14th Annual Leroy R. Hassell, Sr. National Constitutional ... Annual Leroy R. Hassell, Sr. National...

14th Annual Leroy R.

Hassell, Sr. National

Constitutional Law Moot

Court Competition Regent University School of Law

Competition Problem

2

No. 14:410

IN THE

SUPREME COURT OF THE UNITED STATES

FALL TERM, 2014

_____________________

STATE OF EAST JERSEY,

Petitioner,

v.

FALAK GAGAN,

Respondent.

_____________________

ON WRIT OF CERTIORARI

TO THE EAST JERSEY SUPREME COURT

3

EAST JERSEY SUPERIOR COURT

FOR THE COUNTY OF ROCKINGHAM


v.

FALAK GAGAN,

Defendant.

INDICTMENT

Crim. Action No. 12:223

The grand jury charges that:

On or about May 28th, 2012, FALAK GAGAN did knowingly possess a

dangerous weapon, a 12 inch knife, in Liberty Park in the City of Chesterfield in

the County of Rockingham in violation of East Jersey Revised Statutes Annotated

§ 45:70 (2012).

Dated: July 2, 2012. A TRUE BILL, _________________________ Geordi LaForge Grand Jury Foreperson

4




v.

FALAK GAGAN,

Defendant.

MOTION HEARING TRANSCRIPT


BEFORE Judge James Brady, the proceedings commenced at 10:23 am on October 25, 1

2012. 2

CLERK: Calling case number 12:223, State v. Falak Gagan. We are here on the 3

defense motion to dismiss the indictment. 4

COURT: Let the record reflect the defendant is present with his attorney, Jayne 5

Cobb, and the state is represented by assistant county attorney, Warwick 6

Harrow. Are you ready to proceed? 7

COBB: Yes, your Honor. 8

HARROW: Yes, Sir. 9

COURT: I have read the briefs submitted by both parties. Because this is a defense 10

motion, Mr. Cobb, you may proceed. 11

COBB: Thank you, your Honor. My client, Mr. Falak Gagan, is a devout Sikh. 12

5

He sincerely believes he must carry . . . As one of the tenets of his faith, 1

he sincerely believes he must carry with him at all times his kirpan, a 2

curved knife in the shape of the letter J carried in sheath. It was only 3

because my client was carrying his kirpan that he was indicted. 4

Individuals have the right to practice their religion. The First Amendment 5

guarantees that. 6

Additionally, Heller and McDonald dictated that states have to respect 7

individual’s right to keep and bear arms. “Bear arms” clearly means more 8

than keeping his knife . . . . 9

HARROW: Your Honor, Smith clearly controls his First Amendment claim. This law 10

does not single out religious individuals. It is applicable to everyone. 11

COBB: Here is a copy of the statute. Section 45:70 is so riddled with exceptions 12

the state cannot claim it has a compelling interest in restricting the 13

possession of these knives. It simply doesn’t apply to everyone. You 14

know, half an hour before my client was arrested there were dozens of 15

people in the park with full sized swords and rifles. The rifles were even 16

fired during the ceremony. But my client was the only one the police 17

arrested. 18

COURT: Counsel, those other people were part of the parade and ceremony? 19

COBB: Yes, but . . . . 20

COURT: That’s allowed by the statute isn’t it? This isn’t discriminatory 21

enforcement? 22

COBB: Yes, but that demonstrates this law is not generally applicable under 23

6

Lukumi. Although the law, the statute is applied as evenly under its terms, 1

its terms exempt a wide range of conduct for secular reasons, but religious 2

reasons have no weight under the statute. This unfairly singles out my 3

client’s religion that requires carrying a weapon. 4

Because my client’s religious belief involves a weapon, we also are 5

dealing with a hybrid right under Smith. So regardless . . . . 6

COURT: That presupposes I agree with you about his Second Amendment 7

claims . . . . 8

COBB: Not necessarily, as long as he has a colorable claim that is sufficient 9

for . . . . 10

COURT: And if I agree with his Second Amendment claim, there is no need to 11

consider the religious claim any further. Besides, I think the whole hybrid 12

rights thing is dicta, so let’s forget hybrid rights for now. Mr. Harrow, 13

how about the exceptions? 14

HARROW: Your Honor, the exceptions fit the statute’s purpose, to protect the public 15

from dangerous weapons without unduly burdening the Second 16

Amendment rights of individuals. The core of the Second Amendment 17

right to defend oneself in one’s home is protected without restriction. And 18

where individuals have a legitimate need or expectation to be able to carry 19

outside the home, appropriate allowances are made. 20

COBB: My client has a legitimate need. He applied for a permit, citing his 21

religious reasons, and was denied. If my client had been granted a permit, 22

we wouldn’t be here. 23

7

HARROW: His need does not fit within the construction of the statute, so of course he 1

