being in that particular area. Then if they have in writing the ability to do it and if there’s SORA, they can provide security as permitted here. They have their carry permit, and they have to stick within the dictates of that sign. Also, you could get individual permission in writing, if you wish, from places you might regularly go to, if you have a SORA card and a carry permit. So, you know, the ranges will do SORA training, and you can get SORA training at WeShoot, the great range in Lakewood. I know many other facilities offer this sort of training, and you get your SORA card. And if this is utilized by folks, it can maximize the ability to carry. Actually, if the signs are done properly, according to the statute, put in writing to say exactly what is being permitted and how it’s done, then those signs could counter the signs Murphy and company are giving away for free, saying “no guns allowed in this place”.

Evan Nappen 16:44

Now, as we talked about on other shows, the signs saying, “no guns in this place”, create a danger to those places, because they’re saying these places are unprotected. They don’t want guns there. Because, you know, criminals ignore the signs. So, they are a vulnerable place where you have a greater chance of injury because they prohibit guns. Whereas any of these other places that want to embrace this, where they’re encouraging individuals who are licensed and legal to carry, even in a sensitive place where they may be located and be the entity in charge of security for that, they’re going to be safer those places. They’re actually going to increase safety. They’re going to send a message to the bad guys that this is not the place to commit your crimes, to commit violence, because individuals here are providing armed security. You don’t even know who they are, but they’re there. So, think about which place is safer and where you’re going to be more protected. Think about the message that can send. This is an interesting loophole that individuals should think about taking advantage of if they’re in a position to do so.

Evan Nappen 17:55

I was talking about the Association of New Jersey Rifle & Pistol Clubs, which is, of course, a great sponsor of our show, and we appreciate that. They’re the ones litigating over sensitive places, and hopefully, they’ll knock them out. We’re making great progress there. They’re also currently litigating against the mag ban and the assault firearm ban, so-called assault firearm, you know, which is really nothing more than a modern sporting rifle that the antis decide to pick on. The Association, very shortly, is going to be doing their arguments on a summary judgment motion. So, we should see some results there on this great legal challenge. The Association is in the forefront protecting your gun rights with a full time paid lobbyist in Trenton. It’s really important that you belong and become a member of the Association of New Jersey Rifle & Pistol Clubs. Go to ANJPRC.org to join. Make sure you’re a member and be part of the solution as we fight the fight in New Jersey.

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Evan Nappen 19:03

Also, let me mention WeShoot yet again. WeShoot is that great range in Lakewood, New Jersey. It’s so convenient, right off the Parkway, easy to get to right there in Central Jersey. It’s a great resource, and they are a great bunch of folks. I love all the folks at WeShoot. They treat everybody like family. It’s just a great experience. They have an excellent, first rate range facility. They have gun rentals and training. You can get your courses, get your CCARE so you can get your carry. I did. It’s really a great place. They have all kinds of fun events. It is a resource that you can take advantage of. And I highly, highly suggest you do. We have to maintain our places to shoot. They are a resource. Without a place to shoot, how are we going to practice? It is pretty basic. So, check out weshootusa.com You’ll see their great website with its magnificent photography. They pride themselves on that. They are just a dynamic range that is reaching out to the entire community. They are making a statement by getting more gun owners and folks becoming first time gun owners and learning about guns the right way, from the beginning. I’m really proud of WeShoot. They’re doing wonders for the Second Amendment because we win this one gun owner at a time. Every new gun owner has a vested interest in our Second Amendment. So, check out WeShoot at weshootusa.com.

Evan Nappen 20:52

Let me also now shamelessly plug my book, New Jersey Gun Law. It’s the Bible of New Jersey gun law. If you don’t have a copy, shame on you, because it is a user manual that every gun owner should have in New Jersey. I wrote it to be user friendly. It’s over 500 pages with 120 topics all in a question and answer format. With this book, you can help yourself to keep your rights and stay out of jail. Don’t become a victim of New Jersey gun laws. When you get the book, scan the cover, there’s a QR code right on the cover. You get to subscribe for free to the subscriber database, archive, etc, and you’re going to get email alerts of law changes. You’re going to be able to get all the updates, and your book is going to stay current. Once you get that base book, you’re set, and you’ll be able to know the laws. My book is used by New Jersey State Police Firearms Unit. I know that for a fact. I talked with them about it. So many agencies, lawyers, judges, but most importantly thousands of gun owners like yourself throughout New Jersey, have the book so that they can stay on the right side of the law and not get entrapped by New Jersey’s insane matrix of stupid ass gun laws. That’s why I wrote it, folks. I wrote it for you. So, go to EvanNappen.com You’ll see the big orange book there. Just click on it and order a copy for yourself today at EvanNappen.com.

