The ill-fated gun owners of New Jersey suffered yet another setback this week when the Third Circuit Court of Appeals (a federal court that also covers Pennsylvania and Delaware) upheld the constitutionality of New Jersey's permitting system for the carrying of handguns in public for self-defense. The main issues in the case were whether the Second Amendment protects a right to carry arms in public for self-defense and whether New Jersey's "justifiable need" standard for the issuance of a permit acts as an unconstitutional restraint on that right. Precious few permit applicants meet the "justifiable need" threshold, which as interpreted by regulation and case law requires the applicant to show "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." "Generalized fears for personal safety," meanwhile, are specifically deemed to be "inadequate" justification.
While acknowledging (but refusing "definitively" to hold) that "the Second Amendment's individual right to bear arms may have some application beyond the home," the court found that any protection offered in that context would be so weak as to allow for what basically amounts to a rule that a person cannot exercise the right without first proving prior victimization. In other words, although the Heller decision held that the Second Amendment protects "the individual right to possess and carry weapons in case of confrontation" (emphasis added), the Third Circuit decided that what the Court must have really meant was a right to carry weapons after a violent confrontation, assuming the individual survived it. That's an odd view, to say the least, of a right meant to guarantee a person the means of preventing victimization in the first place.
Imagine this rule applied to other fundamental rights. Should peaceful, law-abiding persons only be able to demand a warrant before police enter their homes after first proving prior, unlawful police entries? Should the right to silence only apply after at least one other statement has been forced out of a person accused of a crime? A person has a right to an attorney, but only after having been first convicted and sent to prison? Should "generalized fears" of official abuses that have yet to materialize against a specific person mean that person has no recourse to the rights meant to prevent such abuses?
The Third Circuit held New Jersey’s law survives Second Amendment analysis because it is “longstanding.” Even if that debatable premise is true, so were the laws, for example, that institutionalized racial segregation or failed to recognize the Bill of Rights as applying against the actions of states and localities. If constitutional rights were determined merely by the longevity of infringing laws, many important protections would still be unavailable to guard against abuses at the state and local levels.
Unfortunately, New Jersey gun owners seem poised for a continuation of the abuses to which they have too long been subjected unless substantial changes occur in the Trenton Statehouse … or unless the United States Supreme Court takes another case in the face of the lower courts’ ongoing campaign to diminish the Second Amendment’s individual right, a right many of them refused to acknowledge even existed until forced to do so by the high court.