Drake v. Filko

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 12-1150
_____________

JOHN M. DRAKE; GREGORY C. GALLAHER;
LENNY S. SALERNO; FINLEY FENTON;
SECOND AMENDMENT FOUNDATION, INC.;
ASSOCIATION OF NEW JERSEY RIFLE & PISTOL
CLUBS, INC.,

Appellants

v.

THE HON. RUDOLPH A. FILKO, in his Official Capacity
as Judge of the Superior Court of Passaic County;
HON. EDWARD A. JEREJIAN, in his Official Capacity as
Judge of the Superior Court of Bergen County;
THE HON. THOMAS V. MANAHAN, in his Official
Capacity as Judge of the Superior Court of Morris County;
SUPERINTENDENT NEW JERSEY STATE POLICE;
CHIEF RICHARD COOK, in his Official Capacity as Chief
of the Montville, New Jersey Police Department;
ATTORNEY GENERAL OF NEW JERSEY;
ROBERT JONES, in his Official Capacity as Chief of the
Hammonton, New Jersey Police Department
__________
 On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2-10-cv-06110)
District Judge: Honorable William H. Walls
__________

Argued February 12, 2013

Before: HARDIMAN and ALDISERT, Circuit Judges, and
STARK, District Judge.

(Filed: July 31, 2013)

David D. Jensen
David Jensen PLLC
Suite 230
111 John Street
New York, NY 10038

Alan Gura [Argued]
Gura & Possessky, PLLC
101 North Columbus Street
Suite 405
Alexandria, VA 22314

Attorneys for the Appellants


The Honorable Leonard P. Stark, Judge of the United States
District Court for the District of Delaware, sitting by
designation.

2
 Jeffrey S. Chiesa, Attorney General
Gregory A. Spellmeyer
Daniela Ivancikova
Robert T. Lougy
Mary E. Wood [Argued]
Office of the Attorney General of New Jersey
Department of Law and Public Safety
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625

Attorneys for the Appellees

Adam K. Levin
Hogan Lovells US LLP
555 Thirteenth Street, N.W.
Columbia Square
Washington, DC 20004

Attorney for the Amicus Appellees
__________

OPINION OF THE COURT
__________

ALDISERT, Circuit Judge.

Four New Jersey residents and two organizations
(collectively “Appellants”) appeal from a judgment of the
United States District Court for the District of New Jersey
that held constitutional N.J.S.A. § 2C:58-4, a New Jersey law
regulating the issuance of permits to carry handguns in public

3
(“Handgun Permit Law”). Appellants contend that the District
Court erred because (1) the Second Amendment secures a
right to carry arms in public for self-defense; (2) the
“justifiable need” standard of the Handgun Permit Law is an
unconstitutional prior restraint; and (3) the standard fails any
level of means-end scrutiny a court may apply. We will
affirm the judgment of the District Court.

I.

Permits to carry handguns are “the most closely
regulated aspect” of New Jersey’s gun control laws. In re
Preis, 573 A.2d 148, 150 (N.J. 1990). Individuals who wish to
carry a handgun in public for self-defense must first obtain a
license. N.J.S.A. § 2C:39-5(b).1 The process and standard for
obtaining such a license is found in New Jersey’s Handgun
Permit Law, N.J.S.A. § 2C:58-4.

Under New Jersey’s Handgun Permit Law, individuals
who desire a permit to carry a handgun in public must apply
to the chief police officer in their municipality or to the
superintendent of the state police. N.J.S.A. § 2C:58-4(c). The
chief police officer or superintendent considers the
application in accordance with the following provisions of the
Handgun Permit Law:

1
For exemptions to the general rule that individuals may not
carry a handgun in public without a permit, see N.J.S.A. §
2C:39-6. For example, individuals employed in certain
occupations may carry a firearm “in the performance of their
official duties,” see, e.g., N.J.S.A. § 2C:39-6(a)(2), and
individuals may carry a firearm “in the woods or fields . . . for
the purpose of hunting,” see N.J.S.A. § 2C:39-6(f)(2).

4
 No application shall be approved by the chief
police officer or the superintendent unless the
applicant demonstrates that he is not subject to
any of the disabilities set forth in 2C:58-3c.
[which includes numerous criminal history, age
and mental health requirements], that he is
thoroughly familiar with the safe handling and
use of handguns, and that he has a justifiable
need to carry a handgun.

Id. (emphasis added). The meaning of “justifiable need,” as it
appears in this provision, is codified in the New Jersey
Administrative Code as follows:

[T]he urgent necessity for self-protection, as
evidenced by 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.

N.J. Admin. Code 13:54-2.4(d)(1).2
2
This codification of the “justifiable need” standard closely
mirrors an earlier explanation of “need” that was laid out by
the Supreme Court of New Jersey in Siccardi v. State, 284
A.2d 533 (N.J. 1971). See id. at 557 (explaining that New
Jersey law restricts the issuance of permits to those “who can
establish an urgent necessity for . . . self-protection,” which
may be limited to those “whose life is in real danger, as
evidenced by serious threats or earlier attacks”). Since
Siccardi, many other New Jersey state court opinions have
also explained this standard. See In re Preis, 573 A.2d at 152
(“[T]here must be an urgent necessity [] for self-protection.

5
 Next, if the chief police officer or superintendent
determines that the applicant has met all the requirements,
including demonstration of a “justifiable need,” the
application is approved and sent to a superior court judge,
who:

shall issue the permit to the applicant if, but
only if, it is satisfied that the applicant is a
person of good character who is not subject to
any of the disabilities set forth in section 2C:58-
3c., that he is thoroughly familiar with the safe
handling and use of handguns, and that he has a
justifiable need to carry a handgun.

N.J.S.A. § 2C:58-4(d). If, alternatively, the chief police
officer or superintendent determines that the applicant has not
met the requirements, the applicant “may request a hearing in
the Superior Court . . . by filing a written request for such a
hearing within 30 days of the denial.” Id. at § 2C:58-4(e).

II.

The requirement is of specific threats or previous attacks
demonstrating a special danger to the applicant’s life that
cannot be avoided by other means. Generalized fears for
personal safety are inadequate . . . .”) (internal citations and
quotation marks omitted); In re Pantano, 60 A.3d 507, 510
(N.J. Super. Ct. App. Div. 2013) (discussing and applying
“justifiable need” standard); In re Application of Borinsky,
830 A.2d 507 (N.J. Super. Ct. App. Div. 2003) (same).

6
 Desiring to carry handguns in public for self-defense,
the individual plaintiffs here each applied for a permit
according to the process described above. Their applications
were denied, however, because pursuant to N.J.S.A. § 2C:58-
4(c) either a police official or superior court judge determined
that they failed to satisfy the “justifiable need” requirement.3
The organizational plaintiffs asserted that their members and
supporters have been denied public-carry permits and have
refrained from applying for permits because they cannot
demonstrate a “justifiable need” as required by the Handgun
Permit Law. Appellants sought declaratory and injunctive
relief, contending that New Jersey may not condition the
issuance of a public-carry permit on an applicant’s ability to
demonstrate a “justifiable need.” The District Court rejected
Appellants’ arguments, and accordingly denied Appellants’
motion for summary judgment and granted Appellees’ motion
to dismiss. Appellants timely appealed.4

3
In March 2013, one of the original plaintiffs, Daniel
Piszczatoski, was granted a permit on other grounds (as a
retired law enforcement officer) and was dismissed as an
Appellant.
4
The District Court had jurisdiction under 28 U.S.C. §§ 1331
and 1343, and could consider Appellants’ request for
declaratory and injunctive relief under 28 U.S.C. §§ 2201 and
2202. We have jurisdiction under 28 U.S.C. § 1291. We
exercise plenary review over the District Court’s
determination that the New Jersey Handgun Permit Law is
constitutional, United States v. Fullmer, 584 F.3d 132, 151
(3d Cir. 2009); the District Court’s dismissal of Appellants’
complaint under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, Monroe v. Beard, 536 F.3d 198, 205 (3d Cir.
2008); and the District Court’s denial of Appellants’ motion

7
 III.

This appeal prompts us to consider multiple questions.
We will consider each in turn following the two-step
approach this Court set forth in United States v. Marzzarella,
614 F.3d 85, 89 (3d Cir. 2010):

First, we ask whether the challenged law
imposes a burden on conduct falling within the
scope of the Second Amendment’s
guarantee . . . . If it does not, our inquiry is
complete. If it does, we evaluate the law under
some form of means-end scrutiny. If the law
passes muster under that standard, it is
constitutional. If it fails, it is invalid.

Here, we conclude that the requirement that applicants
demonstrate a “justifiable need” to publicly carry a handgun
for self-defense qualifies as a “presumptively lawful,”
“longstanding” regulation and therefore does not burden
conduct within the scope of the Second Amendment’s
guarantee. Accordingly, we need not move to the second step
of Marzzarella. Nevertheless, because of the important
constitutional issues presented, we believe it to be beneficial
and appropriate to consider whether the “justifiable need”
standard withstands the applicable intermediate level of
scrutiny. We conclude that even if the “justifiable need”
standard did not qualify as a “presumptively lawful,”

for summary judgment, State Auto Prop. & Cas. Ins. Co. v.
Pro Design, P.C., 566 F.3d 86, 89 (3d Cir. 2009) (citation
omitted).

8
“longstanding” regulation, at step two of Marzzarella it would
withstand intermediate scrutiny, providing a second,
independent basis for concluding that the standard is
constitutional.

IV.

It remains unsettled whether the individual right to
bear arms for the purpose of self-defense extends beyond the
home.5 In 2008, the Supreme Court explicitly recognized for
the first time that the Second Amendment confers upon
individuals a right to keep and bear arms for self-defense by
holding that a District of Columbia law forbidding the
individual possession of usable handguns in the home
violated the Second Amendment. See District of Columbia v.
Heller, 554 U.S. 570, 595 (2008). In 2010, the Court
recognized that the Second Amendment right articulated in
Heller applied equally to the states through the Fourteenth
Amendment. See McDonald v. City of Chicago, — U.S. —,
130 S. Ct. 3020, 3026 (2010). Taken together, these cases
made clear that “Second Amendment guarantees are at their
zenith within the home.” Kachalsky v. County of
Westchester, 701 F.3d 81, 89 (2d Cir. 2012), cert. denied, 133

5
Rather than discussing whether or not the individual right to
bear arms for the purpose of self-defense articulated in
District of Columbia v. Heller, 554 U.S. 570 (2008) “extends
beyond the home,” it may be more accurate to discuss
whether, in the public sphere, a right similar or parallel to the
right articulated in Heller “exists.” Firearms have always been
more heavily regulated in the public sphere so, undoubtedly,
if the right articulated in Heller does “extend beyond the
home,” it most certainly operates in a different manner.

9
S. Ct. 1806 (2013). Outside of the home, however, we
encounter the “vast terra incognita” recognized by the Fourth
Circuit in United States v. Masciandaro, 638 F.3d 458, 485
(4th Cir. 2011), cert. denied, 132 S. Ct. 756 (2011). Compare
also Marzzarella, 614 F.3d at 92 (“[C]ertainly, to some
degree, [the Second Amendment] must protect the right of
law-abiding citizens to possess firearms for other, as-yet-
undefined, lawful purposes.”), with Masciandaro, 638 F.3d at
475 (“There may or may not be a Second Amendment right in
some places beyond the home.”).

Although Heller does not explicitly identify a right to
publicly carry arms for self- defense, it is possible to conclude
that Heller implies such a right. The Seventh Circuit reached
this very conclusion in Moore v. Madigan, 702 F.3d 933, 942
(7th Cir. 2012), when it stated that “[t]he Supreme Court has
decided that the amendment confers a right to bear arms for
self-defense, which is as important outside the home as
inside.”6 As the Second Circuit recently explained, however,

6
We note that the Seventh Circuit gave the Illinois legislature
time to come up with a new law that would survive
constitutional challenge, implying that some restrictions on
the right to carry outside the home would be permissible,
while holding that the challenged law containing a flat ban on
carrying a handgun in public was unconstitutional.
Accordingly, on July 9, 2013 Illinois enacted a law requiring
issuance of concealed carry licenses to individuals meeting
basic statutory requirements similar to those required for New
Jersey applicants, but the law does not require applicants to
show a “justifiable need.” Discretion in granting concealed
carry licenses appears to be limited to a determination of
whether the applicant “pose[s] a danger to himself, herself, or

10
Heller “was never meant ‘to clarify the entire field’ of Second
Amendment jurisprudence,” Kachalsky, 701 F.3d at 89
(quoting Heller, 554 U.S. at 635), but rather struck down a
single law that “ran roughshod” over D.C. residents’
individual right to possess usable handguns in the home, id. at
88. Hence, the Seventh Circuit in Moore may have read
Heller too broadly. As the Seventh Circuit itself had earlier
stated in United States v. Skoien, 614 F.3d 638, 640 (7th Cir.
2010) (en banc), cert. denied, 131 S. Ct. 1674 (2011), Heller’s
language “warns readers not to treat Heller as containing
broader holdings than the Court set out to establish: that the
Second Amendment created individual rights, one of which is
keeping operable handguns at home for self-defense.” Id.
(emphasis added).

