Submitted by John Petrolino
GLASSBORO NJ-Through a series of events that were not necessarily unpredictable, another case challenging the Right to Keep and Bear arms in New Jersey has been denied review. Cheeseman v Pollillo is one of the latest cases that has worked its way through the system, only to be denied review by the New Jersey Supreme Court.
The section of the Second Amendment that is being infringed on in the argument is the Bear Arms…as in to have on one’s person or simply put “carry.” Outside the home…In the Heller case, Justice Scalia did state in the majority opinion: “At the time of the founding, as now, to ‘bear’ meant to ‘carry.’”
If this has been settled case law, why is it that there are still so many injury claims on this subject? Many cases have come before Cheeseman, some in New Jersey and in other areas of the country, all trying to do the same thing, prove that citizens do have an absolute right under the Second Amendment to not only keep, own and have in their home, but also to bear outside the home arms (including weapons of all types). Many of these lawsuits have revolved around jurisdictions known as “may issue.”
A may issue jurisdiction or state is one that may, or may not, issue a permit for the carry of a firearm outside of the home. The discretion lies with a person or person(s) making the decision. These may issue states have clauses in their statutes and or code asking for good cause or in New Jersey’s case “justifiable need.” The applicant has to prove that they have a proper purpose and need to carry outside of the home.
Cheeseman started this process years ago. He was not happy with the state of affairs where he was living and felt the area was going south, as in not safe anymore. The police do not have a duty to protect citizens under numerous case laws in The United States. Cheeseman was on his own…Not knowing much about this whole area of law, he naively applied for a permit to carry a firearm in the state of New Jersey and was naturally denied. Why was he denied? Lack of justifiable need. It was a judge’s opinion that Cheeseman’s desire to protect himself and his family outside of his home was not a good enough reason to be issued a permit and that general “public safety” outweighed his need to be armed.
Not being able to carry a gun for self-defense, Cheeseman looked at other effective ways to arm himself in the Garden State. At the end of the day, all a citizen is legally allowed to carry for self-defense, at that time at least, was three-quarters of one ounce of pepper spray, aka mace. Normal, law abiding citizens, it is the state’s stance and opinion, that your life is only worth being protected by three-quarter’s of an ounce of pepper spray. What about Tasers and stun-guns? At that time banned.
After events involving a case, yet to even be fully resolved in Massachusetts, a window of opportunity opened. The Supreme Court of the United States heard a case, Caetano v Massachusetts. The decision there was not a clear-cut abolishment of electronic weapons bans throughout the entire country. Instead, there was an order to the lower court that the re-hear the case under the fact that electronic weapons are protected by the Second Amendment, even though the founders could never have imagined them. Massachusetts remains in limbo (a whole other crime) to this day, but this laid the foundation for change in the country.
Statutes, codes and ordnances were challenged through The United States that banned electronic weapons. The fact was out and spreading that just because a weapon was never imagined by the founding fathers, does not mean it is not constitutionally protected. Teaming up with The New Jersey Second Amendment Society (NJ2AS), Cheeseman acted to make this change in New Jersey. New Jersey Second Amendment Society v Porrino was deemed unable to be defended by Porrino, as the Constitutionality of bearing and keeping electronic arms was evident. That lifted the ban on stun guns and Tasers in the state of New Jersey…thanks to the staff of NJ2AS, Cheeseman and their attorney, Stephen Stamboulieh.
A tale of two cases….To continue to fight for the people of New Jersey and help overthrow the draconian laws of justifiable need, Cheeseman teamed up with another person claiming injury, John Jillard. A team was created consisting of Cheeseman, Jillard, Jay Factor (a Second Amendment Historian and Scholar from Monmouth County), attorney David D. Jensen, and others to combat the infringements. It was decided that the Cheeseman and Jillard cases would proceed separately, for strategic reasons.
What made Cheeseman and Jillard different than the cases that came before him: Drake, Pantano, Peruta, et.al. Cheeseman’s second go at obtaining a permit to carry in the Garden State was not challenging the statute but challenging the definition of justifiable need. In their arguments, the injury claim is one that revolves around the formerly cited Heller case. In Heller, it was stated that when concerning a Constitutional Right, something called interest balancing cannot be done. What does that mean? That means that a right cannot be granted to individuals on a case by case basis. To fulfill the justifiable need statute, the original definition was such that “all lawful purposes” would meet this requirement. Not the case in New Jersey.
Since starting this journey, several cases have seen movement in the Supreme Court of the United States, other states and New Jersey….
The Supreme Court of New Jersey denied review of the Cheeseman case…On June 27, 2019 Mark Cheeseman v John Pollillo, Chief of Glassboro Police Department has been filed with the Supreme Court of the United States. Cheeseman is coming to the high court after the Rogers case (another New Jersey Carry case, sitting in conference limbo) and New York State Rifle and Pistol Club v The City of New York (a case granted cert specifically dealing with the transport of firearms outside of the home). From Cheeseman’s prayer for relief:
“New Jersey’s ‘need’ standard is an ideal subject for review by this Court because the standard is firmly entrenched in New Jersey law and is not realistically subject to change. Moreover, this Petition was fully litigated in the courts below, and the Supreme Court of New Jersey has just declined Petitioner’s petition for certification. And again, there are no interest groups or other organizations running this case—just an average private citizen, who turned to crowdfunding from other private citizens in this attempt to vindicate his (and their) constitutional rights.”
It is a long road to travel. Cheeseman’s injury claim can become mooted from decisions in the Supreme Court of the United States or even New Jersey’s Supreme Court. Cheeseman can be denied to be heard. Many battles have been fought in this fight against unconstitutional laws and schemes. What is apparent is this fight is not going to go away and states like New Jersey, California and Maryland and cities like New York need to pay attention. Their practices of using an interest balance concerning rights has already been declared to be unconstitutional in Heller. How would the justices view the Cheeseman argument in this light? What leg does the Garden State have to stand on? If you ask Cheeseman about his case, he’d be okay with it being invalidated prematurely “…I’m doing this for the rights of the people in New Jersey. I’m not doing this so just I can have a carry permit. If another case succeeds to make carry the law of the land, all the better.”
States with Draconian practices, you are on notice…there is a concerted effort, with many people and organizations that are, and will continue to fight illegal laws. It is clear that many are working at the same time for a common goal…defense of the right of the people, to keep and bear arms.
By: John Petrolino