Gun Rights

Is This the Supreme Court’s Next Big Gun Case?

The Second Amendment protects the right to armed self-defense. Does that include the right to carry guns in public?

|

When the U.S. Supreme Court struck down Washington, D.C.'s handgun ban in the 2008 case District of Columbia v. Heller, it did so because the Second Amendment protects "the core lawful purpose of self-defense." That includes "the individual right to possess and carry weapons in case of confrontation." Two years later, the Court applied the same standard against state and local governments, overturning the Windy City's handgun ban in the case of McDonald v. Chicago.

But the Supreme Court has been silent on the Second Amendment ever since. Although multiple parties have sought review in a variety of gun control cases, the Court has yet to reenter the thicket surrounding the constitutional right to keep and bear arms.

That silence may soon be coming to an end. Today the justices are meeting in private conference to consider the latest batch of petitions seeking review. Among that batch is a Second Amendment case that is eminently worthy of the Court's attention. In fact, it presents the next logical step in the development of a coherent Second Amendment jurisprudence. If the Supreme Court was truly serious in Heller and McDonald about securing the right to keep and bear arms against overreaching government action, this case offers the chance to prove it.

The case is Drake v. Jerejian, a challenge to New Jersey's Handgun Permit Law. According to the state, anyone wishing to carry a handgun in public for self-defense purposes must first demonstrate a "justifiable need," which the law defines as showing evidence of "specific threats or previous attacks which demonstrate a special danger to the applicant's life that cannot be avoided by means other than by issuance of a permit to carry a handgun."

In practical terms, local officials enjoy wide discretion in deciding what really counts as a "justifiable need." Unfortunately, for the millions of law-abiding New Jerseyans who would like to carry a handgun for self-defense those officials have proven all too eager to deny the vast majority of permit applications. Indeed, based on the state's own figures, the licensure rate is likely as low as 0.02 percent. As state Sen. Jeff Van Drew (D-Cape May) acknowledged to The Star-Ledger, "It's virtually never done."

That unequal state of affairs prompted Alan Gura, the civil rights lawyer who argued and won both Heller and McDonald at the U.S. Supreme Court, to file a federal lawsuit against the New Jersey restriction. "Americans are not required to justify their need to exercise a fundamental right," Gura told me in an interview this week. "If the government can force you to provide a reason to exercise your right, then it's no longer a right."

The federal courts, however, have so far taken a different view of the case. According to the U.S. Court of Appeals for the 3rd Circuit, New Jersey's Handgun Permit Law "does not burden conduct within the scope of the Second Amendment" and is therefore perfectly constitutional.

As support for that position, the 3rd Circuit pointed to the Supreme Court's ruling in Heller, which said, "nothing in our opinion should be taken to cast doubt on longstanding prohibitions," such as the "presumptively lawful" ban on "the possession of firearms by felons and the mentally ill." According to the 3rd Circuit, New Jersey's "justifiable need" requirement is an equally "longstanding" and "presumptively lawful" restriction because it has antecedents on the books dating back to 1924.

But that argument shrivels to nothing in light of Heller's overriding emphasis on what counts as the proper use of legal history. "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them," Heller declared, "whether or not future legislatures or (yes) even future judges think that scope too broad." In other words, any judge attempting to rule on what counts as a "longstanding" Second Amendment regulation must first grapple with what counted as a legitimate regulation circa 1791. Pointing to the actions of some New Jersey lawmakers in the twentieth century simply won't cut it.

To make matters worse, the 3rd Circuit openly eschewed any meaningful historical inquiry in its opinion. "At this time," that court said in Drake, "we are not inclined to address [the original meaning of the Second Amendment] by engaging in a round of full-blown historical analysis." Besides, the 3rd Circuit added, because the Handgun Permit Law and its antecedents predate the Supreme Court's 2008 ruling in Heller, "New Jersey's legislators could not have known that they were burdening Second Amendment conduct."

But since when is ignorance of the Constitution a valid defense for lawmakers charged with violating constitutional rights? That argument should have been laughed out of court.