was denied a permit. 2

COBB: That is my point; religious accommodations are not made, even though 3

many other accommodations are made. That is why this the law must 4

meet strict scrutiny, and the exemptions make it fail that. There is no way 5

the state can have a compelling interest in not granting an exemption, or at 6

least a permit, to Mr. Gagan and other Sikhs. There are so many other 7

exemptions; an exemption for Mr. Gagan wouldn’t harm anyone. 8

HARROW: We do have a compelling interest in protecting the public. How is a police 9

officer supposed to know when someone is carrying a dangerous weapon 10

for religious reasons? They need to have a uniform rule they can enforce. 11

Plus, this is not a small knife, the kirpan Mr. Gagan carries is fully 12 12

inches long, and the blade is nine inches long. This is larger than many 13

kirpans. 14

COBB: Yes it is a large kirpan, but it isn’t the biggest, some can be full sized 15

swords. Mr. Gagan believes he must have a functional knife that is 16

actually of use to defend himself. His belief requires that he carry a kirpan 17

of this size. It is not exceptionally sharp. I mean, he has occasionally 18

used it to whittle and it will cut cloth, but it takes skill to use it as a 19

weapon. He carries it openly on his belt to deter attacks and has had 20

training to use it effectively and safely. 21

But this knife clearly also has a ceremonial purpose. In addition to being 22

functional, it is part of his religious attire. Mr. Gagan keeps all five “Ks” 23

8

of the Sikh faith. He doesn’t cut his hair, that’s the kes. He carries the 1

kirpan. He wears his kachha, which is special shorts, and kara, that’s a 2

steel bracelet. And he carries his special wooden comb, a kanga. It is 3

obvious he is an observant Sikh. 4

Here’s a photo I’d like to admit, to offer, as defense exhibit “A.” Your 5

honor, this photo is of Mr. Gagan’s kirpan. 6

COURT: Mr. Harrow? 7

HARROW: I’ve seen the photo, I have no objection. 8

COURT: Alright, I’ll accept it, but I think I have heard enough about Mr. Gagan’s 9

religious claim, Mr. Cobb, please move on to his other objections. 10

COBB: Yes, Judge. As I said earlier, Heller and McDonald clearly control here. 11

Under those two decisions, you look at the text and the history. The Court 12

in Heller did an extended analysis of the phrase “bear arms” that clearly 13

indicates the right to keep and bear arms would be nonsensical if limited 14

only to the home as some courts have done. 15

HARROW: Your Honor, counsel for the defense is speaking out of both sides of his 16

mouth. On the one hand, the exemptions make the law unacceptable 17

under the First Amendment because they mean the law is not narrowly 18

tailored enough. On the other hand, these exceptions are not broad enough 19

for Second Amendment purposes because they prevent too many people 20

from exercising their right to bear arms. I would remind this court that the 21

core right that the Supreme Court recognized in Heller was the right to 22

defend oneself in one’s home. That is allowed under this law, and the 23

9

right to carry is protected for those who have a legitimate interest in self-1

defense outside the home. If someone has a justified belief they will need 2

to defend themselves in the near future, that individual can get a permit. 3

COBB: Your honor, most people don’t know in advance when they are going to 4

need to defend themselves. The Seventh Circuit recognized that in Moore 5

v. Madigan. That is why requiring an individual to demonstrate a 6

particularized threat to his life is problematic for the Second Amendment. 7

Moreover, although the core of the right is the right to defend oneself in 8

one’s home, that is not the end of the right. Bearing arms means carrying, 9

it would be nonsensical to speak of “carrying” arms and then to limit that 10

only to your home. 11

HARROW: That may be, but the state has an interest in keeping its citizens safe. The 12

legislature made the decision that these weapons are dangerous to public 13

safety. That is such an important interest it outweighs any interest in 14

carrying weapons unless someone has a direct threat to their life. 15

COBB: That sort of balancing is exactly what the Court refused to do in Heller. 16

The Court concluded that sort of interest weighing was exactly what the 17

Second Amendment forbids. You know, unlike firearms technology that 18

has changed quite a bit over the years, knives have remained basically the 19

same since the adoption of the Second Amendment. 20

HARROW: That may be, but many circuits applying Heller and McDonald have 21

concluded that carrying arms outside the home is not at the core of the 22

Second Amendment’s historical protection and concluded that 23

10

prohibitions on carrying outside the home survive intermediate scrutiny. 1

There is a very serious problem with violence in our society, and 2

restrictions on dangerous weapons are directly related to dealing with 3

those problems. 4

COURT: Mr. Cobb I think I have heard enough to make a decision, do you have 5

anything else? 6

COBB: Only, your honor, that I think Heller and McDonald indicate that bearing 7

arms means more than simply in the home. The indictment should be 8

dismissed on both First and Second Amendment grounds. 9

COURT: I understand your position. I will take this under advisement and issue a 10

ruling in a few weeks. 11

The hearing concluded at 11:07 a.m. 12

11

STATE OF EAST JERSEY REVISED STATUTES ANNOTATED

§ 45:70 Dangerous Weapons.

