NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NOS. A-2377-22 

 A-2378-22

STATE OF NEW JERSEY, 

 Plaintiff-Appellant, 

v.

DAANDRE J. WADE, 

 Defendant-Respondent. 

_________________________

STATE OF NEW JERSEY, 

 Plaintiff-Appellant, 

v.

MALIK T. STRINGER, 

 Defendant-Respondent. 

__________________________

Argued June 6, 2023 – Decided August 10, 2023 

Before Judges Gilson, Rose, and Messano. 

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Middlesex County, 

Indictment No. 22-11-1041.

Nancy A. Hulett, Assistant Prosecutor, argued the cause 

for appellant (Yolanda Ciccone, Middlesex County 

APPROVED FOR PUBLICATION 

August 10, 2023 

APPELLATE DIVISION 
2 A-2377-22

Prosecutor, attorney; Nancy A. Hulett, of counsel and 

on the briefs). 

Scott M. Welfel, Assistant Deputy Public Defender, 

argued the cause for respondent Daandre J. Wade 

(Joseph E. Krakora, Public Defender, attorney; Scott 

M. Welfel, of counsel and on the briefs). 

James R. Lisa, attorney for respondent Malik T. 

Stringer, joins in the briefs of respondent Daandre 

Wade. 

David Chen, Deputy Attorney General, argued the 

cause for amicus curiae Attorney General of New 

Jersey (Matthew J. Platkin, Attorney General, attorney; 

Angela Cai, Deputy Solicitor General, and David Chen, 

of counsel and on the briefs). 

The opinion of the court was delivered by 

GILSON, P.J.A.D. 

 The issue presented on these appeals is whether New Jersey's gun-carry 

permit statute and the statute criminalizing permit violations were facially 

unconstitutional in 2019 under the Second Amendment to the United States 

Constitution. In May 2019, defendants Daandre Wade and Malik Stringer were 

found in possession of two loaded handguns while driving a car on public roads. 

Neither defendant had a permit to carry a handgun. Both defendants were 

indicted for second-degree unlawful possession of a handgun without a permit 

in violation of N.J.S.A. 2C:39-5(b)(1). 
3 A-2377-22

 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), defendants 

moved to dismiss those criminal charges, arguing that the version of the guncarry permit statute in effect at the time of their arrest, N.J.S.A. 2C:58-4 (2018), 

was facially unconstitutional under Bruen. Defendants contended that because 

the "justifiable need" provision in N.J.S.A. 2C:58-4(c) (2018) was 

unconstitutional, all provisions of N.J.S.A. 2C:58-4 (2018) and N.J.S.A. 2C:39-

5(b)(1) were unconstitutional. The trial court agreed, granted defendants' 

motion, and issued an order dismissing those charges. We granted the State 

leave to appeal the order as it related to both defendants and now consolidate 

the appeals for purposes of this opinion. 

 We hold that defendants did not have standing to challenge the statutes 

because neither defendant had applied for a permit to carry a handgun. 

Nevertheless, we address the merits of the constitutional challenge because it is 

a significant issue that warrants consideration. See Petro v. Platkin, 472 N.J. 

Super. 536, 564 (App. Div. 2022) (explaining that we can decide to reach the 

merits of a constitutional challenge even when the challenger lacks standing). 

We hold that N.J.S.A. 2C:58-4 (2018) and N.J.S.A. 2C:39-5(b)(1) were not 

facially unconstitutional because the justifiable need requirement set forth in 
4 A-2377-22

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. Therefore, in 2019, each defendant needed a permit to carry 

handguns outside their homes and if the State proves that they did not have 

permits, they will be guilty of a crime under N.J.S.A. 2C:39-5(b)(1). 

Accordingly, we reverse and vacate the order dismissing the two counts of the 

indictment charging defendants with unlawful possession of a handgun without 

a permit. We remand and direct the trial court to reinstate both counts. 

I.

 The matter came before the trial court on a motion to dismiss two counts 

of a criminal indictment. Consequently, on this appeal, we accept the facts as 

alleged by the State.1 See State v. Cobbs, 451 N.J. Super. 1, 5 (App. Div. 2017). 

