No. _________
================================================================

In The

Supreme Court of the United States
-----------------------------------------------------------------THOMAS R. ROGERS and the ASSOCIATION
OF NEW JERSEY RIFLE & PISTOL CLUBS, INC.,
Petitioners,
v.
GURBIR S. GREWAL, et al.,
Respondents.
-----------------------------------------------------------------On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Third Circuit
-----------------------------------------------------------------PETITION FOR WRIT OF CERTIORARI
-----------------------------------------------------------------DANIEL L. SCHMUTTER
HARTMAN & WINNICKI, P.C.
74 Passaic Street
Ridgewood, NJ 07450
(201) 967-8040
dschmutter@hartman
winnicki.com

DAVID H. THOMPSON
Counsel of Record
PETER A. PATTERSON
JOHN D. OHLENDORF
COOPER & KIRK, PLLC
1523 New Hampshire
Avenue, N.W.
Washington, D.C. 20036
(202) 220-9600
dthompson@cooperkirk.com

Counsel for Petitioners
December 20, 2018
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM

 i
QUESTIONS PRESENTED
In District of Columbia v. Heller, this Court held
that the Second Amendment protects “the individual
right to possess and carry weapons in case of confrontation,” 554 U.S. 570, 592 (2008), and in McDonald v.
City of Chicago, it determined that this right “is fully
applicable to the States,” 561 U.S. 742, 750 (2010). The
Courts of Appeals for the District of Columbia and
Ninth Circuits have concluded that the right to carry
a firearm extends outside the home and that licensing
restrictions that require citizens to show a special need
for carrying a firearm effectively “destroy[ ] the ordinarily situated citizen’s right to bear arms” and therefore are categorically unconstitutional. Wrenn v.
District of Columbia, 864 F.3d 650, 666 (D.C. Cir. 2017);
accord Young v. Hawaii, 896 F.3d 1044, 1074 (9th Cir.
2018). By contrast, the court below, along with the
First, Second, and Fourth Circuits, have upheld substantively indistinguishable licensing restrictions under a watered-down “intermediate scrutiny” analysis.
The questions presented are:
1. Whether the Second Amendment protects the
right to carry a firearm outside the home for selfdefense.
2. Whether the government may deny categorically the exercise of the right to carry a firearm outside
the home to typical law-abiding citizens by conditioning the exercise of the right on a showing of a special
need to carry a firearm.

 ii
PARTIES TO THE PROCEEDING
Petitioners Thomas R. Rogers and the Association
of New Jersey Rifle & Pistol Clubs, Inc., were the plaintiffs before the District Court and the plaintiffs-appellants in the Court of Appeals.
Respondents Gurbir S. Grewal, in his official capacity as Attorney General of New Jersey, Patrick J.
Callahan, in his official capacity as Acting Superintendent of the New Jersey Division of State Police, Kenneth J. Brown, Jr., in his official capacity as Chief of
the Wall Township Police Department, Joseph W. Oxley, in his official capacity as Judge of the Superior
Court of New Jersey, Law Division, Monmouth County,
and N. Peter Conforti, in his official capacity as Judge
of the Superior Court of New Jersey, Law Division,
Sussex County, were defendants before the District
Court and defendants-appellees in the Court of Appeals.
CORPORATE DISCLOSURE STATEMENT
The Association of New Jersey Rifle & Pistol
Clubs, Inc., has no parent corporation, and there is no
publicly held corporation that owns 10% or more of its
stock.

 iii
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................

vi

OPINIONS BELOW.............................................

4

JURISDICTION ...................................................

4

CONSTITUTIONAL PROVISIONS, STATUTES,
AND REGULATIONS INVOLVED ..................

5

STATEMENT .......................................................

5

I.

New Jersey’s “justifiable need” requirement....

5

II.

Respondents’ refusal to issue Petitioners
handgun carry licenses ..............................

7

Proceedings Below .....................................

8

III.

REASONS FOR GRANTING THE WRIT............ 13
I.

Review is needed to correct the conflict in
the circuits over the constitutionality of
“good reason”-style restrictions on the right
to bear arms outside the home.................... 13
A. The lower federal courts are intractably
divided over the questions presented...... 14
B. The questions presented are important ... 19
C. This case is an ideal vehicle for resolving the conflict in the circuits over the
questions presented ............................. 20

II.

Review is needed because the decision below is directly contrary to this Court’s decisions in Heller and McDonald ................ 23

 iv
TABLE OF CONTENTS—Continued
Page
III.

Review is needed to correct the lower federal
courts’ massive resistance to this Court’s decisions in Heller and McDonald ................... 35

CONCLUSION..................................................... 38
APPENDIX
Order of the United States Court of Appeals for
the Third Circuit, Rogers v. Attorney General
New Jersey, No. 18-2366 (Sept. 21, 2018) ...............1a
Opinion of the United States District Court for
the District of New Jersey, Rogers v. Grewal,
No. 3:18-cv-1544 (May 21, 2018)...........................12a
Constitutional Provisions and Ordinances Involved
U.S. CONST. amend. II............................................13a
U.S. CONST. amend. XIV, § 1 ..................................13a
N.J. Stat. Ann.
§ 2C:39-5 ................................................................13a
§ 2C:39-6 ................................................................14a
§ 2C:58-3 ................................................................30a
§ 2C:58-4 ................................................................32a
N.J. Admin. Code
§ 13:54-2.2 .............................................................36a
§ 13:54-2.3 .............................................................37a
§ 13:54-2.4 .............................................................37a

 v
TABLE OF CONTENTS—Continued
Page
§ 13:54-2.5 .............................................................42a
§ 13:54-2.7 .............................................................42a
Complaint for Declaratory and Injunctive Relief, Rogers v. Grewal, No. 3:18-cv-1544 (Feb.
5, 2018) ..................................................................45a

 vi
TABLE OF AUTHORITIES
Page
CASES
Aymette v. State,
21 Tenn. 154 (1840) .................................................26
Bliss v. Commonwealth,
12 Ky. (2 Litt.) 90 (1822) ........................................... 26
City of Los Angeles v. Alameda Books, Inc.,
535 U.S. 425 (2002) .................................................31
Dejoseph v. Connecticut,
385 U.S. 982 (1966) .................................................22
District of Columbia v. Heller,
554 U.S. 570 (2008) ......................................... passim
Drake v. Filko,
724 F.3d 426 (3d Cir. 2013) ............................. passim
Dred Scott v. Sandford,
19 How. (60 U.S.) 393 (1857) ...................................27
Friedman v. City of Highland Park,
136 S. Ct. 447 (2015) ...............................................37
Gonzalez v. Village of W. Milwaukee,
2010 WL 1904977 (E.D. Wis. May 11, 2010) ..........36
Gould v. Morgan,
907 F.3d 659 (1st Cir. 2018) ............................ passim
Grace v. District of Columbia,
187 F. Supp. 3d 124 (D.D.C. 2016) ..........................31
Heller v. District of Columbia (Heller III),
801 F.3d 264 (D.C. Cir. 2015) ..................................31
Heller v. District of Columbia (Heller II),
670 F.3d 1244 (D.C. Cir. 2011) .......................... 23, 29

 vii
TABLE OF AUTHORITIES—Continued
Page
In re Preis,
573 A.2d 148 (N.J. 1990) ................................. 6, 7, 29
Jennings v. McCraw,
2012 WL 12898407 (N.D. Tex. Jan. 19, 2012) .........35
Kachalsky v. Cacace,
817 F. Supp. 2d 235 (S.D.N.Y. 2011) .......................35
Kachalsky v. County of Westchester,
701 F.3d 81 (2d Cir. 2012) ............................... passim
Martin v. Hunter’s Lessee,
1 Wheat. (14 U.S.) 304 (1816) ......................... 3, 4, 22
Maryland v. Baltimore Radio Show,
338 U.S. 912 (1950) .................................................22
McCullen v. Coakley,
134 S. Ct. 2518 (2014) .............................................34
McDonald v. City of Chicago,
561 U.S. 742 (2010) ............................................. passim
Moore v. Madigan,
702 F.3d 933 (7th Cir. 2012) .................. 18, 24, 32, 36
Moore v. Madigan,
842 F. Supp. 2d 1092 (C.D. Ill. 2012) ......................36
Moreno v. New York Police Dep’t,
2011 WL 2748652 (S.D.N.Y. May 7, 2011) ..............35
Nunn v. State,
1 Ga. 243 (1846) ................................................ 26, 28
Peruta v. California,
137 S. Ct. 1995 (2017) ....................................... 22, 37

