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Matter of Marvin

Decided: September 29, 1967.

APPLICATION OF WALTER MARVIN, JR., APPELLANT


Sullivan, Kolovsky and Carton. The opinion of the court was delivered by Carton, J.A.D.

Carton

[97 NJSuper Page 65] Applicant Walter Marvin, Jr. seeks to review the County Court's denial of his application for a firearms purchaser identification card. The chief of police of Middletown Township denied the application because applicant failed to answer certain questions on the form provided as to his membership in subversive organizations or

those which seek to deprive others of their constitutional rights. N.J.S. 2A:151-35.

After a prompt hearing held before the Monmouth County Court in the manner provided for review in the statute, the trial judge upheld the action of the police chief and rejected the claims of the applicant that the First Amendment to the United States Constitution forbids the statutorily directed inquiry and that the statute is void for vagueness.

The application form promulgated by the Superintendent of State Police, pursuant to statutory direction, contains three questions to which the applicant objects:

"No. 22. Are you presently or have you ever been a member of any organization which advocates or approves the commission of acts of force or violence, either to overthrow the government of the United States or of this State, or which seeks to deny others of their rights under the Constitution of either the United States or the State of New Jersey? Yes or No.

No. 23. If yes to the above question, what is the name of the organization?

No. 24. Date of Membership."

These questions follow others inquiring as to whether the applicant is a former criminal, alcoholic, habitual drunkard or narcotics addict, and are made pursuant to N.J.S. 2A:151-35 which, in pertinent part, requires the applicant to answer:

"* * * whether he presently or ever has been a member of any organization, which advocates or approves the commission of acts of force and violence either to overthrow the Government of the United States or of this State, or which seeks to deny others their rights under the Constitutions of either the United States or the State of New Jersey, * * *."

We note, in passing, an inadvertent substitution of the word "or" for the word "and" in the statutory phrase, "force and violence"; the use of "or" in the conjunctive is commonplace in the law.

It should also be noted that N.J.S. 2A:151-44.2, although not directly challenged in this action, requires in parallel language that similar questions be included on applications for permits to carry a pistol or revolver. If the applicant provides false information in applying for any of these he may then be found guilty of a high misdemeanor. N.J.S. 2A:151-48.

Applicant claims that he is an active gun enthusiast, that he lectures on firearms and that, as owner of some 50 rifles and shotguns, he needs the identification card in order to transport these guns to various lectures and related activities. Contrary to the contention of the State of New Jersey, these circumstances surely invest him with standing to complain. The contention that applicant's motion for a hearing and his subsequent appeal are premature is also without merit.

Basically, applicant here claims that his refusal to provide information as to his membership in certain groups is not such a relevant consideration that it would alone justify denial of the card and put him to the choice either of answering and thus revealing his associational interests or accepting the continued denial of the permit. The procedure chosen by the applicant has squarely raised this issue.

Two companion cases in the United States Supreme Court have dealt with a similar question -- whether a candidate for admission to the Bar could be constitutionally denied admission upon his refusal to answer any questions as to his membership in the Communist Party or other listed organizations. Both resolved this conflict of State and private interests in favor of the State's need to obtain an answer to an inquiry relevant to the applicant's qualifications. Konigsberg v. State Bar of California, 366 U.S. 36, 81 S. Ct. 997, 6 L. Ed. 2 d 105 (1961); In re Anastaplo, 366 U.S. 82, 81 S. Ct. 978, 6 L. Ed. 2 d 135 (1961). ...


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