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.