Appellants contend also that “[t]ext, history, tradition
and precedent all confirm that [individuals] enjoy a right to
publicly carry arms for their defense.” Appellants’ Brief 12
(emphasis added). At this time, we are not inclined to address
this contention by engaging in a round of full-blown historical
analysis, given other courts’ extensive consideration of the
history and tradition of the Second Amendment. See, e.g.,
Heller, 554 U.S. at 605-619 (“We now address how the
Second Amendment was interpreted from immediately after
its ratification through the end of the 19th century.”). We
reject Appellants’ contention that a historical analysis leads
inevitably to the conclusion that the Second Amendment
confers upon individuals a right to carry handguns in public

others, or a threat to public safety.” Firearm Concealed Carry
Act, Illinois Public Act 098-0063, available at
http://www.ilga.gov/legislation/publicacts/98/PDF/098-
0063.pdf.

11
for self-defense. As the Second Circuit observed in
Kachalsky, “[h]istory and tradition do not speak with one
voice here. What history demonstrates is that states often
disagreed as to the scope of the right to bear arms, whether
the right was embodied in a state constitution or the Second
Amendment.” 701 F.3d at 91.

For these reasons, we decline to definitively declare
that the individual right to bear arms for the purpose of self-
defense extends beyond the home, the “core” of the right as
identified by Heller. We do, however, recognize that the
Second Amendment’s individual right to bear arms may have
some application beyond the home. Ultimately, as our Court
did in Marzzarella, we refrain from answering this question
definitively because it is not necessary to our conclusion.

V.

Assuming that the Second Amendment individual right
to bear arms does apply beyond the home, we next consider
whether or not the requirement that applicants demonstrate a
“justifiable need” to publicly carry a handgun for self-defense
burdens conduct within the scope of that Second Amendment
guarantee. See Marzzarella, 614 F.3d at 92. As this Court has
stated, certain longstanding regulations are “exceptions” to
the right to keep and bear arms, such that the conduct they
regulate is not within the scope of the Second Amendment.
See United States v. Barton, 633 F.3d 168, 172 (3d Cir.
2011); United States v. Huet, 665 F.3d 588, 600 (3d Cir.
2012). Here, we agree with the District Court that even if
some protected right to carry arms outside the home exists,
the challenged requirement that applicants demonstrate a
“justifiable need” to obtain a permit to publicly carry a

12
handgun for self-defense qualifies as a “longstanding,”
“presumptively lawful” regulation.

In Heller the Supreme Court noted that nothing in its
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”
and identified these “regulatory measures” as “presumptively
lawful” ones. 554 U.S. at 571, 571 n.26. It then stated that the
presumptively lawful regulations it identified by name did not
compose an “exhaustive” list, but the Court did not provide
guidance on how to identify other regulations that may
qualify. Id.

Exploring the meaning of “presumptively lawful,” this
Court has stated that “presumptively lawful” regulatory
measures are “exceptions to the Second Amendment
guarantee.” Marzzarella, 614 F.3d at 91.7 Acknowledging that

7
As this Court stated in Marzzarella:

We recognize the phrase “presumptively
lawful” could have different meanings under
newly enunciated Second Amendment doctrine.
On the one hand, this language could be read to
suggest the identified restrictions are
presumptively lawful because they regulate
conduct outside the scope of the Second
Amendment. On the other hand, it may suggest
the restrictions are presumptively lawful
because they pass muster under any standard of
scrutiny. Both readings are reasonable

13
the exceptions identified in Heller “all derived from historical
regulations,” the Marzzarella Court stated that “it is not clear
that pre-ratification presence is the only avenue to a
categorical exception.” Id. at 93. Although Marzzarella stated
also that “prudence counsels caution when extending [the]
recognized [Heller] exceptions to novel regulations
unmentioned by Heller,” 614 F.3d at 93, we nevertheless
conclude, for the reasons that follow, that the requirement that
applicants demonstrate a “justifiable need” to publicly carry a
handgun for self-defense is a presumptively lawful,
longstanding licensing provision under the teachings of Heller
and Marzzarella.

The “justifiable need” standard Appellants challenge
has existed in New Jersey in some form for nearly 90 years.
See Siccardi v. State, 284 A.2d 533, 538 (N.J. 1971).
Beginning in 19248 New Jersey “directed that no persons
(other than those specifically exempted such as police officers
and the like) shall carry [concealed] handguns except

interpretations, but we think the better reading,
based on the text and the structure of Heller, is
the former—in other words, that these
longstanding limitations are exceptions to the
right to bear arms.

614 F.3d at 91.
8
In 1905, New Jersey enacted a statute providing for criminal
punishment of the concealed carrying of “any revolver, pistol,
[or] firearm,” but allowed an exception for those with
permits. Compiled Statutes of New Jersey, Vol. II., 1759
(Soney & Sage 1911). It does not appear, however, that the
law contained any standards for issuance of such permits. Id.

14
pursuant to permits issuable only on a showing of ‘need.’” Id.
(internal citations omitted). In 1966, New Jersey amended its
laws to prohibit individuals from carrying handguns in public,
in any manner, without first obtaining a permit, and again
conditioned the issuance of such permits on a showing of
need. The predecessor to the Handgun Permit Law
subsequently underwent multiple revisions, the requirement
of “need” enduring each, and ultimately the present-day
standard of “justifiable need” became statutorily enshrined in
1978.

New Jersey’s longstanding handgun permitting schema
is not an anomaly. Many recent judicial opinions have
discussed historical laws regulating or prohibiting the
carrying of weapons in public. See, e.g., Peterson v. Martinez,
707 F.3d 1197, 1201 (10th Cir. 2013) (“extending” the
recognized Heller exceptions to cover regulations on the
carrying of concealed firearms, stating that “[i]n light of our
nation’s extensive practice of restricting citizens’ freedom to
carry firearms in a concealed manner, we hold that this
activity does not fall within the scope of the Second
Amendment’s protections”). In the 19th Century, “[m]ost
states enacted laws banning the carrying of concealed
weapons,” and “[s]ome states went even further than
prohibiting the carrying of concealed weapons . . . bann[ing]
concealable weapons (subject to certain exceptions)
altogether whether carried openly or concealed.” Kachalsky,
701 F.3d at 95-96. As Appellants correctly note, some state
courts determined that prohibitions on concealed carrying
were permissible because open carrying remained available as
an avenue for public carrying. But those state court
determinations do not compel us to conclude that the
“justifiable need” standard, which in New Jersey must be met

15
to carry openly or concealed, fails to qualify as a
“longstanding,” “presumptively lawful” exception to the
Second Amendment guarantee. The “justifiable need”
standard fits comfortably within the longstanding tradition of
regulating the public carrying of weapons for self-defense. In
fact, it does not go as far as some of the historical bans on
public carrying; rather, it limits the opportunity for public
carrying to those who can demonstrate a justifiable need to do
so. See id. at 90 (discussing states that once “banned the
carrying of pistols and similar weapons in public, both in a
concealed or an open manner”) (citing Ch. 96, §§ 1–2, 1881
Ark. Acts at 191–92; Ch. 13, § 1, 1870 Tenn. Acts at 28; Act
of Apr. 12, 1871, ch. 34, § 1, 1871 Tex. Gen. Laws at 25; Act
of Dec. 2, 1875, ch. 52, § 1, 1876 Wyo. Terr. Comp. Laws, at
352).9

A close analogue to the New Jersey standard can be
found in New York’s permit schema, which has required a

9
Contrary to the Dissent’s suggestion, requiring
demonstration of a “justifiable need” prior to issuance of a
permit to carry openly or concealed does not amount to “a
complete prohibition on public carry.” Dissenting Opinion 19.
Although the Dissent eventually acknowledges that New
Jersey is merely regulating public carry, see id. at 24, it takes
pains to refer to New Jersey’s approach as a “prohibition,”
referring to New Jersey’s schema as “a prohibition against
both open and concealed carry without a permit . . . .” Id. at
21 (emphasis added). This obfuscates what New Jersey is
actually doing. It is regulating public carry by imposing an
objective standard for issuance of a public carry permit, and
its regulation is a longstanding, presumptively constitutional
one.

16
showing of need, or “proper cause,” for a century. In 1913
New York determined that a reasonable method for
addressing the dangers inherent in the carrying of handguns in
public was to limit handgun possession in public to those
showing “proper cause” for the issuance of a permit.
Kachalsky, 701 F.3d at 85 (citing 1913 Laws of N.Y., ch.
608, at 1627-1630). In combination with New York’s ban on
open carrying, typical New Yorkers desiring to carry a
handgun in public must demonstrate “proper cause,” just as
typical New Jerseyans must demonstrate “justifiable need.”10
As the District Court noted, New York’s statute was “adopted
in the same era that states began adopting the felon in
possession statutes that Heller explicitly recognized as being
presumptively lawful longstanding regulations.” District
Court Opinion 32. The D.C. Circuit in Heller v. District of
Columbia, 670 F.3d 1244, 1253 (D.C. Cir. 2011) [Heller II],
stated that the Supreme Court “considered ‘prohibitions on
the possession of firearms by felons’ to be ‘longstanding’
although states did not start to enact them until the early 20th
century.” Simply put, we need not find that New Jersey and
other states, at the time of the adoption of the Bill of Rights,
required a particularized showing of objective justification to
carry a handgun.11 Accordingly, New York’s adoption of a

10
Here, we use the phrase “typical” to refer to persons in
New York and New Jersey who do not fall into any of the
statutorily specified categories of persons who may carry a
firearm in public without demonstrating “proper cause” or
“justifiable need,” respectively. Accordingly, the individual
plaintiffs in this case are “typical,” as they do not fall into any
of those specified categories.
11
In Barton, 633 F.3d at 173, we explained that the “first
federal statute disqualifying felons from possessing firearms

17
“proper cause” standard in 1913, 11 years before New Jersey
required that permits be issued only upon a showing of
“need,” supports our conclusion that New Jersey’s “justifiable
need” standard may be upheld as a longstanding regulation.12

was enacted in 1938,” adding that “Congress did not bar non-
violent felons from possessing guns until 1961.” Our sister
courts have likewise recognized that a firearms regulation
may be “longstanding” and “presumptively lawful” even if it
was only first enacted in the 20th century. See National Rifle
Ass’n of America, Inc. v. Bureau of Alcohol, Tobacco,
Firearms, and Explosives, 700 F.3d 185, 196-97 (5th Cir.
2012) (upholding as a “longstanding” provision a federal
statute prohibiting transfer of firearms from federal licensees
to individuals under age 21, which Congress did not adopt
until 1968); United States v. Skoien, 614 F.3d 638, 640-41
(7th Cir. 2010) (explaining that 18 U.S.C. § 922(g)(4), which
forbids firearm possession by a person who has been
adjudicated to be mentally ill, was enacted in 1968). “After
all, Heller considered firearm possession bans on felons and
the mentally ill to be longstanding, yet the current versions of
these bans are of mid–20th century vintage.” National Rifle
Ass’n, 700 F.3d at 196.
12
The Dissent suggests that the longstanding nature of New
York’s “proper cause” standard cannot support our
conclusion that the “justifiable need” standard qualifies as a
longstanding regulation. It states that the “Second Circuit . . .
upheld New York’s law because it survived intermediate
scrutiny, not because it evaded Second Amendment
cognizance on account of its longstandingness.” Dissenting
Opinion 26. We agree that this is what the Kachalsky court
did, but disagree that its decision to resolve the case solely
through intermediate scrutiny requires that we do the same

18
 We discern no hint in the Second Amendment
jurisprudence of either the Supreme Court or this Court that
the analysis of a particular regulation in a particular
jurisdiction should turn entirely on the historical experience
of that jurisdiction alone. To the contrary, in Barton, our
analysis of the constitutionality of a federal firearm restriction
included consideration of the fact that at least seven state
legislatures “had adopted bans on the carrying of concealed
weapons by violent offenders” prior to 1923. 633 F.3d at 173.

Consequently, assuming that the Second Amendment
confers upon individuals some right to carry arms outside the
home, we would nevertheless conclude that the “justifiable
need” standard of the Handgun Permit Law is a longstanding
regulation that enjoys presumptive constitutionality under the
teachings articulated in Heller and expanded upon in our
Court’s precedent. Accordingly, it regulates conduct falling
outside the scope of the Second Amendment’s guarantee.

VI.

As discussed above, we believe that the “justifiable
need” standard of the Handgun Permit Law qualifies as a
“longstanding,” “presumptively lawful” regulation that
regulates conduct falling outside the scope of the Second
Amendment’s guarantee. Consequently, we need not move to
the second step of Marzzarella to apply means-end scrutiny,
but we have decided to do so because the constitutional issues
presented to us in this new era of Second Amendment
jurisprudence are of critical importance. Even assuming that

here. We cite to Kachalsky here merely for its description of
New York’s law and standard.

19
the “justifiable need” standard is not a longstanding
regulation enjoying presumptive constitutionality, at the
second step of Marzzarella it withstands the appropriate,
intermediate level of scrutiny, and accordingly we would
uphold the continued use of the standard on this basis as well.

