The opinion of the court was delivered by: Rodriguez, District Judge.
Plaintiffs, the Coalition of New Jersey Sportsmen, Inc.,
Bob's Little Sportshop, Inc., Springfield, Inc., ArmaLite,
Inc., Robert L. Viden, Jr., Stephen D. McClure, and nine other
New Jersey residents identified simply as John Does I through
IX (collectively "plaintiffs"), bring this action for
declaratory judgment and injunctive relief against the Governor
of New Jersey, the state's Attorney General*fn1, Colonel Carl
A. Williams of the New Jersey State Police, the Prosecutor of
Gloucester County as prosecutor, and the Chief of Police of the
Glassboro Police Department in New Jersey ("collectively
Defendants")*fn2. At issue is New Jersey's assault weapons
law, passed and signed into law in 1991, and now codified at
N.J.S.A. 2C:39-1 et seq.
Plaintiffs raise the following federal constitutional
challenges to this state law: (1) it is unconstitutionally
vague, and thus void (Counts III, V, VIII, X, XI, and XIV); (2)
it violates equal protection (Counts I, II, IV, VI, IX, XII,
and XIII); (3) it violates their rights to free association
(Count I); (4) it infringes on their right to free speech
(Count IV); and (5) it constitutes a bill of attainder (Count
VII). The complaint also seeks a declaratory judgment that
certain firearms are not "assault firearms" within the meaning
of the statute, and that plaintiffs who register their weapons
and possess "large capacity ammunition magazines" are not
required under N.J.S.A. 2C:39-3j to actually participate in
competitive shooting matches sanctioned by the Director of
This matter is now before the court on motions for summary
judgment filed by both plaintiffs and defendants. For the
reasons set forth below, plaintiffs' motion for summary
judgment is denied, and defendants' motion is granted.
On May 17, 1990, the New Jersey Legislature passed a bill
restricting the possession, sale, and transport of "assault
firearms" and "large capacity ammunition magazines." L. 1990,
c. 32. Governor James Florio signed the bill into law on May
30, 1990, N.J.S.A. 2C:39-1 et seq. (the "Act"), saying at the
time, "[t]hese are weapons of war designed to kill as many
people as possible in the least amount of time. They have no
place on our streets, where too often our police find
themselves outgunned." N.J. Lawmakers Approve Nation's Toughest
Ban on Assault Weapons, L.A. TIMES, May 18, 1990, at 4.
New Jersey's gun control statute accomplishes its prohibition
by defining the term "assault firearm" to include five separate
categories of firearms: (1) certain firearms listed by make and
model, series or type; (2) "[a]ny firearm manufactured under
any designation which is substantially identical to any of the
firearms listed above"; (3) a semi-automatic*fn4 shotgun with
either a magazine capacity exceeding six rounds, a pistol
grip*fn5, or a folding stock; (4) a semi-automatic rifle with
a fixed magazine capacity exceeding 15 rounds; and (5) "a part
or combination of parts designed or intended to convert a
firearm into an assault firearm, or any combination of parts
from which an assault firearm may be readily assembled if those
parts are in the possession or under the control of the same
person." N.J.S.A. 2C:39-1w(1-5).
Under the statute, "any person who knowingly has in his
possession" such a firearm is guilty of a third degree
crime*fn6, unless certain very narrow exceptions apply.
N.J.S.A. 2C:39-5(f). Possession of large capacity ammunition
magazines*fn7 is also prohibited, subject to some of the same
exceptions. N.J.S.A. 2C:39-3(j). Exceptions to the general
prohibition include if a weapon is among the types certified by
the Attorney General as a `legitimate' target-shooting firearm
and the owner has registered the weapon with the state and
proven his or her membership in a valid rifle or pistol club,
see N.J.S.A. 2C:58-12, or if the weapon has been rendered
permanently inoperable, see N.J.S.A 2C:58-5, 13. There are also
exemptions within the law for certain government employees,
such as member of the Armed Forces and federal law enforcement
officials. N.J.S.A. 2C:39-6. A one-year grace period was
provided for individuals who currently owned prohibited weapons
to comply with the law or surrender the firearm. N.J.S.A.
2C:58-13. There was no grandfather clause for those individuals
who legally possessed assault weapons at the time this law was
The law's prohibitions extend beyond merely possessing such
weapons; the challenged law also provides that "[a]ny person
who manufactures, causes to be manufactured, transports, ships,
sells or disposes of an assault firearm without being
registered or licensed to do so pursuant to N.J.S.A. 2C:58-1
et seq. is guilty of a crime of the third degree." N.J.S.A.
