For gun enthusiasts, the Second Amendment is the Holy Grail, a constitutional right to, to ... to WHAT, exactly?
... and there's the rub. Despite having dozens of opportunities in the six years since its decision in DC v. Heller, the Supreme Court has not extended the Second Amendment right beyond allowing an operable handgun for self defense in one's home.
Drake v. Jerejian offers the Court its fourth opportunity in a year to decide whether states must allow civilians to carry handguns in public.
This morning was Drake's third listing on the Court's conference calendar. Results may be announced on Monday, or not, or it could be listed yet again.
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The defendants are New Jersey officials who refused the permit applications and two Superior Court judges who upheld those decisions.
Seven more gun advocacy groups, most of whom have routinely filed in recent carry cases, filed amicus "friend of the court" briefs supporting the plaintiffs.
New Jersey Law. New Jersey is a "May Issue" state, one of about a dozen whose officials grant or deny gun carry permits under a broad standard such as a showing of need or good cause. (Unlike 43 states, New Jersey's constitution does not have a version of the Second Amendment. A majority of states have "Shall Issue" laws which require officials to grant a carry permit if certain statutorily specified conditions are met, such as demonstrations of safety awareness and maybe a background check. A few states have no permit requirements at all.)
Title 13: Chapter 54-2.3 Criteria for the issuance of a permit to carry a handgun.Issues According to Plaintiffs. Plaintiff/applicants say the case presents two Second Amendment issues: (1) Is there a constitutional right to carry a handgun outside one's home for self-defense? (2) Can the state of New Jersey require those who seek a permit to carry a handgun to prove a justifiable need?
(a) No application for a permit to carry a handgun shall be approved by a police chief of a municipality, the Superintendent or the Superior Court, unless the applicant:
1. Is a person of good character who is not subject to any of the disabilities ... as provided in this chapter;
2. Has demonstrated that at the time of the application for the permit he or she is thoroughly familiar with the safe handling and use of handguns; and
3. Has demonstrated a justifiable need to carry a handgun. (italics added)
Plaintiffs argue that because New Jersey carry permits must be renewed every two years and officials grant only about 1200 carry permits in that two-year period, the law is tantamount to no public carry rights at all.
Plaintiffs' lawyer is Alan Gura, a well-known Second Amendment specialist who successfully argued the Heller and McDonald cases at the Supreme Court. Gura has been quoted in the New Jersey Herald as saying, "Drake is about a state thumbing its nose at Supreme Court decisions that said the Second Amendment is about carrying in case of confrontation.” He added: “This is about the Supreme Court enforcing what they have already pronounced.”
I respect Mr. Gura's arguments in the courtroom, but that statement to a reporter is hyperbole. In the Heller and McDonald cases, the Supreme Court explicitly limited its rulings to a handgun for self-defense in one's home, and that has been the settled law for almost six years. And New Jersey's judges and public officials have shown no disrespect at all for the US Supreme Court in their rulings against Drake and the other applicants.
The Issue and Argument of Defendants. New Jersey allows public carry, albeit that it severely restricts it. It contends only the second question is before the Court - the justifiable need aspect - and that is a question settled by New Jersey's long-standing policy to restrict for public safety reasons public carry of firearms in civilian hands.
As the Third Circuit Court of Appeals stated:
It is New Jersey’s judgment that when an individual carries a handgun in public for his or her own defense, he or she necessarily exposes members of the community to a somewhat heightened risk that they will be injured by that handgun. New Jersey has decided that this somewhat heightened risk to the public may be outweighed by the potential safety benefit to an individual with a “justifiable need” to carry a handgun. Furthermore, New Jersey has decided that it can best determine when the individual benefit outweighs the increased risk to the community through careful case-by-case scrutiny of each application, by the police and a court.The opinions of the District Court and Court of Appeals can be found as appendices to Drake's Petition for Certiorari.
The NRA's View. In its amicus filing, the NRA claims the first question totally resolves the case - that carry being a constitutional right, the state can't require any showing of need. Such an absolutist view would go farther even than the Heller case where the Supreme Court allowed room for a host of "presumptively lawful regulatory measures."
Drake's Petition for Certiorari. This is a request to bring the record from the court below to SCOTUS. "Cert" is granted if four of the nine Supreme Court justices vote for it in conference. If granted, briefs would be filed on the merits over the next several months and oral arguments would be scheduled for next fall.
More than 8000 cert requests are made during each nine month term but the Court grants argument for only about 80 cases. With only the rarest exceptions, no justice publicly discusses why the Court did or didn't choose to hear a case.
