Drake v. Filko (3d Cir. July 31, 2013) - NJ May issue upheld

[Federal Farmer]

Prof. Eugene Volokh blogs about this appellate decision and how it does conflict with Shepard/Moore.

[Davey]

We're waiting on cert for Woolard right?

[jd11201]

Wikipedia "confirmed" what I thought the current status is:

The Second Amendment Foundation filed a Writ of Certiorari with the SCOTUS for this case July 9th, 2013. A response from SCOTUS is expected in the fall of 2013.

The SCOTUS has not yet granted certiorari to a case of this subject matter.

[Federal Farmer]

I'm heartened by Volokh's tea leaf-reading:

 

 

My guess is also that there’s a decent chance that the Supreme Court will agree to hear the case (I doubt that the Third Circuit will rehear it en banc). There is something of a split between the circuits and state supreme courts that have upheld such restrictive schemes, and the Seventh Circuit, which struck down the Illinois law; and while the Illinois law was an unusually broad carry ban, I think the logic of the Seventh Circuit decision is indeed contrary to that of the other decisions. And the fact that there’s a dissent on the panel also cuts in some measure in favor of a grant of certiorari. The odds are still against cert — they almost always are — but I’d say that there’s at least a 25% chance or so of the Supreme Court agreeing to hear this case, assuming plaintiffs petition for review (and I expect they will).

[G214me]

This is why I celebrate the way it went for us. Yes the Illinois CCW is restrictive in some points and has it's flaws but it has the one word that many states wish they had in their law.....SHALL. It is also a good item to bring up to all the whiners ( most of whom did nothing to help us win this ) who cry about how " This stinks blah blah blah ". I hope the SCOTUS gives relief once and for all on the 2nd and to all those that wish to practice it.

[skinnyb82]

Another one of Gura's cases, I presume? He'll file cert petition. SCOTUS will likely hold this one, hear orals in Woollard, and GVR this with the precedent it sets in Woollard. As in (what I believe will happen) ruling that carry outsode the home does fall under the scope of the 2A and finding discretionary no issue, errr I mean may issue to be uncomstitutional.

 

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[skinnyb82]

Oh Good Lord I'm reading this and it makes me wanna throw up. The two judges in the majority basically said "Well, the State has been doing this for a long time so it's OK." *puke*. On a side note, responses are due in Woollard in 9 days.

[skinnyb82]

Jensen (Gura) filed for rehearing en banc. I've read more of this opinion and it is just nuts, seriously. It just says "Well, we've been doing this for a while, so it's constitutional" well based on that logic, slavery should be constitutional too. Or banning women from voting. This is so asinine...

 

"Although Heller does not explicitly identify a right to publicly carry arms for self- defense, it is possible to conclude that Heller implies such a right. The Seventh Circuit reached this very conclusion in Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012), when it stated that '[t]he Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside.'”

 

The Court doesn't feel like going into historical analysis yet rejects the contention. So, uh...umm....

 

"Appellants contend also that '[t]ext, history, tradition and precedent all confirm that [individuals] enjoy a right to publicly carry arms for their defense.' Appellants’ Brief 12 (emphasis added). At this time, we are not inclined to address this contention by engaging in a round of full-blown historical analysis, given other courts’ extensive consideration of the history and tradition of the Second Amendment. .... We reject Appellants’ contention that a historical analysis leads inevitably to the conclusion that the Second Amendment confers upon individuals a right to carry handguns in public."

 

They decline to rule that the scope of the Second Amendment applies to carry outside the home but admit that it "may have some application" beyond the home. I'm trying to figure out what was going through these judges' heads but I can't.

 

"For these reasons, we decline to definitively declare that the individual right to bear arms for the purpose of self-defense extends beyond the home, the 'core' of the right as identified by Heller. We do, however, recognize that the Second Amendment’s individual right to bear arms may have some application beyond the home."

 

I'm just barely gettiing started..."assuming" that it extends outside the home? You just said it doesn't. So...why do you make assumptions? You must demonstrate a "justifiable" need to exercise a right?

 

"Assuming that the Second Amendment individual right to bear arms does apply beyond the home, we next consider whether or not the requirement that applicants demonstrate a 'justifiable need' to publicly carry a handgun for self-defense burdens conduct within the scope of that Second Amendment guarantee.

