Firearms Law and Policy Newswire - John Drake runs an ATM service business. When he carries around cash, he'd also like to carry a handgun. Finley Fenton is a reserve sheriff's deputy who wants to carry a gun off duty for self-defense. Both are appealing to the Supreme Court for the right to carry a gun in public. The Supreme Court announced yesterday that they have postponed their decision on whether to accept the Drake v Jerejian gun rights petition for review.
Here, the US Supreme Court decides what cases to take and how it will decide them.
This is the second time that SCOTUS has postponed their decision. First scheduled for consideration on April 18th, the case was relisted for consideration last Friday, and now has been relisted again, for consideration this coming Friday, May 2nd. TRPChicago will preview the case and the arguments in a full-length diary on Friday.
This appeal is an opportunity for SCOTUS to consider whether the Second Amendment protects armed self-defense in public. If they decide to review this case, it could become the third seminal gun right's case, the first since Heller (2008) and McDonald (2010). Over the past 5 years, SCOTUS has declined at least five other petitions asking them to address the issue, three of them in the past year.
If they take the case, oral arguments would be scheduled some time next fall. It is far from certain whether they would expand gun rights into the public sphere. Generally speaking, the public has no constitutional right to be present in someone else's home. The right to armed self-defense in one's home is centered on the rights held by residents compared to rights held by the public. SCOTUS could decide that limiting the number of handguns in public is a legitimate state interest for the purpose of preventing crime and increasing public safety.
Join me below the fold for a quick look at Who's Who in the case and why they want to change New Jersey's "good cause" gun law.
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The petition and other documents in
Drake v Jerejian are available at the SCOTUSBlog, an excellent resource. Seven Amicus Briefs have already been filed by various gun rights organizations seeking to expand the right to keep and bear arms outside the home. Quoted material below is from the petition.
Who's Who in Drake v. Jerejian
It can be confusing to follow a case as it percolates up to the Supreme Court when the name of the case changes. In this case the lower court decisions were named Drake v Piszczatoski in the US District Court for the District of New Jersey, and Drake v Filko, in the 3rd Circuit Court of Appeals.
Petitioners John M. Drake, Gregory C. Gallaher, Lenny S. Salerno, Finley Fenton, Second Amendment Foundation, Inc., and Association of New Jersey Rifle
and Pistol Clubs, Inc. were plaintiffs and appellants below.
Respondents Edward A. Jerejian and Thomas D. Manahan, Judges of the New Jersey Superior Court; Col. Joseph R. Fuentes, Superintendent of the New Jersey State Police; Robert Jones, Police Chief of Hammonton, New Jersey; and Richard Cook, Police Chief
of Montville, New Jersey, were defendants and appellees below. Respondent John Jay Hoffman, Acting Attorney General of New Jersey, was an appellee below. Daniel J.
Piszczatoski was a plaintiff and appellant below. Jeffrey Muller was a plaintiff before the district court. Former New Jersey Attorneys General Paula Dow and Jeffrey Chiesa, and New Jersey Superior Court Judge Rudolph A. Filko were defendants and appellees below. New Jersey Superior Court Judge Phillip Maenza and former Hammonton, New
Jersey Police Chief Frank Ingemi were defendants in the district court.
The petition was filed by four individuals and two organizations. The individuals are residents of New Jersey who were denied permits to carry a concealed handgun in public. The two organizations, the Second Amendment Foundation (SAF) and the Association of New Jersey Rifle & Pistol Clubs, Inc., are petitioning on behalf of their members who live in New Jersey. Note that Alan Gura, counsel for the Second Amendment Foundation, is the advocate who persuaded the majority in both
Heller (2008) and
McDonald (2010) that the right to keep and bear arms protected by the Second Amendment is an individual right rather than a collective right connected to militia service.
The case seeks to strike down New Jersey's "good cause" law; it requires concealed carry permit applicants to prove to their Police and a Judge that they have a specific reason why they should be allowed to carry a weapon in public. If granted, the permit allows a loaded firearm to be carried on your person or in your vehicle in New Jersey. The final decisions to denying the permits were made by judges Edward Jerejian and Thomas Manahan. That is why the case is named Drake v Jerijian; Judge Jerejian is the lead respondent in the case.
They want the Supreme Court to address two questions
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 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 self-defense first prove a “justifiable need” for doing so.
- Petition - Drake v Jerejian
Why might the court postpone their decision?
There are many possible reasons. The court does not explain why they accept or reject an appeal. It can be fun to speculate though, so to get the discussion started I propose the following possibilities:
1. They have asked their clerks to research some question about the case.
2. They are waiting to hear whether the 9th Circuit Court of Appeals will review Peruta v. San Dieago en banc.
3. They want to address the issue but instead of accepting Alan Gura's questions for review they are drafting their own question.
4. They simply ran out of time in their conference last Friday. It was Good Friday and many of the Justices are Catholic.
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Further reading: A similar appeal to strike down Maryland's "good cause" law,
Concealed Carry Law petitions SCOTUS - Woollard v Gallagher, cert denied, October 15, 2013.