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“The Court has granted two new cases today,” reports. “Jesinoski v. Countrywide Home Loans, involving the Truth in Lending Act, and Yates v. United States (limited to the first question). The Justices did not act on the Second Amendment case Drake v. Jerejian.” The Drake case deals with New Jersey’s “justifiable need” concealed carry provision, which the state uses to deny millions of New Jersey residents their natural civil and Constitutionally protected right to keep and bear arms. Rumor has it Justice Scalia’s trying to line up a majority vote before they grant cert. [h/t SB]

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  1. 2016 will be a critical year for us we need a republican (Pro 2nd amendment) otherwise the court will be our greatest enemy. we may not see SCOTUS take another 2a case until then

  2. Can someone please explain what this means for the case? Are there any further viable routes for appealing at this time?

    • No, we just have to wait and see if the Court will grant cert. If Scalia’s working on rounding up a majority, I would guess that means we have the 4 votes necessary to grant cert but that he wants to ensure 5 votes for an ultimate ruling before the cert petition is granted.

    • This isn’t all that bad as far as the case’s direction goes.

      Not too long ago the Supremes granted cert (meaning “agreed to hear”) a couple of cases and then undid that decision. That was inside of the last year. Ever since we’ve noticed a pattern whereby cases that DO eventually get granted cert don’t get it on the first conference or sometimes even the second. It seems they’re doing some kind of “extra review” now – like, maybe on the first conference they’ll say “yeah, we’ll hear this one but we’ll wait a week or two and think on it some more”.

      In which this “stalling” for a week or two (or more?) is a good thing.

      There’s two other possibilities:

      1) They intend to bounce it back to where it came from with a quick “OK guys, this was obvious, you’re wrong, go fix this” kind of message with no more briefing or arguments. They’ve been doing that a bit more than usual lately but it would be pretty unlikely on a case this highly anticipated. Not impossible mind you…

      2) They’re stalling, maybe to see if the 9th Circus produces a final ruling in the Peruta/Richards/Baker cases by either finalizing the existing decisions or taking it en banc. But that would take a while so, not too likely.

  3. It doesn’t appear that this has yet been denied cert? Or at least I can’t find it on the denied list. Waiting for CA9 to be resolved first?

    • No, this case is very much pending. Why the court has yet to act is anyone’s guess. The h/t says Scalia trying to line up a “sixth” vote, but you only need five for a majority, so I don’t know where that comes from. Other possibilities for the delay include writing an opinion for per curium reversal, continued discussions as to what issues-or just the phrasing of the issues–the court will agree to hear, or waiting for the Ninth to act on Peruta v. Gore.
      [Peruta is in a bit of a holding pattern while we are waiting for the Ninth Circuit panel to decide if AG Kamala Harris, the Brady Campaign, or a the California Association of Police Chiefs will be allowed to intervene and become parties to the case. Actually, it really is only whether Harris will be allowed in–the other two have no chance. IF Harris is allowed to intervene, then it has to decide whether the matter will be reheard “en banc.”]

      • Scalia is trying to get a stronger majority because 5-4 cases are generally weaker later on down the road. He wants to make sure that when he leaves, the precedent will stay.

      • He is likely making sure he has 6 because someone may chance their mind, then he would be screwed.

      • The h/t says Scalia trying to line up a “sixth” vote, but you only need five for a majority, so I don’t know where that comes from.

        Traditionally, the USSC has been more reluctant to overturn 6-3 decisions than 5-4 decisions. That’s a matter of custom, and I seriously doubt the leftist-appointed justices will respect it after they’re in the majority, but that may be what’s going on. Or maybe there are only 5 votes, and Scalia thinks one of them might change their mind depending on the persuasiveness of the argument presented…

        Hard to say.

      • From all the legal “experts” I’ve read it appears that since the case involves only San Diego County directly, Harris et al. have no standing to ask for an en banc review. It also appears neither the Sheriff or the San Diego Co. governing board has petitioned for review, the decision may stand. This would further create divergent views in the Districts and virtually force SCOTUS to hear the case. I hope these people are right and Scalia gets his majority.

  4. Nothing new has happened. The Supreme Court hasn’t decided yet whether to hear the case. I don’t see much point to the blog post.

