Is Drake A Strike Against The Second Amendment Or An Indication That The Court Will Allow Right To Carry Be Severely Limited? Right To Carry Took A Hit Today.

Supreme Court Passes On New Jersey Gun Control Case

May 5, 2014 by Ben Bullard

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The U.S. Supreme Court reaffirmed its ongoing hands-off stance on taking up cases involving 2nd Amendment rights today, declining without comment to hear a New Jersey case that challenges the Constitutionality of a State law forbidding lawful gun owners from carrying their firearms in public.

In passing on the highly scrutinized case, Drake v. Jerejian, the court allows to stand a ruling that affirms the state’s power to limit a gun owner’s right to carry a concealed weapon outside the home “for self-defense.”

The implicit merit attached to the case is that self-defense is, in fact, the central issue underlying the intent of the 2nd Amendment. SCOTUS blog, which first reported the Supreme Court’s non-action today, summarizes the merits this way:

Issue: (1) Whether the Second Amendment secures a right to carry handguns outside the home for self-defense; and (2) whether state officials violate the Second Amendment by requiring that individuals wishing to exercise their right to carry a handgun for self-defense first prove a “justifiable need” for doing so.

On both points, the Supreme Court would certainly have had a clear path to rule the State law unConstitutional.

By way of speculation, there could be a hidden silver lining in the Court’s inaction: If the only way to accept this case on the merits was to weigh the plaintiffs’ argument attaching the concept of “self-defense” to the intent of the 2nd Amendment, then the Court could have set a bad precedent – even if it had ruled in favor of the plaintiffs – if its ruling whittled down the 2nd Amendment’s meaning to apply only to “self-defense” when, in fact, the Founders wrote an Amendment that is manifestly broad in scope.

“Self-defense,” except perhaps from the government itself (as inferred from the 2nd Amendment’s understood acceptance of the need for a well-regulated militia), isn’t mentioned in the original document, and no action by the Supreme Court is at least preferable to an action that limits the 2nd Amendment only to that application.

Nonetheless, the plaintiffs end up the big losers in this instance. Drake v. Jerejian arose from a challenge to a New Jersey law requiring lawful gun owners to demonstrate to their government an “urgent need,” based on their need for self-defense, to take their guns with them anywhere outside the home. According to Newark’s Star-Ledger, gun owners must obtain the approval of both a “police official and a judge” for a permit that allows them to carry a concealed handgun at large.

The case was first filed by a store owner who, after experiencing an ordeal at the hands of kidnappers, applied for and was denied a concealed carry permit. Over its life span, the case has taken on other plaintiffs, and it currently involves a different plaintiff whose job involves transporting cash. Like the original plaintiff, the current plaintiff cites self-defense as his basis for requesting a concealed carry permit for a handgun.

Attorney Alan Gura, who’s won two previous landmark cases involving municipal gun laws before the Supreme Court, had been representing the plaintiffs in the Drake case. He toldReason today that the court’s passivity on the issue is amounts to a form of neglect for precedents it’s already established against overzealous local limitations on the scope of the 2nd Amendment.

“We’ve seen courts rubberstamp just about any kind of law that violates the Second Amendment,” said Gura. “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.”

Read more on the ruling at the Star-Ledger, and follow its history on the SCOTUS blog.