 viii
TABLE OF AUTHORITIES—Continued
Page
Piszczatoski v. Filko,
840 F. Supp. 2d 813 (D.N.J. 2012) ...........................36
Rex v. Knight,
90 Eng. Rep. 330 (K.B. 1686) ..................................25
Shelby Cty. v. Holder,
570 U.S. 529 (2013) .................................................34
Shepard v. Madigan,
863 F. Supp. 2d 774 (S.D. Ill. 2012).........................36
State v. Chandler,
5 La. Ann. 489 (1850) ..............................................26
State v. Reid,
1 Ala. 612 (1840)......................................................26
State v. Valentine,
124 N.J. Super. 425 (App. Div. 1973) .......................31
United States v. Masciandaro,
638 F.3d 458 (4th Cir. 2011) ......................................3
United States v. Morrison,
529 U.S. 598 (2000) .................................................20
Valley Forge Christian Coll. v. Americans United
for Separation of Church & State, Inc.,
454 U.S. 464 (1982) .................................................37
Williams v. State,
10 A.3d 1167 (Md. 2011) .........................................36
Woollard v. Gallagher,
712 F.3d 865 (4th Cir. 2013) ............................ passim

 ix
TABLE OF AUTHORITIES—Continued
Page
Wrenn v. District of Columbia,
864 F.3d 650 (D.C. Cir. 2017) .......................... passim
Young v. Hawaii,
896 F.3d 1044 (9th Cir. 2018) ........................ 1, 18, 19
CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS
LEGISLATIVE MATERIALS

AND

U.S. CONST. amend. II ......................................... passim
28 U.S.C. § 1331 ............................................................8
28 U.S.C. § 1343 ............................................................8
N.J. STAT. ANN.
§ 2C:39-5(b) ...............................................................5
§ 2C:58-3(c) ................................................................6
§ 2C:58-4 ....................................................................5
§ 2C:58-4(c) .................................................. 5, 6, 7, 21
§ 2C:58-4(d) ...............................................................5
§ 2C:58-4(e)................................................................5
Act of Feb. 10, 1832, Del. Laws 180 (1832) ................27
An Act To Punish Certain Offences Therein
Named, and for Other Purposes, 1865 Miss.
Laws 165..................................................................27
N.J. ADMIN. CODE
§ 13:54-2.4(b) .............................................................6
§ 13:54-2.4(d)(1).......................................................29
Cong. Globe, 39th Cong., 1st Sess. 1182 (1866) .........27

 x
TABLE OF AUTHORITIES—Continued
Page
OTHER
4 WILLIAM BLACKSTONE, COMMENTARIES .....................24
5 WILLIAM BLACKSTONE, COMMENTARIES (St.
George Tucker ed., 1803) ........................................25
1 WALTER L. FLEMING, DOCUMENTARY HISTORY OF
RECONSTRUCTION (1906)...........................................27
HENRY J. FRIENDLY, FEDERAL JURISDICTION: A
GENERAL VIEW (1973) ..............................................19
Robert Hahn et al., Firearms Laws and the Reduction of Violence: A Systematic Review, 28
AM. J. PREVENTATIVE MED. 40 (2005) ......................33
Mark E. Hamill et al., State Level Firearm Concealed-Carry Legislation & Rates of Homicide
& Other Violent Crime, J. AM. C. SURGEONS
(forthcoming Jan. 2019) ..........................................33
1 WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF
THE CROWN (1716)....................................................24
O.W. HOLMES, JR., COLLECTED LEGAL PAPERS
(1920) .......................................................................19
NICHOLAS J. JOHNSON & DAVID B. KOPEL ET AL.,
FIREARMS LAW & THE SECOND AMENDMENT
(2012) .......................................................................25
David B. Mustard, Comment, in EVALUATING
GUN POLICY (Jens Ludwig & Philip J. Cook
eds., 2003) ................................................................32

 xi
TABLE OF AUTHORITIES—Continued
Page
NATIONAL RESEARCH COUNCIL, FIREARMS AND VIOLENCE: A CRITICAL REVIEW (Charles F. Wellford, John V. Pepper, & Carol V. Petrie eds.,
2005) ........................................................................33
Gun Laws, NRA-ILA, https://goo.gl/Nggx50 ..............32

 1
PETITION FOR WRIT OF CERTIORARI
In District of Columbia v. Heller, this Court held
that the Second Amendment protects “the individual
right to possess and carry weapons in case of confrontation” for “the core lawful purpose of self-defense.” 554 U.S. 570, 592, 630 (2008). But the lower
courts have split over the constitutionality of laws that
categorically bar typical, law-abiding citizens from carrying handguns outside the home for self-defense. The
D.C. Circuit has seen these laws for what they are—
“necessarily a total ban on most [citizens’] right to
carry a gun”—and it has struck down the District of
Columbia’s requirement that citizens show a “good
reason,” other than self-defense, before carrying a
handgun outside the home as categorically unconstitutional. Wrenn v. District of Columbia, 864 F.3d 650, 666
(D.C. Cir. 2017); see also Young v. Hawaii, 896 F.3d 1044
(9th Cir. 2018). But the court below upheld New Jersey’s substantively indistinguishable “justifiable need”
requirement, App.1a, based on its reasoning in an earlier case that such a law “does not burden conduct
within the scope of the Second Amendment’s guarantee” and, even if it did, it would pass constitutional
muster under a toothless version of “intermediate
scrutiny” that consists of little more than blind deference to the State’s unbridled “sound judgment and discretion” in passing the law. Drake v. Filko, 724 F.3d 426,
429, 440 (3d Cir. 2013); see also Gould v. Morgan, 907
F.3d 659 (1st Cir. 2018); Woollard v. Gallagher, 712
F.3d 865 (4th Cir. 2013); Kachalsky v. County of
Westchester, 701 F.3d 81 (2d Cir. 2012).

 2
This direct conflict between the lower courts goes
to the core of the Second Amendment. The question
presented in this case is nothing less than this: Does
the Second Amendment protect, as it says, the right to
keep and bear Arms for all Americans? Or can some
circuits effectively erase two of those words from the
Constitution? This Court should intervene to ensure a
uniform understanding of the Second Amendment and
prevent the lower courts from nullifying rights guaranteed by the text of the Constitution.
The decision below also directly contradicts this
Court’s decisions in Heller and McDonald v. City of
Chicago, 561 U.S. 742 (2010). In Heller, this Court held
that the right to self-defense is “the central component”
of the Second Amendment, 554 U.S. at 599. But the
Third Circuit upheld the requirement that citizens
must show something more than a desire for selfdefense to bear arms as entirely “outside the scope of
the Second Amendment’s guarantee.” 724 F.3d at 434.
In Heller, this Court held that the Second Amendment
takes “off the table” the policy choice of flatly banning
core Second Amendment conduct. 554 U.S. at 636;
see also McDonald, 561 U.S. at 767-68. But the Third
Circuit upheld New Jersey’s ban on bearing arms for
self-defense by blindly deferring to the State’s “policy
judgment” that whenever “an individual carries a
handgun in public for his or her own defense,” it creates an unacceptable “risk to the public.” 724 F.3d at
439. And in Heller, this Court held that the government lacks “the power to decide on a case-by-case
basis whether the right [to bear arms] is really worth
insisting upon.” 554 U.S. at 634. But the Third Circuit

