Drake (NJ carry permits) files for cert with SCOTUS

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publius42

New member
QUESTIONS PRESENTED
The Second Amendment “guarantee 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©.


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 self-defense.


2. Whether state officials violate the Second Amendment by requiring that individuals wishing to exercise their right to carry a handgun for self-defense first prove a “justifiable need” for doing so.
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Since the Supreme Court has already decided that the core lawful purpose of the second amendment is self-defense and that handguns are covered by the second amendment, the first question boils down to: does the second amendment apply outside the home?

The idea of an indoor militia and Paul Revere riding along yelling for everyone to get inside where they are allowed to have guns is so ridiculous that I can't believe we're asking the Supreme Court this question, but here we are.

As for need-based second amendment rights, people who are statistically unlikely to be crime victims are victimized every day. Also, you never know when an event like hurricane Katrina, for example, will cause the government to effectively cease functioning temporarily, leaving citizens responsible for providing for personal defense and the common defense. Need-based 2A rights negate the possibility of preparing for self-defense for most people. The whole purpose of the 2A is to preserve the ability of the populace to prepare to defend ourselves.
 
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Al Norris

Moderator Emeritus
As to the other thread, yeah it was old. This could just as easily have gone there, but....

What I've begun to notice is that these older threads simply don't get read by the newer folks, when something happens to raise them back up.

So, it's really a Hobson's choice, isn't it? Well, almost. ;)

Since we're at Cert Stage for this one, a new thread is as good a choice as any.
 
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Aguila Blanca

Staff
publius42 said:
Since the Supreme Court has already decided that the core lawful purpose of the second amendment is self-defense and that handguns are covered by the second amendment, the first question boils down to: does the second amendment apply outside the home?

The idea of an indoor militia and Paul Revere riding along yelling for everyone to get inside where they are allowed to have guns is so ridiculous that I can't believe we're asking the Supreme Court this question, but here we are.
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The other problem with trying to differentiate between inside the home and outside the home with regard to the exercise of the 2A is that doing so essentially asks that the 2A be interpreted as assuring two separate rights: one a right to "keep" a firearm within the home, the second a right to bear a firearm outside the home.

But the language of the 2A refers to one, single, two-pronged right: " ... the right to keep and bear arms shall not be infringed."

It's just ONE right we're talking about. Having lost both Heller and McDonald, the antis are now trying to bifurcate that ONE right into two distinct parts, and to claim that Heller and McDonald only addressed the first part.
 
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SilverBulletZ06

New member
Honestly, I got half way through the brief and realized that I was wasting my time. The SCOTUS isn't taking 2A cases like this. They may nibble at an ancillary part or another part of firearms law not directly pertaining to the 2A (like the Straw Purchase case taken this past fall conference) but they are adamantly refusing to take ground breaking 2A case. Even when CA2 said that attacks outside the home without forewarning were imaginary the Big-9 sat on their laurels.
 
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press1280

New member
I'd try to keep things in perspective:
This is a brand new issue that is coming before the court. They almost never jump at the first(or second) cases that come to them. We know by SCOTUS' asking for response briefs that at least someone on the court is interested. More wins and more confusion among the lower courts makes it more and more difficult for them to keep punting on cases. We just have to be more patient and keep donating to SAF and others to keep the pressure on.
Will this case get cert? Don't know of course-I see it has some things going for it and some things not.
The bad part is that it's a similiar case to Woollard, which was denied just recently. We also still don't have a court striking down "need", so that split remains elusive.
The good part is we have an opinion below that went off the reservation in parts, a well written dissent with 4 members of CA3 voting for en banc. Gura's petition is well written and has re-framed the issue to show 2 different splits with this case.
 
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Tom Servo

Staff
I ran this one past Cary Hansel (counsel in Woollard), as well as Gene Hoffman. While they were encouraged by the decisions in Puerto Rico, they didn't expect them to be used as supplemental authority. The arguments can be quoted for emphasis, but they're not likely to carry much actual weight.
 
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Elerius

New member
So, if this were to to actually get to SCOTUS and won, would that be the end of the permit process? Once it was ruled that everyone has the right to carry outside the house, it would seem to me to follow but I'm not much on law details.
 
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rwilson452

New member
As always the devil is in the details. One outcome could be that the states could regulate concealed carry or open carry but not both.
 
