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UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

DANIEL J. PISZCZATOSKI; JOHN M. 

DRAKE; GREGORY C. GALLAHER; LENNY 

S. SALERNO; FINLEY FENTON; SECOND 

AMENDMENT FOUNDATION, INC.; and 

ASSOCIATION OF NEW JERSEY RIFLE & 

PISTOL CLUBS, INC., 

 

 Plaintiffs, 

 

 v. 

THE HON. RUDOLPH A. FILKO, in his 

Official Capacity as Judge of the Superior 

Court of Passaic County; THE HON. 

EDWARD A. JEREJIAN, in his Official 

Capacity as Judge of the Superior Court of 

Bergen County; THE HON. THOMAS A. 

MANAHAN, in his Official Capacity as Judge 

of the Superior Court of Morris County; COL. 

RICK FUENTES, in his Official Capacity as 

Superintendent of the New Jersey State 

Police; CHIEF ROBERT JONES, in his 

Official Capacity as Chief of the Hammonton, 

New Jersey Police Department; CHIEF 

RICHARD COOK, in his Official Capacity as 

Chief of the Montville, New Jersey Police 

Department; and PAULA T. DOW, in her 

Official Capacity as Attorney General of New 

Jersey, 

 Defendants. 

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Walls, Senior District Judge 

 This case presents a facial challenge to the constitutionality of the New 

Jersey law governing permits to carry handguns. The challenged provisions in N.J. 

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Stat. § 2C:58-4 and the attendant regulations (the “Handgun Permit Law”) require 

permit applicants to demonstrate a “justifiable need to carry a handgun,” first to a 

police official and then to a Superior Court judge. N.J. Stat. Ann. § 2C:58-4(c)–(d) 

(2011). 

The plaintiffs, five individuals denied handgun permits and two issue 

advocacy organizations, assert that the Handgun Permit Law is facially 

unconstitutional because it encroaches upon an alleged fundamental right to carry 

operable handguns for self-defense under the Second Amendment of the United 

States Constitution. Compl. ¶ 91. The plaintiffs allege that the Handgun Permit 

Law vests “uncontrolled discretion” in state officials to deny permits, which they 

challenge as a prior restraint. Id. ¶¶ 101–04. The plaintiffs further allege that 

requiring an applicant to demonstrate a “justifiable need” for self-protection is an 

impermissible burden on the asserted Second Amendment right. Id. ¶¶ 107–09. 

 The plaintiffs move for summary judgment seeking declaratory and 

injunctive relief. The defendants oppose this motion and cross-move to dismiss the 

case for failure to state a claim. Oral argument was heard on both motions. 

 At the outset, it is noted to any reader of this Opinion that this Court shall be 

careful – most careful – to ascertain the reach of the Second Amendment right that 

the plaintiffs advance. That privilege is unique among all other constitutional rights 

to the individual because it permits the user of a firearm to cause serious personal 

injury – including the ultimate injury, death – to other individuals, rightly or 

wrongly. In the protection of oneself and one’s family in the home, it is a right use. 

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In the deliberate or inadvertent use under other circumstances, it may well be a 

wrong use. A person wrongly killed cannot be compensated by resurrection. 

The Court finds that the Handgun Permit Law is not facially 

unconstitutional. The Handgun Permit Law does not on its face burden protected 

conduct because the Second Amendment does not include a general right to carry 

handguns outside the home. Alternatively, if the scope of the Second Amendment 

were interpreted to include a right to carry handguns outside the home for selfdefense, the Court finds that the challenged provisions do not on their face 

unconstitutionally burden the protected conduct. The prior restraint doctrine does 

not apply in the Second Amendment context and would be inapposite because the 

statutory scheme does not vest uncontrolled discretion in state officials to deny 

permits. The justifiable need requirement survives intermediate scrutiny because it 

is sufficiently tailored to governmental interests in regulating the possession of 

firearms outside the home. The Court denies the plaintiffs’ motion for summary 

judgment and grants the defendants’ motion to dismiss. 

