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Pizza Bob

Am I Crazy? Can't Find "Evil Features" List in Statutes

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I was perusing Chapter 39 looking to see exactly how a particular evil feature was defined. Under Assault Weapons it lists all those by name, then the substantially identical part, then shotguns and then semi-autos with >15 round fixed magazine. But nowhere did it have the evil features list.

 

I went to the NJAC and found it readily - but those aren't statutes. I could have sworn the same list was in the "Definitions" section (2C:39-1) of the statutes.

 

My reference (linked from the NJSP site) is this: New Jersey Permanent Statutes Database

 

Was I imaging things - is the list only in the NJAC and if so, does that make it valid?

 

Adios,

 

Pizza Bob

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The list has been in the statutes online off and on. AFAIK it should not be there as it was not in there from the start. 

 

The argument was that substantially identical let the state ban anything they felt was close enough. 

 

This went to court, and lost for specific examples. 

 

The evil features tests of the NJAC are what the AG believes will meet muster as far as a court and defines substantially identical as they see it in a manner they believe will survive judicial scrutiny. 

 

I've been down the road of asking the same question you have, and that is the conclusion I have reached. YMMV, but get a good lawyer if you want to be the poster boy. 

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The list has been in the statutes online off and on. AFAIK it should not be there as it was not in there from the start. 

 

The argument was that substantially identical let the state ban anything they felt was close enough. 

 

This went to court, and lost for specific examples. 

 

The evil features tests of the NJAC are what the AG believes will meet muster as far as a court and defines substantially identical as they see it in a manner they believe will survive judicial scrutiny. 

 

I've been down the road of asking the same question you have, and that is the conclusion I have reached. YMMV, but get a good lawyer if you want to be the poster boy. 

 

Raz:

 

I just went back and reread the NJAC and came to the same conclusion. It's my understanding the the NJAC tells the judges how the statutes are to be applied/interpreted - that is it may put a sharper focus on vague statutes or definitions within statutes.

 

I wonder why they have never corrected the NJAC with regard to semi-auto shotguns. It would seem that the AG could do that with the stroke of a pen. No legislative involvement needed.

 

Adios,

 

Pizza Bob

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NJAC 13:54-1.2 is the statute:

 

http://njsp.org/info/pdf/firearms/062408_title13ch54.pdf

 

N.J.A.C. 13:54-1.2 Definitions

The words and terms used in this chapter shall have the following meanings:

"Ammunition" means various projectiles, including bullets, missiles, slugs or balls together with fuses, propelling charges and primers that may be fired, ejected, projected, released, or emitted from firearms or weapons.

"Antique cannon" means any weapon which satisfies the definition of an antique firearm and which is also capable of firing a projectile of a caliber greater than .60 caliber, except a shotgun or shotgun ammunition generally recognized as suitable for sporting purposes.

"Antique firearm" means any firearm, which is incapable of being fired or discharged, or which does not fire fixed ammunition regardless of the date of manufacture, or was manufactured before 1898, for which cartridge ammunition is not commercially available, and is possessed as a curiosity or ornament or for its historical significance or value.

"Assault firearms" means:

1. Any of the following firearms:

Algimec AGM1 type

Any shotgun with a revolving cylinder such as the "Street Sweeper" or "Striker 12" Armalite AR-180 type

Australian Automatic Arms SAR

Avtomat Kalashnikov type semi-automatic firearms

Beretta AR-70 and BM59 semi-automatic firearms

Bushmaster Assault Rifle

Calico M-900 Assault carbine and M-900

CETME G3

 

Chartered Industries of Singapore SR-88 type

Colt AR-15 and CAR-15 series

Daewoo K-1, K-2, Max 1 and Max 2, AR 100 types Demro TAC-1 carbine type

Encom MP-9 and MP-45 carbine types

FAMAS MAS223 types

FN-FAL, FN-LAR, or FN-FNC type semi-automatic firearms Franchi SPAS 12 and LAW 12 shotguns

G3SA type

Galil type

Heckler and Koch HK91, HK93, HK94, MP5, PSG-1

Intratec TEC 9 and 22 semi-automatic firearms

M1 carbine type

M14S type

MAC 10, MAC 11, MAC 11-9 mm carbine type firearms

PJK M-68 carbine type

Plainfield Machine Company Carbine

Ruger K-Mini-14/5 F and Mini-14/5 RF

SIG AMT, SIG 550SP, SIG 551SP, SIG PE-57 types

SKS with detachable magazine type

Spectre Auto carbine type

Springfield Armory BM59 and SAR-48 type

Sterling MK-6, MK-7 and SAR types

Steyr A.U.G. semi-automatic firearms

USAS 12 semi-automatic type shotgun

Uzi type semi-automatic firearms

Valmet M62, M71S, M76, or M78 type semi-automatic firearms Weaver Arm Nighthawk;