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Jim March

New member
One outcome could be that the states could regulate concealed carry or open carry but not both.
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And we'll take that if that's all we can get. We know *exactly* what to do with open carry if concealed is illegal: hold "open carry rallies" in laps around the state capitol, exactly as we did in Ohio in 2004 I think it was?

Funny story there if you haven't heard it. Gunnies in OH sued to get CCW. They "lost" at the Ohio Supreme Court, but the ruling said that CC could be banned only because "everybody knew" that OC was legal (Klein case).

Yeah, well everybody did NOT know that. Major police departments had been busting people who dared to OC for years. Klein was technically a "loss" for our side but in practice it was a huge win - only a year worth of major annoyance got us a CCW law.

I would absolutely *love* to repeat that trick in Times Square, marching from there to the NYC mayor's office. Oh hell yes. Flipping NYPD a heavily armed bird the whole way. Sell tickets to that [bleep] on Pay Per View :D.
 
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TomNJVA

New member
It seems obvious to me that if our founding fathers intended that the 2nd Amendment should apply only within one's home, they would have chosen different words, such as "the right of the people to keep and bear arms in their homes shall not be infringed." Also, the word "bear" would not be necessary as keeping a firearm in your home without "bearing" it is meaningless. Furthermore, bearing arms outside the home was common practice back then, so why didn't the drafters of the constitution step forward and say "Hey, wait a minute, we meant just in your house.

The legislators in NJ need to spend less time debating the meaning of "keep and bear" and more time learning the meaning of "shall not be infringed".

TomNJ/VA
 
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62coltnavy

New member
I don't think SCOTUS will grant review simply to state that the 2A applies outside the home. Heller was sufficiently clear on the point, notwithstanding that it was not a holding in the case, and the court has been double dared to grant cert by several decisions concluding that the right does not exist outside the home. (I don't recall immediately which circuit it was that stated if the Supremes wanted the right to apply, they had better say so in less ambiguous language. Well, that didn't get review.

I see that two large issues are presented that must eventually be answered. First, what is the proper standard of review (Heller and McDonald assiduously avoided the question), and even assuming it is "intermediate scrutiny," what does that mean? As noted in the petition, some courts require actual evidence, others pay lip service to the standard, but apply what amounts to rational basis by refusing to evaluate a legislative decision--if the legislature said that the restriction was necessitated for "public safety," the court would not revisit that issue. [Personally, I think this "punt" is total political nonsense.]

Second, there is the question of whether the right to carry can be regulated in some fashion, and how the history of gun control plays into the equation. Once upon a time, concealed carry was evil--cases the Supremes specifically mentioned in the Heller analysis--but today, open carry is anathema to the soccer mom crowd, and concealed carry is definitely preferred under the "out of sight, out of mind" rational. Thus, arguably, the old case law is no longer apposite to current conditions, yet the court must decide the issue irrespective of the fashion of the day.

Which raise a purely political point that I think nonetheless has played a controlling role in the lack of a grant of cert to date. The issue revolves around the question of "may issue" and "shall issue," and the logical conclusion that, if carry outside the home is a guaranteed right (which seems likely), then the state must allow some method by which that right can be exercised by the average citizen, whether open carry or concealed carry (or both). If one is prohibited, the other must be allowed.

There is only one remaining "no issue" jurisdiction, D.C., that prohibits any kind of carry except locked unloaded under the FOPA. But that court is doing all that it can to avoid cert by delaying its decision in Palmer v. D.C. I cannot conclude, particularly after the years delay and the Second Circuits refusal to do anything about it, that the delay is anything but intentional. So we can disregard the Second for the purpose of this discussion.

There are a number of jurisdictions that are virtual no issue for CCW (despite a "may issue" regime), including NY, NJ, Hi and Ca. Of these, jurisdictions, on the Ninth has not weighed in. There are currently pending at least five "may issue" challenges (and one open carry challenge, currently appealing the denial of a preliminary injunction) that are pending determination, Richardson, and Peruta being the two lead cases (to which the Hawaii case is joined), with Birdt and a companion to it (also filed by attorney Birdt) chugging along behind. The lead cases were argued in December 2012, but no decision has issued. Obviously the decision will be hugely important.

I think that SCOTUS is waiting on the Ninth, but it is also possible that the Ninth is waiting on SCOTUS so that it does not have to decide a case that may have massive impact. Who will blink first?
 
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