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Abstract
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On January 11, 2022, New Jersey Assembly Minority Leader John DiMaio and Minority Whip Parker Space introduced a bill to eliminate the state's prohibition against the possession of "hollow point" and "dum-dum" ammunition.1 Assemblymen DiMaio and Space filed similar bills in each of the three prior legislatures.2 Four months later, Governor Phil Murphy, speaking shortly after the Uvalde, Texas, school shooting, challenged the legislature to put up "every bill seeking to unravel our gun laws," so the public will know which way their legislators vote, mentioning DiMaio and Space's bill as an attempt to "legaliz[e] hollow- point 'cop killer' bullets."3
Notwithstanding the governor's challenge, the New Jersey Legislature will not likely act on this bill or its future iterations. However, the provision it seeks to overturn may be vulnerable anyway. In June 2022, the Supreme Court handed down its decision in New York State Rifle & Pistol Association v. Bruen, which recognized that the right protected by the Second Amendment extends beyond merely possessing firearms in the home for self-defense to include carrying them in public as well.4 The Court also rejected the existing method of analyzing Second Amendment claims adopted by many Courts of Appeals after the 2008 landmark case of D.C. v. Heller,5 upending almost fifteen years of Second Amendment jurisprudence in the process.6
Gun control proponents recognize New Jersey as one of the states with the strongest gun control regimes in the country.7 Gun rights advocates are looking for easy wins to cement the gains they realized in Bruen, so it may be open season on the state's bevy of strict gun laws.8 New Jersey is the only state to regulate the possession of hollow point ammunition.9 This restriction, among others of more national significance, may soon be in the crosshairs.
Unrelated to Second Amendment developments, New Jersey's hollow point restrictions should be further undercut by a recent district court decision, now pending appeal, in an as-applied challenge based on federal supremacy. A group of retired law enforcement officers successfully challenged the law as applied to them, arguing that the federal Law Enforcement Officers Safety Act ("LEOSA") preempts the law.10 The challengers' success should implicate this law as an Equal Protection violation.
This Comment argues that because of the convergence of the changing Second Amendment legal landscape post-Bruen, the Equal Protection question raised by the LEOSA suit, and the ubiquity and popularity of hollow point ammunition in the United States, New Jersey's hollow point ammunition restrictions are low-hanging fruit for gun rights advocates to attack in the courts. While a challenge may have failed before Bruen, the more robust Second Amendment protection that decision affords, combined with the LEOSA suit and the functional qualities of hollow point ammunition which undermine the regulatory purpose, a challenger should now succeed in a suit seeking to overturn the law. Part II of this Comment introduces the New Jersey hollow point restrictions and its history, as well as the history of the development and adoption of, and controversy surrounding hollow point rounds. Part III discusses the state of Second Amendment jurisprudence, tracking the development of the means-end scrutiny rejected by Bruen and analyzing the new methodology supplied by that decision. Lastly, Part IV discusses the LEOSA preemption suit, and how it could implicate an Equal Protection claim against the hollow point restrictions if the law enforcement challengers ultimately prevail.
Language: en |