Drake v. Jerejian (NJ CCW) [cert denied 5/5]

[kcbrown]

Drake is not a concealed carry case.

NJ does not have concealed carry permits. NJ has a "permit to carry a handgun." Both open and concealed carry are completely banned except for the permit.

I think Mulay's argument is that, firstly, only open carry is protected and, secondly, SCOTUS is only interested in "pure" open carry cases and, thus, any carry case involving anything other than or in addition to open carry will be rejected by SCOTUS.

It's a plausible hypothesis, and is consistent with the rejection of the carry cases that have come up to SCOTUS thus far. I find it wanting somehow, but we simply have no evidence upon which to dismiss it.


It's less comprehensive than my hypothesis, as my hypothesis provides an explanation for rejection of BATFE as well (and is at least consistent with, if not an explanation for, Kennedy's latest denial of the emergency injunction in Fyock). Hence, one cannot legitimately use Occam's Razor to distinguish between the two because Occam's Razor is validly applicable only when all else is equal.


Less comprehensive though it may be, Mulay's hypothesis is still valid because it's not contradicted by any evidence as yet, is falsifiable, and it makes a testable prediction: that SCOTUS will grant cert to Bonidy and not any other carry case. If that prediction fails to come true, either because SCOTUS grants cert to some other carry case (which would contradict my hypothesis as well) or because SCOTUS denies cert to Bonidy, then it's sayonara to his hypothesis (hence why it's falsifiable).

[kcbrown]

So, if in NJ the permit is for all modes of carry, on what basis did the circuit argue against issuing them?

Both on the basis of the "justifiable need" standard being a "longstanding" regulation and on the basis of "public safety". You can read the decision here: http://scholar.google.com/scholar_ca...41435731592301

Per the 3rd Circuit's "reasoning", any law which infringes upon a Constitutional right and which has been in place sufficiently long to be considered "longstanding" by the court (in other words, longer than some arbitrary amount of time that the court will not elucidate nor justify, but will magically be short enough for the law under review to qualify) will automagically be "Constitutional". It's just another way of insisting that Constitutionally-protected rights are second class citizens in the world of law when the entire point of protecting them in the Constitution was to bring them to the front of the line.

[wireless]

Bonidy is up at 10th circuit or is it being filed for cert to scotus?

[M. D. Van Norman]

It’s not that I believe concealed carry is going to make a better case than open carry, it’s just that the cases that are in front of courts are all about permits for concealed carry.

My guess is that we will get a ruling on a *concealed* carry case where the SCOTUS says that some form of carry must be available to the average law abiding citizens, but that the method of carry, including licensing, will be allowed to remain as long as it’s not prohibitive.

I mostly agree, but I think that we had to start in states with licensing regimes, which means concealed carry for the most part. Otherwise, cases would simply have been dismissed since licenses or permits were available. While we can’t seem to avoid the prohibitionists’ delaying tactics, we almost have to back them into a corner on the concealed-carry issue (e.g., Peterson) first.

When they can no longer use the concealed-carry-isn’t-the-right defense, we can make progress on a different angle of attack … assuming we retain the advantage at the Supreme Court. Clearly, though, our advantage there is very slim, or the high court could have plucked any case thus far and issued an ACA-style ruling spelling out the legalistic right to bear arms in whatever terms it preferred. Of course, that brings us right back to the kcbrown hypothesis.

[kcbrown]

Bonidy is up at 10th circuit or is it being filed for cert to scotus?

It's apparently at the 10th Circuit at the moment.

[ryan_j]

Both on the basis of the "justifiable need" standard being a "longstanding" regulation and on the basis of "public safety". You can read the decision here: http://scholar.google.com/scholar_ca...41435731592301

Per the 3rd Circuit's "reasoning", any law which infringes upon a Constitutional right and which has been in place sufficiently long to be considered "longstanding" by the court (in other words, longer than some arbitrary amount of time that the court will not elucidate nor justify, but will magically be short enough for the law under review to qualify) will automagically be "Constitutional". It's just another way of insisting that Constitutionally-protected rights are second class citizens in the world of law when the entire point of protecting them in the Constitution was to bring them to the front of the line.