    • The point is that some news was expected today after Friday’s conference. That news appears to be ‘not this week’. So we wait… and speculate.

      • this is the second time this case has been on a friday reveiw for cert. It is important because it is a good case for us (“justifiable need”) and it has not been DENIED cert. The fact that they have looked at it twice and may reveiw again indicates that there are at least 4 votes out there (cert requires at least 4 justices saying so) – otherwise it would be denied. Also, a 6th vote would help in that you wouldn’t have some 5-4 vote decried as Republicans-Democrats. Given that Scalia has taken Kagan shooting, he may be buttering her up. . . plus, any of the 4 liberals who want gay mariages recognized across state lines may be willing to go here since it would give further credence to their ultimate goals (ie, does a fundamental interest require a justifiable need?)

  5. Patience is key. The anti freedom movement is playing the long game, so we must also play the long game.

      • Typical old man reasoning. What about us, the younger generation, which is desperately trying to get out of this mess and enjoy the liberties that were denied to you?

        • When I was younger, I fought in the Liberty movement for my children and future grandchildren. My children are now old enough to fight for themselves and they do. Y’all are awful quick to sell out my rights for your future. My rights are not yours to make such a choice. If you want rights then, damn it, fight for them.

        • BTW Karina… live long enough and you’ll probably see things from my prospective. I became politically aware in early childhood. I was a very early reader and speaker. I saw something was terribly amiss in our country when it gave such lip service to Liberty but the real application of it left something to be desired. Somewhere during the long haul, I realized that I also wanted to enjoy real freedom in my own lifetime. IMHO, we are less free overall now than we were in the 1990s. That’s messed up.

      • You are confusing two issues. If you feel a law is unjust, it is your duty as an American to disobey it. Whether that be traffic laws or drug laws or gun laws. You live your life the way you want, ignore the infringement.

        The long game I speak of is actually changing those laws. Previous generations dug this hole and dropped us in it. I’m not interested in merely climbing out of the hole, I’m interested in filling it for my children and their children.

        • Ah, I now understand what you meant and agree with you. I mistook what you originally wrote as sit back and just let SCOTUS undo the mess. I’m all for civil disobedience and fighting back while SCOTUS goes through its process.

      • I hear what you mean. I believe I read your first comment to mean you want comfort now as opposed to lasting freedom.

        • Oh hell no! I wouldn’t want to trade comfort for freedom. I’m sorry that I wasn’t more clear in my post. We’re apparently on the same page. 🙂

          I’m one of those Liberty or death, don’t tread on me guys. 😉


  6. ###Rumor has it Justice Scalia’s trying to line up a sixth vote before they grant cert.###

    Keep tellin’ yourself that. Here’s the skinny, from my perch: the SCOTUS is not going to take a case which puts their credibility at risk .

    Look at it from their viewpoint. If the SCOTUS rules in favor of the Constitution and Concealed Carry, anti-rights states will pitch a fit , the legal establishment will lose their marbles , and the anti-gun areas like NJ among others will ignore the ruling anyways and carefully craft their legislation to duck the verdict, as Chicago did post-Heller. If no-issue is upheld, PRO-RIGHTS states will protest and the same thing happens going the other way.

    Further- and here’s whats really keeping the justices’ up at night- a verdict establishing that the US Constitution supersedes existing state legislation is opening a legal can of worms which goes beyond firearms. If the Government has to respect an individual right to keep and carry guns, then it must also respect the other rights too.
    As in:
    No more “Terry Stops”.
    No more ” no knock warrants”
    No more “EPA”
    No more ” Affordable Healthcare Act”
    No more “CARB”.
    No more “Safe Handgun Roster” (infringes on the keep aspect of the RKBA)
    No .




    That’s a legal time bomb the current SCOTUS panel is unwilling to set off.

      • The Roberts court demonstrated that attitude with the Obamacare-as-tax ruling. Chief Justice Roberts actually said that he doesn’t want major decisions coming from the court, and certainly not as a 5-4 ruling.

