The Threat of History

The arrest of 72-year-old retired school teacher, Gordon Van Gilder, for possession of an unloaded flintlock pistol between 250 and 300 years old, in the Garden State has been roundly criticized for its outrageousness and absurdity.  Clearly, he was no intentional criminal, despite his treatment upon arrest as a threat to society.

But New Jersey law prohibiting possession of a weapon, NJSA 2C:39-5, expressly includes a curious phrase:

Any person who knowingly has in his possession any handgun, including any antique handgun, without first having obtained a permit to carry the same . . . is guilty of . . . a crime of the second degree.

That this magnificent historical artifact, this flintlock, should be a crime is, standing alone, ridiculous, but as Van Gilder correctly notes to Charles C.W. Cooke,

 I did break the law — to my shock,” Gordon Van Gilder tells me over the phone. He sighs. “Legally, they’re right.”

And indeed, they being the people in whom the state reposes its trust to exercise discretion so as not to bring further shame upon New Jersey, are right.  But what requires some credulity stretching is why the New Jersey legislature, in its abundance of wisdom, chose to include the phrase, “including any antique handgun,” in its law.

As a response to Van Gilder’s arrest and prosecution, a state assemblywoman has announced plans to amend the law to remove the phrase:

In the announcement, Assemblywoman Caroline Casagrande (R – Monmouth) said the legislation was in response to charges faced by Gordon Van Gilder, the former teacher facing a possible 10-year prison sentence after police found a flintlock pistol in his car in November.

“There is a complete lack of common sense when a 72-year-old man is facing a decade in prison for possessing an unloaded, 300-year-old antique pistol,” she said in the release. “Granting this exemption will put New Jersey in line with federal law that already exempts the possession of firearms manufactured prior to 1898.”

Of course, such announcements after the fact are common. Some lawmaker always comes up with the “solution,” whether it’s criminalizing or decriminalizing, afterward.  But there is nothing in Casagrande’s statement that wasn’t known before, and yet there’s that ridiculous phrase, and Van Gilder being prosecuted for it.

Certainly New Jersey was aware that antique firearms are exempt under federal law.  Someone in the State, at least, even if only former United States Attorney Chris Christie.  But the phrase was deliberately inserted in this law because someone decided that the threat of crime from flintlocks was sufficient to ignore the fact that the guns are historical artifacts, a bit of American history, a thing of curiosity and fascination.  No, it was a gun!  Guns are bad. It’s a crime!

Like Van Gilder, I am a collector of old stuff. While much of our history has been preserved, most has not.  Any item that is 250 or 300 years old is an item worthy of interest; not all of it is worthy of protection, per se, but it is certainly worthy of thought about protecting it.

Thought. The same thing that caused the New Jersey legislature to purposefully decide to include antique handguns within the scope of its criminal law.  And enough lawmakers said “yea” to make it happen.

Crafting legislation that expressly includes such a phrase reflects two concerns.  First, someone (and by someone, I mean any and all legislators who voted to enact this law) decided that the fear of harm, the potential that someone would draw an antique gun and shoot someone, was sufficiently serious that it demanded its inclusion.

Second, no one thought it sufficiently important to draft the law with sufficient care that, even assuming the first concern to be real, guys like Van Gilder who are stewards of historical artifacts wouldn’t be confused with some robber who used a flintlock to knock off a bank.  They don’t charge extra for the extra words needed to draft a law to include that which, for whatever reason, legislators think is needed while exempting that which is not.  Yet, no one bothered to do so in New Jersey.

The first concern reflects a knee-jerk reaction that has become all-too-typical, that the fear that someone might do something bad and there is no law that criminalizes it, is more than some lawmakers can stand.  It’s what happens when fears are reduced to their most simplistic form, such as guns = crime.  On its surface, many will agree, particularly if they are not of the RKBA variety.  New Jersey, like New York, is not a state with a lot of Second Amendment fans.

At the time of enactment, it’s fairly easy to see the argument advanced that some gangbanger in Newark could get their hands on an old gun and use it to terrorize Weequahic Park.  Indeed, cries of a giant antique gun loophole are easy to imagine, with the market in antique firearms going through the roof as Jersey criminals fight to get their hands on guns that will circumvent the law.

Much has been made here of laws that are drafted with such concerns in mind, particularly the laws against revenge porn and bullying, which are careful not to leave any loophole that might let any criminal escape conviction, even though they sweep in people who aren’t criminals at all.  Gordon Van Gilder is no criminal, though his possession of the flintlock makes him one.

But while most of the concern relates to criminalizing the exercise of constitutional rights, this law shows how the knee-jerk need to make sure no one can circumvent the law by inclusion of antique handguns creates a harm of an entirely different nature: not only has a collector of historical artifacts been turned into a criminal by this law, but the flintlock, this 250 year (or more) old piece of our heritage, becomes contraband.

Assuming the flintlock survives ballistics testing, so the state can make sure it’s not the same flintlock used in some other flintlock shooting, it will not survive the destruction of contraband at the termination of this prosecution.  Will the State of New Jersey sentence an antique flintlock to death?  Will they melt it down?