FACTUAL AND PROCEDURAL BACKGROUND 

Using a “careful grid of regulatory provisions,” New Jersey closely regulates 

the possession and use of firearms within the state. In re Preis, 573 A.2d 148, 150 

(N.J. 1990). The possession of firearms is a criminal offense unless a specific 

statutory exemption applies. N.J. Stat. Ann. § 2C:39-5 (2011). These exemptions 

generally allow eligible individuals to carry firearms for specific purposes, such as 

hunting or target practice. Id. § 2C:39-6(f)(1)–(2). The exemptions “draw careful 

lines between permission to possess a gun in one’s home or place of business and 

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permission to carry a gun.” In re Preis, 573 A.2d at 150 (citations omitted). A person 

may generally keep or carry firearms “about his place of business, residence, 

premises or other land owned or possessed by him.” N.J. Stat. Ann. § 2C:39-6(e) 

(2011). This exemption also allows for the secure transportation of unloaded 

firearms between a person’s dwelling and place of business. Id. Outside one’s home, 

property, or place of business, the exemptions allowing possession and use of 

firearms are otherwise more restricted. 

The plaintiffs challenge only the limited exemption that permits a person to 

carry a handgun for self-defense outside his or her home, property, or place of 

business. Unless a specific statutory exemption otherwise applies, a person may 

legally carry a handgun for self-defense only if that person first applies for and 

obtains the necessary permit. Id. § 2C:39-5(b). To qualify for a permit under the 

Handgun Permit Law, an applicant must demonstrate that he or she (1) is a person 

of good character who is not otherwise disqualified as a result of any statutory 

disabilities, (2) is thoroughly familiar with the safe handling and use of handguns, 

and (3) “has a justifiable need to carry a handgun.” Id. § 2C:58-4(d). 

New Jersey courts use a “core substantive standard” to determine whether 

there is “justifiable need” for a private citizen to be issued a permit to carry a 

handgun. In re Preis, 573 A.2d at 151–52. This standard requires “an urgent 

necessity for self-protection” based on “specific threats or previous attacks 

demonstrating a special danger to the applicant’s life that cannot be avoided by 

other means.” Id. at 152 (citing Siccardi v. State, 284 A.2d 533, 540 (N.J. 1971)). 

Neither “generalized fears for personal safety” nor the “need to protect property 

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alone” satisfy the standard. Id. New Jersey’s permit to carry regulation reflects this 

standard, requiring applicants to submit written certification of justifiable need 

which details 

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. Where possible the applicant shall 

corroborate the existence of any specific threats or previous attacks by 

reference to reports of such incidents to the appropriate law 

enforcement agencies . . . . 

N.J. Admin. Code § 13:54-2.4(d)(1) (2011). 

The application process for handgun permits involves several tiers of review. 

Permit applications are first presented for investigation and preliminary approval 

to a designated police official, either the chief of police of the municipality in which 

the applicant resides or, under certain circumstances, the state police 

superintendent. N.J. Stat. Ann. § 2C:58-4(c) (2011). If the police official denies the 

initial application, then the applicant may request a hearing before a judge on the 

New Jersey Superior Court. Id. § 2C:58-4(e). If the police official approves the initial 

application, then the applicant presents his or her application to a Superior Court 

judge for final approval and issuance. Id. § 2C:58-4(d). If the judge is satisfied that 

the applicant meets the requirements, the court must approve the application and 

issue the permit. Id. Any determination that the applicant does not meet the permit 

requirements is subject to full appellate review. Id. § 2C:58-4(e). See In re Preis, 573 

A.2d at 150; In re Application of Borinsky, 830 A.2d 507, 508 (N.J. Super. Ct. App. 

Div. 2003). 

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On November 22, 2010, the plaintiffs filed the complaint in the current action 

as a facial constitutional challenge to the Handgun Permit Law. Individual 

plaintiffs Daniel J. Piszczatoski, John M. Drake, Gregory C. Gallaher, Lenny S. 

Salerno, and Finley Fenton are each a New Jersey resident who asserts that his 

application for a handgun permit was denied under the challenged law solely on the 

grounds that he lacked a justifiable need to carry a handgun. Compl. ¶¶ 30–82. 

Jeffrey M. Muller was originally the lead plaintiff in this case, but he was granted a 

permit while this case was pending. Mots. Hr’g Tr. 3, Oct. 27, 2011. Muller’s claims 

are now moot and were dismissed by stipulation of the parties on November 1, 2011. 

Stipulation of Dismissal & Substitution ¶ 1. Organizational plaintiffs Second 

Amendment Foundation, Inc. (“SAF”) and Association of New Jersey Rifle & Pistol 

Clubs, Inc. (“ANJRPC”) are non-profit advocacy groups that bring this suit on 

behalf of their membership, which includes individuals who have been denied 

permits or who have not applied for permits because they failed to meet the 

justifiable need requirement.1 Compl. ¶¶ 83–89; Pls.’ Reply Br. 6–7. 

