Drake v. Filko

724 F.3d 426, 2013 WL 3927735, 2013 U.S. App. LEXIS 15635
Court of Appeals for the Third Circuit·Decided July 31, 2013·No. 12-1150·Published·Cited by 143 cases

Opinions

OPINION OF THE COURT

ALDISERT, Circuit Judge.

Four New Jersey residents and two organizations (collectively “Appellants”) ap[428] peal from a judgment of the United States District Court for the District of New Jersey that held constitutional N.J.S.A. § 2C:58-4, a New Jersey law regulating the issuance of permits to carry handguns in public (“Handgun Permit Law”). Appellants contend that the District Court erred because (1) the Second Amendment secures a right to carry arms in public for self-defense; (2) the “justifiable need” standard of the Handgun Permit Law is an unconstitutional prior restraint; and (3) the standard fails any level of means-end scrutiny a court may apply. We will affirm the judgment of the District Court.

I.

Permits to carry handguns are “the most closely regulated aspect” of New Jersey’s gun control laws. In re Preis, 118 N.J. 564, 573 A.2d 148, 150 (1990). Individuals who wish to carry a handgun in public for self-defense must first obtain a license. N.J.S.A. § 2C:39-5(b).1 The process and standard for obtaining such a license is found in New Jersey’s Handgun Permit Law, N.J.S.A. § 2C:58-4.

Under New Jersey’s Handgun Permit Law, individuals who desire a permit to carry a handgun in public must apply to the chief police officer in their municipality or to the superintendent of the state police. N.J.S.A. § 2C:58-4(c). The chief police officer or superintendent considers the application in accordance with the following provisions of the Handgun Permit Law:

No application shall be approved by the chief police officer or the superintendent unless the applicant demonstrates that he is not subject to any of the disabilities set forth in 2C:58-3c. [which includes numerous criminal history, age and mental health requirements], that he is thoroughly familiar with the safe handling and use of handguns, and that he has a justifiable need to carry a handgun.

Id. (emphasis added). The meaning of “justifiable need,” as it appears in this provision, is codified in the New Jersey Administrative Code as follows:

[T]he urgent necessity for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot be avoided by means other than by issuance of a permit to carry a handgun.

N.J. Admin. Code 13:54-2.4(d)(l).2

Next, if the chief police officer or superintendent determines that the applicant [429] has met all the requirements, including demonstration of a “justifiable need,” the application is approved and sent to a superior court judge, who:

shall issue the permit to the applicant if, but only if, it is satisfied that the applicant is a person of good character who is not subject to any of the disabilities set forth in section 2C:58-3c, that he is thoroughly familiar with the safe handling and use of handguns, and that he has a justifiable need to carry a handgun.

N.J.S.A. § 2C:58-4(d). If, alternatively, the chief police officer or superintendent determines that the applicant has not met the requirements, the applicant “may request a hearing in the Superior Court ... by filing a written request for such a hearing within 30 days of the denial.” Id. at § 2C:58-4(e).

II.

Desiring to carry handguns in public for self-defense, the individual plaintiffs here each applied for a permit according to the process described above. Their applications were denied, however, because pursuant to N.J.S.A. § 2C:58-4(e) either a police official or superior court judge determined that they failed to satisfy the “justifiable need” requirement.3 The organizational plaintiffs asserted that their members and supporters have been denied public-carry permits and have refrained from applying for permits because they cannot demonstrate a “justifiable need” as required by the Handgun Permit Law. Appellants sought declaratory and injunctive relief, contending that New Jersey may not condition the issuance of a public-carry permit on an applicant’s ability to demonstrate a “justifiable need.” The District Court rejected Appellants’ arguments, and accordingly denied Appellants’ motion for summary judgment and granted Appellees’ motion to dismiss. Appellants timely appealed.4

III.

This appeal prompts us to consider multiple questions. We will consider each in turn following the two-step approach this Court set forth in United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010):

First, we ask whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.... If it does not, our inquiry is complete. If it does, we evaluate the law under some form of means-end scrutiny. If the law passes muster under that standard, it is constitutional. If it fails, it is invalid.

Here, we conclude 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 guaran[430] tee. Accordingly, we need not move to the second step of Marzzarella. Nevertheless, because of the important constitutional issues presented, we believe it to be beneficial and appropriate to consider whether the “justifiable need” standard withstands the applicable intermediate level of scrutiny. We conclude that even if the “justifiable need” standard did not qualify as a “presumptively lawful,” “longstanding” regulation, at step two of Marzzarella it would withstand intermediate scrutiny, providing a second, independent basis for concluding that the standard is constitutional.

IV.

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Drake v. Filko, 724 F.3d 426, 2013 WL 3927735, 2013 U.S. App. LEXIS 15635 (3d Cir. 2013).

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