[180 NJSuper Page 574] Can a gun which is mechanically operable but functionally inoperable be considered a lethal weapon? At issue here is a .32 caliber rim-fire Smith & Wesson Model 1 1/2 revolver which was manufactured in 1869. Before the court is defendant's motion to dismiss an indictment charging him, a convicted drug seller,
with unlawful possession of a weapon. R. 3:10-2. Defendant contends that his gun is not a weapon within the purview of the New Jersey Code of Criminal Justice (Code).
The statute upon which the indictment is based provides as follows:
Any person, having been convicted in this State or elsewhere of the crime of aggravated assault, arson, burglary, escape, extortion, homicide, kidnapping, robbery, aggravated sexual assault, or sexual assault whether or not armed with or having in his possession any weapon enumerated in section 2C:39-1r., . . . or any person who has been convicted for the unlawful use, possession or sale of a controlled dangerous substance as defined in article 2 of P.L. 1970, c. 226 (C. 24:21-3 et seq.) who purchases, owns, possesses or controls any of the said weapons is guilty of a crime of the fourth degree. . . [ N.J.S.A. 2C:39-7]
The facts, as revealed by affidavits, are not in serious dispute. In 1976 defendant was convicted of distribution of a controlled dangerous substance, contrary to N.J.S.A. 24:21-19. All parties agree that possession or control of certain weapons by such a person is forbidden by N.J.S.A. 2C:39-7. On February 16, 1980 police officers, in the execution of a search warrant, seized the handgun in question at defendant's home.*fn1 This gun is generally regarded as a curiosity or a collector's piece. When tested, however, the gun was capable of being fired.
This handgun had been passed down through four generations in the Kaniper family. Defendant received the gun in 1970 from his grandmother. From that time until its seizure the gun was kept by defendant in his home among his personal effects. Defendant has never removed it from the house. His possession of the gun was exclusively related to its family and historical significance.
No cartridge ammunition for the gun was seized. This model revolver was designed to chamber cartridges consisting of a 90-grain bullet propelled by 13 grains of black powder. Defendant
has never possessed any ammunition for this gun, nor has anyone else in the family so far as can be determined. With one minor exception, ammunition for this gun has not been manufactured during the past 40 years.*fn2 Cartridges for the gun are not commercially available today. Because the gun is rim-fire and not center-fire, cartridges cannot be made at home. Thus, while the gun is operable in a mechanical sense, the unavailability of ammunition renders it unusable for its intended purpose.
Defendant initially argues for immunity from prosecution, claiming his gun is an antique firearm. Undoubtedly, this Smith & Wesson revolver meets the statutory test of an antique. N.J.S.A. 2C:39-1(a). However, defendant's contention that antique handguns were intended by the Legislature to be exempt from the provisions of N.J.S.A. 2C:39-7 is without merit. The language of the statute contains no express exemption, nor can one fairly be inferred by the statutory language. Having defined antique firearms only six sections earlier, the Legislature surely would have provided for an exception for antiques if it had so intended. The Legislature did not intend in the Code to provide continuity with the prior law.
A section of the prior gun control law did exempt certain antique firearms from all criminal provisions of the law.*fn3 See Service Armament Co. v. Hyland , 70 N.J. 550, 551, 556, 559 (1976). Presumably, even a felon could own an antique gun without violating the former felon-possession statute so ...