Five Gun Rights Cases to Watch

What the courts still have to decide about the Second Amendment

(Page 2 of 4)

The Supreme Court is expected to hold a hearing on whether to take on NRA v. BATFE in late February.

Drake v. Jerejian

This case is about where you can have and use your gun. First filed in November 2010, it challenges New Jersey's Handgun Permit Law, which says that carrying in public without a permit can get you 5 to 10 years in prison.

The law has been upheld so far by both the U.S. District Court for the District of New Jersey and the Third Circuit Court of Appeals. The plaintiffs argue that the law is an unconstitutional prior restraint on their Second Amendment rights, since it requires a potential gun carrier to prove to the police a "justifiable need" involving specific previous threats before they can get a carry permit. And that's hard to do-around 1,200 such permits are extant in the state now, out of an adult population of 6.7 million.

Plaintiff John Drake restocks ATMs for a living, and thinks that he might at some point need a gun in public. Another plaintiff is a sheriff's deputy who according to the state magically loses his ability to safely use a gun in public when he goes off duty.

The Third Circuit decision by Judge Ruggero Aldisert declares baldly that "the requirement that applicants demonstrate a 'justifiable need' to publicly carry a handgun for self-defense qualifies as a 'presumptively lawful,' 'longstanding' regulation and therefore does not burden conduct within the scope of the Second Amendment's guarantee." Whether that restriction is lawful after Heller is exactly what's at issue—surely some longstanding "presumptively lawful" gun restrictions are now not lawful in the wake of that decision. Merely presuming it is without argument is brazen.

Aldisert's decision was based on taking government claims on faith. "The predictive judgment of New Jersey's legislators," he wrote, "is that limiting the issuance of permits to carry a handgun in public to only those who can show a 'justifiable need' will further its substantial interest in public safety." How do we know it would? Aldisert admits that "New Jersey has not presented us with much evidence to show how or why its legislators arrived at this predictive judgment."

No evidence? No problem. "As the District Court correctly concluded, New Jersey's legislature 'has continually made the reasonable inference that given the obviously dangerous and deadly nature of handguns, requiring a showing of particularized need for a permit to carry one publicly serves the State's interests in public safety.'" That supposed "reasonable inference" is all the judge needed to bar a vast number of New Jerseyans from tools of self-defense they might need outside their home.

The plaintiffs filed for certiorari to the Supreme Court in early January. The petition points out that the issue of carry permits is ripe for Supreme Court consideration; "the federal appellate courts, and state courts of last resort, are split on the question of whether the Second Amendment secures a right to carry handguns outside the home for self-defense. The Second, Fourth, Fifth, and Seventh Circuits, and the supreme courts of Illinois, Idaho, Oregon, and Georgia have held or assumed" that citizens do have that right; but both the Third Circuit in this case, and "the highest courts of Massachusetts, Maryland, and the District of Columbia" think that public carry can be far more circumscribed legally.

The cert petition gets to the heart of the problem with the Third Circuit decision: "Until now, even courts applying a highly deferential 'intermediate' scrutiny standard in Second Amendment cases have at least required the government to point to some legislative findings or other evidentiary support justifying the burdening of this fundamental right," the plaintiffs note. "The majority [in the Third Circuit] excused the complete absence of legislative finding and evidence supporting the challenged provision because the legislature was unaware that individuals enjoy Second Amendment rights. It is difficult to imagine what constitutional right could survive the logic employed."

Cooke v. Hickenlooper

This case is about the size of magazine you can legally insert into your gun. Last year Colorado banned any newly purchased magazines that can hold more than 15 rounds. (Older 15+ magazines are grandfathered in.) The law was signed by Gov. John Hickenlooper in March. In May, this federal lawsuit, with 55 state sheriffs among the plaintiffs, challenged the law in U.S. District Court in Colorado.

David Kopel, a Second Amendment scholar and lawyer for the sheriffs (and a bevy of other plaintiffs) summed up the suit's goals in a July press release: "The Heller decision forbids bans on arms which are 'Typically possessed by law-abiding citizens for lawful purposes.' We will show magazines of up to 20 rounds for handguns, and up to 30 rounds for rifles, are standard for many popular firearms, and thus protected under Heller."

Given that there had never previously been any documentation requirement for the private or retail purchase of magazines, it would be quite an investigative challenge for any sheriff to distinguish a forbidden new one from a permitted old one; some sheriffs involved in the suit have publically announced they don't intend to try to enforce the magazine ban.

