Amicus Brief of Judicial Education Project in Drake v. Jerejian

7/25/2019 Amicus Brief of Judicial Education Project in Drake v. Jerejian

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In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

JOHN M. DRAKE,ETAL.,Petitioners,

v.

EDWARD A. JEREJIAN, ETAL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

BRIEF OF JUDICIAL EDUCATION PROJECT AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

February 12, 2014

Becker Gallagher Cincinnati, OH Washington, D.C. 800.890.5001

Counsel for Amicus Curiae

CARRIESEVERINO Counsel of RecordJUDICIALEDUCATIONPROJECT722 12th St., N.W.Fourth Floor

Washington, D.C. 20005(571) [email protected]

NO.13-827

NELSONLUNDGEORGEMASONUNIVERSITY SCHOOLOFLAW3301 Fairfax Drive

Arlington, VA 22201


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TABLE OF CONTENTSTABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . ii

INTEREST OFAMICUS CURIAE . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. The Decision Below Typifies a Pattern ofResistance to this Courts Guidance in

District of Columbia v. Heller . . . . . . . . . . 4

II. Heller Did Not Suggest ThatLongstanding Regulations of Firearms

Are Generally Exempted from MeaningfulScrutiny . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

III. Heller Did Not Endorse a Version ofIntermediate Scrutiny That isIndistinguishable From Rational BasisReview . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

IV. Reversing the Decision Below Will NotThreaten Public Safety . . . . . . . . . . . . . . 17

V. This Case Will Allow an IncrementalClarification of a Significant Issue LeftOpen inHeller . . . . . . . . . . . . . . . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22


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TABLE OF AUTHORITIESCASES

Andrews v. State,50 Tenn. 165 (1871) . . . . . . . . . . . . . . . . . . . . . . 11

Bd. of Trustees of State Univ. of N.Y. v. Fox,492 U.S. 469 (1989) . . . . . . . . . . . . . . . . . . . . . . 16

Commonwealth v. Gouse,461 Mass. 787, 965 N.E.2d 774 (2012) . . . . . . . 21

District of Columbia v. Heller,554 U.S. 570 (2008) . . . . . . . . . . . . . . . . . . passim

English v. State,35 Tex. 473 (1871) . . . . . . . . . . . . . . . . . . . . . . . 11

Ezell v. City of Chicago,651 F.3d 684 (7th Cir. 2011) . . . . . . . . . . . 4, 5, 13

Fife v. State,31 Ark. 455 (1876) . . . . . . . . . . . . . . . . . . . . . . . 11

Fisher v. University of Texas,

133 S. Ct. 2411 (2013) . . . . . . . . . . . . . . . . . . . . . 6

Heller v. District of Columbia,670 F.3d 1244 (D.C. Cir. 2011) . . . . . . . . . . . . 5, 6

Hertz v. Bennett,294 Ga. 62, 751 S.E.2d 90 (2013) . . . . . . . . . . . 21

IMS Health, Inc. v. Ayotte,550 F.3d 42 (1st Cir. 2008) . . . . . . . . . . . . . . . . 17

Kachalsky v. County of Westchester,

701 F.3d 81 (2d Cir. 2012) . . . . . . . . . . . . . . . . . 21


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McDonald v. City of Chicago,130 S. Ct. 3020 (2010) . . . . . . . . . . . . . . . . . 13, 17

Moore v. Madigan,702 F.3d 933 (7th Cir. 2012) . . . . . . . . . . . . . 5, 21

Natl Rifle Assn v. Bureau of Alcohol,Tobacco, Firearms & Explosives,700 F.3d 185 (5th Cir. 2012) . . . . . . . . . . . . . . . . 6

Natl Rifle Assn v. McCraw,719 F.3d 338 (5th Cir. 2013) . . . . . . . . . . . . . . . 20

Nunn v. State,1 Ga. 243 (1846) . . . . . . . . . . . . . . . . . . . . 9, 10, 12

People v. Aguilar,2013 IL 112116, 2013 WL 6798167 (2013) . . . . 21

State v. Chandler,5 La. Ann. 489 (1850) . . . . . . . . . . . . . . . . 9, 10, 12

United States v. Decastro,682 F.3d 160 (2d Cir. 2012) . . . . . . . . . . . . . . . . . 6

United States v. Dorosan,350 F. Appx 874 (5th Cir. 2009) . . . . . . . . . . . . . 6