A.

As a preliminary matter, we reject Appellants’
invitation to apply First Amendment prior restraint doctrine
rather than traditional means-end scrutiny. Appellants
contend that we should apply the First Amendment prior
restraint doctrine because application of the Handgun Permit
Law’s “justifiable need” standard vests licensing officials
with “unbridled discretion.” Appellants correctly note that
this Court has stated that “the structure of First Amendment
doctrine should inform our analysis of the Second
Amendment.” See Marzzarella, 614 F.3d at 89 n.4. This
statement, however, reflects this Court’s willingness to
consider the varying levels of means-end scrutiny applied to
First Amendment challenges when determining what level of
scrutiny to apply to a Second Amendment challenge. It does
not compel us to import the prior restraint doctrine. Indeed,
this Court has rejected a similar invitation to import the First
Amendment overbreadth doctrine to the Second Amendment
context. See Barton, 633 F.3d at 172 n.3.

Even if we were to apply the prior restraint doctrine, it
would not compel the result sought by Appellants because
New Jersey’s Handgun Permit Law does not vest licensing
officials with “unbridled discretion.” Appellants incorrectly
characterize the “justifiable need” standard as a highly
discretionary, seat-of-the-pants determination. On the

20
contrary, the standards to be applied by licensing officials are
clear and specific, as they are codified in New Jersey’s
administrative code and have been explained and applied in
numerous New Jersey court opinions. Moreover, they are
accompanied by specific procedures13 that provide
“safeguards against arbitrary official action.” See Siccardi,
284 A.2d at 539. Accordingly, we conclude that even if we
were to apply the prior restraint doctrine, the Handgun Permit
Law would survive its application.

B.

Having determined that it would not be appropriate to
import First Amendment prior restraint doctrine to our
analysis of Appellants’ Second Amendment challenge here,
we conclude that the appropriate level of traditional means-
end scrutiny to apply would be intermediate scrutiny.

As laws burdening protected conduct under the First
Amendment are susceptible to different levels of scrutiny,
similarly “the Second Amendment can trigger more than one
particular standard of scrutiny, depending, at least in part,
upon the type of law challenged and the type of Second
Amendment restriction at issue.” United States v. Reese, 627
F.3d 792, 801 (10th Cir. 2010) (citing Marzzarella, 614 F.3d
at 96-97) (internal quotation marks and alterations omitted).

13
See N.J.S.A. § 2C:58-4(e) (allowing an applicant whose
application is denied by the chief police officer or
superintendent to “request a hearing in the Superior Court . . .
by filing a written request for such a hearing within 30 days
of the denial”).

21
 Three levels of scrutiny are potentially available:
rational basis review, intermediate scrutiny, and strict
scrutiny. Marzzarella, 614 F.3d at 95-99. Under rational basis
review, we would “presume[] the law is valid and ask[] only
whether the statute is rationally related to a legitimate state
interest,” id. at 95-96 n.13 (citing City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 440 (1985)), but Heller
makes clear that we may not apply rational basis review to a
law that burdens protected Second Amendment conduct, id. at
95-96 (citing Heller, 554 U.S. at 628 n.27). At the other end
of the spectrum is strict scrutiny, which demands that the
statute be “narrowly tailored to promote a compelling
Government interest . . . [;] [i]f a less restrictive alternative
would serve the Government’s purpose, the legislature must
use that alternative.” United States v. Playboy Entm’t Grp.,
Inc., 529 U.S. 803, 813 (2000) (internal citations omitted). In
between is intermediate scrutiny, under which the
government’s asserted interest must be more than just
legitimate but need not be compelling. It must be “significant,
substantial, or important.” Marzzarella, 614 F.3d at 98
(internal quotation marks and citations omitted). Additionally,
“the fit” between the asserted interest and the challenged law
need not be “perfect,” but it must be “reasonable”14 and “may
not burden more [conduct] than is reasonably necessary.” Id.

14
Marzzarella has articulated for this Court that Second
Amendment intermediate scrutiny requires a fit that is
“reasonable.” See 614 F.3d at 98. We note that the Fourth
Circuit also requires a “reasonable” fit, although the Second
Circuit requires a “substantial” fit. Compare Woollard v.
Gallagher, 712 F.3d 865 (4th Cir. 2013) (stating that the fit
must be “reasonable,” but need not be perfect), with

22
 In Marzzarella, this Court applied intermediate
scrutiny to evaluate the constitutionality of a federal law
prohibiting possession of firearms with obliterated serial
numbers. 614 F.3d at 97. Appellants contend that Marzzarella
should not inform our analysis of the appropriate level of
scrutiny to apply here because the law at issue in Marzzarella
“d[id] not severely limit the possession of firearms.” See id.
They contend that only strict scrutiny could possibly apply to
the case at bar because the burden imposed by the “justifiable
need” standard “is substantial, implicating the core rights of
responsible, law-abiding citizens to engage in an activity
whose protection is literally enumerated.” Appellants’ Brief
52. We disagree.

In the First Amendment context, strict scrutiny is
triggered when the government imposes content-based
restrictions on speech in a public forum. See Pleasant Grove
City v. Summum, 555 U.S. 460, 469 (2009). In essence, this
is the core of the First Amendment, just like the core of the
right conferred upon individuals by the Second Amendment
is the right to possess usable handguns in the home for self-
defense. See Kachalsky, 701 F.3d at 93 (“[W]e believe that
applying less than strict scrutiny when the regulation does not
burden the ‘core’ protection of self-defense in the home
makes eminent sense in this context and is in line with the
approach taken by our sister circuits.”). We agree with the
District Court, therefore, that strict scrutiny should not apply
here, because “[i]f the Second Amendment protects the right
to carry a handgun outside the home for self-defense at all,

Kachalsky, 701 F.3d at 97 (stating that the fit must be
“substantial” but citing Marzzarella for the standard).

23
that right is not part of the core of the Amendment.” District
Court Opinion 39. Accordingly, we will apply intermediate
scrutiny here.

C.

As stated above, under intermediate scrutiny the
government must assert a significant, substantial, or important
interest; there must also be a reasonable fit between that
asserted interest and the challenged law, such that the law
does not burden more conduct than is reasonably necessary.
Marzzarella, 614 F.3d at 98. When reviewing the
constitutionality of statutes, courts “accord substantial
deference to the [legislature’s] predictive judgments.” See
Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997).

D.

The State of New Jersey has, undoubtedly, a
significant, substantial and important interest in protecting its
citizens’ safety. See United States v. Salerno, 481 U.S. 739,
745 (1987).15 The issue here, therefore, is whether there is a
“reasonable fit” between this interest in safety and the means
chosen by New Jersey to achieve it: the Handgun Permit Law
and its “justifiable need” standard.16

15
Appellants do not dispute this point.
16
The Dissent repeatedly states that we do not consider the
“justifiable need requirement itself” but rather “examin[e] the
permitting requirement as a whole.” See, e.g., Dissenting
Opinion 29, 36. This is a mischaracterization, to which we
respond, res ipsa loquitur.

24
 1.

The predictive judgment of New Jersey’s legislators is
that limiting the issuance of permits to carry a handgun in
public to only those who can show a “justifiable need” will
further its substantial interest in public safety.17 New Jersey
contends that the “justifiable need” standard “precisely fits
New Jersey’s interest in assessing the corresponding dangers
and risk to the public and to the person seeking to carry a
handgun. The [standard] provides a means to determine
whether the increase in risk and danger borne by the public is
justified by a demonstrated risk and danger borne to the
person seeking to carry a handgun.” Appellees’ Brief 34. To
be sure, New Jersey has not presented us with much evidence
to show how or why its legislators arrived at this predictive
judgment. New Jersey’s counsel acknowledges that “there is
no available commentary which would clarify whether or not
the Legislature considered statistical information to support

17
New Jersey has asserted that the interests served by the
Handgun Permit Law and its “justifiable need” standard
include “combating handgun violence,” “combating the
dangers and risks associated with the misuse and accidental
use of handguns,” and “reduc[ing] the use of handguns in
crimes.” Appellees’ Brief 34. All of these interests fall under
the substantial government interest in “ensur[ing] the safety
of all of its citizenry.” Id. The Dissent improperly narrows the
“fit” inquiry to consider only one asserted interest, writing:
“we must ask whether the State has justified its conclusion
that those with a special need for self-defense are less likely
to misuse or accidently use a handgun than those who do not
have a special need.” Dissenting Opinion 29.

25
the public safety purpose of the State’s Carry Permit Law.”
Appellees’ February 27, 2013 Letter at 1-2.

New Jersey’s inability to muster legislative history
indicating what reports, statistical information, and other
studies its legislature pondered when it concluded that
requiring handgun permit applicants to demonstrate a
“justifiable need” would reasonably further its substantial
public safety interest, notwithstanding the potential burden on
Second Amendment rights, is unsurprising. First, at each
relevant moment in the history of New Jersey gun laws,
spanning from 190518 to 1981,19 the legislature could not have
foreseen that restrictions on carrying a firearm outside the
home could run afoul of a Second Amendment that had not
yet been held to protect an individual right to bear arms,
given that the teachings of Heller were not available until that
landmark case was decided in 2008. Moreover, Second
Amendment protections were not incorporated against the
states until 2010, when the Supreme Court issued its
splintered opinion in McDonald. Simply put, New Jersey’s
legislators could not have known that they were potentially
burdening protected Second Amendment conduct, and as

18
See Compiled Statutes of New Jersey, Vol. II., 1759
(Soney & Sage 1911) (reprinting 1905 statute stating “[a]ny
person who shall carry any revolver, pistol, firearm,
bludgeon, blackjack, knuckles, sand-bag, slung-shot or other
deadly, offensive or dangerous weapon, or any stiletto, dagger
or razor or any knife with a blade five inches in length or over
concealed in or about his clothes or person, shall be guilty of
a misdemeanor”).
19
New Jersey’s permit schema as it stands today was last
amended in 1981. N.J. Stat. Ann. § 2C:58-4.

26
such we refuse to hold that the fit here is not reasonable
merely because New Jersey cannot identify a study or tables
of crime statistics upon which it based its predictive
judgment. As the District Court correctly concluded, New
Jersey’s legislature “has continually made the reasonable
inference that given the obviously dangerous and deadly
nature of handguns, requiring a showing of particularized
need for a permit to carry one publicly serves the State’s
interests in public safety.” District Court Opinion 42. To
require applicants to demonstrate a “justifiable need” is a
reasonable implementation of New Jersey’s substantial,
indeed critical, interest in public safety. See IMS Health, Inc.
v. Ayotte, 550 F.3d 42, 55 (1st Cir. 2008) (explaining that
under intermediate scrutiny states are “allowed to justify
speech restrictions by reference to studies and anecdotes,”
and also by reference to “history, consensus, and simple
common sense”) (internal quotation marks omitted),
abrogated on other grounds by 131 S. Ct. 2653 (2011).

2.

Legislators in other states, including New York and
Maryland, have reached this same predictive judgment and
have enacted similar laws as a means to improve public
safety. As mentioned above, in 1913 New York enacted a law
requiring applicants to demonstrate “proper cause—a special
need for self-protection.” Kachalsky, 701 F.3d at 84.
Maryland law allows issuance of a permit to carry a handgun
in public only upon a finding that an applicant “has good and
substantial reason to wear, carry, or transport a handgun, such
as a finding that the permit is necessary as a reasonable
precaution against apprehended danger.” Woollard v.

27
Gallagher, 712 F.3d 865 (4th Cir. 2013) (citing Md. Code
Ann., Pub. Safety § 5-306(a)(5)(ii)).

In Siccardi, the Supreme Court of New Jersey quoted
from a staff report to the National Commission on the Causes
and Prevention of Violence by Newton and Zimring, who:

evaluated the utility of firearms as weapons of
defense against crime. They found that private
possession of a handgun is rarely an effective
means of self-protection; and so far as the
carrying of handguns is concerned, they noted
that “no data exist which would establish the
value of firearms as a defense against attack on
the street” though “there is evidence that the
ready accessibility of guns contributes
significantly to the number of unpremeditated
homicides and to the seriousness of many
assaults.”

Siccardi, 284 A.2d at 537 (citing Newton and Zimring,
Firearms and Violence in American Life, p. 67 (1968)).

Although we lack an explicit statement by New
Jersey’s legislature explaining why it adopted the “justifiable
need” standard, its 1978 decision to change “need” to
“justifiable need” suggests that the legislature agreed with
Siccardi’s reasoning and ultimate conclusion. See Siccardi,
284 A.2d at 535 (approving denial of a permit for failure to
“justify a need for carrying a weapon”) (emphasis added). As
discussed above in Section I, the executive branch similarly
indicated its approval of Siccardi when it defined “justifiable

28
need” in the Administrative Code by closely tracking the
Supreme Court of New Jersey’s language. See id. at 540.

3.

