Threatening gesture - Revealing a handgun

Yesterday, the Third Circuit announced a major decision that will help promote public safety in New Jersey.  In Drake v. Filko, the court upheld a law that requires people who would like to have a concealed weapon permit to demonstrate a “justifiable need” to carry a handgun.  This requirement gives law enforcement the discretion to grant permits to those who legitimately need a concealed weapon, while allowing law enforcement to reject permit requests from people known to pose significant safety risks to the community (such as domestic abusers who have not yet been convicted of crimes).

In upholding this requirement, the court joined the First, Second, and Fourth Circuits which have upheld similar laws.

The court began by noting that the issue of whether the new individual Second Amendment right recognized in the controversial landmark Supreme Court case Heller v. District of Columbia extends outside of the home is unsettled.  However, the court observed that “[f]irearms have always been more heavily regulated in the public sphere” and that historical analysis does not lead “inevitably to the conclusion that the Second Amendment confers upon individuals a right to carry handguns in public.” Nevertheless, the court proceeded with its analysis on the assumption that the right does have some application outside the home.

The court went on to hold that the “justifiable need” requirement qualified as a “longstanding” regulation and therefore “presumptively lawful” under Heller.  The court reached this conclusion because New Jersey’s law had some sort of justifiable need requirement for concealed carry applications since the early 20th century.  This is the same time period that the first bans on felons possessing firearms were enacted, which the Supreme Court had found longstanding and therefore presumptively lawful in Heller. Thus, the court held that the justifiable need requirement was outside the scope of the Second Amendment and could be upheld on that basis alone.

Nevertheless, although it did not need to do so, the court found that given the inherently dangerous nature of handguns in public, the justifiable need requirement is reasonably related to the government’s interest in protecting public safety.  The court also rejected the plaintiffs’ extreme argument that this law restricts the individual’s Second Amendment rights in the same way that a “prior restraint” on speech restricts First Amendment rights.

Although one judge dissented from the panel’s ruling, even that judge rejected the more extreme arguments of the gun lobby.  He agreed that First Amendment prior restraint analysis should not be applied to restrictions on the public carrying of firearms. He also agreed that intermediate, rather than strict, was the appropriate level of scrutiny to apply, an acknowledgement that the legislature should have some discretion in how they choose to promote public safety.

This ruling is a well-reasoned and welcome step forward in keeping New Jersey residents safe.  In cases like this, the gun lobby has tried to use the courts to force all states to adopt a Florida or Texas style “shall issue” system where virtually anyone can walk the streets with a gun and law enforcement has no discretion at all.  Fortunately, as this case demonstrates, their efforts have been overwhelmingly rejected.  For more information on Second Amendment litigation, including the other circuit court decisions on concealed carry permits, please see our Post-Heller Litigation Summary.