 On May 4, 2019, defendants were in a motor vehicle, driven by Stringer 

with Wade as the sole passenger. While driving in New Brunswick, two police 

officers on patrol observed and checked the vehicle's temporary license plate 

and learned that it was not valid. Accordingly, the police stopped the vehicle 

1

 In discerning the facts, we have reviewed the record, including the indictment 

and a police report that summarized the events leading to the stop and search of 

the defendants' vehicle. 
5 A-2377-22

and Stringer could not produce a valid registration for the vehicle. While 

speaking with Stringer, an officer smelled the odor of raw marijuana emanating 

from the car, and the officers then searched the vehicle.2 During that search, the 

police found 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 and equipped with a laser sight, under the floormat on the 

passenger side of the vehicle. Neither defendant had a permit to carry a 

handgun. 

 A grand jury indicted defendants for three crimes: in count one, Stringer 

was charged with second-degree unlawful possession of a handgun without a 

permit; in count two, Wade and Stringer were charged with second-degree 

unlawful possession of a handgun without a permit; and in count three, both 

defendants were charged with fourth-degree possession of hollow-point bullets 

in violation of N.J.S.A. 2C:39-3(f). 

2

 At the time of the stop, unauthorized possession and use of marijuana was 

illegal. N.J.S.A. 2C:35-10(a)(3), (a)(4), and (b) (1997). Under the automobile 

exception to the warrant requirement, law enforcement officers can search a 

vehicle without a warrant if there is "probable cause to believe that the vehicle 

contains contraband or evidence of an offense and the circumstances giving rise 

to probable cause are unforeseeable and spontaneous." State v. Witt, 223 N.J. 

409, 447 (2015). At the time of defendants' arrest, the odor of raw marijuana 

could supply officers with probable cause to conduct a warrantless search of a 

vehicle. See State v. Rodriguez, 459 N.J. Super. 13, 25-26 (App. Div. 2019). 
6 A-2377-22

 In December 2022, after the Supreme Court issued its decision in Bruen, 

Wade moved to dismiss count two of the indictment and Stringer joined that 

motion to include count one. In support of Wade's motion, his counsel submitted 

a certification representing that on the day of his arrest, Wade "had never been 

convicted of any indictable offense or disorderly persons offense involving an 

act of domestic violence" and "had not been adjudicated delinquent for any 

offense that, if committed by an adult, would constitute a crime (a) enumerated 

in N.J.S.A. 2C:43-7.2 (the No Early Release Act) or (b) that involved the 

unlawful use or possession of a weapon, explosive or destructive device." The 

certification also asserted that Wade "was not subject to any of the disabilities 

enumerated in N.J.S.A. 2C:58-3(c) [(2016)] which would render him unable to 

obtain a permit under a licensing scheme that removes the unconstitutional 

justifiable need requirement" and that "under a licensing scheme that did not 

require . . . Wade to show a justifiable need, he would have otherwise qualified." 

Neither Stringer nor his attorney filed a certification in support of the motion to 

dismiss. Both defendants do not contest that they had never sought a permit to 

carry a firearm. 
7 A-2377-22

 On March 31, 2023, after hearing oral argument, the trial court granted 

defendants' motion and entered an order dismissing counts one and two of the 

indictment. The court explained the reasons for its ruling in a written opinion. 

The trial court ruled that defendants could challenge the gun-carry permit 

statute even though neither defendant had applied for a permit. In reaching that 

conclusion, the trial court relied on First Amendment cases, as well as other 

constitutional decisions, that reasoned if a permit statute was facially 

unconstitutional the person challenging the statute did not need to have first 

applied for a license or permit. See Shuttlesworth v. City of Birmingham, 394 

U.S. 147, 151 (1969); Staub v. City of Baxley, 355 U.S. 313, 319 (1958); Lovell 

v. City of Griffin, 303 U.S. 444, 452 (1938); Smith v. Cahoon, 283 U.S. 553, 

562 (1931). The trial court also rejected the State's argument that the provision 

in subsection (c) of N.J.S.A. 2C:58-4 (2018), which contained the justifiable 

need requirement, could be severed and the remainder of the statute, as well as 

N.J.S.A. 2C:39-5(b)(1), could still be enforced. The trial court concluded that 

"New Jersey's handgun-carry permitting regime at the time of defendant[s'] 

arrest prohibited law-abiding citizens from exercising their Second Amendment 

right and was, therefore, unconstitutional." Consequently, the trial court 
8 A-2377-22

concluded that defendants were free to possess handguns on May 4, 2019, 

without a permit. 

