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Time for SCOTUS to define ‘bearing’ arms, and state limits?

Attorneys general from 19 states, and many others, are hoping another Second Amendment case ends up here, in the Supreme Court.
Attorneys general from 19 states, and many others, are hoping another Second Amendment case ends up here, in the Supreme Court.
Win McNamee/Getty Images

The U.S. Supreme Court is being asked to hear a case that could bring a definitive ruling on the right to bear arms outside the home, and yesterday 19 state attorneys general filed a brief with the high court urging it to take the case, ABC News reported.

Those AGs contend that upholding New Jersey’s requirement to provide a “justifiable need” to carry a gun outside the home for personal protection may allow future federal regulations to “effectively preempt” permitting schemes in 43 states, including their own.

The attorneys general are not alone. The National Rifle Association has submitted its own brief, as have 34 members of Congress, all in a case filed by the Second Amendment Foundation and Association of New Jersey Rifle & Pistol Clubs on behalf of a Garden State man who is challenging that state’s arbitrary carry permit process that keeps citizens unarmed. The case is known as Drake v. Jerejian.

Former Congressman Bob Barr weighed in on the case yesterday, criticizing the opinion from the Third Circuit that essentially says “bureaucrats working for the Commonwealth of New Jersey may summarily deny citizens the right to protect themselves against armed criminals -- notwithstanding the language in the Second Amendment guaranteeing individuals that right, and as reaffirmed by the United States Supreme Court in two landmark decisions in 2008 and 2010.”

The high court has already turned down a couple of cases from other circuits that raise the same issue, a question that was not specifically answered by either the 2008 Heller ruling or the 2010 McDonald ruling. Both landmark Second Amendment cases were argued successfully by Virginia attorney Alan Gura. By no small coincidence, he is representing SAF on the Drake case.

Following Heller and McDonald, gun prohibitionists put forth the argument that, based on SCOTUS language in those rulings, the Second Amendment only applies within the home, a notion that gun rights advocates and many constitutional experts consider preposterous, if not outright delusional. A right that exists only in the home is not a right at all, they argue, but a heavily-regulated privilege, which they believe is how the gun control crowd would have it.

The plaintiffs lost at the trial court level and appealed to the Third Circuit, where they also suffered a setback that is best addressed in the amicus brief submitted by the 19 attorneys general, with Wyoming Attorney General Peter K. Michael taking the lead. They contend that it is time for the high court to clarify for one and all – including lower courts – how the Second Amendment applies outside the home. Here’s how they frame their argument:

“The Third Circuit’s decision in Drake threatens to give advance judicial endorsement to potential efforts by Congress to establish a minimum federal boundary that would violate Second Amendment rights. That misplaced boundary would shake the foundation on which Wyoming and all other states with gun permitting schemes less restrictive than New Jersey have relied on. While it is obvious that New Jersey’s permitting requirement has no direct effect on the laws of states that are more protective of an individual’s right to keep and bear arms, the implications of Drake are far reaching. If the right to keep and bear arms can constitutionally be so restricted as to require a showing of ‘justifiable need’ in order for a citizen to exercise it, future federal regulations could effectively preempt the carefully constructed permitting schemes of forty-three states with less restrictive requirements.

“Consistent with this Court’s role in regulating the relationship between the state and federal governments, this Court should grant the petition for writ of certiorari to determine whether New Jersey has imposed hurdles on the right to carry handguns that excessively burden the Second Amendment. Because New Jersey law restricts the right to keep and bear arms without distinction between carrying a handgun openly or concealed, this case presents this Court with an opportunity to broadly define the scope of the Second Amendment outside of the home. Addressing this issue here and now will serve to answer many other narrow questions that could otherwise be raised regarding individual permitting schemes in numerous cases…

“The unavoidable uncertainties following Heller and McDonald have manifested themselves as multiple splits of authority, both in the federal and state courts. Granting the petition for writ of certiorari in this case will provide the Court with the opportunity to give much-needed certainty as to the constitutionality of requiring an individual to show a ‘justifiable need’ to exercise the right to keep and bear arms. Additionally, this Court should take this opportunity to resolve these uncertainties to ensure that Second Amendment law develops appropriately.”

When the Supreme Court ruled in Heller that the Second Amendment affirms and protects a fundamental individual right from government infringement, and in McDonald that this limit on government power extends to the states, it could have – and should have, according to gun advocates – explained that the right to keep and bear arms is not confined to a residence, but applies broadly across the whole landscape.

No citizen should have to demonstrate a “need” in order to exercise a civil right, activists argue. As the attorneys general brief suggests, it could allow future federal restrictions that collide with state firearms regulations.

Do we require a demonstration of “need” to have legal counsel if charged with a crime, or to exercise freedom of speech or the press? Must citizens show a “need” before they exercise their right to remain silent?

If not, then why should citizens residing anywhere in the United States be encumbered by the “justifiable need” requirement now in force in New Jersey?

This is really at the heart of the question that the Supreme Court is being asked to decide. Gun rights advocates are convinced that after having gone into great detail to affirm that the right to keep and bear arms applies to all citizens, and that this right is abroad across the land, it seems only just – they contend – that the court now take up this issue of bearing arms, and address it not incrementally, but decisively so that the dilemma may once and for all time be put to rest.


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