Defendants are state and local officials sued in their official capacities based 

on their responsibility for approving applications for permits to carry handguns or 

otherwise executing and administering New Jersey handgun laws and regulations. 

New Jersey Superior Court Judges Edward A. Jerejian, Rudolph A. Filko, and 

Thomas A. Manahan are sued based on their designated roles in approving and 

                                                            

1 The defendants challenge the standing of the organizational defendants. Defs.’ Br. 10–11. The 

Court need not reach this question because it is not disputed that the individual plaintiffs have 

standing. Where injunctive and declaratory relief are sought, courts need not reach the question of 

whether additional plaintiffs have standing. See Village of Arlington Heights v. Metro. Hous. Dev. 

Corp., 429 U.S. 252, 264 n.9 (1977); see also Horne v. Flores, 129 S. Ct. 2579, 2592 (2009) (“Because 

the superintendent clearly has standing to challenge the lower courts’ decisions, we need not 

consider whether the Legislators also have standing to do so.”).

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issuing permits in their respective counties. Compl. ¶¶ 18–22. Superior Court Judge 

Philip J. Maenza was dismissed as a party on November 1, 2011 after plaintiff 

Jeffrey Muller’s claims became moot. Stipulation of Dismissal & Substitution ¶ 2. 

Defendants also include police officials responsible for investigating and approving 

permit applications, namely Col. Rick Fuentes as Superintendent of the New Jersey 

State Police and municipal chiefs of police Robert Jones in Hammonton, New Jersey 

and Richard Cook in Montville, New Jersey. Compl. ¶¶ 23–25; Stipulation of 

Dismissal & Substitution ¶ 3. Defendant Attorney General Paula T. Dow is sued in 

her role as Attorney General of the State of New Jersey. Compl. ¶ 26. 

STANDARD OF REVIEW 

The plaintiffs move for summary judgment, which the defendants oppose. 

Summary judgment is appropriate where the moving party establishes that “there 

is no genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law.” Fed. R. Civ. P. 56(a). All parties agree that this lawsuit presents 

purely legal issues and ask the Court to resolve the suit based solely on the motions 

submitted. Letter from Pls. and Defs., Dec. 8, 2010, ECF No. 9. 

The defendants cross-move under Federal Rule of Civil Procedure 12(b)(6) for 

dismissal of the complaint for failure to state a claim. To withstand a motion to 

dismiss, a complaint must permit the “reasonable inference that the defendant is 

liable for the conduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 

(2009). The court must “accept all factual allegations as true, construe the 

complaint in the light most favorable to the plaintiff, and determine whether, under 

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any reasonable reading of the complaint, the plaintiff may be entitled to relief.” 

Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297, 306 (3d Cir. 2007). 

As said, this suit presents a facial challenge to New Jersey’s handgun permit 

regulations. To prevail, the plaintiffs must establish that “no set of circumstances 

exists under which [the Handgun Permit Law] would be valid, i.e., that the law is 

unconstitutional in all of its applications.” United States v. Barton, 633 F.3d 168, 

172 (3rd Cir. 2011) (citation omitted). The Third Circuit does not “recognize an 

‘overbreadth’ doctrine” in the context of the Second Amendment. Id. at 172 n.3. This 

doctrine allows plaintiffs to prevail on a facial challenge by showing that the statute 

operates unconstitutionally under some particular sets of circumstances rather than 

in every circumstance. Although recognized in the limited context of the First 

Amendment, the Supreme Court has explained that this doctrine should be applied 

extremely sparingly and only in light of particular First Amendment concerns. See 

New York v. Ferber, 458 U.S. 747, 766–73 (1982). 