United States v. Marzzarella,614 F.3d 85 (3d Cir. 2010) . . . . . . . . . . . . . . . . . . 7

United States v. Richard,350 F. Appx 252 (10th Cir. 2009) . . . . . . . . . . . . 6

United States v. Seay,620 F.3d 919 (8th Cir. 2010) . . . . . . . . . . . . . . . . 6

United States v. White,

593 F.3d 1199 (11th Cir. 2010) . . . . . . . . . . . . . . 6


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Ward v. Rock Against Racism,491 U.S. 781 (1989) . . . . . . . . . . . . . . . . . . . . . . 16

Williams v. State,417 Md. 479, 10 A.3d 1167 (2011) . . . . . . . . . . . 21

Woollard v. Gallagher,712 F.3d 865 (4th Cir. 2013) . . . . . . . . . . . . . . . 20

CONSTITUTION AND STATUTES

U.S. Const. amend. II . . . . . . . . . . . . . . . . . . . passim

Ch. 96, 1-2, 1881 Ark. Acts . . . . . . . . . . . . . . . . . 10

D.C. Code 22-4504(a) . . . . . . . . . . . . . . . . . . . . . . 18

Ill. Pub. Act 98-600 (2013) . . . . . . . . . . . . . . . . . . . 18

N.J. Admin. Code 13:54-2.4(d)(1) . . . . . . . . . . . . 2, 17

Ch. 13, 1, 1870 Tenn. Acts . . . . . . . . . . . . . . . . . . 10

Act of Apr. 12, 1871, ch. 34, 1,1871 Tex. Gen. Laws . . . . . . . . . . . . . . . . . . 10-11

1890 Wyo. Sess. Laws 157-58 . . . . . . . . . . . . . . . . . 12

Act of Dec. 2, 1875, ch. 52, 1,1876 Wyo. Terr. Comp. Laws . . . . . . . . . . . . . . 11

OTHER AUTHORITIES

Ian Ayres & John J. Donohue III, Shooting Downthe More Guns, Less Crime Hypothesis, 55Stan. L. Rev. 1193 (2003) . . . . . . . . . . . . . . . . . 19

John R. Lott, Jr., More Guns, Less Crime:Understanding Crime and Gun Control Laws

(3d ed. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19


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BRIEF OF JUDICIAL EDUCATION PROJECTASAMICUS CURIAEIN SUPPORT OFPETITIONERS

The Judicial Education Project respectfully submitsthis brief as amicus curiaein support of Petitioners.1

INTEREST OFAMICUS CURIAE

Amicus curiae the Judicial Education Project(JEP) is dedicated to strengthening liberty and justicein America through defending the Constitution as

envisioned by its Framers: creating a federalgovernment of defined and limited power, dedicated tothe rule of law and supported by a fair and impartial

judiciary. JEP educates citizens about theseconstitutional principles and focuses on issues such asthe judiciarys role in our democracy, how judgesconstrue the Constitution, and the impact of courtrulings on the nation. JEPs education efforts areconducted through various outlets, including print,broadcast, and internet media.

1Pursuant to Supreme Court Rule 37.6, counsel for amicus curiaestates that no counsel for a party authored this brief in whole or inpart, and no party or counsel for a party made a monetarycontribution intended to fund the preparation or submission of this

brief. No person other than amicus curiae, its members, or itscounsel made a monetary contribution to its preparation or

submission. Pursuant to Supreme Court Rule 37.2, amicus curiaestates that Petitioners and Respondents, upon timely receipt of

amicuss intent to file this brief, have consented to its filing. Suchconsents are being submitted herein.


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Amendment right to bear arms outside the home, butit left no doubt that the text and history of theAmendment require that issue to be taken veryseriously.

This case is an appropriate vehicle for clarifyingthat neither legislatures nor courts may effectivelyread the right to bear Arms out of the Constitution byallowing that right to be exercised only by a tiny subsetof the citizenry. This issue has undergone sufficientpercolation in the years sinceHellerwas decided, andits clarification is a logical next step for this Court.

A reversal of the decision below will leavelegislatures with ample means to regulate the carryingof firearms in the interest of public safety, asexperience in the overwhelming majority of the statesclearly demonstrates. The real threat to public safetyis posed by the inability of governments to control

violent criminals, not by allowing law-abiding citizensto have the means of defending themselves againstthese criminals. New Jersey and several other statesare depriving their citizens not only of their

constitutional rights but also of the fundamental rightto defend their own lives. This is an urgent matterwhose resolution by this Court should not be delayedany longer.