We must emphasize that the fit between the challenged
law and the interest in public safety need only be
“reasonable.” As New Jersey correctly notes, the Handgun
Permit Law and its “justifiable need” standard provide “a
means to determine whether the increase in risk and danger
borne by the public is justified by a demonstrated risk and
danger borne to the person seeking to carry a handgun.”
Appellees’ Brief 34. By contrast, Appellants contend that
enabling qualified, responsible, law abiding people to defend
themselves from crime by carrying a handgun, regardless of
their ability to show a “justifiable need,” serves the interest of
public safety. New Jersey legislators, however, have made a
policy judgment that the state can best protect public safety
by allowing only those qualified individuals who can
demonstrate a “justifiable need” to carry a handgun to do so.
In essence, New Jersey’s schema takes into account the
individual’s right to protect himself from violence as well as
the community at large’s interest in self-protection. It is New
Jersey’s judgment that when an individual carries a handgun
in public for his or her own defense, he or she necessarily
exposes members of the community to a somewhat
heightened risk that they will be injured by that handgun.
New Jersey has decided that this somewhat heightened risk to
the public may be outweighed by the potential safety benefit
to an individual with a “justifiable need” to carry a handgun.
Furthermore, New Jersey has decided that it can best
determine when the individual benefit outweighs the

29
increased risk to the community through careful case-by-case
scrutiny of each application, by the police and a court.20

Other states have determined that it is unnecessary to
conduct the careful, case-by-case scrutiny mandated by New
Jersey’s gun laws before issuing a permit to publicly carry a
handgun. Even accepting that there may be conflicting
empirical evidence as to the relationship between public
handgun carrying and public safety, this does not suggest, let
alone compel, a conclusion that the “fit” between New
Jersey’s individualized, tailored approach and public safety is
not “reasonable.”

4.

20
As the Supreme Court of New Jersey has explained:

So concerned is the [New Jersey] Legislature
about this licensing process that it allows only a
Superior Court judge to issue a permit, after
applicants first obtain approval from their local
chief of police. In this (as perhaps in the case of
election laws) the Legislature has reposed what
is essentially an executive function in the
judicial branch. We have acceded to that
legislative delegation because “[t]he New
Jersey Legislature has long been aware of the
dangers inherent in the carrying of handguns
and the urgent necessity of their
regulation . . . .”

In re Preis, 573 A.2d at 151 (quoting Siccardi, 284 A.2d at
538).

30
 As to the requirement that the “justifiable need”
standard not burden more conduct than is reasonably
necessary, we agree with the District Court that the standard
meets this requirement. “Unlike strict scrutiny review, we are
not required to ensure that the legislature’s chosen means is
‘narrowly tailored’ or the least restrictive available means to
serve the stated governmental interest.” Kachalsky, 701 F.3d
at 97. New Jersey engages in an individualized consideration
of each person’s circumstances and his or her objective,
rather than subjective, need to carry a handgun in public. This
measured approach neither bans public handgun carrying nor
allows public carrying by all firearm owners; instead, the
New Jersey Legislature left room for public carrying by those
citizens who can demonstrate a “justifiable need” to do so.21
We refuse Appellants’ invitation to intrude upon the sound
judgment and discretion of the State of New Jersey, and we
conclude that the “justifiable need” standard withstands
intermediate scrutiny.

21
Although the Dissent acknowledges that the “fit” required
need only be “reasonable,” in application the Dissent
repeatedly demands much more of the “justifiable need”
provision than a reasonable fit. For example, the Dissent
suggests that New Jersey has failed to show “that the
justifiable need requirement is the provision that can best
determine whether the individual right to keep and bear arms
‘outweighs’ the increased risk to the community that its
members will be injured by handguns.” Dissenting Opinion
38 (emphasis added). Of course, this far overstates what must
be shown in order for a challenged regulation to survive
intermediate scrutiny.

31
 VII.

We conclude that the District Court correctly
determined that the requirement that applicants demonstrate a
“justifiable need” to publicly carry a handgun for self-defense
qualifies as a “presumptively lawful,” “longstanding”
regulation and therefore does not burden conduct within the
scope of the Second Amendment’s guarantee. We conclude
also that the District Court correctly determined that even if
the “justifiable need” standard fails to qualify as such a
regulation, it nonetheless withstands intermediate scrutiny
and is therefore constitutional. Accordingly, we will affirm
the judgment of the District Court.

32
Drake v. Filko, No. 12-1150

HARDIMAN, Circuit Judge, dissenting.

The Second Amendment states: “A well regulated
Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be
infringed.” In District of Columbia v. Heller, 554 U.S. 570
(2008), the Supreme Court held that the Second Amendment
protects an individual right to keep and bear arms for
purposes of self-defense. Two years later, the Court applied
the Second Amendment to the States in McDonald v. City of
Chicago, 130 S. Ct. 3020 (2010). Because I am convinced
that New Jersey’s law conditioning the issuance of a permit to
carry a handgun in public on a showing of “justifiable need”
contravenes the Second Amendment, I respectfully dissent.

I

As befits a diverse nation of fifty sovereign States and
countless municipalities, gun regulation in the United States
resembles a patchwork quilt that largely reflects local custom.
Regarding the public carry of firearms, two dichotomies are
relevant to this case. First, in many States, laws distinguish
between open carry of a handgun—such as in a visibly
exposed belt holster—and concealed carry—such as hidden
from view under clothing or in a pocket. Thirty-one States
currently allow open carry of a handgun without a permit,
twelve States (including New Jersey) allow open carry with a
permit,1 and seven States prohibit open carry entirely.2 By
1
See Conn. Gen. Stat. § 29-35; Ga. Code Ann. § 16-
11-126(h); Haw. Rev. Stat. § 134-9(c); Iowa Code Ann.
§ 724.4(1), (4)(i); Md. Code Ann., Crim. Law § 4-
contrast, four States and parts of Montana allow concealed
carry without a permit3 and forty-four States allow concealed
carry with a permit.4 One State, Illinois, prohibited public

203(a)(1)(i), (b)(2); Mass. Gen. Laws ch. 269, § 10(a)(2);
Minn. Stat. § 624.714(1a); N.J. Stat. Ann. § 2C:39-5(b); Okla.
Stat. tit. 21, §§ 1289.6, 1290.5(A); Tenn. Code Ann. § 39-17-
1351; Utah Code Ann. §§ 53-5-704(1)(c), 76-10-505(1)(b).
In California, open carry of a loaded handgun is permitted
with a license in rural counties, but prohibited elsewhere. See
Cal. Penal Code §§ 25850, 26150(b)(2).
2
See Ark. Code Ann. §§ 5-73-120, 5-73-315; Fla. Stat.
§ 790.053(1); 720 Ill. Comp. Stat. 5/24-1; N.Y. Penal Law
§§ 265.03(3), 400.00(2)(f); R.I. Gen. Laws §§ 11-47-8(a), 11-
47-11(a); S.C. Code Ann. §§ 16-23-20(12), 23-31-215; Tex.
Penal Code Ann. § 46.035(a).
3
If one can lawfully possess a handgun, one can
lawfully carry it concealed without a permit in Alaska,
Arizona, Vermont, and Wyoming. Nicholas J. Johnson et al.,
Firearms Law and the Second Amendment 21 (2012).
Although Montana requires a permit for concealed carrying
of a handgun in cities and towns, concealed carrying of a
handgun without a permit is allowed for “a person who is
outside the official boundaries of a city or town or the
confines of a logging, lumbering, mining, or railroad camp.”
Mont. Code Ann. § 45-8-317(1)(i); see id. §§ 45-8-316(1),
45-8-321.
4
See Ala. Code §§ 13A-11-50, 13A-11-73; Ark. Code
Ann. § 5-73-315(a); Cal. Penal Code § 26150; Colo. Rev.
Stat. § 18-12-105(2)(c); Conn. Gen. Stat. § 29-35(a); Del.

2
carry of handguns altogether, but that law was struck down as
violative of the Second Amendment by the United States
Court of Appeals for the Seventh Circuit in December 2012.
See Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012).

The second relevant dichotomy is between “shall-
issue” and “may-issue” permitting regimes. In the forty shall-

Code Ann. tit. 11, § 1442; Fla. Stat. § 790.06; Ga. Code Ann.
§ 16-11-126; Haw. Rev. Stat. § 134-9; Idaho Code Ann. § 18-
3302(7); Ind. Code § 35-47-2-1(a); Iowa Code § 724.4(4)(i);
Kan. Stat. Ann. § 21-6302(d)(8); Ky. Rev. Stat. Ann.
§ 527.020(4); La. Rev. Stat. Ann. § 40:1379.3; Me. Rev. Stat.
tit. 25, § 2001-A; Md. Code Ann., Crim. Law § 4-203(b)(2);
Mass. Gen. Laws ch. 269, § 10(a)(2); Mich. Comp. Laws
§ 750.227(2); Minn. Stat. § 624.714(1a); Miss. Code Ann.
§§ 45-9-101, 97-37-1(1); Mo. Rev. Stat. § 571.030(1), (4);
Neb. Rev. Stat. § 28-1202(1)(a), (2); Nev. Rev. Stat.
§§ 202.350(1)(d)(3), 202.3657; N.H. Rev. Stat. Ann. § 159:4;
N.J. Stat. Ann. § 2C:39-5(b); N.M. Stat. Ann. § 30-7-2(A)(5);
N.Y. Penal Law §§ 265.03(3), 400.00(2)(f); N.C. Gen. Stat.
§ 14-269(a1)(2); N.D. Cent. Code § 62.1-04-02; Ohio Rev.
Code Ann. § 2923.12; Okla. Stat. tit. 21, §§ 1290.4, 1290.5;
Or. Rev. Stat. §§ 166.250(1)(a), 166.260(1)(h); 18 Pa. Cons.
Stat. Ann. § 6106(a)(1); R.I. Gen. Laws § 11-47-8(a); S.C.
Code Ann. § 16-23-460(B)(1); S.D. Codified Laws § 22-14-9;
Tenn. Code Ann. § 39-17-1351; Tex. Gov’t Code Ann.
§ 411.171 et seq.; Utah Code Ann. § 76-10-504; Va. Code
Ann. § 18.2-308; Wash. Rev. Code § 9.41.050(1)(a); W. Va.
Code § 61-7-3; Wis. Stat. § 941.23(2)(d).

3
issue States,5 permitting officials must grant an application
for handgun carry permits so long as the applicant satisfies
certain objective criteria, such as a background check and
completion of a safety course. See Nicholas J. Johnson et al.,
Firearms Law and the Second Amendment 21 (2012). In

5
See Alaska Stat. § 18.65.700; Ark. Code Ann. § 5-73-
309; Ariz. Rev. Stat. § 13-3112; Colo. Rev. Stat. § 18-12-
203(1); Fla. Stat. § 790.06(2); Ga. Code Ann. § 16-11-129;
Idaho Code Ann. § 18-3302(1); Ind. Code § 35-47-2-3; Iowa
Code § 724.7(1); Kan. Stat. Ann. § 75-7c03; Ky. Rev. Stat.
Ann. § 237.110(4); La. Rev. Stat. Ann. § 40:1379.3(A)(1);
Me. Rev. Stat. tit. 25, § 2003(1); Mich. Comp. Laws
§ 28.425b(7); Minn. Stat. § 624.714(2)(b); Miss. Code Ann.
§ 45-9-101(6)(c); Mo. Rev. Stat. § 571.101(1); Mont. Code
Ann. § 45-8-321(1); Neb. Rev. Stat. § 69-2430(3)(b), 69-
2433; Nev. Rev. Stat. § 202.3657(3); N.H. Rev. Stat. Ann.
§ 159:6(I)(a); N.M. Stat. Ann. § 29-19-4(A); N.C. Gen. Stat.
§ 14-415.12; N.D. Cent. Code §§ 62.1-04-03(1); Ohio Rev.
Code Ann. § 2923.125(D); Okla. Stat. tit. 21, § 1290.12(12);
Or. Rev. Stat. § 166.291; 18 Pa. Cons. Stat. Ann.
§ 6109(e)(1); S.C. Code Ann. § 23-31-215(A)-(C); S.D.
Codified Laws § 23-7-7; Tenn. Code Ann. § 39-17-1351;
Tex. Gov’t Code Ann. § 411.172; Utah Code Ann. § 53-5-
704; Va. Code Ann. § 18.2-308.02; Wash. Rev. Code
§ 9.41.070; W. Va. Code § 61-7-4; Wis. Stat. § 175.60; Wyo.
Stat. Ann. § 6-8-104(b). In addition, Alabama and
Connecticut “by statute allow considerable police discretion
but, in practice, commonly issue permits to applicants who
meet the same standards as in shall-issue states.” Johnson,
supra, at 21; see also Ala. Code § 13A-11-75; Conn. Gen.
Stat. § 29-28(a).

4
these jurisdictions, a general desire for self-defense is
sufficient to obtain a handgun.