 3
allowed New Jersey to do precisely that by reserving
for itself the prerogative to determine on a case-bycase basis whether a citizen has a sufficiently compelling reason to exercise his or her right to carry a
firearm.
The Third Circuit, unfortunately, does not stand
alone in its repudiation of this Court’s precedent. The
First, Second, and Fourth Circuits have upheld materially indistinguishable laws, and like the Third Circuit they have refused to follow this Court’s reasoning
to where it clearly leads. Indeed, as the Fourth Circuit
has stated plainly, the subtext apparently underlying
all of these decisions is that these courts will not extend “Heller beyond its undisputed core holding” until
this Court tells them they must: “If the Supreme Court
. . . meant its holding to extend beyond home possession, it will need to say so more plainly.” United States
v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011).
While this Court spoke plainly enough in Heller,
the time has come to give recalcitrant lower courts the
even-more explicit direction they claim to need. One of
the principal functions of this Court is to resolve fundamental disagreements among the lower courts over
the basic contours of constitutional rights. “If there
were no revising authority to control these jarring and
discordant judgments, and harmonize them into uniformity, . . . the constitution of the United States would
be different in different states, and might, perhaps,
never have precisely the same construction, obligation,
or efficacy, in any two states.” Martin v. Hunter’s Lessee, 1 Wheat. (14 U.S.) 304, 348 (1816). That is precisely

 4
the condition the Second Amendment stands in today:
a resident of the District of Columbia or Hawaii has a
right to bear arms for self-defense (as does a resident
of one of the vast majority of States that respect the
right to bear arms), but a resident of New Jersey, New
York, or Maryland does not. “The public mischiefs that
. . . attend such a state of things [are] truly deplorable,”
id., and it is time for this Court to put a stop to them.
------------------------------------------------------------------

OPINIONS BELOW
The order of the Court of Appeals summarily affirming the District Court’s dismissal of the case is not
reported in the Federal Reporter, but it is reproduced
at App.1a. The order of the District Court granting Respondents’ motion to dismiss is not reported in the Federal Supplement, but it is available at 2018 WL
2298359 and reproduced at App.3a.
------------------------------------------------------------------

JURISDICTION
The Court of Appeals issued its judgment on September 21, 2018. This Court has jurisdiction under 28
U.S.C. § 1254(1).
------------------------------------------------------------------

 5
CONSTITUTIONAL PROVISIONS,
STATUTES, AND REGULATIONS INVOLVED
The relevant portions of Amendments II and XIV
to the United States Constitution, the New Jersey
Statutes Annotated, and the New Jersey Administrative Code are reproduced in the Appendix beginning at
App.13a.
------------------------------------------------------------------

STATEMENT
I.

New Jersey’s “justifiable need” requirement

Under New Jersey law, an ordinary member of the
general public who wishes to carry a handgun outside
the home must first obtain a permit to do so (a “Handgun Carry Permit”). N.J. STAT. ANN. §§ 2C:39-5(b),
2C:58-4. A person seeking such a permit must first apply to the Chief Police Officer of the municipality
where he or she resides. Id. § 2C:58-4(c). If the officer
concludes, after investigation, that the applicant meets
all statutory requirements and approves the application, it is then presented to the Superior Court of the
county. Id. § 2C:58-4(d). If the application is denied, the
applicant may also appeal that denial to the Superior
Court. Id. § 2C:58-4(e). In either case, if the Superior
Court independently determines that the applicant
has satisfied all statutory requirements, it may then
issue a Handgun Carry Permit. Id. In reviewing applications and issuing permits, the Superior Court acts as
an “issuing authority” and performs “essentially an

 6
executive function” that is “clearly non-judicial in nature.” In re Preis, 573 A.2d 148, 151, 154 (N.J. 1990).
New Jersey first imposes some objective restrictions on eligibility for a Handgun Carry Permit.
For example, an applicant must not have been convicted of any crime or offense involving an act of domestic violence; must not be addicted to controlled
substances, mentally infirm, or an alcoholic; must not
be subject to certain restraining orders; and must not
be listed on the FBI’s Terrorist Watchlist. N.J. STAT.
ANN. §§ 2C:58-4(c), 2C:58-3(c). An applicant must also
pass criminal and mental health background checks,
id. § 2C:58-4(c), and must have satisfied extensive firearms safety training requirements, N.J. ADMIN. CODE
§ 13:54-2.4(b).
In addition to these eligibility requirements, New
Jersey also imposes a more restrictive criterion on the
availability of Handgun Carry Permits: an applicant
must demonstrate “that he has a justifiable need to
carry a handgun.” N.J. STAT. ANN. § 2C:58-4(c). For an
ordinary “private citizen,” this requirement is satisfied
only if the applicant can “specify in detail the 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.” Id. “Where possible, the applicant
shall corroborate the existence of any specific threats
or previous attacks by reference to reports of the incidents to the appropriate law enforcement agencies.” Id.
“Generalized fears for personal safety are inadequate,

 7
and a need to protect property alone does not suffice.”
In re Preis, 573 A.2d at 152.
Accordingly, typical law-abiding citizens of New
Jersey—the vast majority of responsible citizens who
cannot “demonstrate a special danger to [their] life,”
N.J. STAT. ANN. § 2C:58-4(c)—effectively remain subject to a ban on carrying handguns outside the home
for self-defense. Petitioners challenge only this “justifiable need” restriction.
II.

Respondents’ refusal to issue Petitioners
handgun carry licenses

On January 11, 2017, Petitioner Thomas Rogers
filed an application for a Handgun Carry Permit with
the Chief of Police for Wall Township, the town where
he resides. App.57a. Petitioner does not face any special danger to his life, though he was robbed at gunpoint several years ago while working as the manager
of a restaurant, and he currently runs a large ATM
business that causes him to frequently work in highcrime areas. App.56a-57a. Accordingly, he desires to
carry a handgun with him for purposes of self-defense.
App.57a.
The Chief of Police, Respondent Kenneth Brown,
Jr., did not dispute that Mr. Rogers met all of the eligibility and training requirements imposed by New Jersey law, but he nonetheless denied his application
because he “fail[ed] to establish Justifiable Need.”
App.64a. Petitioner appealed Respondent Brown’s denial of his application to the Superior Court, and on

 8
January 2, 2018, a Superior Court judge, Respondent
Joseph W. Oxley, also denied Petitioner’s application on
the basis of his failure to establish justifiable need.
App.66a-67a.
Respondents have also refused, on the basis of the
“justifiable need” requirement, to grant at least one
member of Petitioner Association of New Jersey Rifle
& Pistol Clubs a license that would allow them to carry
a firearm outside the home for self-defense. App.60a.
For instance, on January 31, 2018, Respondent Conforti, a Superior Court judge in Sussex County, denied
the application of Kenneth Warren, a member of the
Association, for failure to show justifiable need.
App.58a-59a.
III. Proceedings Below
1. On February 5, 2018, Petitioners filed suit in
the District of New Jersey, alleging that New Jersey’s
“justifiable need” restriction on the availability of
Handgun Carry Permits is facially unconstitutional
under the Second Amendment, applicable to New Jersey under the Fourteenth. The district court had jurisdiction over the action under 28 U.S.C. §§ 1331 and
1343. Petitioners’ Complaint conceded that their Second Amendment claim was foreclosed at the districtcourt level by the Third Circuit’s decision in Drake, 724
F.3d at 426. App.49a.
2. Drake was an earlier challenge to the New Jersey laws at issue in this case. Like Petitioners here, the
plaintiffs in Drake had each been denied a Handgun

 9
Carry Permit for failing to satisfy New Jersey’s “justifiable need” standard; they challenged that standard,
and the statutory and regulatory provisions implementing it, as inconsistent with the Second Amendment right to bear arms. A panel majority of the Third
Circuit rejected that challenge. Applying the “twostep” inquiry that many lower-federal courts have
adopted to analyze (and, generally, uphold) firearms
restrictions, the Drake majority asked “whether the
challenged law imposes a burden on conduct falling
within the scope of the Second Amendment’s guarantee,” and, if so, whether it passes muster “under some
form of means-end scrutiny.” 724 F.3d at 429.
At the first step, the panel majority professed uncertainty over whether “the individual right to bear
arms for the purpose of self-defense extends beyond
the home” at all, and it declined to “engag[e] in a round
of full-blown historical analysis” of the Amendment’s
scope to “definitively” answer the question. Id. at 431.
Instead, “[a]ssuming that the Second Amendment individual right to bear arms does apply beyond the
home” for the sake of analysis, the Drake majority determined that the “justifiable need” limitation on
Handgun Carry Permits “is a presumptively lawful,
longstanding licensing provision” that constituted an
“exception[ ] to the Second Amendment guarantee.” Id.
at 431, 432. The majority in Drake based this
“longstanding” exception on the age of New Jersey’s
“justifiable need” requirement itself (which it claimed
“has existed in New Jersey in some form for nearly 90
years”), and on a purported “longstanding tradition of

