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Service Armament Co. v. Hyland

Decided: November 11, 1974.

SERVICE ARMAMENT CO., A NEW JERSEY CORPORATION; NRA MEMBERS FOR A BETTER NRA, INC., A NEW JERSEY CORPORATION; HOWARD RAYMOND: GOODMANSHAW, INC., A NEW JERSEY CORPORATION; RUTGERS GUN AND BOAT CENTER, INC., A NEW JERSEY CORPORATION; NESHANIC DEPOT ANTIQUES, INCORPORATED, A NEW JERSEY CORPORATION; HOMESTEADER'S BLACK POWDER GUN CLUB OF BOUND BROOK, NEW JERSEY, AN UNINCORPORATED ASSOCIATION, PLAINTIFFS-RESPONDENTS,
v.
WILLIAM F. HYLAND, ATTORNEY-GENERAL OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT



Conford, Michels and Morgan. The opinion of the court was delivered by Michels, J.A.D.

Michels

This appeal raises the novel issue of whether replicas of antique muzzle-loading black powder pistols, revolvers and rifles which do not fire fixed ammunition are exempt from the provisions of the New Jersey Gun Control Law (L. 1966, c. 60; N.J.S.A. 2A:151-1 et seq.). Plaintiffs, four New Jersey corporations engaged in the sale of replicas of Civil and Revolutionary War muzzle-loading black powder firearms, a New Jersey sportsmen's organization of over 300 members, an individual collector of antique firearms from the Revolutionary War period, including replicas thereof, and an unincorporated association of approximately 15 collectors and shooters of Civil War muzzle-loading firearms, instituted this declaratory judgment suit, naming the Attorney General of New Jersey as a defendant and seeking (1) a declaration that replicas of antique muzzle-loading black powder pistols, revolvers and rifles which do not fire fixed ammunition are exempt from the provision of the Gun Control Law by virtue of N.J.S.A. 2A:151-18 (L. 1966, c. 60, ยง 15), and (2) an injunction against enforcement of the criminal sanctions of the Gun Control Law based upon the Attorney General's recent interpretation that replicas of antique firearms were not exempt from the law.

In the Law Division Judge Schoch interpreted the exemption for antique and ornamental firearms created by N.J.S.A. 2A:151-18 to include replicas of antique firearms, as well as antique firearms themselves, regardless of the date of their manufacture, and entered summary judgment for plaintiffs. The Attorney General appeals, contending that it was not the Legislature's intention to exempt operable replicas of antique firearms from the regulatory provisions

of the Gun Control Law. He argues that the court below (1) incorrectly placed inordinate weight on the prior administrative interpretation of the statute and enforcement of same with respect to replicas of antique firearms, and (2) improperly derived a legislative intent to exempt replicas from the failure of the Legislature to act in response to such administrative interpretation. We stayed the judgment below pending appeal, which stay was continued by the Supreme Court, thereby continuing the enforcement of the Gun Control Law based upon the Attorney General's recent interpretation of the exemption set forth in his memorandum of July 18, 1973 to the county prosecutors and New Jersey State Police.

A brief review of the context in which the issue arises is helpful to its resolution. The New Jersey Legislature enacted a comprehensive "Gun Control Law" in 1966 (L. 1966, c. 60; N.J.S.A. 2A:151-1 et seq.), the constitutionality of which was upheld by our Supreme Court in Burton v. Sills, 53 N.J. 86 (1968), app. dism. 394 U.S. 812, 89 S. Ct. 1486, 22 L. Ed. 2d 748 (1969). The 1966 act, which repealed and amended sections of the existing statutory provisions regulating firearms, provided for, among other things, the licensing of manufacturers and wholesale and retail dealers of firearms, and established permit and identification requirements for the acquisition of firearms. The regulatory provisions of the act were "designed to prevent criminal and other unfit elements from acquiring firearms." Burton v. Sills, supra at 93. The Legislature, however, created an exemption from the regulatory provisions of the act for certain firearms. N.J.S.A. 2A:151-18 provides:

This chapter does not apply to antique firearms which are incapable of being fired or discharged or which do not fire fixed ammunition, or those manufactured before 1898 for which cartridge ammunition is not commercially available, and are possessed as curiosities or ornaments or for their historical significance or value.

Shortly before the Gun Control Law came into effect*fn1 a special meeting was called in Trenton for the purpose of informing firearms dealers and others involved with firearms in New Jersey of the full implications of the act. On behalf and with the knowledge of then Attorney General Arthur J. Sills the dealers were advised that replicas of muzzle-loading black powder pistols, revolvers and rifles were exempt from the provisions of the Gun Control Law. Attorney General Sills, in an affidavit submitted to the Supreme Court (on the motion for a stay), specifically stated:

3. I was closley involved in the drafting and presentation of the aforesaid Gun Control Act and participated in numerous discussions concerning the intent and enforcement of the Act both before and after its implementation.

5. * * * It was my opinion during the term of my administration that said replicas were exempt from the Act and were intended to be exempt from the Act by the draftsmen and legislators. Therefore, the Gun Control Act of 1966 was always enforced during my administration with my knowledge and direction to exempt such replicas.

The construction placed upon the "antique firearm" exemption by then Attorney General Sills was consistently and uniformly followed, and the statute enforced in the light of such construction for the next seven years, including the period from 1970 until July 18, 1973, during which George F. Kugler, Jr., was Attorney General of New Jersey. This is not disputed by the present Attorney General. In fact, he admits that "[t]he policy of exemption with respect to replicas was acknowledged in November, 1972, when the Division of Criminal Justice submitted a Report on the Proposed New Jersey Penal Code * * * to the New Jersey Criminal Law Revision Commission." The Report in pertinent part provides:

The Code continues the present exemption for antique firearms, Section 2C:39-6c. Recently, firearms, intended to duplicate antique weapons and capable of being fired, have been manufactured. The provision permits persons to carry such firearms. They do not fire fixed ammunition and consequently are exempted under the section but they are still lethal weapons which should ...


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