This article was first published by The McAlvany Intelligence Advisor on Wednesday, March 12, 2014:
Why would Wyoming’s attorney general join with 18 other states’ attorneys general in asking the Supreme Court to review an obscure lawsuit in New Jersey? Part of the answer is the stark difference between the states in how they treat their citizens when it comes to rights guaranteed in the Second Amendment.
Wyoming’s state constitution has protections similar to those in the Bill of Rights: “The right of the citizens to bear arms in defense of themselves and the state shall not be denied.” In New Jersey, such language, or anything similar to it, is utterly lacking.
In Wyoming, a state with barely 500,000 inhabitants, there are more than 25,000 concealed weapons permits. In New Jersey, with 9 million residents, there are a total of 1,196 permits.
In Wyoming, there is no requirement to have a permit to carry a firearm in public. In New Jersey, permits are allowed, but the requirements to get one are so onerous that almost no one can get one.
Wyoming celebrates the freedom to carry. New Jersey is horrified at the idea.
This brings us to Drake v. Jerejian, a lawsuit by one John Drake who applied for a concealed carry permit in New Jersey but was denied. Drake runs a business that stocks ATMs with cash in the middle of the night. He carries thousands of dollars in his car, and is a perfect magnet for thieves looking for a quick hit. Drake applied, attempting to meet New Jersey’s demand that an applicant prove a “justifiable need” for such a permit allowing him the opportunity to protect himself. Drake even got the endorsement of his town’s chief of police. No such luck. Drake’s application was denied.
Drake didn’t file the lawsuit. He joined the original lawsuit brought by Jeffrey Muller back in 2010. Muller, a pet store owner, was kidnapped, driven 1200 miles away and beaten by thugs in a bizarre case of mistaken identity. After recovering from the beating, Muller applied for a CC permit. It was denied. He sued. After filing, the state relented and issued him a permit. That’s when Drake entered the picture saying “It seems unreasonable to me to have to wait until you’re beaten up or shot at to get a permit!”
But why Wyoming? Why have 18 other states asked the Supreme Court to look at Drake? Why have 34 members of the House of Representatives submitted their own request in the case? Why has the Cato Institute taken an interest? Why also the Second Amendment Foundation, and the National Rifle Association? Drake himself was surprised and happy at all the attention he and his other plaintiffs are getting:
This wide support for our United States Constitution and Bill of Rights, as compared to some state and courts who think it is the “Bill of Needs” – points out that Americans expect not only the Second Amendment to be obeyed and honored, but all of our rights to be obeyed and honored.
That’s fine only so far as it goes. There’s much more to the issue, however, than whether or not Drake can get his permit to carry. Here’s Wyoming’s AG Peter Michael:
Because this court held that the Fourteenth Amendment incorporated the Second Amendment against the states in McDonald, any federal court pronouncement restricting the scope of that right affects the rights of citizens in [other] states and their current regulatory schemes.
Should [New Jersey’s] Third Circuit court’s analysis in Drake stand, states [like Wyoming] providing greater protection for their citizens’ Second Amendment rights may be preempted by future federal action … it could serve as advance judicial endorsement of future congressional action, which could preempt and forever change the protections state legislatures [like Wyoming’s] have sought to guarantee to their citizens.
The ramifications are huge. If left unchallenged, the decision in Drake could be expanded to include every state in the union, requiring similar draconian limitations on the Second Amendment in order to be consistent with those in New Jersey. On the other hand, if challenged successfully, it would end New Jersey’s claim that the Second Amendment only applies to state militias and not to individual citizens. A favorable outcome would help cement into place other states’ efforts to protect Second Amendment rights for their citizens.
Michael was operating under instructions from Wyoming’s Governor Matt Mead:
If the current decision stands, states providing greater protections than New Jersey under the Second Amendment may be pre-empted by future federal action….
This decision out of New Jersey impacts the right to keep and bear arms outside the home. So I felt it was necessary to have the attorney general support a petition to the Supreme Court to hear this case.
He has lots of support. The NRA’s petition to the Supreme Court objected to the 3rd Circuit Court’s conclusion that New Jersey’s demand for “justifiable need” was reasonable:
The State of New Jersey generally bars its citizens from carrying handguns in public to protect themselves unless they can first convince State officials that they have a “justifiable need” to do so.
A “justifiable need” is defined as an “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.
The simple desire to exercise the Second Amendment right to armed self-defense does not suffice.
The NRA raised the simple question: does the Second Amendment apply outside the home, or doesn’t it? The Supreme Court’s rulings in McDonald and Heller left that an open question, one which the 3rd Circuit Court and others have used to claim such requirements acceptable. Wrote the NRA:
This case thus should turn on the answer to a single question: whether the Second Amendment right to carry a firearm in case of confrontation extends beyond the home.
For it if does, New Jersey cannot make its citizens prove that they have a “justifiable need” to exercise that right….
We respectfully submit that the time is ripe for this Court to confirm for these lower courts what is clear from Heller: that the Second Amendment’s “right to bear arms for self-defense” is “as important outside the home as inside” and that that right cannot be balanced away by judges resistant to enforcing the Second Amendment….
On the other hand, Cato’s petition went to the constitutional core of the matter:
While Heller did eventually clarify that the Second Amendment secures an individual right to keep and bear arms for self-defense, the ruling left many questions about the scope of that right unanswered [while] McDonald merely extended the right to people living in the states, without further defining it….
[Drake] is an excellent case for the Court to take up to begin clarifying many of the unanswered questions involving the Second Amendment – such as to what extent it extends beyond the home and whether it can be conditioned on a showing of need.
The Court has been hesitant to flesh out the contours of the Second Amendment. This hesitance has caused errant rulings that leave the right to bear arms hollow. Unless the Court intends the Second Amendment to lapse back into the second-class status it had before Heller, it needs to set the wayward courts straight.
If the Supreme Court looks at Drake, and if it agrees that lower courts like the 3rd Circuit in New Jersey are wrong, it would be a huge victory not only for people like Drake who just want to exercise their right to defend themselves, but also for the citizens in every state that supports the Second Amendment with their own regulatory mechanisms. As the lead attorney in Drake, Evan Nappen, put it:
The bottom line is this is a very important if not the most important case yet on the Second Amendment and New Jersey gun laws.
Cato Institute: Drake v. Jerejian summary of brief