I. Prohibition. Except as provided in paragraphs II and III below, no person shall carry on his person or in his vehicle, openly or concealed, any dangerous weapon.

II. Permit to Carry. A person may apply to the Director of the Department of Safety for a permit to carry a dangerous weapon. The Director shall grant the permit if the person: A. Demonstrates an actual need for the dangerous weapon, which shall only

include: 1. An actual and particularized threat to the person’s life, or 2. Necessity to carry a dangerous weapon as a condition of

employment when such condition actually related to the performance of the person’s job responsibilities;

B. Has no criminal history, as determined by a fingerprint based background check;

C. Submits a passport sized photograph, taken no more than 6 months prior to the application, for the permit;

D. Passes a training class of at least 10 hours in length, the content of which shall be prescribed by the Department of Safety; and

E. Pays a $150 application fee. III. Exceptions. The provisions of this section do not apply to:

A. Transporting a dangerous weapon in a vehicle if the dangerous weapon is in a compartment of the vehicle not accessible to the driver, and, if the dangerous weapon is a firearm, the firearms is not loaded and any ammunition is in a separate container;

B. A person in that person’s home or place of business; C. A person in a civic organization while parading; D. Conducting a weapon or martial arts demonstration; E. Conducting any sort of exhibition which requires the use of a dangerous

weapon; F. Use of the dangerous weapon during target practice, safety instruction, or

similar activity on an established firing range or similar facility; G. Law enforcement officers; H. The Governor; I. Duly elected members of the legislature; J. Judges of this state, or federal judges whose chambers are in this state; K. A person possessing a valid hunting license while actively engaged in

hunting; L. A person possessing a valid fishing license while actively engaged in

fishing; M. Members of the United States military, or the National Guard; or N. A person possessing the permit authorized in paragraph II while

possessing the firearm for the purposes associated with the need

12

demonstrated to receive the permit. IV. Penalty.

A. A person who violates this section shall be guilty of a class C felony and shall be imprisoned for no less than 1 year nor more than 3 years.

B. If the dangerous weapon is a firearm, or if the dangerous weapon is carried during the commission of a crime, a person who violates this section shall be guilty of a class B felony and shall be imprisoned for no less than 3 years nor more than 7 years. This sentence shall not run concurrently with any other sentence.

C. If the dangerous weapon is a firearm and it is carried during the commission of a crime, a person who violates this section shall be guilty of a class A felony and shall be imprisoned for no less than 7 years nor more than 14 years. This sentence shall not run concurrently with any other sentence.

V. Definitions. For the purposes of this section: A. A “dangerous weapon” is an item capable of producing death or serious

bodily injury to a person, including a: 1. firearm, 2. sword, 3. dirk, 4. nunchaku (“nunchuks”), 5. throwing star, or 6. knife that has one or more of the following:

a. a blade longer than 12 inches, b. a blade of any length with more than one sharpened edge, c. a fixed blade longer than 8 inches, or d. a folding, collapsible, or retractable blade of any length,

where the blade in a closed position is protected by the handle, and that opens with the aid of a spring or gravity.

B. “Law enforcement officers” include: 1. Officers of the state, city, or town police departments, 2. Agents of the United States government that are defined as Law

Enforcement Officers under federal law, 3. County Sheriffs and their deputies, 4. Bailiffs and court officers responsible for court security, 5. The Attorney General and assistant, deputy, or assistant deputy

attorneys general, and 6. County Attorneys and city prosecutors and their assistants and

deputies. Source: 1911 ch. 45. Current as of 2014 regular session.

13

DEFENSE EXHIBIT “A” (not to scale)

14




v.

FALAK GAGAN,

Defendant.

Memorandum Order Denying Defense

Motion to Dismiss Indictment


BRADY, J. Superior Court Judge:

Defendant, Falak Gagan, moved to dismiss his indictment for possession of a dangerous

weapon in violation of East Jersey Revised Statute Annotated § 45:70 on the grounds that the

statute as applied to his conduct violates both the Free Exercise Clause of the First Amendment

of the United States Constitution and the Second Amendment of the United States Constitution.

For the reasons stated below, I find no merit to his arguments, and therefore deny his

motion to dismiss the indictment.

I. Facts1

On May 28, 2012, the town of Chesterfield, East Jersey, held its annual Memorial Day

Parade that ended with a ceremony in Liberty Park. Those parading consisted primarily of

1 The facts are undisputed. The facts as presented here include the factual assertions in the indictment, and

those made by Gagan in his motion and the state in its response.

15

members of civic organizations including the American Legion, the Veterans of Foreign Wars,

the Daughters of the American Revolution, and the Sons of Union Veterans of the Civil War.

Many of the parading members of these organizations were in period attire carrying period

appropriate weapons, including civil war era swords and World War I and World War II rifles.