DISCUSSION 

Modern Second Amendment doctrine is a relatively new frontier. In its 2008 

decision, District of Columbia v. Heller, the Supreme Court explicitly recognized for 

the first time that the Second Amendment confers an individual right to keep and 

bear arms. 554 U.S. 570, 595 (2008). The Court held that a District of Columbia law 

which forbade the individual possession of useable handguns in the home violated 

the Second Amendment. Id. Justice Scalia, writing for the majority, held that the 

Second Amendment “elevates above all other interests the right of law-abiding, 

responsible citizens to use arms in defense of hearth and home.” Id. at 635. At the 

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same time, the Justice wrote that the Second Amendment does not confer “a right to 

keep and carry any weapon whatsoever in any manner whatsoever and for 

whatever purpose.” Id. at 626. The Court did not “undertake an exhaustive 

historical analysis . . . of the full scope of the Second Amendment,” id., and also 

“declin[ed] to establish a level of scrutiny for evaluating Second Amendment 

restrictions.” Id. at 634. Instead the Court held that a total ban on handgun 

possession in the home is unconstitutional under “any of the standards of scrutiny 

that we have applied to enumerated constitutional rights . . . .” Id. at 628. Later in 

McDonald v. City of Chicago, the Supreme Court determined that the Second 

Amendment applies to state as well as federal laws through the Fourteenth 

Amendment, but provided little additional guidance on how it should be applied. 

130 S.Ct. 3020, 3026 (2010); see United States v. Marzzarella, 614 F.3d 85, 88 n.3 

(3d Cir. 2010) (“McDonald dealt primarily with the incorporation of the Second 

Amendment against the states and does not alter our analysis of the scope of the 

right to bear arms.”) (internal citation omitted). 

In the wake of Heller and McDonald, lower courts have endeavoured to 

resolve the uncertainty left by these decisions by (1) outlining the appropriate scope 

of the individual Second Amendment rights defined in Heller and (2) determining 

the appropriate standard of scrutiny for federal, state, and local laws that may 

burden these rights. See United States v. Masciandaro, 638 F.3d 458, 467 (4th Cir.), 

cert denied, No. 10-11212, 2011 WL 2516854 (Nov. 28, 2011). The Third Circuit has 

marked “a two-pronged approach” to Second Amendment challenges that addresses 

these issues sequentially. Marzzarella, 614 F.3d at 89. First, the Court considers 

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“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.” Id. (internal 

citation omitted). Similar two-step approaches have been adopted in other circuits 

as well. See Heller v. District of Columbia, No. 10-7036, 2011 WL 4551558, at *5 

(D.C. Cir. Oct. 4, 2011) (hereinafter “Heller II”); Ezell v. City of Chicago, 651 F.3d 

684, 702–04 (7th Cir. 2011); United States v. Chester, 628 F.3d 673, 680 (4th Cir. 

2010); United States v. Reese, 627 F.3d 792, 800–01 (10th Cir. 2010). 

I. The Handgun Permit Law does not burden conduct protected 

by the Second Amendment. 

The first question is whether the challenged law “regulates conduct that falls 

within the scope of the Second Amendment.” Marzzarella, 614 F.3d at 89. To state a 

valid facial challenge, the plaintiffs must demonstrate that the challenged law is 

invalid as to every set of circumstances to which applied. Barton, 633 F.3d at 172. 

To do this, the plaintiffs must establish that the scope of the Second Amendment 

extends to all applications of the challenged law. See id. In other words, the Second 

Amendment must protect the right to carry a handgun for self-defense wherever the 

Handgun Permit Law requires applicants to apply for a permit and demonstrate a 

justifiable need for self-protection. This Court finds that the challenged law is not 

facially unconstitutional because it can be applied without creating a burden on 

protected conduct. The Second Amendment does not protect an absolute right to 

carry a handgun for self-defense outside the home, even if the Second Amendment 

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may protect a narrower right to do so for particular purposes under certain 

circumstances. 

The Second Amendment reads: “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.” U.S. Const. amend. II. From an extensive textual and historical 

analysis, Heller determined that this language was adopted to protect a pre-existing 

individual right to possess and carry weapons in certain circumstances. Heller, 554 

U.S. at 592–95. Because the specific question before the Supreme Court was 

whether the District of Columbia’s prohibition of keeping useable handguns in the 

home violated the Second Amendment, Heller clearly held that the Second 

Amendment protects at its core an individual right to possess and use a handgun 

for self-defense within the home. Id. at 635 (“[W]hatever else it leaves to future 

evaluation, [the Second Amendment] surely elevates above all other interests the 

right of law-abiding, responsible citizens to use arms in defense of hearth and 

home.”). While Heller did not establish a right to carry a handgun for self-defense 

outside the home, the majority opinion did not explicitly foreclose later extension of 

the core right. 