Evan Nappen 22:32

Hey, let me tell you about the latest from the angry senile sock puppet, who is also our president. Biden just put forward another attack on gun owners, and this one is a new ATF rule. He and his co- conspirator, Attorney General Garland, have now created yet another weaponization of the gun laws and the abuse of administrative agency law and code promulgation by now making it unlawful to sell a firearm for a profit. Unless you’re a dealer. It’s really that simple. Now, of course they’re saying, oh, it’s a gun show loophole. Oh, you mean the non-existent gun show loophole? That one? Dealers have always had to do NICS checks at gun shows. “Closes the gun show loophole.” Now what this does is it’s an attack on individuals that were making lawful private sales that have been allowed since the founding of our country, basically. In New Jersey, Murphy prohibited all private sales even between

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family members without getting permits and licenses to do it. You have to go through a dealer unless you are an immediate family member.

Evan Nappen 24:01

So, you may think, well, this doesn’t really apply to me in New Jersey. I already have the hammer down on my head because of Murphy. But in fact, it does. It does because the reason for this rule is to get Universal Background Checks (UBC) to force as many gun sales into dealer books so that they are trackable. As you may know, the Biden administration violated the law by databasing literally almost a billion gun transaction records. We know the four words about registration and the problem of it. It goes like this, legislation, registration, confiscation, and then extermination. And that’s a pattern we see. It’s repeated throughout history. If you don’t know that, then you don’t know history. So, we have to stop registration. Registration is a problem, and this is the gateway. This is their plan. So, if you stop private sales throughout the country, if you make it so that every transaction is recorded, known, and able to be databased, this is their plan. Plus, it turns 1000s and 1000s of otherwise law-abiding citizens into criminals. So, it is definitely a big problem.

Evan Nappen 25:21

Let me just show you how big a problem it is. So, here’s an article from Fox News, and it’s by Bradford Betz. (https://www.foxnews.com/politics/gun-groups-slam-biden-admin-new-atf-rule-weaponizing-every- tool) It says, “Gun groups slam Biden admin over new ATF rule”. So, this is not just me recognizing the threat and how serious it is. Let me read you some of these things. For example, the National Association for Gun Rights told Fox News Digital that the new rule will “outlaw virtually all private sales of firearms between individuals.” Imagine that. Then the Second Amendment Institute, in the article, said that the new rule is “another example of them going beyond the statutory authority for political purposes. It infringes upon the rights of law-abiding citizens and adds unnecessary burdens to those seeking to exercise their Second Amendment rights.” The Gun Owners of America director, Aidan Johnson, said that the Biden administration is “weaponizing every tool in their toolbox to intimidate, harass, and criminalize gun owners with unlawful executive actions.” He called it backdoor universal gun registration, which is exactly what it is. The Second Amendment Foundation founder and Executive VP Alan Gottlieb called the new rule “a continuation of the Biden war on guns.” Yet another example of getting around Congress and the lawmaking responsibility of Congress. The National Rifle Association issued a statement that they’re already working to use all means available to stop this unlawful rule. It’s a serious, serious infringement. It’s a serious problem. It’s another move by Biden and his cronies to curtail the Second Amendment while he neglects all his other responsibilities on every other issue, whether it’s immigration, crime, the economy, you name it. He drops the ball on all that, but he comes after us with a vengeance. So, beware.

Evan Nappen 27:41

Now let me tell you something else. I got an interesting letter, and this was from David Watson, who has yet another very interesting point. Like I said, if you think this doesn’t apply to you in New Jersey, well, let’s say that you sell guns on GunBroker and you say, hey, I put it up there for sale, but I always go through a dealer. Even though I sell it, I don’t actually do the transfer. Well, guess what, folks? That doesn’t matter. Because as David Watson points out, the new rule on page 461, by the way, the rule is 466 pages long for just this rule, says that a sign that a person is engaged in the business, to

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“predominantly earn a profit” . . . . Then it defines “predominantly earn a profit” presumptions that a person has the intent to predominantly earn a profit, makes and maintains records, to document, track, or calculate profits and losses, from firearms repetitively purchased for resale. (https://www.atf.gov/firearms/final-rule-definition-engaged-business-dealer-firearms)

