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Drake v. Filko

United States Court of Appeals, Third Circuit

July 31, 2013

JOHN M. DRAKE; GREGORY C. GALLAHER; LENNY S. SALERNO; FINLEY FENTON; SECOND AMENDMENT FOUNDATION, INC.; ASSOCIATION OF NEW JERSEY RIFLE & PISTOL CLUBS, INC., Appellants
v.
THE HON. RUDOLPH A. FILKO, in his Official Capacity as Judge of the Superior Court of Passaic County; HON. EDWARD A. JEREJIAN, in his Official Capacity as Judge of the Superior Court of Bergen County; THE HON. THOMAS V. MANAHAN, in his Official Capacity as Judge of the Superior Court of Morris County; SUPERINTENDENT NEW JERSEY STATE POLICE; CHIEF RICHARD COOK, in his Official Capacity as Chief of the Montville, New Jersey Police Department; ATTORNEY GENERAL OF NEW JERSEY; ROBERT JONES, in his Official Capacity as Chief of the Hammonton, New Jersey Police, Department

Argued February 12, 2013.

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 2-10-cv-06110) District Judge: Honorable William H. Walls.

David D. Jensen David Jensen PLLC Alan Gura [Argued] Gura & Possessky, PLLC Attorneys for the Appellants.

Jeffrey S. Chiesa, Attorney General Gregory A. Spellmeyer Daniela Ivancikova Robert T. Lougy Mary E. Wood [Argued] Office of the Attorney General of New Jersey Department of Law and Public Safety Attorneys for the Appellees.

Adam K. Levin Hogan Lovells U.S. LLP, Attorney for the Amicus Appellees.

Before: HARDIMAN and ALDISERT, Circuit Judges, and STARK [*], District Judge.

OPINION

ALDISERT, Circuit Judge.

Four New Jersey residents and two organizations (collectively "Appellants") appeal 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, 573 A.2d 148, 150 (N.J. 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)(1).[2]

Next, if the chief police officer or superintendent determines that the applicant 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(c) 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 guarantee. 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.

It remains unsettled whether the individual right to bear arms for the purpose of self-defense extends beyond the home.[5] In 2008, the Supreme Court explicitly recognized for the first time that the Second Amendment confers upon individuals a right to keep and bear arms for self-defense by holding that a District of Columbia law forbidding the individual possession of usable handguns in the home violated the Second Amendment. See District of Columbia v. Heller, 554 U.S. 570, 595 (2008). In 2010, the Court recognized that the Second Amendment right articulated in Heller applied equally to the states through the Fourteenth Amendment. See McDonald v. City of Chicago, — U.S. —, 130 S.Ct. 3020, 3026 (2010). Taken together, these cases made clear that "Second Amendment guarantees are at their zenith within the home." Kachalsky v. County of Westchester, 701 F.3d 81, 89 (2d Cir. 2012), cert. denied, 133 S.Ct. 1806 (2013). Outside of the home, however, we encounter the "vast terra incognita" recognized by the Fourth Circuit in United States v. Masciandaro, 638 F.3d 458, 485 (4th Cir. 2011), cert. denied, 132 S.Ct. 756 (2011). Compare also Marzzarella, 614 F.3d at 92 ("[C]ertainly, to some degree, [the Second Amendment] must protect the right of law-abiding citizens to possess firearms for other, as-yet-undefined, lawful purposes."), with Masciandaro, 638 F.3d at 475 ("There may or may not be a Second Amendment right in some places beyond the home.").

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."[6] As the Second Circuit recently explained, however, Heller "was never meant 'to clarify the entire field' of Second Amendment jurisprudence, " Kachalsky, 701 F.3d at 89 (quoting Heller, 554 U.S. at 635), but rather struck down a single law that "ran roughshod" over D.C. residents' individual right to possess usable handguns in the home, id. at 88. Hence, the Seventh Circuit in Moore may have read Heller too broadly. As the Seventh Circuit itself had earlier stated in United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc), cert. denied, 131 S.Ct. 1674 (2011), Heller's language "warns readers not to treat Heller as containing broader holdings than the Court set out to establish: that the Second Amendment created individual rights, one of which is keeping operable handguns at home for self-defense." Id. (emphasis added).

