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Old December 25, 2010, 03:20 PM   #1
Al Norris
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,540
NJ Carry: Drake v. Filko (Muller v. Maenz)

Last Monday (Dec. 20th), the plaintiffs filed a Motion for Summary Judgment. See this PDF document.

What makes this different than all the other challenges that the SAF has used, prior to filing this case, is that this is a facial challenge to a specific portion of the law. the "lawsuit challenges the unrestrained discretion that New Jersey law vests in State and local officials to deny a “Permit to Carry” a handgun for lack of “justifiable need to carry a handgun.” N.J.S.A. § 2C:58-4(c), (d)."

There are two means to challenge contested law. The first (and easiest, therefore the most used) is an as-applied approach. This merely says that the law, as applied in this specific instance, is wrong.

The second approach, is a facial challenge. This approach is very difficult. What a facial challenge says is that in all cases, the law is wrong. Not just this case, but in every case. To defend against a facial challenge, all it is required is for the defense to prove that in one case, the law holds.

What you will see in this MSJ, is the most complete (to date) exposition on what the Court said in both Heller and McDonald. In doing this, the brief goes into how the 2A is most like the 1A. Both of these amendments encompass protections for individual actions, while the other amendments provide for procedural protections against government actions.

The brief argues that because the 1A and 2A are so similar, that similar courses of judicial scrutiny must apply.

In the case of NJ law on carry permits, the law in this case should be accorded no scrutiny at all, as it clearly runs afoul of the right, as expressed in the two preceding SCOTUS cases.

The law in question amounts to complete and unbridled discretion to say whether or not a citizen can exercise the right to carry at all. This would be similar to a law that said a citizen must obtain a license to go to church, but only a church recognized by the licensing authority; or that a citizen must have a license to publish, but only what the licensing authority wants published.

No court would give such a law any scrutiny at all. Nor should the court accord this law any scrutiny, as it is a complete denial of the fundamental right to carry:

People have a constitutional right to carry handguns for self-defense, and hence, a law that limits this activity to those with an “urgent necessity” does not and cannot serve any legitimate governmental interest (let alone an important or compelling one). Moreover, the requirement is not narrowly tailored and does not leave alternative means of self-defense available.

The Second Amendment right that the Court recognized in Heller and McDonald directly implicates the handgun carry laws of only a few States. The laws of forty-three States recognize that private citizens who are otherwise qualified have a right to carry handguns for self-defense – whether by issuing licenses to carry on the basis of non-discretionary criterion, or by allowing people to carry without licenses.
This brief really is a good read. There are so many good quotes in this brief, that I could spend several posts, quoting the whole thing. But I will stop here with the concluding remarks of the brief:

The discretionary “justifiable need” requirement of the New Jersey Permit laws violates Plaintiffs’ Second Amendment right to keep and bear arms. The Supreme Court has squarely ruled that the core of the Second Amendment protects the right of the individual to both possess and carry handguns for self-defense.

While this right is subject to permissible regulation, a State may not preclude its citizens from possessing or carrying handguns, and any licensing scheme must be implemented in a non-discretionary, uniform, and predictable manner. A State has no interest in precluding citizens from protecting themselves, and the Permit laws are facially invalid to the extent that they allow officials to deny Permit applications on the ground that “justifiable need” is not present.
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