SCOTUS denies cert in carry case Drake v. Jerejian

Status
Not open for further replies.
Follow Peruta, Richards and Baker cases in the 9th circuit. One of them is likely to appeal to the Supreme Court.
 
This is not exactly the only case involving similar issues. There will be other chances. The vote counters on the Court (pro- and anti-gun-rights) may have lacked confidence that they could predict Kennedy's vote (or maybe some other Justice) and not wanted to risk a decision yet. There may have been some wrinkle in the particular state law or the facts of the case that might have influenced the outcome.

But cases will continue to percolate up from the circuits that will afford the opportunity for review, if and when a bloc of Justices decide that they can confidently accept a case. In the meantime, the circuit split will continue. For a subject (rights to carry guns) that has always had substantial variation from state to state, a circuit split is not likely to be seen as intolerable.
 
Yes, but the awfulness of this one is the legal reasoning. This was not even close to intermediate scrutiny, and cut very closely to the logic of the dissenting opinion in heller.

Even outside of RKBA, this isn't good precedent for anything requiring intermediate scrutiny.
 
usmarine0352_2005 said:
So they can't resubmit Drake v. Jerejian to SCOTUS?
Click to expand...

??? That's not how courts generally work. If you don't like an answer in a case, you generally don't get to keep asking the Court to give you a different one. Or, you sometimes can, but it hardly ever works.
 
raz-0 said:
Yes, but the awfulness of this one is the legal reasoning. This was not even close to intermediate scrutiny, and cut very closely to the logic of the dissenting opinion in heller.

Even outside of RKBA, this isn't good precedent for anything requiring intermediate scrutiny.
Click to expand...

NOT LEGAL ADVICE:

I don't disagree. Broadly speaking, the Sup Ct could have simply vacated the 2nd circuit opinion and called for re-application of the test, without itself reaching a conclusion.

But in recent years, the 2nd circuit has been very willful/resistant towards the Supreme Court when given such directions (see, e.g., AmEx decisions re: arbitration). They surely would have come back with the same result, but reasoned differently (and perhaps better). The Sup Ct would have been right back here again 18-24 months later.

So that means that Sup Ct would have needed to tackle this one more directly. And that means counting votes on the big issues. And risking a bad outcome.
 
ohbythebay said:
That sucks...while some wish to wait, would like to see them rule and overturn.
Click to expand...

I doubt many here wish to see them wait versus rule and overturn, most would rather see them wait than rule and uphold. The latter may have been the choice facing the pro-2nd Justices, in which case a punt is better than taking a safety!

Court recognition of gun rights has come along in huge leaps and bounds over the last 10 years. Remember, before Heller, the consensus judicial view of the 2nd amendment was that it was virtually meaningless and/or did not afford an individual right.
 
So some are saying it was awaiting a more pro-2nd amendment court? What's the chance of that happening anytime soon?
 
usmarine0352_2005 said:
So some are saying it was awaiting a more pro-2nd amendment court? What's the chance of that happening anytime soon?
Click to expand...

NOT LEGAL ADVICE

No. At least that's not what I'm saying. First, no decision from the Sup Ct on this issue is better than a bad decision. Remember, both the 7th and 9th currently have decisions that are pro-gun. A bad decision takes away those decisions. Better to have federal protection of a shall-issue-type scheme in some states than in zero states.

Second, the Court's members often change views/positions within the course of their time on the Court. You don't necessarily have to have a change of persons, you can just have a change of heart by one or more members for the bent of the Court to change on a particular issue.

Third, there may be a more sympathetic or cleaner case to come along in the future. The Supreme Court doesn't give advisory opinions on general legal matters. They rule on particular cases. If a particular case presents big issue X, but also procedural issue Y, and messy fact Z, Y and Z may prevent the Court from ruling on issue X. Or may interfere with how X is treated. Maybe Drake isn't the most likely vehicle for getting a win on the big issue.

This is complicated stuff. There's a reason that the subset of lawyers who routinely practice before the Supreme Court often get paid >$1,000/hour.
 
ATLDave said:
NOT LEGAL ADVICE
Third, there may be a more sympathetic or cleaner case to come along in the future. The Supreme Court doesn't give advisory opinions on general legal matters. They rule on particular cases. If a particular case presents big issue X, but also procedural issue Y, and messy fact Z, Y and Z may prevent the Court from ruling on issue X. Or may interfere with how X is treated. Maybe Drake isn't the most likely vehicle for getting a win on the big issue.

This is complicated stuff. There's a reason that the subset of lawyers who routinely practice before the Supreme Court often get paid >$1,000/hour.
Click to expand...

I don't see how it gets much cleaner. No felons, no crime, just aggrieved parties.

About the only thing I think could be done better are the following:

1) Bring in the fact that the parties on the list at the beginning that were bought off with permits during the course of the trial did not get the same opinions about justifiable need from multiple courts, even when clearly demonstrating an ongoing life threatening situation for an extended duration.