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. See, e.g., Heller, 554 U.S. at 605-619 ("We now address how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century."). 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 for self-defense. As the Second Circuit observed in Kachalsky, "[h]istory and tradition do not speak with one voice here. What history demonstrates is that states often disagreed as to the scope of the right to bear arms, whether the right was embodied in a state constitution or the Second Amendment." 701 F.3d at 91.

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. Ultimately, as our Court did in Marzzarella, we refrain from answering this question definitively because it is not necessary to our conclusion.

V.

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. See Marzzarella, 614 F.3d at 92. As this Court has stated, certain longstanding regulations are "exceptions" to the right to keep and bear arms, such that the conduct they regulate is not within the scope of the Second Amendment. See United States v. Barton, 633 F.3d 168, 172 (3d Cir. 2011); United States v. Huet, 665 F.3d 588, 600 (3d Cir. 2012). Here, we agree with the District Court that even if some protected right to carry arms outside the home exists, the challenged requirement that applicants demonstrate a "justifiable need" to obtain a permit to publicly carry a handgun for self-defense qualifies as a "longstanding, " "presumptively lawful" regulation.

In Heller the Supreme Court noted that nothing in its opinion "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings" and identified these "regulatory measures" as "presumptively lawful" ones. 554 U.S. at 571, 571 n.26. It then stated that the presumptively lawful regulations it identified by name did not compose an "exhaustive" list, but the Court did not provide guidance on how to identify other regulations that may qualify. Id.

Exploring the meaning of "presumptively lawful, " this Court has stated that "presumptively lawful" regulatory measures are "exceptions to the Second Amendment guarantee." Marzzarella, 614 F.3d at 91.[7] Acknowledging that the exceptions identified in Heller "all derived from historical regulations, " the Marzzarella Court stated that "it is not clear that pre-ratification presence is the only avenue to a categorical exception." Id. at 93. Although Marzzarella stated also that "prudence counsels caution when extending [the] recognized [Heller] exceptions to novel regulations unmentioned by Heller, " 614 F.3d at 93, we nevertheless conclude, for the reasons that follow, that the requirement that applicants demonstrate a "justifiable need" to publicly carry a handgun for self-defense is a presumptively lawful, longstanding licensing provision under the teachings of Heller and Marzzarella.

The "justifiable need" standard Appellants challenge has existed in New Jersey in some form for nearly 90 years. See Siccardi v. State, 284 A.2d 533, 538 (N.J. 1971). Beginning in 1924[8] New Jersey "directed that no persons (other than those specifically exempted such as police officers and the like) shall carry [concealed] handguns except pursuant to permits issuable only on a showing of 'need.'" Id. (internal citations omitted). In 1966, New Jersey amended its laws to prohibit individuals from carrying handguns in public, in any manner, without first obtaining a permit, and again conditioned the issuance of such permits on a showing of need. The predecessor to the Handgun Permit Law subsequently underwent multiple revisions, the requirement of "need" enduring each, and ultimately the present-day standard of "justifiable need" became statutorily enshrined in 1978.

New Jersey's longstanding handgun permitting schema is not an anomaly. Many recent judicial opinions have discussed historical laws regulating or prohibiting the carrying of weapons in public. See, e.g., Peterson v. Martinez, 707 F.3d 1197, 1201 (10th Cir. 2013) ("extending" the recognized Heller exceptions to cover regulations on the carrying of concealed firearms, stating that "[i]n light of our nation's extensive practice of restricting citizens' freedom to carry firearms in a concealed manner, we hold that this activity does not fall within the scope of the Second Amendment's protections"). In the 19th Century, "[m]ost states enacted laws banning the carrying of concealed weapons, " and "[s]ome states went even further than prohibiting the carrying of concealed weapons . . . bann[ing] concealable weapons (subject to certain exceptions) altogether whether carried openly or concealed." Kachalsky, 701 F.3d at 95-96. As Appellants correctly note, some state courts determined that prohibitions on concealed carrying were permissible because open carrying remained available as an avenue for public carrying. But those state court determinations do not compel us to conclude that the "justifiable need" standard, which in New Jersey must be met to carry openly or concealed, fails to qualify as a "longstanding, " "presumptively lawful" exception to the Second Amendment guarantee. 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 28; 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).[9]

