NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS.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 Superi or Court of New Jersey, Law Division, Middlesex County , Indictment No. 22- 11

- 1041. Nancy A. Hulett, Assistant Prosecutor, argued the c ause for appellant (Yolanda Ciccone, Middlesex County APPROVED FOR PUBLICATION

August 10 , 2023 APPELLATE DIVISION2 A- 2377

- 22 Prosecutor, attorney; Nancy A. Hulett, of counsel a nd on the briefs). Scott M. Welfel, Assistant Deputy Public Defender, argued the cause for respondent Daandre J. Wade (Joseph E. Krakora, Public Defender, attorney; Scot t 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, attor ney; Angela Cai, Deputy Solicitor General, and David Che n, 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 Ne w 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 dr iving 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 decisi on 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 gun carry permit statute in effect at the time of their arrest , N.J.S.A. 2C:58-4 (2018) , was facially unconstitutional under Br uen. 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) w ere unconstitutional. The trial court agreed, granted defendants' motion, and issued an order dismissing those charge s. We granted the State leave to appeal th e 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 c hallenge the statutes because neither defendant had applied for a permit to carry a handgun. Nevertheless, we address the merits of the constitu tional challenge because it is a significant issue that warrants consideration. S ee Petro v. Platkin, 4 72 N.J. Super. 536, 564 (App. Div. 2022) (explaining that w e 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. 2 C:39-5(b)(1) were not facially unconstitutional because the justifiable n eed requirement set forth i n4 A- 2377

- 22

N.J.S.A. 2C:58-4(c) (2018) was severable and the re maining 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 prove s that they did not have permits, they w ill be guilty of a crime under N.J.S.A. 2C:39-5(b)(1). Accordingly, we reverse and vacate the order dismis sing the two counts of the indictment charging defendants with unlawful posses sion 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 ap peal, 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, th e police stopped the vehicle

1 In discerning the facts, we have reviewed the record, i ncluding the indictment and a police report that summarized the events lead ing 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 the n 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 la se r sight, under the floormat on the passenger side of the vehicle. Neither defendant h ad 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 s econd-degree unlawful possession of a handgun without a permit; and in count three, both defendants were charged with fourth-degree possessi on 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 enforceme nt 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 circu mstances 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 conduc t a warrantless search of a vehicle. See State v. Rodriguez, 459 N.J. Super. 1 3, 25-26 (App. Div. 2019).6 A- 2377

- 22

In December 2022, after the Supreme Court issued i ts decision in Bruen , Wade moved to dismiss count two of the indictment a nd 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 p ersons offense involving an act of domestic violence" and "had not been adjudicated delinquent for any offense that, if committed by an adult, would const itute 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 o r destructive device." The certification also asserted that Wade "was not subj ect to any of the disabilities enumerated in N.J.S.A. 2C:58-3(c) [(2016)] which wo uld render him unable to obtain a permit under a licensing scheme that remov es the unconstitutional justifiable need requirement" and that "under a lic ensing scheme that did not require . . . Wade to show a justifiable need, he w ould have otherwise qualified." Neither Stringer nor his attorney filed a certifica tion 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, th e trial court granted defendants' motion and entered an order dismiss ing 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 challen ge the gun-carry permit statute even though neither defendant had applied for a per mit. In reaching that conclusion, the trial court relied on First Amendme nt 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 hav e 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 Stat e's argument that the provision
i n subsection (c) of N.J.S.A. 2C:58-4 (2018), which co ntained the justifiable need requirement, could be severed and the remainde r of the statute, as well as N.J.S.A. 2C:39-5(b)(1), could still be enforced. T he trial court concluded that "New Jersey's hand gun -carry permitting regime at the time of defendant[s '] arrest prohibited law-abiding citizens from exercising th eir Second Amendment right and was, therefore, unconstitutional." Consequently, the trial court8 A- 2377