Eight States, including New Jersey, have may-issue
permitting regimes.6 See id. In these States, local authorities
have more discretion to decide who may be granted
permission to carry a handgun, and the general desire to
defend one’s self or property is insufficient for the permit to
issue. Instead, an applicant must demonstrate “justifiable
need,”7 “proper cause,”8 or “good and substantial reason”9 to
carry a handgun. Although these standards are phrased
differently, they are essentially the same—the applicant must
show a special need for self-defense distinguishable from that
of the population at large, often through a specific and
particularized threat of harm. See Maj. Typescript at 5 & n.2
(discussing New Jersey law); Woollard v. Gallagher, 712
F.3d 865, 869–70 (4th Cir. 2013) (discussing Maryland law);

6
See Cal. Penal Code § 26150; Del. Code Ann. tit. 11,
§ 1441; Haw. Rev. Stat. § 134-9(a); Mass. Gen. Laws ch.
140, § 131(d); Md. Code Ann., Pub. Safety § 5-306; N.J. Stat.
Ann. § 2C:58-4(c); N.Y. Penal Law § 400.00(2)(f); R.I. Gen.
Laws § 11-47-11(a).
7
E.g., N.J. Stat. Ann. § 2C:58-4(c).
8
E.g., N.Y. Penal Law § 400.00(2)(f).
9
E.g., Md. Code Ann., Pub. Safety § 5–306(a)(5)(ii).

5
Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 86–87 (2d
Cir. 2012) (discussing New York law).10

The relative merits of shall-issue regimes versus may-
issue regimes are debatable and it is not the role of the federal
courts to determine the wisdom of either. And but for the
doctrine of incorporation, the States would be free to choose
whatever policy they desired without federal intervention.
Since McDonald, however, we find ourselves in a situation
akin to that in which the federal courts found themselves after
the Supreme Court held that the exclusionary rule applied to
the States in Mapp v. Ohio, 367 U.S. 643 (1961). Prior to that
decision, many States did not require the exclusion of
illegally obtained evidence in recognition of the “grave
adverse consequence that exclusion of relevant incriminating
evidence always entails (viz., the risk of releasing dangerous
criminals into society).” Hudson v. Michigan, 547 U.S. 586,
595 (2006); see also Elkins v. United States, 364 U.S. 206,
224–25 (1960) (in the year before Mapp, twenty-two States
had a full exclusionary rule, four States had a partial
exclusionary rule, and twenty-four States had no exclusionary
rule).

As it did with the exclusionary rule, the Supreme
Court has applied the Second Amendment to the States,
McDonald, 130 S. Ct. at 3026, and “the enshrinement of
constitutional rights necessarily takes certain policy choices
off the table,” Heller, 554 U.S. at 636. So the question
10
Of the remaining two states—Vermont and
Illinois—Vermont issues no permits to carry weapons and
public carry is allowed, whereas Illinois prohibited public
carry altogether.

6
presented is not whether New Jersey’s justifiable need
requirement is a reasonable, let alone a wise, policy choice.
Rather, we must decide whether the New Jersey statute
violates the Second Amendment.

II

With few exceptions, New Jersey law prohibits
handgun possession in public without a permit. See N.J. Stat.
Ann. § 2C:39-5(b). In addition to meeting certain age,
criminal history, and mental health requirements, an
individual seeking a permit must complete a training course,
pass a test of the State’s laws governing the use of force,
provide qualification scores from test firings administered by
a certified instructor, and demonstrate a “justifiable need” to
carry a handgun. See id. § 2C:58-4(c); N.J. Admin. Code
§ 13:54-2.4. “Justifiable need” is defined as:

the urgent necessity for self-protection, as
evidenced by 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.

N.J. Admin. Code § 13:54-2.4(d)(1). “Generalized fears for
personal safety are inadequate, and a need to protect property
alone does not suffice.” In re Preis, 573 A.2d 148, 152 (N.J.
1990).

An application for a handgun carry permit is first made
to a police official, who determines whether the applicant
meets the statutory requirements. N.J. Stat. Ann. § 2C:58-
4(c). Upon approval, the police present the application to a

7
Superior Court judge for independent review of whether the
statutory requirements, including “justifiable need,” have
been met. Id. § 2C:58-4(d). The Superior Court judge may
issue an unrestricted permit, issue a limited-type permit that
restricts the types of handguns the applicant may carry and
where or for what purposes such handguns may be carried, or
deny the application. Id. If the Superior Court denies an
application, the applicant may appeal the decision, id.
§ 2C:58-4(e), but appellate review is highly deferential, see In
re Pantano, 60 A.3d 507, 510 (N.J. Super. Ct. App. Div.
2013).

Appellants brought suit under 42 U.S.C. § 1983 to
challenge New Jersey’s justifiable need requirement, arguing
that it is incompatible with the Second Amendment. Each of
the individual appellants—a group which included a reserve
sheriff’s deputy, a civilian FBI employee, an owner of a
business that restocks ATM machines and carries large
amounts of cash, and a victim of an interstate kidnapping—
applied for a handgun carry permit, but were denied for want
of justifiable need.11

The District Court rejected their challenge in a series
of alternative holdings. Piszczatoski v. Filko, 840 F. Supp. 2d
813 (D.N.J. 2012). First, it ruled that the Second Amendment
does not protect a general right to carry a gun for self-defense
outside the home. See id. at 820–29. Second, the Court
concluded that even if the law “implicate[d] some narrow
right to carry a firearm outside the home,” the law is a
11
During the pendency of this litigation, two of the
original plaintiffs were granted permits, and thus their cases
became moot.

8
“longstanding” regulation that is presumptively
constitutional. See id. at 829–31. Finally, it determined that
even if the Second Amendment extended outside the home
and the law was not longstanding enough to be presumptively
constitutional, it would still survive intermediate scrutiny.
See id. at 831–37.

III

Pursuant to the first prong of the test we established in
United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010),
we must determine whether New Jersey’s justifiable need
requirement burdens conduct protected by the Second
Amendment. New Jersey argues—and the District Court
held—that the justifiable need requirement does not burden
conduct protected by the Second Amendment because that
right has no application beyond the confines of one’s home.
This view is based on an incorrect reading of Heller and
McDonald, both of which indicate that the Second
Amendment extends beyond the home.

First, Heller engaged in significant historical analysis
on the meaning of the text of the Second Amendment,
specifically focusing on the words “keep” and “bear” as
codifying distinct rights. See Heller, 554 U.S. at 582–84.
The Court defined “keep arms” as to “have weapons,” id. at
582, and to “bear arms” as to “wear, bear, or carry upon the
person or in the clothing or in a pocket, for the purpose of
being armed and ready for offensive or defensive action in a
case of conflict with another person,” id. at 584 (citation and
alterations omitted). To speak of “bearing” arms solely
within one’s home not only would conflate “bearing” with
“keeping,” in derogation of the Court’s holding that the verbs
codified distinct rights, but also would be awkward usage

9
given the meaning assigned the terms by the Supreme Court.
See Moore, 702 F.3d at 936 (“The right to ‘bear’ as distinct
from the right to ‘keep’ arms is unlikely to refer to the home.
To speak of ‘bearing’ arms within one’s home would at all
times have been an awkward usage. A right to bear arms thus
implies a right to carry a loaded gun outside the home.”).

In addition, the Heller Court repeatedly noted that the
Second Amendment protects an inherent right to self-defense,
see 554 U.S. at 599 (“self-defense . . . was the central
component of the right itself” (emphasis in original)); id. at
628 (“[T]he inherent right of self-defense has been central to
the Second Amendment right.”), and consistently employed
language referring to a more general right to self-defense than
one confined to the home. For example, the Court described
the Amendment’s operative clause—“to keep and bear
arms”—as “guarantee[ing] the individual right to possess and
carry weapons in case of confrontation.” Id. at 592. The
Court also defined “bear arms” to include being “armed and
ready for offensive or defensive action in a case of conflict
with another person.” Id. at 584. Obviously, confrontations
and conflicts “are not limited to the home.” Moore, 702 F.3d
at 936.

Moreover, while the Court noted that “the need for
defense of self, family, and property is most acute” in the
home, Heller, 554 U.S. at 628 (emphasis added), “that
doesn’t mean it is not acute outside the home,” Moore, 702
F.3d at 935. Instead, it “suggest[s] that some form of the
right applies where that need is not ‘most acute.’” United
States v. Masciandaro, 638 F.3d 458, 468 (4th Cir. 2011)
(Niemeyer, J., concurring). Were it otherwise, there would be
no need for the modifier “most.” This reasoning is consistent
with the Supreme Court’s historical understanding of the right

10
to keep and bear arms as “an individual right protecting
against both public and private violence,” such as in cases of
armed resistance against oppression by the Crown. Heller,
554 U.S. at 594; see also id. at 592–95.

Furthermore, Heller also recognized that the right to
bear arms was understood at the founding to “exist not only
for self-defense, but also for membership in a militia and for
hunting, neither of which is a home-bound activity.”
Masciandaro, 638 F.3d at 468 (Niemeyer, J., concurring)
(citing Heller, 554 U.S. at 598–99). Likewise, when the
Court acknowledged that the Second Amendment right was
not unlimited, it listed as presumptively lawful regulations
those “laws forbidding the carrying of firearms in sensitive
places such as schools and government buildings.” Heller,
554 U.S. at 626 (emphasis added). “If the Second
Amendment right were confined to self-defense in the home,
the Court would not have needed to express a reservation for
‘sensitive places’ outside of the home.” Masciandaro, 638
F.3d at 468 (Niemeyer, J., concurring) (emphasis in original).

Most importantly, the McDonald Court described the
holding in Heller as encompassing a general right to self-
defense. The very first sentence of McDonald states: “Two
years ago, in District of Columbia v. Heller, we held that the
Second Amendment protects the right to keep and bear arms
for the purpose of self-defense, and we struck down a District
of Columbia law that banned the possession of handguns in
the home.” McDonald, 130 S. Ct. at 3026 (citation omitted).
Describing the holding this way—first establishing the legal
principle embodied in the Second Amendment and then
explaining how it was applied—demonstrates that the legal
principle enunciated in Heller is not confined to the facts
presented in that case.

11
 Advocates of a home-bound Second Amendment,
including New Jersey and the District Court, argue that
Heller’s recognition of an individual Second Amendment
right of self-defense was inextricably tied to the home. See
Appellee Br. 15–16; Piszczatoski, 840 F. Supp. 2d at 821–22.
They cite statements in Heller such as the directive that the
District of Columbia must allow Heller “to register his
handgun and must issue him a license to carry it in the home.”
Heller, 554 U.S. at 635 (emphasis added). Also, they note
that Heller purposely left unclear the entire universe of
Second Amendment law: “And whatever else [the Second
Amendment] leaves to future evaluation, it surely elevates
above all other interests the right of law-abiding, responsible
citizens to use arms in defense of hearth and home.” Id.
(emphasis added). Finally, they cite Heller’s statement that
the Second Amendment is “not a right to keep and carry any
weapon whatsoever in any manner whatsoever and for
whatever purpose.” Id. at 626.

These arguments prove too much. In making these
comments regarding the home, the Court was merely
applying the Second Amendment to the facts at issue in the
case before it. Heller challenged the District of Columbia’s
prohibition on guns in the home, not its prohibitions on public
carry. The application of the law to the facts does not vitiate
the Court’s articulation of the right to keep and bear arms as a
general right of self-defense.

Although the majority declines to determine whether
the Second Amendment extends outside the home, see Maj.
Typescript at 12, my view that the Second Amendment
extends outside of the home is hardly novel. Indeed, the only
court of appeals to squarely address the issue has so held. See
Moore, 702 F.3d at 942 (“The Supreme Court has decided

12
that the amendment confers a right to bear arms for self-
defense, which is as important outside the home as inside.”).
In addition, we and other courts of appeals have
acknowledged in dicta that the Second Amendment applies
beyond the home. See Marzzarella, 614 F.3d at 92 (“At its
core, the Second Amendment protects the right of law-
abiding citizens to possess non-dangerous weapons for self-
defense in the home. And certainly, to some degree, it must
protect the right of law-abiding citizens to possess firearms
for other, as-yet-undefined, lawful purposes.” (internal
citations and footnote omitted)); see also Kachalsky, 701 F.3d
at 89 (“Although the Supreme Court’s cases applying the
Second Amendment have arisen only in connection with
prohibitions on the possession of firearms in the home, the
Court’s analysis suggests . . . that the Amendment must have
some application in the very different context of the public
possession of firearms.” (emphasis in original));
Masciandaro, 638 F.3d at 467 (Niemeyer, J., concurring).

In light of these precedents, I disagree with the
majority’s assertion that the Seventh Circuit “may have read
Heller too broadly” in Moore. Maj. Typescript at 11. For as
I have explained, other courts, including ours, have read
Heller the same way. See Marzzarella, 614 F.3d at 92; see
also Kachalsky, 701 F.3d at 89. In addition, the majority does
not support its criticism of Moore with anything but language
from a previous Seventh Circuit case, United States v. Skoien,
614 F.3d 638 (7th Cir. 2010) (en banc), that warned readers
“not to treat Heller as containing broader holdings than the
Court set out to establish: that the Second Amendment creates
individual rights, one of which is keeping operable handguns
at home for self-defense.” Id. at 640; see Maj. Typescript at
11. Although the majority places its emphasis in that passage

13
on the words “at home,” perhaps the better place for emphasis
is on the words “one of which,” especially considering the
Skoien court’s very next sentence: “What other entitlements
the Second Amendment creates . . . were left open.” Skoien,
614 F.3d at 640. More importantly, however, it is
incongruous for the majority to find it only “possible” to
conclude that Heller implies a right to bear arms beyond the
home when we have previously indicated that such a right
“must” exist, at least “to some degree.”12 Marzzarella, 614
F.3d at 92; see Maj. Typescript at 10.