A close analogue to the New Jersey standard can be found in New York's permit schema, which has required a showing of need, or "proper cause, " for a century. In 1913 New York determined that a reasonable method for addressing the dangers inherent in the carrying of handguns in public was to limit handgun possession in public to those showing "proper cause" for the issuance of a permit. Kachalsky, 701 F.3d at 85 (citing 1913 Laws of N.Y., ch. 608, at 1627-1630). In combination with New York's ban on open carrying, typical New Yorkers desiring to carry a handgun in public must demonstrate "proper cause, " just as typical New Jerseyans must demonstrate "justifiable need."[10]As the District Court noted, New York's statute was "adopted in the same era that states began adopting the felon in possession statutes that Heller explicitly recognized as being presumptively lawful longstanding regulations." District Court Opinion 32. The D.C. Circuit in Heller v. District of Columbia, 670 F.3d 1244, 1253 (D.C. Cir. 2011) [Heller II], stated that the Supreme Court "considered 'prohibitions on the possession of firearms by felons' to be 'longstanding' although states did not start to enact them until the early 20th century." Simply put, we need not find that New Jersey and other states, at the time of the adoption of the Bill of Rights, required a particularized showing of objective justification to carry a handgun.[11] Accordingly, New York's adoption of a "proper cause" standard in 1913, 11 years before New Jersey required that permits be issued only upon a showing of "need, " supports our conclusion that New Jersey's "justifiable need" standard may be upheld as a longstanding regulation.[12]

We discern no hint in the Second Amendment jurisprudence of either the Supreme Court or this Court that the analysis of a particular regulation in a particular jurisdiction should turn entirely on the historical experience of that jurisdiction alone. To the contrary, in Barton, our analysis of the constitutionality of a federal firearm restriction included consideration of the fact that at least seven state legislatures "had adopted bans on the carrying of concealed weapons by violent offenders" prior to 1923. 633 F.3d at 173.

Consequently, assuming that the Second Amendment confers upon individuals some right to carry arms outside the home, we would nevertheless conclude that the "justifiable need" standard of the Handgun Permit Law is a longstanding regulation that enjoys presumptive constitutionality under the teachings articulated in Heller and expanded upon in our Court's precedent. Accordingly, it regulates conduct falling outside the scope of the Second Amendment's guarantee.

VI.

As discussed above, we believe that the "justifiable need" standard of the Handgun Permit Law qualifies as a "longstanding, " "presumptively lawful" regulation that regulates conduct falling outside the scope of the Second Amendment's guarantee. Consequently, we need not move to the second step of Marzzarella to apply means-end scrutiny, but we have decided to do so because the constitutional issues presented to us in this new era of Second Amendment jurisprudence are of critical importance. Even assuming that the "justifiable need" standard is not a longstanding regulation enjoying presumptive constitutionality, at the second step of Marzzarella it withstands the appropriate, intermediate level of scrutiny, and accordingly we would uphold the continued use of the standard on this basis as well.

A.

As a preliminary matter, we reject Appellants' invitation to apply First Amendment prior restraint doctrine rather than traditional means-end scrutiny. Appellants contend that we should apply the First Amendment prior restraint doctrine because application of the Handgun Permit Law's "justifiable need" standard vests licensing officials with "unbridled discretion." Appellants correctly note that this Court has stated that "the structure of First Amendment doctrine should inform our analysis of the Second Amendment." See Marzzarella, 614 F.3d at 89 n.4. This statement, however, reflects this Court's willingness to consider the varying levels of means-end scrutiny applied to First Amendment challenges when determining what level of scrutiny to apply to a Second Amendment challenge. It does not compel us to import the prior restraint doctrine. Indeed, this Court has rejected a similar invitation to import the First Amendment overbreadth doctrine to the Second Amendment context. See Barton, 633 F.3d at 172 n.3.

Even if we were to apply the prior restraint doctrine, it would not compel the result sought by Appellants because New Jersey's Handgun Permit Law does not vest licensing officials with "unbridled discretion." Appellants incorrectly characterize the "justifiable need" standard as a highly discretionary, seat-of-the-pants determination. On the contrary, the standards to be applied by licensing officials are clear and specific, as they are codified in New Jersey's administrative code and have been explained and applied in numerous New Jersey court opinions. Moreover, they are accompanied by specific procedures[13] that provide "safeguards against arbitrary official action." See Siccardi, 284 ...


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