Drake v. Jerejian

Supreme Court Side-Steps Second Amendment Again

Once again, the US Supreme Court has refused to hear an appeal in a case concerning the Second Amendment and bearing arms for self-defense outside the home.  On Monday May 5, without comment, the Court rejected the case of Drake, et al. v. Jerejian.  The case challenged New Jersey’s law regarding concealed carry.  Under that law, a person applying for a license to carry a concealed firearm must prove a “justifiable need” to even be considered, and can still be denied at the whim of local law enforcement.  The “justifiable need” provision requires that the person prove “specific threats or previous attacks demonstrating a special danger to applicant’s life that cannot be avoided by other means.”  The plaintiffs in the Drake case included a man who restocks ATM money machines, a Reserve Sheriff’s Deputy, a civilian employee of the FBI, and a person who was the victim in an interstate kidnapping.  All of them had been denied the right to carry by New Jersey’s system.

The Federal Appeals Court for the 3rd Circuit (NJ, PA, DE, and PR) ruled that the law’s stringent requirements are not a violation of the Second Amendment right to bear arms.  By refusing to review that ruling, the Supreme Court allows that 3rd Circuit ruling to stand.  In recent months, similar rulings in similar cases challenging carry restrictions in New York and Maryland were also ruled constitutional by the 2nd and 4th Circuit Courts (NY, VT, CT, and RI, and WV, VA, MD, NC, and SC respectively) and were refused review by the Supreme Court.

In contrast, a case in the 7th Circuit (WI, IL, and IN) ruled in the opposite direction, forcing the state of Illinois to adopt a reasonable process for lawful carry outside the home.  Illinois was the only state in the country with laws completely forbidding defensive carry.  The Illinois Attorney General decided not to appeal the decision and the legislature cobbled together a system for issuing carry licenses.  Two recent cases in the 9th Circuit (CA and 8 other western states) went further, concluding that California’s “needs-based,” discretionary system for licensing self-defense carry is too strict and arbitrary, and therefore unconstitutional.  Those cases represent a dramatic split in the way the various circuits are treating Second Amendment cases since the Supreme Court’s landmark decisions in Heller and McDonald.  Splits like this put pressure on the Supreme Court to clarify the issue and bring all of the circuit courts into alignment under one standard, but there is no legal requirement that they do so. 

With the Court’s decision not to hear Drake, the focus of the rights community has shifted back to the West again and the 9th Circuit’s decisions in the Richards and Peruta cases.  Both cases were decided by the same 3-judge panel and both have been petitioned for an en banc hearing by a larger panel of the circuit’s judges.  Things get a little complicated at this point because the Richards case is dependent upon the Peruta case and is on hold pending resolution of Peruta.  I’m no lawyer, but based on the makeup of the 9th Circuit, I don’t see much chance of the Peruta decision surviving an en banc hearing, and I’m sure there are many judges in the Circuit anxious for an opportunity to reverse that decision.

Regardless of the outcome of the en banc petition, the case will almost assuredly be appealed to the Supreme Court.  Whether the Court will decide to take it up or not is anyone’s guess.  How many people will die or be seriously injured in the interim for lack of a legal means of effective self-defense is also an open question.

One of the most frustrating aspects to the legal wrangling over bearing arms, aside from the obvious meaning of the Second Amendment, is the fact that there is clear evidence readily available which proves that restrictions on citizens bearing arms for self-defense do not enhance public safety.  There is also ample evidence that having few or no restrictions on citizens bearing arms for lawful purposes  not only does not have a negative impact on public safety, but often makes the public safer.  All of the arguments against free exercise of the right to bear arms are based on negative assumptions about, and mistrust of, our fellow citizens, and everywhere those assumptions have been tested, the citizens have proven them to be baseless.

The 50 laboratories we call states – and the hundreds of cities within them – have been carrying out ongoing experiments for over 100 years – some over 200 years – and when it comes to guns and self-defense, the results are in: Gun control laws don’t work, and removing legal impediments to citizens carrying firearms does not result in any of the negative consequences that are always predicted.

Perhaps one of these days the Supreme court will hear the Peruta case or some other case looking at these issues and they will finally acknowledge that the Second Amendment actually means what it says; that individual citizens have the right to choose when, where, and how they want to keep and bear their arms for defense of themselves, their families, and the state.

Concealed Carry is recognized as a right in most states.  Only a few states treat

it as a privilege and severely restrict, or in the case of DC deny, the right to carry.

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