Friday, April 18, 2014

Supreme Court Considers Whether To Accept The NJ Carry Case

Today is the day for the US Supreme Court to consider whether they will grant certiorari in the case of Drake v. Jerejian. This case, originally named Muller v. Maenza, challenges the state of New Jersey's requirement for the showing of "justifiable need" in order to obtain a carry permit.

From the petition for a writ of certiorari as filed with the Supreme Court:

The Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” District of Columbia v. Heller, 554 U.S. 570, 592 (2008). But in accordance with “the overriding philosophy of [New Jersey’s] Legislature . . . to limit the use of guns as much as possible,” State v. Valentine, 124 N.J. Super. 425, 427, 307 A.2d 617, 619 (N.J. Super. Ct. App. Div. 1973), New Jersey law bars all but a small handful of individuals showing “justifiable need” from carrying a handgun for self-defense, N.J. Stat. Ann. § 2C:58-4(c).

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 the Second Amendment encompasses the right to carry handguns outside the home for self-defense. But along with the highest courts of Massachusetts, Maryland, and the District of Columbia, which have refused to recognize this right, a divided Third Circuit panel below held that carrying handguns outside the home for self-defense falls outside the scope of the Second Amendment’s protection. It thus upheld New Jersey’s “justifiable need” prerequisite for carrying defensive handguns.

The federal appellate courts are also split 8-1 on the question of whether the government must provide evidence to meet its burden in Second Amendment cases. The First, Second, Fourth, Fifth, Seventh, Ninth, Tenth and District of Columbia Circuits require the government to produce legislative findings or other evidence to sustain a law burdening the right to bear arms. But the majority below held that the legislature’s policy decisions need not be supported by any findings or evidence to survive a Second Amendment challenge, if the law strikes the court as reasonable. Accordingly, the majority upheld New Jersey’s “justifiable need” law despite the state’s concession that it lacked legislative findings or evidence of the law’s public safety benefits, let alone the degree of fit between the regulation and the interests it allegedly secures.

The questions presented are:

1. Whether the Second Amendment secures a right to carry handguns outside the home for selfdefense.

2. Whether state officials violate the Second Amendment by requiring that individuals wishing to exercise their right to carry a handgun for selfdefense first prove a “justifiable need” for doing so.
The attorneys for the plaintiffs appealing this case are David Jensen and Alan Gura. Amicus briefs in favor of the plaintiffs have been filed by the NRA, Gun Owners of America, 24 Members of Congress, the Cato Institute, 19 states, the Judicial Education Project, and the Center for Constitutional Jurisprudence at Chapman University School of Law.

Attorney David Jensen said he is "cautiously optimistic" that the Supreme Court will accept the case.
"The issue has percolated in the appeals courts for the last year and a half," Jensen said. "It would be well-timed."
This echoes the sentiments of Frank Fiamingo of the NJ Second Amendment Society expressed in an interview Wednesday on the Polite Society Podcast. He noted the split between the Federal Circuits on this issue. The recent rulings by the 9th Circuit in Peruta and the associated cases adds weight to this argument.

It will take four Justices voting to accept the case for it to be granted certiorari. We didn't get that in the petitions for the Kachalsky and Woollard cases. We should know by the end of the day whether the Supreme Court will consider the third major Second Amendment case in the last decade.


  1. More likely it will be Monday before we hear anything publicly.

    I too am optimistic. All the major circuits with the big question have been polled by now. The Ninth was the latest (and the most resounding). There are not a whole lot of may-issue states left, and I think they have all had a circuit weigh in. So we're effectively done with getting all the courts to opine.

    I don't care what the answer is anymore, because a loss for us would force some real national legislative priorities. I just want the answer.

  2. Maryland Shall-issue has a county-by-county map up that shows the permissive issue counties in the "may-issue" states. It predates Peruta/Richards/Baker but does drive home that, outside of NJ and the greater NYC area, even the "may-issue" states shouldn't be written off as "anti-carry." The anti-carriers are even more localized and surrounded than we often think. If Peruta holds and even permissive may-issue, is forced in NYC they will have no meaningful population center to speak of.

  3. any updates on this?