This, and they also declined to answer whether 2A applies outside the home. The best they said was, "maybe it does, but we don't need to know that to reach our conclusion."

There is a huge problem with this though, namely that the definition of justifiable need is based on old, outdated case law, namely Burton v Sills, and Siccardi v State. The ruling in Burton found that NJ's gun control laws are valid because the 2A does not apply to the invidual and only to a militia. Siccardi was based on Burton and applied rational basis and not any form of heightened scrutiny.

The issues that let both of these decisions stand are now overruled by Heller and McDonald, because the US Supreme Court has found that the right to keep and bear arms is an individual one, and not restricted to a militia.

[ryan_j]

I think Mulay's argument is that, firstly, only open carry is protected and, secondly, SCOTUS is only interested in "pure" open carry cases and, thus, any carry case involving anything other than or in addition to open carry will be rejected by SCOTUS.

It's a plausible hypothesis, and is consistent with the rejection of the carry cases that have come up to SCOTUS thus far. I find it wanting somehow, but we simply have no evidence upon which to dismiss it.


It's less comprehensive than my hypothesis, as my hypothesis provides an explanation for rejection of BATFE as well (and is at least consistent with, if not an explanation for, Kennedy's latest denial of the emergency injunction in Fyock). Hence, one cannot legitimately use Occam's Razor to distinguish between the two because Occam's Razor is validly applicable only when all else is equal.


Less comprehensive though it may be, Mulay's hypothesis is still valid because it's not contradicted by any evidence as yet, is falsifiable, and it makes a testable prediction: that SCOTUS will grant cert to Bonidy and not any other carry case. If that prediction fails to come true, either because SCOTUS grants cert to some other carry case (which would contradict my hypothesis as well) or because SCOTUS denies cert to Bonidy, then it's sayonara to his hypothesis (hence why it's falsifiable).

I don't believe Drake even mentions concealed. It is just assumed by people that it does, because the phrase "concealed carry" or the acronym "CCW" is now synonymous with carrying a loaded handgun in public. But it doesn't have to be. To be honest I would be fine if the ruling said that only open carry is protected, for very obvious reasons. I don't need to spell it out.

NJ's gun control scheme is so broad, that it simply bans possession of handguns everywhere without a carry permit. Your home, target ranges, hunting, training, gunsmithing, matches and other very limited purposes are carved out in narrow exemptions. This is a problem.

[kcbrown]

I don't believe Drake even mentions concealed. It is just assumed by people that it does, because the phrase "concealed carry" or the acronym "CCW" is now synonymous with carrying a loaded handgun in public. But it doesn't have to be. To be honest I would be fine if the ruling said that only open carry is protected, for very obvious reasons. I don't need to spell it out.

Right. And the same was true of Woollard. However, his argument seems to be that if the case is not limited to open carry, SCOTUS will reject it. That open carry is infringed in a given case apparently isn't sufficient, according to his hypothesis, for SCOTUS to take the case in question. This is why I find his hypothesis wanting -- it presupposes a Supreme Court that is sufficiently disinterested in the right that it will not uphold it except when presented with a very specific case.

Indeed, that touches on why I find unpersuasive all the other hypotheses that have been offered up to explain SCOTUS' rejection of our carry cases to date. Essentially all of them presuppose a SCOTUS that is so disinterested in the right that it will refuse to protect it unless the case presented is "just right", or the circumstances are "just right", as if SCOTUS were Goldilocks or something.

But if you're going to propose a SCOTUS that is so disinterested in the right, why not go all the way and propose a SCOTUS that is no longer interested in protecting the right, as I have? After all, at that point, there is scant difference, the latter is simpler and more comprehensive, and also happens to explain more of the data available to date.

