Case to Watch: Drake v. Jerejian

By Allen Thompson, Esq.

UPDATE: The Supreme Court, on Monday, denied the petition, declining to accept the case for review.  No opinion was issued as to the denial.

UPDATE: The case has been distributed for today’s conference.

UPDATE: The docket now reflects that Respondents have timely filed their response.

The Supreme Court of the United States has decided not to hear several important firearms rights cases this year, setting aside such issues as: whether a concealed carry permit-holder residing at a house creates an exigent circumstance in which police do not have to announce their presence, and whether a 10-round magazine, deemed protected by the Second Amendment, can be prohibited as a safety measure.  However, one case is still standing and the Supreme Court is still receiving briefs on the merits.

 Drake v. Jerejian, Docket No. 13-827 (which started out life as Drake v. Filko), challenges New Jersey’s impossibly restrictive carry permit requirements.  In order to gain a carry permit in New Jersey, one must first demonstrate “justifiable need.”  To many people’s surprise, one can only show “justifiable need” in one of two ways: a specific threat against the person, or a significant enough history to demonstrate that need.  In addition, one must show that carrying a firearm is the only way to prevent harm from the attack.  Once local law enforcement signs off on the permit, an applicant still needs approval from the New Jersey Superior Court.  And, as Mr. Drake found out, even if the local law enforcement authorities grant the permit, the New Jersey State Police is still likely to appeal.

John Drake, Gregory Gallaher, Lenny Salerno, and Finley Fenton, along with the Second Amendment Foundation and the Association of New Jersey Rifle and Pistol Clubs, filed suit challenging the essential ban on carrying in New Jersey.  John Drake, who operates a business restocking and servicing ATM machines, necessarily carries large amounts of cash on him and desired to carry a firearm for protection.  After initially being approved by the local law enforcement agency, the New Jersey State Police appealed and the Superior Court reversed the LEO’s approval.  The current lawsuit was then filed and the denial was eventually upheld by the Third Circuit.  Petitioners then appealed to the Supreme Court, where the case currently sits, awaiting its fate.

To date, numerous heavy hitters have entered the arena as amici, or third-parties with some interest in the outcome of the case.  The NRA, the Claremont Institute’s Center for Constitutional Jurisprudence, and the Cato Institute have all filed briefs in support of the challenge to New Jersey’s law.  Nineteen states* also filed to support the challenge, as well as the Judicial Education Project.  A single brief was filed on behalf of the following: Gun Owners Foundation, Gun Owners of America, U.S. Justice Foundation, Lincoln Institute for Research and Education, Abraham Lincoln Foundation, Institute on the Constitution, Conservative Legal Defense and Education Fund, and the Policy Analysis Center.  Members of Congress submitted a brief, as well, urging clarification on firearms laws.

Respondents (those defending New Jersey’s law) had until March 14 to file a response.  Although nothing has been posted on the docket as of yet, it is quite possible that, because March 14 was a Friday and Monday saw inclement weather in Washington, D.C., the docket simply does not reflect the submission yet.  We will keep you posted as this case progresses.

*The following states joined Wyoming in filing the amicus brief in support of the Petitioners: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Kansas, Kentucky, Louisiana, Michigan, Missouri, Nebraska, New Mexico, Ohio, Oklahoma, South Carolina, South Dakota, and West Virginia.

3 thoughts on “Case to Watch: Drake v. Jerejian

  1. This case actually started out life as Muller v Maenza. This was the case of the pet store owner who was beaten up and kidnapped by a biker gang. Two of the plaintiffs dropped off because they were granted permits. Muller was granted a permit after being denied twice. Piszczatoski got his permit as a retired law enforcement officer when he retired from the Coast Guard.


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