Because New Jersey’s Handgun Permit Law does not affect one’s ability to 

legally carry a handgun in one’s home, private property, or place of business, this 

case requires that this Court address the extent to which the Second Amendment 

protects a right for individuals to carry handguns outside the home. As the Fourth 

Circuit has explained, a “dilemma faced by lower courts in the post-Heller world” 

has been “how far to push Heller beyond its undisputed core holding.” Masciandaro, 

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638 F.3d at 475. Since neither the Supreme Court nor the Third Circuit has decided 

the extent to which the Second Amendment applies outside the home, this Court 

looks at the question through the lens of the reasoning of Heller and McDonald as 

applied by the Third Circuit and, where relevant, other circuits. 

The parties here advance competing interpretations of the scope of the 

individual Second Amendment right to keep and bear arms outside the home. Based 

on a broad reading of the majority opinion in Heller, the plaintiffs argue that the 

Second Amendment protects a “general right to carry handguns, in public, for selfdefense” and that protected conduct is necessarily burdened by the challenged law. 

Pls.’ Br. 15. The defendants reply that the conduct regulated by the challenged law 

is outside the scope of the Second Amendment because Heller and McDonald 

recognized only the “right to possess a handgun in the home for the purpose of selfdefense” and that there is no basis for extending this right beyond the home. Defs.’ 

Br. 13–14. The plaintiffs counter that Heller “plainly recognize[s] that the right to 

keep and bear arms is not confined to the home, and that the home is merely a place 

where the right is at its zenith.” Pls.’ Reply Br. 17. 

A. Heller recognized only an individual right to carry handguns for 

self-defense in the home. 

The focus of the plaintiffs’ argument is a textual emphasis on Heller’s 

interpretation of the language of the Second Amendment’s protection of the 

individual right to “bear” arms as a right to “carry” firearms in non-sensitive places. 

The plaintiffs insist that Heller “necessarily ruled – held – that the Second 

Amendment protects an enumerated right to carry guns. This right does not hang 

on whether one is located in his or her home.” Id. at 9. Furthermore, they argue that 

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“a key aspect of the Court’s ruling was its conclusion that the Second Amendment’s 

right to ‘bear Arms’ is not an idiomatic reference, but is instead a general right to 

carry firearms.” Id. at 12. 

Even though Heller uses some broad language in recognizing an individual 

right to bear arms, closer inspection reveals that plaintiffs’ argument ultimately 

misses the mark. Heller’s recognition of the right to “bear” arms as a right to “carry” 

does not inexorably lead to the conclusion that there is a general right to carry arms 

outside the home. Instead, this definition simply serves to emphasize the nature of 

the right as an individual right to carry “for a particular purpose – confrontation.” 

Heller, 554 U.S. at 584. Heller found that the individual right to carry a firearm for 

confrontation was obviously not an “unlimited” right to carry “for any sort of 

confrontation,” but included a right to carry a handgun “for self-defense in the 

home.” Id. at 595, 636. The District of Columbia could not require that a handgun 

be kept inoperable in the home and could not “prevent a handgun from being moved 

throughout one’s house.” Id. at 584 (quoting Parker v. District of Columbia, 478 

F.3d 370, 400 (D.C. Cir. 2007)). 

The language of Justice Scalia’s majority opinion deliberately limited the 

scope of the right recognized to the home. The Southern District of New York 

recently noted that Heller’s focus on the right to carry a handgun “for the purpose of 

‘self-defense in the home’ permeates the Court’s decision and forms the basis for its 

holding—which, despite the Court's broad analysis of the Second Amendment’s text 

and historical underpinnings, is actually quite narrow.” Kachalsky v. Cacace, No. 

10-CV-5413, 2011 WL 3962550, at *19 (S.D.N.Y. Sept. 2, 2011). Judge Easterbrook 

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writing en banc for the Seventh Circuit explained that Heller’s language “warns 

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.” United States v. Skoien, 614 

F.3d 638, 640 (7th Cir. 2010) (en banc), cert. denied, 131 S.Ct. 1674 (2011). 

Even though notably the District of Columbia more generally prohibited 

handgun possession both inside and outside the home, the majority focused on the 

specific question presented – whether the Second Amendment protects an 

individual right to keep and carry handguns in the home. Heller, 554 U.S. at 574–

75, 628. As a result, Heller repeatedly and specifically limited itself to the home. 