As ridiculous as it is to prosecute Van Gilder for its possession, the horror and insanity of destroying a piece of history demonstrates a depth of stupidity that should shock even New Jersey.  History belongs to all of us, and it’s not up to New Jersey to destroy it.

29 comments on “The Threat of History

      1. Not Jim Ardis

        Does it have to be a person’s name? Aren’t they sometimes like mission statements?

        The New Jersey Blows Act of 2015…

  1. Kathleen Casey

    No sense of history. New Jersey was a Revolutionary War hotbed. The flintlock may have been part of it. Pathetic.

    1. Chris Barnett

      You assume we’d want them?

      And even our lawmakers managed to find words to exclude antique guns from the requirement to have a firearms certificate (a permit) – albeit that best they could come up with was that you are safe if it is possessed “as an ornament or curiosity”.

  2. Jim Majkowski

    Just shows how well the executive makes use of the tools the legislature provides, and how right Lincoln (to test a man’s character, give him power) and Brandeis (readers of this blawg won’t need more) were .

    Although the stakes for this defendant are much higher, I am reminded of when the Labor Dept charged the Class A Savannah Cardinals with child labor violations because the batboy sometimes worked past 7 on school nights. You can read about it in Locked in the Cabinet , by Robert Reich. Not only because of the silliness of applying the law to that situation, but also because of the pomposity of the pipsqueaks who administered it. Per Reich, just before he ordered the enforcement action undone, he said , regarding the responsible functionaries, “If they become demoralized and stop enforcing the law nonsensically, so much the better.”

    1. SHG Post author

      And yet, those crying for new laws refuse to recognize how their dream laws are turned into someone else’s Kafkaesque nightmare. Because that can never happen.

  3. John

    I originally developed this as a flowchart over a decade ago. It comes up over… and over… and over again. I posted it here already, so the abbreviated form:

    If lawmakers think a friend might commit an offense, the sentence is a tap on the wrist (not a slap: that is too harsh). If lawmakers think nobody they know will commit it, make it punishable by 5 years (or 15 years) or more in prison and justify it with the worst cases it will apply to. Under no circumstances is a lawmaker to look at typical cases and he should be quick to call anyone who does “soft on crime” (i.e., respectful of civil rights). When a typical case makes the news, pretend this was entirely unexpected. Never suggest law enforcement is going outside the intent of the law. Only criminal lovers do that.

    So, decimate the life savings of 100+ retired couples living on fixed income? Misdemeanor with an apologetic probation officer. Teenage hijinks? Second degree felony!

  4. Bill St. Clair

    It used to be that a crime required a victim, or at least a credible threat to victimize somebody. Nowadays, possession of nearly anything that COULD be used to harm someone, including yourself, is criminal.

    Probably won’t be long before they start arresting all men for rape and all women for prostitution. We have the equipment.

  5. Jesse

    I can’t believe they would claim they are going to perform “ballistic tests” on it.

    Do they have the ball from Aaron Burr, and some dude just turned up shot in Jersey City and they think Alexander Hamilton is on a crime spree?

    1. Anne Krone

      The flintlock supposedly turns 300 this year, so even in Burr’s time it would’ve been 90 years old.

  6. EH

    I went snooping for the legislative history of this law and was only able to come up with the sponsors:

    (End. Note: Links deleted per rules.)

    Jones appears to be an especially meddlesome character.

    1. EH

      This part of the Statement at the end of the law seems relevant:

      “This bill restricts the sale, importation, possession and carrying of handguns except by certain authorized persons. Antique handguns and handguns determined by the Superintendent of State Police to be collectibles, commemoratives or curios are exempted”

    2. SHG Post author

      If this was a one-off problem, then the sponsors would matter. It’s not. They don’t. It’s the idea, and it’s not limited to this law or this state.

  7. John Barleycorn

    What? Not one one of your commentators are thanking the officer who pulled this guy and his friend over in the first place.

    I especially enjoyed the officer threatening the dreaded dog sniff if they didn’t let him search the vehicle without a warrant. The officer should get a merit badge for making sure the two old guys weren’t hiding anything else like a suitcase of cash to go buy a truckload of flintlocks to arm the Seniors Revolutionary Sect.

    Makes me feel all warm and fuzzy inside knowing that, at least in NJ, you don’t have to worry about the SRC.

      1. Ken Hagler

        Would it have mattered if he hadn’t? The cop would have just kept him there until another cop walked a dog around the car to give them permission to search anyway.

  8. KP

    “”It takes a lot of the wind out of the problem when he acquiesced.””

    Otherwise I’m sure they would have beaten the wind out of him until he did!

  9. Michael

    This case seems like one where a reasonable prosecutor would offer some sort of deferral or pre-trial diversion, assuming the law really does treat an antique flintlock pistol no differently than a modern handgun. That wouldn’t be perfect, but it would avoid absurdity. If the law forbids that sort of resolution, the state could always rest without calling any witnesses at trial. Would there really be any political fallout for not convicting this guy?

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