The gravamen of plaintiffs' complaint can be found in their
brief in the following paragraph:
Plaintiffs cannot determine whether they possess
"assault firearms" or "large capacity ammunition
magazines" because those terms are vague. They are
threatened with prosecution if they possess
firearms and magazines in New Jersey, and incur
costs and are deprived of their use when stored
outside of New Jersey. Plaintiffs who were not
members of a club could not register assault
firearms the Attorney General labeled
"legitimate." Plaintiffs ArmaLite, Springfield,
and Bob's Little Sportshop have lost profits
because they cannot market numerous firearms in
(Plaintiffs' Br., 7/24/98, at 3).
Based on these and other allegations, plaintiffs filed suit
on June 28, 1996, asserting as grounds for the action 28 U.S.C. § 2201,
2202 and 42 U.S.C. § 1983 and 1988, and the United
States Constitution. Defendants first filed a pre-Answer motion
urging this court to abstain from deciding state law questions
under the doctrine of Pullman abstention. In the alternative,
defendants sought dismissal or summary judgment. Plaintiffs
responded by filing a cross-motion to stay defendants' motion
for summary judgment.
In an Order entered on June 24, 1997, this court denied
defendants' motion for abstention, finding instead that
defendants demonstrated only one of three circumstances which
might have counseled for Pullman abstention. See Order dated
June 24, 1997. The court also denied defendants' motion to
dismiss or for summary judgment, and accordingly held that
plaintiffs' motion to stay summary judgment was moot. After
further discovery ensued, both sides filed these motions for
summary judgment. This court has jurisdiction over this action
under 28 U.S.C. § 1331 and 1343.
The entry of summary judgment is appropriate only when "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c). An issue is "genuine" if it is supported by
evidence such that a reasonable jury could return a verdict in
the non-moving party's favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A
fact is "material" if, under the governing substantive law, a
dispute about it might affect the outcome of the suit. Id. In
determining whether a genuine issue of material fact exists,
the court must view the facts and all reasonable inferences
drawn from those facts in the light most favorable to the
non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538
The moving party has the initial burden of demonstrating the
absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). Once the moving party has met its opening burden, the
non-moving party must identify, by affidavits or otherwise,
specific facts showing that there is a genuine issue for trial.
Id. at 324, 106 S.Ct. 2548. The non-moving party may not rest
upon the mere allegations or denials of its pleading. Id.;
Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258
(D.N.J. 1994). "[T]he plain language of Rule 56(c) mandates the
entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear the
burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct.
However, in deciding the motion, the court does not "weigh
the evidence and determine the truth of the matter, but
[instead] determine[s] whether there is a genuine issue for
trial." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. If the
non-movant has provided evidence exceeding the "mere scintilla"
threshold in demonstrating a genuine issue of material fact,
the court cannot weigh the evidence and credit the movant's
interpretation of the evidence. This is so even if the movant's
evidence far outweighs the non-movant's evidence. Credibility
determinations are the province of the factfinder. Big Apple v.
BMW of North America, 974 F.2d 1358, 1363 (3d Cir. 1992), cert.
denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993).
Defendants first contend that the Eleventh Amendment and
abstention doctrines*fn8 requires this court to stay this
action to permit state court resolution of disputed
interpretations of this assault weapons ban. In particular,
defendants allege that there are at least 17 different issues
of state law, the resolution of which would obviate or at least
impact the federal analyses necessary under this federal
constitutional challenge to this New Jersey law.*fn9 According
to the defendants, plaintiffs seek from this court `binding'
constructions on matters of state law. This, according to the
defendants, is prohibited by the Eleventh Amendment as
construed by the Supreme Court in Pennhurst State School &
Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67
(1984) ("Pennhurst II").
In Pennhurst II, the Supreme Court held that the Eleventh
Amendment bars federal injunctive relief against a state
official if (1) "`the judgment sought would expend itself on
the public treasury or domain, or interfere with the public
administration,' or if the effect of the judgment would be to
`restrain the Government from acting, or to compel it to act,'"
465 U.S. at 101 n. 11, 104 S.Ct. at 908 n. 11 (quoting Dugan v.
Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15
(1963)), and if (2) the conduct to be restrained is within the
scope of authority delegated to the official by state law, see
id. 465 U.S. at 102, 104 S.Ct. at 909. The suit in Pennhurst II
was barred because it involved a pendent claim against state
agencies and officers seeking prospective injunctive relief for
a violation of state law:
Id. at 106, 104 S.Ct. at 911.
Defendants seek to characterize plaintiffs' causes of action
as arising under state law. This characterization is designed
presumably to strengthen the case for abstention based on the
presentation of a Pennhurst II-type action. Nonetheless, this
clearly is a mischaracterization of this action.