    • Utter nonsense. The Court has already ruled that the Second Amendment applies to the States–the question is what that means. The scope of permissible limitations on the right to bear arms has not been answered by this court. Further, all fifty states have a concealed carry law–even if it is impossible in some states, or some areas of some states, to get a CCW. The supremacy of federal law is well recognized, but there is the whole sticky wicket (legally speaking) of when federal law pre-empts state or local laws. (Heck, it’s a difficult issue deciding when state law pre-empts local laws.)

    • “SCOTUS is not going to take a case which puts their credibility at risk .”

      I think you’ve got it backwards.
      If they don’t take Drake and let the 3rd Circuit ruling stand, they’d be letting a lower court make a mockery of McDonald.
      That would put they’re credibility far more at risk than would taking a controversial case and ruling on it 5-4*. In fact, it would make the Heller and McDonald rulings a joke.
      Honestly, they’d be better off taking the case and upholding justifiable need, but by some more defensible reasoning, than just ignoring the issue (including the circuit split).

      I think the rumor about lining up a 6th vote seems plausible. Hell, it may even mean this:

      “Question: What does it mean for the Court to relist a case?

      Answer: When a case is “relisted,” that means that it is set for reconsideration at the Justices’ next Conference. Unlike a hold, this will show up on the case’s electronic docket. A relist can mean several things, including the fairly straightforward prospect that one or more Justices wants to take a closer look at the case; that one or more Justices is trying to pick up enough votes to grant review (four are needed); THAT THE JUSTICES ARE WRITING A SUMMARY REVERSAL (THAT IS, A DECISION THAT THE LOWER COURT OPINION WAS SO WRONG THAT THE COURT CAN DECIDE THE CASE ON THE MERITS WITHOUT BRIEFING OR ORAL ARGUMENT); or that one or more Justices are writing a dissent from the decision to deny review.”


      Also, the list of issues you posted doesn’t make any sense. Those issues (most of them) were settled by SCOTUS. Ruling (as the 9th did in Peruta) that justifiable need violates the 2nd would have no bearing on any of those matters.


      *Anyone who’s studied Constitutional Law (i.e. everyone in the legal proffesion, including legislators) is well aware that SCOTUS decides most issues on the basis of politics and the rationale is basically an excuse for the ruling, not the reason behind it.
      They’d be doing no dmage to their credibility by doing so once again in this case.

      • Ah, no. Thanks for playing.

        If you think the Supreme Court is going to issue a summary opinion that reverses the Third Circuit, without briefing on the merits or oral argument, you’re smoking something. 😉
        In a case of this magnitude, it’s just not going to happen . . . summary reversals from S.Ct. are all but unheard of anyway, and on a major case . . . no way.

        • Yeah, I don’t think so either, but even that’s more plausible than saying they’re avoiding this case for fear of looking bad.

        • I think it’s unlikely that SCOTUS will issue a summary reversal, but as Alpo says, that’s far more likely than “avoiding” the case because the justices think it will look “bad.” SCOTUS takes controversial cases all the time.

        • I partly believe a summery reversal may be exactly what might happen. My line of reasoning (Which I admit I really do not know much about the process) is that by doing so they may be able to keep their ruling much more narrow than if they heard the case. I would think that if they chose to hear the case it would inevitably mean they would have to chose a standard to hold firearm laws too. That would end up being a huge upheaval in the firearm laws, which I don’t think they want to happen (that fast, or maybe at all). I would think that a summery reversal could be much more limited in scope, and therefore not bring all those anti gun laws crashing down.

      • I tend to agree with you, Alpo that we probably won’t see a summary and I agree that the 3rd’s decision was extremely weak. Not only weak, but offensive in it’s “long standing” justification. Anyone who studies Court history laughs at that argument in light of Dred Scott, Plessey and other Civil Rights decisions. This is a major Constitutional question and I think Scalia is so offended by the 3rd that he will not allow it to dictate the Court’s ultimate stand on the breath of the Second Amendment.

      • True, plus if places like Chicago sidestepped the MacDonald ruling then they’d just do that for any New Jersey ruling, and there’d be no need to make a great uproar, just as there was no great uproar over MacDonald. (Uproar, yes, but not great uproar like ST seems to think.)

  7. The title of this post is misleading. SCOTUS hasn’t “shunned” anything (yet). And if Scalia really is trying to line up a sixth (!) vote, then that’s HUGE.

