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Media Alerts - Drake v. Filko - Third Circuit
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August 5, 2013
  Drake v. Filko - Third Circuit
Headline: Third Circuit upholds New Jersey Handgun Permit Law

Area of Law: Second Amendment

Issue(s) Presented: Whether New Jersey's Handgun Permit Law, requiring individuals to show "justifiable need," is constitutional.

Brief Summary: Four New Jersey residents and two organizations appealed from a judgment of the United States District Court for the District of New Jersey that upheld a New Jersey law regulating the issuance of permits to carry handguns in public ("Handgun Permit Law"). On appeal, the Third Circuit held that, assuming the Second Amendment secures some right to carry arms outside of one's home, the Handgun Permit Law was constitutional. First, the Court decided that the law is presumptively constitutional. The Third Circuit further determined that, even if the means-end scrutiny test applied, the Handgun Permit Law would pass the intermediate scrutiny test.

Extended Summary: Four New Jersey residents and two organizations (collectively "Plaintiffs") appealed from a judgment of the United States District Court for the District of New Jersey that upheld a New Jersey law regulating the issuance of permits to carry handguns in public ("Handgun Permit Law"). Plaintiffs claimed that the District Court erred because: (1) the Second Amendment secured a right to carry arms in public for self-defense; (2) the "justifiable need" standard of the Handgun Permit Law was an unconstitutional prior restraint; and (3) the standard failed any level of means-end scrutiny a court may apply.

In New Jersey, individuals who wish to carry a handgun in public must have a license. The process and standard for obtaining such a license is found in New Jersey's Handgun Permit Law. Under that law, individuals who desire a permit to carry a handgun in public must apply to the chief police officer in their municipality or to the superintendent of the state police. The law provides that "[n]o application shall be approved by the chief police officer or the superintendent unless the applicant demonstrates that he is not subject to any of the disabilities . . . , that he is thoroughly familiar with the safe handling and use of handguns, and that he has a justifiable need to carry a handgun." Justifiable means is defined as "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." In addition, any application must be forwarded to a superior court judge who must also certify under the same requirements. Plaintiffs, after being denied permits, sought declaratory and injunctive relief, contending that New Jersey may not condition the issuance of a public-carry permit on an applicant's ability to demonstrate a "justifiable need." The District Court dismissed Plaintiffs' case below and they appealed.

The Third Circuit found that New Jersey's "justifiable need" standard has been around for over ninety years. Furthermore, New Jersey's longstanding handgun permitting scheme is not an anomaly. The "justifiable need" standard fits comfortably within the longstanding tradition of regulating the public carrying of weapons for self-defense. The Third Circuit found New Jersey's permit scheme to be comparable to New York's century long permit scheme requiring "proper cause." In addition, the Third Circuit recognized that seven other state legislatures also banned violent offenders from receiving permits to carry. Consequently, the Third Circuit, assuming that the Second Amendment conferred upon individuals some right to carry arms outside the home, nevertheless concluded that "the 'justifiable need' standard of the Handgun Permit Law is a longstanding regulation that enjoys presumptive constitutionality."

The Court also reasoned that even if New Jersey's Handgun Permit Law was not longstanding and was not presumptively constitutional, it would nonetheless withstand an intermediate level of 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.

The Third Circuit held that the State of New Jersey clearly had a significant, substantial, and important interest in protecting its citizens' safety. Therefore, the only issue was whether the Handgun Permit Law was a reasonable fit to carry out the State's goal. The government argued that the "justifiable need" standard precisely fits New Jersey's interest in assessing the dangers and risk to the public and to the person seeking to carry a handgun as it provides a means to determine whether the increase in risk and danger borne by the public is justified by a demonstrated risk and danger borne to the person seeking the permit. Despite the fact that the State could not provide any legislative evidence to support such predictive judgment, the Third Circuit held such inference was proper. The Third Circuit also cited to the existence of other similar gun control laws in other states. The Third Circuit emphasized that the fit between the challenged law and the interest in public safety need only be "reasonable." The Court held that even if there may be conflicting empirical data, New Jersey's case-by-case approach is not unreasonable.

Since the standard adopted by the Third Circuit was intermediate scrutiny, the government did not have to show that the Handgun Permit Law utilizes the least restrictive method. Therefore, the Court refused to intrude on the sound discretion of the State of New Jersey and affirmed the District Court's decision to uphold the Handgun Permit Law.
To read the full opinion, see:

Panel: HARDIMAN and ALDISERT, Circuit Judges, and STARK, District Judge.

Argument Date: February 12, 2013

Date of Issued Opinion: July 31, 2013

Docket Number: No. 12-1150

Decided: Affirmed

Case Alert Author: Tien Cheng

Counsel: David D. Jensen, Alan Gura, Plaintiffs; Jeffrey S. Chiesa, Gregory A. Spellmeyer, Daniela Ivancikova, Robert T. Lougy, Mary E. Wood, appellees; Adam K. Levin, amicus appellees.

Author of Opinion: Judge Aldisert

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 08/05/2013 10:56 AM     3rd Circuit  

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