Third Circuit Upholds New Jersey Carry Restrictions

The case is Drake v. Filko. The third circuit has generally been terrible for the Second Amendment, and not really too surprising since although it’s major state is relatively pro-gun, the circuit judges are going to tend to be drawn from Philadelphia, and reside there.

Here, we conclude that the requirement that applicants demonstrate a “justifiable need” to publicly carry a handgun for self-defense qualifies as a “presumptively lawful,” “longstanding” regulation and therefore does not burden conduct within the scope of the Second Amendment’s guarantee.

Wow. Talk about lazy. Because that’s totally what Heller said. So there it is folks. There is no right to carry a firearm in the State of Pennsylvania, New Jersey or Delaware under the Second Amendment as far as our federal judicial overlords are concerned. Poof! Gone. Unless the Supreme Court steps in to fix it.

14 thoughts on “Third Circuit Upholds New Jersey Carry Restrictions”

  1. “…we conclude that the requirement that applicants demonstrate a ‘justifiable need’ to speak qualifies as a ‘presumptively lawful,’ ‘longstanding’ regulation…”

    No… not quite…

    “…we conclude that the requirement that potential voters positively demonstrate their citizenship and eligibility to vote qualifies as a ‘presumptively lawful,’ ‘longstanding’ regulation…”

    I suspect the people pleased about the gun ruling would squeal over these versions.

  2. “Justice Sotomayor, States may have grown accustomed to violating the rights of American citizens, but that does not bootstrap those violations into something that is constitutional.” (Alan Gura)

  3. This ought not to be a surprise. SCOTUS has passed already once on a CCW case. Might just avoid the issue altogether. I doubt they have Kennedy so might as well pass for now (not that the future looks great for the court’s makeup).

    I believe Gura himself put it plainly recently. To paraphrase “While the court may be instructed to consider the 2nd at an intermediate level of scrutiny, courts averse will just write decisions at a rational basis level and call it intermediary. In other words, don’t expect an honest examination.

    I wouldn’t hold your breath that the courts are going to fix this for us. They are not. I’ve said it for some time now. States had better get their act together and call for a Constitutional Convention on the matter. Get an amendment introduced. Call it the ‘Civil Rights act for gun owners’ clarifying common arms and accessories protected, level of scrutiny for regulations, carry, etc. It could be ratified in under a year effectively ending gun control as we know it and liberating citizens in anti-gun states.

    By my reckoning, we better get on it while there are 38 pro-gun states left to make a stand. Otherwise demographic changes alone will kill the 2nd. If its not too late already

    1. And yes, i know the above post has nothing to do directly with today’s ruling by the 3rd. I think the 3rd, like others have no reason to take the 2nd seriously. I just hate this waiting game while judges water down and justify most every restriction.

    2. SCOTUS had at least two – and maybe even three – cases that challenged May-Issue this coming term. First up was the NY case (Kachalsky) which they blew right by. Next up was – and everyone thought this was the one they really wanted – was Illinois and Moore. But that has gone bye-bye thanks to a change in state law (yay NRA…not perfect but a huge win!).

      So that leaves Maryland (Woollard) to bat clean-up.

      Most pundits claim that the Illinois question was the one they really wanted. That is gone. Poof.

      So if we think SCOTUS will step in at some point, now is as good a time as any. There are splits (thought not direct) in the circuits, and at least two of the appelletes and several state courts have outright said, “not until SCOTUS says boo will we go down this road”.

      Will it be Woollard? Not sure. But this next term is ripe for something. It’s a long summer and we’ll see what Fall brings, but right now our best hope is on Woollard.

      As a primer, Woollard brings up the following interesting tidbits (differs from the NY case in a few ways):

      – MD claims self-defense can be met using unlicensed, loaded, long-gun open carry. No permit required (but banned in several areas). The state didn’t just mention this – they made a big deal out of it. So open carry is part of the discussion.

      – MD is a preemption state. This is a single central authority vice multiple municipalities. There is zero argument over who does the dirty work here.

      – We won in the District Court. The 4th reversed.

      – The 4th basically carbon-copied the talking points from Brady on why guns are evil. One of the biggest gaffs were several claims that The People ™ should not exercise their right because The Government would be put out by handling the changes. No shit.

      I am not prescient, but I would like to see Woollard go forward. There are some elements here that are quite different from the other cases, even if most agree that Illinois’ perfect ban would have been a more “pure” case. So for now, this is the train we (might) ride.

      1. As far as a splitting the circuits goes, it seems to me that Moore v Madigan may well still be on the table. Remember that Illinois only passed a carry bill in response to the ruling of the Circuit court. The Circuit court ruled that their outright ban was entirely unconstitutional, and gave them a 6 month grace period to enact an alternative before the old (and unconstitutional) law became null and void.

        Woollard also has another thing going for it that the others do not: The plaintiff in Woollard was issued a permit in MD, and then his renewal was denied. It goes back to the initial issue of standing.

  4. Luckily we still have a State Constitution, which includes a right to bear arms explicitly for the purpose if self-defense.

  5. I know you think this stinks, but this is what we need. We now have a clear split in the Circuits. This is a springboard to the Supreme Court.

  6. “Luckily we still have a State Constitution, which includes a right to bear arms explicitly for the purpose if self-defense.”


    Only as long as courts are willing to enforce that meaning. But courts tend to do what courts want to do (see above), constitutions be damned. Courts deal in real cases, constitutions are just words on paper; absent a willingness to act on those words, they’re just words without meaning or weight.

    The fact that courts deal with real cases points up the need to pick our cases very carefully for taking to appellate courts. Would McDonald have been nearly as powerful a case without the particular circumstances of the particular plaintiff? Would Heller? Judges are humans, deciding actual cases. Facts, and the character of the parties, matter.

    1. There’s also historical inertia and popular inertia.

      It sounds stupid but even the courts, as we see here, really like to go with “This law has been around forever it HAS to be right.”

      As for popular inertia… the fewer people that do X the easier X becomes to marginalize.

      Imagine if some bright button decided to push for a law empowring the DMV to only issue drivers liscenses to people who could show “good cause” for needing a car.

      Said law would be much much harder to push in a place where nearly every adult had a car than in a palce where most people didn’t own cars.

    2. Funny how you have to fill out forms and answer questions plus pay a fee to be granted a LTCF. Those of us Pennsylvanians who happen to live in the wrong counties have to endure a ridiculous wait to get their government permission slip to be able to reasonably exercise their right to bear. Sure you can open carry on your street without asking permission but not in Philly and not in your car.

      Constitutions are worthless when they are simply ignored. Nice words but utterly useless when they can simply be ignored by our rulers.

  7. “presumptively lawful,” “longstanding” regulation and therefore does not burden conduct within the scope of the Second Amendment’s guarantee.

    If that were true we’d still have slavery today, as at the time of the civil war slavery was also “presumptively lawful” and “longstanding” as well.

  8. Not at all surprised by this, as most Circuit courts are not going to go beyond the narrow holdings of Heller & McDonald until the SCOTUS says otherwise.

    Moore was a HUGE victory for us, though. Judge Posner, the most respected judge not on the SCOTUS, held that the Second Amendment protects a right to bear arms in public, such that a state cannot completely ban concealed carry.

    We’ll see what happens going forward.

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