  8. Misfire, RF . . . . .

    Court hasn’t “shunned” it, at least not yet. They just haven’t ruled on the cert petition yet. They’ve already relisted Drake for conference once before, and as an article on SCOTUSBLOG reported last week, that’s becoming more common for cases that they ultimately accept. Don’t be surprised if this case isn’t relisted for conference again . . . .

    And as far as the “rumors that Scalia is trying to round up a sixth vote,” that’s probably more wishful thinking or speculation that’s morphed into a “rumor” than any sort of accurate leak from inside the Court. Speaking as a former law clerk to a federal appellate judge, the judges and their staff keep an *extremely* tight leash on information about pending cases, and anybody caught leaking that kind of information would be utterly finished professionally (and remember, the people working for the Supreme Court who have access to that level of information typically have very high ambitions and extremely good job prospects — they’re not going to risk everything by violating their justice’s confidences).

    I’m not saying such leaks never, ever happen, but I can say that the vast, vast majority of the time I hear a report based on “rumors from the Supreme Court,” they turn out not to have been based on anything accurate.

  9. “Rumor has it Justice Scalia’s trying to line up a sixth vote before they grant cert.”

    1. “shunned” implies they denied cert. In fact, nearly every case they have granted since Jan has been relisted at least once. See here:

    The fact that they are holding it and not denying it is good news, not bad. They denied Embody last week.

    2. There are number of speculative rumors why they are holding it. Have not heard the “Scalia is looking for a 6th” one but I highly doubt it. More likely: they are waiting for Peruta (which is still clogged with motions, see here ), and/or signalling to the 9th circuit they are interested in the case. Another plausible theory is that they are wordsmithing the question (which they do from time to time, the question presented in Peruta was one more succinct question, the one in Drake is two).

    Of all the theories I have heard, the Peruta theory is the most likely. The fact that they have held the case is actually great news. If they are signalling to the 9th, look for Peruta to get denied en banc, the motion for Harris to intervene to be granted, and Peruta and Drake to go to SCT next term together.

    • I agree with everything except holding for Peruta. While certainly a possibility, Peruta will be tied up for a couple of months if AG Harris is allowed to intervene, just deciding the motion for rehearing en banc. And I would guess that that might be too long to hold Drake. But then again, the Supremes can do whatever they pleas, and it would make sense to decide the issue for all the “may issue” circuits all at the same time.

      • There’s really no need to hold off for Peruta if they’re going to overturn ‘may issue’.
        A. McDonald settled incorporation of the 2nd. Thus, no matter what happens in the 9th circuit, Drake would apply to California (and every other state).
        B. NJ’s argument is especially weak, making it much easier to rule against justifiable need.

        If they’re going to let the ‘need’ test stand, it would be better to do so via Drake, again, because of the state’s weaker argument. Otherwise, they’ll keep getting requests for cert from NJ due to the distinguishable nature of NJ’s restrictions (a lot of citizens in California can get ccw, especially in more rural counties, whereas in NJ it’s effectively no issue across the board).

        NB: They definitely already know which way Scalia, Roberts, Alito and Thomas will rule. Kennedy is probably keeping quiet, which would explain Scalia’s courting of Kagan as a safety vote.

        • There could be 400 reasons why Drake is not a good case for may issue, even if they do want to overturn it. For example, if it turns out that they need to rule on licensing or something else in the NJ statute that they are not ready to consider, that could prevent them from taking the case because it would be too broad. Or, perhaps because of some other feature of NJ law, they do not actually reach the question (keep in mind, they only rule on the question asked regardless of how they feel about the questions not asked).

    • Roberts and the ACA ruling really means nothing here.

      The ACA ruling, while disappointing, was constitutionally sound.
      Yes, it could have gone the other way, but that doesn’t mean it was totally outrageous (just in terms of it’s constitutionality).

      Not to go off on a tangent here, but SCOTUS has a history of ethically good rulings that were legally weak, ethically bad rulings that were legally sound and others that were both ethical and sound or unethical and unsound.

      Brown v. Board of Ed.- Right decision : Legally weak.
      Korematsu v. U.S.- Bad decision : Legally sound.
      D.C. v. Heller- Right decision : Legally sound.
      Roe v. Wade- Depends on your politics/religion : Legally ridiculous.
      NFIB v. Sebelius- Depends on your politics : Legally acceptable.