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ARGUMENTI. The Decision Below Typifies a Pattern of

Resistance to this Courts Guidance inDistrict of Columbia v. Heller

For many decades prior to this Courts decision inHeller, the federal courts of appeals had uniformlyupheld every single statute that was subjected to aSecond Amendment challenge, often with little morethan a gesture in the direction of legal analysis. Suchreflexive deference to legislative discretion should have

ended afterHellers detailed analysis of the text andhistory of the Second Amendment, and its forcefulinsistence on the importance of the right to keep andbear arms in our constitutional structure.

It is true that Heller refrained from definitivelydeciding issues not presented in that case. It is alsotrue thatHellerrefrained from establishing a detailedanalytical framework for deciding the many new issuesthat were bound to arise in future cases. But the Courtsaid nothing to indicate that the right to keep a

handgun in the home marked the outer limit of theSecond Amendment. Nor did the Court suggest that theinferior courts are free to interpretHellerin ways thateffectively give legislatures virtually the same carteblanche they had previously enjoyed. If Hellerestablished anything beyond a fact-specific invalidationof one particular law, it was that courts must now takeSecond Amendment challenges seriously, and subjectchallenged regulations to careful legal analysis thatrespects the importance of the constitutional right.

Some courts have indeed takenHellerseriously. InEzell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011),


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for example, the court carefully analyzed this Courtsopinions in Heller and other relevant cases,articulating an analytical approach that respects boththe texts of those opinions and the importance of theSecond Amendment. In Moore v. Madigan, 702 F.3d933 (7th Cir. 2012), the same court used a somewhatdifferent style of analysis, but continued to adhere tothe fundamental principle that legislative judgmentsmust be subjected to meaningful judicial scrutiny.

Unfortunately, sound opinions like those in Ezelland Moore have not proved to be the rule. Thedominant interpretation of Heller in the courts ofappeals can be roughly summarized as follows:

C Some regulations, primarily those that are deemedlongstanding, are presumed not to infringe theSecond Amendment.

C Regulations that severely restrict the core right ofself defense are said to be subject to strict or veryexacting judicial scrutiny.

C Regulations that do not severely restrict this core

right are subject to intermediate scrutiny.

The tiers-of-scrutiny approach is not an unimpeachablycorrect interpretation ofHeller, as Judge Kavanaughexplained in his dissenting opinion inHeller v. Districtof Columbia, 670 F.3d 1244 (D.C. Cir. 2011). Butperhaps more important, the application of thisframework has sometimes betrayed an overzealousinclination to uphold dubious regulations on the basisof flimsy legal analysis.

Two mistakes are especially notable. First, somecourts have misread Hellerto mean that almost any


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arguably longstanding regulation is presumptivelyvalid, so that no form of heightened scrutiny isrequired.3Heller neither said nor implied any suchthing. Second, some courts have effectively, if covertly,employed rational basis review.4 Heller expresslyforbade the use of rational basis review, and it saidnothing to suggest that courts are free to employ suchreview under another name.5

Both of these mistakes were committed by the courtbelow. This case offers the Court an opportunity tocorrect a disturbing judicial trend in which lip serviceis paid to Heller without actually respecting itsguidance. This practice threatens the lives and safetyof American citizens by stripping them of the ability todefend themselves against violent criminals, and theissues have been percolating long enough. The Courtshould throw some cold water on these manifestdeviations from the law.

3See, e.g.,Natl Rifle Assn v. Bureau of Alcohol, Tobacco, Firearms& Explosives, 700 F.3d 185, 196-97 (5th Cir. 2012); Heller v.

District of Columbia, 670 F.3d 1244, 1253 (D.C. Cir. 2011); United

States v. White, 593 F.3d 1199, 1205-06 (11th Cir. 2010); UnitedStates v. Seay, 620 F.3d 919, 925 (8th Cir. 2010); United States v.

Richard, 350 F. Appx 252, 260 (10th Cir. 2009) (unpublished).

4See, e.g., United States v. Decastro, 682 F.3d 160, 166 (2d Cir.2012); United States v. Dorosan, 350 F. Appx 874 (5th Cir. 2009)

(unpublished).

5 The Court recently emphasized that the level of scrutiny isdetermined by the analysis actually applied by the reviewing court,

not by the label placed on the analysis. Fisher v. University ofTexas, 133 S. Ct. 2411, 2419-21 (2013).


