IN RE APPLICATION FOR PERMIT TO CARRY A HANDGUN OF MARK CHEESEMAN

NOT FOR PUBLICATION WITHOUT THE
                            APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
  internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                      SUPERIOR COURT OF NEW JERSEY
                                                      APPELLATE DIVISION
                                                      DOCKET NO. A-2412-17T2


IN RE APPLICATION FOR
PERMIT TO CARRY A HANDGUN
OF MARK CHEESEMAN.
———————————————

                 Submitted October 22, 2018 – Decided November 8, 2018

                 Before Judges Gooden Brown and Rose.

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

                 Mark P. Cheeseman, appellant pro se.

                 Charles A. Fiore, Gloucester County Prosecutor,
                 attorney for respondent (Dana R. Anton, Senior
                 Assistant Prosecutor, on the brief).

PER CURIAM

       Applicant Mark Cheeseman appeals from the December 13, 2017 Law

Division order denying his application for a permit to carry a firearm pursuant

to  N.J.S.A. 2C:58-4. We affirm.
      Obtaining a permit to carry a firearm "is the most closely-regulated aspect

of gun-control laws." In re Preis,  118 N.J. 564, 568 (1990). Pursuant to  N.J.S.A.

2C:58-4, an applicant must first submit an application "to the chief police officer

of the municipality in which the applicant resides, or to the superintendent," if

there is no chief of police in the municipality.  N.J.S.A. 2C:58-4(c). Under

N.J.S.A. 2C:58-4(c):

            No application shall be approved by the chief police
            officer or the superintendent unless the applicant
            demonstrates that he is not subject to any of the
            disabilities set forth in [N.J.S.A. 2C:58-3(c)], that he is
            thoroughly familiar with the safe handling and use of
            handguns, and that he has a justifiable need to carry a
            handgun.

      Justifiable need is defined in the regulations adopted pursuant to  N.J.S.A.

2C:58-1 to -19 as, "urgent necessity for self-protection, as evidenced by serious

threats, specific threats, or previous attacks, which demonstrate a special danger

to the applicant's life that cannot be avoided by reasonable means other than by

issuance of a permit to carry a handgun." N.J.A.C. 13:54-2.4(d)(1). This

codification of the "justifiable need" standard closely mirrors an earlier

explanation of "need" that was laid out by our Supreme Court in Siccardi v.

State,  59 N.J. 545, 557 (1971).




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      Upon receiving the approval of the chief of police or superintendent, as

the case may be, the application is then presented to a judge of the Superior

Court of the county in which the applicant resides who "shall issue" the permit

after being satisfied that the applicant is qualified and has established a

"justifiable need" for carrying a handgun.  N.J.S.A. 2C:58-4(d). However, if the

application is denied by the chief of police or the superintendent, pursuant to

 N.J.S.A. 2C:58-4(e), the applicant "may request a hearing in the Superior Court

of the county in which he resides . . . by filing a written request for such a hearing

within [thirty] days of the denial."

       Here, Cheeseman submitted his application to the Chief of Police of

Glassboro Township, where he resided. On September 27, 2017, the Chief

denied the application after concluding that Cheeseman did not demonstrate "a

justifiable need to carry a handgun" under the standard enunciated in Siccardi.

Thereafter, Cheeseman filed a timely appeal of the Chief's denial to the

Gloucester County Superior Court.

      During a hearing conducted on December 13, 2017, the Chief testified that

after reviewing the application, he concluded that Cheeseman's basis for seeking

the permit was for "personal protection." However, according to the Chief,

although Cheeseman referred to "some crimes" occurring in the area where he


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lived, including "drug activity" and a "stabbing" in the entrance of a mini -mart,

Cheeseman made no mention of any specific threat made towards him that led

the Chief "to believe that [Cheeseman] was in jeopardy of any immediate

violence."

      After the hearing, in an oral decision, the trial court upheld the Chief's

denial, finding Cheeseman failed to demonstrate "a justifiable need" to carry a

handgun. The court found no "articulated threat" was made towards Cheeseman

and noted that while Cheeseman did cite to "incidences . . . in [his] general

neighborhood and [his] extended neighborhood, . . . nothing [] specifically

point[ed] to [his] justifiable need to carry a firearm outside of [his] home." The

court also rejected Cheeseman's contention that denying his application based

on his "generalized" fears violated his constitutional right under the Second

Amendment. The court entered a memorializing order and this appeal followed.

      On appeal, Cheeseman argues that New Jersey's system of either granting

or denying carry permits "on a case-by-case basis" is contrary to the Supreme

Court's holding in District of Columbia v. Heller,  554 U.S. 570 (2008), and its

progeny. According to Cheeseman, "[t]he historical explanation that [N.J.S.A.]

