Before Judges Muir, Jr., Wallace, Jr., and Cuff.
The opinion of the court was delivered by: Cuff, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
This appeal raises the narrow issue of whether 15 U.S.C.A. § 5001, which prohibits states from banning the sale, other than to minors, of traditional BB guns, paint ball, or pellet-firing guns, preempts N.J.S.A. 2C:39-5b (possession of a handgun without a permit) and N.J.S.A. 2C:39-7b (possession of a handgun by a convicted felon) in so far as those statutes include BB guns among the weapons within the sweep of each statute. The motion judge concluded that the federal statute preempted application of the state statute and dismissed the indictment as to defendant Rackis and counts three and five of the indictment as to defendant Bagnell. We have consolidated these appeals solely for the purpose of the opinion. We reverse.
On February 18, 1999, defendant Michael C. Rackis was charged by a Monmouth County Grand Jury with second degree unlawful possession of a firearm (a Crosman BB pistol) by a convicted felon contrary to N.J.S.A. 2C:39-7b and third degree unlawful possession of a handgun without a permit contrary to N.J.S.A. 2C:39-5b.
On March 10, 1999, defendant Ian Bagnell was charged by a Monmouth County Grand Jury with third degree possession of a controlled dangerous substance contrary to N.J.S.A. 2C:35-10a(1), fourth degree tampering with physical evidence contrary to N.J.S.A. 2C:28-6(1), third degree possession of a handgun without a permit contrary to N.J.S.A. 2C:39-5b, and fourth degree possession of a prohibited weapon, a cestus *fn1 , contrary to N.J.S.A. 2C:39-3(3), and second degree unlawful possession of a firearm (a BB gun) by a convicted felon contrary to N.J.S.A. 2C:39-7b.
Defendant Rackis moved to dismiss his indictment in its entirety; defendant Bagnell moved to dismiss counts three and five of his indictment. In an oral opinion, the motion judge relied on Coalition of New Jersey Sportsmen v. Florio, 744 F. Supp. 602 (D.N.J. 1990) and proceeded to declare N.J.S.A. 2C:39-5b and 2C:39-7b unconstitutional as to the possession of BB guns "because it has been preempted by  U.S.C.[A.] [§] 5001 as it applies to B-B guns." The State argues there is a fundamental difference between prohibition of the sale of a particular weapon and regulation of the possession of weapons. The State contends defendants were required to obtain a handgun permit, N.J.S.A. 2C:58-4, and that the requirements for the permit are not onerous and cannot be considered a de facto prohibition of the sale of such weapons. We agree and reverse the orders dismissing the weapons offenses.
This State has adopted a two step procedure governing the acquisition and possession of handguns. In order to acquire a handgun, the purchaser must obtain a firearms purchaser identification card. N.J.S.A. 2C:58-3. In order to carry a handgun, a person must obtain another permit.
In order to obtain that permit, a person must first complete an application endorsed by three reputable persons who have known the applicant for at least three years preceding the date of application and who can certify the applicant is "a person of good moral character and behavior." N.J.S.A. 2C:58-4b. The application is submitted to the chief police officer of the municipality where the applicant resides. The applicant must be fingerprinted and give the officer a complete description of every handgun the applicant intends to carry. N.J.S.A. 2C:58-4c.
The application will not be approved unless the applicant demonstrates familiarity with the safe handling and use of handguns and provides a justifiable reason to carry a handgun. Ibid. The application will not be approved if the applicant is subject to certain disabilities, including conviction of a crime. N.J.S.A. 2C:58-3c(1). Once the application is approved, the Superior Court in any county in which the applicant intends to carry the handgun may issue the permit. The court has the discretion to limit the permit as to type of handgun and under what circumstances the handgun may be carried. N.J.S.A. 2C:58-4d.
