Drake v. Filko, No. 12-1150; Third Circuit; opinion by Aldisert, U.S.C.J.; dissent by Hardiman, U.S.C.J.; filed July 31, 2013. Before Judges Hardiman, Aldisert and Stark, District Judge, sitting by designation. On appeal from the District of New Jersey, No. 2-10-cv-06110. [Sat below: Judge Walls.] DDS No. 10-8-xxxx [72 pp.]

In New Jersey, individuals who wish to carry a handgun in public for self-defense must first obtain a license. New Jersey's Handgun Permit Law, N.J.S.A. 2C:58-4, provides that such an individual must apply to the chief police officer in his municipality or to the superintendent of the state police. He must show that he is not subject to any of the disabilities in 2C:58-3c, is thoroughly familiar with the safe handling and use of handguns, and has a justifiable need to carry a handgun. N.J.A.C. 13:54-2.4(d)(1) defines "justifiable need" as the urgent need for self-protection due to specific threats or previous attacks posing special danger to the applicant's life that cannot be avoided by means other than by issuance of a permit to carry. If the applicant meets the requirements, the application is sent to a superior court judge who issues the permit if satisfied that the applicant meets the statutory requirements.

Plaintiffs, individuals whose applications were denied and organizations whose members were denied or did not apply for permits because they failed to satisfy the justifiable-need requirement, sought declaratory and injunctive relief, contending that New Jersey may not condition the issuance of a public-carry permit on the ability to show a justifiable need. The district court dismissed the complaint.

On appeal, appellants contend that (1) the Second Amendment secures a right to carry arms in public for self-defense; (2) the justifiable-need standard of the Handgun Permit Law is an unconstitutional prior restraint; and (3) the standard fails any level of means-end scrutiny a court may apply.

Held: The requirement that applicants demonstrate a justifiable need to publicly carry a handgun for self-defense qualifies as a presumptively lawful, longstanding regulation and therefore does not burden conduct within the scope of the Second Amendment's guarantee. Even if the justifiable-need standard fails to qualify as such a regulation, it withstands intermediate scrutiny and is, therefore, constitutional.

The court first considers whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee. It observes that District of Columbia v. Heller, 554 U.S. 570 (2008), which invalidated a law forbidding possession of handguns in the home, was the first explicit recognition that the Second Amendment confers on individuals a right to keep and bear arms for self-defense. McDonald v. City of Chicago, 130 S.Ct. 3020 (2010), held that this right applied equally to the states through the Fourteenth Amendment. The court says whether the right to bear arms for self-defense extends beyond the home remains unclear.

Assuming, without deciding, that the right does apply beyond the home, the court concludes that the justifiable-need requirement qualifies as a "longstanding," "presumptively lawful" regulation that enjoys presumptive constitutionality under the teachings articulated in Heller and expanded on in Third Circuit precedent. It says Heller noted that it did not cast doubt on longstanding prohibitions on the possession of firearms by, for example, felons. It also said that the presumptively lawful regulations it identified did not compose an exhaustive list. Exploring the meaning of "presumptively lawful," the Third Circuit has said that presumptively lawful regulatory measures are exceptions to the Second Amendment guarantee.

The court says the justifiable-need standard has existed in New Jersey in some form since 1924. The predecessor to the present law underwent multiple revisions, the requirement of "need" enduring in each. The justifiable-need standard was adopted in 1978.

New Jersey's longstanding handgun permitting schema is not an anomaly. Many recent judicial opinions have discussed historical laws regulating or prohibiting the carrying of weapons in public. The justifiable-need standard fits comfortably within this longstanding tradition.

The court concludes that the "justifiable need" standard is a longstanding regulation. It regulates conduct falling outside the scope of the Second Amendment's guarantee.

Having so concluded, the court says it need not apply means-end scrutiny, but it does so because the constitutional issues presented are of critical importance.

The court says Heller makes it clear that rational basis scrutiny may not be applied to a law that burdens protected Second Amendment conduct. Strict scrutiny should not be applied because if the Second Amendment protects the right to carry a handgun outside the home for self-defense, that right is not part of the core of the amendment. The court thus concludes that the appropriate applicable level of means-end scrutiny is intermediate scrutiny.

Under intermediate scrutiny, the government must assert a significant, substantial or important interest. There must also be a reasonable fit between that asserted interest and the challenged law, such that the law does not burden more conduct than is reasonably necessary. Substantial deference must be given to the legislature's predictive judgments.

The court says the state has a significant, substantial and important interest in protecting its citizens' safety. Therefore, the issue is whether there is a "reasonable fit" between this interest and the means chosen by New Jersey to achieve it: its justifiable-need standard.

The predictive judgment of New Jersey's legislators is that limiting the issuance of permits to carry to only those who can show a justifiable need will further its substantial interest in public safety. Legislators in other states, including New York, have reached this same predictive judgment and have enacted similar laws. The court says that requiring applicants to demonstrate a justifiable need is a reasonable implementation of New Jersey's substantial interest in public safety.

The court says the standard meets the requirement that it not burden more conduct than is reasonably necessary. New Jersey engages in an individualized consideration of each person's circumstances and his objective, rather than subjective, need to carry a handgun in public. This measured approach neither bans public carrying nor allows public carrying by all firearm owners. New Jersey has left room for public carrying by those who can show a justifiable need to do so. The court declines to intrude on the sound judgment and discretion of the state. The justifiable-need standard withstands intermediate scrutiny.

Judge Hardiman dissents, opining that the majority misreads Heller and McDonald, the Second Amendment applies outside the home, and New Jersey's law conditioning issuance of a permit to carry a handgun in public on a showing of justifiable need contravenes the Second Amendment.

For appellants — David D. Jensen, of the N.Y. bar; and Alan Gura, of the Va. bar (Gura & Possessky). For appellees — Jeffrey S. Chiesa, Attorney General (Gregory A. Spellmeyer, Daniela Ivancikova, Robert T. Lougy and Mary E. Wood, Office of the Attorney General of New Jersey). For amicus appellees — Adam K. Levin, of the D.C. bar (Hogan Lovells US).