 In two motions, the State sought leave to appeal the trial court's order. We 

granted leave and stayed the dismissal of the charges pending this appeal. 

II. 

 On appeal, the State argues: 

THE TRIAL COURT ERRED BY RELYING ON 

NEW YORK STATE RIFLE & PISTOL [ASS'N] V. 

BRUEN, 597 U.S. ___, 142 S. CT. 2111 (2022), TO

HOLD THAT PROSECUTIONS UNDER N.J.S.A. 

2C:39-5([b])(1) ARE NOW PRECLUDED BECAUSE 

BRUEN RENDERED N.J.S.A. 2C:58-4 [(2018)] 

FACIALLY UNCONSTITUTIONAL. 

 We also granted the New Jersey Attorney General permission to appear 

and submit a brief as an amicus curiae. The Attorney General contends that the 

trial court erred for three reasons: 

POINT I – NEW JERSEY'S REQUIREMENT TO 

OBTAIN A PERMIT BEFORE CARRYING A 

FIREARM IN PUBLIC REMAINS VALID AFTER 

BRUEN. 

POINT II – THREE PRINCIPLES PREVENT 

COLLATERAL ATTACKS ON THE PERMITTING 

LAW: 

 

A. Defendants Who Possess Other 

Disqualifiers Cannot Collaterally Attack 
9 A-2377-22

The "Justifiable Need" Requirement As A 

Defense To Prosecution. 

B. Defendants Who Never Applied For 

The Relevant Permit Cannot Collaterally 

Attack The Permitting Law As A Defense 

To Prosecution. 

C. Defendants Who Were Denied A 

Permit By A Court Cannot Collaterally 

Attack The Permitting Law And Related 

Court Order As A Defense To Prosecution. 

POINT III – [THESE] DEFENDANT[S] [ARE] NOT 

ENTITLED TO CHALLENGE THE PERMITTING 

LAW.

In response, defendants argue N.J.S.A. 2C:39-5(b)(1) could not be 

enforced while the justifiable need requirement in N.J.S.A. 2C:58-4(c) (2018) 

was in effect because that requirement was unconstitutional under Bruen. 

According to defendants, the "confluence" of those statutes created a facially 

invalid permitting scheme, which they were entitled to disregard because they 

would have qualified for a gun-carry permit but for that unconstitutional 

requirement. In that regard, they contend that the justifiable need requirement 

"was virtually impossible to meet." Therefore, despite not having applied for a 

permit, defendants argue that they have standing to challenge the gun-permitting 

scheme because it would have been futile for them to have tried to satisfy that 
10 A-2377-22

requirement and because they are contesting the permitting scheme's facial 

validity. 

 III. 

It is well established that a grand jury indictment is presumptively valid. 

See State v. Feliciano, 224 N.J. 351, 380 (2016); State v. Francis, 191 N.J. 571, 

587 (2007). "[A] court should dismiss [an] indictment 'only on the clearest and 

plainest ground, and only when the indictment is manifestly deficient or 

palpably defective.'" State v. Bell, 241 N.J. 552, 560 (2020) (quoting State v. 

Twiggs, 233 N.J. 513, 531-32 (2018)). Moreover, legislative acts are 

presumptively valid and constitutional. See State v. Comer, 249 N.J. 359, 384 

(2022); State v. Buckner, 223 N.J. 1, 14 (2015). 