Justice Scalia explained, “In sum, we hold that the District's ban on handgun 

possession in the home violates the Second Amendment, as does its prohibition 

against rendering any lawful firearm in the home operable for the purpose of 

immediate self-defense.” Id. at 635. He emphasized that “whatever else it leaves to 

future evaluation, [the Second Amendment] surely elevates above all other interests 

the right of law-abiding, responsible citizens to use arms in defense of hearth and 

home.” Id. As a result, the Second Amendment “necessarily takes certain policy 

choices off the table,” including “the absolute prohibition of handguns held and used 

for self-defense in the home.” Id. at 636. 

Much of Heller’s reasoning refers to the need for self-defense specifically in 

the home. Justice Scalia emphasized that the challenged statute “extends, 

moreover, to the home, where the need for defense of self, family, and property is 

most acute.” Id. at 628. He listed potential reasons that “a citizen may prefer a 

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handgun for home defense” and concluded that “handguns are the most popular 

weapon chosen by Americans for self-defense in the home, and a complete 

prohibition of their use is invalid.” Id. at 629. The reasoning is so tied to the holding 

that it loses context if one tries to broadly apply it, as the plaintiffs seek, to a 

general right to carry such weapons for self-defense outside the home. 

Heller’s reasoning leaves room for the possibility that the Second 

Amendment could apply to self-defense outside the home in limited circumstances, 

but does not recognize or even suggest a broad general right to carry arms. Justice 

Scalia insisted that “we do not undertake an exhaustive historical analysis today of 

the full scope of the Second Amendment.” Id. at 626. Because Heller was the 

Supreme Court’s “first in-depth examination of the Second Amendment,” he wrote 

that “one should not expect it to clarify the entire field . . . .” Id. at 635. He did 

emphasize that “the right was not a right to keep and carry any weapon whatsoever 

in any manner whatsoever and for whatever purpose.” Id. at 626. If the Supreme 

Court majority had intended to create a broader general right to carry for selfdefense outside the home, Heller would have done so explicitly. 

B. Courts have declined to extend Heller beyond its core holding to 

recognize a general right to carry for self-defense. 

Although the Third Circuit has not specifically considered whether the 

Second Amendment right to carry a handgun for self-defense extends outside the 

home, the court’s formulation of the scope of the right recognized in Heller is 

inconsistent with the plaintiffs’ arguments for a broad general right to carry for selfdefense outside the home. Consistent with the approach taken by the Third Circuit, 

other circuits have applied the right outside the home only in limited circumstances 

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or declined to reach the issue where alternative grounds for upholding a law are 

available. State courts and federal district courts have also consistently declined to 

recognize any broad general right to carry outside the home. 

In upholding a federal law criminalizing possession of a firearm with an 

obliterated serial number, the Third Circuit in Marzzarella noted that “Heller 

delineates some of the boundaries of the Second Amendment right to bear arms.” 

614 F.3d at 92. The circuit court interpreted Heller as holding that, “[a]t its core, 

the Second Amendment protects the right of law-abiding citizens to possess nondangerous weapons for self-defense in the home.”2 Id. (citing Heller, 554 U.S. at 

635). See also Barton, 633 F.3d at 170–71 (“At the ‘core’ of the Second Amendment 

is the right of ‘law-abiding, responsible citizens to use arms in defense of hearth and 

home.’”) (quoting Heller, 554 U.S. at 635). Although the law at issue in Marzzarella 

applied both within and outside the home, the court explicitly limited its 

formulation of the scope of Heller’s core right to carry for self-defense in the home. 

Marzzarella also observed that “certainly, to some degree, [the Second 

Amendment] must protect the right of law-abiding citizens to possess firearms for 

other, as-yet-undefined, lawful purposes.” 614 F.3d at 92. The examples the Third 

Circuit provided, however, were for purposes other than self-defense. Marzzarella 

specifically referred to Heller’s discussions of “hunting’s importance to the preratification conception of the right” and “the right to bear arms as a bulwark 

against potential governmental oppression.” Id. (citing Heller, 554 U.S. at 599). 

                                                            

2 The Third Circuit explained that the misleading term of art “non-dangerous weapons” refers 

specifically “to weapons that do not trigger Miller’s exception for dangerous and unusual weapons.” 

Marzzarella, 614 F.3d at 92 n.10. See Heller, 554 U.S. at 624–26 (citing United States v. Miller, 307 

U.S. 174, 178 (1939)). 