On the other hand, if the weapon falls within the definition of machine guns or assault firearms, see N.J.S.A. 2C:39-1i and 2C:39-1w, an additional licensure procedure is invoked. First, the person must qualify to obtain a handgun permit under N.J.S.A. 2C:58-4. Then he must file a written application in the Superior Court in the county in which he resides or conducts his business setting forth detailed reasons for desiring a license to possess and carry a machine gun or assault firearm. N.J.S.A. 2C:58-5a. The court then refers the application to the county prosecutor who conducts a complete investigation and prepares a recommendation to the court. Ibid. Based upon the prosecutor's recommendation, the court may issue a license if the person, as noted above, meets the qualifications for a permit to carry a handgun and if the court expressly "finds that the public safety and welfare so require." N.J.S.A. 2C:58-5b. The court may also impose any conditions and/or limitations in issuing the license "as it deems to be in the public interest." N.J.S.A. 2C:58-5d. The license, once issued, expires after two years from the date of issuance and may be renewed in the same manner and with the same conditions as when the applicant originally applied. N.J.S.A. 2C:58-5g. The filing fee for the license is $75.00 with each application. N.J.S.A. 2C:58-5f.
In Coalition, Judge Brown found that because BB guns fell within the definition of weapons registration as an assault firearm, applicants had to "qualify under two lengthy application procedures ... [where they] may be refused at any time the State determines such a license does not serve the public interest," and that the restrictions created a "de facto prohibition on the sale of B-B and air guns that may fall under New Jersey's statutory definition of semi-automatic firearms." Coalition, supra, 744 F. Supp. at 608. He specifically found that New Jersey's "regulatory scheme vests unbridled discretion over the licensing process with the State." Ibid. He further held this de facto prohibition violated the express language of 15 U.S.C.A. § 5001(g)(ii) which specifically preempts any State law concerning markings and identification of imitation firearms not consistent with the federal law and further provides "that no State shall ... (ii) prohibit the sale ... of traditional B-B, paint ball, or pellet-firing air guns that expel a projectile through the force of air pressure." In essence, Judge Brown severed the assault firearm registration requirements as they apply to BB and air guns. This ruling, however, does not effect the significantly less onerous requirements of obtaining a handgun permit. *fn2
Under the Supremacy Clause of the United States Constitution U.S. Const., art VI, cl. 2, the laws of the United States "shall be the supreme law of the land." As such, state laws that "'interfere with, or are contrary to the laws of congress, made in pursuance of the constitution' are invalid." Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 604, 111 S. Ct. 2476, 2481, 115 L. Ed. 2d 532, 542 (1991) (quoting Gibbons v. Ogden, 22 U.S. 1, 211, 6 L.Ed. 23, 73-74, 9 Wheat 1 (1824)); see Vail v. Pan Am Corp., 260 N.J. Super. 292, 297 (App. Div. 1992). The primary "focus of analysis is on the intent of Congress." Miranda v. Fridman, 276 N.J. Super. 20, 25 (App. Div.), certif. denied, 138 N.J. 271 (1994). Federal preemption may be express, ibid. (citing Shaw v. Delta Airlines, Inc., 463 U.S. 85, 95-96, 103 S. Ct. 2890, 2898-99, 77 L. Ed. 2d 490, 500 (1983)), or implied where Congress suggests an intent to occupy an entire field to the exclusion of state legislation. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 1152, 91 L. Ed. 1447, 1459 (1947); see Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153, 102 S. Ct. 3014, 3022, 73 L. Ed. 2d 664, 675 (1982) (field preemption occurs where the scheme of federal regulation is "'so pervasive as to make the reasonable inference that Congress has left no room for the State to supplement it[.]'") (citations omitted). Even when it is clear Congress has not fully occupied a field, state law will still be preempted if it is in actual conflict with federal law. Miranda, supra, 276 N.J. Super. at 26. Thus, state law must yield to federal law where "'compliance with both federal and state regulations is a physical impossibility,' or where state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" Gade v. National Solid Wastes Management Ass'n, 505 U.S. 88, 98, 112 S. Ct. 2374, 2383, 120 L. Ed. 2d 73, 84 (1992) (quoting Schneidewind v. ANR Pipeline ...