- 22

concluded that defendants were free to possess hand guns on May 4, 2019, without a permit. In two motions, the State sough t leave to appeal the trial court's order. We granted leave and stayed the dismissal of the charg es 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 pe rmission to appear and submit a brief as an amicus curiae. The Attorn ey General contend s 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 CO LLATERAL ATTACKS ON THE PERMITTING LAW : A. Defendants Who Possess Other Disqualifiers Cannot Collaterally Attack9 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 unconsti tutional under Bruen

. According to defendants, the "confluence" of those statutes created a facially inv alid 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." Th e re fore, 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 t o have tried to satisfy that10 A- 2377

- 22

requirement and because they are contesting the per mitting 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); S tate v. Francis, 191 N.J. 571, 587 (2007). "[ A] court should dismiss [an] indictment 'only on th e clearest and plainest ground, and only when the indictment is ma nifestly 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 [c ounts of an indictment] relies on a purely legal question . . . we review that determination de novo. ") . To place the issues in context, we briefly revie w 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 t he Bruen Decision. The Second Amendment to the United States Constitutio n 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 infringe d." 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 c itizens 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 address ed 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 unloade d 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 Ame ndment "is fully applicable to the States" through the Fourteenth Am endment. 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, a nd the suburb's ordinances banned the possession of handguns. Ibid. The city and the suburb argued their12 A- 2377

- 22

ordinances were constitutional because the Second A mendment 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 "recogniz ed that the Second and Fourteenth Amendments protect t he right of an ordinary, law-abiding citizen to possess a handgun in the hom e for self-defense." Bruen , 142 S. Ct. at 2122. In 2022, the Court held "that the Second and Fourte enth Amendments protect an individual's right to carry a handgun fo r self-defense outside the home." Ibid. In Bruen, the Court addressed a New York law that r equired 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 Yor k courts had interpret ed "proper cause" to require a showing that the applic ant had a "special need for self-protection distinguishable from that of the ge neral community." I d. at 2123 (citation omitted). The Court held that the prop er cause requirement was unconstitutional because it prohibited most people from obtaining a gun-carry permit. Id. at 2138, 2156. In so holding, t he Court adopted a textual analysis that requires cou rts to look to the text of the Second Amendment and "the N ation's historical tradition13 A- 2377

- 22

of firearm regulation." I d. at 2130. "Only if a firearm regulation is consist ent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqua lified command.'" I d. at 2126 (quoting Koni gsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 ( 1961)). Accordingly, because "the Constitution presumptivel y protects [individual conduct]" covered by "the Second Amendment's plain text," the government must justify its regulation of th at 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.
Focus ing on New York's "proper-cause requirement, " the Court held that provision of New York's gun permitting regime was u nconstitutional. I d. 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 ju stifiable need provision in N.J.S.A. 2C:58-4(c) (2018). Id. at 2 124 n.2. In Heller and Bruen the Supreme Court repeatedly em phasized 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. a t 626-14 A- 2377

- 22

27 . For example, the Court in Bruen expressly endors ed gun -permitting regimes that contained narrow, objective, and definitive st andards to guide officials in determining whether applicants were "in fact, 'law- abiding, res ponsible citizens,'" including specifically referencing "sha ll-issue" permitting regimes that "often require applicants to undergo a backgro und 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 t he [forty-three] States' "shall-issue" licensing regim es, under which "a general desire for self-defense is sufficient to obtain a [permit]." Because these li censing regimes do not require applicants to show an atypic al need for armed self-defense, they do not necessaril y 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 Ali t o 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 th e kind s of weapons that people may possess. Nor have we disturbed anything that we said in Heller or15 A- 2377