Evan Nappen 28:46

So, what does David point out? The IRS requires recording of your GunBroker sales, and the BATF will say that that’s presumptive proof that you’re violating the BATF rule, because you’re in the business to predominantly earn a profit. BATF says you’re presumed guilty of being an unlicensed gun dealer until proven innocent because you’re presumed to be in the business to predominantly earn a profit. So, even by selling on GunBroker, you may face problems under this rule, even trying to do that lawfully in New Jersey. This rule is terrible. It’s a march down a horrible path. We have to replace this guy in 2024. As if I have to tell you that. He is the worst president in the history of America. He makes Millard Fillmore look good.

Evan Nappen 29:42

So, what about the GOFU of the week? That’s right, folks, the Gun Owner Fuck Up. You know what the GOFU is. It is a very expensive lesson learned by somebody else, that you get to learn very cheap, and that is for free by listening to me. So, let me tell you about this week’s GOFU. I have a fellow, and he got an expungement. Now expungements are great. Expungement can remove your criminal record. And remember, there are so many offenses you can get into trouble for, and most are non-violent. But it doesn’t matter. You are prohibited in New Jersey, if you have any of these offenses, no matter how long ago they were. You need to get your record expunged. We do a lot of expungements in our office. It’s great to get rights restored. This fellow got an expungement, not through our office, but through another, but it doesn’t matter. He got an expungement.

Evan Nappen 30:45

However, he wasn’t told by his lawyer that the State Police are currently negligent in removing the database entry of the expunged record. The State Police are currently in a class action lawsuit because 10s of 1000s of individuals have been waiting well over a year, almost two years. I’ve lost track about how long. For the State Police to do their job, do their job, and have the record scrubbed from the database. Because when you get an expungement, you have an Order of Expungement. The order says your record is clear. Your matters that were expunged are deemed not to have occurred. It’s legal that you’re no longer convicted. You’re good to go as far as the law is concerned. But the next step is the State Police have to clear the database. The database is tied to NICS. Because the State Police are taking so long and this fellow didn’t know, he said hey, I’m good. I got my expungement. He didn’t know that the State Police haven’t cleared the database.

Evan Nappen 31:54

So, he was issued his permits because he showed them the expungement, and the permit issuing authorities saw the expungement and granted his permits. But guess what? He went to a dealer. He went to buy a gun and NICS denied him. NICS is, of course, done through the New Jersey State Police. The New Jersey State Police are the point of contact, POC, for NICS in Jersey. When they denied him, not only could he not buy that gun, but when you get denied by the New Jersey State Police on NICS,

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they contact the local authorities that issued his permits. The authorities took away his license and revoked his licenses that they issued, even though they knew he was expunged, which means he didn’t have the prohibitor, but they didn’t care because the database had not been corrected by the State Police, who are the ones who denied him when they’re the ones who can’t get their act together to actually clear the record when he is in fact not a convicted person anymore. But it didn’t matter. It had this cascading effect of having granted licenses revoked and a NICS denial because he didn’t know to wait for the State Police to clear the record. And that, folks, is your GOFU of the week. This is Evan Nappen reminding you that gun laws don’t protect honest citizens from criminals. They protect criminals from honest citizens.

Speaker 3 33:38

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 Evan@gun.lawyer. The information and opinions in this broadcast do not constitute legal advice. Consult a licensed attorney in your state.

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Downloadable PDF TranscriptGun Lawyer S3 E181_Transcript
About The HostEvan Nappen, Esq.

Known as “America’s Gun Lawyer,” Evan Nappen is above all a tireless defender of justice. Author of eight bestselling books and countless articles on firearms, knives, and weapons history and the law, a certified Firearms Instructor, and avid weapons collector and historian with a vast collection that spans almost five decades — it’s no wonder he’s become the trusted, go-to expert for local, industry and national media outlets.

Regularly called on by radio, television and online news media for his commentary and expertise on breaking news Evan has appeared countless shows including Fox News – Judge Jeanine, CNN – Lou Dobbs, Court TV, Real Talk on WOR, It’s Your Call with Lyn Doyle, Tom Gresham’s Gun Talk, and Cam & Company/NRA News.

As a creative arts consultant, he also lends his weapons law and historical expertise to an elite, discerning cadre of movie and television producers and directors, and novelists.

He also provides expert testimony and consultations for defense attorneys across America.

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