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II. Heller Did Not Suggest ThatLongstanding Regulations of FirearmsAre Generally Exempted from MeaningfulScrutiny

The court below held that New Jerseysrequirement that applicants demonstrate a justifiableneed to publicly carry a handgun for self-defense is apresumptively lawful, longstanding licensing provisionunder the teachings of Heller and [United States v.]

Marzzarella[, 614 F.3d 85 (3d Cir. 2010)]. Pet. App.14a. In support, the court traced the ancestry of therestriction back to a 1924 New Jersey statute requiringa showing of need for a concealed carry permit;pointed to regulations in other states regulating thecarry of handguns; and noted that New Yorksputatively longstanding regulations are similar to NewJerseys.Id. at 14a-18a. The court based its argumenton the following passage fromHeller:

Although we do not undertake an exhaustivehistorical analysis today of the full scope of theSecond Amendment, nothing in our opinion

should be taken to cast doubt on longstandingprohibitions on the possession of firearms byfelons and the mentally ill, or laws forbiddingthe carrying of firearms in sensitive places suchas schools and government buildings, or lawsimposing conditions and qualifications on thecommercial sale of arms.

554 U.S. at 626-27. In a footnote to this passage, theCourt said: We identify these presumptively lawfulregulatory measures only as examples; our list does not

purport to be exhaustive. Id.at 627 n.26. The courtbelow badly misread this Courts opinion.


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First, Heller merely characterized certainrestrictions as longstanding, without implying thatthe mere fact of being longstanding is sufficient tomake a regulation presumptively lawful. If the Courthad meant to establish a blanket presumption applyingto all longstanding regulations, it would have said so.But it did not.

Second,Hellercharacterized these regulations onlyas presumptively lawful. Had the Court meant to putconclusive weight on the longstanding nature of aregulation, it would have made no sense to allow forthe possibility of overcoming the presumption.

Third, the Court merely said that nothing in theHeller opinion should be taken to cast doubt on theparticular regulations it listed, without saying thatnothing at all could cast doubt on theirconstitutionality. The reference to an exhaustivehistorical analysis at the beginning of the passagesuggests that such an analysis, which was notundertaken inHeller, could cast doubt even on one ormore of the regulations listed in the opinion.A fortiori,

such an analysis could certainly cast doubt on theconstitutionality of other arguably longstandingregulations that were not even mentioned in Heller,like the regulation at issue in this case. Nonetheless,the court below expressly declined to undertake around of full-blown historical analysis of the scope ofthe Second Amendment. Pet. App. 11a.

Contrary to the court below, the mere fact thatcarrying weapons in public has long been regulated insome fashion offers no support for this particular

regulation.SeePet. App. 16a. If it did, the regulationsat issue in Heller itself would also have been


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presumptively constitutional, which is not the way thisCourt treated them. The logical absurdity of arguingthat the existence of some regulations implies the

validity of other regulations needs no furtherelaboration.

The court below also gets no support from thelongstanding practice in some jurisdictions of banningor otherwise restricting the carrying of concealedweapons.SeePet. App. 15a. Early cases finding suchregulations constitutional did so with the proviso thatthe open carry of firearms must remain as a lawfulalternative. The reason for sharply distinguishingrestrictions on concealed carry from nearly totalrestrictions on public carry were vividly set forth inboth cases cited byHellerfor the proposition that themajority of the 19th-century courts to consider thequestion held that prohibitions on carrying concealedweapons were lawful under the Second Amendment orstate analogues. 554 U.S. at 626 (citing State v.Chandler, 5 La. Ann. 489, 489-90 (1850), andNunn v.

State, 1 Ga. 243, 251 (1846)).

One of these cases involved a challenge to an 1813Louisiana statute making it a misdemeanor to carry aconcealed weapon. In Chandler, 5 La. Ann. at 489-90,the court upheld the statute with this explanation:

This law became absolutely necessary tocounteract a vicious state of society, growing outof the habit of carrying concealed weapons, andto prevent bloodshed and assassinationscommitted upon unsuspecting persons. Itinterfered with no mans right to carry arms (to

use its words) in full open view, which placesmen upon an equality. This is the right


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guaranteed by the Constitution of the UnitedStates, and which is calculated to incite men toa manly and noble defence of themselves, ifnecessary, and of their country, without anytendency to secret advantages and unmanlyassassinations.