- 22 [McDonald] about restrictions that may be imposed o n 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 decisio n may continue to require licenses for carrying handg uns 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 regulator y blank check." Properly interpreted, the Second Amendment allows a "variety" of gun regulations. [I d. at 2161- 62 (Kavanaugh, J., concurring) (citations omitted).]
B. New Jersey's Gun Permit Scheme. For over 100 years, New Jersey has regulated the c arrying of firearms outside the home. See Siccardi v. State, 59 N.J. 5 45, 553 (1971) (noting that the16 A- 2377

- 22

Legislature had regulated the carrying of guns "[a] s early as 1882"). Beginning in 1905, New Jersey required private citizens seeki ng 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 t he 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 cri teria. N.J.S.A. 2C:58- 3 and -4. An applicant must "not [be] subject to any of the d isabilities set forth in [N.J.S.A. 2C:58-3(c)]," which consider the applican t's age, mental and physical health, criminal history, and potential danger to p ublic 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 ha ndguns," evidenced by certified completion of a training course, submissi on 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, an17 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 cond ucts a background check , including interviews of the applicant and persons e ndorsing 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 Cour t can appeal the decision "in accordance with law and the rules governing the cou rts of this State." Ibid. In 2019, if the chief of police or superintendent of t he 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 Br uen was issued, the New Jersey Attorney General issued Law Enforcement Dire ctive No. 2022 -07, which directed that New Jersey would no longer require ap plicants to show a justifiable need for a gun -carry permit. The directive also instructed law e nforcement 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. 202 2-18 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 Legislatur e passed, and the Governor signed, a law revising the gun -permitting scheme to formally eliminate the justifiable need requirement and to re vise other requirements. See
L. 20 2 2 c. 131. The new law did not change the requirement t hat 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 peopl e 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 tha n 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 char ged 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] wil l 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 presumpt ively valid and will not be overturned on the basis of hypothetical cases not a ctually before the court." Saunders, 75 N.J. at 208- 09. Generally, to establish standing to challenge an a lleged ly unconstitutional permit statute, the challenger must have applied fo r 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, t here is a recognized exception to the submission requirement if the chal lenger can "make a substantial showing that submitting to the governme nt 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 p ermit to carry a gun. Wade's counsel submitted a certification representi ng that Wade had no other20 A- 2377

- 22

disqualifying factors and that he would have qualif ied 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-perm it statutes. Stringer has provided no factual basis whatsoever. The certific ation submitted by Wade's counsel is not based on counsel's personal knowledg e; 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 sho wing of futility). Even if we accept the certification of Wade's coun sel, it does not establish that Wade would have qualified for a gun -carry permit excluding the justifiable need requirement. To receiv e a permit, Wade would have been required to demonstrate that he was "thoroughly familiar with t he 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 record21 A- 2377

- 22

establishes that Wade would have been able to comply with tho se requirements. Consequently, the record does not reflect that it w ould 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' con stitutional challenge illustrates why a motion to dismiss criminal charge s is not the proper venue for demonstrating that defendants would have been grant ed a gun-carry permit but for the justifiable need requirement. If defendant s had applied for gun-carry permits, there would be a complete record of why th ey were not granted the permits. In other words, we would not be left to s peculate that defendants were denied the permits because of the justifiable needs requirement. Moreover, l aw -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. Ringg old , 66 N.J. 350 (1975). In Ringg old , 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 requir ing the permit was unconstitutional. Id. at 364. The ordinance permi tted 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 o r deny a permit. Id.22 A- 2377