By contrast, two other federal appellate courts have tackled similar state restrictions on the right to carry and have both voted to invalidate the offending laws. In 2012's Moore v. Madigan, for example (another case litigated by Alan Gura), the U.S. Court of Appeals for the 7th Circuit announced its fidelity to the Supreme Court's "historical analysis" in Heller and therefore struck down Illinois' statewide ban on carrying arms in public for self-defense. "And one doesn't need to be a historian to realize that a right to keep and bear arms in the eighteenth century could not rationally have been limited to the home," the 7th Circuit wrote.

Similarly, in its February 2014 ruling in Peruta v. County of San Diego, the U.S. Court of Appeals for the 9th Circuit conducted a lengthy historical analysis before concluding that San Diego's "good cause" requirement for conceal-carry permits violates "the right to carry an operable firearm outside the home for the lawful purpose of self-defense."

This clear split among the circuits should be addressed by the Supreme Court. Either the Second Amendment includes the right to carry arms outside the home (subject to legitimate regulation grounded in constitutional text and history) or it does not. The Court needs to pick a side.

Furthermore, the 3rd Circuit's bald refusal to follow Heller's historical methodology, combined with that court's bizarre assertion that constitutional ignorance somehow shields lawmakers from meaningful judicial scrutiny, makes Drake v. Jerejian a prime candidate for both review and reversal. In a word, the 3rd Circuit should be overruled.

"We've seen courts rubberstamp just about any kind of law that violates the Second Amendment," Gura said of the post-Heller and post-McDonald legal landscape. "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."

The Supreme Court should take this case.

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.

82 responses to “Is This the Supreme Court’s Next Big Gun Case?

  1. SCOTUS blog is a good website that I check periodically. It makes it easier to keep up with what’s going on instead of just catching news clips and headlines every once in a while.

    http://www.scotusblog.com/

    1. And FWIW, things that are a “petition of the day” typically have a better chance of being hear. Not that this is a fact, just an observation. Drake v. Jerejian was the PoD yesterday.

  2. heard*

  3. Imagine a law that said “anyone wishing to engage in public speech must get a permit and show a ‘justifiable need’ for such speech”. Better yet, imagine a statute that said “a defendant demanding trial by jury must show a ‘justifiable need’ why a bench trial will not be sufficient to protect his rights”.

    I cannot think of a single instance where a person must show what the government determines to be a “justifiable need” to exercise a right rather than the government bearing the burden to show a justification to restrict that right. Affirming the horrible New Jersey statute would do more than just damage gun rights. It would damage all rights by setting the precedent that in some cases rights protected under the Bill of Rights may only be exercised when the government determines someone has a “justifiable need” to exercise them.

    Give it a few years. If the Jersey statute stands, we will see this method of interpretation applied to other rights. It is ready made for restricting political speech. If Citizens United says money is speech and everyone has a right therefore to spend money, then the government’s interest in free and fair elections means the government has a right to tell people they can only spend money if they can show a “justifiable need” to do so.

    1. The laws about which no one will have the standing to challenge.

    2. What’s depressing is that not everyone would be horrified at that.

      1. Especially the people who use “shouting fire in a theater” story as some sort of proof that speech is regulated, so guns should be too.

        1. Thing is that guns ARE regulated. You just can’t shoot in a crowded theater, can you?

          1. That’s the worst comparison ever. Carrying a gun around doesn’t infringe on anyone else’s rights. Walking into a theatre and firing is either destroying someone’s person or private property.

    3. How about a federal law that anyone convicted of a misdemeanor (as defined by the state of conviction) is permanently stripped of their right to free speech, or right to be free of unreasonable search and seizure? The states could easily use such laws to strip their own citizens of any rights at all. SCOTUS allowed that for firearms, conviction of a felony (like sodomy until very recently in SC) as defined by the state of conviction results in automatic and permanent loss of right to even live in a home where firearms or ammunition are kept.

    4. Government must showing a compelling public interest in denying and individual right, not the other way around. The burden of proof is on the government when they say “No!”

  4. Before enacting any law in regulation of arms it should be asked, ‘Does this or would this infringe upon an individuals right to keep and bear arms?’ If the answer is ‘yes’ then the law is unconstitutional.

    1. “That’s *your* definition of infringement. *My* definition of infringement is the one I’m going with.”

