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NYC Mayor Bloomberg - Deny Second Amendment to People on Terror Watch List.
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NYC Mayor Bloomberg - Deny Second Amendment to People on Terror Watch List. - Video

While the media attention will focus on the Supreme Courts ruling inTown of Greece v. Galloway the legislative-prayer case the more interesting (and consequential) decision issued today was the Courts denial of review inDrake v. Jerejian, the Second Amendment case I previously discussed here. InDrake, 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 inDistrict 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 Hellerdeclared 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 outsideHellers particular facts (a complete ban on functional firearms in the home).Its 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 Jerseys 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 aspecific, immediate threat to ones safety that cant be avoided in any way other than through possession of a handgun). Then, even if a local police chiefapproves 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 Jerseys 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 Drakeapplied a deferential review far from the heightened scrutiny normally due an individual right enshrined in the Bill of Rights. It also assumed the legislatures 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 beforeHellerclarified that the Second Amendment protected an individual right. To continue my previous analogy, its like a state law banning political blogging survived judicial review because the definitive Supreme Court ruling finding an individual right to political blogging didnt come down till after the state law was enacted.

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

In Catos amicus brief inDrake, 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?

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Supreme Court Wasnt Serious about the Second Amendment

The U.S. Supreme Court left intact a New Jersey law that requires a justifiable need to carry a handgun in public, sidestepping a dispute over the scope of the Constitutions gun-rights protections.

The justices today turned away an appeal by four New Jersey residents and two organizations, which said the Second Amendment guarantees the right to carry a weapon for self-defense. A federal appeals court upheld the New Jersey measure.

The high court hasnt taken up a gun-rights case since 2010, repeatedly rejecting appeals centering on the Second Amendments reach outside the home.

The Supreme Court has shown no interest in returning to the Second Amendment over the past few years, said Adam Winkler, a professor at the University of California at Los Angeles School of Law and the author of a book on the history of the gun-rights battle. The justices may be indicating a reluctance to expand Second Amendment rights in the wake of recent mass shootings, he said.

New Jersey is one of seven states that require an applicant to show a special need to get a permit to carry a handgun. That group includes California, whose rules are now before a federal appeals court, and New York, whose law the justices left intact a year ago.

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 National Rifle Association argued in a brief backing the appeal.

Many states have relaxed their public-possession restrictions in recent years. In 1981, just three -- Maine, Washington and Vermont -- let ordinary residents carry firearms in public without giving a reason.

In upholding the New Jersey law on a 2-1 vote, the Philadelphia-based 3rd U.S. Circuit Court of Appeals said the measure was valid even if the Second Amendment applies outside the home. The appeals court pointed to a passage in a 2008 Supreme Court decision that said some longstanding gun restrictions were presumptively lawful.

The panel said New Jersey has had the justifiable need standard in some form since 1924.

New Jerseys legislature, long ago, made the predictive judgment that widespread carrying of handguns in public would not be consistent with public safety because of the inherent danger it poses, New Jersey officials, led by Acting Attorney General John Hoffman, argued in court papers that urged the court to reject the appeal.

Read more from the original source:

New Jersey Gun-Carrying Limit Left Intact by High Court

Members of the local chapter of Come and Take It Texas participated in an open carry demonstration Saturday afternoon near UTEP. (Ruben R. Ramirez / El Paso Times)

The local chapter of a state organization that supports the right of people to openly carry firearms participated in a statewide march on Saturday.

Twenty members of Come and Take It Texas walked from Mesa Street and Cincinnati Avenue toward Mesa and Rim Road holding the Texas Flag and openly carrying several rifles, shotguns and pre-1899 black powder hand guns.

They placed the guns in holsters while marching.

The organization's purpose is to educate people about their Second Amendment right to openly carry firearms in public in a responsible manner and encourage elected officials to pass less restrictive open-carry laws, said Jose Alberto Soto, administrator for the El Paso Chapter of Come and Take it Texas.

El Paso Police Department officials said they were aware the group was conducting the march and that the coordinators informed officials about it ahead of time.

Police said no arrests were made because the protesters were not breaking any laws.

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Second Amendment group marches in El Paso