Supreme Court Refuses to Hear Major Second Amendment Case

The U.S. Supreme Court has not heard a single Second Amendment case since issuing its landmark gun rights rulings in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010).

Unfortunately for gun rights advocates, that silence went unbroken today. In a major announcement this morning, the Supreme Court refused to hear Drake v. Jerejian, a case challenging the constitutionality of New Jersey's arbitrary rules governing the right to carry handguns in public for purposes of self-defense.

The lawyer behind the case is Alan Gura, the civil rights litigator who previously argued and won both Heller and McDonald before the high court. In an interview with me last month, Gura explained his reasons for bringing the Drake case. "We've seen courts rubberstamp just about any kind of law that violates the Second Amendment," he said, describing the legal climate in the wake of Heller and McDonald. "Unless the Supreme Court decides to enforce its pronouncements, the Second Amendment will apply only to the extent that some lower courts are willing to honor Supreme Court precedent."

It now appears the Supreme Court is content to let the lower courts keep rubberstamping away.

Drake v. Jerejian deserved the high court's attention. At issue was New Jersey's Handgun Permit Law, which requires applicants to prove they have a "justifiable need" before local officials will issue a handgun carry permit. Unlike those states that maintain a "shall issue" permit regime, where applicants are required to satisfy a clear list of objective criteria, such as completing a firearms safety course and passing a criminal background check (if you meet the qualifications, the government "shall issue" you a permit), New Jersey grants local officials wide leeway in determining what qualifies as a "justifiable need" in their respective jurisdictions.

The practical effect of that wide leeway has been the overwhelming denial of permit applications by local officials. In the words of state Sen. Jeff Van Drew (D-Cape May), "It's virtually never done."

"Americans are not required to justify their need to exercise a fundamental right," Gura stressed in his interview with me. "If the government can force you to provide a reason to exercise your right, then it's no longer a right."

The U.S. Court of Appeals for the 3rd Circuit, by contrast, which ruled against Gura in 2013, saw no constitutional problem with the state's licensing scheme because it "does not burden conduct within the scope of the Second Amendment."

By refusing to hear the Drake appeal today, the Supreme Court left that ruling by the 3rd Circuit undisturbed. Yet in 2012, the U.S. Court of Appeals for the 7th Circuit, in Moore v. Madigan (another case brought by Alan Gura), reached the opposite conclusion, voting to strike down Illinois' blanket ban on carrying guns in public. "The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside," the 7th Circuit held.

The Supreme Court should have tackled that circuit split head on. Because it failed to do so, the Second Amendment now means one thing for responsible gun owners living in New Jersey and another thing for those living in Illinois.

For additional background on Drake v. Jerejian, see here.

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 Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Fist of Etiquette||

    The Founders never said the state couldn't make enjoying your rights so burdensome as to effectively negate them. These justices understand that, so why bother going through the motions of hearing opposing views?

  • Almanian!||

    This sounds like "campaigning". How much money have you spent persuading others to your view? None? PROVE IT, FUCKER!

    Enjoy your First Amendment "rights" as you enjoy your Second Amendment "rights".

    My one quibble: the "Bill of Rights" notes what the Fed Gov can and can't and must and mustn't do. 2A says the FED gov may not pry your gun from your cold, dead hands. There's definitely an argument that NJ or any other state can have whatever rules it wants, and, if you don't like it - "move".

    Regardless, fuck NJ, and fuck the Supremes.

  • ||

    I wonder if the RTKBA is mentioned in the New Jersey Constitution and if so, if it was amended to ease the consciences of those brave men just trying to protect us from ourselves.

  • kbolino||

    "Article I.

    1. All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness."

    There is no explicit RKBA in the 1947 constitution nor its current amended form, but it seems to me that buying, keeping, and bearing arms would fall under the bolded right.

  • ||

    2A says the FED gov may not pry your gun from your cold, dead hands. There's definitely an argument that NJ or any other state can have whatever rules it wants, and, if you don't like it - "move".