      -John Q. Politician

      1. Words and those pesky definitions!

    2. “It depends on what the meaning of the word ‘infringe’ is.” — President Hilary Clinton

  5. New Jersey’s Handgun Permit Law “does not burden conduct within the scope of the Second Amendment” and is therefore perfectly constitutional.

    So, a de facto prohibition on carry does not burden the right to bear arms? He must have an interesting definition of “burden”.

    1. The law as it is stated allows a means for people to bear arms. As long as you ignore the way it is actually applied, then there is no burden.

      1. Since it effectively prohibits virtually all citizens from bearing arms, that is incorrect.

      2. It’s really akin to the “separate but equal” justification for segregation laws. The law says that everyone’s equal and technically allowed to exercise their rights, so it must be true.

        1. A better example may be the Jim Crow voting test. All people had to do to register to vote was take a simple test. Only if the “wrong” person applied somehow they never had the right answers.

      3. Actually, I wouldn’t be surprised to see an argument along those lines if the SCOTUS decides to take up this case.
        sarc, STOP GIVING THEM IDEAS!

  6. “New Jersey’s legislators could not have known that they were burdening Second Amendment conduct.”

    But since when is ignorance of the Constitution a valid defense for lawmakers charged with violating constitutional rights? That argument should have been laughed out of court

    The courts have long accepted the government’s “Fuck you, That’s Why” argument.

    1. I read one of the briefs a while back, and NJ’s argument basically was that you were free to exercise your RTKABA however and wherever you wanted after you got your permit, therefore your right wasn’t infringed. It’s not their fault that the permit system bars all but about 0.02% (from another brief) of the NJ population from actually attaining one.

      1. “you were free to exercise your RTKABA however and wherever you wanted after you got your permit, therefore your right wasn’t infringed”…
        …even though we will deny such a permit to you. Yup, sounds like a progressive government argument.

        1. The law doesn’t deny the permit. The law allows for a process to exercise the right to bear arms. So the right is not being infringed by the law. It’s being infringed by the way the law is applied. But that’s not the fault of the law.

          1. Again, STOP GIVING THEM IDEAS!

            I can see an idiot judge happily buying that argument.

          2. “The law allows for a process to exercise the right to bear arms.”

            The constitution allows for a person’s rights to be denied after due process, thereby saying that people do not need due process in order to enjoy them.

            1. denied after

              not before

          3. not if the law is crafted so narrowly that only a very few can possibly qualify

      2. It’s not their fault that the permit system bars all but about 0.02% (from another brief) of the NJ population from actually attaining one.

        That number can’t possibly be correct. More than 0.02% of the population is cops, and the legislature would never ban cops from carrying off-duty. (At least, not on purpose.)

        1. I didn’t say that it was correct, it’s just a number that I got from one of the briefs.

          http://sblog.s3.amazonaws.com/….._FILED.pdf

          All of which can be found at the SCOTUS blog link at the top.

          To make things even easier, here is a link to where you can see what’s going on with this case specifically.

          http://www.scotusblog.com/case…..-jerejian/

        2. Law Enforcement Officers Safety Act: “The Law Enforcement Officers Safety Act (LEOSA) is a United States federal law, enacted in 2004, that allows two classes of persons?the “qualified law enforcement officer” and the “qualified retired law enforcement officer”?to carry a concealed firearm in any jurisdiction in the United States, regardless of state or local laws, with certain exceptions.”

          Only proles have to get permits.

          1. So retired LEO’s can murder people at a movie under color of law for assault by popcorn.

        3. the legislature would never ban cops from carrying off-duty
          You forgot the “cops are never off duty” exception. No license but the badge, and concealed not required.

    2. The courts have long accepted the government’s “Fuck you, That’s Why” argument.

      “Fuck you that’s why.” is by far the oldest legal precedent in history, dating back to the case of Ugg v Grog, where Ugg was declared legitimate leader of the tribe following his murder of Grog with a big rock.

  7. Sadly, the gun Obama is shooting in that pic is the same model I hunt with. It is a Franchi Alcione.

    I’m so ashamed.

    Great gun.

