Today the U.S. Supreme Court decided to allow lower courts to continue rubberstamping any and every kind of law that violates the 2nd Amendment.
In a major announcement this morning, the Supreme Court refused to hear Drake v. Jerejian, a case challenging the constitutionality of New Jersey’s arbitrary rules governing the right to carry handguns in public for purposes of self-defense.
The lawyer behind the case is Alan Gura, the civil rights litigator who previously argued and won both Heller and McDonald before the high court. In an interview with me last month, Gura explained his reasons for bringing the Drake case. “We’ve seen courts rubberstamp just about any kind of law that violates the Second Amendment,” he said, describing the legal climate in the wake of Heller and McDonald. “Unless the Supreme Court decides to enforce its pronouncements, the Second Amendment will apply only to the extent that some lower courts are willing to honor Supreme Court precedent.”
It now appears the Supreme Court is content to let the lower courts keep rubberstamping away.
Drake v. Jerejian deserved the high court’s attention. At issue was New Jersey’s Handgun Permit Law, which requires applicants to prove they have a “justifiable need” before local officials will issue a handgun carry permit. Unlike those states that maintain a “shall issue” permit regime, where applicants are required to satisfy a clear list of objective criteria, such as completing a firearms safety course and passing a criminal background check (if you meet the qualifications, the government “shall issue” you a permit), New Jersey grants local officials wide leeway in determining what qualifies as a “justifiable need” in their respective jurisdictions.
The practical effect of that wide leeway has been the overwhelming denial of permit applications by local officials. In the words of state Sen. Jeff Van Drew (D-Cape May), “It’s virtually never done.”
“Americans are not required to justify their need to exercise a fundamental right,” Gura stressed in his interview with me. “If the government can force you to provide a reason to exercise your right, then it’s no longer a right.”
The U.S. Court of Appeals for the 3rd Circuit, by contrast, which ruled against Gura in 2013, saw no constitutional problem with the state’s licensing scheme because it “does not burden conduct within the scope of the Second Amendment.”
By refusing to hear the Drake appeal today, the Supreme Court left that ruling by the 3rd Circuit undisturbed. Yet in 2012, the U.S. Court of Appeals for the 7th Circuit, in Moore v. Madigan (another case brought by Alan Gura), reached the opposite conclusion, voting to strike down Illinois’ blanket ban on carrying guns in public. “The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside,” the 7th Circuit held.
The Supreme Court should have tackled that circuit split head on. Because it failed to do so, the Second Amendment now means one thing for responsible gun owners living in New Jersey and another thing for those living in Illinois.