 

 

The majority is basically saying that NJ's law is great. Yeah...denying a permit for an FBI employee who's received terrorist threats, apparently "I'm gonna kill you" isn't good enough. Does not go as far...? So you're relying on HISTORICAL bans not actual law as of right now? They actually cite 19th Century laws and say "Well, historically..." States that "once banned carrying...." Not states where it is banned since there is no state where carrying in public is statutorily banned thanks to Moore et al.

 

"The 'justifiable need' standard fits comfortably within the longstanding tradition of regulating the public carrying of weapons for self-defense. In fact, it does not go as far as some of the historical bans on public carrying; rather, it limits the opportunity for public carrying to those who can demonstrate a justifiable need to do so. See id. at 90 (discussing states that once “banned the carrying of pistols and similar weapons in public, both in a concealed or an open manner”) (citing Ch. 96, §§ 1–2, 1881 Ark. Acts at 191–92; Ch. 13, § 1, 1870 Tenn. Acts at 2 8; Act of Apr. 12, 1871, ch. 34, § 1, 1871 Tex. Gen. Laws at 25; Act of Dec. 2, 1875, ch. 52, § 1, 1876 Wyo. Terr. Comp . Laws, at 352)."

 

Sheer idiocy.... Presumptively lawful, they don't even bother to actually determine if it is ACTUALLY lawful. They just assume it is. Even if 'justifiable need' fails to qualify as such a regulation, it still withstands intermediate scrutiny? It's almost as if they WANT this to go to SCOTUS.

 

"We conclude that the District Court correctly determined that the requirement that applicants demonstrate a 'justifiable need' to publicly carry a handgun for self-defense qualifies as a 'presumptively lawful,' 'longstanding' regulation and therefore does not burden conduct within the scope of the Second Amendment’s guarantee. We conclude also that the District Court correctly determined that even if the 'justifiable need' standard fails to qualify as such a regulation, it nonetheless withstands intermediate scrutiny and is therefore constitutional. Accordingly, we will affirm the judgment of the District Court."

 

Opinion:

Opinion.and.Order.pdf

 

Jensen and Gura's Petition for Rehearing En Banc (Filed on 8/15):

Petition.for.Rehearing.En.Banc.pdf

[TyGuy]

http://i.imgflip.com/36nrp.jpgvia Imgflip Meme Maker

[TyGuy]

dang that was tough

[skinnyb82]

Haha I assume you made that. Good work. If you thought Woollard was bad, Drake is just...no words to describe it. It's like handing us a win at SCOTUS. During orals one of the judges on the panel was even leading the AG yet the AG still couldn't make a coherent argument.

 

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[TyGuy]

Yeah I made it

[Tango7]

"For these reasons, we decline to definitively declare that the individual right to bear arms for the purpose of self-defense extends beyond the home, the 'core' of the right as identified by Heller. We do, however, recognize that the Second Amendment’s individual right to bear arms may have some application beyond the home."

 

Wait... so they acknowledged the right was determined in Heller, then stated they were declining to acknowledge it while admitting that it might be applicable?

 

Whiskey Tango Foxtrot, over?

[BrowningHP]

"For these reasons, we decline to definitively declare that the individual right to bear arms for the purpose of self-defense extends beyond the home, the 'core' of the right as identified by Heller. We do, however, recognize that the Second Amendment’s individual right to bear arms may have some application beyond the home."

 

Wait... so they acknowledged the right was determined in Heller, then stated they were declining to acknowledge it while admitting that it might be applicable?

 

Whiskey Tango Foxtrot, over?

 

 

slavery is ok too as long as they vote it in

 

the constitution doesn't prevent them from making such laws, right?

 

what is this second amendment thing they mentioned, i am curious to read about the part where it says inside the home

[skinnyb82]

Yeah I was pretty floored when I read the whole "Yeah it's probably a constitutional right but we don't give a crap and we don't feel like going into historical analysis." What's more telling is the dissenting opinion. That judge TEARS inti the majority opinion. Saying they ignored precedent. Basically saying they didn't do their job.

 

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[BrowningHP]

good for him/her. thanks for posting this stuff, it's really interesting. will need to learn pacer/recap one of these days...

 

off topic... where's a good book to introduce the fundamentals of the american legal system to the lay person? all of these court cases have piqued my interest.

[G214me]

This is why I celebrate the way it went for us. Yes the Illinois CCW is restrictive in some points and has it's flaws but it has the one word that many states wish they had in their law.....SHALL. It is also a good item to bring up to all the whiners ( most of whom did nothing to help us win this ) who cry about how " This stinks blah blah blah ". I hope the SCOTUS gives relief once and for all on the 2nd and to all those that wish to practice it.