A 2011 decision from the Court of Appeals for the District of Columbia upheld an even narrower magazine restriction than this Colorado one: a ban on magazines holding more than 10 rounds. That case was known as Heller II since it featured the same parties as the original 2008 D.C. v. Heller case. Heller II challenged some of the gun regulations D.C. adopted after the city's total ban on handguns was overturned.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Dr Fallout||

    When I held that gun in my hand, I felt a surge of power... like God must feel when he's holding a gun.

  • Pavlov's Cat||

    "But Marge, a gun is a tool. Like a butcher knife or a harpoon, or uhh... an alligator."

    Of course, this message is brought to you by a guy who bought another 5,000 rounds of ammo Saturday.

  • JD the elder||

    "there's only one shooting range within city limits"

    Nitpicky, but: that's not true. There's the Westside Rifle & Pistol Range, and there's the Bay Ridge Rod & Gun Club. I hear that BRR&GC; is extremely unfriendly to outsiders, so it may not be a practical option.

  • Drake||

    Nitpicky too - I don't remember the "within city limits" clause in the Constitution. I do remember something about right to assemble and "shall not be infringed".

  • sarcasmic||

    I must say I do like living somewhere where I can toss an empty soup can out into the backyard and perforate it, pretty much whenever I want. Though I generally limit myself to Saturday afternoons.

  • Paul.||

    . Another plaintiff is a sheriff's deputy who according to the state magically loses his ability to safely use a gun in public when he goes off duty.

    Hard... to... agree... with this...

  • Will Nonya||

    It does assume that they use guns safely while on duty.

  • Paul.||

    Jesus the fucking squirrels.

    New York City has on the books Title 38, which prohibits licensed handgun owners from taking guns almost anywhere outside of city limits. You cannot take your gun to your second home outside the city


  • Scarecrow Repair||

    NYC is so concerned for the welfare of foreigners that it forbids its subjects from taking their guns outside the city limits.

    It's only confusing because it's so bizarre.

  • gimmeasammich||

    The Supreme Court is expected to hold a hearing on whether to take on NRA v. BATFE in late February.

    How long ago was this article written, and why has it not been updated?

    SC denied petition for writ of certiorari like three weeks ago.

  • Scarecrow Repair||

    "April 2014 issue" says the fine print.

  • gimmeasammich||

    The Supreme Court is expected to hold a hearing on whether to take on NRA v. BATFE in late February.

    How long ago was this article written, and why has it not been updated?

    SC denied petition for writ of certiorari like three weeks ago.

  • gimmeasammich||

    Not really sure why this came up twice. I clicked submit and the page refreshed, but my comment was still sitting in the comment box, so I clicked submit again. Whatevs...

  • GregMax||

    Statism: "The Second Amendment right is not unlimited," Justice Antonin Scalia cautioned in the majority opinion in Heller. "It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."

    Who fuckin' asked you? My rights do not flow from government. Therefore government can not (explicitly included)infringe on those rights. The only conclusion that's rational is that the Supreme Court is a CABAL of statists who may have the power to impose their beliefs but not the authority. Meanwhile somewhere in the Crimea . . .

  • uhclem||

    Madison said that..."a declaration of essential rights was both unnecessary and potentially pernicious. It was unnecessary, he explained, because the Constitution delegated only limited authority to the new central government, whose lawful powers did not extend into the areas that were conventionally protected by a bill of rights. And adding one could prove a danger, he believed, because an effort to enumerate essential rights could not be safe unless it was complete. Any list of rights might inadvertently omit a vital claim, and its omission could become the ground for an insistence that the government could act on matters that were never meant to be included in its province. Madison was more worried about the tyranny of the majority than the tyranny of government. "

  • AD-RtR/OS!||

    OMG, citing the words of the guy who wrote the Constitution (but not the Bill of Rights IIRC) is just a radical, in-your-face insult to our governing betters.

    Well Done!

  • Liftertarian||

    Why are these new laws (such as restricting magazine capacity, 'assault weapon' registration) not unlawful due to ex post facto reasons?

  • AD-RtR/OS!||

    Because....Shut Up!

  • ||

    We should judicially ban the GENERAL practice here: something irritates some people; they complain; a law affecting everyone but doing ABSOLUTELY NOTHING to affect the thing(s) being complained of it passed, so that the folks elected by the people to represent them can PRETEND that they are doing something in response to their constituencies.

  • AD-RtR/OS!||

    Can't wait until they get to paw through Peruta and the other decisions wending their way to them from CA. Who knows, we might find out that two identical handguns (except for the color of their finish) do not need to be separately submitted for testing to determine if they are not Un-Safe?


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