Near the end of the ceremony many of the rifles were loaded with blanks and fired. After the

conclusion of the ceremony at about 1:30 in the afternoon, Mr. Falak Gagan, a lifelong resident

of Chesterfield, was in the park, having just observed the parade.

Mr. Gagan is a member of the Sikh religion. One of the tenets of the Sikh religion is a

belief that an adherent must carry a knife or sword called a kirpan. The kirpan Mr. Gagan carries

is a 12-inch curved knife with a fixed blade of 9 inches. As an observant Sikh, Mr. Gagan

observes all five aspects of Khalsa.2 He believes that he must carry a functional kirpan at all

times, in part, to defend himself and others.3 See Amarjeet S. Bhachu, A Shield for Swords, 34

Am. Crim. L. Rev. 197, 203 (1996) (explaining that the kirpan is an “instrument of compassion”

to be used “to protect and safe-guard [the] dignity or honour of others.”) This is what led to the

incident for which Mr. Gagan is charged.

As Mr. Gagan turned to leave the parade route, Officer John Shepard spotted Mr.

Gagan’s kirpan sheathed on his belt. Officer Shepard approached Gagan and asked him about

the knife and whether he had a permit to carry a dangerous weapon. Gagan explained that he

2 Amarjeet S. Bhachu, A Shield for Swords, 34 Am. Crim. L. Rev. 197, 202 (1996) (“Upon entry into the

Khalsa, Sikhs were to wear five symbols that would identify them as members: uncut hair (kes), a comb worn in the

hair (kangha), a steel bracelet (kara), short breeches (kachh), and a sword or dagger (kirpan).”). 3 The state conceded the sincerity of this belief.

16

was required to carry the kirpan by his religion, but he did not have a permit.4 Officer Shepard

told Gagan to turn over the knife, and when Gagan refused, Shepard arrested him.

II. Free Exercise Claim

The First Amendment to the United States Constitution states that “Congress shall make

no law . . . prohibiting the free exercise [of religion].” This prohibition applies equally to state

legislatures. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). The right to exercise one’s

religion means “first and foremost, the right to believe and profess whatever religious doctrine

one desires.” Employment Div. v. Smith, 494 U.S. 872, 877 (1990). When it comes to conduct,

however, the Free Exercise clause only prohibits governments from specifically targeting

religiously motivated conduct for special reprobation. Id. at 877–78. The Constitution does not

require exemptions from neutral laws of generally applicability for religiously motivated

conduct. Id. at 878–79. As long as the law is rationally related to a legitimate government

interest, the religious conduct must give way to the generally applicable law. Id.; see also

Reynolds v. United States, 98 U.S. 145, 166–67 (1878) (“Can a man excuse his practices to the

contrary because of his religious belief? To permit this would be to make the professed doctrines

of religious belief superior to the law of the land, and in effect to permit every citizen to become

a law unto himself.”).

Citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 524

(1993), counsel for Mr. Gagan argues that the exemptions in the law means it is no longer

generally applicable under Lukumi. This is in error. The mere presence of exemptions does not

4 Gagan also stated he had applied for a permit, citing the requirements of his religion as his justification for

needing the permit, but the application was denied. Although he satisfied all the other requirements for obtaining a

permit, the state denied his permit application solely on the grounds that his reason for needing the weapon was

insufficient. Because Gagan cannot demonstrate a particular threat to his life or that his job requires him to carry a

weapon, he cannot provide the justifications required by the statute to obtain a permit.

17

mean a law is not generally applicable. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1135 (9th Cir.

2009). Rather only “religious gerrymandering” of the law to prohibit only religiously motivated

conduct makes a law not generally applicable. Lighthouse Inst. for Evangelism, Inc. v. City of

Long Branch, 510 F.3d 253, 265 (3d Cir. 2007) (citing Lukumi, 508 U.S. at 536–37). Defendant

has failed to show that this law meets that test. Although there are many exceptions to the law,

the law still prohibits vastly more secularly motivated conduct than religiously motivated

conduct. One may not simply choose to carry a dangerous weapon; unless one has a good reason

for needing the weapon, such as hunting, fishing, or being a law enforcement officer, one must

leave the weapon at home. E.J. Rev. Stat. Ann. § 45:70 III, G, K, & L. This prohibition applies

equally to religious and non-religious persons. Without some indication of discriminatory intent,

Mr. Gagan cannot establish that the law is not generally applicable. See Yellowbear v. Lampert,

741 F.3d 48, 61 (10th Cir. 2014) (“[A] law's underinclusiveness might bespeak neither a shaky

commitment to the asserted compelling interest nor any discriminatory intent.”).