2C:58-4's 'justifiable need' is synonymous with [Heller's] lawful purpose simply

allows the [c]ourt to sever the [Siccardi] [r]ule and [N.J.A.C. 13:54-2.4(d)(1)]


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from the statute which would follow the precedent set forth by SCOTUS." In In

re Pantano,  429 N.J. Super. 478 (App. Div. 2013), we rejected similar

arguments, and concluded that "Heller would not affect the constitutionality of

N.J.S.A. 2C:58-4."    Id. at 487.   We discern no basis to reach a different

conclusion here.

            The issue in Heller was whether the Second
            Amendment protects only the right to possess and carry
            a firearm in connection with military service or also
            protects an individual's right to possess a firearm for
            other purposes such as self-defense and hunting. The
            Court held that the Second Amendment protects an
            individual right to keep and bear firearms, and that this
            holding required invalidation of District of Columbia
            statutes that totally prohibited handgun possession in
            the home and required any lawful firearm in the home
            to be disassembled or bound by a trigger lock, thus
            rendering it inoperable.

            [In re Dubov,  410 N.J. Super. 190, 196-97 (App. Div.
            2009) (citations omitted).]

The United States Supreme Court later held that the Second Amendment right

is "fully applicable" to the states through the Fourteenth Amendment.

McDonald v. City of Chicago,  561 U.S. 742, 750 (2010).

      Beginning "with the premise that 'statutes are presumed constitutional,'"

in Pantano, we hesitated "to find a constitutional infirmity absent clear

expression of the law from the United States Supreme Court, particularly where


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it would disturb settled law."  429 N.J. Super. at 487 (quoting Whirlpool Props.,

Inc. v. Dir., Div. of Taxation,  208 N.J. 141, 175 (2011)). We noted that federal

district courts, including New Jersey's, and other courts have "concluded that

our state law governing permits to carry handguns does not 'burden any

protected conduct' under the Second Amendment," id. at 488 (quoting

Piszczatoski v. Filko,  840 F. Supp. 2d 813, 829 (D.N.J. 2012), aff'd, Drake v.

Filko,  724 F.3d 426 (3d Cir. 2013)), and "a statute prohibiting carrying a

handgun outside the home without a permit was not at odds with Heller or

McDonald." Ibid. (citing Williams v. State,  10 A.3d 1167, 1169, 1177 (Md.

2011)). Rather, "Heller addressed only the right to bear arms in the home," and

"[t]he language of Justice Scalia's majority opinion deliberately limited the

scope of the right recognized to the home." Ibid. (quoting Piszczatoski,  840 F.

Supp. 2d at 821).

      We acknowledged that "[o]ther courts have observed that the application

of the Second Amendment to possession of firearms outside the home is at least

uncertain." Id. at 489. We also recognized that in Kachalsky v. County of

Westchester,  701 F.3d 81, 93-101 (2d Cir. 2012), the Second Circuit upheld the

constitutionality of a New York law requiring a person seeking an unrestricted

permit to carry a concealed handgun in public to show "proper cause," despite


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the burden placed on the permit applicant. Pantano,  429 N.J. Super. at 489-90.

We noted the similarity between "New York's 'proper cause' requirement" and

"New Jersey's statutory requirement of 'justifiable need.'" Id. at 489.1

      Since we decided Pantano, the Third Circuit upheld the constitutionality

of the justifiable need requirement in Drake, 724 F.3d   at 429, concluding that it

was a "'longstanding' regulation" that "does not burden conduct within the scope

of the Second Amendment's" protections. Acknowledging that its inquiry could

simply stop there, the Third Circuit expounded that "New Jersey's schema takes

into account the individual's right to protect himself," through "careful case -by-

case scrutiny of each application," and though "[o]ther states have determined

that it is unnecessary to conduct the careful, case-by-case scrutiny . . . before

issuing a permit to publicly carry a handgun," New Jersey's "individualized,

tailored approach" would pass constitutional muster. Id. at 439.

      Thus, here, as in Pantano, we conclude that "given the presumption of our

law's constitutionality, the lack of clarity that the Supreme Court in Heller



1
  We also acknowledged that the Seventh Circuit Court of Appeals extended the Second Amendment right to carry a handgun outside the home in Moore v.
Madigan,  702 F.3d 933, 942 (7th Cir. 2012). There, "[i]n setting aside an Illinois
law that banned concealed carrying of weapons, the court contrasted the Illinois
law with New York's law held constitutional in Kachalsky." Pantano,  429 N.J.
Super. at 490 n.2.
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intended to extend the Second Amendment right to a state regulation of the right

to carry outside the home, and the Second [and Third] Circuit's explicit

affirmation," N.J.S.A. 2C:58-4's case-by-case schema, requiring a showing of

justifiable need, withstands constitutional scrutiny post-Heller and its progeny.

Pantano,  429 N.J. Super. at 490. See also In re Wheeler,  433 N.J. Super. 560,

613 (App. Div. 2013) (holding that the "justifiable need" requirement does not

violate the Second Amendment).

      Affirmed.




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