In a little noticed, but potentially significant ruling yesterday, the U.S. Supreme Court denied review of a Second Amendment case from New Jersey that sought to establish a constitutional right to carry handguns in public. The case, Drake v. Jerejian, is important because the trial and appellate courts found that the local sheriff acted reasonably in denying plaintiff a permit to carry a gun in public on the ground that he had no “justifiable need” for such protection.
In other words, the High Court let the New Jersey law stand and decided not to constitutionalize laws that govern gun safety in public places.
Appellate courts in other circuits have come down on varying sides of the issue as to whether the Supreme Court’s gun-rights decisions of the last several years that established a personal right to bear arms were restricted to self-protection in one’s home (as Justice Scalia had framed the issue in District of Columbia v. Heller) or could spill into the streets and beyond. So far, at least, the Supreme Court is staying true to Scalia’s initial formulation that the Second Amendment is akin to a personal right of self-defense at home – meaning that gun safety laws regulating public use are not in immediate jeopardy.
Prior to the High Court’s 2008 decision in Heller, the right to bear arms was circumscribed by language in the Second Amendment limiting its exercise to a “well regulated Militia.” This limitation was based upon the Framers of the Bill of Rights’ concern stemming from the Revolutionary War that British soldiers should not be able to disarm state militias raised for the common defense. In Heller, a 5-4 majority of conservative justices, however, jettisoned the “Militia” restriction as mere surplusage and found a personal right to bear arms to defend oneself inside one’s abode – presumably from the ghosts of British soldiers or perhaps Benedict Cumberbatch (as Kahn, not Sherlock).
In a 2010 ruling, the Supreme Court in McDonald v. Chicago extended Heller to bind the states. And since that time, several cases aimed at testing continued viability of laws regulating the public use of guns have been percolating up through the appellate courts around the country. So far, the Third and Fourth Circuits (New Jersey and Maryland) have reaffirmed Heller in restricting the Second Amendment to self-protection at home. But not the Seventh and Ninth Circuits (Illinois and California). California!
Of all appellate courts, the usually liberal Ninth Circuit Court of Appeals in February of this year concluded to the contrary: that the Second Amendment protects the right to bear arms in public and struck down a San Diego conceal and carry law where the local sheriff had denied plaintiff a permit, finding his concern for personal safety lacked “good cause.”
According to the Ninth Circuit panel in Peruta v. San Diego,
"The Second Amendment does require that the states permit some form of carry for self-defense outside the home. . . . States may not destroy the right to bear arms in public under the guise of regulating it."
It turns out that the particular three judge panel which decided the case was tilted two-to-one in favor of conservative judges. The losing sheriff who is facing reelection decided not to request en banc review by the entire appellate court. So Kamala Harris, the California Attorney General, is presently attempting to intervene in the case to argue in favor of the constitutionality of California’s conceal and carry gun permit procedure, but her standing has not been ruled upon.
It will be interesting to see if the High Court’s denial of certiorari in Drake has an ameliorating influence on the Ninth Circuit’s decision in Peruta, either to grant en banc review and/or reverse the original panel.
Is the Roberts Court through expanding the Second Amendment – or just temporarily resting?
Even in Heller, Scalia plainly recognized that the Second Amendment does not invalidate all gun safety legislation. His ruling was limited to overruling one particular District of Columbia law that imposed an “absolute prohibition of handguns held and used for self-defense in the home.”
Writing for the Court’s majority, Scalia concluded:
“We are aware of the problem of handgun violence in this country. . . . The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. . . . .”
Indeed, Heller recognized another important limitation on the right to keep and carry arms based upon precedent -- namely that the the Second Amendment only protects the sorts of weapons “in common use at the time.” Accordingly, says Scalia, "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right." This further limitation shows that the Second Amendment, like the entire Bill of Rights, is subject to nuance and reasonable restrictions, which may come into play if and when Congress ever gets around to reauthorizing, and the Supreme Court were called upon to determine the constitutionality of, the Assault Weapons Ban.
The gun lobby is reported to have selected, funded and promoted Drake as a means to test the limits of Supreme Court jurisprudence on the continued legitimacy of gun control legislation. So far, their investment has not paid dividends.