In State v. Wade, ___ N.J. Super ___ (App. Div. 2023) (slip op. at 2)[1], the Appellate Division held that New Jersey’s gun-carry permit statute, N.J.S.A. 2C:58-4, and the statute criminalizing permit violations, N.J.S.A. 2C:39-5, were not facially unconstitutional in 2019 under the Second Amendment to the United States Constitution.

In Wade, following a motor vehicle stop in May 2019, the defendants Daandre Wade and Malik Stringer were found in possession of two handguns:  a 9 mm. Taurus, loaded with six bullets, in the center console; and a 9 mm. Springfield Armory XDS, loaded with seven hollow-point bullets, under the floormat on the passenger side of the vehicle.   Id. at ___ (slip op. at 5).  Neither defendant had a permit to carry a handgun.  Ibid.

The defendants were each indicted for, among other charges, second-degree unlawful possession of a handgun without a permit in violation of N.J.S.A. 2C:39-5(b)(1).  Id. at ___ (slip at 5.  “Following the United States Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. ___, 142 S. Ct. 2111 (2022), the defendants moved to dismiss those criminal charges, arguing that the version of the gun carry permit statute in effect at the time of their arrest, N.J.S.A. 2C:58-4 (2018), was facially unconstitutional under Bruen.”  Id. at ___ (slip op. at 3).  The defendants argued that because the “justifiable need” provision in N.J.S.A. 2C:58-4(c) (2018) was unconstitutional under Bruen, all provisions of N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5(b)(1) were unconstitutional.  Id. at ___ (slip op. at 3).  The trial court granted the defendants’ motion and dismissed the N.J.S.A. 2C:39-5(b)(1) charges.  Id. at ___ (slip op. at 3).

The Appellate Division granted the State’s motion for leave to appeal and vacated the order dismissing the challenged counts of the indictment.  Id. at ___ (slip op. at 4).[2]  The Appellate Division in Wade  explained that in 2022, the United States Supreme Court in Bruen held “that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”  Id. at ___ (slip op. at 12) (quoting Bruen, 142 S. Ct. at 2122).  “In Bruen, the Court addressed a New York law that required people seeking to carry a handgun outside the home to show ‘proper cause’ to obtain a permit to do so.”   Id. at ___ (slip op. at 12) (quoting Bruen, 142 S. Ct. at 2122-23).  “The New York courts had interpreted ‘proper cause’ to require a showing that the applicant had a ‘special need for self-protection distinguishable from that of the general community.’”  Id. at ___ (slip op. at 12) (quoting Bruen, 142 S. Ct. at 2123).  The Supreme Court in Bruen held that “the proper cause requirement was unconstitutional because it prohibited most people from obtaining a gun-carry permit.”  Id. at ___ (slip op. at 12) (quoting Bruen, 142 S. Ct. at 2138, 2156).  “In so holding, the Court adopted a textual analysis that requires courts to look to the text of the Second Amendment and ‘the Nation’s historical tradition of firearm regulation.’” Id. at ___ (slip op. at 12-13) (quoting Bruen, 142 S. Ct. at 2130).  In Bruen, the Supreme Court also noted that New Jersey had a similar restriction to New York, in its “justifiable need” provision in N.J.S.A. 2C:58-4(c) (2018).  Id. at ___ (slip op. at 13) (citing Bruen, 142 S. Ct. at 2124 n.2).

“On June 24, 2022, the day after the decision in Bruen was issued, the New Jersey Attorney General issued Law Enforcement Directive No. 2022-07, which directed that New Jersey would no longer require applicants to show a justifiable need for a gun-carry permit.”  Id. at ___ (slip op. at 17).  Thereafter, effective July 1, 2023, the Legislature amended New Jersey’s gun permit law, to formally eliminate the justifiable need requirement and to revise other requirements, finding, in part, as follows:

  1. The decision of the United States Supreme Court in New York State Rifle and Pistol Association v. Bruen holds significant implications for carrying a handgun in New Jersey and the law governing the issuance of permits to carry a handgun. The Bruen decision establishes that states cannot deny permits to carry a handgun to otherwise-qualified citizens who fail to show that they have the “proper cause” to carry a handgun. New Jersey law relies on a similar standard, considering whether an applicant has a “justifiable need,” in determining whether to issue a permit to carry a handgun.
  2. In accordance with the precedent established in the Bruen decision, laws requiring showings of particularized need are no longer legally viable to determine whether a person may carry a handgun in public. The Bruen decision does make clear, however, that the Legislature can enact laws to protect our communities from threats to public health, safety, and welfare posed by gun violence, which take into account as appropriate the Supreme Court’s Second Amendment ruling while continuing to promote and enhance public safety. . . .

[N.J.S.A. 2C:58-4.2.]

The Appellate Division in Wade set forth that “[t]he holding and analysis in Bruen make it clear that the justifiable need provision in N.J.S.A. 2C:58-4(c) (2018) is unconstitutional under the Second and Fourteenth Amendments.  Indeed, the State concedes that point.  Therefore, even if defendants had standing to make a constitutional challenge, the question becomes whether the justifiable need provision was severable.”  Id. at ___ (slip op. at 23).  “When a provision in a statute is declared unconstitutional, the remaining ‘provision[s] shall, to the extent . . . [they are] not unconstitutional . . . be enforced and effectuated.’”  Id. at ___ (slip op. at 23) (quoting N.J.S.A. 1:1-10).

The Appellate Division found that in 2019, when the defendants were charged, New Jersey’s gun-permit statutes were not dependent on the justifiable need provision set forth in N.J.S.A. 2C:58-4(c) (2018).  The rest of that provision, as well as N.J.S.A. 2C:58-3 (2016), described other criteria that were independent from, and served purposes separate from, the justifiable need requirement.”  Id. at ___ (slip op. at 24-25).

Moreover, the amendments to the gun permit laws “demonstrate that the Legislature intended to enforce the valid provisions of the statutes regulating guns if any provision was found to be unconstitutional.”  Id. at ___ (slip op. at 26).  Additionally, the “Supreme Court’s jurisprudence on the Second Amendment makes clear that carrying guns in public can still be regulated and subject to a permit requirement.  Consequently, at a minimum, New Jersey’s gun-permit statutes were and continue to be constitutional in requiring background checks to confirm that the applicant is not a convicted felon or does not have a mental disability and to ensure that the applicant has reasonable training in the safe handling of guns.”  Id. at ___ (slip op. at 26-27).  Nothing in the record established that either defendant would have been able to comply with those requirements, and thus the record does not reflect that it would have been futile for the defendants to have applied for a permit even in the absence of the justifiable need provision.  Id. at ___ (slip op. at 20-21).

As a result, the New Jersey Supreme Court in Wade held that the defendants did not have standing to challenge the gun permit statutes because neither defendant applied for a handgun carry permit.  Id. at ___ (slip op. at 27).  Further, having nonetheless considered the constitutional challenge, the Court found that “the justifiable need requirement in N.J.S.A. 2C:58-4(c) (2018) was severable and the remaining provisions of N.J.S.A. 2C:58-4 (2018), as well as N.J.S.A. 2C:39-5(b)(1), were constitutional and enforceable.”  Id. at ___ (slip op. at 27).

Criminal law, particularly the law regarding gun permits after Bruen, is constantly changing and/or being refined by our courts.  If you are facing criminal charges you should immediately reach out to our team of experienced former prosecutors to schedule a free case review with one of our expert criminal defense attorneys. A complete understanding of criminal law by your attorney is crucial to your defense. Your rights and freedoms are in jeopardy, and you owe it to yourself to act. We are available to provide immediate assistance and further counsel on your criminal case at (862) 315-7929.

[1] I included page citations to this recent Appellate Division opinion from the official slip opinion located at

[2] The New Jersey Supreme Court addressed the constitutional challenge even though the defendants did not have standing because it was significant issue that warrants consideration.  Id. at ___ (slip op. at 3).