The issues presented on these appeals are questions of law and involve 

interpreting the Constitution and New Jersey's gun-carry permitting statutes, 

which we review de novo. State v. S.S., 229 N.J. 360, 380 (2017); see also 

Twiggs, 233 N.J. at 532 ("When the decision to dismiss [counts of an 

indictment] relies on a purely legal question . . . we review that determination 

de novo."). To place the issues in context, we briefly review the Supreme 

Court's jurisprudence on the Second Amendment. We also summarize New 

Jersey's gun-carry permitting laws. 
11 A-2377-22

A. The United States Supreme Court's Jurisprudence on the Second 

Amendment and the Bruen Decision. 

The Second Amendment to the United States Constitution states: "A well 

regulated Militia, being necessary to the security of a free State, the right of the 

people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. 

In 2008, the United States Supreme Court ruled, for the first time, that the 

Second Amendment protects the right of individual citizens to keep and bear 

arms apart from service in a militia. District of Columbia v. Heller, 554 U.S. 

570, 595, 599 (2008). In Heller, the Court addressed a challenge to the District 

of Columbia's restrictions to the possession of handguns in homes and the 

requirement that permitted guns in homes be unloaded and disassembled. The 

Court held that those restrictions and requirement were unconstitutional 

violations of the Second Amendment. Id. at 635. 

Two years later, the Court held that the Second Amendment "is fully 

applicable to the States" through the Fourteenth Amendment. McDonald v. City 

of Chicago, 561 U.S. 742, 750 (2010). In McDonald, the Court addressed 

challenges to ordinances of the City of Chicago and one of its suburbs. The 

city's ordinances banned the possession of firearms without proper registration 

and prohibited the registration of most handguns, and the suburb's ordinances 

banned the possession of handguns. Ibid. The city and the suburb argued their 
12 A-2377-22

ordinances were constitutional because the Second Amendment did not apply to 

the States. Ibid. In rejecting that argument, the Court held that the "Second 

Amendment right recognized in Heller" is applicable to the States. Id. at 791 

(plurality opinion). In short, in Heller and McDonald, the Court "recognized 

that the Second and Fourteenth Amendments protect the right of an ordinary, 

law-abiding citizen to possess a handgun in the home for self-defense." Bruen, 

142 S. Ct. at 2122. 

In 2022, the Court held "that the Second and Fourteenth Amendments 

protect an individual's right to carry a handgun for self-defense outside the 

home." Ibid. 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 2122-23. 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 2123 

(citation omitted). The Court held that the proper cause requirement was 

unconstitutional because it prohibited most people from obtaining a gun-carry 

permit. Id. 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 
13 A-2377-22

of firearm regulation." Id. at 2130. "Only if a firearm regulation is consistent 

with this Nation's historical tradition may a court conclude that the individual's 

conduct falls outside the Second Amendment's 'unqualified command.'" Id. at 

2126 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)). 

Accordingly, because "the Constitution presumptively protects [individual 

conduct]" covered by "the Second Amendment's plain text," the government 

must justify its regulation of that conduct by establishing "not simply . . . that 

the regulation promotes an important interest," but that "the regulation is 

consistent with this Nation's historical tradition of firearm regulation." Ibid. 

Focusing on New York's "proper-cause requirement," the Court held that 

provision of New York's gun permitting regime was unconstitutional. Id. at 

2138, 2156. In making that ruling, the Court found that requirement was not 

justified by an "American tradition." Id. at 2138, 2156. The Court also noted 

that New Jersey had a similar restriction in its justifiable need provision in 

N.J.S.A. 2C:58-4(c) (2018). Id. at 2124 n.2. 

In Heller and Bruen the Supreme Court repeatedly emphasized that its 

holdings were not effectuating a wholesale invalidation of state gun licensing 

and permit systems. Bruen, 142 S. Ct. at 2138 n.9; id. at 2157-58 (Alito, J., 

concurring); id. at 2161-62 (Kavanaugh, J., concurring); Heller, 554 U.S. at 626-
14 A-2377-22

27. For example, the Court in Bruen expressly endorsed gun-permitting regimes 

that contained narrow, objective, and definitive standards to guide officials in 

determining whether applicants were "in fact, 'law-abiding, responsible 

citizens,'" including specifically referencing "shall-issue" permitting regimes 

that "often require applicants to undergo a background check or pass a firearms 

safety course." Bruen, 142 S. Ct. at 2138 n.9 (quoting Shuttlesworth, 394 U.S. 

at 151). In that regard, the Court explained: 

To be clear, nothing in our analysis should be 

interpreted to suggest the unconstitutionality of the 

[forty-three] States' "shall-issue" licensing regimes, 

under which "a general desire for self-defense is 

sufficient to obtain a [permit]." Because these licensing 

regimes do not require applicants to show an atypical 

need for armed self-defense, they do not necessarily 

prevent "law-abiding, responsible citizens" from 

exercising their Second Amendment right to public 

carry. 