Even more emphatically, the Georgia SupremeCourt struck down an ambiguously-worded statute thatappeared to make it a misdemeanor to sell or use anyhandgun except a horsemans pistol. InNunn, 1 Ga.at 251, the court explained:

We are of the opinion, then, that so far as the actof 1837 seeks to suppress the practice ofcarrying certain weapons secretly, that it is

valid, inasmuch as it does not deprive the citizenof his natural right of self-defence, or of hisconstitutional right to keep and bear arms. Butthat so much of it, as contains a prohibitionagainst bearing arms openly, is in conflict withthe Constitution, and void . . . .

The regulation challenged in this case appliesequally to the open and concealed carry of handguns,and it therefore gets no support from restrictions insome states that apply only to concealed carry, or from

Hellers reference to nineteenth-century casesapproving such restrictions.

The court below also mistakenly thought that itsdecision was supported by four nineteenth-centurystatutes that banned both the open and concealed carryof certain weapons. Pet. App. 16a (citing Ch. 96, 1-2,1881 Ark. Acts at 191-92; Ch. 13, 1, 1870 Tenn. Actsat 28; Act of Apr. 12, 1871, ch. 34, 1, 1871 Tex. Gen.


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Laws at 25; Act of Dec. 2, 1875, ch. 52, 1, 1876 Wyo.Terr. Comp. Laws, at 352). The four cited statutes infact offer no support for a claim that bans on carryinghandguns are presumptively constitutional.

The Arkansas statute expressly permitted citizensto publicly carry such pistols as are used in the armyor navy of the United States.6The Tennessee statutewas upheld under the constitution of that state onlywhen construed to allow the public carrying of theusual arms of the citizen of the country, and the use ofwhich will properly train and render him efficient indefense of his own liberties, as well as of the State.

Andrews v. State, 50 Tenn. 165, 179 (1871). The Texasstatute was construed to allow the carrying of ordinarymilitary arms, including holster pistols and side arms.

English v. State, 35 Tex. 473, 476-77 (1871). The courtsof all three states upheld prohibitions on the publiccarry of certain weapons only after concluding thatsuch weapons were not protected by the Second

Amendment or its state analogue. BecauseHellerhasestablished beyond dispute that handguns areprotected by the Second Amendment, these statutesoffer no support for New Jerseys regulation.

The fourth statute was enacted by the territorialgovernment of Wyoming, and it did not surviveWyomings entry into the Union. Even under thesomewhat far fetched assumption that the territorial

6Some such an exception was plainly required underFife v. State,

31 Ark. 455 (1876) (construing a statute forbidding the carrying ofany pistol of any kind whatever to apply only to very small

pistols designed to be concealed for use in private quarrels andbrawls).


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government of Wyoming seriously tried for a time toprevent firearms from being carried in public,7 theStateof Wyoming never seems to have adopted such apolicy.8

The right to openly carry a firearm has deephistorical roots, as ChandlerandNunnconfirm in thepassages quoted above. Even today, thirty-one statesallow their citizens to carry handguns openly withouta license. See Pet. App. 34a-35a (dissenting opinionbelow). Many legislatures have also concluded thatconcealed carry does not deserve to be stigmatized, andsome may regard concealed carry as preferable to opencarry. Nothing in this case requires the courts to makepolicy choices between concealed and open carry, butneither does anything in nineteenth-century historysupport a legislative decision to impose a virtuallycomplete ban on bothopen and concealed carry. Whilelegislatures may certainly regulate the public carryingof firearms, and may choose among various policyoptions involving open or concealed carry, they must

7The only thing that makes this assumption remotely plausible is

that the 1876 statute applied only in a city, town, or village. Evenso, it strains credulity to imagine that a statute forbidding citizens

to carry any fire arm or other deadly weapon in public wasconsistently enforced during this period of Wyomings history.

8 A few months before Wyoming became a state in 1890, theterritorial legislature adopted a different provision that prohibited

only the concealedcarry of weapons and the open carry of weaponswith the intent or avowed purpose of injuring [ones] fellow-man.

L.1890, c.73, s. 96. When the new state legislature met for the firsttime later that year, it adopted the 1890 territorial statute of

which this provision was a part, and repealed all conflictingstatutes. 1890 Wyo. Sess. Laws 157-58.


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allow some means of carry. Otherwise, the reach of theSecond Amendment would effectively be confined toones home, contravening the text of the Amendmentand the clear implication ofHeller.