- 22

at 366-67. The Court held that the provision grant ing the chief discretion to deny a permit was unconstitutional but concluded th at the remainder of the ordinance was valid. Id. at 367, 371. The Court t hen affirmed defendant's convictions explaining that the ordinance was "not a model of clarity," but wa s "sufficient on its face so that it could not proper ly be ignored with impunity by these defendants." Id. at 364. Defendants contend that their challenge to the fac ial constitutionality of N.J.S.A. 2C:58-4 (2018) "is another basis to find t hat [they have] standing despite never having applied for a permit." They r ely 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 va lidity 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 o r federal decision addressing New Jersey 's gun -permit statutes has held that a defendant has standing to challenge the permit statutes without f irst having applied for a permit. Courts from other jurisdictions have looke d at First Amendment jurisprudence in analyzing Second Amendment cases, but generally those courts have not incorporated wholesale the application of First Ame ndment law to a23 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) (e xplaining 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 permitt ed standing for plaintiffs who have not sought permits , Second Amendment cases have not." Bruck, 586 F. Supp. 3d at 309 (collecti ng relevant cases). We similarly decline to apply wholesale First Amendmen t caselaw to a Second Amendment analysis. In short, defendants' and the trial court's reliance on Fi rst Amendment jurisprudence to support their claim of s tanding was misplaced.
D. Whether the "Justifiable Need" Provision Could Be Severed. The holding and analysis in Bruen make it clear tha t the justifiable need provision in N.J.S.A. 2C:58-4(c) (2018) is unconsti tutional under the Second and Fourteenth Amendments. Indeed, the State concedes th at point. Therefore, even if defendants had standing to make a constitutional cha llenge, the question becomes whether the justifiable need provision was severable. When a provision in a statute is declared unconsti tutional, the remaining "provision[s] shall, to the extent . . . [they are] not unconstitutional . . . be enforced and effectuated." N.J.S.A. 1:1-10. Accor dingly, courts can "save an24 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 r egar d, 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 substa ntial impairment of the principal object of the statute. An entire statute will not be invalidated when one cla use is found to be unconstitutional unless that clause is so intimately interconnected with the whole that it ca n 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 fo rms 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 det erminative. 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 provisio n 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. Fo r example, in 2019, someone seeking a permit to carry a handgun had to demonstr ate that he or she was mentally and physically capable of handling a handg un and was not a potential danger to the public. See N.J.S.A. 2C:58-4(c) (201 8); 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 han dguns. N.J.A.C. 13: 54 -2.4(b) and (c). Consequently, the Legislature designed th e gun-permit statutes to address several safety concerns. Accordingly, we c onstrue the gun-permit statutes as they existed in 2019 not to have been d ependent on the justifiable need provision. Indeed, the Legislature made that statutory constru ction clear when, six months after Bruen was issued, it amended various g un-permit statutes, including N.J.S.A. 2C:58-4. The Legislature delete d the justifiable need provision but left in and revised various other cri teria for obtaining a permit to carry a gun in New Jersey. In those amendments, t he Legislature also revised New Jersey's gun-permitting scheme to become a shal l-issue regime. In that regard, N.J.S.A. 2C:58-3(c), now states that a pers on "shall not be denied a26 A- 2377

- 22

permit to purchase a handgun or a firearms purchase r identification card, unless" that person has certain disqualifying criteria. Moreover, following Bruen, we upheld the constituti onality of the "public health, safety or welfare," requirement for the iss uance 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). Accordin gly, 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 an d our Nation's historical tradition of firearm regulation. In M.U., we const rued the 2022 amendments to the gun-permit statutes to be prospective, and not to apply retroactively. Id. at 195. Nevertheless, those amendments demonstrate th at the Legislature intended to enforce the valid provisions of the statutes reg ulating guns if any provision was found to be unconstitutional. The Supreme Court's jurisprudence on the Second Am endment makes clear that carrying guns in public can still be reg ulated and subject to a permit requirement. Consequently, at a minimum, New Jerse y's gun-permit statutes were and continue to be constitutional in requiring background checks to27 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 rea sonable 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 defen dants' arrest.
IV. In summary, we hold that defendants did not have st anding to challenge the gun permit statutes because neither defendant h ad applied for a handguncarry permit. In addition, having considered the me rits of defendants ' constitutional challenge, we hold that the justifia ble need requirement in N.J.S.A. 2C:58-4(c) (2018) was severable and the re maining 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 consi stent with this opinion . We do not retain jurisdiction.