    1. I’m sure you don’t look as dainty as he does when shooting it, though.

      1. I’m not sure it’s possible to look as uncomfortable as he does.

        1. Welllll, maybe if the gun were gamed up one’s behind…..

    2. You should have gone with a Citori.

      1. I’ll inherit one.

        But, I like my Eyetalian shotguns. Have a Benelli too.

      2. Italian shotguns… enforcing the Mafia’s “protection” since 1895

    3. Egregious lack of alt-text on that photo.

      1. Clays are easier to hit after they land.

    4. Oh, don’t be ashamed. I’m sure he didn’t choose it and knows nothing about it.

      Though if you feel a need to unload yours at a steep discount now, drop me a line.

    5. Has it ever been verified that he is actually shooting a gun there?

      Benelli is superior to Franchi, even if they have the same mailing address.

      1. I don’t think Benelli makes an over-under. I used to hunt upland with my Super Black Eagle, but since I got the Franchi I won’t. Franchi is much quicker.

        Now the SBE is the waterfowl gun.

  8. justifiable need

    shall not be infringed

    Please.

    1. Can you show a justifiable need to be secure in your person, papers and effects? Or to not be deprived of your property without compensation? And by justifiable need, it means something the government chooses to agree to?

      This argument is so idiotic it’s astonishing that any half intelligent person would actually buy it.

      1. Unless the person is both halfway intelligent and dishonest. Then they’ll buy it right up because it gives them power.

  9. So for the 3rd Circuit the right to carry is supposed to only apply to…carrying around your own house?

    Sheesh.

    1. Agents of the State, and that 1 in 5000 who has enough juice are allowed to bear arms outside their home.

  10. When was the last time a non-government employed citizen could argue “ignorance of the law” as permissible alibi? Oh, never?

    Ah, the “FYTW” principle in action. Thankfully, the SC seems to have had a pretty decent track record lately in regards to the 2nd amendment.

  11. I’d be less annoyed by these politicians if they would stop having people with guns protect them.

  12. A problem with the Drake case, as in the two previous appeals denied by SCOTUS, is that the plaintiffs seek permits that will allow them to carry handguns concealed in public. The High Court said that Open Carry is the right guaranteed by the Constitution and that concealed carry can be banned. Here are a couple of the citations from the Heller decision:

    “[A] right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”” District of Columbia v. Heller, 128 S. Ct. 2783 – Supreme Court (2008) at 2809.

    “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” District of Columbia v. Heller, 128 S. Ct. 2783 – Supreme Court (2008) at 2816.

    http://CaliforniaRightToCarry.org

    1. Where does the constitution specify a limit to how a weapon is carried.

      1. well… no, sorry. I’m all for CCW permits on demand (like the 38 non gun fearing states have), but the fact of the matter is that the concealment issue is one of the first, most obvious, and basic parameters that could be regulated because it has significant implications for the public. If you’re carrying concealed, you’ve got a gun and nobody knows. Indeed, the CCW permit system that those states have (how does it work, if the data check doesn’t come back within 15 minutes, you automatically have the right to the gun?) is only legitimate if the right to regulate concealed carrry is legitimate. Of course, those states also mandate that they be given out except for a few exceptions like ex-cons, plus the time-limit on the data check.

  13. For those who don’t know, the 3rd circuit is New Jersey, and technically one of the carribean islands we own or something, but primarily just new jersey

    Also, please don’t take the law as a commentary on New Jerseyans. The laws of the body politic hardly actually represent popular sentiment. I live here and I only know like one real liberal. If you listen to The Breeze 101.9 in Central Jersey, with Dennis and Judy, you’d be amazed how many right-leaning people are calling in and how few hard line liberals there are (and it really was very few). What’s happened in most of the country is the government trudges along under its own influence, and because of our shitty political system (few referendums, the party system – we’re far from a real popular democracy) it doesn’t get changed

    1. also, most homeowners I know do own guns. Nobody buys a house and doesn’t invest in the means to protect it, and the whole point of new jersey is to be a nice place to buy a nice house, so you dmned beter believe plenty of motherfuckers have a gun in their house.