What considerations bear on granting cert? Typically, the most compelling is that lower Federal courts (and perhaps state courts, too) are divided, as they certainly are on the carry issue. Nevertheless, SCOTUS declined to take three cases on public carry within the last year: (1) Kachalsky v. Cacace challenging New York's "proper cause" standard. (2) Woollard v. Gallagher, a challenge to Maryland's permit law that requires a "good and substantial reason"; and (3) NRA v. McCraw from Texas, which also raised the issue whether the state could properly bar 18-20 year olds from buying a gun.
The argument against "May Issue" in Kachalsky and Woollard, as it is in Drake, was that the strict administration of the requirement for cause is equivalent to granting virtually no permits at all. There are other issues as well - how demanding the standard should be for judging "May Issue" laws, for example - but the threshold question is whether there is a Second Amendment right to carry in the first place.
Other Cases Coming. Is SCOTUS's past pattern of not accepting carry cases necessarily a prologue? Other carry cases are coming through the Federal court pipeline. Possibly these have a bearing on what - and when - the Supreme Court will act on Drake.
Next to come for review is likely to be Peruta v. County of San Diego. California law allows each city and county to interpret the state's "good cause" standard for issuing concealed carry permits as it chooses. San Diego County took a restrictive approach, requiring elaborate documentation and the showing of "a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm's way." Edward Peruta (who lives in California part of the year) and several other applicants could not show any specific threats against them. The County sheriff concluded they did not qualify for carry permits.
The Federal District Court held in Peruta that Heller does not stand for the broad proposition that all concealed weapon bans are presumptively constitutional. The next question, as it is in cases where the constitutionality of a statute is at issue, is the level of scrutiny to apply - how strict are the standards a court should use to decide if the statute complies with the constitution. SCOTUS explicitly left this undecided in Heller.)
The District Court applied intermediate scrutiny, finding that the County's policy favoring public safety and reducing the rate of gun use in crime was "reasonably related to a 'significant,' 'substantial,' or 'important' governmental interest. Moreover:
The government also has an important interest in reducing the number of concealed handguns in public because of their disproportionate involvement in life-threatening crimes of violence, particularly in streets and other public places.The Ninth Circuit reversed, holding (2-1) that to "bear arms" meant to carry them and that SCOTUS's Heller decision pointed in favor of allowing carry for the purpose of confrontational self-defense. The Court declared that a constitutional right to carry a concealed weapon in public was so strong that the County's application of "good cause" was too restrictive no matter what level of scrutiny applied.
The decision was by a three panel, as is the case with almost all Federal appellate court
decisions. However, a losing party can ask the full court to hear the case en banc. (The Ninth Circuit Court of Appeals has 45 judges, 16 of whom have senior status and a reduced workload, if any, so 29 are available. I understand the practice in the Ninth Circuit to be that it 11 judges would hear an en banc reargument, although it rarely grants one.)
Matters got complicated when San Diego County announced it would not appeal and planned to start issuing carry permits when the decision became final. That prompted California Attorney General Kamala Harris to petition for en banc review. The State of California had not been a party to the case, so it asked to intervene as did the Brady Campaign to Prevent Gun Violence and - jointly - the California Police Chiefs Association and the California Peace Officers Association.
As of May 2, the requests to intervene and for en banc reconsideration remain pending. It took three years (!) for the Peruta case to get from the US District Court's decision to that three-judge Ninth Circuit decision. There is no particular reason to think the Ninth Circuit will act swiftly.
Observations. An interesting facet of Drake's case is that unlike most states, New Jersey statutes do not seem to distinguish between carrying a firearm openly or concealed. Attorney Gura argues that this makes his case a better one for SCOTUS to decide:
Nor does it involve any difficult questions as to time, place or manner restrictions on the carrying of handguns. Because New Jersey’s law operates without distinction between the concealed and open carrying of handguns, confusing questions as to the manner in which Petitioners might exercise their rights are avoided.Whether Drake is a purer, less confusing case is debatable. NJ courts have discretion to impose the types of conditions that the applicants argue are not present in this case.
So, John Drake's case is in waiting. Speculation abounds on why it was relisted for a third time.
After all, this current Supreme Court seems quite willing to accept controversial issues. Are some justices deterred by the strong presence of diverse "states' rights" policies on firearms matters? Even after almost six years since Heller, is SCOTUS still reluctant to enter into its next Second Amendment ruling? Are the justices awaiting another case, possibly Peruta? Is one of the majority justices in Heller waffling, making the others worried about the outcome of the next gun rights case?
All this, of course, is completely speculative. To be continued ...
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Mon May 05, 2014 at 6:36 AM PT: BREAKING NEWS. This morning, moments ago, SCOTUS announced it denied cert in Drake v. Jerejian. The pro-carry folks will be bummed ... until the next case, probably Peruta from the Ninth Circuit in California, comes up for consideration.