2. Any firearm manufactured under any designation, which is substantially identical to any of the firearms listed in paragraph 1 above. As used in this definition, the term "substantial" means pertaining to the substance, matter, material or essence of a thing and the term "identical" means exactly the same. Hence, a firearm is substantially identical to another only if it is identical in all material, essential respects. A firearm is not substantially identical to a listed assault firearm unless it is identical except for differences that do not alter the essential nature of the firearm.

 

The following are examples of manufacturer changes that do not alter the essential nature of the firearm: the name or designation of the firearm; the color of the firearm; the material used to make the barrel or stock of the firearm; the material used to make a pistol grip; and a modification of a pistol grip. This is not an exclusive list. A semi-automatic firearm should be considered to be "substantially identical," that is, identical in all material respects, to a named assault weapon if it meets the below listed criteria:

i. A semi-automatic rifle that has the ability to accept a detachable magazine and has at least two of the following:

(1) A folding or telescoping stock;

(2) A pistol grip that protrudes conspicuously beneath the action of the weapon; (3) A bayonet mount;

(4) A flash suppressor or threaded barrel designed to accommodate a flash suppressor; and

(5) A grenade launcher;

Below is the "Guidance" from the NJAG's Office to help interpret the statute:

 

 

http://www.state.nj.us/lps/dcj/agguide/assltf.htm

 

ASSAULT FIREARMS

 

Guidelines Regarding the "Substantially Identical" Provision in

the State's Assault Firearms Laws

Issued August 1996

 

View entire document below, OR

Download document for printing(PDF file--9K)

 

TO: Director Terrence P. Farley, Division of Criminal Justice

All County Prosecutors

All Law Enforcement Chief Executives

FROM: Attorney General Peter Verniero

DATE: August 19, 1996

SUBJECT: Guidelines Regarding the "Substantially Identical" Provision in the State's Assault Firearms Laws

I. Introduction

 

In recent weeks there has been a question about the meaning of the term "substantially identical" in New Jersey's assault firearms law. The Legislature addressed this question in the provisions of the Code of Criminal Justice, and despite the clarity of the law, it is appropriate for the Attorney General to provide guidance to the prosecutors in order to ensure that the law is administered uniformly and effectively throughout the State. N.J.S.A. 52:17B-98. I am directing the prosecutors, as chief law enforcement officers of their respective counties, to share this guidance with local police departments, who in turn should provide copies of this memorandum to any member of the public who requests information on assault firearms.

 

II. Guidelines

 

New Jersey law lists firearms that are prohibited "assault firearms." N.J.S.A. 2C:39-1w.(1). In addition, the law provides that the term "assault firearm" includes, "Any firearm manufactured under any designation which is substantially identical to any of the firearms listed" in the law. N.J.S.A. 2C:39-1w.(2). Thus, a firearm is an assault firearm if it is included on the list of banned firearms or if it is manufactured under a different designation than a firearm on the list but is "substantially identical" to a specific listed firearm.

 

We believe "substantially identical" is clear by its plain meaning. The Criminal Code provides that the statutes in the Code must be read "according to the fair import of their terms." N.J.S.A. 2C:1-2c. The Criminal Code explains that where language may be susceptible to different readings it must be construed to "give fair warning of the nature of the conduct proscribed." N.J.S.A. 2C:1-2a.(4), c. Simply put, the phrase "substantially identical" must be given its plain meaning, one that gives fair warning.

 

The term "substantial" means pertaining to the substance, matter, material or essence of a thing. The term "identical" means exactly the same. Hence, a firearm is substantially identical to another only if it is identical in all material, essential respects. A firearm is not substantially identical to a listed assault firearm unless it is identical except for differences which do not alter the essential nature of the firearm.

 

The following are examples of manufacturer changes that do not alter the essential nature of the firearm: name or designation of the firearm; the color of the firearm; the material used to make the barrel or stock of the firearm; the material used to make a pistol grip; a modification of a pistol grip. This is not an exclusive list.

