For affirmance -- Justices Jacobs, Hall, Sullivan, Pashman and Clifford. For reversal -- None. The opinion of the Court was delivered by Jacobs, J.
[64 NJ Page 181] The Appellate Division affirmed (122 N.J. Super. 538 (1973)) the Law Division's judgment acquitting the defendant of the charge that he unlawfully possessed a rifle and shotgun in violation of N.J.S.A. 2A:151-41. 118 N.J. Super. 96 (1972). We granted certification, not with the view of interfering with the Law Division's factual conclusions or its direction of acquittal, but for the purpose of reviewing the legal principles affecting nonresidents who possess firearms while within or passing through New Jersey.
63 N.J. 257 (1973); cf. State v. Saulnier, 63 N.J. 199, 201, 209 (1973).
The defendant Leonard E. Hatch, a resident of Erving, Massachusetts, was driving in New Jersey on his way to Philadelphia, Pennsylvania. He was stopped for a traffic violation on Route 22 in the Bound Brook area. The police officer saw a rifle and shotgun under some clothing in the rear seat of the defendant's car. The defendant told the officer that he was traveling from Massachusetts to Pennsylvania in the hope of finding employment in the heavy construction field and that he had taken the guns with him for hunting and related sporting use. He had a Massachusetts hunting license, was a member of a Massachusetts gun club, and had been issued a firearm identification card in accordance with Massachusetts law. He had no New Jersey "firearms purchaser identification card" (N.J.S.A. 2A:151-41(b)) and his firearms were not "in a closed and fastened case, gunbox, securely tied package, or locked in the trunk of the automobile" (N.J.S.A. 2A:151-42(c)). He testified that his mode of carrying the firearms complied with Massachusetts law and that he was unaware of any further legal requirement on his part in passing through New Jersey.
The defendant was indicted for unlawful possession of the rifle and shotgun in violation of N.J.S.A. 2A:151-41 and, after trial, the jury returned a verdict of guilty. However, during the trial the judge had reserved decision on a motion for acquittal and thereafter he entered an order setting aside the jury's verdict and acquitting the defendant in accordance with the provisions of R. 3:18-2. In his reported opinion the trial judge seemed to take the broad position that in the absence of notice or knowledge of further requirement by New Jersey, a nonresident passing through New Jersey may possess a handgun or other firearm so long as his possession is not violative of the law of his own home state. 118 N.J. Super. at 101-103. He, along with the Appellate Division (122 N.J. Super. at 540), cited Lambert v. California,
355 U.S. 225, 78 S. Ct. 240, 2 L. Ed. 2 d 228 (1957), apparently in support of the thought that the federal constitution may prohibit a contrary legislative approach. We hold a different view. See United States v. Freed, 401 U.S. 601, 91 S. Ct. 1112, 28 L. Ed. 2 d 356, rehearing denied, 403 U.S. 912, 91 S. Ct. 2201, 29 L. Ed. 2 d 690 (1971); United States v. International Min. & Chem. Corp., 402 U.S. 558, 91 S. Ct. 1697, 29 L. Ed. 2 d 178 (1971); cf. Garcia v. State, Ind. , 292 N.E. 2 d 810 (1973); People v. Perez, 67 Misc. 2 d 911, 325 N.Y.S. 2d 183 (Co. Ct. 1971); see also United States v. Weiler, 458 F.2d 474 (3 Cir. 1972); Galvan v. Superior Court, 70 Cal. 2 d 851, 76 Cal. Rptr. 642, 653, 452 P. 2 d 930, 941 (1969).
In Lambert the Court dealt with a city ordinance which made it unlawful for any person convicted of a felony to remain within the city limits for more than five days without registering with the police; it held that the ordinance violates due process when applied to a person who has no notice or knowledge of his duty to register. 355 U.S. at 227, 78 S. Ct. 240, 2 L. Ed. 2 d at 231. In the later Freed case the Court dealt with a provision in the National Firearms Act which declares it unlawful to receive or possess an unregistered firearm. The defendant was indicted for possession of unregistered hand grenades but the trial court dismissed the indictment on the ground, inter alia, that it did not allege scienter. In reversing the dismissal and in holding that scienter was not required, the Court differentiated Lambert and determined that Congress had constitutionally declared that possession of the unregistered firearm is unlawful even though the defendant has no notice or knowledge of the lack of registration. 401 U.S. at 608-610, 91 S. Ct. 1112, 28 L. Ed. 2d at 362-363.
In United States v. International Min. & Chem. Corp., supra, 402 U.S. 558, 91 S. Ct. 1697, 29 L. Ed. 2 d 178, the Department of Transportation had adopted regulations governing the transportation of corrosive liquids and other dangerous
articles. The defendant had shipped sulfuric and other dangerous acids without complying with the regulations. In holding that the defendant could not assert lack of knowledge of the regulations by way of defense the Court, after referring to Freed, supra, 401 U.S. 601, 91 S. Ct. 1112, 28 L. Ed. 2 d 356, and United States v. Balint, 258 U.S. 250, 42 S. Ct. 301, 66 L. Ed. 604 (1922) where lack of notice or knowledge of illegality was held no defense to a charge of unlawful narcotics sale, had this to say:
In Balint the Court was dealing with drugs, in Freed with hand grenades, in this case with sulfuric and other dangerous acids. Pencils, dental floss, paper clips may also be regulated. But they may be the type of products which might raise substantial due process questions if Congress did not require, as in Murdock, "mens rea" as to each ingredient of the offense. But where, as here and as in Balint and Freed, dangerous or deleterious devices or products or obnoxious waste materials are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation. 402 U.S. at 564-565, 91 S. Ct. at 1701-1702, 29 L. Ed. 2 d at 183.
In United States v. Weiler, supra, 458 F.2d 474, the court pointed out that in Lambert the crime was one of omission rather than commission, the situation was one in which inquiry as to the applicable law was unlikely, and the purpose of the ordinance was simply to compile a list which might ultimately assist law enforcement agencies. 458 F.2d at 478. In contrast, statutes dealing with gun control are concerned with acts of commission, in situations where regulations abound and inquiries are likely, and where the purposes are to insure the public safety and protect against current acts and threats of violence. See Burton v. Sills, 53 N.J. 86 (1968), appeal dismissed, 394 U.S. 812, 89 S. Ct. 1486, 22 L. Ed. 2 d 748 (1969); Siccardi v. State, 59 N.J. 545 (1971). While there is much to ...