[Ibid. (second alteration in original) (citations 

omitted).] 

 The concurring opinions of Justices Alito and Kavanaugh similarly stated 

that the holding in Bruen was limited. Justice Alito explained: 

Our holding decides nothing about who may lawfully 

possess a firearm or the requirements that must be met 

to buy a gun. Nor does it decide anything about the 

kinds of weapons that people may possess. Nor have 

we disturbed anything that we said in Heller or 
15 A-2377-22

[McDonald] about restrictions that may be imposed on 

the possession or carrying of guns. 

[Id. at 2157 (Alito, J., concurring).]

 Justice Kavanaugh, joined by Chief Justice Roberts, added: 

First, the Court's decision does not prohibit States from 

imposing licensing requirements for carrying a 

handgun for self-defense. In particular, the Court's 

decision does not affect the existing licensing 

regimes—known as "shall-issue" regimes—that are 

employed in [forty-three] States. 

. . . . 

Likewise, the [six] States including New York [and 

New Jersey] potentially affected by today's decision 

may continue to require licenses for carrying handguns 

for self-defense so long as those States employ 

objective licensing requirements like those used by the 

[forty-three] shall-issue States. 

Second, as Heller and McDonald established and the 

Court today again explains, the Second Amendment "is

neither a regulatory straightjacket nor a regulatory 

blank check." Properly interpreted, the Second 

Amendment allows a "variety" of gun regulations. 

[Id. at 2161-62 (Kavanaugh, J., concurring) (citations 

omitted).] 

B. New Jersey's Gun Permit Scheme. 

 For over 100 years, New Jersey has regulated the carrying of firearms 

outside the home. See Siccardi v. State, 59 N.J. 545, 553 (1971) (noting that the 
16 A-2377-22

Legislature had regulated the carrying of guns "[a]s early as 1882"). Beginning 

in 1905, New Jersey required private citizens seeking to carry a concealed 

firearm to have a permit. See L. 1905, c. 172. 

 An applicant seeking a gun-carry permit must follow a two-step process. 

First, the applicant must apply to either the local chief of police or the 

superintendent of the State Police. N.J.S.A. 2C:58-4(c). In 2019, the 

application required biographical information and the endorsement of "three 

reputable persons who ha[d] known the applicant for at least three years . . . and 

who . . . certif[ied] . . . that the applicant is a person of good moral character and 

behavior." N.J.S.A. 2C:58-4(b) (2018). 

 In addition, an applicant must satisfy certain criteria. N.J.S.A. 2C:58-3 

and -4. An applicant must "not [be] subject to any of the disabilities set forth in 

[N.J.S.A. 2C:58-3(c)]," which consider the applicant's age, mental and physical 

health, criminal history, and potential danger to public safety. N.J.S.A. 2C:58-

4(c); see also N.J.S.A. 2C:58-3(c). The applicant must also demonstrate 

"familiar[ity] with the safe handling and use of handguns," evidenced by 

certified completion of a training course, submission of scores, or passage of a 

test. N.J.S.A. 2C:58-4(c); see also N.J.A.C. 13:54-2.4(b) and (c). In 2019, an 
17 A-2377-22

applicant also had to establish a "justifiable need to carry a handgun" based on 

an "urgent necessity for self-protection." N.J.S.A. 2C:58-4(c) (2018). 

 Second, the chief of police or superintendent conducts a background 

check, including interviews of the applicant and persons endorsing the 

application. N.J.S.A. 2C:58-4(c). If the application is denied, the applicant can 

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

dissatisfied with the decision of the Superior Court can appeal the decision "in 

accordance with law and the rules governing the courts of this State." Ibid. In 

2019, if the chief of police or superintendent of the State Police approved the 

application, the applicant also had to submit it to the Superior Court for review. 

