IN RE: MATTER OF DENIAL OF APPLICATION OF GEORGE J. DOWNING PERMIT TO CARRY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5108-09T1

IN RE: MATTER OF DENIAL

OF APPLICATION OF GEORGE

J. DOWNING PERMIT TO

CARRY.

__________________________

April 25, 2011

Argued: April 13, 2011 - Decided:

Before Judges Axelrad and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County.

George J. Downing, appellant, argued the cause pro se.

Joseph H. Enos, Jr., Assistant Prosecutor, argued the cause for respondent State of New Jersey (Sean F. Dalton, Gloucester County Prosecutor, attorney; Mr. Enos, on the brief).

PER CURIAM

George J. Downing appeals from the Law Division's May 6, 2010 denial of his application for a permit to carry a firearm. In a written opinion, Judge M. Christine Allen-Jackson found appellant did not demonstrate "a justifiable need to carry a handgun" as required by N.J.S.A. 2C:58-4c. Appellant does not challenge this factual determination. He also acknowledges that the statute does not restrict the possession of firearms within one's home, N.J.S.A. 2C:39-6e, and, in fact, represents he possesses such a permit. Appellant's sole challenge on appeal is to the constitutionality of N.J.S.A. 2C:58-4c, asserting the statutory restriction on who may carry a firearm in New Jersey violates the federal Constitution's Second Amendment Right to Bear Arms. He relies in part on District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008).

We preliminarily note that appellant apparently has not provided notice to the New Jersey Attorney General of his pending claim challenging the constitutional validity of this statute. See R. 4:28-4(a)(1); R. 2:5-1(h). Nonetheless, we dispose of appellant's arguments in the current appeal.

After reviewing the briefs and hearing oral argument, it is clear appellant has merely expressed generalized fears for personal safety, which fail to rise to the level of a justifiable need to carry a firearm. See In re Preis, 118 N.J. 564, 571 (1990); In re Application of Borinsky, 363 N.J. Super. 10, 24 (App. Div. 2003). Moreover, appellant has failed to demonstrate the statute is unconstitutional. N.J.S.A. 2C:58-4 does not ban or restrict in any way the use of handguns or firearms within the home such as those statutes deemed unconstitutional in McDonald v. City of Chicago, 561 U.S. ____, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010) and Heller, supra.

As the Supreme Court noted in McDonald, its holding did not abrogate the validity of certain regulatory measures and "the right to keep and bear arms is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." McDonald, supra, 561 U.S. at ___, 130 S. Ct. at 3047, 177 L. Ed. 2d at 926 (internal citation and quotation marks omitted). N.J.S.A. 2C:58-4 provides reasonable gun control limitations on a person's ability to carry a firearm in New Jersey, which is "clearly within the police power of the State and must be accepted by the individual though it may impose a restraint or burden on him." Burton v. Sills, 53 N.J. 86, 106 (1968), appeal dismissed, 394 U.S. 812, 89 S. Ct. 1486, 22 L. Ed. 2d 748 (1969).