  10. The court could be waiting to see if peruta goes en banc. They don’t want to hear from Gura again and they could consolodate the cases, or take peruta and leave drake behind, giving Paul Clement the argument or at worst split time like they did in McDonald which hacked off Gura.

  11. Does anyone think like me that Scalia is willing to take one for the team and is doing Kagan on these “hunting” trips?

    • NO!!! Eeeoooo. I need brain bleach to remove that image from my mind’s eye.

      But that was funny!

  12. I’ve got a brother down there. Unexpectedly, he and his wife went to a range to shoot over the weekend, shattering my suspicions that they might be at least borderline anti-gun. They enjoyed it and now they’re excitedly talking about getting their carry permits. How do I break it to them without crushing their new enthusiasm?

  13. As a New Jersey resident, the wait is torturous. I surely hope it’s a good sign, but given New Jersey’s history of politics, I’m not holding out hope that this is really going to improve the life of a gun owner in the Garbage State.

    • Also NJ resident, but more optimistic.
      The good (great) thing about this being a federal issue is that NJ will have no say if Drake wins.

      • Most gun grabbers seem to be more or less lawless, but at least a favorable ruling will make it harder for them.

      • Maybe not, but the sleazy and corrupt NJ politicians will quickly find ways to impose other restrictions in the application process. Right now you need 3 references, each of whom must have known you for at least 3 years prior. Why not change that to 5 references and 5 years or something even more restrictive? I’m sure they’ll come up with something creative other than ‘justifiable need.’ So even if Drake wins, NJ residents will not. Maybe I’m too cynical, but this is NJ. Politicians are the last ones to obey laws.

        • ^ This, or heavily exorbitant fees, 24 hours of training, psychological evaluations from state-appointed psychologists, etc. New Jersey could EASILY lose this case and not change a damn thing about the functional impossibility of obtaining a permit.

          The only hope is that the Supremes don’t grant any extensions like they did in Illinois. New Jersey has a hard time doing anything politically in a reasonable time frame.

        • Yes, but NJ cops and politicians don’t care. I wish I could explain this better to people from ‘normal’ states, but the anti-gun attitudes of cops and politicians here are difficult to describe, other than “it ain’t gonna happen,” no matter what. As SuperiorPosture writes, the new requirements will most likely be mandatory training and very high fees associated with it, which will make it cost prohibitive for most people. There are many ways our politicians can circumvent the Drake decision if need be, don’t worry. And if anybody decides to fight the new restrictions, it’ll take years. When the politicians are up for re-elections, they can always say that they tried to keep the guns off the streets with those restrictions, or some nonsense like that. Most NJ residents will buy that.

  14. For every one that says that the Supreme Court is waiting on the 9th to decide if they will re hear their case, what difference does it make? Even if they were to reverse their decision I thought a split would still exist because of the 7th. So it’s not like they could just go well all the lower courts agree so we do not need to hear this case.

    • Well the 7th in Moore isn’t “as split” with the 2nd/3rd/4th circuits (Woolard, Kachalsky and Drake) as the 9th circuit is with Peruta/Richards/Baker.

      The Moore case said that there is a right to carry and hence the IL total ban on carry needs to go away. But they left open the possibility of may-issue. The reason we got a shall-issue bill is because we had enough pro-gunnie votes in the state legislature that a carry bill couldn’t pass without their approval and they weren’t going to approve may-issue. If no bill had passed the existing bans on carry would have expired with no new rules and they’d have “Vermont carry” (or “Constitutional carry”). So shall-issue won.

      The 2nd, 3rd and 4th circuits all *agreed* with Moore that there is a right to carry, but then all three said that “may issue” complies, the lying bastids. The 9th in Peruta said otherwise, and that’s the really big split.

  15. On one hand, I’m tired of this very good and ripe case being delayed. On the other hand there is no way in hell I want the USSC to issue a decision upholding ‘may-issue’ so you take as much time as you need, Scalia… he’s in good health, right?

  16. There is no final signal that can be sent by the 9th, that adds to the decision, inside the “grant cert or not” on Drake timeframe in front of the Supremes, even if that is 2 or evven 4 weeks longer.