    My understanding of McDonald is that that ruling incorporated 2A against the states, meaning that state govs are bound, just like the feds, to honor it as an individual right (as was decided in Heller).

  • Wasteland Wanderer||

    My one quibble: the "Bill of Rights" notes what the Fed Gov can and can't and must and mustn't do. 2A says the FED gov may not pry your gun from your cold, dead hands. There's definitely an argument that NJ or any other state can have whatever rules it wants, and, if you don't like it - "move".

    That was only true prior to 1868, though admittedly it did take the courts quite a while to catch on to this fact.

  • PaulW||

    Ummmm... The Constitution does not just apply to the Federal Government, it applies to the states as well. Read the 9th Amendment, bro.

    Sad that this needs to be explained.

  • Almanian!||

    Go read some Prof Kevin Gutzman and listen to some Mike Church (as a start) - there's definitely an argument.

    Sad that this needs to be explained...

  • DJK||

    And SCOTUS has incorporated the rest of the Bill of Rights to apply to the states as well. Why should the 2nd be special and remain unincorporated?

  • ||

    And SCOTUS has incorporated the rest of the Bill of Rights to apply to the states as well. Why should the 2nd be special and remain unincorporated?

    I thought McDonald incorporated 2A against the states . . .

  • DJK||

    It did. At least to a tiny extent. It's clearly not all that well incorporated if New Jersey is allowed to maintain its ridiculous restrictions.

  • Devil's Advocate||

    Not all of the BoR has been incorporated. I believe that some things, like trial by jury in civil cases (Seventh Amendment), have not been incorporated.

  • Drake||

    I was so hoping NJ would get a big slap-down. Not that it would have kept me in this state any longer than necessary.

  • Francisco d'Anconia||

    This is a travesty.

    Fucking chickenshit Nazgul.

    Hmmm? What to do when the government refuses to defend the rights of the citizen?

  • GregMax||

    We're fresh outta hobittes.

  • juris imprudent||

    You all assume that the SC would've bitch-slapped NJ. That isn't an automatic - as so much of their 4th Amdt rulings should make plain. Losing at the SC is very high risk, and that is why the NRA is always half-hearted about litigation (versus legislation).

  • MattF||

    The gun control advocates are just taking a page out of the "pro-life" skirt-the-rules-book. This is the same as forcing doctors to have admitting rights in a hospital. Next they will do the analog of "showing the woman a picture of her fetus" by making gun purchasers sit and watch a graphic video of all the people killed by guns.

    The problem with both of these approaches (pro-lifers and pro-controllers) is that there is a demand problem not a supply problem... the only way either group will get what they want is to get rid of the demand for the product (abortions or guns). Both groups should use the 'anti-smoking' book if they want to succeed.

  • ||

    Cause a doctor performing an outpatient surgical procedure is analogous to determining willy-nilly who can and can't exercise their 2A rights?

  • kbolino||

    The patient has as much right to obtain, and the doctor to perform, an "outpatient surgical procedure" without interference as anyone has to keep and bear arms without interference. Thanks to the Ninth Amendment, the Second Amendment is not exclusive.

    The analogy does not break down until you account for the fact that the "doctor" and the "patient" are not the only parties to an abortion.

  • Michael Ejercito||

    I wonder if racial profiling is used whenever determining if an applicant has a "justifiable need".

  • WTF||

    No, justifiable need is determined by whether or not someone is politically connected, unless you can prove you were the recipient of a specific threat against your life. So only a very tiny fraction of the population in NJ can carry.

  • Pat Kelly||

    Good. I hope the NRA wasted a lot of money on the case. Perhaps they could have put that money to better use trying to find answers to these questions:

    How many NRA member involved shootings since Sandy Hook?
    How many gun owners received treatment for mental disorders in 2013?
    How many gun owners abused drugs and/or alcohol in 2013?
    What is the average IQ of gun owners vs. the IQ of non gun owners?
    How much was spent treating gunshot wounds in 2013?
    How many people would not have committed suicide if no gun was available?
    How many mass shootings occurred in 2013 involving 4 or more victims?

