Last Monday (Dec. 20th), the plaintiffs filed a Motion for Summary Judgment. See this PDF document.
What makes this different than all the other challenges that the SAF has used, prior to filing this case, is that this is a facial challenge to a specific portion of the law. the "lawsuit challenges the unrestrained discretion that New Jersey law vests in State and local officials to deny a “Permit to Carry” a handgun for lack of “justifiable need to carry a handgun.” N.J.S.A. § 2C:58-4(c), (d)."
There are two means to challenge contested law. The first (and easiest, therefore the most used) is an as-applied approach. This merely says that the law, as applied in this specific instance, is wrong.
The second approach, is a facial challenge. This approach is very difficult. What a facial challenge says is that in all cases, the law is wrong. Not just this case, but in every case. To defend against a facial challenge, all it is required is for the defense to prove that in one case, the law holds.
What you will see in this MSJ, is the most complete (to date) exposition on what the Court said in both Heller and McDonald. In doing this, the brief goes into how the 2A is most like the 1A. Both of these amendments encompass protections for individual actions, while the other amendments provide for procedural protections against government actions.
The brief argues that because the 1A and 2A are so similar, that similar courses of judicial scrutiny must apply.
In the case of NJ law on carry permits, the law in this case should be accorded no scrutiny at all, as it clearly runs afoul of the right, as expressed in the two preceding SCOTUS cases.
The law in question amounts to complete and unbridled discretion to say whether or not a citizen can exercise the right to carry at all. This would be similar to a law that said a citizen must obtain a license to go to church, but only a church recognized by the licensing authority; or that a citizen must have a license to publish, but only what the licensing authority wants published.
No court would give such a law any scrutiny at all. Nor should the court accord this law any scrutiny, as it is a complete denial of the fundamental right to carry:
This brief really is a good read. There are so many good quotes in this brief, that I could spend several posts, quoting the whole thing. But I will stop here with the concluding remarks of the brief:
What makes this different than all the other challenges that the SAF has used, prior to filing this case, is that this is a facial challenge to a specific portion of the law. the "lawsuit challenges the unrestrained discretion that New Jersey law vests in State and local officials to deny a “Permit to Carry” a handgun for lack of “justifiable need to carry a handgun.” N.J.S.A. § 2C:58-4(c), (d)."
There are two means to challenge contested law. The first (and easiest, therefore the most used) is an as-applied approach. This merely says that the law, as applied in this specific instance, is wrong.
The second approach, is a facial challenge. This approach is very difficult. What a facial challenge says is that in all cases, the law is wrong. Not just this case, but in every case. To defend against a facial challenge, all it is required is for the defense to prove that in one case, the law holds.
What you will see in this MSJ, is the most complete (to date) exposition on what the Court said in both Heller and McDonald. In doing this, the brief goes into how the 2A is most like the 1A. Both of these amendments encompass protections for individual actions, while the other amendments provide for procedural protections against government actions.
The brief argues that because the 1A and 2A are so similar, that similar courses of judicial scrutiny must apply.
In the case of NJ law on carry permits, the law in this case should be accorded no scrutiny at all, as it clearly runs afoul of the right, as expressed in the two preceding SCOTUS cases.
The law in question amounts to complete and unbridled discretion to say whether or not a citizen can exercise the right to carry at all. This would be similar to a law that said a citizen must obtain a license to go to church, but only a church recognized by the licensing authority; or that a citizen must have a license to publish, but only what the licensing authority wants published.
No court would give such a law any scrutiny at all. Nor should the court accord this law any scrutiny, as it is a complete denial of the fundamental right to carry:
This brief really is a good read. There are so many good quotes in this brief, that I could spend several posts, quoting the whole thing. But I will stop here with the concluding remarks of the brief:
