Many gun owners were disappointed when the Supreme Court declined on May 5 to take Drake v. Jerejian, but they shouldn’t be. Drake was an important case but also had significant problems, and there are more promising cases elsewhere in the country. The best is Peruta v. County of San Diego in California, which may be before the Supreme Court within a year.
John Drake is a New Jersey ATM owner who wanted to carry a gun because he’s frequently moving in public with large amounts of cash. New Jersey law requires a “justifiable need” to receive a concealed-carry permit, and law enforcement sets a high standard to show what it considers sufficient “need.”
It’s no surprise that the Supreme Court didn’t take this case. Contrary to gun-control advocates’ claims, it is not a sign that the justices are pulling back on the right to bear arms. The Supreme Court is offered 8,000 cases each year, and takes 80–that’s one percent. So the justices are extremely picky in which cases they take.
This is especially true with the Second Amendment. In its two gun-rights cases–D.C. v. Heller (2008) and McDonald v. Chicago (2010)–where the Court held that the Second Amendment is a fundamental individual right, all it had to do was rule that law-abiding adult citizens could have handguns in their private homes. Those were the bare minimum, and the justices left all other questions for another case.
They understand that they are in extremely consequential territory by considering how the Second Amendment extends beyond the home, since now they will be ruling on whether people have the right to carry deadly weapons as they rub shoulders with other human beings in public places, such as streets, parks, at grocery stores, and when going to work. Judges are not blind to the reality that some evil or sick people use guns to kill other people, making judges exceedingly cautious in how they develop gun rights in public.
In that regard Drake had some baggage. It might have forced the justices to rule on whether concealed-carry permits are unconstitutional. That would be a huge jump for the justices, and there is a good chance that there are less than five votes among the Court’s current membership to rule for gun owners on that issue.
Once the Supreme Court settles an issue it is rare for them to ever revisit it, and traditionally the justices like at least 20 years to pass before reconsidering a matter (though there are exceptions). For those who want to advance gun rights, it’s much better to have no precedent at all than to have bad precedent.
The other problem with Drake is what is called prior-restraints doctrine, which is when the government requires you to get a permit before engaging in speech-type activity, such as a license before showing a movie. Any government system requiring citizens to get government permission before speaking faces a strong legal presumption that it is unconstitutional, and the government must show that the license is narrowly focused on achieving a compelling public interest.
Applying that legal doctrine to guns is considered far-fetched by many Second Amendment lawyers. The courts will likely never adopt such a demanding standard. Speech is by nature spontaneous and fluid. Many of the most important things to be said are said in the moment.
Firearms, by contrast, are tangible, heavy, and expensive. You have to think about obtaining a firearm, plan for it, budget for it, and then go to specific locations to obtain one. And words can rarely kill people, but guns can.
Yet these are the arguments Drake’s lawyers chose to make, so the biggest problem with Drake may have been the legal team. Lead counsel in that case is Virginia-based lawyer Alan Gura, who was one of the lawyers who argued both of the Supreme Court’s famous Second Amendment cases, Heller and McDonald.
Gura has proven to be a capable and innovative lawyer who successfully got two major cases before the U.S. Supreme Court. And at the High Court, he ably avoided any number of significant obstacles both in his legal brief and during oral arguments, and those cases were spectacular victories for all gun owners and for the Constitution. Those are major accomplishments.
But the credit for those victories must be shared with others, without whose contributions those cases might well have been disastrous defeats. And Gura’s actions subsequent to those Supreme Court cases have given many gun-rights lawyers and scholars pause.
Breitbart News previously wrote at length about how a top conservative federal judge–Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit–publicly criticized Gura’s approach when Heller was before his court on its way to the Supreme Court. Whether those criticisms were fair or not, this judge chose to take the unusual step of making them public.
Another conservative, Judge Raymond Randolph of the D.C. Circuit, sharply criticized Gura in Schrader v. Holder, where Gura sought a ruling that all criminals convicted under a particular Maryland criminal law should have their firearms rights restored. The appeals court noted that Gura’s client was a law-abiding Navy veteran whose only run-in with the law was getting into a fistfight in the 1960s, and Gura could have narrowly argued for such honorable people. “Were this argument properly before us… we would hesitate to find” that Schrader could be denied gun rights, Randolph wrote.
However, Gura insisted on arguing that all criminals convicted under that particular Maryland law must have their firearms rights restored. The court found one such criminal who had viciously stabbed someone he lured into his car and left for dead. The appeals court reasoned that accepting Gura’s argument would have entitled the slasher to a gun, so they ruled against the veteran and said they would consider claims like Schrader’s for “a case where the issues are properly raised.”
And in a case competing with Peruta at the Ninth Circuit, Richards v. Prieto, Gura is once again saying federal courts should hold California’s permit scheme to the prior-restraints standard. He is also saying the statute’s requirement that an applicant be of “good moral character” is unconstitutional.
This is another argument that no federal court is likely to accept since most scholars believe the Second Amendment only applies to law-abiding citizens. People would not want an axe murderer to have access to a gun (or an axe).
The Supreme Court knows Gura’s penchant for such arguments, because in the 2010 McDonald case he argued that the Supreme Court should overrule the Slaughter-House Cases, one of the most consequential cases in all of American history in defining the limits of government power. Justice Antonin Scalia excoriated Gura during oral argument for pressing that angle, asking if he was doing it to get a law professorship at a school.
(Full disclosure: I wrote a legal brief agreeing with Gura that the Court should recognize the right to bear arms is one of the “privileges or immunities” of American citizens, and that Slaughter-House is wrong in many respects, but disagreeing that the Court should overrule Slaughter-House.)
Chuck Michel is a leading Second Amendment lawyer and part of the team representing Peruta. He tells Breitbart News, “Going for a longshot over the water hazard for a hole-in-one is dramatic, but courts are looking for several lay-ups to get to the tee. An overreaching legal strategy, no matter how well reasoned, is going to put the Second Amendment in the drink.”
Responding specifically to the Supreme Court refusing to take Drake, Michel added:
One reason the Supreme Court may have passed on Drake is that they know Peruta is coming, and prefer the refined legal strategy taken in that case. Beltway insiders and lawyers watching these cases closely know that the justices don’t respect the quasi-militant legal strategy taken in the McDonald case, and to varying extents in the other public carry cases so far.
There’s no reason to believe the justices personally dislike Gura. They can think he is a wonderful person but be skeptical of his professional work. Law clerks writing up “cert pool memos” for the justices to evaluate petitioners occasionally discuss the lawyers involved in the case when the clerks believe it relevant to how it would impact the manner in which the case is briefed and argued before the Court.
In contrast to Drake, Breitbart News has already explained why Peruta is a perfect case for the Supreme Court to take. California law forbids openly carrying firearms outside the home and provides that no one is entitled to carry a concealed weapon without a permit. It empowers local sheriffs with the discretion to decide who gets permits, and the sheriff in Peruta requires applicants to give some special reason aside from a desire for self-defense.
Peruta was extensively discussed in the Drake legal briefs filed as part of the petitioning process, more thoroughly than any other case except Heller itself. So the justices had ample opportunity to compare both cases and determine which one they would prefer. And Peruta was argued by former U.S. Solicitor General Paul Clement, regarded by many as the best Supreme Court lawyer in America, who would also argue the case at the High Court.
Another Second Amendment lawyer with offices in Washington, D.C. familiar with both Drake and Peruta spoke with Breitbart News anonymously, saying he needs to work with Gura on these and other cases and that Gura responds extremely poorly to criticism. He offered, “Peruta will present a great opportunity for the Supreme Court to clarify that the core Second Amendment right extends to the home; in addition, this case has the added benefit of being argued by Paul Clement, who is extremely well-respected by the Court.”
California Attorney General Kamala Harris has now asked the Ninth Circuit to intervene in Peruta. If the Ninth Circuit allows Harris into Peruta, this case will likely go to the Supreme Court either in 2015 or early 2016. If the latter, there would be a decision in June 2016 right before the presidential election.
The case would very likely go 5-to-4 either way, making the Second Amendment and presidential Supreme Court appointments a leading issue in the 2016 elections.
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.