No one will stop you from drinking with a gun in NJ

Hit the roads after two beers, let your blood alcohol level slide over .08 percent, and you're looking at severe fines. Maybe even several months in jail. One legislator is looking to make a third offense an indictable offense — New Jersey's equivalent of a felony.

But handle a handgun after a night of drinking at home — no matter how smashed you get — and you're still on the right side of the law. If you're one of the few New Jerseyans with a notoriously hard-to-get carry permit, no one can stop you from saddling up to a bar and kicking back a few while your concealed firearm is on you.

"It's interesting," said Jef Henninger, a Tinton Falls-based attorney specializing in gun permits, and a gun rights advocate. "In other states, where they have different gun laws, they do make that distinction – in terms of having a gun in the presence of alcohol, or while drinking."

It's a surprising departure from the norm for a state otherwise known for some of the strictest gun laws in the nation. And it's an area of law that would be addressed in one, specific respect if friends of a Piscataway man shot and killed by an off-duty Newark cop at a Union bar last week were to get their way. They'd like to make it illegal for an off-duty officer to carry service weapons into a bar where the officer plans to consume alcohol.

"Make it illegal to mix guns and alcohol, so this might not leave another daughter, wife mother, and friends without someone they love," they wrote in a change.org petition.

There's much still unknown about that altercation. Several loved ones of the deceased, Michael Gaffney, have been rallying around the hashtag #justiceforgaffney on Twitter and Facebook, promoting the petition and calling for charges against the officer. Union County authorities have said that they're investigating the incident as they would any police-involved shooting — which is to say it'll be judged by the same criteria as if the officer was on duty.

The Union County Prosecutor's Office could find the officer was defending himself or others. If it determines the officer wasn't justified in using force the officer could potentially face both disciplinary and criminal charges.

Several friends of Gaffney's have said in social media posts and on the petition the officer was drinking before the altercation. Gaffney's mother told New Jersey 101.5 as much Tuesday; she wasn't present for at the bar but said she's spoken to people who were. Authorities have made no statement about how much the officer may have had to drink or whether alcohol played a roll in the incident.

There is one legal prohibition regarding drinking and carrying weapons that affects police officers — in the same law that lets them have guns almost anywhere.

The federal Law Enforcement Safety Act lets active and retired law enforcement carry their firearms anywhere in the nation without first getting permits from foreign states — provided their own agencies let them do so, and provided they're not the subject of disciplinary actions or otherwise disqualified. That federal law says the officer can't be intoxicated while carrying the firearm — though it doesn't specific a blood alcohol level or other threshold.

New Jersey law is basically silent on the issue.

Neither New Jersey's code of criminal justice nor its administrative code address drinking while handling or carrying a weapon. They do, however, prohibit alcoholics (along with anyone suffering from a mental or physical defect that would make handling a firearm unsafe) from getting gun purchase or carry permits.

Police departments also have individual policies for use and handling of their service weapons, which may address consumption of alcohol while carrying while off-duty.

"I think with New Jersey, we just punish unlawful use of a weapon," Henninger said. "Let's say you get drunk and you accidentally get your gun out, and you start shooting up your own house. You might not be charged for that, but they'll move to forfeit your weapon."

Drunkenly shoot up your neighbor's house, and you're in considerably more trouble.

Several other states — including ones with much more permissive gun rules than New Jersey — do take up the matter.

In Michigan, for instance, any amount of detectable alcohol via a breath test, urinalysis or blood sample while carrying a firearm results in civil forfeiture of the gun, and loss of the a carry permit for a year. If the holder's blood alcohol level is above .10, he or she could lose the permit permanently. (An unloaded pistol or taser can be kept in a locked container while the owner is drunk, though.)

In Iowa, if you're too drunk to drive a car, you're too drunk to carry your weapon.

In Tennessee, a carry permit can be suspended for up to three years and its holder can be hit with penalties and jail time for drinking in an establishment hat sells liquor while in possession of a firearm

In North Carolina, you can't carry a firearm while consuming alcohol, or while "remains in that person's body." It's also illegal to carry a weapon into an establishment where alcohol is served (with some exceptions).

Both Henninger and New Jersey 2nd Amendment Society President Alexander P. Roubian said the absense of an alcohol rule for carry permits is nearly a moot point in New Jersey — few people other than police officers and retired officers qualify for carry permits in the Garden State, which requires an applicant to prove he or she has an "urgent necessity" to carry a gun for self-protection.

Roubain said he doesn't believe prohibitions would make much of a difference. In other states where carry permits are more freely issued, "there aren't these epidemics of people going to bars and getting drunk and using their firearms."

In weapons training, he emphasizes the dangers of mixing alcohol and firearms, he said.

"You can have laws all you want, but if people are dumb enough to mix the two, you can’t legislate away stupidity," he said. And he said someone drunk and aggressive might just as easily grab a smashed bottle or blunt object as a firearm.

Henninger would be open to laws restricting use of alcohol and handguns — in exchange for a carry permit law more like those in other states.

"If you have a weapon, you need to be able to operate the weapon safely," he said. "If you can't drive safely, you can't operate the weapon safely."