 10
regulating the public carrying of weapons for selfdefense” (though it acknowledged that many of the historical decisions upholding “prohibitions on concealed
carrying” in the nineteenth century did so “because
open carrying remained available as an avenue for
public carrying”). Id. at 433.
Finally, the Drake majority also held that even if
the “justifiable need” requirement burdened conduct
protected by the Second Amendment, “it withstands
the appropriate, intermediate level of scrutiny, and accordingly [the majority] would uphold the continued
use of the standard on this basis as well.” Id. at 435.
The panel briskly determined that merely “intermediate scrutiny” applied because “the right to carry a
handgun outside the home for self-defense . . . is not
part of the core of the [Second] Amendment.” Id. at 436.
It held that New Jersey’s interest in ensuring public
safety was “significant, substantial and important.” Id.
at 437. And it also concluded that there was a sufficiently “reasonable” relationship between that interest
and the “justifiable need” requirement, deferring to
“New Jersey’s judgment that when an individual carries a handgun in public for his or her own defense, he
or she necessarily exposes members of the community
to a somewhat heightened risk that they will be injured by that handgun.” Id. at 439.
3. Judge Hardiman dissented in Drake. In his
view, the majority’s conclusion that the Second Amendment did not fully apply outside the home was flatly
contrary to the text of the Second Amendment and this
Court’s decision in Heller, since “[t]o speak of ‘bearing’

 11
arms solely within one’s home not only would conflate
‘bearing’ with ‘keeping,’ in derogation of [Heller’s] holding that the verbs codified distinct rights, but also
would be awkward usage given the meaning assigned
the terms by the Supreme Court.” Id. at 444 (Hardiman, J., dissenting). It also was contrary to the
Amendment’s history, since “the need for self-defense
naturally exists both outside and inside the home,” and
“the right to bear arms was understood at the founding
to exist not only for self-defense, but also for membership in a militia and for hunting, neither of which is a
home-bound activity.” Id. at 444, 446 (quotation marks
omitted). And Judge Hardiman was unpersuaded that
New Jersey’s “justifiable need” restriction fit into any
“historical exception” to the Second Amendment, given
that the weight of historical precedent held “that
although a State may prohibit the open or concealed
carry of firearms, it may not ban both because a complete prohibition on public carry violates the Second
Amendment and analogous state constitutional provisions.” Id. at 449.
Finally, Judge Hardiman’s dissent concluded not
only that New Jersey’s regime is subject to Second
Amendment scrutiny but also that it does not pass it.
“Indeed, New Jersey has presented no evidence as to
how or why its interest in preventing misuse or
accidental use of handguns is furthered by limiting
possession to those who can show a greater need for
self-defense than the typical citizen.” Id. at 453. Instead, the “justifiable need” requirement appeared to
function as nothing more than “a rationing system

 12
designed to limit the number of handguns carried in
New Jersey.” Id. at 455. And while “States have considerable latitude to regulate the exercise of the right in
ways that will minimize th[e] risk [of misuse],” they
“may not seek to reduce the danger by curtailing the
right itself.” Id. at 456. The majority reached a contrary
conclusion, Judge Hardiman argued, only “[b]y deferring absolutely to the New Jersey legislature”—an
analysis “akin to engaging in the very type of balancing that the Heller Court explicitly rejected.” Id. at 457.
4. On April 10, 2018, Respondents moved to dismiss Petitioners’ Second Amendment claim on Drake’s
authority. App.7a-8a. In response, Petitioners again
conceded that the majority opinion in Drake is controlling but argued that it was wrongly decided and should
be overruled by a court competent to do so. App.12a.
On May 21, 2018, the district court granted Defendants’ motion to dismiss, reasoning that it “has no authority to grant Plaintiffs’ requested relief, because the
Third Circuit in Drake v. Filko explicitly and unequivocally upheld the constitutionality of New Jersey’s ‘justifiable need’ requirement in its gun permit laws.”
App.10a.
5. Petitioners timely appealed to the United
States Court of Appeals for the Third Circuit, on June
18, 2018. Recognizing that any Third Circuit panel
would also be bound by the majority opinion in Drake,
Petitioners filed an unopposed motion asking the court
to take summary action on the appeal without briefing
or oral argument. As in the district court, Petitioners
contended that Drake was wrongly decided and ought

 13
to be overruled by a court with authority to do so, but
they conceded that a panel of the Third Circuit had no
such authority. On September 21, 2018, the Third Circuit summarily affirmed the district court’s order dismissing the case. App.1a.
------------------------------------------------------------------

REASONS FOR GRANTING THE WRIT
This Court’s review is necessary in this case for
three independent reasons: to resolve the direct conflict in the circuits over the constitutionality of laws
like New Jersey’s, to correct the decision of the court
below essentially ignoring the clear holdings of Heller
and McDonald, and to end the lower courts’ open and
massive resistance to those decisions.
I.

Review is needed to resolve the conflict in
the circuits over the constitutionality of
“good reason”-style restrictions on the
right to bear arms outside the home.

The federal circuits are divided over whether laws
that effectively ban ordinary, law-abiding citizens from
carrying handguns outside the home can be squared
with the Second Amendment right to keep and bear
arms. As a result, whether an American citizen is allowed to bear arms for “the core lawful purpose of selfdefense,” Heller, 554 U.S. at 630, largely depends on
which federal circuit his State of residence falls within.
That state of affairs is arbitrary and intolerable, and

 14
this Court should grant the writ to resolve the split of
authority over this vital question.
A. The lower federal courts are intractably
divided over the questions presented.
Since this Court’s decisions in Heller and McDonald, the lower federal courts have struggled over the
extent to which the Second Amendment “individual
right to possess and carry weapons in case of confrontation” applies outside the confines of the home. Id. at
592. The issue has been hotly contested, generating
scores of opinions, but the lower courts have ultimately
coalesced around two distinct—and directly contrary—
answers to the question.
1. The Third Circuit’s decision below upholding
New Jersey’s “justifiable need” restriction on Handgun
Carry Permits tracks the approach also adopted by the
Courts of Appeals for the First, Second, and Fourth Circuits, which have upheld substantively identical “good
reason”-type requirements based on substantially the
same reasoning.
In Kachalsky v. County of Westchester, the Second
Circuit upheld New York’s requirement that ordinary
citizens demonstrate “proper cause” to carry handguns
outside the home—a standard the defendants defined
as demanding “a special need for self-protection distinguishable from that of the general community.” 701
F.3d at 86. The Kachalsky court concluded that even
assuming the Second Amendment applies in public,
“[t]he state’s ability to regulate firearms . . . is

 15
qualitatively different in public than in the home.” Id.
at 94, 95. Accordingly, it analyzed New York’s “proper
cause” restriction under merely intermediate scrutiny.
And reasoning that “[i]t is the legislature’s job, not
ours, to weigh conflicting evidence and make policy
judgments,” it upheld the law. Id. at 99.
The Fourth and First Circuits have weighed in
with decisions following much the same approach. In
Woollard v. Gallagher, the Fourth Circuit held that
Maryland’s similar requirement that citizens demonstrate a “good and substantial reason” to carry handguns is consistent with the Second Amendment. 712
F.3d at 868. Like the Second Circuit, the court in Woollard “assume[d] that the Heller right exists outside the
home,” but held that restrictions on the right to bear
arms in public need satisfy only “intermediate scrutiny.” Id. at 876. Woollard determined that Maryland’s
law survives this level of scrutiny, since it “advances
the objectives of protecting public safety and preventing crime because it reduces the number of handguns
carried in public.” Id. at 879. Similarly, in Gould v. Morgan, the First Circuit upheld Massachusetts’ similar
“good reason” restriction, as applied by Boston and
Brookline, by: (a) “proceed[ing] on the assumption”
that the restriction burdened conduct within the scope
of the Second Amendment, 907 F.3d at 670; (b) concluding “that the core Second Amendment right is limited
to self-defense in the home” and thus merely intermediate scrutiny was necessary, id. at 671; and (c) determining that the restriction passed intermediate
scrutiny, id. at 673-77.

