Drake v. Filko
2013 U.S. App. LEXIS 15635
| 3rd Cir. | 2013Background
- Appellants challenge New Jersey Handgun Permit Law, N.J.S.A. 2C:58-4, and its justifiable need requirement for public carry.
- Law requires permit via local police or state superintendent, with demonstration of no disabilities, safe handling, and justifiable need.
- Justifiable need is defined in the Administrative Code as urgent self-protection due to specific threats or prior attacks.
- Denied applications may be reviewed by a Superior Court judge after police approval, with a hearing within 30 days of denial.
- District Court upheld the law; Appellants appealed; Third Circuit applied Marzzarella to assess Second Amendment impact.
- Dissent argues the Second Amendment extends beyond the home and questions the law’s longstandingness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does justifiable need burden Second Amendment rights if carried publicly? | Appellants claim public carry is protected; justifiable need burdens that right. | New Jersey asserts longstanding regulation that may restrict public carry. | Yes, it burdens, but it is presumptively lawful. |
| Is the justifiable need standard a presumptively lawful longstanding regulation under Heller/Marzzarella? | Argues no historical pedigree to exempt from scrutiny. | Argues longstanding tradition and cross-state analogues support presumption. | Yes, it qualifies as presumptively lawful. |
| If burdened, does the standard survive intermediate scrutiny? | Claims no adequate fit between restriction and public safety. | Argues reasonable fit and state interest in public safety justify it. | Yes, withstands intermediate scrutiny. |
| Should First Amendment prior restraint doctrine apply to this Second Amendment challenge? | Argues for prior restraint framework due to licensing discretion. | Rejects importing prior restraint; applies Second Amendment scrutiny framework. | No; Court uses Second Amendment scrutiny, not prior restraint. |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (U.S. 2008) (recognizes presumptively lawful restrictions and right to self-defense)
- McDonald v. City of Chicago, 130 S. Ct. 3020 (U.S. 2010) (Second Amendment applies to the states)
- Marzzarella v. United States, 614 F.3d 85 (3d Cir. 2010) (establishes two-step framework and intermediate scrutiny for certain laws)
- Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012) (discusses public carry and proper scrutiny framework)
- Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) (intermediate scrutiny standard and fit discussion)
- Barton v. United States, 633 F.3d 168 (3d Cir. 2011) (longstanding regulations and historical context in scrutiny)
- Skoien v. United States, 614 F.3d 638 (7th Cir. 2010) (historical analysis of Second Amendment limits and exceptions)