Finally, the fact that New York has a regulatoryscheme resembling New Jerseys cannot bring thejustifiable need restriction within the class ofpresumptively constitutional regulations.SeePet. App.17a-18a. If it could, then the fact that the District ofColumbia and the City of Chicago had both adoptedgeneral handgun bans would have sufficed to makethose bans presumptively constitutional. This Courtobviously rejected such logic inHellerandMcDonald v.City of Chicago, 130 S. Ct. 3020 (2010).

It is no doubt true that Hellers discussion ofpresumptively lawful regulations is somewhat cryptic.The Court itself recognized as much when it noted thatit did not undertake an exhaustive historical analysistoday. 554 U.S. at 626 (emphasis added). This couldresponsibly be interpreted as a signal that the lowercourts should undertake an exhaustive historical

analysis before adding to Hellers short list ofpresumptively lawful regulations. Some courts haverecognized this signal.See,e.g.,Ezell, 651 F.3d at 701-03, 704-06. The court below did exactly the opposite bymisinterpretingHelleras a green light for upholding

virtually any regulation that is not utterly novel. Thisis a canard that badly needs correction.


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III. Heller Did Not Endorse a Version ofIntermediate Scrutiny That isIndistinguishable From Rational BasisReview

The court below held in the alternative that NewJerseys justifiable need regulation is valid because itsurvives what the court called intermediate scrutiny.

Although Heller does not expressly address thequestion, a tiers-of-scrutiny framework may bepermissible in reviewing some Second Amendmentissues. But it is not permissible to distort thatframework so as to avoid any meaningful judicialscrutiny at all. That is what was done by the courtbelow.

The court dismissed the applicability of strictscrutiny on the ground that [i]f the Second

Amendment protects the right to carry a handgunoutside the home for self-defense at all, that right is notpart of the core of the Amendment. Pet. App. 24a(quoting the District Court). Heller nowhere says orimplies that the core of the Second Amendment is

restricted to the home.

The text of the Amendment itself, which expresslyprotects the right to bear arms, guarantee[s] theindividual right to possess and carryweapons in caseof confrontation. 554 U.S. at 592 (emphasis added).

Hellerdid not limit this to confrontation in the home.Heller also refers to the core lawful purpose ofself-defense, without any qualifying reference to inthe home.Id. at 630. Again without any qualification,

Hellersays that the inherent right of self-defense has

been central to the Second Amendment right. Id. at628.Hellerdoes note that the need for self-defense is


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most acute in the home, without so much assuggesting that it may be less than very acute outsidethe home.Id.Hellermakes it unmistakably clear thatthe core of the Second Amendment right is self-defense, not self-defense in the home.

This Court had no need to apply a tiers-of-scrutinyapproach inHelleritself,9and chose not to predict howor whether it would apply such an approach in futurecases. It may therefore be considered an open questionwhether the traditional demands of strict scrutinyapply to New Jerseys regulation. But however thisCourt may answer that question in the future, thecourt below rejected strict scrutiny on the basis of anin the home qualifier thatHellernever articulated.

Whatever questionsHellerleft for another day, itexpressly and emphatically held that rational basisreview is never sufficient to dispose of a Second

Amendment challenge. 554 U.S. at 628 n.27. The courtbelow purported to recognize this unambiguousholding, and proceeded to apply what it calledintermediate scrutiny to the challenged regulation. In

fact, however, the court applied rational basis review.

The entire analysis of the court below iscomprehended in this sentence: The predictive

judgment of New Jerseys legislators is that limitingthe issuance of permits to carry a handgun in public toonly those who can show a justifiable need will furtherits substantial interest in public safety. Pet. App. 26a

9Under any of the standards of scrutiny the Court has applied toenumerated constitutional rights, this prohibition . . . would fail

constitutional muster. 554 U.S. at 628-29 (citation and footnoteomitted).


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(footnote omitted). Of course, this is not actually ananalysis. Nowhere in the opinion below did the courtmake the slightest effort to show the required fitbetween the important goal of public safety and therestriction imposed by the challenged regulation.See,

e.g., Ward v. Rock Against Racism, 491 U.S. 781, 800(1989) (intermediate scrutiny requires that the meanschosen must not be substantially broader thannecessary to achieve the governments interest).