 16
Drake’s decision upholding New Jersey’s “justifiable need” restriction follows this same approach. But
Drake goes even further, concluding as an alternative
that the Second Amendment does not even apply to
New Jersey’s limits, because “the requirement that applicants demonstrate a ‘justifiable need’ to publicly
carry a handgun for self-defense is a presumptively
lawful, longstanding licensing provision.” 724 F.3d at
432. According to the court below, then, a state may effectively ban ordinary citizens—those without special
self-defense needs—from carrying handguns in public
without even implicating the Second Amendment. Id.
2. Other circuits have coalesced around an approach that is diametrically opposed to these decisions—and have struck down as categorically
unconstitutional laws that are functionally indistinguishable from the ones upheld in Kachalsky, Woollard, Gould, and the decision below.
In Wrenn v. District of Columbia, the D.C. Circuit
struck down the District of Columbia’s requirement
that ordinary citizens must show a “good reason” to obtain a permit to carry handguns outside the home.
Wrenn’s conclusions flatly contradict the reasoning of
the First, Second, Third, and Fourth Circuits at every
step of the analysis. While Gould, Kachalsky, Woollard,
and Drake determined that “good reason”-type restrictions “fit[ ] comfortably within the longstanding
tradition of regulating the public carrying of weapons
for self-defense,” Drake, 724 F.3d at 433, Wrenn drew
precisely the opposite conclusion: “the individual
right to carry common firearms beyond the home for

 17
self-defense—even in densely populated areas, even
for those lacking special self-defense needs—falls
within the core of the Second Amendment’s protections.” 864 F.3d at 661.
Similarly, while the Third Circuit, along with the
First, Second, and Fourth, upheld the substantively
identical restrictions before them under merely intermediate scrutiny, Wrenn hewed to a very different
course. This Court’s decision in Heller, the D.C. Circuit
explained, adopted a “categorical approach,” deeming
“complete prohibitions of Second Amendment rights”
to be “always invalid.” Id. at 665 (brackets and quotation marks omitted). And the Wrenn court determined
that the District of Columbia’s “good reason” requirement “is necessarily a total ban on most . . . residents’
right to carry a gun in the face of ordinary self-defense
needs.” Id. at 666. After all, by requiring the demonstration of “needs ‘distinguishable’ from those of the
community,” the “good reason” requirement necessarily “destroys the ordinarily situated citizen’s right
to bear arms.” Id.
The D.C. Circuit recognized that its decision was
directly in conflict with the holdings of its sister circuits. But those courts had gone off-course, Wrenn explained, by “declin[ing] to use [Heller’s] historical
method to determine how rigorously the [Second]
Amendment applies beyond the home.” Id. at 663. Accordingly, the D.C. Circuit declined to follow the errant
path charted in these cases. The District of Columbia
petitioned the full Court of Appeals to rehear the case

 18
en banc and eliminate the split in authority, but the
court declined to do so.
The D.C. Circuit is not the only court to have
adopted an understanding of the Second Amendment’s
application outside the home that is flatly contrary to
the approach of the court below and the First, Second,
and Fourth Circuits. In Moore v. Madigan, the Seventh
Circuit struck down an Illinois ban on the public carrying of handguns by ordinary citizens. While Gould,
Kachalsky, Drake, and Woollard held that any right
to carry handguns outside the home was peripheral
at best, Moore explained why that result cannot be
squared with the constitutional text, history, and purpose. Moore v. Madigan, 702 F.3d 933, 942 (7th Cir.
2012). And while Drake and the others blindly deferred
to the legislative judgment that limiting the carrying
of firearms in public would increase public safety, in
Moore, after exhaustively surveying “the empirical literature on the effects of allowing the carriage of guns
in public,” Judge Posner concluded that the available
data did not “provide . . . more than merely a rational
basis for believing that [Illinois’s] ban is justified by an
increase in public safety.” Id. at 939, 942.
Finally, the Ninth Circuit’s opinion in Young v.
Hawaii adopted much the same approach. After a detailed inquiry into the Second Amendment’s text and
historical understanding, Young concluded that “the
right to bear arms must guarantee some right to selfdefense in public”—whether through carrying a handgun openly or concealed. 896 F.3d at 1068. And because

 19
Hawaii’s law “entirely foreclosed” the “typical, lawabiding citizen” from bearing arms outside the home,
Young concluded that it “eviscerates a core Second
Amendment right—and must therefore be unconstitutional.” Id. at 1048, 1071.
Accordingly, the lower courts have split into two
diametrically opposed camps over the question
whether a State may effectively ban ordinary, lawabiding citizens from carrying handguns in public for
self-defense.
B. The questions presented are important.
When an enumerated constitutional right is at
stake—and when the lower courts have divided not
over some tangential matter but over whether a core
part of the right even exists—this Court should not
stay its hand and let the conflict fester.
“It is hard to conceive a task more appropriate for
federal courts than to protect civil rights guaranteed
by the Constitution against invasion by the states.”
HENRY J. FRIENDLY, FEDERAL JURISDICTION: A GENERAL
VIEW 90 (1973). Indeed, this Court’s role in reviewing
state statutes that allegedly violate a citizen’s federal
constitutional rights is one of the foundation stones of
our system of government under law. So vital is this
function that Justice Holmes famously believed that
“the Union would be imperiled” if the Court had not
the power to declare void “the laws of the several
states.” O.W. HOLMES, JR., COLLECTED LEGAL PAPERS
296 (1920). And while the lower federal courts and

 20
courts of each State of course must share in the critical
task of enforcing fundamental constitutional rights,
the responsibility falls with special weight upon this
Court. For “ever since Marbury this Court has remained the ultimate expositor of the constitutional
text.” United States v. Morrison, 529 U.S. 598, 616 n.7
(2000).
The questions presented in this case, moreover,
do not lie at the periphery of constitutional law. New
Jersey’s law effectively bans any ordinary citizen from
exercising “the central component of [the Second
Amendment]” once that citizen steps outside his or her
home—the right to “use [firearms] for the core lawful
purpose of self-defense.” Heller, 554 U.S. at 599, 630.
And because the plain text of the Second Amendment
itself places “the rights to keep and bear arms . . . on
equal footing,” Wrenn, 864 F.3d at 663, the stakes could
not be higher. The question presented is this: Does the
Second Amendment’s explicit guarantee of the right
“to . . . bear Arms” really count as part of the Constitution at all?
C. This case is an ideal vehicle for resolving the conflict in the circuits over the
questions presented.
This case presents an ideal vehicle for this Court
to take up the constitutionality of “good reason”-type
laws like New Jersey’s and resolve the intractable division that has developed in the lower courts over this
issue. The Second Amendment challenge to New

 21
Jersey’s law is squarely and distinctly presented: it is
the sole claim alleged in Petitioners’ complaint,
App.60a-61a, and its resolution does not depend on adjudicating any extraneous factual or legal issues, such
as disputes over Petitioners’ standing. The claim has
been squarely raised and argued at every stage in the
case, so the resolution of the questions presented will
not be impeded by any claims of waiver or forfeiture.
And because the Second Amendment claim is the only
one raised in the complaint—and the sole basis for the
decisions of the courts below—adjudicating it will almost certainly be dispositive of the case.
Moreover, the challenged New Jersey law is perfectly representative of the types of laws that have led
to the split in lower-court authority. While the laws at
issue in the cases on each side of the divide use slightly
different verbal formulations to describe the standard
for obtaining handgun carry permits—from “justifiable need,” in New Jersey, to “good reason” in D.C., and
“good and substantial reason” in Maryland—the substance of these standards is substantially the same.
Critically, these laws, like New Jersey’s, have been definitively interpreted as requiring an applicant to show
a special need for self defense distinguishable from the
ordinary citizen’s—effectively erecting a flat ban on
the use of handguns by typical law-abiding citizens
outside the home for the core purpose of self-defense.
Compare N.J. STAT. ANN. § 2C:58-4(c), with Gould, 907
F.3d at 664; Wrenn, 864 F.3d at 655-56; Woollard, 712
F.3d at 870; Kachalsky, 701 F.3d at 86-87.

