A divided federal appeals court has turned back a constitutional challenge to a New Jersey law that mandates applicants for a carry permit to show they have “justifiable need” to carry a weapon in public.
The law is a “presumptively lawful,” longstanding regulation and therefore does not burden conduct within the scope of the Second Amendment, the U.S. Court of Appeals for the Third Circuit held 2-1 in Drake v. Filko, 12-1150.
U.S. Circuit Judge Ruggero Aldisert wrote Wednesday’s opinion, joined by U.S. District Judge Leonard Stark of Delaware, sitting by designation. U.S. Circuit Judge Thomas Hardiman dissented, finding the law unconstitutional.
The decision affirms U.S. District Judge William Walls’ upholding of the constitutionality of the Handgun Permit Law, N.J.S.A. 2C:58-4, which was attacked by John Drake and three other New Jersey residents denied carry permits, along with the Second Amendment Foundation and the Association of New Jersey Rifle and Pistol Clubs.
The plaintiffs’ lawyer promises a further appeal. “Americans cannot be required to show a ‘justifiable need’ to exercise fundamental rights,” said Alan Gura, of Alexandria, Va.’s Gura & Possessky, in an email. “Judge Hardiman’s dissent is correct. We will give the full Third Circuit, and if need be the Supreme Court, an opportunity to examine this unfortunate decision.”
A spokesman for acting Attorney General John Hoffman, whose office defended the law, declined to comment.
Under the statute, someone seeking a carry permit must first apply to his or her local police chief or to the superintendent of State Police. In order to meet the “justifiable need” standard, the applicant must demonstrate the “urgent necessity for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot be avoided by means other than by issuance of a permit to carry a handgun.”
An applicant must also undergo an extensive criminal and mental health background check and demonstrate that he or she is “thoroughly familiar” with the safe handling of handguns.
The chief of police or the superintendent has the option of approving or declining the application. A person whose application has been turned down may appeal to a Superior Court judge.
New Jersey’s law is one of the strictest in the nation, and carry permits in New Jersey are rarely issued.
The plaintiffs challenged the constitutionality of the statute based on the U.S. Supreme Court’s rulings in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. Chicago, 130 S. Ct. 3020 (2010). In Heller, the court struck down as unconstitutional the District of Columbia’s outright ban on the ownership of handguns. In McDonald, the court said the other states had to abide by the Heller ruling.
Aldisert disagreed with that argument. “It remains unsettled whether the individual right to bear arms for the purpose of self-defense extends beyond the home,” he said, noting Heller was specific that individuals have the right to bear arms inside their homes.
"We reject Appellants’ contention that a historical analysis leads inevitably to the conclusion that the Second Amendment confers upon individuals a right to carry handguns in public for self-defense,” he said.
“[E]ven if some protected right to carry arms outside the home exists, the challenged requirement that applicants demonstrate a ‘justifiable need’ to obtain a permit to publicly carry a handgun for self-defense qualifies as a ‘longstanding,’ ‘presumptively lawful’ regulation.”
Aldisert pointed out that the “justifiable need” requirement has been part of New Jersey’s law in some form or another for almost 90 years. “The ‘justifiable need’ standard fits comfortably within the longstanding tradition of regulating the public carrying of weapons for self-defense,” he said.
Aldisert acknowledged that New Jersey legislators, when enacting laws regulating who may carry firearms in public decades ago, did not provide evidence in the legislative record that the special need requirements were necessary to protect the public.
“Simply put, New Jersey’s legislators could not have known that they were potentially burdening protected Second Amendment conduct, and as such we refuse to hold that the fit here is not reasonable merely because New Jersey cannot identify a study or tables of crime statistics upon which it based its predictive judgment,” Aldisert said.
The Handgun Permit Act balances a person’s desire to protect himself against the community’s interest in protecting people from being injured by someone carrying a handgun, he said.
Hardiman, in his dissent, said the question was not whether the “justifiable need” standard was good public policy, but whether it “contravenes” the Second Amendment, which in his view it does.
“Those who drafted and ratified the Second Amendment were undoubtedly aware that the right they were establishing carried a risk of misuse, and States have considerable latitude to regulate the exercise of the right in ways that will minimize that risk,” Hardiman said. “But States may not seek to reduce the danger by curtailing the right itself.”