 

A semi-automatic firearm should be considered to be "substantially identical," that is, identical in all material respects, to a named assault weapon if it meets the below listed criteria:

 

A. semi-automatic rifle that has the ability to accept a detachable magazine and has at least 2 of the following:

a folding or telescoping stock;

a pistol grip that protrudes conspicuously beneath the action of the weapon;

a bayonet mount;

a flash suppressor or threaded barrel designed to accommodate a flash suppressor; and

a grenade launcher;

B. a semi-automatic pistol that has an ability to accept a detachable magazine and has at least 2 of the following:

an ammunition magazine that attaches to the pistol outside of the pistol grip;

a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer;

a shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the nontrigger hand without being burned;

manufactured weight of 50 ounces or more when the pistol is unloaded; and

a semi-automatic version of an automatic firearm; and,

C. a semi-automatic shotgun that has at least 2 of the following:

 

a folding or telescoping stock;

a pistol grip that protrudes conspicuously beneath the action of the weapon;

a fixed magazine capacity in excess of 5 rounds; and

an ability to accept a detachable magazine.

III. Inquiries from Private Citizens

 

Law enforcement officers should, whenever possible, attempt to be helpful and to respond to inquiries concerning particular firearms. Private citizens should also be encouraged to consult with their own attorneys and, where necessary, referred to the Firearms Unit of the Division of State Police.

 

IV. Purpose and Effect of these Guidelines

 

In enforcing this law, prosecutors and police should remember that an assault firearms offense requires proof that the defendant knows he or she possesses an assault firearm, e.g., that the defendant knows that the firearm is "substantially identical" to one of the named assault weapons.

 

These guidelines should be followed by all county prosecutors and all law enforcement officers in this State so that the State's assault firearms laws will be uniformly enforced throughout the State.

 

 

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Raz:

 

I just went back and reread the NJAC and came to the same conclusion. It's my understanding the the NJAC tells the judges how the statutes are to be applied/interpreted - that is it may put a sharper focus on vague statutes or definitions within statutes.

 

I wonder why they have never corrected the NJAC with regard to semi-auto shotguns. It would seem that the AG could do that with the stroke of a pen. No legislative involvement needed.

 

Adios,

 

Pizza Bob

 

Well it's NJ, so practice is what it is. The NJAC is AG guidance to the executive branch regarding the law as far as I can tell, so technically, no, it has nothing to do with direction to the judiciary. As far as I can tell, it is an interpretation of interaction with the judiciary to date and what the AG believes will keep actions of the executive branch (i.e. LE and prosecutors) on the same side of the written law as the judiciary. 

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NJAC 13:54-1.2 is the statute:

 

http://njsp.org/info/pdf/firearms/062408_title13ch54.pdf

 

 

Below is the "Guidance" from the NJAG's Office to help interpret the statute:

 

 

http://www.state.nj.us/lps/dcj/agguide/assltf.htm

 

 

HE:

 

That is from the NJAC, not the statutes. The second is a clarification letter from the AG about "Substantially Identical".

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PB,

 

I am not tracking your request then. What are you looking for?

 

Are you asking what statute you would be charged with for possession of an "Assault Weapon" as defined by NJ?

 

I was thinking that the evil features list was statutory and freaked when I couldn't find it, other than in the NJAC. Then, as Raz pointed out, that is the only place the list is to be found as it is defining "Substantially Identical", which is written into the statutes.

 

Adios,

 

Pizza Bob

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I think he's saying that its technically not written into law and its now party time?

 

 

Good luck with that ;)

 

 

I was thinking that the evil features list was statutory and freaked when I couldn't find it, other than in the NJAC. Then, as Raz pointed out, that is the only place the list is to be found as it is defining "Substantially Identical", which is written into the statutes.

 

Adios,

 

Pizza Bob

Oh, OK. Gotcha.

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according to the guidelines. A benelli m4 is a legal shotgun...

 

The NJAC (guidelines) do not carry the weight of law. A prohibited shotgun is clearly defined within the statutes - 

 

2C:39-1,w,(3)A semi-automatic shotgun with either a magazine capacity exceeding six rounds, a pistol grip, or a folding stock

 

therefore no NJAC clarification is required. I referenced that the NJAC was in error about shotguns in post #3, and wondered why it hadn't been corrected.

 

Adios,

 

Pizza Bob

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The "evil features" list is not in the statute. It was created by then AG Perter Venerio after the state was sued and lost over the "substantially similar" provision. The court ruled "substantially similar" was unconstitutionally vague and ordered the AG to come up with a definition of what "substantially similar" meant. So, what Venerio essentially did was to plagiarize the "evil features" list from the federal AWB which was in effect at the time. This is probably why it contradicts the law written in the statute (2C) when defining what an "assault shotgun" is.

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