NJ Carry: Drake v. Filko (Muller v. Maenz)

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I just purchased a Nano, so I will require legal carry in PRNJ or it will be time to move across the river to America... :eek:
 
I bet the Governor has a CCW, demonstrate a need? Simple, I can give you funds? Sounds like a need to me!
 
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Other than upholding the status quo, the majority opinion's reasoning differed from Kachalsky. They pretty much confined the right to the home-and the dissent clearly pointed this out.
NJ didn't even try to offer any evidence how their scheme was a proper "fit" for intermediate scrutiny: "To be clear, New Jersey has provided no evidence at all to support its proffered justification, not just no evidence that the legislature considered at the time the need requirement was enacted or amended. The majority errs in absolving New Jersey of its obligation to show fit. Our role is to evaluate the State’s proffered evidence, not to accept reflexively its litigation position"
Reason they didn't is because their "studies" date back to the 1960's and were proven false with so many shall-issue states not erupting in violence.
 
I would love to see New Jersey be the vehicle through which 'bear' is restored by the supreme court. Hopefully, their decision would be struck with a humiliating majority opinion written by Scalia. Few states are so richly deserving of that dubious honor.
 
The Cliff Note's version of the decision seems based solely on the 'longstandingness' of New Jersey's firearms laws. But, based on my (admittedly) cursury(? is that a word?) review of the New Jersey constitution, there isn't any mention of any right to keep or bear arms, so the New Jersey legislature was free to write whatever gun laws they wanted without impunity.

Given that I'm not a lawyer, is it a point worth arguing that the precedent of 'longstandingness' no longer applies because the 2A was only recently incorporated, rendering much of the decision null?
 
Now, having read both the majority opinion and the dissent, I would like to focus on the dissent. Mostly because it conveys everything that Gura, Sigale and Jensen have been trying to hammer in all their carry cases. Also, because it shreds the majority opinion.

The majority simply stated that the law was "longstanding" and did not impinge upon the 2A. The majority did not stop there, however. They went on to use what they termed "intermediate scrutiny" in the same manner as the Kachalsky and Woolard panels. That is, intermediate in name but rational in use.

On page 19 of the dissent (pg 51 of the PDF), Judge Hardiman states (my emphasis):

One facet of New Jersey’s history of firearm regulation is particularly important to the longstandingness inquiry. Until 1966, New Jersey allowed the open carry of firearms without a permit. Only concealed carry without a permit issued upon a showing of need has been banned since 1924. This distinction is significant because courts have long distinguished between these two types of carry, holding that although a State may prohibit the open or concealed carry of firearms, it may not ban both because a complete prohibition on public carry violates the Second Amendment and analogous state constitutional provisions.
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Judge Hardiman goes on to explain exactly why the SCOTUS cited Nunn, Chandler and Andrews as the relevant precedents as it regards carry.

The crux of these historical precedents, endorsed by the Supreme Court, is that a prohibition against both open and concealed carry without a permit is different in kind, not merely in degree, from a prohibition covering only one type of carry. After all, if a State prohibits only one type of carry without a permit, an opportunity for the free exercise of Second Amendment rights still exists. That opportunity disappears when the prohibition is extended to both forms of carry.
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Judge Hardiman continues his first prong attack (Mazzarella) and ends up with the conclusion that the right is in fact burdened and that the law in question cannot be "longstanding."

After showing that the majority (and the State) did not show any "langstandedness" of the law at issue, the Judge then turns to the second prong: At intermediate scrutiny, the State has failed to show any fit between the impediment of the law on the right and the goal of the law.

An example demonstrates the absence of a fit between the justifiable need requirement and reducing misuse or accidental use of handguns. Imagine that a 21-year-old with no criminal record is shot in the leg while leaving his home in a high-crime area. Citing the portion of the justifiable need requirement that allows handgun permit issuance to those who have suffered from previous attacks, he applies for and is granted a permit to carry a handgun. Unbeknownst to the permitting officials, however, the 21-year-old is a street-level drug dealer who wants the gun to retaliate against the rival who shot him. It borders on the absurd to believe that this 21-year-old is less likely to misuse or accidentally use a handgun than a reserve sheriff’s deputy who wishes to carry a gun for self-defense while off duty, like Appellant Finley Fenton; or a civilian FBI employee who received specific information that a terrorist organization might target him or his family, like former Appellant Daniel Piszczatoski; or an owner of an ATM restocking company who routinely carries large amounts of cash, like Appellant John Drake.
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Judge Hardiman then quotes New Jersey courts in establishing that the law is in fact a rationing system. The Judge then borrows a line from a district court Judge in the 4th circuit:

Even assuming that New Jersey is correct to conclude that fewer guns means less crime, a rationing system that burdens the exercise of a fundamental constitutional right by simply making that right more difficult to exercise cannot be considered reasonably adapted to a governmental interest because it burdens the right too broadly.
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Finally, after much thought on the majority and their unbridled reliance, not on the constitutionality of the law, but upon their deference to the State, Judge Hardiman concludes with:

Because I am convinced that New Jersey’s justifiable need requirement unconstitutionally burdens conduct protected by the Second Amendment as interpreted in Heller and McDonald, I respectfully dissent.
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This is a powerful dissent. Most especially because it aligns (if not parrots) to Judge Legg's decision at district court (CA4 - referenced upstream), in Woollard.

Expect this decision to be appealed to the SCOTUS and expect that the odds of a grant of cert in Woollard have just gone up.
 
The general consensus I've been hearing is that this case has less than a 25% chance to make it to scotus, so we'll see what happens next I guess. :mad:
 
This decision and Woolard are so similar at the respective circuit levels that we really don't care which one The Supremes hears. BUT with both of these cases in clear conflict with the 7th Circuit and the Puerto Rico Supreme Court, the US Supremes have to take this or Woolard or Kachalski.
 
I think the PR opinion was a lower court, and I haven't heard another word on it.
This opinion is definitely at odds with Moore, but the laws aren't the same unfortunately. There's one thing that this case and Woollard have over Kachalsky:no CCW specific permit.
 
Jim, Kachalski was denied cert back on April 16th.

What makes this case stand out from the other cases was the dissent.

Judge Hardiman had the judicial courage to not only agree with Judge Legg (Woollard, CA4 district court opinion), but also with Judge Posner (Moore, CA7). Judge Hardiman "gets it." The right (self protection) exists as much outside the home as inside, differing only in a very small way. He recites the proper research of the Supreme Court and dismisses the so-called history that the majority uses as being at odds with Heller.

He recognized that the "intermediate scrutiny" used by the majority was intermediate in name only, as it was merely rational basis. He trashed the majorities supposed reliance on "longstanding" law as being presumptively lawful. He called them on refusing to hold the State to its duty to justify the infringement, an infringement the majority said didn't exist.

The dissent was a very powerful piece of writing. It may well be reason enough for the SCOTUS to grant cert.

However it turns out, this dissent does give both Drake and Woollard a slightly better chance at a grant of cert.
 
I think the PR opinion was a lower court, and I haven't heard another word on it.
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I haven't either. I've been in touch with a friend of the attorney who argued it, but I'm still waiting for the translation. I need to bug him again about that.

I still think Woollard is our most persuasive case.
 
Assuming Gura goes for en banc in this case, I'm hoping for more dissenting opinions since getting the en banc is a pretty remote possibility. The more differing opinions on the matter, the better.
 
I too found Hardiman's dissent to be a wonderful piece of writing. I simply cannot understand how the majority found no infringement--how can there be no infringement if only a few can exercise the right? To say that a special need, greater than the needs of the general public, is required to exercise the right is the same as saying that the general public do not have the right to bear arms. At that point it is no longer a right but a privilege or license, a conclusion that is incompatible with the essence of the Bill of RIGHTS.
 
I simply cannot understand how the majority found no infringement
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It's called judicial activism -- the theory that judges know better than the legislature what's good for us sheeple. The most egregious example I can think of is in Mississippi, where the State Constitution very plainly says that a firearm may be carried openly, but not concealed. Obstructionist judges have ruled that if any part of the firearm is not visible to a law enforcement officer, the firearm is concealed. In other words, the only way to legally openly carry a firearm in Mississippi is to carry it by a pencil in the barrel. Even holding it between one's thumb and finger "conceals" part of the firearm, making it prohibited without a license.

That was changed by recent statutes defining "concealed" but that statute was overturned by some activist judge because it was "vague." :rolleyes:
 
Yes Tom, for the first time in decades the NJ supreme court will hear a 2A case. It's doomed to failure of course, but this one has a pretty good chance of going to SCOTUS after they rule against it which is why Evan Nappa is pushing it.
 
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I have long been saying that courts aren't holding the state to it's burden under heightened scrutiny. The courts seem to be making the plaintiffs prove that the law doesn't furthers an important government interest in a way that is substantially related to that interest.

I think we can assume that public safety is an important government interest. But the government still must prove that the law in question furthers that interest and does so in a way that is substantially related to that interest.

It seems to me a plaintiff could defeat any "in a way substantially related to that interest" by showing that the real interest is in making the exercise of the RKBA more difficult.
 
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