Drake v. Filko, No. 12–1150.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtALDISERT
Citation724 F.3d 426
PartiesJohn 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.
Docket NumberNo. 12–1150.
Decision Date31 July 2013

724 F.3d 426

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.

No. 12–1150.

United States Court of Appeals,
Third Circuit.

Argued Feb. 12, 2013.
Filed: July 31, 2013.


[724 F.3d 427]


David D. Jensen, David Jensen PLLC, New York, NY, Alan Gura [Argued], Gura & Possessky, PLLC, Alexandria, VA, 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, Richard J. Hughes Justice Complex, Trenton, NJ, for the Appellees.


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

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

OPINION OF THE COURT

ALDISERT, Circuit Judge.

Four New Jersey residents and two organizations (collectively “Appellants”) appeal

[724 F.3d 428]

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)(1).2


Next, if the chief police officer or superintendent determines that the applicant

[724 F.3d 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(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.

[724 F.3d 430]

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, 128 S.Ct. 2783, 171 L.Ed.2d 637 (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, 177 L.Ed.2d 894 (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,––– U.S. ––––, 133 S.Ct. 1806, 185 L.Ed.2d 812 (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, 475 (4th Cir.2011), cert. denied,––– U.S. ––––, 132 S.Ct. 756, 181 L.Ed.2d 482 (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

[724 F.3d 431]

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, 128 S.Ct. 2783), 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,––– U.S. ––––, 131 S.Ct. 1674, 179 L.Ed.2d 645 (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...

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129 practice notes
  • Tyler v. Hillsdale Cnty. Sheriff's Dep't, No. 13-1876
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 18, 2014
    ...2014) (recognizing the right beyond the home), and Moore v. Madigan, 702 F.3d 933, 936-42 (7th Cir. 2012) (same), with Drake v. Filko, 724 F.3d 426, 431-35 (3d Cir. 2013) (declining to "definitively declare" that Heller extends beyond the home), cert. denied sub nom. Drake v. Jerejian, 134 ......
  • Tyler v. Hillsdale Cnty. Sheriff's Dep't, No. 13–1876.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 18, 2014
    ...Cir.2014) (recognizing the right beyond the home), and Moore v. Madigan, 702 F.3d 933, 936–42 (7th Cir.2012) (same), with Drake v. Filko, 724 F.3d 426, 431–35 (3d Cir.2013) (declining to “definitively declare” that Heller extends beyond the home), cert. denied sub nom. Drake v. Jerejian, ––......
  • Tyler v. Hillsdale Cnty. Sheriff's Dep't, No. 13–1876.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 21, 2015
    ...Cir.2014) (recognizing the right beyond the home), and Moore v. Madigan, 702 F.3d 933, 936–42 (7th Cir.2012) (same), with Drake v. Filko, 724 F.3d 426, 431–35 (3d Cir.2013) (declining to “definitively declare” that Heller extends beyond the home), cert. denied sub nom. Drake v. Jerejian, ––......
  • Tyler v. Hillsdale Cnty. Sheriff's Dep't, No. 13–1876.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 21, 2015
    ...Cir.2014) (recognizing the right beyond the home), and Moore v. Madigan, 702 F.3d 933, 936–42 (7th Cir.2012) (same), with Drake v. Filko, 724 F.3d 426, 431–35 (3d Cir.2013) (declining to “definitively declare” that Heller extends beyond the home), cert. denied sub nom. Drake v. Jerejian, ––......
  • Request a trial to view additional results
128 cases
  • Tyler v. Hillsdale Cnty. Sheriff's Dep't, No. 13-1876
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 18, 2014
    ...2014) (recognizing the right beyond the home), and Moore v. Madigan, 702 F.3d 933, 936-42 (7th Cir. 2012) (same), with Drake v. Filko, 724 F.3d 426, 431-35 (3d Cir. 2013) (declining to "definitively declare" that Heller extends beyond the home), cert. denied sub nom. Drake v. Jerejian, 134 ......
  • Tyler v. Hillsdale Cnty. Sheriff's Dep't, No. 13–1876.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 18, 2014
    ...Cir.2014) (recognizing the right beyond the home), and Moore v. Madigan, 702 F.3d 933, 936–42 (7th Cir.2012) (same), with Drake v. Filko, 724 F.3d 426, 431–35 (3d Cir.2013) (declining to “definitively declare” that Heller extends beyond the home), cert. denied sub nom. Drake v. Jerejian, ––......
  • Tyler v. Hillsdale Cnty. Sheriff's Dep't, No. 13–1876.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 21, 2015
    ...Cir.2014) (recognizing the right beyond the home), and Moore v. Madigan, 702 F.3d 933, 936–42 (7th Cir.2012) (same), with Drake v. Filko, 724 F.3d 426, 431–35 (3d Cir.2013) (declining to “definitively declare” that Heller extends beyond the home), cert. denied sub nom. Drake v. Jerejian, ––......
  • Tyler v. Hillsdale Cnty. Sheriff's Dep't, No. 13–1876.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 21, 2015
    ...Cir.2014) (recognizing the right beyond the home), and Moore v. Madigan, 702 F.3d 933, 936–42 (7th Cir.2012) (same), with Drake v. Filko, 724 F.3d 426, 431–35 (3d Cir.2013) (declining to “definitively declare” that Heller extends beyond the home), cert. denied sub nom. Drake v. Jerejian, ––......
  • Request a trial to view additional results
1 books & journal articles
  • SECURING GUN RIGHTS BY STATUTE: THE RIGHT TO KEEP AND BEAR ARMS OUTSIDE THE CONSTITUTION.
    • United States
    • Michigan Law Review Vol. 120 Nbr. 4, February 2022
    • February 1, 2022
    ...(95.) Kachalsky v. County of Westchester, 701 F.3d 81, 84 (2d Cir. 2012) (upholding New York's may-issue law). (96.) Drake v. Filko, 724 F.3d 426,428 (3d Cir. 2013) (upholding New Jersey's may-issue (97.) Johnson, supra note 89, at 748 & n.186 (discussing "may issue" states, whose schem......

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