EXACTLY !!!! I bet I know at least 6 guys who have bought guns, holsters, mags, etc and ask me constantly " so what's going on with cc now " and no matter how much preaching and begging I do to get them off the recliner and contacting reps they never get around to it, ever. of course they are the first to complain how everything is wrong with the deal we have. i make it a point to SEVERELY let them have it on how they helped the anti gun crowd by being useless. I have also began refusing to share any info. on " how's it going ". let them look it up themselves !!!!!

[Tvandermyde]

This is why I celebrate the way it went for us. Yes the Illinois CCW is restrictive in some points and has it's flaws but it has the one word that many states wish they had in their law.....SHALL. It is also a good item to bring up to all the whiners ( most of whom did nothing to help us win this ) who cry about how " This stinks blah blah blah ". I hope the SCOTUS gives relief once and for all on the 2nd and to all those that wish to practice it.

EXACTLY !!!! I bet I know at least 6 guys who have bought guns, holsters, mags, etc and ask me constantly " so what's going on with cc now " and no matter how much preaching and begging I do to get them off the recliner and contacting reps they never get around to it, ever. of course they are the first to complain how everything is wrong with the deal we have. i make it a point to SEVERELY let them have it on how they helped the anti gun crowd by being useless. I have also began refusing to share any info. on " how's it going ". let them look it up themselves !!!!!

 

 

yea I know how that feels

[tkroenlein]

This is why I celebrate the way it went for us. Yes the Illinois CCW is restrictive in some points and has it's flaws but it has the one word that many states wish they had in their law.....SHALL. It is also a good item to bring up to all the whiners ( most of whom did nothing to help us win this ) who cry about how " This stinks blah blah blah ". I hope the SCOTUS gives relief once and for all on the 2nd and to all those that wish to practice it.

EXACTLY !!!! I bet I know at least 6 guys who have bought guns, holsters, mags, etc and ask me constantly " so what's going on with cc now " and no matter how much preaching and begging I do to get them off the recliner and contacting reps they never get around to it, ever. of course they are the first to complain how everything is wrong with the deal we have. i make it a point to SEVERELY let them have it on how they helped the anti gun crowd by being useless. I have also began refusing to share any info. on " how's it going ". let them look it up themselves !!!!!

 

 

yea I know how that feels

 

HA!

[skinnyb82]

Well here we go. Yesterday, CA3 denied rehearing en banc. Only four judges voted for rehearing out of the 12 judges who were eligible to vote for en banc rehearing (14 if panel rehearing since Stark, the District Judge from Delaware who joined Judge Aldisert in the majority is only eligible to vote for a panel rehearing, along with another District Judge assigned to the Circuit). I wonder what Gura's gonna do with this since he's filed for cert in Woollard....and if cert is granted. Maybe SCOTUS will deny cert in Woollard because of this case. Who knows but this is getting VERY interesting.

 

Rehearing.En.Banc.Denied.pdf

[TyGuy]

Which is a better SCOTUS case Woollard or this one"?

[skinnyb82]

From the standpoint of addressing may issue? Drake, without a doubt. Look into the plaintiffs. One is a CIA analyst with documented threats made against his life by a bona fide terrorist group that is recognized as such by the FBI. He now has a LEOSA permit after being discharged from the Coast Guard....yeah I dunno how that works. Another was kidnapped by a biker gang. Another plaintiff stocks ATMs with cash but isn't allowed to get a permit as an armed security guard. The list goes on. Read the opinion in full. It'll make your head explode. It's reminiscent of Woollard but worse. In that they apply some convoluted legal reasoning to come to a royally screwed up opinion. Presumptively lawful based on long standing tradition. When has any court ever said "oh well this is constitutional because it's been going on so long and that's what makes it constitutional although it's probably not constitutional." Then go and cite SCOTUS precedent and non-binding yet guiding precedent set by another Circuit. Really? At least Woollard they were consistent...wholly incorrect by applying rational basis and calling it intermediate scrutiny, but consistent nonetheless. CA3 applied a convoluted mess of rational basis and intermediate scrutiny. Those two judges didn't want anything to do with this case or they're just horrible at their job.