Instead, the court offered a series of irrelevantreasons for declining to subject the challengedregulation to any meaningful scrutiny at all. First, itnoted that the enacting legislature had no reason todocument its reasons for adopting the regulationbecauseHellerhad not yet been decided. Pet. App. 26a-28a. This is a red herring. Legislatures are obviouslynot obliged to document their reasons for adoptinglegislation. But their failure to do so just as obviouslydoes not immunize their statutes from constitutionalreview. Second, the court noted that New York andMaryland have enacted similar regulations. Id. 28a-29a. Another red herring, unless one thinks that themere existence of three similar laws proves that theyare all permitted by the Constitution.

What the court below never did was require NewJersey to produce any evidence that might enable it tocarry its well established burden of proof underintermediate scrutiny.See,e.g.,Bd. of Trustees of StateUniv. of N.Y. v. Fox, 492 U.S. 469, 480-81 (1989)([S]ince the State bears the burden of justifying itsrestrictions, it must affirmatively establish thereasonable fit we require. (citation omitted)). Instead,

it offered a vague and unsubstantiated allusion to


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history, consensus, and simple common sense. Pet.App. 28a (quotingIMS Health, Inc. v. Ayotte, 550 F.3d42, 55 (1st Cir. 2008)).

It could not be plainer that the court below simplydecided for unstated reasons that it is reasonable forNew Jerseys government to deny its citizens theirconstitutional right to bear arms unless they havesuffered specific threats or previous attacks whichdemonstrate a special danger to the applicants life thatcannot be avoided by means other than by issuance ofa permit to carry a handgun. N.J. Admin. Code 13:54-2.4(d)(1) (quoted Pet. App. 5a).

If anything, it is patently unreasonableto requirean extraordinary showing of a special need to exercisea constitutional right. The very idea would be laughedout of court in the context of free speech or the freeexercise of religion. This Court has expressly rejectedthe suggestion that the Second Amendment should bes ing led out f or spec ia land spec ia l lyunfavorabletreatment.McDonald v. Chicago, 130 S.Ct. at 3043. But that is exactly what was done by the

court below.

Presuming that a regulation is constitutional,unless its challengers can make a showing of utterlegislative irrationality, is the hallmark of rationalbasis review. The decision below is inconsistent with

Hellers unequivocal rejection of that presumption.

IV. Reversing the Decision Below Will NotThreaten Public Safety

New Jersey imposes a virtually total ban on the

public exercise of Second Amendment rights.SeePet.6 (estimating that only .02% of New Jersey citizens are


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granted public carry permits). The experience of otherstates shows that no such drastic measure is requiredto advance the important government interest inprotecting the public from the misuse of firearms.

As the dissent below pointed out, nearly all of thestates allow law-abiding citizens to carry handguns inpublic, without requiring them to prove that they havebeen subjected to specific threats or previous attacks.Pet. App. 34a-38a. Forty-two states either allow theircitizens to carry handguns without a license or grantlicenses subject to minimal conditions relevant topublic safety, like a background check and completionof a safety course.10Many of the states that freely grantcarry licenses have large urban and suburbanpopulation centers like New Jerseys, including nearbyPennsylvania and Connecticut. The available dataindicate that misuse of firearms by license holders isextremely rare. See Pet. App. 69a-70a (dissentingopinion below).

New Jersey and seven other states require theircitizens to show an exceptional need to exercise their

constitutional right to the means of self defense, andthe District of Columbia does not allow its citizens tocarry a firearm at all.11Whatever motives lie behindthese laws, it is not surprising that the court belowcited no evidence that the challenged regulation makes

10 The dissent below lists forty states that grant licenses for

concealed carry without a showing of some exceptional need. Pet.App. 36a n.5. In addition, Illinois recently enacted such a statute.

Firearm Concealed Carry Act, Ill. Pub. Act 98-600 (2013). Vermontrequires no license at all for concealed carry.

11Pet. App. 37a-38a (dissent below); D.C. Code 22-4504(a).


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New Jersey a safer place. The actual evidence, whichhas now been accumulating for many years in otherstates, affirmatively refutes that proposition.12

Petitioners narrow challenge to New Jerseysjustifiable need regulation poses no threat at all toany legitimate government interest. If the regulation isinvalidated, the state will remain free to regulate thepublic carry of handguns in the interest of publicsafety. It may choose to ban concealed carrycompletely, asHellersuggested. It may also choose torequire a license for public carry, conditioned oncriteria that are actually relevant to public safety, as somany of its sister states have done.