    I doubt there is much horse-trading going on- its pretty clear cut, so IMHO, its more about taking the time to carefully lay out their best case, individually, yea or no,

    weak or strong majority,

    and most particularly- for the liberal judges, to create that logical structure, if its even possible, as a bulwark against the rage of the left, should they dare to disobey their masters.

    I’ll let someone else opine, but apparently- its fairly clear now- that

    Per Lawrence Tribe,

    Judge Sotomayer is out of her depth, so my guess she is relying on the same sort of intellect-challenged but idealogical ly pure nitwits who made such fools of themselves for San Diego and the State of CA in front of the 9th, flinging stuff against the wall to see what would stick…


    Judge Kagan DOES have the depth, and here is the ethical quandary I would guess she is in, IMHO – will she squander whatever reputation for integrity and intellectual weight she has worked so hard to establish, and weaken the foundation of any reputation she will need to accomplish, per her higher powers, or beliefs, or role model she represents- whatever it is that progressives use as the ends that justify the means,

    or will she deliver the vote to, ie the payola to Obama and his left-progtard puppetmasters now.

    I guess it comes down to intellectual ethics vs the popularity contest.

    • sorry, the edit function is not working here- I meant to say- AND- will she squander her hard work, and reputation for intellectual weight, to deliver the dissent, ie will she deliver the payola to the leftist progressives who hired her.

  17. If you trust scotus to side with 2a on this, I’ve got some bad news…and also a bridge for sale.

  18. Supreme Court Refuses to Hear Major Second Amendment Case
    Damon Root | May. 5, 2014 9:52 am

    The U.S. Supreme Court has not heard a single Second Amendment case since issuing its landmark gun rights rulings in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010).

    Unfortunately for gun rights advocates, that silence went unbroken today. In a major announcement this morning, the Supreme Court refused to hear Drake v. Jerejian, a case challenging the constitutionality of New Jersey’s arbitrary rules governing the right to carry handguns in public for purposes of self-defense.

    The lawyer behind the case is Alan Gura, the civil rights litigator who previously argued and won both Heller and McDonald before the high court. In an interview with me last month, Gura explained his reasons for bringing the Drake case. “We’ve seen courts rubberstamp just about any kind of law that violates the Second Amendment,” he said, describing the legal climate in the wake of Heller and McDonald. “Unless the Supreme Court decides to enforce its pronouncements, the Second Amendment will apply only to the extent that some lower courts are willing to honor Supreme Court precedent.”

    It now appears the Supreme Court is content to let the lower courts keep rubberstamping away.

    Drake v. Jerejian deserved the high court’s attention. At issue was New Jersey’s Handgun Permit Law, which requires applicants to prove they have a “justifiable need” before local officials will issue a handgun carry permit. Unlike those states that maintain a “shall issue” permit regime, where applicants are required to satisfy a clear list of objective criteria, such as completing a firearms safety course and passing a criminal background check (if you meet the qualifications, the government “shall issue” you a permit), New Jersey grants local officials wide leeway in determining what qualifies as a “justifiable need” in their respective jurisdictions.

    The practical effect of that wide leeway has been the overwhelming denial of permit applications by local officials. In the words of state Sen. Jeff Van Drew (D-Cape May), “It’s virtually never done.”

    “Americans are not required to justify their need to exercise a fundamental right,” Gura stressed in his interview with me. “If the government can force you to provide a reason to exercise your right, then it’s no longer a right.”

    The U.S. Court of Appeals for the 3rd Circuit, by contrast, which ruled against Gura in 2013, saw no constitutional problem with the state’s licensing scheme because it “does not burden conduct within the scope of the Second Amendment.”

    By refusing to hear the Drake appeal today, the Supreme Court left that ruling by the 3rd Circuit undisturbed. Yet in 2012, the U.S. Court of Appeals for the 7th Circuit, in Moore v. Madigan (another case brought by Alan Gura), reached the opposite conclusion, voting to strike down Illinois’ blanket ban on carrying guns in public. “The 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,” the 7th Circuit held.

    The Supreme Court should have tackled that circuit split head on. Because it failed to do so, the Second Amendment now means one thing for responsible gun owners living in New Jersey and another thing for those living in Illinois.

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