Assault Firearms

I. Introduction

In recent weeks there has been a question about themeaning of the term “substantially identical” in New Jersey’s assault firearmslaw. The Legislature addressed this question in the provisions of the Code ofCriminal Justice, and despite the clarity of the law, it is appropriate for theAttorney General to provide guidance to the prosecutors in order to ensure thatthe law is administered uniformly and effectively throughout the State. N.J.S.A.52:17B-98. I am directing the prosecutors, as chief law enforcement officers oftheir respective counties, to share this guidance with local police departments,who in turn should provide copies of this memorandum to any member of the publicwho requests information on assault firearms.

II. Guidelines

New Jersey law lists firearms that are prohibited”assault firearms.” N.J.S.A. 2C:39-1w.(1). In addition, the law provides thatthe term “assault firearm” includes, “Any firearm manufactured under anydesignation which is substantially identical to any of the firearms listed” inthe law. N.J.S.A. 2C:39-1w.(2). Thus, a firearm is an assault firearm if it isincluded on the list of banned firearms or if it is manufactured under adifferent designation than a firearm on the list but is “substantiallyidentical” to a specific listed firearm.

We believe “substantially identical” is clear byits plain meaning. The Criminal Code provides that the statutes in the Code mustbe read “according to the fair import of their terms.” N.J.S.A. 2C:1-2c. TheCriminal Code explains that where language may be susceptible to differentreadings it must be construed to “give fair warning of the nature of the conductproscribed.” N.J.S.A. 2C:1-2a.(4), c. Simply put, thephrase “substantially identical” must be given its plain meaning, one that givesfair warning.

The term “substantial” means pertaining to thesubstance, matter, material or essence of a thing. The term “identical” meansexactly the same. Hence, a firearm is substantially identical to another only ifit is identical in all material, essential respects. A firearm is notsubstantially identical to a listed assault firearm unless it is identicalexcept for differences which do not alter the essential nature of the firearm.

The following are examples of manufacturer changesthat do not alter the essential nature of the firearm: name or designation ofthe firearm; the color of the firearm; the material used to make the barrel orstock of the firearm; the material used to make a pistol grip; a modification ofa pistol grip. This is not an exclusive list.

A semi-automatic firearm should be considered to be”substantially identical,” that is, identical in all material respects, to anamed assault weapon if it meets the below listed criteria:

A. semi-automatic rifle that has the ability toaccept a detachable magazine and has at least 2 of the following:

  1. a folding or telescoping stock;
  2. a pistol grip that protrudes conspicuously beneaththe action of the weapon;
  3. a bayonet mount;
  4. a flash suppressor or threaded barrel designed toaccommodate a flash suppressor; and
  5. a grenade launcher;

B. a semi-automatic pistol that has an ability toaccept a detachable magazine and has at least 2 of the following:

  1. an ammunition magazine that attaches to the pistoloutside of the pistol grip;
  2. a threaded barrel capable of accepting a barrelextender, flash suppressor, forward handgrip, or silencer;
  3. a shroud that is attached to, or partially orcompletely encircles, the barrel and that permits the shooter to hold thefirearm with the nontrigger hand without being burned;
  4. manufactured weight of 50 ounces or more when thepistol is unloaded; and
  5. a semi-automatic version of an automatic firearm;and,

C. a semi-automatic shotgun that has at least 2 ofthe following:

  1. a folding or telescoping stock;
  2. a pistol grip that protrudes conspicuously beneaththe action of the weapon;
  3. a fixed magazine capacity in excess of 5 rounds;and
  4. an ability to accept a detachablemagazine.

III. Inquiries fromPrivate Citizens

Law enforcement officers should, whenever possible,attempt to be helpful and to respond to inquiries concerning particularfirearms. Private citizens should also be encouraged to consult with their ownattorneys and, where necessary, referred to the Firearms Unit of the Division ofState Police.

IV. Purpose and Effect of theseGuidelines

In enforcing this law, prosecutors and policeshould remember that an assault firearms offense requires proof that thedefendant knows he or she possesses an assault firearm, e.g., that the defendantknows that the firearm is “substantially identical” to one of the named assaultweapons.

These guidelines should be followed by all countyprosecutors and all law enforcement officers in this State so that the State’sassault firearms laws will be uniformly enforced throughout theState.