Before Judges Wecker and Lesemann.
The opinion of the court was delivered by: Lesemann, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 26, 2000
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Defendant David H. Auringer appeals from his conviction on three counts of the fourth degree offense of acquiring a handgun without a permit to purchase, contrary to N.J.S.A. 2C:58-3a and N.J.S.A. 2C:39-10a. The facts are undisputed and defendant pleaded guilty to the charges, reserving the right to argue on appeal that a federal firearms license he held for a place of business in North Carolina precluded this New Jersey prosecution, that the applicable New Jersey statutes were preempted by federal legislation which "occupied the field," and that the New Jersey enactment unduly burdened interstate commerce. Because defendant's federal license was specifically limited to his North Carolina place of business, because the federal legislation makes clear that it does not have the preemptive effect urged by defendant, and because the New Jersey statute does not unduly burden interstate commerce, we reject defendant's arguments, and we affirm.
In February 1997, defendant purchased a number of handguns and a sawed-off shotgun from Margaret Havens in Spring Lake, New Jersey. In effecting those purchases, defendant used a federal firearms license which had been issued to him for a designated place of business in North Carolina. He gave Ms. Havens two business cards, one with that North Carolina business address and another listing an address in Belmar, New Jersey.
The police learned of the purchase through Ms. Havens. An investigation then disclosed that, while defendant did hold the federal license referred to, and also had a New Jersey firearms purchaser identification card, he did not hold a New Jersey firearms dealer's license nor a New Jersey permit to purchase the handguns, as required by New Jersey law. A search of defendant's Belmar residence, pursuant to a search warrant, yielded additional firearms, records of other firearms purchases, and a sawed-off shotgun.
Defendant was indicted on charges of violating N.J.S.A. 2C:58-3a, which provides in pertinent part that
[no] person shall . . . receive, purchase, or otherwise acquire a handgun unless the purchaser . . . is licensed as a dealer under this chapter or has first secured a permit to purchase a handgun as provided by this section. *fn1
Following a motion which led the court to suppress some of the results of the aforesaid search, defendant and the State entered a plea agreement under which defendant pleaded guilty to three counts of acquiring a handgun without a dealer's license or permit, and additional charges against him were dismissed. Defendant was sentenced to pay a fine of $300, and he retained the right to raise on appeal the issues he has now presented to us.
Defendant's first argument is that this State cannot constitutionally require that he obtain a New Jersey license or permit, in addition to his federal license, before acquiring a firearm here. He claims that the federal Gun Control Act of 1968, 18 U.S.C. § 921-930, has occupied the field and preempted State legislation. However, neither the language of the statute nor its judicial interpretation supports that claim.
Section 927 of the Gun Control Act, dealing with the statute's effect on state law, expressly states:
No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.
Here, there is certainly no such "direct and positive conflict" between the federal and state enactments. Indeed, the two are entirely consistent: each requires a license or permit and there is no reason ...