Mr. Gagan also contends that the law must survive strict scrutiny for First Amendment

purposes because he is asserting a “hybrid right” also involving the Second Amendment right to

carry the weapon. The Courts of Appeals have split several ways about the reference in Smith to

hybrid rights. I am convinced based on the reasoning of the Second, Third and Sixth Circuits,

and Justice Souter’s concurrence in Lukumi, that there is no tenable means of giving cognizance

to a so-called “hybrid right.” See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

U.S. 520, 567 (1993) (Souter, J., concurring) (“And the distinction Smith draws strikes me as

ultimately untenable”); Combs v. Homer-Ctr. Sch. Dist., 540 F.3d 231, 247 (3d Cir. 2008);

Leebaert v. Harrington, 332 F.3d 134, 144 (2d Cir. 2003); Watchtower Bible & Tract Soc. of

New York, Inc. v. Vill. of Stratton, 240 F.3d 553, 562 (6th Cir. 2001), rev’d on other grounds,

18

536 U.S. 150 (2002) The suggestion of so-called “hybrid rights” was merely dicta and does not

provide an alternative means to rehabilitate an otherwise meritless Free Exercise claim.

Because the law prohibiting carrying a dangerous weapon5 is a neutral law of general

applicability, it merely needs to survive rational basis review. Grace United Methodist Church v.

City Of Cheyenne, 451 F.3d 643, 649 (10th Cir. 2006). This it clearly does. The state obviously

has an interest in avoiding armed violence against its citizens, and if the legislature concluded

that restricting carrying dangerous weapons in public would further that interest, it is not for this

court to say that that conclusion is irrational.

III. Second Amendment Claim

Having concluded that Gagan’s Free Exercise claim fails, I turn now to his Second

Amendment claim. The Second Amendment to the United States Constitution protects an

individual right to keep and bear arms for self-defense in the home. District of Columbia v.

Heller, 554 U.S. 570, 636 (2008).

The federal circuits have developed a framework for considering Second Amendment

claims. First, a court considers whether the activity claimed is within the scope of the Second

Amendment. If so, the court must determine and apply the appropriate level of scrutiny based on

how much the regulation in question burdens the right to bear arms. See Nat'l Rifle Ass'n of Am.,

5 Even though Mr. Gagan is only asking to carry a knife, it must be remembered that the law at issue here

prohibits carrying firearms as well as knives. Although knives may be less dangerous than firearms, if Mr. Gagan

were given a religious exemption from the statute, the same arguments could be made to seek a religious exemption

for carrying a firearm. See James E. Wheeler, God, Guns, and Others: Why Restrictions on Carrying Firearms in

Church Conflict With a Moral Duty to Defend Others, March 13, 2014,

http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2409483_code2101950.pdf?abstractid=2409483&mirid=1

(arguing that restrictions on carrying firearms in church interfere with a religiously motivated duty to defend others).

19

Inc. v. BATFE, 700 F.3d 185, 194 (5th Cir. 2012), cert. denied, 134 S. Ct. 1364 (U.S. 2014)

(collecting cases from the Fourth, Sixth, Seventh, Tenth, and D.C. circuits).

Assuming, inter alia, that knives are arms within the meaning of the Second

Amendment,6 the right to keep and bear arms under the Second Amendment is not unlimited.

Heller, 554 U.S. at 626. Although in Heller the Supreme Court recognized that courts have

upheld states’ prohibitions on carrying concealed weapons for over a century, the Court

emphasized that its opinion should not cast doubt on certain “longstanding prohibitions on the

possession of firearms.” Id. It reiterated that caveat when it held the right to keep arms in the

home for self-defense applied against the states. McDonald v. City of Chicago, 561 U.S. 742,

130 S. Ct. 3020, 3047 (2010) (citing Heller, 554 U.S. at 626).

The Supreme Court in Heller and two circuit courts have recognized that restrictions

ranging from requiring demonstration of a need to carry a weapon to outright bans on carrying

concealed weapons have existed in many states for nearly a century. Heller, 554 U.S. at 626;

Drake v. Filko, 724 F.3d 426, 432 (3d Cir. 2013), cert. denied, 134 S. Ct. 2134 (2014);

Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 85 (2d Cir. 2012), cert. denied, 133 S. Ct. 1806

(2013). Heller focused on the right to possess arms within the home and did not hold that right

extends to carrying arms in public. Drake, 724 F.3d at 430. I conclude that the statutory

6 See Heller, 554 U.S. at 581-82 (interpreting “arms” to mean any weapon); State v. Kessler, 614 P.2d 94, 98

(Or. 1980) (holding “swords, hatchets, knives, and pikes” are included within the meaning of “arms”); David B.

Kopel et. al., Knives and the Second Amendment, 47 U. Mich. J.L. Reform 167, 192 (2013). But see State v. Kerner,

107 S.E. 222, 224 (N.C. 1921) (stating that a “bowie knife, dirk, [or] dagger” was not an “arm”); City of Seattle v.

Montana, 919 P.2d 1218, 1227 (Wash. 1996) (Durham, C.J., concurring); Id. (Alexander, J. concurring) (a majority

of justices concurring, when no opinion obtained a majority, in upholding a restriction on carrying knives on the

basis that certain knives are not arms within the meaning of the Washington state constitutional protection for

bearing arm); cf. Heller, 554 U.S. at 581–82 (citing a founding-era thesaurus, 1 J. Trusler, The Distinction Between

Words Esteemed Synonymous in the English Language 37 (3d ed. 1794), for the proposition that “arms” are

“instruments of offence generally made use of in war”); id. at 625 (“[T]he Second Amendment does not protect

those weapons not typically possessed by law-abiding citizens for lawful purposes . . . .”).