N.J.S.A. 2C:58-4(d) (2018). If the Superior Court denied the application, the 

applicant could appeal that denial. Ibid. 

 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. The directive also instructed law enforcement 

agencies to consider all other mandatory requirements for obtaining a gun-carry 

permit before issuing one. Off. of the Att'y Gen., Law Enf't Directive No. 2022-
18 A-2377-22

07, Directive Clarifying Requirements for Carrying of Firearms in Public 1-2 

(June 24, 2022). 

 Six months later, in December 2022, the Legislature passed, and the 

Governor signed, a law revising the gun-permitting scheme to formally 

eliminate the justifiable need requirement and to revise other requirements. See 

L. 2022 c. 131. The new law did not change the requirement that a person obtain 

a permit before lawfully carrying a gun in public. See id.; N.J.S.A. 2C:39-5(b). 

Among other revisions, the new law provides that an applicant for a gun-carry 

permit must now be endorsed by four reputable people who certify that the 

applicant "has not engaged in any acts or made any statements that suggest the 

applicant is likely to engage in conduct, other than lawful self-defense, that 

would pose a danger to the applicant or others." L. 2022 c. 131, § 3. The new 

law also requires the applicant to obtain liability insurance to carry a gun in 

public. Id. §§ 3, 4. 

 C. Defendants' Lack of Standing. 

A defendant may raise a defense that the crime charged in an indictment 

or accusation "is based on a statute or regulation . . . which is unconstitutional 

or invalid in whole or in part." R. 3:10-2(d). To make that challenge, however, 

the defendant must have standing to raise the constitutional objection. State v. 
19 A-2377-22

Saunders, 75 N.J. 200, 208-09 (1977). Accordingly, the defendant "must show 

sufficient injury before his [or her challenge] will be heard." State v. Varona, 

242 N.J. Super. 474, 487 (App. Div. 1990). "Th[is] rule limits a criminal 

defendant to constitutional claims related to his [or her] own conduct [and] rests 

on the principle that legislative acts are presumptively valid and will not be 

overturned on the basis of hypothetical cases not actually before the court." 

Saunders, 75 N.J. at 208-09.

 Generally, to establish standing to challenge an allegedly unconstitutional 

permit statute, the challenger must have applied for a permit or license under the 

statute. See, e.g., United States v. DeCastro, 682 F.3d 160, 164 (2d Cir. 2012); 

Westfall v. Miller, 77 F.3d 868, 872-73 (5th Cir. 1996); Kendrick v. Bruck, 586 

F. Supp. 3d 300, 308 (D.N.J. 2022). Nevertheless, there is a recognized 

exception to the submission requirement if the challenger can "make a 

substantial showing that submitting to the government policy would [have been] 

futile." Bruck, 586 F. Supp. 3d at 308 (citing Ellison v. Am. Bd. of Orthopedic 

Surgery, 11 F.4th 200, 206 (3d Cir. 2021)); see also DeCastro, 682 F.3d at 164; 

Jackson-Bey v. Hanslmaier, 115 F.3d 1091, 1096 (2d Cir. 1997). 

 Neither defendant in these appeals applied for a permit to carry a gun. 

Wade's counsel submitted a certification representing that Wade had no other 
20 A-2377-22

disqualifying factors and that he would have qualified to receive a permit but 

for the justifiable need requirement. Stringer and his counsel did not submit a 

certification concerning Stringer's qualifications for a permit. 

 Initially, we point out that neither Stringer nor Wade has established the 

factual basis for challenging New Jersey's gun-permit statutes. Stringer has 

provided no factual basis whatsoever. The certification submitted by Wade's 

counsel is not based on counsel's personal knowledge; rather, it is based on 

information received from his client and, therefore, is insufficient to establish 

facts in dispute. See R. 1:6-6; see also DeCastro, 682 F.3d at 164 (explaining 

that defendant's reliance on the "hearsay statement of an unidentified police desk 

officer" was insufficient to make a substantial showing of futility). 

