Drake v. Jerejian

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.

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:

QUESTIONS PRESENTED

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.