 

I'd like to see Gura file cert petition here and have it granted, hear orals in Drake, reverse CA3 and then issue a GVR order in Woollard using the precedent set in Drake. That or take them as two cases. It's been done...juvenile life without parole cases off the top of my head and that was just last year. This case is THE discretionary crony issue case that the Court should hear because it's effectively no issue. At least in Maryland these people would be issued permits. Terrorist threats? Yeah that's good enough for MD.

 

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[twjones]

I think you answer my question: it's possible they could combine the two cases for SCOTUS.

[skinnyb82]

Theoretically the Court may consolidate the cases but I don't know if they would. Both address the same subject matter, although the language contained within the two states' permit issuance statutes differs oh so slightly. New Jersey requires applicants show "justifiable need" for a carry permit while Maryland requires applicants show "good and substantial reason." It'd be splitting hairs. If they cannot be consolidated then one would be a companion case.

 

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[ryan_j]

One is a CIA analyst with documented threats made against his life by a bona fide terrorist group that is recognized as such by the FBI. He now has a LEOSA permit after being discharged from the Coast Guard....yeah I dunno how that works.

 

It's not really a LEOSA permit. It's a NJ RPO permit. Basically NJ wanted to head off LEOSA and has this permit for retired LEOs and altered the qualification to make it not LEOSA compliant. You DO NOT need a permit for LEOSA, you just need to be a retired LEO and qualify periodically. But NJ sneaky as it is has the RPO carry permit with a different qual and it even says retired LEOs can't use hollow points (contrary to LEOSA).

 

Basically piszczatoski retired from the coast guard and since CG is Federal LE he gets a permit.

[press1280]

This case will now be the next one to file for cert, hopefully sooner rather than later (late Nov would be 90 days from en banc denial) and avoid going into next year's term. I'm not very confident it will get cert now with Woollard denied. The cases are quite similiar.

[skinnyb82]

Except with the Third Circuit citing Moore in its opinion and the absolute idiocy of the "well this is the way it's been done for decades so I guess it's constitutional" finding. This opinion is, BY FAR, the worst opinion I have ever read. Since when could a Court, when reviewing a law's constitutionality, ignore the Constitution and binding precedent and instead rely on the law itself to conclude that the law is constitutional? That's like, ah I dunno. Applying that line of reasoning, there should be no judicial review and if this is considered to be judicial review then they couldn't even be bothered to make it look like they tried. According to CA3, women should still have no right to vote, men should still be allowed to beat their spouses and children (or children beat their parents etc), slavery should still be legal, segregation in our schools, no Constitutional protection against cops just busting down our doors because they feel like it with no legal remedy available and basically no Fourth Amendment protection because "that's how it's always been." Lisa Madigan should be allowed to can as many "old" employees as she wants with the reason for termination being "age." The list goes on. The Third almost literally stated "ok carry outside the home PROBABLY falls under the scope of the Second Amendment but we're not gonna engage in any in-depth analysis of the Constitution, the Second Amendment, any binding or guiding precedent, or whatever because this law has been around so it's presumptively lawful....due to long-standing tradition." While Posner may not be a fan of guns, he's at least got enough brains and respect for the judiciary and the Constitution to put it all under a microscope. These two idiots in the majority clearly didn't even believe that this case was worth their time. The dissenting judge also wrote quite the dissenting opinion, tearing into the majority for ignoring....everything that says "this isn't Constitutional."

 

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[TyGuy]

Wait, my wife can vote?

[ryan_j]

I am hoping it would but I am thinking it won't.

 

Is there a clear circuit split? SCOTUS never says why they don't grant cert?

[skinnyb82]

There really is no circuit split per se. The other three that have ruled on it have dealt with permit systems not a complete ban on carriage altogether. What SCOTUS wants, I believe, is an issue narrow in scope like Moore. Is it or isn't it a right, not is it or isn't it then having to address the licensing scheme itself. McDonald was very narrow, Heller as well. I was really optimistic about Woollard but I can see why cert wasn't granted (guess at least). Either four Justices wanted to grant cert but they weren't convinced that a fifth would rule in favor of Woollard (which is what I think happened with Kachalsky) or they just didn't wanna deal with the scope of the 2A as well as may issue. Drake is much better IMO just because of how the judges came to their brilliant conclusion and the, ahem, strongly worded dissenting opinion from one of the judges on the panel. We'll see though. I said the same about Woollard being better than Kachalsky (and I stand by that) but Drake is a big juicy one when someone who would have NO PROBLEM getting a permit in MD was denied a permit in NJ (the CIA employee who had specific, documented threats made against him by a terrorist group).

 

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