McShane: Circuit Decisions Lessened by Strong State Gun Laws

The Ninth Circuit Court of Appeals has ruled on a Second Amendment case, finding in Peruta that the court believed there is no Second Amendment-protected right to carry a concealed handgun outside the home. But what does this mean for the average gun owner, if anything, in the rest of the country? We asked Justin McShane, Independent Program Attorney for U.S. Law Shield of Pennsylvania, for some insights:

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Justin McShane, Independent Program Attorney for U.S. Law Shield of Pennsylvania

When Pennsylvanians look at federal law, we realize that we are in the Third Circuit. And the Third Circuit is home to not only Pennsylvania, but also New Jersey. New Jersey is not at all like Pennsylvania. Whereas, Pennsylvania is a “shall issue” state; New Jersey decidedly is not. Whereas, Pennsylvania has the protections of Article I Section 21, New Jersey does not. So while we as Pennsylvanians are rightly concerned with the state of the Second Amendment nationally, if we were only to look at the Third Circuit and ignore our Pennsylvania heritage and laws, we would get the wrong impression.

Similar to the 9th circuit ruling in Peruta on California’s “good cause” requirement to attain a permit, the 3rd Circuit in Drake v. Filko upheld New Jersey’s “justifiable need” requirement to attain a license to carry a handgun outside of the home.  The “justifiable need” requirement in New Jersey was implemented by requiring that an applicant show a “specific threat or previous attack demonstrating a special danger to applicant’s life that cannot be avoided by other means.”  To justify upholding this restrictive law, the 3rd Circuit reasoned that this law did not burden a constitutionally protected freedom; essentially claiming that the 2nd Amendment provides no right to carry a firearm for protection outside the home. They further stated, that even if the law did burden a constitutionally protected right, the handgun permit law qualifies as a longstanding, presumptively lawful exception to the 2nd Amendment right.  In saying this law qualifies as an exception, the Court pointed to laws they viewed as demonstrating that these sorts of restrictions had been historically present in New Jersey.  The Court took their analysis one step further, and stated that even if the law burdened citizens’ rights, it was constitutionally allowable when viewed under the intermediate level of scrutiny.  This intermediate level scrutiny upholds a law as constitutional if it is rationally related to promoting an important state interest, such as the state’s interest in protecting the safety of its citizens (although it could certainly be argued that this law does nothing to make law abiding citizens safer).  It is also worth noting that most of the other rights enumerated in the Bill of Rights are afforded Strict Scrutiny by the Courts, which requires a finding that the law in question serves a compelling state interest, and that the law is necessary to serve that interest.  Sadly, the 2ndAmendment is one of the few rights enumerated in the Bill of Rights not universally across all circuits afforded this level of highest scrutiny.

Fortunately for Pennsylvania residents, we are afforded greater firearms protection through our State Constitution. The 2nd Amendment acts as a floor, and is a base level of rights to firearms, that the government is not supposed to be able to restrict further. While ideally the 9th Amendment (The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people) would grant us rights to carry firearms if the 2nd Amendment is not explicit enough for the courts, unfortunately it has never been applied in such a way. Fortunately, state constitutions can raise the minimum rights that we are granted off the floor provided by the 2nd Amendment. In Pennsylvania, Article 1, section 21 of the State Constitution promises Pennsylvanians that the “right of the citizens to bear arms in defense of themselves and the State shall not be questioned.” This is a is more strongly worded, and more definite individual guarantee of our rights than the 2nd Amendment. In addition to this 18 Pa.c.s. 6109 provides that any Pennsylvanian who does not fit into one of the prohibited classes of persons listed in the statute SHALL be issued a permit. This is why Pennsylvania is classified as a shall issue state, where New Jersey is a may issue state. While the 3rd Circuit has certainly not done law abiding gun owners any favors with Filko, Pennsylvanians are fortunate that their state has guaranteed their gun rights in other forms.

For a longer review of the Peruta decision itself, please click here to see our coverage of the case.