 22
Since this Court’s last plenary encounter with
the Second Amendment in McDonald, it has largely
stayed its hand, allowing the lower federal courts an
opportunity to flesh out the emerging contours of that
right. “Wise adjudication has its own time for ripening.” Maryland v. Baltimore Radio Show, 338 U.S. 912,
918 (1950) (opinion of Frankfurter, J., respecting the
denial of the petition for writ of certiorari). That ripening process is now complete: the circuits have coalesced
around two directly opposing approaches to laws like
the New Jersey ban challenged here. The time for the
Court to resolve the conflict over the constitutionality
of these laws has come.
*

*

*

“When the meaning of a fundamental constitutional right depends on which court . . . a person turns
to for redress, . . . it is time for this Court to intervene.”
Dejoseph v. Connecticut, 385 U.S. 982, 983 (1966)
(Stewart, J., dissenting from the denial of certiorari).
The promise of the Second Amendment belongs to all
Americans, but because the lower federal courts have
intractably divided over the constitutionality of laws
like New Jersey’s, whether a typical, law-abiding citizen can carry a firearm with her for self-defense when
she ventures beyond her home now depends wholly on
the jurisdiction she resides in. That “state of things [is]
truly deplorable,” Martin, 1 Wheat. at 348, and “the
time has come for the Court to answer this important
question definitively,” Peruta v. California, 137 S. Ct.
1995, 1999 (2017) (Thomas, J., dissenting from the denial of certiorari).

 23
II.

Review is needed because the decision below is directly contrary to this Court’s decisions in Heller and McDonald.

This Court should grant the writ for the independent reason that the decision below resolved this critically important constitutional question in a way that
directly conflicts with the clear holdings of this Court’s
decisions in Heller and McDonald. This Court’s Rule
10(c). The Third Circuit’s reasoning in upholding New
Jersey’s ban runs flatly contrary to this Court’s teaching at every turn: it is at war with this Court’s interpretation of the scope of the Second Amendment; it
refuses to apply the categorical approach that Heller
adopts; and it applies a weak-tea form of scrutiny that
is indistinguishable from rational basis review, in the
teeth of this Court’s unequivocal rejection of that level
of scrutiny.
1. The Second Amendment protects “the right of
the people to keep and bear Arms,” and this Court held
in Heller that the scope of this provision “is determined
by reference to text, history, and tradition.” Heller v.
District of Columbia (Heller II), 670 F.3d 1244, 1269,
1272-73 (D.C. Cir. 2011) (Kavanaugh, J., dissenting).
All three make clear that a State cannot ban typical
citizens from carrying handguns outside the home.
By protecting both the keeping and bearing of
arms, the text of the Second Amendment leaves no
doubt that it applies outside the home. This is also
clear from Heller, which (a) “repeatedly invokes a
broader Second Amendment right than the right to

 24
have a gun in one’s home,” Moore, 702 F.3d at 935-36;
(b) squarely holds that the Second Amendment “guarantee[s] the individual right to possess and carry
weapons in case of confrontation,” Heller, 554 U.S. at
592 (emphasis added); and (c) defines the key constitutional phrase “bear arms” as to “ ‘wear, bear, or carry
. . . upon the person or in the clothing or in a pocket,
for the purpose . . . of being armed and ready for’ ” potential “ ‘conflict with another person,’ ” id. at 584 (alterations in original) (quoting Muscarello v. United
States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting)). And by the plain text of the provision, the right
belongs to “the people,” U.S. CONST. amend. II—not
some subset of individuals who have a heightened need
for self-defense. See id. at 580.
The inquiry into the historical understanding of
the Second Amendment required by this Court’s precedents leads to the same destination. As McDonald explains, “[s]elf-defense is a basic right, recognized by
many legal systems from ancient times to the present
day.” 561 U.S. at 767. Because the need for self-defense
may arise in public, it was recognized in England long
before the Revolution that the right to self-defense
may be exercised in public. See 1 WILLIAM HAWKINS, A
TREATISE OF THE PLEAS OF THE CROWN 71 (1716); 4 WILLIAM BLACKSTONE, COMMENTARIES *180. And because
the right to self-defense was understood to extend beyond the home, the right to armed self-defense naturally was as well. Accordingly, by the late seventeenth
century the English courts recognized that it was the
practice and privilege of “gentlemen to ride armed for

 25
their security.” Rex v. Knight, 90 Eng. Rep. 330 (K.B.
1686). And as Judge St. George Tucker observed in
1803, “[i]n many parts of the United States, a man no
more thinks, of going out of his house on any occasion,
without his rifle or musket in his hand, than an European fine gentleman without his sword by his side.” 5
WILLIAM BLACKSTONE, COMMENTARIES App. n.B, at 19
(St. George Tucker ed., 1803). Indeed, “about half the
colonies had laws requiring arms-carrying in certain
circumstances,” such as when traveling or attending
church. NICHOLAS J. JOHNSON & DAVID B. KOPEL ET AL.,
FIREARMS LAW & THE SECOND AMENDMENT 106-08
(2012) (emphasis added).
While Drake acknowledged “that the Second
Amendment’s individual right to bear arms may have
some application beyond the home,” the majority concluded that the conduct burdened by New Jersey’s “justifiable need” restriction was outside the Amendment’s
scope, because that restriction “qualifies as a
‘longstanding,’ ‘presumptively lawful’ regulation.” 724
F.3d at 431-32. But the traditional, post-ratification
understanding of the Second Amendment right in fact
confirms that it applies outside the home—and again,
one need look no further than Heller itself to see that
this is so.
Drake’s principal piece of evidence was a series of
nineteenth-century laws targeting “the carrying of
concealed weapons.” Id. at 433. But while these laws
limited the carrying of concealed firearms—a practice
that was disfavored by the social mores of the day—
they did so against the background of freely allowing

 26
the open carrying of arms in common use, thus “le[aving] ample opportunities for bearing arms.” Wrenn, 864
F.3d at 662. That distinction was absolutely critical to
most of the judicial opinions assessing their constitutionality. See State v. Chandler, 5 La. Ann. 489, 490
(1850); Aymette v. State, 21 Tenn. 154, 160-61 (1840);
State v. Reid, 1 Ala. 612, 616-17 (1840). Indeed, when
these state laws restricted both forms of carrying, they
were struck down. In a case that Heller described as
“perfectly captur[ing]” the correct approach to the Second Amendment, 554 U.S. at 612, the Georgia Supreme
Court invalidated such a law as “in conflict with the
Constitution, and void.” Nunn v. State, 1 Ga. 243, 251
(1846); see also Bliss v. Commonwealth, 12 Ky. (2 Litt.)
90, 91-94 (1822).1
Instead, the closest historical analogues to the
“good reason”-type restrictions like New Jersey’s are
the ante- and post-bellum efforts of the southern
States to prevent their enslaved and free black populations from carrying firearms in public. An 1832 Delaware law, for example, forbade any “free negroes [or]
free mulattoes to have own keep or possess any Gun
[or] Pistol,” unless they first received a permit from
“the Justice of the Peace” certifying “that the circumstances of his case justify his keeping and using a gun.”
1

A few courts from this era upheld concealed carry bans
without relying on this distinction, but they did so “on the basis
of an interpretation of the Second Amendment . . . that conflicts
with [Heller].” Kachalsky, 701 F.3d at 91 n.14. Those outlier decisions are thus “sapped of authority by Heller,” and cannot be cited
as reliable guides to the Second Amendment’s scope. Wrenn, 864
F.3d at 658.

