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.