  14. I do like Idaho’s constitution on this one. It starts with the absolute to keep and bear, and only grants exemptions for regulating concealed carry and for legislation regarding certain uses of firearms. The implication is that the legislature does not have ANY authority to regulate open carry. For that reason, there are a lot of people that open carry all of the time. I also like that both open and concealed carry are permitted within the Idaho Capitol.

    Idaho Constitution, Article I, Section 11 – The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony.

    1. With that being said, I would still like to see constitutional (permitless) concealed carry in Idaho. Of course that doesn’t do anything for you when traveling in other states.

  15. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

    Without exception every gun law that restricts or infringes on people’s right to arm themselves, save the one prohibiting convicts from doing so, is unconstitutional. Every fucking one.

    See SCOTUS, that was easy.

    1. Please cite for me the founding documents which offer mention of prohibiting former convicts exercising this right.

      1. Morally speaking, you will always have a right to self defense. The fact that you may have committed a crime or violated someone else’s rights in the past doesn’t permanently waive your inalienable right to self defense.

  16. “Americans are not required to justify their need to exercise a fundamental right,” Gura told me in an interview this week. “If the government can force you to provide a reason to exercise your right, then it’s no longer a right.”

    Apparently Mr. Gura didn’t get the memo – it includes many new, brave, and common sense driven ideas agreed to by everyone. For example, giving is taking. Or private property is public property. Or – it’s 8 million, even if sans proof. Or, as is true in this case, freedom means asking permission.

    Orwell I think called it doublespeak – today it’s a requirement to not being labeled an evil, racist, sexist, xenophobic reThugalibratard.

  17. Up until recently, “Justifiable need” meant connections and a $1500 check to the Sheriff’s reelection campaign.

    Meanwhile every gangbanger in California is packing with impunity.

  18. Why does the word “arms” in the second only refer to guns?
    Were other types of arms regularly carried at the beginning of the republic?

    1. Many homes owned artillery cannons

  19. So, “Justice” Stevenson will posit, once again, that the 2nd Amendment refers explicitly to the military.

    OK… so tell me then, Constitutional Scholar Stevenson: why would the military need a “right” to bear arms? The military exists solely to bear arms. That’s what they do.

    And since the Army and Navy are explicitly defined in other parts of the Constitution… why do they need a Right to do their jobs?

    The depth of liberal stupidity is breathtaking. They will suspend any shred of reality, they will abrogate any scintilla of common sense, all because of “their feelings.”

    What a wicked fool he is.

  20. “As support for that position, the 3rd Circuit pointed to the Supreme Court’s ruling in Heller, which said, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions,” such as the “presumptively lawful” ban on “the possession of firearms by felons and the mentally ill.” According to the 3rd Circuit, New Jersey’s “justifiable need” requirement is an equally “longstanding” and “presumptively lawful” restriction because it has antecedents on the books dating back to 1924.”

    “A long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises at first a formidable outcry in defense of custom.”

    ~Tom Paine

  21. Anything going on with Hawaii and the right to carry?

  22. Anything going on with Hawaii and the right to carry?

  23. Anything going on with Hawaii and the right to carry?

  24. The government cannot regulate a civil right.

  25. What in the hell is so difficult to understand about “shall not be infringed”.

    Douche sheisser justice -“Durrrr Well, this applies to open carry and not concealed carry”

    Someone who can read plain English- “so where does it say how the arms are to be bested?

    Douche sheisser justice – “duuuuurrrrr, I’ll have to look it up, but it’s there….you’re such a racist…. Security, remove this man from here!!!!

    All of the wasted time and money for them to figure out something so simple. These politicians need to go home. Govt is effing incapable of protecting or defending liberty.

  26. the right is not being infringed by the law. It’s being infringed by the way the law is applied. But that’s not the fault of the law.

  27. “The Supreme Court should take this case.” Meaning they probably will, or meaning it would be a good thing if they did?

  28. After hearing Scalia talk about the 4th amendment the other day, I fear for the 2nd.

  29. The law says that everyone’s equal and technically allowed to exercise their rights, so it must be true.

  30. It’s being infringed by the way the law is applied. But that’s not the fault of the law.

Please to post comments

Comments are closed.