 27
Act of Feb. 10, 1832, sec. 1, Del. Laws 180 (1832). Indeed, Chief Justice Taney recoiled so strongly in the
infamous Dred Scott case from recognizing African
Americans as citizens precisely because he understood
that doing so would entitle them “to keep and carry
arms wherever they went.” Dred Scott v. Sandford, 19
How. (60 U.S.) 393, 417 (1857).
After the Civil War, these noxious efforts to suppress the rights of former slaves to carry arms for their
self-defense continued. Mississippi’s notorious “Black
Code,” for example, forbade any “freedman, free negro
or mulatto” to “keep or carry fire-arms of any kind.” An
Act To Punish Certain Offences Therein Named, and
for Other Purposes, ch. 23, § 1, 1865 Miss. Laws 165.
And in an ordinance strikingly similar in operation to
New Jersey’s “justifiable need” law, several Louisiana
towns provided that no freedman “shall be allowed to
carry fire-arms, or any kind of weapons, within the parish” without the approval of “the nearest and most convenient chief of patrol.” 1 WALTER L. FLEMING,
DOCUMENTARY HISTORY OF RECONSTRUCTION 279-80
(1906). But as this Court explained at length
in McDonald, the Reconstruction Congress labored
mightily to entomb this legacy of prejudice. See 561
U.S. at 770-77. Congress’s efforts culminated in the
adoption of the Fourteenth Amendment, which ensured the right of every American, regardless of race,
to “bear arms for the defense of himself and family and
his homestead.” Cong. Globe, 39th Cong., 1st Sess.
1182 (1866) (statement of Sen. Pomeroy); see also
McDonald, 561 U.S. at 775-76. Our history and

 28
traditions have thus affirmatively rejected the very
types of laws upheld below and by Gould, Kachalsky,
and Woollard, excising the cancerous historical analogues of these laws from our constitutional tradition.
Finally, Drake’s conclusion that any application of
the Second Amendment beyond the home “is not part
of the core of the Amendment” simply cannot be
squared with this Court’s holdings. 724 F.3d at 436.
Heller plainly contemplates that the right applies outside the home: it indicates that “laws forbidding the
carrying of firearms in sensitive places such as schools
and government buildings” are “presumptively lawful,”
554 U.S. at 626, 627 n.26—an exception that would be
irrelevant if the right were homebound. And it extensively cites and significantly relies upon Nunn, the
nineteenth-century Georgia case that “struck down a
ban on carrying pistols openly” under the Second
Amendment. Id. at 612. Moreover, Heller makes clear
that the right to individual self-defense is “the central
component” of the Second Amendment. Id. at 599. Because the Second Amendment’s text, history, and purposes all show that its protections extend outside the
home, the right to carry firearms “for the core lawful
purpose of self-defense” necessarily extends beyond
those four walls as well. Id. at 630.
2. Having adopted an understanding of the Second Amendment’s scope that is flatly contrary to this
Court’s precedents, the court below in Drake proceeded
to apply a form of constitutional scrutiny that this
Court explicitly rejected. Where a state law infringes a
core Second Amendment right, Heller makes the next

 29
analytical steps clear. Because “[t]he very enumeration
of the right takes out of the hands of government—
even the Third Branch of Government—the power to
decide on a case-by-case basis whether the right is really worth insisting upon,” wholesale infringements
upon the Amendment’s “core protection” must be held
unconstitutional categorically, not “subjected to a freestanding ‘interest-balancing’ approach.” Heller, 554
U.S. at 634-35. The court below thus did not need to
“squint to divine some hidden meaning from Heller
about what tests to apply. Heller was up-front about
the role of text, history, and tradition in Second
Amendment analysis—and about the absence of a role
for judicial interest balancing or assessment of costs
and benefits of gun regulations.” Heller II, 670 F.3d at
1285 (Kavanaugh, J., dissenting).
New Jersey’s demand that applicants show “a special danger to [their] life,” N.J. ADMIN. CODE § 13:542.4(d)(1), that is distinguishable from “[g]eneralized
fears for personal safety,” In re Preis, 573 A.2d at 152,
extinguishes the core Second Amendment rights of typical citizens—who by definition cannot make such a
showing. To be sure, Respondents’ limits theoretically
allow individuals to carry firearms if they can first
“specify in detail [their] urgent necessity for selfprotection.” N.J. ADMIN. CODE § 13:54-2.4(d)(1). But the
Second Amendment does not set up a race between
law-abiding citizens and their assailants to the license
bureau. For those who have already been victims of violent crime, it is cold comfort to know that they could
have carried a firearm and defended themselves if only

 30
they had been able to document their “urgent necessity
for self-protection” in advance.
The approach the court below adopted in Drake
thus demonstrates in stark terms why the interestbalancing approach adopted with near-uniformity by
the lower courts is flatly contrary to the Second
Amendment. As Heller explained, the Second Amendment “is the very product of an interest balancing by
the people.” 554 U.S. at 635. Yet the Drake court seized
precisely the power denied it by the enshrinement of
the Second Amendment—it conducted that interest
balancing anew, concluding that “the core lawful purpose of self-defense,” id. at 630, is insufficient to justify
“the right of the people to . . . bear Arms,” U.S. CONST.
amend. II. The government cannot justify a law infringing the right guaranteed by the Second Amendment based on the judgment that the people made a
mistake in adopting the Amendment to begin with.
3. Finally, the Drake court compounded its error
in refusing to apply Heller’s categorical text-andhistory test by applying a form of scrutiny effectively
indistinguishable from the rational-basis review that
this Court singled out as inappropriate. As this Court
explained in Heller, “[i]f all that was required to overcome the right to keep and bear arms was a rational
basis, the Second Amendment would be redundant
with the separate constitutional prohibitions on irrational laws, and would have no effect.” 554 U.S. at 628
n.27. The toothless form of review applied by the court
below in Drake drains the Second Amendment of significance in just this way.

 31
Drake’s purported application of “intermediate
scrutiny” took a wrong turn right off the starting
blocks, because the interest it accepted was the illegitimate one of reducing the number of people bearing
arms. That is “not a permissible strategy”—even if
used as a means to the further end of increasing public
safety. Grace v. District of Columbia, 187 F. Supp. 3d
124, 148 (D.D.C. 2016), aff ’d sub nom. Wrenn v. District
of Columbia, 864 F.3d 650. As this Court has made
clear under the Free Speech Clause, although the Government may seek to reduce the negative “secondary
effects” of protected expression—such as the increased
crime that occurs in neighborhoods with adult theaters—it may not argue “that it will reduce secondary
effects by reducing speech in the same proportion.”
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425,
449 (2002) (Kennedy, J., concurring in judgment). “It is
no trick to reduce secondary effects by reducing speech
or its audience; but [the government] may not attack
secondary effects indirectly by attacking speech.” Id. at
450; see also Heller v. District of Columbia (Heller III),
801 F.3d 264, 280 (D.C. Cir. 2015). Or as Judge Hardiman put the point in dissent in Drake, “States may
not seek to reduce the danger [of criminals misusing
the right to carry firearms] by curtailing the right itself.” 724 F.3d at 456 (Hardiman, J., dissenting).
That is precisely what New Jersey’s law does. As
the New Jersey courts have explained, “the overriding
philosophy of our Legislature is to limit the use of guns
as much as possible.” State v. Valentine, 124 N.J. Super.
425, 427 (App. Div. 1973). Indeed, the court below

 32
upheld the challenged law in Drake by deferring to
“New Jersey’s judgment that when an individual
carries a handgun in public for his or her own defense,
he or she necessarily exposes members of the community to a somewhat heightened risk that they will be
injured by that handgun.” 724 F.3d at 439. That is
illegitimate even under “intermediate scrutiny” and
contravenes the policy judgment the people made
when adopting the Second Amendment.
Even accepting Respondents’ justification of the
challenged law at face value, it still necessarily fails
any genuine application of heightened constitutional
scrutiny. As Judge Posner concluded after surveying
“the empirical literature on the effects of allowing the
carriage of guns in public,” the data do not provide
“more than merely a rational basis for believing that
[a ban on public carriage] is justified by an increase in
public safety.” Moore, 702 F.3d at 939, 942. This is confirmed by experience. Forty-two States do not restrict
the carrying of firearms to a privileged few. See Gun
Laws, NRA-ILA, https://goo.gl/Nggx50. Yet the empirical evidence “overwhelmingly rejects” any suggestion
that “permit holders will use their guns to commit
crimes instead of using their guns for self-defense.” David B. Mustard, Comment, in EVALUATING GUN POLICY
325, 330-31 (Jens Ludwig & Philip J. Cook eds., 2003).
For instance, in 2004 the National Academy of Sciences’ National Research Council (“NRC”) conducted
an exhaustive review of the relevant social-scientific
literature. The NRC concluded that “with the current
evidence it is not possible to determine that there is a

