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Bench Memos

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Supreme Court Dodges Case Addressing Carrying Guns Outside the Home



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As I reported here, here, and here, federal appellate courts have been inconsistent on the matter of carrying firearms outside the home. Most states issue a firearms carry permit to any law-abiding applicants who have cleared the background check and passed the gun-range safety course, while some jurisdictions pick and choose who may enjoy their Second Amendment rights. New Jersey, being especially hostile to the Constitution, asserts the state can impose citizens prove a “justifiable need” before being allowed to carry a handgun, going so far as to deny carry permits to some off-duty police officers.

Enter Drake v. Jerejian, a case that has been making its way to Supreme Court review. Observers were pessimistic this case would be granted certiorari from the U.S. Supreme Court, but important developments out of the U.S. Court of Appeals for the Ninth Circuit that changed the landscape offered some hope. In February, the Ninth Circuit ruled that jurisdictions could refuse to establish a “shall issue” open-carry policy or a “shall issue” conceal-carry policy, but not both, in Peruta v. County of San Diego. This was followed a few weeks later by a separate Ninth Circuit ruling,  in Baker v. Kealoha, which essentially made the notoriously anti–Second Amendment state of Hawaii a “shall issue” state.

This forced a circuit split in a way that U.S. v. Masciandro out of the Fourth Circuit and Moore v. Madigan out of the Seventh Circuit did not, and offered the best opportunity to see if the promise of D.C. v. Heller to restore the Second Amendment rights of citizens is able to deliver.

Sadly, the court just denied certiorari in the Drake case despite the conflicting circuit opinions on carrying a firearm outside the home. I will keep Bench Memos readers up to date on developments on other Second Amendment cases as the make their way through the courts. 



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