Supreme Court Denies Appeal In Yet Another Second Amendment Case


Continuing a pattern that has been evidence for some time now, the Supreme Court has declined to hear a case challenging New Jersey’s regulations on carrying handguns in public:

WASHINGTON — The Supreme Court on Monday turned away a case about whether the Second Amendment guarantees a right to carry guns in public for self-defense. As is their custom, the justices gave no reasons.

The case would have required the court to address a question it left open in 2008 in District of Columbia v. Heller, which found that the Second Amendment protects an individual right to keep guns for self-defense in the home. The new case, Drake v. Jerijian, No. 13-827, concerned whether and how governments may restrict Second Amendment rights outside the home.

The case involved a New Jersey law that requires people seeking licenses to carry guns in public to demonstrate a “justifiable need.” In practice, according to the law’s challengers, “few ordinary people can hope to obtain a New Jersey handgun carry permit.”

Josh Blackman accuses the Court of abdicating on Second Amendment issues:

Well it’s official. The Supreme Court has abdicated the Second Amendment.

Today, the Court denied cert in Drake v. Jerejian, , the New Jersey carry case. This case offered a perfect vehicle to test whether the Second Amendment applies outside the home. It was relisted a few times, which this term has been a prerequisite to cert. Yet, it was denied today.

Since the Supreme Court decided McDonald v. Chicago in 2010, they have not deigned to take a single Second Amendment case. Not one. Several have been relisted a few times, but all ultimately denied, with not even a statement concurring or dissenting from denial of cert.

As I noted in this post, this strategy of “deny, deny, deny” is reminiscent of the abscence of Cert grants in cases concerning Guantanamo Bay. There, the Court seems content to let the D.C. Circuit rewrite habeas law. I suppose, in a similar fashion, the Court is happy with a plethora of nation-wide Circuit splits about the meaning of the right to keep and bear arms.

As always, it’s not easy to say why the Court denied cert in a particular case. At most all one can usually say that there were not four Justices who wanted to give the case a hearing. However, when you have a pattern of denials in a particular type of case then it becomes hard not to think that the Court is deliberately denying these cases for a particular reason. In this case, the Court seems to be saying that it is okay with a Federalism approach when it comes to gun rights beyond those outlined in its two landmark cases, and I’m not sure this is a bad thing.

FILED UNDER: Guns and Gun Control, Law and the Courts, US Politics, , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. sam says:

    Justice Scalia in his majority opinion in Heller stated unequivocally that state regulation of firearms was not precluded by the holding in Hellerr:

    Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms [see note 26].

    Note 26:

    We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

    Heller was decided 5-4. I’m pretty sure none of the dissenters would have argued for the granting of cert here. And none of the other four in the majority filed a “concurring in part, dissenting in part” opinion. It appears the Court is wholly on-board with allowing the states wide latitude in regulating firearms.

  2. @sam:

    I am well aware of Scalia’s opinion in Heller and I’ve made note of that language myself.

    At some point, however, the Court will have to address the issue of whether, and to what extent, the right defined in Heller extends outside the home.

  3. Jeff says:

    Scalia’s language in Heller is not as apropos as gun controllers like to believe. Yes, he suggested that a ban on carrying firearms concealed may be constitutional. No, it doesn’t follow that banning the carrying of firearms at all is. Try open carrying in New Jersey and see how that works out.

  4. PD Shaw says:

    @sam: I think your argument goes to far. The Seventh Circuit Court of Appeals ordered Illinois to allow concealed carry. There appear to be Circuit splits, which means not only some variability in how states may regulate guns, there is also some variability in how the federal courts can overrule those state regulations.

  5. stonetools says:

    Too bad the SCOTUS didn’t apply its new found respect for local and state regulation in those “landmark” cases.
    Since then, the gun nuts have gone hog wild, pushing laws “protecting” the right to carry guns in churches, bars , and school playgrounds.

    And those “landmark” decisions empowered a$$holes like these guys:

    A man carrying a gun in a holster prompted parents at a children’s baseball game to halt play and round up the children behind a dugout, but authorities say no crime was committed.

    Parents and others at the Forsyth County park north of Atlanta flooded the 911 center with 22 calls about the man Tuesday evening.

    Parent Karen Rabb tells WSB-TV ( ) that the man was asking people if they saw his gun, saying there’s nothing anyone could do about it.

    Forsyth County sheriff’s deputies questioned the man, and found that he had a valid gun permit. Authorities said that since the man made no verbal threats or gestures, they couldn’t arrest him.

    Seriously, what kind of a d!ckhead carries a gun around parents with small children at a children’s baseball game? Anyway, won’t be long before there is another entirely foreseeable tragedy involving one of these gun rights “advocates”. In the meantime, this just makes it clear to liberals why we need to vote for Democratic Senators and a Democratic President.

  6. bill says:

    what kind of a d!ckhead carries a gun around parents with small children at a children’s baseball game?

    a lot of people with ccl do, you just don’t see them and hope they’ll never have to use them.

  7. Matt Bernius says:


    a lot of people with ccl do, you just don’t see them and hope they’ll never have to use them.

    There’s also a fundamental difference between concealed carry and open carry in terms of the effects on the people around them.

    Not to mention that the asshole in question was apparently *not* a parent of any of the children who were playing the game AND apparently was calling attention to the fact he was carrying a gun.

  8. Matt Bernius says:

    Doug wrote:

    However, when you have a pattern of denials in a particular type of case then it becomes hard not to think that the Court is deliberately denying these cases for a particular reason.

    Which, it’s important to note could be because one or more justices believe that the present configuration of the court will get the issue *wrong.* It’s my understanding that a similar tactic was used to prevent civil rights cases coming before the courts.

    Stare decisis can be a bitch. So, given the courts current configuration, in many respects the decision to punt can be seen as a victory for either side.

  9. OzarkHillbilly says:

    @bill: You might be surprised at the # of “concealed” weapons I can spot. As to your 2nd point, you got that right. More shooters? More bullets? No thanx.

  10. wr says:

    @bill: “a lot of people with ccl do, you just don’t see them and hope they’ll never have to use them”

    Yes, we all hope one of these upstanding, gun-toting citizens doesn’t get upset by the sight of someone texting in a movie theater and decide to murder him.