Cert Denied In Drake v. Jerejian

The Supreme Court denied certiorari to the New Jersey case challenging that state’s justifiable need requirement to obtain a carry permit. The list of orders gives no explanation for the denial.

Lyle Denniston of the SCOTUS Blog had this to say in his live blog of the announcement:

The denial of Drake was without explanation or noted dissents. That does not mean that no one voted for cert; probably that those who wanted to grant, if there were any, were unsure about prevailing on the merits. The list of denial of 2d Amendment outside-the-home cases is lengthening. It is unclear what kind of case on that subject will attract the Court’s attention.

While we have a split in the circuits, it doesn’t mean that they have to take a case. Countertop has a very good overview of what may have transpired regarding this case in the comments over at Shall Not Be Questioned. 

All I can say is damn. After they punted on Kachalsky and Woollard (especially Woollard!), I thought this might be the one. The only way around this for people living in occupied territories is to convince their friend and neighbors that this must change legislatively.

No Word Yet On Drake v. Jerejian (Updated)

Examining the list of orders from the US Supreme Court issued this morning, the one obvious omission on the list was Drake et al v. Jerejian et al. This is the New Jersey case that challenges that state’s requirement for the showing of justifiable need in order to obtain a carry permit.

The case was up for discussion as to whether to take it or not on Friday. As it hasn’t been denied, I guess this means no news is good news.

UPDATE: Dirk Diggler reports in the comments that the SCOTUS has passed this case to this coming Friday’s conference. Keep your fingers crossed.

UPDATE II: The SCOTUS passed on this again. It wasn’t denied nor was it granted certiorari. Thus, for now, no news remains good news.

From Lyle Denniston at the SCOTUS Blog:

The Court also took no action on the latest attempt to get the Court to expand the Second Amendment right to possess a gun so that it applies outside the home. The case is Drake v. Jerejian, seeking to challenge a New Jersey law that requires an individual to obtain a permit to carry a handgun in public. The law requires proof that an individual has a “justifiable need” to carry a gun in public for purposes of self-defense.

Here is the link to the SCOTUS Blog’s Relist Watch for this week which does mention Drake. It also notes that many of the more recent grants of certiorari have come from the relisted cases.

Supreme Court Considers Whether To Accept The NJ Carry Case

Today is the day for the US Supreme Court to consider whether they will grant certiorari in the case of Drake v. Jerejian. This case, originally named Muller v. Maenza, challenges the state of New Jersey’s requirement for the showing of “justifiable need” in order to obtain a carry permit.

From the petition for a writ of certiorari as filed with the Supreme Court:


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 selfdefense.

2. Whether state officials violate the Second
Amendment by requiring that individuals wishing to
exercise their right to carry a handgun for selfdefense
first prove a “justifiable need” for doing so.

The attorneys for the plaintiffs appealing this case are David Jensen and Alan Gura. Amicus briefs in favor of the plaintiffs have been filed by the NRA, Gun Owners of America, 24 Members of Congress, the Cato Institute, 19 states, the Judicial Education Project, and the Center for Constitutional Jurisprudence at Chapman University School of Law.

Attorney David Jensen said he is “cautiously optimistic” that the Supreme Court will accept the case.

“The issue has percolated in the appeals courts for the last year and a half,” Jensen said. “It would be well-timed.”

This echoes the sentiments of Frank Fiamingo of the NJ Second Amendment Society expressed in an interview Wednesday on the Polite Society Podcast. He noted the split between the Federal Circuits on this issue. The recent rulings by the 9th Circuit in Peruta and the associated cases adds weight to this argument.

It will take four Justices voting to accept the case for it to be granted certiorari. We didn’t get that in the petitions for the Kachalsky and Woollard cases. We should know by the end of the day whether the Supreme Court will consider the third major Second Amendment case in the last decade.

Update On Drake Case

Drake v. Jerejian is the New Jersey case that is a challenge to their concealed carry permit requirements. The case started out a long while ago as Muller v. Maenza and Piszczatoski v. Maenza. The case was appealed to the US Supreme Court in January.

On Friday, the state of New Jersey filed a brief opposing this petition to the Supreme Court. The state asserts that there is no reason for the Supreme Court to hear the case and that the Second Amendment does not preclude the state from requiring a justified need to issue a carry permit.

From the Second Amendment Foundation:


Today, the New Jersey Attorney General filed a brief in the Drake right to carry case, urging the U.S. Supreme Court not to take the case. Drake is the pending federal challenge to New Jersey’s unconstitutional carry law, brought by the Association of New Jersey Rifle & Pistol Clubs (ANJRPC) and the Second Amendment Foundation (SAF), who have asked the Supreme Court to hear the case.

At the heart of the lawsuit is the idea that citizens should not have to prove “need” to exercise a fundamental Constitutional right. New Jersey’s “justifiable need” standard requires the applicant to provide evidence of prior attacks or threats before a carry permit is issued by a judge – a virtually impossible standard for most people to meet.

Though less extreme in its rhetoric than in earlier phases of the case, the Attorney General in the brief essentially defends New Jersey’s carry law and tells the Supreme Court there is no reason for it to hear the case:

“[T]he Second Amendment does not prohibit New Jersey from requiring applicants to demonstrate a justifiable need before granting a permit to publicly carry a handgun. The justifiable need standard in New Jersey’s Handgun Permit Law qualifies as a presumptively lawful, longstanding regulation that does not burden conduct within the scope of the Second Amendment’s guarantee… Petitioners have failed to demonstrate that the Third Circuit’s decision here presents a question that warrants this Court’s discretionary review.”

While it is not unusual for an attorney general to defend state law, it is unfortunate to see such a blatant violation of fundamental rights be given legitimacy by bureaucrats.

“The right to defend yourself with a firearm outside the home, otherwise known as right to carry, has long been disparaged and denied in the Garden State,” said ANJRPC Executive Director Scott Bach. “We intend to change that with this lawsuit.”

“This case is extremely important because it may have a national impact on gun rights in all 50 states,” said SAF Executive Vice President and founder Alan Gottlieb. “This suit is part of our effort to win firearms freedom one lawsuit at a time.”

The Supreme Court will likely decide whether it will take the Drake case between April and June. We will spare no effort or expense to restore right to carry in the Garden State and protect that right all across America.