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Application of Walter Marvin

Decided: January 20, 1969.

APPLICATION OF WALTER MARVIN, JR., APPELLANT


For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Jacobs, J.

Jacobs

The appellant Walter Marvin, Jr. applied for a firearms purchaser identification card under N.J.S. 2 A:151-35. He declined to answer several questions in the application form and thereafter he was advised that his application had been denied. He appealed unsuccessfully to the county court and the Appellate Division. In re Walter Marvin, Jr., 97 N.J. Super. 62 (App. Div. 1967). He then appealed to this court under R.R. 1:2-1(a).

N.J.S. 2 A:151-35, as soundly construed by the Appellate Division, provides that every applicant for a pistol permit or a firearms purchaser identification card shall state, inter alia, whether he is or ever has been a member of an organization which he knows to advocate the commission of acts of force or violence designed to overthrow the Government or deny others their constitutional rights. Implementing the statutory provision, the application form promulgated by the Superintendent of State Police contains questions twenty-two to twenty-four inclusive which inquire into such memberships and the dates thereof. 97 N.J. Super., at 66. In his application, the appellant declined to answer the questions

with the comment that they were vague and sought "to penalize membership in organizations against which there has been no judicial finding of the commission of a crime." The local chief of police denied the application because it was incomplete. In an affidavit filed in connection with the appellant's appeal to the county court, the chief of police pointed out that the omitted answers were needed for determination as to whether further investigation was called for, and that membership in an organization of the type inquired about would not necessarily lead to a denial of the application. In its affirmance of the action by the chief of police, the county court found that the statutory requirement was "a valid exercise of the police power of the State of New Jersey and is clearly within the provisions of the United States Constitution and the Constitution of the State of New Jersey and does not infringe upon or violate any of the constitutional rights of the applicant." The Appellate Division reached the same conclusion for the reasons expressed in its reported opinion. 97 N.J. Super. 62.

The appellant does not question the State's right to regulate the purchase and carrying of firearms. See Burton v. Sills, 53 N.J. 86 (1968). Nor does he question the State's right to take appropriate steps towards prevention of the violent overthrow of the Government or the violent denial of constitutional rights. Indeed, he explicitly acknowledges that the State may properly include questions designed to ascertain whether the firearms are intended for use by extremist paramilitary or other types of organizations dedicated to the forceful overthrow of the Government or the forceful denial of constitutional rights, but he takes the position that the questions actually set forth in the application form were vague and overbroad and in that respect ran afoul of Supreme Court cases such as Whitehill v. Elkins, 389 U.S. 54, 88 S. Ct. 184, 19 L. Ed. 2 d 228 (1967); Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2 d 629 (1967); Elfbrandt v. Russell, 384 U.S. 11, 86 S. Ct. 1238, 16 L. Ed. 2 d 321 (1966); Dombrowski v.

Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2 d 22 (1965); Aptheker v. Secretary of State, 378 U.S. 500, 84 S. Ct. 1659, 12 L. Ed. 2 d 992 (1964); and Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316, 12 L. Ed. 2 d 377 (1964). See Israel, "Elfbrandt v. Russell: The Demise of the Oath?," 1966 Supreme Court Review 193; Note, "Loyalty Oaths," 77 Yale L.J. 739 (1968). See also United States v. Brown, 381 U.S. 437, 85 S. Ct. 1707, 14 L. Ed. 2 d 484 (1965); Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S. Ct. 275, 7 L. Ed. 2 d 285 (1961), and United States v. Robel, 389 U.S. 258, 88 S. Ct. 419, 19 L. Ed. 2 d 508 (1967), commented upon in Gunther, "Reflections on Robel," 20 Stanford L. Rev. 1140 (1968).

In dealing with the federal opinions we must bear clearly in mind just what the pertinent statutory requirement is aimed at and precisely what it does and does not entail. It is part of New Jersey's Gun Control Law which seeks to prevent criminal and other unfit elements from acquiring lethal weapons while enabling the fit elements of society to obtain firearms with minimal burdens and inconveniences. See Burton v. Sills, supra, 53 N.J. 86. It does not require any loyalty or comparable oath on sanction of loss of employment or criminal prosecution; it does not prohibit any organizational membership or any organizational act on sanction of criminal or other penalty; and it does not provide for denial of a pistol permit or firearms purchaser identification card because of membership in any designated organization. It does, however, direct the administrative official to inquire whether the applicant is or has been a member of an organization which he knows to advocate the commission of acts of force or violence designed to overthrow the Government or deny to others their constitutional rights. The inquiry is clear and understandable and may be answered negatively, affirmatively or qualifiedly. Whatever the answer, it merely serves as a basis for any needed further inquiry by the official who at all times has the affirmative burden of determining whether the applicant is individually qualified

or disqualified under the terms of N.J.S. 2 A:151-33. Cf. 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); see also Borrow v. F.C.C., 109 U.S. App. D.C. 224, 285 F.2d 666 (D.C. Cir.), certiorari denied, 364 U.S. 892, 81 S. Ct. 223, 5 L. Ed. 2 d 188 (1960); Ilowite v. United States, 390 F.2d 589 (3 d Cir. 1968), vacated for mootness, 393 U.S. 15, 89 S. Ct. 47, 21 L. Ed 2 d 15 (1968).

In making his determination, the official is not authorized to deny an application because of organizational membership alone, although he may deny where the totality of the circumstances before him discloses that the applicant is unfit to purchase and carry lethal weapons and that the issuance of a permit or identification card to him would therefore "not be in the interest of the public health, safety or welfare." N.J.S. 2 A:151-33(d). See Burton v. Sills, supra, 53 N.J. 86. Where the applicant is an active member of an extremist paramilitary organization dedicated to the forceful overthrow of the Government or the forceful denial of constitutional rights, the totality of the circumstances may for obvious reasons support a finding of unfitness within the statutory contemplation. On the other hand, where the applicant is an inactive member of a political organization which, though ideologically favoring the forceful overthrow of democratic government, has no paramilitary or weapons-gathering aspects, the totality of the circumstances may for equally obvious reasons support a finding of fitness within the statutory contemplation. In any event, the administrative official will, in the first instance, have the direct responsibility of passing ...


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