20

restrictions on who may carry weapons in public and for what reasons they may do so are exactly

the type of longstanding prohibitions that fall outside the protections of the Second Amendment.

Having held that the challenged restrictions on carrying weapons in public are

permissible under the Second Amendment, I could end the inquiry. However, as several other

courts have done, I nevertheless consider the appropriate level of scrutiny that would apply were

the restrictions within the scope of the Second Amendment. Id.

The right to armed self-defense in the home is the core of the Second Amendment right.

That right is not burdened by this law. See E.J. Rev. Stat. Ann. § 45:70 III, B. Even if the right

to carry firearms extends outside the home, this law does not substantially burden the core of the

Second Amendment right because those who need to defend themselves in public can do so. All

that an individual needs to do is demonstrate a particular need and they can get a permit. § 45:70

II. And the law allows individuals to carry a weapon for limited purposes upon a demonstrated

need to do so.

Because people who need to carry are able to do so, the burden is minimal. Thus, the law

need only survive intermediate scrutiny. Kachalsky, 701 F.3d at 93. The law easily meets this

burden. First, the government obviously has a substantial—arguably compelling—interest in

protecting its citizens. Id. at 97. It is hard to fathom any responsibility of the government that is

higher. Violence is prevalent in society today, and the weapons that the statute prohibits the

defendant from carrying could tragically increase the results of that violence. The restrictions on

carrying these dangerous weapons in public are reasonably related to the government’s interest

in protecting the public from violence, particularly given that those who have a provable need to

carry a weapon can do so, see § 45:70 II.

21

IV. Conclusion

Mr. Gagan has failed to demonstrate his conviction would violate either the First or

Second Amendment. Therefore his motion to dismiss the indictment is denied.

____________________ Dec. 14, 2012 Judge James Brady Date

22




v.

FALAK GAGAN,

Defendant.

Verdict


We, the jury, find the Defendant, Falak Gagan, guilty of possession of a dangerous weapon in violation East Jersey Revised Statutes Annotated § 45:70.

________________________ Jack Harkness Jury Foreman We, the jury, find the Defendant, Falak Gagan, not guilty of possession of a

dangerous weapon.

________________________ Jack Harkness Jury Foreman

23




v.

FALAK GAGAN,

Defendant.

Order and Judgment of Conviction


After the jury returned a verdict of guilty, the Defendant, Falak Gagan, made a

motion to set aside the verdict, reiterating the same arguments he made in his pretrial

motion to dismiss the indictment. For the reasons set out in the order of December 14,

2012, I deny the motion.

Because this is the Defendant’s first conviction and his conduct is religiously

motivated, I will sentence him to the minimum sentence required by the statute. Based

on the jury’s verdict, the Defendant is convicted of possession of a dangerous weapon in

violation East Jersey Revised Statutes Annotated § 45:70 and sentenced to one year’s

imprisonment.

The Defendant also moved to continue his bond while his appeal is pending. The

State does not oppose the motion. Because the Defendant has faithfully complied with

the conditions of the bond before trial, his risk of flight is minimal. Although the

24

presumption in favor of bail is reversed after a conviction, I find this is an appropriate

case for bond pending appeal. I therefore order that the Defendant’s bond be continued

during the course of any appeal.

____________________ March 15, 2013 Judge James Brady Date

25




v.

FALAK GAGAN,

Defendant.

Notice of Appeal


TO THE CLERK OF THE ABOVE-ENTITLED COURT:

PLEASE TAKE NOTICE that Defendant hereby appeals to the Supreme Court for the State

of East Jersey, from the judgment of conviction entered March 15, 2013.

Dated: March 18, 2013

Falak Gagan, By His Attorney,

____________________ Jayne Cobb Cobb, Washburne, & Tam, PLLC 500 Serenity Valley Chesterfield, East Jersey E.J. Bar # 127749

26

THE SUPREME COURT FOR THE STATE OF EAST JERSEY

FALAK GAGAN,

Appellant,

v.


Appellee.

Order Granting Appeal

Crim. App. No. 13:308

Upon consideration of the Defendant’s petition for leave to appeal from the judgment

entered in the Rockingham County Superior Court on March 15, 2013 it is hereby ORDERED

that the petition for leave to appeal is granted, and the case is set down for argument in the

current term of the court. The appeal is limited to the following two questions:

1. Does the application of East Jersey’s Revised Statute Annotated § 45:70 to deny the

defendant the right to carry a kirpan violate the Second Amendment to the United

States Constitution?

