Supreme Court Wasn’t Serious about the Second Amendment

While the media attention will focus on the Supreme Court’s ruling in Town of Greece v. Galloway – the legislative-prayer case – the more interesting (and consequential) decision issued today was the Court’s denial of review in Drake v. Jerejian, the Second Amendment case I previously discussed here. In Drake, the lower federal courts upheld an outrageous New Jersey law that denies the right to bear arms outside the home for self-defense – just like the D.C. law at issue in District of Columbia v. Heller denied the right to keep arms inside the home – and today the Supreme Court let them get away with it.

Drake is but the latest in a series of cases that challenge the most restrictive state laws regarding the right to armed self-defense. Although the Supreme Court in Heller declared that the Second Amendment protects an individual constitutional right, lower federal courts with jurisdiction over states like Maryland and New York have been “willfully confused” about the scope of that right, declining to protect it outside Heller’s particular facts (a complete ban on functional firearms in the home). It’s as if the Supreme Court announced that the First Amendment protects an individual right to blog about politics from your home computer, but then some lower courts allowed states to ban political blogging from your local Starbucks.

Yet each time, the Supreme Court has denied review.

New Jersey’s is perhaps the most egregious restriction. In the Garden State, local law enforcement officials have full discretion to grant or deny a license to carry a firearm, which they “may issue” only if the applicant can prove a “justifiable need” (which in practice means a specific, immediate threat to one’s safety that can’t be avoided in any way other than through possession of a handgun). Then, even if a local police chief approves a carry permit, the application goes to a judge for a hearing, during which the local prosecutor can oppose the permit. And even if the would-be gun-owner can successfully run that gauntlet, she gets a permit for two years, at which point she must repeat the entire process.

The “dual review” by two different branches of government is unusually burdensome, to say the least, and distinguishes New Jersey’s approach – in addition to the extreme definition of “justifiable need” – from every other permitting regime in the country. Can you imagine the exercise of any other constitutional right being handled this way?

The effect of this regulatory scheme is that virtually nobody in New Jersey can use a handgun to defend themselves outside their home. The state law inverts how fundamental rights are supposed to work – that the government must justify restrictions, not the right-holder the exercise – and apparently the Supreme Court has no problem with that.

The lower court in Drake applied a deferential review far from the heightened scrutiny normally due an individual right enshrined in the Bill of Rights. It also assumed the legislature’s good faith without requiring the state to show any evidence that a prohibitive-carry regime lowers the rate of gun crime, and excused what constitutional infringements the law causes because legislators acted before Heller clarified that the Second Amendment protected an individual right. To continue my previous analogy, it’s like a state law banning political blogging survived judicial review because the definitive Supreme Court ruling finding an individual right to political blogging didn’t come down till after the state law was enacted.

What kind of a bizarro world are we living in where this is ok?

In Cato’s amicus brief in Drake, we posed an alternate “question presented” (legalese for the issue that a brief asks a court to resolve): 

Was this Court serious in District of Columbia v. Heller when it ruled that the Second Amendment protects the individual right to keep and bear arms?

Today we learn that the answer, unfortunately, is no.