May 5, 2014

SCOTUS Declines to Hear Another Gun Case

The High Court declined a chance to further clarify the Second Amendment.

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Over the last half-dozen years, the Supreme Court has made great strides in spelling out the extent to which government can ban or regulate the ownership and use of handguns in both the District of Columbia v. Heller case from 2008 and the McDonald v. Chicago case in 2010. Local handgun bans were deemed too strict and in violation of the Second Amendment right to keep and bear arms.

Unfortunately, the Court declined to take up another case from the Third Circuit that would offer some needed clarification. The target of Drake v. Jerejian was a New Jersey law mandating that Garden State residents demonstrate a “justifiable need” to carry a handgun in public. While any state resident can apply for a handgun permit, as few as two out of every 10,000 are approved, with local officials given wide latitude to reject applications despite the fact that state law spells out “justifiable need” as “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.” Surely more than two in 10,000 would qualify under this standard, but New Jersey has the reputation of being a difficult state for Second Amendment proponents.

In any case, as Alan Gura, the attorney who argued and won both Heller and McDonald, put it, “Americans are not required to justify their need to exercise a fundamental right. If the government can force you to provide a reason to exercise your right, then it’s no longer a right.”

Counter not just to the Second Amendment itself but to other appellate courts and Supreme Court precedent, the Third Circuit ruled that New Jersey’s law “does not burden conduct within the scope of the Second Amendment.” As two examples of contrary rulings, the Seventh Circuit ruled in Moore v. Madigan that a statewide ban on carrying firearms in Illinois ran afoul of the Second Amendment, while the Ninth Circuit said in Peruta v. County of San Diego that San Diego’s “good cause” requirement for concealed carry was too big a burden on gun rights.

But the Third Circuit didn’t seem to care much for precedent or the Constitution. “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.” In effect, the message was this: Never mind what the Constitution says, even though it’s the ultimate law of the land. Laughably, the court went on to say that because New Jersey’s law predated the Heller decision, “New Jersey’s legislators could not have known that they were burdening Second Amendment conduct.” That’s only because, like the court, legislators ignored the plain language of that Amendment.

With these lower courts reaching widely disparate conclusions, the Supreme Court should have stepped in to clarify and, ideally, overturn the onerous restrictions New Jersey places on its citizens. The Court misfired on this golden opportunity to solidify a more uniform understanding of the Second Amendment around the nation.

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