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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.