Yesterday the decision for Drake v. Filko, from the 3rd Circuit Court of Appeals, was announced. The case was brought by the ANJRPC and SAF. As expected, the decision upheld New Jersey’s restrictive concealed carry permitting process. At issue was the use of the “justifiable need” clause. The majority seems to have concluded that not only would New Jersey’s permitting scheme have survived intermediate scrutiny, but that it was a “longstanding” and “presumptively lawful” regulation.
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
However, there was a strongly worded dissent written by one of the three judges on the panel. In the dissent, the Judge argues that the Second Amendment applies outside the home, the majority’s review of New Jersey’s law was to general, and that the State did not meet its burden in showing evidence to support the current law.
To be clear, New Jersey has provided no evidence at all to support its proffered justification, not just no evidence that the legislature considered at the time the need requirement was enacted or amended.
In fact, there were a couple of points where the dissent sharply criticized the majority’s handling of this case.
The majority errs in absolving New Jersey of its obligation to show fit. Our role is to evaluate the State’s proffered evidence, not to accept reflexively its litigation position.
As of yet, ANJRPC and SAF do not seem to have made any public statements. I expect that once they have fully analyzed the opinions we will be hearing plenty.