 Even if we accept the certification of Wade's counsel, it does not establish 

that Wade would have qualified for a gun-carry permit excluding the justifiable 

need requirement. To receive a permit, Wade would have been required to 

demonstrate that he was "thoroughly familiar with the safe handling and use of 

handguns." N.J.S.A. 2C:58-4(c) (2018). Moreover, he would have had to 

submit certifications from "three reputable persons who ha[d] known [him] for 

at least three years" and who certified that he was "a person of good moral 

character and behavior." N.J.S.A. 2C:58-4(b) (2018). Nothing in the record 
21 A-2377-22

establishes that Wade would have been able to comply with those requirements. 

Consequently, the record does not reflect that it would have been futile for Wade 

to have applied for a permit even in the absence of the justifiable need provision. 

 The insufficient record supporting defendants' constitutional challenge 

illustrates why a motion to dismiss criminal charges is not the proper venue for 

demonstrating that defendants would have been granted a gun-carry permit but 

for the justifiable need requirement. If defendants had applied for gun-carry 

permits, there would be a complete record of why they were not granted the 

permits. In other words, we would not be left to speculate that defendants were 

denied the permits because of the justifiable needs requirement. 

Moreover, law-abiding citizens are not free to ignore a statute and 

presume that they would have been granted a permit but for one potentially 

invalid provision of a permit statute. See Borough of Collingswood v. Ringgold, 

66 N.J. 350 (1975). In Ringgold, defendants challenged their municipal-court 

convictions for engaging in door-to-door solicitations without a permit. Id. at 

354, 364. They contended that the ordinance requiring the permit was 

unconstitutional. Id. at 364. The ordinance permitted the chief of police to deny 

registrations in certain circumstances but did not set forth the standard or 

principle the chief should use in deciding whether to grant or deny a permit. Id. 
22 A-2377-22

at 366-67. The Court held that the provision granting the chief discretion to 

deny a permit was unconstitutional but concluded that the remainder of the 

ordinance was valid. Id. at 367, 371. The Court then affirmed defendant's 

convictions explaining that the ordinance was "not a model of clarity," but was 

"sufficient on its face so that it could not properly be ignored with impunity by 

these defendants." Id. at 364. 

 Defendants contend that their challenge to the facial constitutionality of 

N.J.S.A. 2C:58-4 (2018) "is another basis to find that [they have] standing 

despite never having applied for a permit." They rely on cases concerning the 

First Amendment and argue that a person faced with a facially invalid licensing 

law can disregard the law and contest its validity if they are charged with 

violating it. See Shuttlesworth, 394 U.S. at 151; Staub, 355 U.S. at 319; Lovell, 

303 U.S. at 452. 

 We reject that argument. No New Jersey decision or federal decision 

addressing New Jersey's gun-permit statutes has held that a defendant has 

standing to challenge the permit statutes without first having applied for a 

permit. Courts from other jurisdictions have looked at First Amendment 

jurisprudence in analyzing Second Amendment cases, but generally those courts 

have not incorporated wholesale the application of First Amendment law to a 
23 A-2377-22

Second Amendment analysis. See Ass'n of N.J. Rifle & Pistol Clubs v. Att'y 

Gen. N.J., 910 F.3d 106, 122 n.28 (3d Cir. 2018) (explaining that the United 

States Court of Appeals for the Third Circuit has "consulted First Amendment 

jurisprudence" but has "not wholesale incorporated it into the Second 

Amendment"). Indeed, "[w]hile First Amendment cases have permitted 

standing for plaintiffs who have not sought permits, Second Amendment cases 

have not." Bruck, 586 F. Supp. 3d at 309 (collecting relevant cases). We 

similarly decline to apply wholesale First Amendment caselaw to a Second 

Amendment analysis. In short, defendants' and the trial court's reliance on First 

Amendment jurisprudence to support their claim of standing was misplaced. 

D. Whether the "Justifiable Need" Provision Could Be Severed. 

The 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. 

