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A Disappointment for Second Amendment Advocates



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The Supreme Court this morning declined to hear the case of Drake v. Jerejian, dashing the hopes of Second Amendment advocates who had hoped to see 2008’s D.C. v Heller decision fleshed out in their favor. Per USA Today:

The case would have marked the most significant gun control case at the high court since its District of Columbia v. Heller decision in 2008 upheld the right to keep handguns at home for self-defense.

The New Jersey challenge was backed by the National Rifle Association and Gun Owners Foundation. “The Second Amendment guarantees the right to carry weapons for the purpose of self-defense — not just for self-defense within the home, but for self-defense, period,” the NRA argued in its brief to the high court.

New Jersey law enforcement groups defended the state’s requirement that citizens prove a “justifiable need” to carry handguns outside the home, whether openly or concealed from view. In their brief, they claimed the law “qualifies as a presumptively lawful, longstanding regulation that does not burden conduct within the scope of the Second Amendment’s guarantee.”

Welcome and necessary as it has been, it should be remembered that the Supreme Court’s recent confirmation that the Second Amendment protects an individual right does not explain the recent renaissance of the right to keep and bear arms. D.C. v Heller, which established the principle, and McDonald v Chicago, which applied it to the states, are both reasonably limited in their scope, confirming little more than that Americans cannot be prevented from keeping a handgun in the home. Heller does not explicitly guarantee the right to carry a firearm; it does not protect against the prohibition of certain types of weapons; and it is silent on the question of the size of magazines. While some courts have inferred from the decision that rules regulating these areas are verboten, the real victories of the past two decades have been won in the state legislatures — especially in parts of the country where governments are not predisposed to regulate firearms with much force.

In much of the country, therefore, Heller has made little practical difference at all. And where it has been used, the results have been mixed, leaving something of a patchwork quilt in place. Washington D.C., which city’s handgun ban prompted the court to rule in the first instance, has elected to interpret the ruling about as narrowly as is possible. Residents of the capital may (just about) purchase a handgun and keep it in their homes. But they may do nothing else: they may not carry a weapon for their defense; they may not purchase “high-capacity” magazines; they may not possess “assault weapons.” Moreover, subsequent appeals to the courts have been fruitless. A follow-up case, widely referred to as “Heller II” found in favor of the state. As Michael James Barton reports this morning over at Bench Memos, this is causing real problems, in particular that

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.

Thus, if you are unlucky enough to live in a part of the country that a) has a government that is hostile to the Second Amendment and b) is within the jurisdiction of judges who are unwilling to use the Heller decision to do anything about it, you have little recourse. New Jersey, from which state the plaintiff in the rejected Drake v Jerejian case hails, effectively refuses to recognize that there is any constitutional right to carry (the “bear” part in “keep and bear arms”) at all. More or less, the Second, Third, and Fourth Circuits all agree. The Seventh and the Ninth (yes, that Ninth), meanwhile, have found the opposite. Earlier in the year, the Ninth Circuit delivered a significant victory to Californians who argued that their rights were being undermine, holding that “Heller clarifies that the keeping and bearing of arms is, and has always been, an individual right” and that “the right is, and has always been, oriented to the end of self-defense.” “The Second Amendment,” the majority held,

secures the right not only to “keep” arms but also to “bear” them—the verb whose original meaning is key in this case. Saving us the trouble of pulling the eighteenth-century dictionaries ourselves, the Court already has supplied the word’s plain meaning: “At the time of the founding, as now, to ‘bear’ meant to ‘carry.’” Heller, 554 U.S. at 584.3 Yet, not “carry” in the ordinary sense of “convey[ing] or transport[ing]” an object, as one might carry groceries to the check-out counter or garments to the laundromat, but “carry for a particular purpose—confrontation.” Id.

The upshot of this was that California and Hawaii – both of which states had extremely locked-down carry regimes — became “shall-issue” states. Just over a year before, a similar Seventh Circuit decision had forced Illinois to offer carry permits for the first time.

Typically, in cases such as this, when there is a considerable split among the circuits the Supreme Court steps in and resolves it – harmonizing the law and establishing one national rule. On this particular issue, however, it has proven remarkably reluctant to do so. For all those living outside of the influence of friendly courts, this is disappointing indeed. And for now, there’s nothing more that they can do.



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