What it surely may not do is what it has done:disable virtually the entire citizenry from protectingthemselves against violent street criminals, solely onthe basis of an evidence-free supposition that doing somight somehow have some good effects. The courtbelow, which appears to have relied on what it calledsimple common sense, Pet. App. 28a, chose tooverlook common experience in the vast majority of

12Ironically, regulations like New Jerseys may actually increaseviolent crime by reducing deterrent effects that would otherwiseoperate on criminals.SeeJohn R. Lott, Jr.,More Guns, Less Crime:Understanding Crime and Gun Control Laws(3d ed. 2013). Eventhose who have criticized Lotts analysis cannot claim to show thatliberalized concealed carry laws have led to higher rates of violent

crime.See,e.g., Ian Ayres & John J. Donohue III,Shooting Down

the More Guns, Less Crime Hypothesis, 55 Stan. L. Rev. 1193

(2003). In any event, New Jerseys regulation certainly threatensthe lives and safety of those law-abiding citizens who are

prevented from exercising their constitutional rights under theSecond Amendment.


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states. And it chose to overlook something else that iscommon knowledge in New Jersey and throughoutAmerica: violent street crime is not exactly a thing ofthe past.

V. This Case Will Allow an IncrementalClarification of a Significant Issue LeftOpen inHeller

Hellernoted that since this case represents thisCourts first in-depth examination of the Second

Amendment, one should not expect it to clarify the

entire field. 554 U.S. at 635. Perhaps the mostconspicuous issue left open for the future was theprecise scope of the Second Amendment right to beararms outside the home. For several reasons, this caseis a suitable vehicle for a logical next step in theincremental development of the field opened up by

Heller.

First, the justifiable need regulation at issue inthis case makes the right to bear arms, expresslyprotected in the text of the Constitution, almost

meaningless. If this regulation could survive judicialscrutiny, the Second Amendment would be a largelyempty shell, in clear contravention of Hellersinsistence on its value and importance.

Second, the issues raised by legislative efforts torestrict the bearing of arms outside the home havealready undergone considerable percolation in thelower courts, and those courts have been inconsistentin their interpretations ofHeller.13

13See, e.g., Natl Rifle Assn v. McCraw, 719 F.3d 338 (5th Cir.2013); Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013);


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Third, the errors of the court belowespecially itsmisinterpretation of Hellers reference to certainlongstanding regulations and its conflation ofintermediate scrutiny and rational basis reviewwereso egregious that this Court will have the option ofremanding for the application of correct legalstandards. Without suggesting that such a remandwould be the most appropriate disposition of this case,we note that the existence of the option might beconsidered relevant at this stage of the proceedings.

Fourth, the issue raised in this case affects anenormous number of people. According to recentestimates from the United States Census Bureau, morethan 83 million peopleabout a quarter of the nationspopulationlive under laws that severely restrict theright to carry a handgun in public.14The jurisdictionsthat impose these restrictions are few in number, andout of step with the rest of the country, but the impactof their regulations is enormous. It is not justconstitutional rights that are at stake, but the lives andsafety of countless individuals who are now deprived ofthe ability to defend themselves against criminal

Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012);

Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012);People v. Aguilar,2013 IL 112116, 2013 WL 6798167 (2013); Hertz v. Bennett, 294

Ga. 62, 751 S.E.2d 90 (2013); Commonwealth v. Gouse, 461 Mass.787, 965 N.E.2d 774 (2012); Williams v. State, 417 Md. 479, 10

A.3d 1167 (2011).

14 These jurisdictions include California, Delaware, Hawaii,

Maryland, Massachusetts, New Jersey, New York, Rhode Island,

seePet. App. 37a n.6, and the District of Columbia. Population

estimates are at http://www.census.gov/popest/index.html (lastvisited February 7, 2014).


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violence. These citizens should have to wait no longerfor their constitutional rights to be respected.

CONCLUSION

For the foregoing reasons, and for those set forth inthe Petition, the Court should grant the petition for awrit of certiorari and reverse the judgment of the ThirdCircuit.

Respectfully submitted,

CARRIE SEVERINO

Counsel of Record Judicial Education Project

722 12th St., N.W.Fourth FloorWashington, D.C. 20005(571) [email protected]

NELSON LUNDGeorge Mason University

School of Law

3301 Fairfax DriveArlington, VA 22201

February 12, 2014 Counsel for Amicus Curiae

Documents

Amicus Brief of Judicial Education Project in Drake v. Jerejian