    All of these are important questions that the NRA has fought to keep from being answered because it is afraid if the truth is known even the most conservative gun owners might wake-up and realize enough is enough. http://youtu.be/uXMuVJ6ACp8

  • kbolino||

    Ah, good. The technocratic totalitarian perspective is under-represented around here.

    Tell me, what part of "shall not be infringed" is so hard for you to understand?

  • ||

    Fuck off slaver.

  • politicsbyothermeans||

    This. Die screaming in a fire when you get there.

  • CampingInYourPark||

    All of these are important questions that the NRA has fought to keep from being answered

    Prime, Grade A Derp there, Pat

  • Swiss Servator, Gnomes FTW!||

    Its like Lonewacko, but from the Left Side of Derp!

  • Loki||

    Good. I hope the NRA wasted a lot of money on the case. Perhaps they could have put that money to better use trying to find answers to these questions:

    How many NRA member involved shootings since Sandy Hook?
    How many gun owners received treatment for mental disorders in 2013?
    How many gun owners abused drugs and/or alcohol in 2013?
    What is the average IQ of gun owners vs. the IQ of non gun owners?
    How much was spent treating gunshot wounds in 2013?
    How many people would not have committed suicide if no gun was available?
    How many mass shootings occurred in 2013 involving 4 or more victims?

    All of these are important questions that the NRA has fought to keep from being answered because it is afraid if the truth is known even the most conservative gun owners might wake-up and realize enough is enough. http://youtu.be/uXMuVJ6ACp8

    DERPTY DERPITY TEEDLEY DERPTY DER!!!!

    FTFY.

  • R C Dean||

    How many NRA member involved shootings since Sandy Hook?

    I did not shoot up a school, so my rights should not be restricted.

    How many gun owners received treatment for mental disorders in 2013?

    I did not receive treatment for a mental disorder, so my rights, etc.

    How many gun owners abused drugs and/or alcohol in 2013?

    I have not abused drugs or alcohol, etc.

    What is the average IQ of gun owners vs. the IQ of non gun owners?

    My IQ is higher than that of most people, etc.

    How much was spent treating gunshot wounds in 2013?

    Nothing by me, etc.

    How many people would not have committed suicide if no gun was available?

    Impossible to know, etc.

    How many mass shootings occurred in 2013 involving 4 or more victims?

    None by me, etc.

  • Mr. Soul||

    How many mass shootings ended with the shoote looking down the other end of a firearm?

  • ||

    How many NRA member police involved shootings since Sandy Hook?

    How many gun owners abused drugs and/or alcohol in 2013? I'm a gun owner, and since I don't drink or use drugs, I don't really care.

    What is the average IQ of gun owners vs. the IQ of non gun owners? What's your IQ compared to that of the average commenter here on Reason? I bet you wouldn't fare too well in that one.

    How much was spent treating gunshot wounds in 2013? I didn't shoot anyone in 2013, so I really don't care.

    How many people would not have committed suicide if no gun was available? One word: Japan.

    How many mass shootings occurred in 2013 involving 4 or more victims? None perpetrated by me.

  • I. B. McGinty||

    "How many gun owners abused drugs and/or alcohol in 2013?"

    Naw man, it wasn't abuse. I savored every bit of it, and quite frankly, I believe we both had a good time.

  • Devil's Advocate||

    How many gun owners abused drugs and/or alcohol in 2013?

    Most likely way more than were involved in gun-related violence.

    What is the average IQ of gun owners vs. the IQ of non gun owners?

    Hard to say, but I'll bet the non gun owners are more than a little pissed about you bringing their average down.

    All of these are important questions that the NRA has fought to keep from being answered because it is afraid if the truth is known even the most conservative gun owners might wake-up and realize enough is enough.

    Sorry but your inane questions are just one big non-sequitur when it comes to the right to keep and bear arms. At what point does it become legitimate for law abiding people who pose no threat to you to lose their right to defend themselves? That was a trick question; that right predated the Constitution and is not yours to take away.