In sum, interpreting the Second Amendment to extend
outside the home is merely a commonsense application of the
legal principle established in Heller and reiterated in
McDonald: that “the Second Amendment protects the right to
keep and bear arms for the purpose of self-defense.”
McDonald, 130 S. Ct. at 3026. Because the need for self-
defense naturally exists both outside and inside the home, I
would hold that the Second Amendment applies outside the
home.

IV

Having concluded that the Second Amendment
extends outside the home, I now address the majority’s
holding that New Jersey’s justifiable need requirement does
not burden conduct protected by the Second Amendment

12
For the same reasons, the majority’s assertion that
“it may be more accurate” to discuss whether or not the
individual right to bear arms for self-defense purposes
“exists,” rather than whether it “extends,” outside the home
conflicts with Marzzarella. See Maj. Typescript at 9 n.5.

14
because it is a longstanding regulation exempt from Second
Amendment scrutiny.

In Heller, the Supreme Court cautioned that “nothing
in [its] 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.” 554 U.S. at 626–27. Calling these
“presumptively lawful regulatory measures,”13 the Court also
noted that the list was not exhaustive. Id. at 627 n.26. As we
noted in Marzzarella, however, “the approach for identifying
these additional restrictions is also unsettled.” 614 F.3d at 93.
Observing that “Heller’s identified exceptions all derived
from historical regulations,” but acknowledging that “it is not
clear that pre-ratification presence is the only avenue to a
categorical exception,” we concluded that “prudence counsels
caution when extending these recognized exceptions to novel
regulations unmentioned by Heller.” Id.; see also United
States v. Huet, 665 F.3d 588, 602 (3d Cir. 2012).

Our hesitance to recognize additional exceptions is
unsurprising in light of the fact that by doing so we are
determining that a certain regulation is completely outside the
reach of the Second Amendment, not merely that the
regulation is a permissible burden on the Second Amendment
13
In Marzzarella, we interpreted the phrase
“presumptively lawful” to mean that “these longstanding
limitations are exceptions to the right to bear arms,” although
we acknowledged that this was not the only reasonable
interpretation. 614 F.3d at 91.

15
right. See Marzzarella, 614 F.3d at 91. Accordingly, it is
also unsurprising that courts have declined to find that
regulations not mentioned in Heller fall within its
“longstandingness” exception without a clear historical
pedigree. See, e.g., Heller v. District of Columbia, 670 F.3d
1244, 1255 (D.C. Cir. 2011) (Heller II) (declining to
recognize as longstanding a multitude of District of Columbia
handgun registration requirements, including laws requiring
re-registration after three years and requiring applicants to
demonstrate knowledge about firearms, be fingerprinted and
photographed, take firearms training or safety courses, meet a
vision requirement, and submit to a background check every
six years); United States v. Chester, 628 F.3d 673, 681 (4th
Cir. 2010) (declining to recognize as longstanding a law
prohibiting firearm possession by domestic violence
misdemeanants because historical data was inconclusive);
Marzzarella, 614 F.3d at 95 (declining to recognize as
longstanding a law prohibiting possession of unmarked
firearms). And even if some of these courts eventually
uphold the law at issue, they do so by subjecting it to
constitutional scrutiny. See, e.g., Marzzarella, 614 F.3d at
95–101. By contrast, courts that have upheld laws by virtue
of their longstandingness do so on the basis that the court
“do[es] not have to broaden any of Heller’s presumptively
valid categories to find that the conduct alleged . . . is outside
the scope of Second Amendment protection.” Huet, 665 F.3d
at 603; see also United States v. Barton, 633 F.3d 168, 172
(3d Cir. 2011).

Despite the caution that we and other courts have
counseled, the majority today holds that New Jersey’s
justifiable need requirement is a longstanding exception to the
Second Amendment right to bear arms. It does so mostly on

16
the basis that some form of need requirement has existed in
New Jersey since 1924. See Maj. Typescript at 14–15. But
the majority’s analysis ignores the major changes that New
Jersey’s law has undergone in the decades since 1924 and
also misapprehends the legal standards for deeming a law
longstanding such that it is beyond the scope of the Second
Amendment. A detailed review of the history of New
Jersey’s gun laws is necessary to explain my first
disagreement with my colleagues. I then turn to their
misapprehension of Heller’s requirements.

A

In 1905, New Jersey enacted its first general ban on
carrying concealed firearms. Compiled Statutes of New
Jersey, Vol. II. 1759 (Soney & Sage 1911). Although the law
contained an exception whereby a local official could grant a
permit, there were no standards for issuance.14 Id. In 1924,
the New Jersey legislature revised the law to incorporate the
word “need” for the first time. As amended, the statute
provided that concealed carry permits would be issued only
after the issuing officer was “satisfied of the sufficiency of
the application, and of the need of such person carrying
concealed upon his person, a revolver, pistol, or other
firearm.” Cumulative Supplement to the Compiled Statutes of
New Jersey, 1911-1924 (Volume I) 844 (Soney & Sage 1925).
Violation of the permitting requirement was a misdemeanor.
And critically for our purposes, the permitting requirement
applied only to the concealed carry of firearms. Open carry
14
Several other exceptions existed for certain
occupations, as well as carry in one’s home or business and
carry while hunting.

17
was still allowed without a permit (and thus without any
showing of need). See State v. Repp, 324 A.2d 588, 592 (N.J.
Super. Ct. App. Div. 1974) (Kole, J.S.C., concurring), rev’d
352 A.2d 260 (N.J. 1976) (reviewing history).

In 1966, New Jersey made wholesale revisions to its
firearms permit laws. For the first time, the State extended
the permitting requirement to open carry as well as concealed
carry. See N.J. Stat. Ann. § 2A:151-41 (1966). In addition,
the 1966 Act eliminated a single permit to carry and replaced
it with three distinct types of firearms permits: (1) a permit to
purchase, which was required to acquire a pistol or revolver;
(2) a firearms purchaser identification card to acquire a rifle
or shotgun; and (3) a permit to carry a pistol or revolver. See
N.J. Stat. Ann. §§ 2A:151-32–36, 41–45 (1966); Repp, 324
A.2d at 592 (Kole, J.S.C., concurring) (reviewing history).
The 1966 Act also made possession of a handgun without a
permit a felony.

As for the need requirement, it was first defined in
Siccardi v. State, 284 A.2d 533 (N.J. 1971).15 Although the
court acknowledged that “need” was somewhat vague, the
court defined it as “an urgent necessity for carrying guns for
self-protection.” Id. at 540.

In 1979, the law was amended to its current form,
using the phrase “justifiable need” rather than merely “need.”

15
Prior to Siccardi, only two cases had mentioned the
need requirement, and neither had ascribed any meaning to it.
See McAndrew v. Mularchuk, 162 A.2d 820, 827 (N.J. 1960);
State v. Neumann, 246 A.2d 533, 535 (Monmouth Cnty. Ct.
1968).

18
See N.J. Stat. Ann. § 2C:58-4(c) (1979); In re Friedman,
2012 WL 6049075, at *4 (N.J. Super. Ct. App. Div. Dec. 6,
2012) (not precedential) (reviewing history). The New Jersey
courts have not ascribed any significance to that change of
phrasing, however. See Doe v. Dover Twp., 524 A.2d 469,
470 (N.J. Super. Ct. App. Div. 1987) (noting that the change
from “need” to “justifiable need” was “intended basically to
restate the repealed statutes which were ‘carried forward
without substantial change’” (quoting 2 Final Report of the
New Jersey Criminal Law Revision Commission 370 (1971))).

In 1990, the New Jersey Supreme Court clarified that
the “urgent necessity” formulation articulated in Siccardi
requires applicants to show “specific threats or previous
attacks demonstrating a special danger to the applicant’s life
that cannot be avoided by other means” as opposed to
“[g]eneralized fears for personal safety” or “a need to protect
property alone.” Preis, 573 A.2d at 152. The “urgent
necessity” test laid out in Siccardi and clarified in Preis
remains the law to the present day. See, e.g., Pantano, 60
A.3d at 510.

B

One facet of New Jersey’s history of firearm
regulation is particularly important to the longstandingness
inquiry. Until 1966, New Jersey allowed the open carry of
firearms without a permit. Only concealed carry without a
permit issued upon a showing of need has been banned since
1924. This distinction is significant because courts have long
distinguished between these two types of carry, holding that
although a State may prohibit the open or concealed carry of
firearms, it may not ban both because a complete prohibition
on public carry violates the Second Amendment and

19
analogous state constitutional provisions. For example, in
State v. Reid, 1 Ala. 612 (1840), the Supreme Court of
Alabama upheld a prohibition on the concealed carrying of
“any species of fire arms” but cautioned that the State’s
ability to regulate firearms was not unlimited: “A statute
which, under the pretence of regulating, amounts to a
destruction of the right, or which requires arms to be so borne
as to render them wholly useless for the purpose of defence,
would be clearly unconstitutional.” Id. at 614, 616–17.
Relying on Reid, the Georgia Supreme Court held that a
statute prohibiting the carrying of concealed pistols was
unconstitutional insofar as it also “contains a prohibition
against bearing arms openly.” Nunn v. State, 1 Ga. 243, 251
(1846) (emphasis in original). The Louisiana Supreme Court
adopted a similar interpretation in State v. Chandler, 5 La.
Ann. 489 (1850). There, the court held that a law prohibiting
the carrying of concealed weapons was constitutional because
“[i]t interfered with no man’s right to carry arms . . . in full
open view.” Id. at 490 (internal quotation marks omitted).
Finally, the Tennessee Supreme Court held that although the
State could prohibit concealed carry, it could not prohibit all
carrying of weapons. Andrews v. State, 50 Tenn. 165, 180–
82, 186–88 (1871).

The United States Supreme Court in Heller cited
Nunn, Chandler, and Andrews as relevant precedents in
determining the historical meaning of the Second
Amendment, going so far as to say that the Georgia Supreme
Court’s opinion in Nunn “perfectly captured the way in which
the operative clause of the Second Amendment furthers the
purpose announced in the prefatory clause.” Heller, 554 U.S.
at 612; see also id. at 613. Notably, the Court later described
the laws struck down in Reid, Nunn, and Andrews as “laws

20
[that] have come close to the severe restriction of the
District’s handgun ban,” which was struck down as well. Id.
at 629.

The crux of these historical precedents, endorsed by
the Supreme Court, is that a prohibition against both open and
concealed carry without a permit is different in kind, not
merely in degree, from a prohibition covering only one type
of carry. After all, if a State prohibits only one type of carry
without a permit, an opportunity for the free exercise of
Second Amendment rights still exists. That opportunity
disappears when the prohibition is extended to both forms of
carry.

The same logic applies to the 1966 New Jersey law.
Prior to that year, New Jersey prohibited only concealed carry
without a permit. Accordingly, individuals were able to
exercise their Second Amendment rights without first
obtaining permission from the State. By enacting a
prohibition on open carry without a permit in the 1966 law,
New Jersey eliminated that right.

Thus, when the majority identifies 1924 as the
operative date for its longstandingness inquiry, it does so in
derogation of historical precedents, cited approvingly by the
Supreme Court in Heller, that draw an important distinction
between concealed and open carry. Under these precedents,
when New Jersey eliminated the ability of its residents to
openly carry arms without a permit in 1966, it was, as a
constitutional matter, enacting an entirely new law.

Regardless of whether we use 1924 or 1966 as the
operative date, however, the majority misapprehends the legal
standards applicable to the longstandingness analysis.

21
Because that analysis demonstrates that New Jersey’s
justifiable need requirement is not sufficiently grounded in
history and tradition even if retroactive to 1924, I would hold
that the requirement is not exempt from Second Amendment
scrutiny.

C

As we observed in Marzzarella, “Heller’s identified
exceptions all derived from historical regulations.” 614 F.3d
at 93. Therefore, the majority concentrates on Heller’s
recognition of “prohibitions on the possession of firearms by
felons,” Heller, 554 U.S. at 626, as the benchmark against
which it compares the justifiable need requirement’s
pedigree. Maj. Typescript at 17–18 & n.11. The majority
cites our opinion in United States v. Barton, in which we
explained that the “first federal statute disqualifying felons
from possessing firearms was enacted in 1938” and that
“Congress did not bar non-violent felons from possessing
guns until 1961.” 633 F.3d at 173; see Maj. Typescript at 18
n.11. According to my colleagues, because “a firearms
regulation may be ‘longstanding’ and ‘presumptively lawful’
even if it was only first enacted in the 20th century,” Maj.
Typescript at 18 n.11, New Jersey’s justifiable need
requirement, which, according to their interpretation, has
existed since 1924, satisfies the standard. But see Heller II,
670 F.3d at 1260 & n.* (finding that a District of Columbia
law prohibiting semi-automatic rifles and large-capacity
magazines was not longstanding even though the District had
banned such weapons and ammunition since 1932 and
Michigan had enacted a similar ban in 1927).

