New Jersey Allowed to Require “Justifiable Need” to Carry a Firearm in Public

2014 0510 shepeard mainConcealed Carry permit, 2008. (Image: Brent Danley / Flickr)

Since the Supreme Court ruled in 2008 that the Second Amendment includes the right to bear arms in self defense, guns rights advocates, led by the NRA, have challenged laws that have put restrictions on carrying guns in public. Their argument has been that these restrictions prevent them from protecting themselves in public. Many of these challenges have failed, with lower courts ruling that restrictions are in line with the ruling of District of Columbia v Heller, which said that handguns in the home were permissible for self defense.

In the majority opinion, Justice Antonin Scalia wrote: “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The opinion even pointed out that laws banning concealed carry were permissible.

New Jersey’s law is very strict and make it all but impossible for anyone not a member of law enforcement to carry a gun in public. It requires gun owners to indicate “specific threats or previous attacks demonstrating a special danger to applicant’s life that cannot be avoided by other means” in order to get an open carry permit. Approval must be granted by the local police and a Superior Court judge.

The “justifiable need” requirement survived two lower court challenges, which were upheld in 2012 by the 3rd Circuit Court of Appeals. The plaintiffs petitioned the Supreme Court to challenge the appeals court ruling. This week, the Supreme Court rejected the challenge, leaving in place the 3rd Circuit’s ruling and New Jersey’s law.

This marks the third time the Supreme Court has refused to hear such a challenge. However, there is still a possibility they will have to weigh in on the issue.

In February of this year, the Ninth Circuit Court of Appeals ruled that a similar 2012 law in San Diego County, California was unconstitutional. In that law, gun owners had to show “good cause” to carry a firearm in public. This meant that permit applicants has to show a clear and present danger to their person or family and that carrying a concealed weapon would mitigate that danger. Reasons would include situations where documented threats have occurred or for people who work in situations that they may find themselves threatened, such as carrying large sums of money as part of their job. Exercising your “Second Amendment right” isn’t considered good cause for a concealed permit, and you are allowed to protect yourself in your home, on private property, or as the owner of a business without one.

In a 2-1 decision, the three judge panel ruled that the “Second Amendment does require that the states permit some form of carry for self-defense outside the home.” By limiting the situations in which a good cause would be applicable, the judges determined that “the ‘typical’ responsible, law-abiding citizen in San Diego County cannot bear arms in public for self-defense.” This is in direct conflict of other rulings across the country.

California’s Attorney General Kamala Harris said the state will challenge the ruling as the counties in the suit have said they will not take further action. Harris filed a motion to intervene with the Ninth Circuit to review and reverse the decision, which, if accepted, would result in a full review of a nine judge panel. In light of the Supreme Court’s refusal to hear the challenge to the New Jersey law, if the court refuses to reverse the ruling, it could lead to a showdown at the Supreme Court once again.