2. Does the Free Exercise clause of the First Amendment to the United States

Constitution prohibit convicting the defendant for possession of a dangerous weapon

when carrying that weapon is required by his religious beliefs?

_________________________

Charlton Heston

Chief Justice

East Jersey Supreme Court

27

THE SUPREME COURT OF THE STATE OF EAST JERSEY

FALAK GAGAN,

Appellant,

v.


Appellee.

Opinion

Crim. App. No. 13:308

HESTON, C.J. delivered the opinion of the Court.

Appellant, Falak Gagan, appeals his conviction for violating East Jersey Revised Statute

Annotated § 45:70. As the superior court’s opinion accurately describes, the facts relevant to

this appeal are undisputed. After the superior court denied his motion to dismiss the indictments

based on the First and Second Amendments, a jury found Mr. Gagan guilty. Then Mr. Gagan

made a motion to set aside the verdict reiterating his First and Second Amendment arguments,

adequately preserving these arguments for appeal. The court denied his motion and sentenced

him to one year’s imprisonment. Mr. Gagan appealed.

In this appeal, Mr. Gagan contends that the statute is unconstitutional as applied to him

under the First and Second Amendments to the United States Constitution. We agree and reverse.

28

I. Second Amendment Claim

Regarding Appellant’s claim that the statute is unconstitutional under the Second

Amendment, we begin by assuming, as the superior court did below, that a knife is an “arm” for

the purposes of the Second Amendment.

Although the Supreme Court has only expressly held that the Second Amendment

protects the right to possess weapons for self-defense in the home, the Court’s opinion in Heller

carefully avoided determining how far the right extends. District of Columbia v. Heller, 554

U.S. 570, 635 (2008) (“But since this case represents this Court's first in-depth examination of

the Second Amendment, one should not expect it to clarify the entire field . . . .”) Nevertheless,

there are several things we glean from that opinion. The first step of the analysis of any Second

Amendment claim is the text of the amendment. Id. at 576–77, 584 (analyzing the text of the

amendment and the words “bear arms”). The superior court failed to undertake this necessary

step. The most natural meaning, both now and at the adoption of the amendment, of “bear arms”

is carrying weapons. Id. at 584 (“At the time of the founding, as now, to “bear” meant to

“carry.”). It would be nonsensical to speak of bearing arms solely within one’s home. Peruta v.

Cnty. of San Diego, 742 F.3d 1144, 1152 (9th Cir. 2014); Moore v. Madigan, 702 F.3d 933, 936

(7th Cir. 2012). Indeed, given that the heart of the Second Amendment right is self-defense, it

would be nonsensical to suggest that the right did not reach outside the home, where the need to

defend oneself might be heightened.1 Peruta, 742 F.3d at 1152.

Given our holding that the right to bear arms extends outside the home, the next step is to

consider the burden the state’s restriction places on that right. Had the state only prohibited

1 We nevertheless do not question the Supreme Court’s statement that the right to self-defense is at its apex in

the home. Heller, 554 U.S, at 635 (“And whatever else it leaves to future evaluation, it surely elevates above all

other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”).

29

concealment or open carrying of weapons, the restriction would not have created a substantial

burden on the right to bear arms for self-defense outside the home. Id. at 1172. However, by

prohibiting, with limited exceptions, both open and concealed carry, the statute effectively

prohibits most individuals, including Mr. Gagan, from exercising their right to bear arms outside

the home.

Thus, the question is not whether the [East Jersey] scheme . . . allows some people

to bear arms outside the home in some places at some times; instead, the question

is whether it allows the typical responsible, law-abiding citizen to bear arms in

public for the lawful purpose of self-defense. The answer to the latter question is a

resounding “no.”

Peruta, 742 F.3d at 1169 (emphasis in original). Although the Supreme Court declined to

address the scrutiny to be applied in analyzing Second Amendment claims, with the virtual

elimination of the right to carry a weapon outside the home for the purpose of self-defense, we

conclude that the state’s interest in public safety cannot justify the intrusion on the right to bear

arms outside the home. Even though the state’s interest is high, the Second Amendment takes

balancing that interest against the right to bear arms off the table. It is not the place of the

judiciary to declare “the Second Amendment extinct.” Heller, 554 U.S. at 636. Mr. Gagan must

be allowed to carry a weapon for self-defense outside the home.2

Ordinarily, given that we have overturned the conviction on one ground, it would not be

necessary to analyze the other constitutional claim. However, in light of the rapidly changing

nature of Second Amendment jurisprudence (Peruta was decided less than a month ago), we will

proceed to address Appellant’s Free Exercise claim as well.

2 We see no need to opine on how the state must restructure the law to allow him to carry, and thus we decline

to decide whether removing or easing the necessity requirement for the permit to carry would sufficiently respect the

right to bear arms. That decision will await the day when it is squarely before us; for today, we only need decide

that Mr. Gagan’s conviction cannot stand.