Every count of plaintiffs' complaint alleges violations under
the United States Constitution, actionable under 42 U.S.C. § 1983.
Federal jurisdiction over this claim was based on the
existence of a federal question, not, as in Pennhurst II, on
principles of pendent jurisdiction. While the resolution of
these constitutional issues necessarily requires this court to
ascertain what state law means, this is a far cry from a
prohibited Pennhurst II-type action which seeks injunctive
relief on the basis of state law. The Third Circuit was
presented with, and soundly rejected, a similar argument in the
case of Everett v. Schramm, where the Court instructed as
Though it is true that [deciding the case]
required the district court to ascertain what the
standard of need was under Delaware law,
ascertaining state law is a far cry from
compelling state officials to comply with it. The
ascertainment of state law is an everyday function
of the federal court, in cases ranging from those
falling within our diversity or pendent
jurisdiction, to those brought under section 1983
which claim deprivation of a state-created
property right. Indeed, section 1983 would be
rendered almost nugatory if federal courts are
prohibited, by the eleventh amendment, from
deciding matters of state law in cases brought
against state officials.
772 F.2d 1114, 1119 (3d. Cir. 1985); see also Piecknick v.
Commonwealth of Pennsylvania, 36 F.3d 1250, 1255 n. 7 (3d. Cir.
1994) ("Pennhurst II did not address the Eleventh Amendment's
bar of suits against state officials in federal court when the
claims are based on deprivation of federal constitutional or
statutory rights."); Barnes v. Cohen, 749 F.2d 1009, 1018 (3d.
Nothing in the Pennhurst II case and its interpretation of
the Eleventh Amendment causes this court to rethink its Order
not to stay this action pending state court resolution of
related issues. Accordingly, this court will proceed to decide
whether or not portions of the disputed statute violate the
Plaintiffs primary allegation is that several aspects of the
assault firearms ban are unconstitutionally vague and thus
should be struck down by this court. Specifically, in Count III
of the complaint the term "assault firearm" and components of
its definition*fn11 are attacked as both facially vague and
vague as applied to particular plaintiffs. (Compl. ¶¶ 48-81).
Count V seeks a declaration that ten specific weapons, produced
by either the plaintiffs Springfield or ArmaLite, are not
"assault firearms," or, in the alternative, that the definition
of "assault firearms" is vague as applied to such rifles.
(Compl. ¶¶ 90-96). Count VIII attacks the definition of "large
capacity ammunition magazine," by opining that "as applied to
tubular magazines which may be loaded with different amounts of
rounds of ammunition depending on cartridge length, this
definition is vague." (Compl. ¶ 111). Count X alleges that the
act's prohibition on the possession of large capacity
ammunition magazines unless "maintained and used in connection
with participation in competitive shooting matches . . ." is
vague because there are
not standards as to how often one must compete, or what
actually qualifies as competition, and because the agency which
sanctions qualifying shooting matches no longer exists in the
same organizational framework as specified in the Act. (Compl.
¶¶ 119-124). Similarly, plaintiffs seek in Count XI a
declaration that weapons previously registered pursuant to the
shooting competition exception need not be surrendered if no
longer used in competition, or, in the alternative, that this
aspect of the law is vague. (Compl. ¶¶ 126-127). Finally, in
Count XIV, plaintiffs allege that the term `inoperable' is
vague as applied to the unique circumstances of two plaintiffs,
who claim to legally possess (under an exception) an assault
firearm, as well as other assault firearms which they have
rendered `inoperable.' These plaintiffs question whether they
violate the law because they are in `possession' of weapon
components*fn12 (on the legally-owned weapons) which
conceivably could be used to render the inoperable weapons
operable. (Compl. ¶¶ 135-140).
The Due Process Clause of the Fourteenth Amendment to the
United States Constitution, upon which the plaintiffs rely for
this vagueness challenge, can render a statute unconstitutional
based on notions of fairness. Colten v. Kentucky, 407 U.S. 104,
110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972). Vague laws
offend the assumption that "man is free to steer between lawful
and unlawful conduct," and thus "we insist that laws give the
person of ordinary intelligence a reasonable opportunity to
know what is prohibited, so that he may act accordingly."
Grayned v. Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99,
33 L.Ed.2d 222 (1972); see also Connally v. General Constr.
Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926)
("[A] statute which either forbids or requires the doing of an
act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its
application violates the first essential of due process of
law."); Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1177
(3d Cir. 1990). A second justification for vagueness challenges
also exists: to prevent arbitrary and discriminatory
enforcement. "A vague law impermissibly delegates ...