The next couple of years or so will reveal the truth, one way or the other. But if we are not now laying the groundwork for a Constitutional Convention, we damned well had better start, because our time window is limited thanks to the shifting political demographics in the country.

NJ's gun control scheme is so broad, that it simply bans possession of handguns everywhere without a carry permit. Your home, target ranges, hunting, training, gunsmithing, matches and other very limited purposes are carved out in narrow exemptions. This is a problem.

It indeed is. Nevertheless, I expect SCOTUS will deny cert to it, independently of the merits of the case.

[LostInSpace]

I expect SCOTUS will deny cert to it, independently of the merits of the case.

An optimist could then hope that SCOTUS simply wants no carry cases until the 9th circuit reaches its final verdict on Peruta.

[kcbrown]

An optimist could then hope that SCOTUS simply wants no carry cases until the 9th circuit reaches its final verdict on Peruta.

One could, and indeed that's one of the hypotheses that has been offered.

However, it raises the question: why? What's the purpose of waiting for all the circuits to issue opinions on the issue?

Let me put it another way, via another question. Suppose all of the circuits issued essentially the same opinion which denied carry in public. Would that cause SCOTUS to subsequently refuse to protect the right?

[ryan_j]

Right. And the same was true of Woollard. However, his argument seems to be that if the case is not limited to open carry, SCOTUS will reject it. That open carry is infringed in a given case apparently isn't sufficient, according to his hypothesis, for SCOTUS to take the case in question. This is why I find his hypothesis wanting -- it presupposes a Supreme Court that is sufficiently disinterested in the right that it will not uphold it except when presented with a very specific case.

But that's exactly what happened with Woollard - Maryland's argument was that open carry of long guns was protected under the 2A, and that you could in fact carry a loaded long gun in MD. That is not true in NJ.

[ryan_j]

An optimist could then hope that SCOTUS simply wants no carry cases until the 9th circuit reaches its final verdict on Peruta.

They could, or they could also say that they didn't see any confusion in the lower courts. Now there is, even with the specter of an en banc hearing in Peruta. The courts are indeed hopelessly confused. The duty of the Supreme Court is to resolve this.

[IVC]

What's the purpose of waiting for all the circuits to issue opinions on the issue?

We are still seeing Roe v. Wade related issues reach SCOTUS, we are still seeing 1A cases reach SCOTUS, we had recently a decision on equal opportunity in college admissions case in TX. How many years is this *after* the corresponding landmark decisions?

Now, what is your timeline for resolving *ALL* 2A-related issues? Three years? Any 2A issue that is not resolved in those three years means that SCOTUS doesn't want to address it?

[kcbrown]

We are still seeing Roe v. Wade related issues reach SCOTUS, we are still seeing 1A cases reach SCOTUS, we had recently a decision on equal opportunity in college admissions case in TX. How many years is this *after* the corresponding landmark decisions?

Sure. But the difference between them is that in the case of right to abortion or right to free speech, the Supreme Court hasn't refused to protect those rights once those rights were initially recognized.

Now, what is your timeline for resolving *ALL* 2A-related issues? Three years? Any 2A issue that is not resolved in those three years means that SCOTUS doesn't want to address it?

My litmus test isn't with respect to resolution of all 2A related issues, it's with respect to resolution of any 2A related issues.

There is a huge difference between not resolving an issue because it hasn't yet been raised (or repeatedly resolving the same issue, or variations thereof, as it is raised), and refusing to resolve an issue that has been raised. The RKBA problem falls squarely into the latter category, whilst the other rights fall squarely into the former.

[LostInSpace]

Maryland's argument was that open carry of long guns was protected under the 2A, and that you could in fact carry a loaded long gun in MD.

If this applies even to urban areas, I am surprised the carry advocates in MD haven't taken up the carrying of long guns. This would seem like a pretty quick way to get the state to go shall issue. Unless there is a catch and you can't really carry a long gun there.