As previously reported, October 1, 2019 was a date of several possible implications concerning the Second Amendment. The Supreme Court of the United States had on their conference calendar Cheeseman v Polillo for granting or denying certiorari. This is one of the many cases currently challenging draconian firearm laws in the country.
All eyes have been looking towards NYSRPA v NYC a case concerning the prohibition of traveling outside of the boroughs of New York with a lawfully owned handgun. The case is scheduled for arguments on December 2nd. On October 7th SCOTUS orders noted that NYSRPA v NYC is not mooted at this time and on the date of arguments, NYC can make their mootness claim. The case is being heard. It is apparent that NYC does not want this case to be heard, nor does the rest of the anti-gun community. Any moves loosening the transportation restrictions were simply hail Marys to have the case dismissed rather than an acknowledgement of governmental overreach. This NYC case can have wide implications, damaging statutes in other restrictive jurisdictions such as New Jersey, where there are strict laws on the transportation of firearms outside of the home. If broadly decided, this case can set a precedent that can eviscerate several possession related statutes throughout the country.
Should NYSRPA v NYC become mooted during/after arguments, the court still has in waiting cases specifically targeting concealed carry and other firearm related claims. Rogers v Grewal is once such carry case, out of New Jersey, and has been through conference with no action or orders posted concerning its fate. Rogers is funded and backed by the Association of New Jersey Rifle and Pistol Clubs (ANJRPC). One of the speculated theories is that the Rogers case, as well as the other carry cases in limbo, are waiting on a decision or further action from NYC’s case. It is specifically noted in in the 9th Circuit’s Young v. Hawaii open carry case, that it is being held before having an en banc review until the outcome of the NYC case is decided.
From New Jersey there is also the Ciolek v New Jersey, a carry case with no movement from its October 1st conference date. Filed without a conference date is a “Assault Weapons Ban” suit, Worman v Healey, from Massachusetts. Further from the Commonwealth there is Gould v Lipson, a carry case backed by Comm2A, and this case has been in a conference limbo since June. Recently field for certiorari Malpasso v Pallozzi, a carry case out of Maryland. The fight against rights restriction is happening now and anti-gun politicians and policy makers will not be able to hold back the dike forever.
Should a favorable opinion come out of NYSRPA v NYC, things such as strict scrutiny maybe applied to Second Amendment Cases and perhaps these other cases will be returned to lower courts to be reheard with instructions form the court…this was the situation with Caetano v MA concerning stun gun/Taser prohibitions. What if the court decides we have castle doctrine in our motor vehicles?
Cheeseman v Polillo is one cog in this wheel fighting against draconian laws. Glassboro, NJ resident Mark Cheeseman set out on two different occasions to obtain a New Jersey Concealed Carry Permit and in both instances he was denied due to not having a “justifiable need.”
New Jersey is one of the few remaining “may issue” states in the country concerning obtaining a Concealed Carry Permit and imposes impossible restrictions to get one…the justifiable need standard. In states like New Jersey, Maryland, New York, California and Hawaii, to name the strictest, the licensing schemes are such that only the politically connected, rich or former police officers can obtain permits to carry for self-defense. They are essentially “no-issue” states.
Cheeseman’s case is a little different from some of the other cases making the rounds. Cheeseman and his team; Jay Factor a Second Amendment scholar also form New Jersey, John Jillard a former co-plaintiff with a parallel case, and attorney David D. Jensen are making their argument concerning interest balancing and constitutional rights, not attacking the actual statute concerning justifiable need.
Scholar Jay Factor points out that:
New Jersey decides handgun carry permits on a “case-by-case basis.” Cheeseman’s new argument seized on Heller’s throwing out of “interest balancing” by all three branches of the government and Heller no longer allowing those three branches “the power to decide permit applications on a case-by-case basis” to applicants who are not “disqualified from the exercise of Second Amendment rights.”
Justifiable need, according to Black’s Law Dictionary means “lawful” need. New Jersey statute defines a person meeting justifiable need when that individual has been subject to repeated and specific threats or attacks. An actual prosecutor makes a case against the citizen applying for a permit to a judge concerning this matter. The fact that a prosecutor, never mind a judge, is involved in this process is insane, especially since this has to do with the lawful exercising of a right. This is not a simple application process, applicants are on trial and usually are treated with disrespect. One notable case, the Almeida case out of NJ had a judge telling him to change jobs if his job was too dangerous or to hire private security.
In the Heller decision, it is explicitly noted by the court that a government cannot make arbitrary decisions concerning constitutional rights. In the case of carrying firearms, it is also pointed out by Cheeseman’s suit:
In essence, Cheeseman’s new argument means if Cheeseman qualifies for a 2C:58-3 Firearms ID Card, then Cheeseman qualifies for a 2C:58-4 Permit to Carry a Hand Gun.
As per Heller, if a citizen qualifies for ownership of a firearm, having no disqualifiers, he or she also qualifies to meet the classic definition (not NJ’s convoluted one) of justifiable need, should they want to carry a firearm for self-defense. Justice Scalia would explain in Heller that, “the core lawful purpose of the Second Amendment is self-defense.” Justice Thomas with Justice Scalia dissenting from the denial of certiorari of Friedman v Highland Park would further elaborate on this concept:
We explained in Heller and McDonald that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” We excluded from protection only “those weapons not typically possessed by law-abiding citizens for lawful purposes.” And we stressed that “[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.”
On October 2, 2019 the status of Cheeseman’s case per the SCOTUS page was “DISTRIBUTED for Conference of 10/18/2019.” Does this mean anything in particular? For one, that means the case was not outright denied. This is a step above the Roger’s case which is still sitting in limbo without further dates or decisions posted. A change in Cheeseman status can be reported as early as October 21st. What we know though is the outcome of NYSRPA v NYC is going to affect all of these carry cases provided it is not mooted during/after arguments. Anti-freedom governments and jurisdictions in The United States should take notice, the fight against these unconstitutional laws will continue. Carry, whether open or concealed, so-called “Assault Weapons” bans, banning of standard capacity magazines, and travel restrictions will not be tolerated. This session with the Supreme Court is gonna be a good one!