 33
causal link between the passage of right-to-carry laws
and crime rates.” NATIONAL RESEARCH COUNCIL, FIREARMS AND VIOLENCE: A CRITICAL REVIEW 150 (Charles
F. Wellford, John V. Pepper, & Carol V. Petrie eds.,
2005), http://goo.gl/WO1ZNZ; see also Robert Hahn et
al., Firearms Laws and the Reduction of Violence: A
Systematic Review, 28 AM. J. PREVENTATIVE MED. 40,
53-54 (2005), http://goo.gl/zOpJFL (CDC-sponsored
study concluding that existing evidence does not establish that more permissive carry regimes “increases
rates of unintended and intended injury”); Mark E. Hamill et al., State Level Firearm Concealed-Carry Legislation & Rates of Homicide & Other Violent Crime, J.
AM. C. SURGEONS (forthcoming Jan. 2019) (finding no
statistically-significant association between adoption
of more permissive firearm carry laws and rates of
homicide or other violent crime).
The sum total of the “evidence” discussed by
Drake’s cursory scrutiny of New Jersey’s ban was confined to: (a) a legislative “staff report” evaluating “the
utility of firearms as weapons of defense against
crime” that was published in 1968, and (b) the fact that
“[l]egislators in other states, including New York and
Maryland, have reached this same predictive judgment and have enacted similar laws as a means to improve public safety.” Drake, 724 F.3d at 438. But a
single, irrelevant study from fifty years ago hardly constitutes meaningful evidence that New Jersey’s restriction can be said, in light of the current evidence, to
materially advance public safety today. To the contrary, a law that “imposes current burdens . . . must be

 34
justified by current needs.” Shelby Cty. v. Holder, 570
U.S. 529, 536 (2013). Nor does the fact that a handful
of other jurisdictions have enacted similar restrictions
suffice, without at least some analysis of whether those
laws are effective in preventing violent crime or are
themselves supported by substantial evidence. After
all, the vast majority of States do not restrict their citizens’ right to carry in this way.
New Jersey’s law also fails heightened scrutiny
because it is not properly tailored. While laws subject
to intermediate scrutiny “need not be the least restrictive or least intrusive means of serving the government’s interests,” they still must be narrowly tailored,
and accordingly “the government must demonstrate
that alternative measures that burden substantially
less [protected conduct] would fail to achieve the government’s interests.” McCullen v. Coakley, 134 S. Ct.
2518, 2535, 2540 (2014) (quotation marks omitted)
(emphasis added). Here, there are myriad alternatives
that actually are targeted at the problem of handguns
being carried by those likely to misuse them. These alternatives include a “shall issue” licensing system,
along the lines used by the vast majority of the States,
that requires the issuance of a license to citizens that
meet objective criteria, a training requirement, and a
prohibition on carrying by individuals such as violent
criminals with a demonstrated propensity to violence.
Respondents cannot show that these alternatives
would fail to advance its interests to a similar extent
as its “justifiable need” requirement.

 35
Any realistic appraisal of existing social-scientific
data thus leads inexorably to the conclusion that the
“justifiable need” requirement cannot be shown to
benefit the public safety. The Drake court concluded
otherwise only by applying a level of scrutiny indistinguishable from the rational-basis review rejected by
Heller.
III. Review is needed to correct the lower federal courts’ massive resistance to this
Court’s decisions in Heller and McDonald.
Since the decisions in Heller and McDonald, many
lower courts have stubbornly and deliberately ignored
those decisions, narrowing them to their specific facts
and making a hollow mockery of the Second Amendment’s promise that law-abiding citizens must be allowed “to use [firearms] for the core lawful purpose of
self-defense.” Heller, 554 U.S. at 630. This Court’s review is necessary to correct the lower courts’ resistance
to its instructions.
This behavior is nowhere more apparent than in
cases addressing the right to carry firearms outside
the home. Many courts have flatly ruled that “the Second Amendment does not confer a right that extends
beyond the home.” Jennings v. McCraw, 2012 WL
12898407, at *5 (N.D. Tex. Jan. 19, 2012), aff ’d sub
nom. NRA v. McCraw, 719 F.3d 338 (5th Cir. 2013); see
also, e.g., Kachalsky v. Cacace, 817 F. Supp. 2d 235, 26465 (S.D.N.Y. 2011), aff ’d sub nom. Kachalsky, 701 F.3d
81; Moreno v. New York Police Dep’t, 2011 WL 2748652,

 36
at *3 (S.D.N.Y. May 7, 2011); Gonzalez v. Village of W.
Milwaukee, 2010 WL 1904977, at *4 (E.D. Wis. May 11,
2010), aff ’d, 671 F.3d 649 (7th Cir. 2012); accord Shepard v. Madigan, 863 F. Supp. 2d 774, 782 & n.7 (S.D.
Ill. 2012), rev’d sub nom. Moore v. Madigan, 702 F.3d
933; Moore v. Madigan, 842 F. Supp. 2d 1092, 1102
(C.D. Ill. 2012), rev’d, 702 F.3d 933; Williams v. State,
10 A.3d 1167, 1177 (Md. 2011). And as discussed above,
many of those courts that have assumed that the Second Amendment has some application beyond the
home have gutted it of any force.
The lower courts’ decisions in Drake exemplify the
judiciary’s barely disguised hostility to this Court’s instructions in Heller and McDonald. The district court
treated the Second Amendment challenge to New Jersey’s ban as a nuisance: “Given the considerable uncertainty regarding if and when the Second Amendment
rights should apply outside the home, this Court does
not intend to place a burden on the government to endlessly litigate and justify every individual limitation on
the right to carry a gun in any location for any purpose.” Piszczatoski v. Filko, 840 F. Supp. 2d 813, 829
(D.N.J. 2012), aff ’d sub nom. Drake, 724 F.3d 426. And
on appeal, the panel majority likewise intoned that it
was “not inclined to address [the plaintiffs’ claim of a
right to carry arms in public] by engaging in a round
of full-blown historical analysis.” Drake, 724 F.3d at
431.
These cases “reflect[ ] a distressing trend: the
treatment of the Second Amendment as a disfavored

 37
right.” Peruta, 137 S. Ct. at 1999 (Thomas, J., dissenting from the denial of certiorari). This Court has long
insisted that there is “no principled basis on which to
create a hierarchy of constitutional values,” Valley
Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 484 (1982),
and McDonald considered and rejected the view that
the Second Amendment was somehow “a second-class
right,” 561 U.S. at 780 (plurality opinion). Yet the lower
courts have thumbed the nose at these directions, upholding limitations on Second Amendment conduct
that would be unimaginable in any other context.
“[N]oncompliance with [this Court’s] Second Amendment precedents warrants this Court’s attention as
much as any of [its] precedents.” Friedman v. City of
Highland Park, 136 S. Ct. 447 (2015) (Thomas, J., dissenting from the denial of certiorari). The Court must
intervene to remind the lower courts that there is no
Second Amendment exception to the principle that adherence to its precedents is not optional.
------------------------------------------------------------------

 38
CONCLUSION
For the reasons set forth above, the Court should
grant the petition for certiorari.
December 20, 2018

Respectfully submitted,

DANIEL L. SCHMUTTER
HARTMAN & WINNICKI, P.C.
74 Passaic Street
Ridgewood, NJ 07450
(201) 967-8040
dschmutter@hartman
winnicki.com

DAVID H. THOMPSON
Counsel of Record
PETER A. PATTERSON
JOHN D. OHLENDORF
COOPER & KIRK, PLLC
1523 New Hampshire
Avenue, N.W.
Washington, D.C. 20036
(202) 220-9600
dthompson@cooperkirk.com

Counsel for Petitioners