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New direction for gun laws

By Gregory J. Sullivan In Drake v. Filko, the U.S. Court of Appeals for the Third Circuit held that New Jersey's handgun-permit law, which sets the standards for the issuance of permits to carry a handgun in public, is an acceptable regulation under the Second Amendment. This case is just one of many recent federal decisions on gun law, and it is an issue that is certainly headed soon to the U.S. Supreme Court.

By Gregory J. Sullivan

In Drake v. Filko, the U.S. Court of Appeals for the Third Circuit held that New Jersey's handgun-permit law, which sets the standards for the issuance of permits to carry a handgun in public, is an acceptable regulation under the Second Amendment. This case is just one of many recent federal decisions on gun law, and it is an issue that is certainly headed soon to the U.S. Supreme Court.

Like those other decisions, Drake, which was decided last month, is illustrative of the liberty-subverting trend of transferring control over handgun policy from state legislatures to the federal judiciary. This trend is the inevitable result of radical decisions of the most conservative members of the Supreme Court. When it comes to gun laws, the virtue of judicial modesty that serves to fetter the imposition of policy preferences has been lost. Federal courts are as overreaching now in gun law as they have been for decades in abortion law.

New Jersey's law on permits, which is considered on the restrictive side, typically requires local police chiefs to review certain objective background factors about an applicant (criminal history, for example). They must also determine whether the applicant has a "justifiable need" to carry a handgun. What justifies this "need" is defined as an "urgent necessity for self-protection" and demonstration of "a special danger to the applicant's life." It is this more subjective criterion that was challenged.

The appeals court found that this requirement did not offend the Second Amendment. One judge dissented, contending that "justifiable need" did indeed contravene the Constitution. Both opinions sought to do the impossible: formulate standards in a standardless area of constitutional law.

Letting the permit law stand is consequently the best result. But why are federal judges even involved in this area? The sources of the problem are District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010). In Heller, the Supreme Court, for the first time, determined that the Second Amendment protects an individual right to keep and bear arms. This revolutionary opinion was the work of Justice Antonin Scalia. In McDonald, the Heller rule was "incorporated" against the states, destroying any federal structure to gun law. That comparably revolutionary opinion was written by Justice Samuel A. Alito Jr.

This Warren Court-type arrogance was hailed by many conservatives who usually have a more jaundiced view of judicial power. One jurist who did not welcome Heller is J. Harvie Wilkinson III, a distinguished federal appellate judge in Virginia. In a prescient critique of the case, Wilkinson warned that "Heller encourages Americans to do what conservative jurists warned for years they should not do: Bypass the ballot and seek to press their political agenda in the courts."

One major problem with courts in this area is their utter lack of expertise. Judges know no more about when and under what criteria to issue gun permits than anyone else. Moreover, the Constitution provides no help on how to assess gun regulations. As Wilkinson predicted: "As courts get drawn farther into the gun-control thicket, they will be forced . . . to decide contentious questions without clear constitutional guidance." In other words, courts will make it up as they go along.

Prior to Heller and McDonald, our gun laws were the subject of frequent and robust debate in state legislatures. They were being revised as needed, and voters maintained ultimate control over them. With the Heller-McDonald catastrophe, that control is almost completely lost. The complex policy questions on gun-carry laws will now be decided, ultimately, by a small group of lawyers in Washington at the Supreme Court. On this latest corruption of our constitutional order, Wilkinson is exactly right: "The largest threat to liberty still lies in handing our democratic destiny to the courts."