I perceive several problems with the majority’s
analysis. First, it ignores the fact that, as we explained in

22
Barton, the federal felon-in-possession laws have historical
pedigrees that originated with the founding generation.
Immediately after discussing the dates of enactment of the
federal felon-in-possession laws, we noted that “[d]ebates
from the Pennsylvania, Massachusetts, and New Hampshire
ratifying conventions, which were considered ‘highly
influential’ by the Supreme Court in Heller, also confirm that
the common law right to keep and bear arms did not extend to
those who were likely to commit violent offenses.” Barton,
633 F.3d at 173 (quoting Heller, 554 U.S. at 604) (internal
citation omitted); see also Skoien, 614 F.3d at 640 (“Many of
the states [in the eighteenth century], whose own constitutions
entitled their citizens to be armed, did not extend this right to
persons convicted of crime.”).

Although “a regulation can be deemed ‘longstanding’
even if it cannot boast a precise founding-era analogue,” Nat’l
Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco,
Firearms, & Explosives, 700 F.3d 185, 196 (5th Cir. 2012),
Heller requires, at a minimum, that a regulation be rooted in
history. Otherwise, there would have been no point for the
Court to state that it would “expound upon the historical
justifications for the exceptions we have mentioned if and
when those exceptions come before us,” Heller, 554 U.S. at
635, and no reason for the Court to describe the exceptions as
“longstanding,” id. at 626.16

16
Even if modern laws alone could satisfy the
longstandingness test, there presumably would have to be a
strong showing that such laws are common in the states. Cf.
Kennedy v. Louisiana, 554 U.S. 407, 422–26 (2008) (only six
states permitting death penalty for rape of a child shows
national consensus against it). Today, only eight States have

23
 Perhaps recognizing that some historical support is
required, the majority attempts to root New Jersey’s
justifiable need requirement in history by citing the Second
Circuit’s decision in Kachalsky for the proposition that “[i]n
the 19th century, most states enacted laws banning the
carrying of concealed weapons, and some states went even
further than prohibiting the carrying of concealed weapons
banning concealable weapons (subject to certain exceptions)
altogether whether carried openly or concealed.” Maj.
Typescript at 15 (citing Kachalsky, 701 F.3d at 95–96)
(alterations and internal quotation marks omitted). As
explained in the previous section, however, laws that banned
concealed carry alone have little bearing on laws that now
regulate both concealed and open carry. In addition, the laws
that the majority cites which purportedly banned both open
and concealed carry altogether actually provide little support.
See Maj. Typescript at 16 (citing Ch. 96, §§ 1–2, 1881 Ark.
Acts at 191–92; Act of Dec. 2, 1875, ch. 52, § 1, 1876 Wyo.
Terr. Comp. Laws, at 352; Ch. 13, § 1, 1870 Tenn. Acts at 28;
Act of Apr. 12, 1871, ch. 34, § 1, 1871 Tex. Gen. Laws at
25). The statutes in Arkansas, Texas, and Tennessee were
upheld only to the extent that they prohibited weapons that
were not “arms” within the meaning of the Second
Amendment or their state constitutional analogues (which
were defined as the arms of a militiaman or a soldier). See

enacted may-issue permitting regimes like New Jersey’s,
which condition the issuance of a permit on some showing of
special need. By contrast, forty-one States either require no
permit at all or have enacted shall-issue permitting schemes
for concealed carry. And over half the States do not require
permits for open carry. See Part I, supra.

24
Fife v. State, 31 Ark. 455, 461 (1876); Andrews, 50 Tenn. at
186–87; English v. State, 35 Tex. 473, 473 (1871); see also
Kachalsky, 701 F.3d at 91 n.14. To the extent that the state
laws prohibited the carry of weapons used in war, such as a
full-sized pistol or revolver, they were struck down. See
Wilson v. State, 33 Ark. 557, 559–60 (1878); Fife, 31 Ark. at
461; Andrews, 50 Tenn. at 186–88. As one commentator has
noted, “Heller stated that bans on concealed carry of firearms
are so traditionally recognized that they must be seen as
constitutionally permissible. . . . The same cannot, however,
be said about general bans on carrying firearms in public,
which prohibit open as well as concealed carrying.” Eugene
Volokh, Implementing the Right to Keep and Bear Arms for
Self-Defense: An Analytical Framework and a Research
Agenda, 56 UCLA L. Rev. 1443, 1516 (2009) (footnote
omitted).

The greatest flaw I perceive in the majority’s opinion,
however, is that the longstandingness analysis is conducted at
too high a level of generality. Rather than determining
whether there is a longstanding tradition of laws that
condition the issuance of permits on a showing of a greater
need for self-defense than that which exists among the
general public, the majority chooses as its reference point
laws that have regulated the public carry of firearms. This is
“akin to saying that because the government traditionally
could prohibit defamation, it can also prohibit speech
criticizing government officials.” Heller II, 670 F.3d at 1294
(Kavanaugh, J., dissenting). In the First Amendment context,
when determining whether a regulation is longstanding, the
Supreme Court has looked to that particular type of
regulation, not to a broader general category. See Brown v.
Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2736 (2011)

25
(considering a First Amendment challenge to a ban on sale of
violent video games: “California’s argument would fare better
if there were a longstanding tradition in this country of
specially restricting children’s access to depictions of
violence, but there is none”); United States v. Stevens, 130 S.
Ct. 1577, 1585 (2010) (considering a First Amendment
challenge to a ban on depictions of animal cruelty: “the
prohibition of animal cruelty itself has a long history in
American law, starting with the early settlement of the
Colonies. But we are unaware of any similar tradition
excluding depictions of animal cruelty from ‘the freedom of
speech’ codified in the First Amendment” (citations omitted)
(emphasis in original)). Demonstrating that there has been a
longstanding tradition of regulating the public carry of
firearms tells us nothing about whether New Jersey’s
justifiable need requirement itself is longstanding.

Finally, the majority’s reference to New York’s
permitting scheme, which requires a showing of “proper
cause” and was enacted in 1911, provides no support for its
conclusion that New Jersey’s justifiable need requirement
qualifies as longstanding for purposes of the Second
Amendment. See Maj. Typescript at 16–18. The Second
Circuit in Kachalsky upheld New York’s law because it
survived intermediate scrutiny, not because it evaded Second
Amendment cognizance on account of its longstandingness.
In fact, the Second Circuit found that the cited sources—
including the Arkansas, Tennessee, Texas, and Wyoming
statutes cited by the majority—“do not directly address the
specific question before us: Can New York limit handgun
licenses to those demonstrating a special need for self-
protection? Unlike the cases and statutes discussed above,
New York’s proper cause requirement does not operate as a

26
complete ban on the possession of handguns in public.”
Kachalsky, 701 F.3d at 91. As a result, the court declined to
find that the law was a longstanding exception to the Second
Amendment.

D

In light of the foregoing, regardless of whether New
Jersey’s justifiable need requirement dates to 1924 or 1966
for purposes of the inquiry, there is not a sufficiently
longstanding tradition of regulations that condition the
issuance of permits on a showing of special need for self-
defense to uphold New Jersey’s law on that basis. As we and
other courts have stated, we must be cautious in recognizing
new exceptions to the Second Amendment. After all, finding
that a regulation is longstanding insulates it from Second
Amendment scrutiny altogether; it is as good as saying that
individuals do not have a Second Amendment right to engage
in conduct burdened by that regulation. Accordingly, unless
history and tradition speak clearly, we should hesitate to
recognize new exceptions. Because there is no such history
and tradition here, I would hold that New Jersey’s justifiable
need requirement is not a longstanding regulation immune
from Second Amendment scrutiny.

V

Having concluded that New Jersey’s justifiable need
requirement burdens conduct protected by the Second
Amendment, I now turn to Marzzarella’s second prong,
which requires us to evaluate the law using some form of
means-end scrutiny. Although I agree with the majority that
intermediate scrutiny applies, I disagree with its conclusion

27
that New Jersey’s justifiable need requirement satisfies that
standard.17

A

Under intermediate scrutiny, the State must assert a
significant, substantial or important interest and there must be
a reasonable fit between the asserted interest and the
challenged regulation. Marzzarella, 614 F.3d at 98. “The
regulation need not be the least restrictive means of serving
the interest, but may not burden more [conduct] than is
reasonably necessary.” Id. The State bears the burden of
establishing both of these requirements. Bd. of Trs. of State
Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989); Chester, 628
F.3d at 683.

Because Appellants rightly acknowledge that New
Jersey’s interest in public safety is significant, substantial,
and important, I turn to the question of “fit.” “[S]ince the
State bears the burden of justifying its restrictions, it must
affirmatively establish the reasonable fit we require.” Fox,
492 U.S. at 480. Accordingly, we may consider only the
reasons and the evidence proffered by the State in evaluating

17
I agree with my colleagues that First Amendment
prior restraint doctrine does not apply in the Second
Amendment context. Although “the First Amendment is a
useful tool in interpreting the Second Amendment,”
Marzzarella, 614 F.3d at 96 n.15, we have never endorsed a
wholesale importation of First Amendment principles into the
Second Amendment. For instance, in Barton we declined to
“recognize an ‘overbreadth’ doctrine outside the limited
context of the First Amendment.” 633 F.3d at 172 n.3.

28
the fit between the challenged law and the State’s interest.
The sole reason articulated by New Jersey in this case is that
the justifiable need requirement is “designed to combat the
dangers and risks associated with the misuse and accidental
use of handguns.” Appellee Br. 34. According to New
Jersey, because those risks “are borne not only by the person
seeking the permit, but by the citizenry he encounters,”
limiting permits to carry a handgun to those who can show a
justifiable need to do so serves the State’s interest in public
safety. Id.

At the outset, we should emphasize that the justifiable
need requirement itself, not the State’s permitting law in
general, is at issue. The majority apparently disagrees insofar
as its opinion focuses on whether permitting schemes in
general further an interest in public safety. By doing so, I
submit that the majority misapprehends the regulation under
review. Appellants take no issue with permits in general or
with the other objective requirements that an applicant must
satisfy prior to obtaining a handgun carry permit, such as
background checks, safety courses, and qualification tests.
Rather, the regulation at issue is the requirement to show
justifiable need, that is, that the applicant has a special need
for self-defense greater than that which exists among the
general public. Preis, 573 A.2d at 152. Accordingly, our
inquiry must focus on that requirement. To be precise, we
must ask whether the State has justified its conclusion that
those with a special need for self-defense are less likely to
misuse or accidentally use a handgun than those who do not
have a special need.

Although the State must show only a “reasonable” fit,
New Jersey comes nowhere close to making the required
showing. Indeed, New Jersey has presented no evidence as to

29
how or why its interest in preventing misuse or accidental use
of handguns is furthered by limiting possession to those who
can show a greater need for self-defense than the typical
citizen.18

The majority excuses the State for this evidentiary
void by reference to the fact that Heller was not decided until
2008 and that the Second Amendment had not been
incorporated against the States until 2010. “Simply put,” the
majority states, “New Jersey’s legislators could not have
known that they were potentially burdening protected Second
Amendment conduct, and as such we refuse to hold that the
fit here is not reasonable merely because New Jersey cannot
identify a study or tables of crime statistics upon which it
based its predictive judgment.” Maj. Typescript at 26–27.

Even if one were to ignore the fact that people bore
and desired to bear firearms in New Jersey in the decades
prior to Heller, the lack of legislative history surrounding the
State’s enactment of the justifiable need requirement is not
the chief problem with the State’s showing. To be clear, New
Jersey has provided no evidence at all to support its proffered
justification, not just no evidence that the legislature
considered at the time the need requirement was enacted or
amended. The majority errs in absolving New Jersey of its
obligation to show fit. Our role is to evaluate the State’s
proffered evidence, not to accept reflexively its litigation
18
The majority acknowledges this evidentiary void,
see Appellees’ Feb. 23, 2013 Letter at 1–2, although my
colleagues characterize the State’s failure too charitably: “To
be sure, New Jersey has not presented us with much evidence
. . . .” Maj. Typescript at 25 (emphasis added).

30
position. See Heller II, 670 F.3d at 1259 (holding that the
government had not borne its burden under intermediate
scrutiny because “the District needs to present some
meaningful evidence, not mere assertions, to justify its
predictive judgments”); Chester, 628 F.3d at 683 (holding
that the government had not borne its burden under
intermediate scrutiny because “[t]he government has offered
numerous plausible reasons why the disarmament of
domestic violence misdemeanants is substantially related to
an important government goal; however, it has not attempted
to offer sufficient evidence to establish a substantial
relationship between [18 U.S.C.] § 922(g)(9) and an
important governmental goal” (emphasis in original)).
“Without pointing to any study, empirical data, or legislative
findings,” New Jersey submits merely “that the fit [i]s a
matter of common sense.” United States v. Carter, 669 F.3d
411, 419 (4th Cir. 2012). Under these circumstances, the
State has not carried its burden to “affirmatively establish the
reasonable fit we require.” Fox, 492 U.S. at 480; see, e.g.,
Carter, 669 F.3d at 419; Heller II, 670 F.3d at 1259; Chester,
628 F.3d at 683.