30

II. Free Exercise Claims

Mr. Gagan also contends that the law as applied to him violates his right to free exercise

of religion under the First Amendment to the United States Constitution. The First Amendment

guarantee of the free exercise of religion does not prevent the government from adopting neutral

laws of general applicability that incidentally burden a religion. Employment Div. v. Smith, 494

U.S. 872, 878 (1990). Mr. Gagan does not contest the facial neutrality of section 45:70 but

asserts that the statute is not generally applicable. In holding otherwise, the superior court

conflated the requirement for neutrality with the requirement for general applicability. As the

Supreme Court held in Lukumi, those requirements are related, and will often overlap, but are

distinct. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993).

Laws that are not neutral are unlikely to ever be generally applicable, but the reverse is not true.

Although the law is clearly neutral, it does not follow that it is generally applicable.

When the state exempts secularly motivated conduct, it must give equal consideration for

religiously motivated conduct. A law is not generally applicable if granting an exemption for

religiously motivated conduct would not impede the purpose of the law any more than the extant

exceptions for secularly motivated conduct. Lighthouse Inst. for Evangelism, Inc. v. City of Long

Branch, 510 F.3d 253, 266 (3d Cir. 2007). That is exactly the issue with this law. Although

some of the exceptions do not significantly interfere with the public safety rational, others do.

For example, the legislature determined politicians deserved an exception to allow them

to carry dangerous weapons, without a background check, see E.J. Rev. Stat. Ann. § 45:70 III, H

& I. This broad exemption surely undermines the interest in public safety as much as allowing

those like Mr. Gagan, who believes his religion requires him to carry a weapon, to exercise his

religious belief. Because the exemptions in the statute undermine the state’s interest as much as

31

accommodating Mr. Gagan’s religion would, the law is not generally applicable and the state

must demonstrate that refusing to grant him an exemption is the least restrictive means to protect

a compelling state interest.3 Fraternal Order of Police Newark Lodge No. 12 v. City of Newark,

170 F.3d 359, 366 (3d Cir. 1999).

This the state cannot do. Although we assume, without deciding, that the state’s interest

in public safety is compelling, the state has demonstrated it can serve that interest without

completely prohibiting an individual from possessing a dangerous weapon. Indeed, the state has

in place the mechanism to accommodate Mr. Gagan without undermining its interest. The

permit for carrying a firearm serves as a perfect vehicle for accommodating Mr. Gagan’s

religious belief, by allowing him a permit without requiring that he demonstrate an employment

requirement or threat to his life. E.J. Rev. Stat. Ann. § 45:70 II. Because the state has not

demonstrated that a failure to accommodate Mr. Gagan is the least restrictive means to further its

interest, Mr. Gagan’s conviction cannot stand.

III. Conclusion

For the foregoing reasons, Mr. Gagan’s conviction is reversed, and this case is remanded

to the Superior Court with instructions to dismiss the indictment.

3 Because we conclude the law is subject to strict scrutiny because it is not generally applicable, we need not

address Mr. Gagan’s contention that the law is subject to strict scrutiny because he asserts a hybrid of his First and

Second Amendment rights.

32

EAST JERSEY SUPREME COURT

FALAK GAGAN,

Appellant,

v.


Appellee.

Docket

Crim. App. No: 13.308

[All previous entries omitted]

May 1, 2013 – Petition Granted: the case is set for argument in the Fall 2013 term.

March 8, 2014 – Judgment entered: The Superior Court’s judgment is REVERSED.

33

THE SUPREME COURT

OF THE UNITED STATES

OCTOBER 2014 TERM


Petitioner

v.

FALAK GAGAN,

Respondent.

Petition for a Writ of Certiorari to the

Supreme Court of East Jersey

No. 14:410

Petitioner in the above-captioned matter prays that a writ of certiorari be issued to review the

judgment of the Supreme Court of the State of East Jersey, entered March 8, 2014 reversing the

judgment of the Rockingham County Superior Court.

Dated: April 5, 2014

________________________

Warwick Harrow

Assistant County Attorney

Rockingham County Attorney’s Office

1500 Whitefall Drive

Chesterfield, East Jersey

E.J. Bar # 143752

34

THE SUPREME COURT

OF THE UNITED STATES

OCTOBER 2014 TERM


Petitioner

v.

FALAK GAGAN,

Respondent.

Order Granting Certiorari

No. 14:410

Per Curiam:

The petition for a Writ of Certiorari to the Supreme Court of the State of East Jersey is

hereby granted.

IT IS ORDERED that the above captioned cause be set down for argument in the October

Term of 2014, with argument limited to the following issues:

1. Does the state of East Jersey’s application of East Jersey’s Revised Statute Annotated

§ 45:70 to deny a Sikh the right to carry a kirpan violate the Second Amendment to

the United States Constitution?

2. Does the Free Exercise clause of the First Amendment to the United States

Constitution prohibit convicting the defendant for possession of a dangerous weapon

when carrying that weapon is required by his religious beliefs?

Dated: June 30, 2014

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