 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." N.J.S.A. 1:1-10. Accordingly, courts can "save an 
24 A-2377-22

enactment that otherwise would be constitutionally doomed" by "sever[ing] the 

offending portion" of the statute. State v. Natale, 184 N.J. 458, 485-86 (2005). 

"Severability is a question of legislative intent." Affiliated Distillers Brands 

Corp. v. Sills, 56 N.J. 251, 265 (1970). In that regard, the New Jersey Supreme 

Court has explained: 

The governing principle is whether it can be fairly

concluded that the Legislature designed the statute to 

stand or fall as a unitary whole. In reaching this

conclusion, [a court] must determine whether the 

objectionable feature can be excised without substantial 

impairment of the principal object of the statute. An 

entire statute will not be invalidated when one clause is 

found to be unconstitutional unless that clause is so 

intimately interconnected with the whole that it can be 

reasonably said that the Legislature would not have

enacted the statute without the offending clause. 

[Ibid. (citations omitted).] 

 In other words, we can sever a statutory provision "where the invalid 

portion is independent and the remaining portion forms a complete act within 

itself." Inganamort v. Borough of Fort Lee, 72 N.J. 412, 423 (1977). Whether 

a statute contains a severability clause is not determinative. See id. at 422; State 

by McLean v. Lanza, 27 N.J. 516, 527 (1958). 

 In 2019, when 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-
25 A-2377-22

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. For example, in 2019, someone 

seeking a permit to carry a handgun had to demonstrate that he or she was 

mentally and physically capable of handling a handgun and was not a potential 

danger to the public. See N.J.S.A. 2C:58-4(c) (2018); N.J.S.A. 2C:58-3(c) 

(2016). An applicant also had to demonstrate that he or she had completed a 

training course in the safe handling and use of handguns. N.J.A.C. 13:54-2.4(b) 

and (c). Consequently, the Legislature designed the gun-permit statutes to 

address several safety concerns. Accordingly, we construe the gun-permit 

statutes as they existed in 2019 not to have been dependent on the justifiable 

need provision. 

Indeed, the Legislature made that statutory construction clear when, six 

months after Bruen was issued, it amended various gun-permit statutes, 

including N.J.S.A. 2C:58-4. The Legislature deleted the justifiable need 

provision but left in and revised various other criteria for obtaining a permit to 

carry a gun in New Jersey. In those amendments, the Legislature also revised 

New Jersey's gun-permitting scheme to become a shall-issue regime. In that 

regard, N.J.S.A. 2C:58-3(c), now states that a person "shall not be denied a 
26 A-2377-22

permit to purchase a handgun or a firearms purchaser identification card, unless" 

that person has certain disqualifying criteria. 

Moreover, following Bruen, we upheld the constitutionality of the "public 

health, safety or welfare," requirement for the issuance of a firearms purchaser 

identification card or handgun purchase permit set forth in N.J.S.A. 2C:58-

3(c)(5). In re M.U.'s Application for a Handgun Purchase Permit, 475 N.J. 

Super. 148, 163, 193-94 (App. Div. 2023). Accordingly, we have already held 

that, consistent with Heller and Bruen, New Jersey can continue to regulate who 

can purchase and carry a handgun in public so long as those regulations are 

consistent with the text of the Second Amendment and our Nation's historical 

tradition of firearm regulation. In M.U., we construed the 2022 amendments to 

the gun-permit statutes to be prospective, and not to apply retroactively. Id. at 

195. Nevertheless, those amendments demonstrate that the Legislature intended 

to enforce the valid provisions of the statutes regulating guns if any provision 

was found to be unconstitutional. 

 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 
27 A-2377-22

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. See Bruen, 142 S. Ct. at 2138 n.9; id. at 2161-62 (Kavanaugh, 

J., concurring); Heller, 554 U.S. at 626-27. In short, N.J.S.A. 2C:39-5(b)(1) was 

constitutional and enforceable at the time of defendants' arrest. 

IV. 

In summary, we hold that defendants did not have standing to challenge 

the gun permit statutes because neither defendant had applied for a handguncarry permit. In addition, having considered the merits of defendants' 

constitutional challenge, we hold 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. 

Reversed and remanded for further proceedings consistent with this 

opinion. We do not retain jurisdiction.