Even were we to deem adequate the State’s proffered
reasons alone, without any supporting evidence, there still
would be no reasonable fit between the justifiable need
requirement and the State’s interest in “combating the
dangers and risks associated with the misuse and accidental
use of handguns.” Appellee Br. 34. The fact that one has a
greater need for self-defense tells us nothing about whether he
is less likely to misuse or accidentally use handguns. This
limitation will neither make it less likely that those who meet
the justifiable need requirement will accidentally shoot
themselves or others, nor make it less likely that they will

31
turn to a life of crime. Put simply, the solution is unrelated to
the problem it intends to solve. Our inquiry here focuses on
the way New Jersey has sought to address the societal ills of
misuse and accidental use (by giving permits only to those
who have a greater need for self-defense), not on whether
New Jersey has an interest in combating these problems.
Limiting permits to those who can show a greater need for
self-defense than the public at large does not make it less
likely that misuse and accidental use will occur. In fact, that
proposition is counterintuitive. Misuse and accidental use
presuppose the active handling of handguns and it seems odd
to suggest that one who obtains a handgun carry permit
because he is in imminent danger is less likely to handle a
gun than one who obtains a carry permit because he might
want to exercise that right in the future even though he
perceives no present danger.

An example demonstrates the absence of a fit between
the justifiable need requirement and reducing misuse or
accidental use of handguns. Imagine that a 21-year-old with
no criminal record is shot in the leg while leaving his home in
a high-crime area. Citing the portion of the justifiable need
requirement that allows handgun permit issuance to those
who have suffered from previous attacks, he applies for and is
granted a permit to carry a handgun. Unbeknownst to the
permitting officials, however, the 21-year-old is a street-level
drug dealer who wants the gun to retaliate against the rival
who shot him. It borders on the absurd to believe that this 21-
year-old is less likely to misuse or accidentally use a handgun
than a reserve sheriff’s deputy who wishes to carry a gun for
self-defense while off duty, like Appellant Finley Fenton; or a
civilian FBI employee who received specific information that
a terrorist organization might target him or his family, like

32
former Appellant Daniel Piszczatoski; or an owner of an
ATM restocking company who routinely carries large
amounts of cash, like Appellant John Drake.

The counterintuitiveness of the idea that limiting
handguns to those who have a special need for self-defense
reduces misuse or accidental use is borne out by the
experience of other States that issue handgun permits on a
shall-issue basis, which is what New Jersey’s Handgun
Permit Law would look like without the justifiable need
requirement. For example, Florida has issued 2,525,530
handgun carry licenses since 1987. Concealed Weapon or
Firearm License Summary Report, http://licgweb.doacs.
state.fl.us/stats/cw_monthly.pdf (last visited July 16, 2013).
To date, Florida has revoked only 168 licenses—0.00665%—
for crimes involving firearms. Id. In Texas, of the 63,679
criminal convictions (not just those in which firearms were
used) in 2011, only 120—0.1884%—were attributed to
individuals licensed to carry handguns. Conviction Rates for
Concealed Handgun License Holders,
http://www.txdps.state.tx.us/
RSD/CHL/Reports/ConvictionRatesReport2011.pdf (last
visited July 16, 2013).

In addition, although not all States keep detailed
statistics on crimes committed by permit holders, many States
keep statistics on permit revocations. For instance, Michigan
issued 87,637 permits for the year ending June 30, 2011, but
revoked only 466 of them. Concealed Pistol Licensure
Annual Report, http://www.michigan.gov/
documents/msp/2011_CPL_Report_376632_7.pdf (last
visited July 16, 2013). Tennessee issued 94,975 handgun
carry permits in 2011, suspended only 896, and revoked just
97. Tennessee Handgun Carry Permit Statistics,

33
http://www.tn.gov/safety
/stats/DL_Handgun/Handgun/HandgunReport2011Full.pdf
(last visited July 16, 2013). North Carolina has issued
228,072 permits in the last 15 years but has revoked only
1,203. North Carolina Concealed Handgun Permit Statistics
by County, http://www.ncdoj.gov/CHPStats.aspx (last visited
July 16, 2013). The reasons for these revocations are unclear,
but even if we assumed that all of them were because of
misuse or accidental use of handguns, the rate in Michigan
and North Carolina is 0.5%, and in Tennessee it is 0.1%.

Irrespective of what other States have done, New
Jersey has decided that fewer handguns legally carried in
public means less crime. And despite its assertion that the
justifiable need requirement is specifically targeted to
reducing misuse and accidental use, it is obvious that the
justifiable need requirement functions as a rationing system
designed to limit the number of handguns carried in New
Jersey. The New Jersey courts have admitted as much. See,
e.g., State v. Valentine, 307 A.2d 617, 619 (N.J. Super. Ct.
App. Div. 1973) (“[T]he overriding philosophy of our
Legislature is to limit the use of guns as much as possible.”);
see also Siccardi, 284 A.2d at 540 (“[W]idespread handgun
possession in the streets, somewhat reminiscent of frontier
days, would not be at all in the public interest.”). Even
assuming that New Jersey is correct to conclude that fewer
guns means less crime, a rationing system that burdens the
exercise of a fundamental constitutional right by simply
making that right more difficult to exercise cannot be
considered reasonably adapted to a governmental interest
because it burdens the right too broadly. See Ward v. Rock
Against Racism, 491 U.S. 781, 783 (1989) (under
intermediate scrutiny, the means chosen to achieve the

34
desired governmental objective may not be “substantially
broader than necessary”). The regulation must be more
targeted than that to meet intermediate scrutiny.19

Those who drafted and ratified the Second
Amendment were undoubtedly aware that the right they were
establishing carried a risk of misuse, and States have
considerable latitude to regulate the exercise of the right in
ways that will minimize that risk. But States may not seek to
reduce the danger by curtailing the right itself. This point is
made starker by the fact that the other requirements in New
Jersey’s permit law display a closer fit with the articulated
interest of reducing misuse and accidental use. For example,
New Jersey conducts a criminal background check and
requires applicants to complete a training course, pass a test
of the State’s laws governing the use of force, and provide
qualification scores from test firings administered by a
certified instructor. Appellants have challenged none of these
regulations.

In sum, New Jersey has not carried its burden to
demonstrate that the justifiable need requirement is
19
To be clear, New Jersey need not show that the
justifiable need requirement is the least restrictive means of
combating the dangers of misuse and accidental use. Rather,
New Jersey fails to meet its burden under intermediate
scrutiny both because there is no reasonable fit between the
justifiable need requirement and the State’s asserted interest
in combating misuse and accidental use of handguns, and
because New Jersey’s desire to ration handgun use too
broadly burdens conduct protected by the Second
Amendment.

35
reasonably adapted to its interest in reducing the misuse or
accidental use of handguns. Accordingly, the justifiable need
requirement fails intermediate scrutiny and contravenes the
Second Amendment.

B

The majority reaches the opposite conclusion by
stressing deference to the New Jersey legislature and by
declining to examine the justifiable need requirement itself in
favor of examining the permitting requirement as a whole.
Maj. Typescript at 24 (quoting Turner Broad. Sys., Inc. v.
FCC, 520 U.S. 180, 195 (1997) (Turner II)). Having already
addressed the majority’s error with respect to the level of
generality of its analysis, a few words about deference are in
order.

Although the majority is correct that we “‘accord
substantial deference to the predictive judgments’ of the
legislature, [New Jersey] is not thereby ‘insulated from
meaningful judicial review.’” Heller II, 670 F.3d at 1259
(quoting Turner II, 520 U.S. at 195, and Turner Broad. Sys.,
Inc. v. FCC, 512 U.S. 622, 666 (1994) (Turner I) (controlling
opinion of Kennedy, J.)). “Rather, we must ‘assure that, in
formulating its judgments, the legislature has drawn
reasonable inferences based on substantial evidence.’” Id.
(quoting Turner II, 520 U.S. at 195) (alteration omitted). By
deferring absolutely to the New Jersey legislature, the
majority abdicates its duty to apply intermediate scrutiny and
effectively applies the rational basis test, contrary to the
Supreme Court’s explicit rejection of that test in the Second
Amendment context. Heller, 554 U.S. at 628 n.27.

36
 Such deference is not consistent with intermediate
scrutiny because that standard places the burden of
establishing both elements of its test—an important interest
and a reasonable fit that does not burden more conduct than
reasonably necessary—on the State. See Fox, 492 U.S. at
480. The majority says that “New Jersey legislators . . . have
made a policy judgment that the state can best protect public
safety by allowing only those qualified individuals who can
demonstrate a ‘justifiable need’ to carry a handgun to do so,”
and says that this determination (and others that it notes) lead
it to “refuse Appellants’ invitation to intrude upon the sound
judgment and discretion of the State of New Jersey.” Maj.
Typescript at 29, 31. Yet the majority never discusses
whether those judgments violate the Constitution. It makes
no mention of New Jersey’s articulated policy interest in
reducing the misuse or accidental use of handguns, it says
nothing about whether limiting handguns to those who can
show a greater need for self-defense is reasonably related to
that interest, and it does not adhere to the fact that the State
bears the burden of proving the justifiable need requirement’s
constitutionality.

It is also notable that the majority’s version of
deference to the New Jersey legislature is akin to engaging in
the very type of balancing that the Heller Court explicitly
rejected. The majority states:

It is New Jersey’s judgment that when an
individual carries a handgun in public for his or
her own defense, he or she necessarily exposes
members of the community to a somewhat
heightened risk that they will be injured by that
handgun. New Jersey has decided that this
somewhat heightened risk to the public may be

37
 outweighed by the potential safety benefit to an
individual with a “justifiable need” to carry a
handgun.

Maj. Typescript at 29.

By deferring to New Jersey’s judgment that the
justifiable need requirement is the provision that can best
determine whether the individual right to keep and bear arms
“outweighs” the increased risk to the community that its
members will be injured by handguns, the majority employs
an “‘interest-balancing inquiry’ that ‘asks whether the statute
burdens a protected interest in a way or to an extent that is out
of proportion to the statute’s salutary effects upon other
important governmental interests.’” Heller, 554 U.S. at 634
(quoting id. at 689–90 (Breyer, J., dissenting)). The Heller
Court rejected this sort of balancing inquiry as inconsistent
with the very idea of constitutional rights. Id. at 634–35.

The majority’s failure to analyze the constitutional fit
between the justifiable need requirement and New Jersey’s
articulated interest in reducing the misuse or accidental use of
firearms is thus especially troubling. Only by engaging in a
true fit analysis are we faithful both to the Supreme Court’s
rejection of naked interest balancing and to its reminder that
the Second Amendment is “not a right to keep and carry any
weapon whatsoever in any manner whatsoever and for
whatever purpose.” Heller, 554 U.S. at 626.

* * *

Gun violence is an intractable problem throughout the
United States. In 2011 alone, 6,220 people were murdered by

38
handguns,20 and although many of the perpetrators of
handgun homicides undoubtedly were unlicensed criminals, it
is safe to assume that some of the perpetrators were licensed
to carry. New Jersey has sought to protect its citizens by
reducing the number of guns carried in public. In the bygone
era when the Bill of Rights acted as a check solely on federal
power, New Jersey could regulate guns as it saw fit. In the
post-incorporation era, however, New Jersey must comply
with the Second Amendment.

Federal judges must apply the Constitution and the
precedents of the Supreme Court regardless of what each
judge might believe as a matter of policy or principle. See
Texas v. Johnson, 491 U.S. 397, 420–21 (1989) (Kennedy, J.,
concurring) (“The hard fact is that sometimes we must make
decisions we do not like. We make them because they are
right, right in the sense that the law and the Constitution, as
we see them, compel the result.”). No matter how laudable
the end, the Supreme Court has long made clear that the
Constitution disables the government from employing certain
means to prevent, deter, or detect violent crime. See, e.g.,
United States v. Jones, 132 S. Ct. 945 (2012); Kennedy v.
Louisiana, 554 U.S. 407 (2008); Kyllo v. United States, 533
U.S. 27 (2001); Miranda v. Arizona, 384 U.S. 436 (1966);
Mapp v. Ohio, 367 U.S. 643 (1961); see also Heller II, 670
F.3d at 1296 (Kavanaugh, J., dissenting). And the Court has
been equally clear that the courts must enforce constitutional

20
FBI Uniform Crime Reports, Crime in the United
States 2011, http://www.fbi.gov/about-us/cjis/ucr/crime-in-
the-u.s/2011/crime-in-the-u.s.-2011/tables/expanded-
homicide-data-table-8 (last visited July 16, 2013).

39
rights even when they have “controversial public safety
implications.” McDonald, 130 S. Ct. at 3045 (controlling
opinion of Alito, J.); see also Heller, 554 U.S. at 636 (“We
are aware of the problem of handgun violence in this country,
and we take seriously the concerns raised by the many amici
who believe that prohibition of handgun ownership is a
solution. . . . But the enshrinement of constitutional rights
necessarily takes certain policy choices off the table.”).
Because I am convinced that New Jersey’s justifiable need
requirement unconstitutionally burdens conduct protected by
the Second Amendment as interpreted in Heller and
McDonald, I respectfully dissent.

40