2) Get real numbers on denials. This is so ingrained in NJ that nobody bothers applying even if they feel a need. Heck, we even had major armed guard businesses stop doing armed guards because it was such a PITA.
 
raz-0 said:
I don't see how it gets much cleaner. No felons, no crime, just aggrieved parties.
Click to expand...

Without reading the full record, I couldn't possibly form an opinion on whether there are any complicating factors.

Here's another way to think about it: the cert petition was filed. It got turned down because neither the pro- nor anti-gun blocs of the Court wanted to hear it. They must each have had their reasons. I don't know what their concerns were, but if the pro-gun Justices didn't want to grant cert, one can reasonably conclude that a negative outcome was at least somewhat likely.

Maybe the fact that the decision is made by a judge, not a LEO (as in CA, IIRC) was considered to be a mitigating factor. Maybe Scalia just wants some more time to work on Kennedy. Maybe Kennedy has already intimated to Scalia that he's ready to rule in support of the 9th circuit decision. Or maybe Kennedy has said that he's deeply troubled by the rise of shall-issue and Scalia doesn't want to roll the dice. Again, split circuits are better than a bad result. It's cold comfort to NJ residents and the particular litigants, but Schrodinger's cat is still half-alive at the moment.
 
What about the fact that the case pertains to only carrying of handguns and not all guns? Or the fact that it pertains to carrying concealed?


Sometimes it may be more practical to carry a long gun or to wear a weapon outside of the clothing such as when it's cold like in Alaska or really hot like in Florida.
 
My thoughts on the delays in deciding whether to grant cert in Drake were related to the pending petitions to intervene in Peruta. With that undecided, they might be waiting for the three cases in the 9th Circuit to play out fully.

I would hope that any of those to reach the Supreme court would be accepted, because I am unaware of other cases in the remaining Circuits to be decided.
 
Richards v Prieto and Baker v Kealoha were decided by the same panel of judges as Peruta, and either one is likely to be appealed.
 
I don't see why this is a surprise to anyone. SCOTUS denies hundreds if not thousands of applications per year. They are only 9 judges, and all of them must agree to hear a case. If anyone of them says no to deliberation, then it doesn't reach the desk. Other 2A cases such as McDonald are relatively new decisions in the eyes of the court. It will probably take a few more years of states rewriting laws to either accept or find loopholes in McDonald and other 2A cases, before SCOTUS will take another 2A case.
 
quote"2) Get real numbers on denials. This is so ingrained in NJ that nobody bothers applying even if they feel a need. Heck, we even had major armed guard businesses stop doing armed guards because it was such a PITA."quote



Also if you apply for CCW permit in NJ and get denied(and you will be denied) ,you will have to answer the question on future pistol(and address change etc)applications "Have you ever been denied a permit in NJ" as yes. This can complicate the process.It also makes you not want to apply for CCW, to avoid said complications , and delays, as well as paperwork nightmares.
 
I forgot about the Pantano Case in the New Jersey Supreme Court. It looks like it might be argued soon (based on the cases granted cert around the same time). While I don't have a ton of faith in lower courts deciding this in our favor, I believe this would also be a short hop to the US Supreme Court.

Link to the NJ Supreme Court list of cases: (Pantano is about 1/4 way down, case A-72-12)

http://www.judiciary.state.nj.us/calendars/sc_appeal.htm
 
I forgot about the Pantano Case in the New Jersey Supreme Court. It looks like it might be argued soon (based on the cases granted cert around the same time). While I don't have a ton of faith in lower courts deciding this in our favor, I believe this would also be a short hop to the US Supreme Court.

Link to the NJ Supreme Court list of cases: (Pantano is about 1/4 way down, case A-72-12)
Click to expand...




Couldn't find it 1/4 the way down. What's the full case name and what is it about?
 
"A-72-12 IMO the Application for a New Jersey Permit to Carry a Handgun by Richard Pantano (072329)
Does the statutory requirement that an applicant for a permit to carry a handgun demonstrate “a justifiable need to carry a handgun,” N.J.S.A. 2C:58-4(d), violate the right to bear arms under the Second Amendment to the United States Constitution?
Certification granted 7/19/13
Posted: 7/19/13
Argued:
Decided:"

I believe he was a landscaper that carried a lot of cash. Denied permit for lack of "justifiable need"

I found an amicus brief from NJ2AS that has some good info on the history of NJ carry law (http://www.nj2as.com/Resources/PDF/pantano.pdf)

1905 - first law making a permit required for concealed carry, no permit needed for open carry
1922 - "good cause" added as a requirement without a definition
1924 - good cause changed to "need" also without definition
1966 - required permit for any form of possession in the public (misdemeanor for violation)
1968 - upgraded to high misdemeanor
1978 - changed need to "justifiable need" again without definition
- upgraded to Crime (felony in NJ legal terms) and
- expanded to the current status of possession forbidden outside limited exemptions (Home, range, hunting)
1991 - Codified the current definition of "justifiable need" - heightened need for urgent protection based on current threats or prior attacks

Talk about incremental creep / slippery slope!
 
Status
Not open for further replies.
Back
Top