    Just for the record, are all of our rights subject to forfeiture because they make you uncomfortable, or is it just the 2nd Amendment?

  • OneOut||

    Pat Kelly|5.5.14 @ 11:22AM|#"

    "All of these are important questions that the NRA has fought to keep from being answered "

    No they aren't Pat.They aren't important questions at all.

    You flatter yourself Pat while demonstrating that you aren't very smart and these aren't profound questions.

    Kudos for trying though. I hope Pat Kelly isn't your real name.

  • politicsbyothermeans||

    "All of these are important questions that the NRA has fought to keep from being answered because it is afraid if the truth is known even the most conservative gun owners might wake-up and realize enough is enough."

    Independent research, how does it work?

    If only you had a busybody plutocrat with newly found spare time and whole segments of fawning academia eager to take his money that could get to the bottom of all of that.

  • ||

    Most people like you would just love to see people who have opposing views to yours re-educated and imprisoned in a work camp or controlled by pogrom.

  • BillEverman||

    Hmm...how many "NRA member involved shootings"? Probably a lot, considering that a lot of cops are NRA members, and many people who shoot legally in self-defense are, too. Criminal shootings? Probably not so many, since I don't recall hearing about them on the news.

    In fact, I would wager that a huge percentage of illegal shootings were by people who were not NRA members. If so, then by your logic, maybe we could reduce gun violence by making everybody join the NRA!

    How many gun owners received treatment for mental disorders, or abused drugs or alcohol? Well, I am an NRA member, and I didn't do any of those things. But if I was, do you think I'd be reporting them to the NRA? How, then, is the NRA fighting to keep those questions unanswered? Maybe you should send out a survey.

  • GregMax||

    We're never going to get the laws we want, or the respect for the Constitution until we take some power to legislate as a people away from the oligarchs in power. Talk is crap, and idiots vote for liars who tell them what they want to hear and give them shit.

  • Devil's Advocate||

    And that is why we have a 2nd Amendment.

  • R C Dean||

    Wow. SCOTUS declined to resolve a split in the Circuits. Not sure what to make of that fact, but it doesn't make me optimistic about future 2A cases.

  • Hydra||

    I don't see Justice Kennedy joining an opinion making shall-issue a constitutional right. It's better to just leave it alone than to have a 5-4 decision in favor of gun control.

    Especially with 80% of the country enjoying life under shall-issue via the political process.

  • Edwin||

    am I the only one who thinks New Jersey's way of getting around the 2nd amendment is totally stupid?

    "Oh, the 2nd says we can't make it illegal for people to carry guns? Oh OK, we didn't make it illegal, see? Right there, there is a process to maybe get a permit. See? We didn't ban guns. We're in compliance with the 2nd" As though anybody would buy that

  • Devil's Advocate||

    Psssst. Don't tell anybody, but the Third Circuit bought it.

  • boxermutts||

    Additional proof that the Supreme Court Justices necks are under the 'boot heel' of Obama and his 'brown Shirted' regime.
    "The most foolish mistake we could possibly make would be to allow the subject races to possess arms."
    Adolph Hitler

  • ||

    Adolf.

  • BillEverman||

    Do you know who else said...

    Oh.

    Never mind.

  • Charles Hurst Author||

    Then the residents need to refuse to comply as they are in CT. And if it comes to bloodshed then it does. It is long overdue as we now have a corrupt government backed by half the country that is now immoral and ignorant.
    We have the natural right to defend our constitutional rights with violence if need be. They might want to look what is happening in the Ukraine. And they don't have guns in households.

    We have millions.

    Charles Hurst. Author of THE SECOND FALL. An offbeat story of Armageddon. And creator of THE RUNNINGWOLF EZINE

  • plusafdotcom||

    SCOTUS pussies.

  • thorax232||

    Rights don't exist, nor have they ever, or will ever. Quit concentrating on paper and start looking towards ridding the world of this unnecessary and redundant authority (of both the government and the constitution) and you start solving problems.

  • sgtipster||

    they don't have guns in households.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement