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NJ anti-gunners make hay of Monday’s SCOTUS denial on Drake case

The Supreme Court's reluctance to take a case on carry outside the home is under examination today.
Dave Workman

In the closing moments of yesterday’s New Jersey Senate Law and Public Safety committee hearing on new gun control legislation, State Sen. Donald Norcross, a Democrat, made hay of Monday morning’s decision by the U.S. Supreme Court to not review a challenge of that state’s highly-restrictive concealed carry law to justify further restrictions on magazine capacity.

“But as we heard today,” Sen. Norcross stated, “the U.S. Supreme Court ruled ‘justifiable need’ is well within the constitution.” The passage begins at 2:41:40 on the audio.

But that is not what the high court said. Norcross is running for Congress this fall, and the court said nothing about New Jersey’s arbitrary “justifiable needs” requirement that is nearly impossible to meet. The high court merely denied certiorari to the plaintiffs, including the Second Amendment Foundation, Association of New Jersey Rifle and Pistol Clubs (ANJRPC), and several individuals. The court did not "rule" on anything, but did allow a lower court ruling to stand.

Yet New Jersey Democrats appear willing to spin yesterday's actions to justify their push for tougher gun laws. Today, it is magazine capacity limits. Tomorrow, who knows?

ANJRPC Executive Director Scott Bach was justifiably disappointed by the court’s inaction. At the recent National Rifle Association gathering in Indianapolis, Examiner chatted with Bach, an attorney, who sincerely believed that if any case regarding carry outside the home had a chance of Supreme Court review, it was this one. Bach has lots of company.

The court’s decision not to hear the case of Drake v. Jerejian is mystifying to many observers, but no so to others. Damon Root, writing in Reason, said the court should have taken the case “head on” because of a split in the circuits on the question of whether the Second Amendment protects the right of private citizens to carry firearms outside the home for personal protection.

However, Bloomberg News, quoting law Prof. Adam Winkler from the University of California at Los Angeles, revealed a different perspective. Winkler told the news agency that, “The Supreme Court has shown no interest in returning to the Second Amendment over the past few years.”

Drake was the third case dealing with carrying firearms outside the home that the high court has declined to consider. Other cases came from Maryland and New York. Some activists are today suggesting the nine justices are afraid to take such a case. If the court follows its previous reasoning in the Heller and McDonald cases, it would seem certain that the majority opinion would come down on the side of carrying arms outside the home, in public areas.

Most state constitutions, and state concealed carry laws, already make this possible. But in New Jersey, the way concealed carry applications are handled appears egregious to the right to bear arms. As noted by the Christian Science Monitor, plaintiff John Drake “runs a business that services and restocks bank ATM machines,” a job that automatically places him in harm’s way of being robbed and even murdered. Another plaintiff, Finley Fenton, is a reserve sheriff’s deputy who is concerned about being attacked by criminals “with whom he interacts.”

Neither of these men showed a “justifiable need” as determined by the anti-gun bureaucrats who administer the concealed carry law. The trial judge ruled that there is no right under the Second Amendment to carry a handgun outside the home, the Christian Science Monitor noted. An appeals court panel agreed, and had this to say: “It remains unsettled whether the individual right to bear arms for the purpose of self-defense extends beyond the home.”

Today, angry and frustrated, many gun rights activists are wondering, if not this case, which case? If not now, when?

The Supreme Court yesterday essentially allowed – without declaring so – the establishment of two nations, one in which the right to keep and bear arms means what it says, and the other in which it does not. But this remains the United States, not a state of anarchy, and the nine justices need to face their responsibility and take up this important issue, say Second Amendment advocates.

As it now stands, gun prohibitionists can continue to exploit the court’s reluctance as a sign that the Second Amendment is an empty right, while gun rights activists can point to state constitutions and carry laws as proof that the individual right to bear arms does have some teeth. Both are right and both are mistaken, and that kind of stalemate cannot continue.

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