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 

__________

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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.

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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

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(“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).1The 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).

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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. 

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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).

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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 

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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).

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“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.5In 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. 

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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-yetundefined, 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 

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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. 

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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 selfdefense 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 

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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 

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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.

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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 

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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.

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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 

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“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 nonviolent 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 

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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. 

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20

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 

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21

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 meansend 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”).

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22

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

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23

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 selfdefense. 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). 

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24

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. 

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25

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. 

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26

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.

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27

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. 

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28

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 

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29

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 

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30

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).

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31

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.

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32

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.

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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,1and 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-

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2

contrast, four States and parts of Montana allow concealed 

carry without a permit3and 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. 

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3

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 “shallissue” 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). 

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4

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). 

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5

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). 

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6

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 mayissue 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. 

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7

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 

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8

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. 

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9

“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 

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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 

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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 selfdefense. 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. 

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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 

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that the amendment confers a right to bear arms for selfdefense, 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 lawabiding citizens to possess non-dangerous weapons for selfdefense 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 

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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 selfdefense 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. 

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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. 

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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 

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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.

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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). 

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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 

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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 

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[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. 

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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 

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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 

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24

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.

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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) 

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(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 selfprotection? Unlike the cases and statutes discussed above, 

New York’s proper cause requirement does not operate as a 

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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 selfdefense 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 

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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. 

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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 

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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). 

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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

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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 

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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, 

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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 

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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. 

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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. 

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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 

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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

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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-inthe-u.s/2011/crime-in-the-u.s.-2011/tables/expandedhomicide-data-table-8 (last visited July 16, 2013).

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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. 

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