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While Marzzarella did not explicitly preclude the possibility that the Second 

Amendment right extends to self-defense outside the home, the Third Circuit 

clearly has not recognized or even suggested such a right. 

Other circuits have also recognized Heller’s limited definition of the right, 

even where the challenged law applied more broadly. The Seventh Circuit en banc 

in United States v. Skoien explained that “the Second Amendment creates 

individual rights, one of which is keeping operable handguns at home for selfdefense. What other entitlements the Second Amendment creates, and what 

regulations legislatures may establish, were left open.” 614 F.3d at 640. In Heller II, 

the District of Columbia Circuit applied Heller by considering whether certain novel 

registration requirements “make it considerably more difficult for a person lawfully 

to acquire and keep a firearm, including a handgun, for the purposes of self-defense 

in the home—the ‘core lawful purpose’ protected by the Second Amendment.” 2011 

WL 4551558, at *8 (citing Heller, 554 U.S. at 630). See also Moreno v. New York 

City Police Dep’t, No. 10-cv-6269, 2011 WL 2748652, at *3 (S.D.N.Y. May 7, 2011) 

(“Heller has been narrowly construed, as protecting the individual right to bear 

arms for the specific purpose of self-defense within the home.”), report and 

recommendation adopted, 2011 WL 2802934 (S.D.N.Y. July 14, 2011). 

Recognizing the uncertainty surrounding Heller’s application outside the 

home, the Fourth Circuit in Masciandaro explicitly declined to decide whether 

Second Amendment rights extended beyond the home in upholding a conviction 

under a federal law prohibiting possession of a loaded handgun in a motor vehicle 

within a national park. 638 F.3d at 474–75. Although Judge Niemeyer wrote for the 

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panel on all other issues, he wrote separately in finding that the law burdened the 

Second Amendment rights of an individual sleeping in his car with a handgun for 

self-defense. Id. at 468. That judge argued that “a plausible reading of Heller” could 

provide “a constitutional right to possess a loaded handgun for self-defense outside 

the home” that extended “at least in some form” to “wherever a person could become 

exposed to public or private violence.” Id. at 467–68. 

The majority specifically declined to follow his finding, upholding the 

conviction solely on the basis that the law would survive intermediate scrutiny even 

if it was found to burden protected conduct. Id. at 475. Describing the scope of 

Second Amendment rights as “a vast terra incognita,” the majority explained that 

there “may or may not be a Second Amendment right in some places beyond the 

home, but we have no idea what those places are” or even “what the criteria for 

selecting them should be . . . .” Id. Declining to “break ground that our superiors 

have not tread,” the majority noted that it was “not far-fetched to think” that Heller 

intentionally left open the applicability of the Second Amendment outside the home 

because the dangers of accidentally formulating the right to bear arms too broadly 

“would rise exponentially as one moved the right from the home to the public 

square.” Id. at 475–76. 

In finding that a statute banning firing ranges from Chicago likely violates 

the Second Amendment, the Seventh Circuit panel in Ezell v. City of Chicago 

recently recognized a limited Second Amendment right to bear arms outside the 

home. 651 F.3d 684, 710–11 (7th Cir. 2011). Because firing range training was a 

prerequisite to all lawful carry, including in the home, the statute at issue in Ezell 

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actually operated as a “complete ban on gun ownership within City limits” and 

“imposed an impossible pre-condition on gun ownership for self-defense in the 

home.” Id. at 711–12 (Rovner, J., concurring). Judge Sykes, writing for the majority, 

reasoned that the “right to possess firearms for protection implies a corresponding 

right to acquire and maintain proficiency in their use; the core right wouldn't mean 

much without the training and practice that make it effective.” Id. at 704. Notably, 

since N.J. Stat. § 2C:39-6(f) contains explicit provisions for the use of handguns for 

target practice, any similar right recognized in this circuit would not be burdened 

by the Handgun Permit Law. 

Judicial authority addressing this issue favors planting the right to selfdefense in the home or extending it outside the home only in a limited way. State 

and federal courts have consistently upheld statutory schemes comparable to New 

Jersey’s Handgun Permit Law on the grounds that they do not burden protected 

conduct. 

The Southern District of New York recently denied a constitutional challenge 

to a comparable New York state law. Kachalsky, 2011 WL 3962550, at *30. The 

New York law conditions licenses to carry handguns on a discretionary 

determination that “proper cause exists for the issuance thereof,” which has been 

“interpreted by New York state courts to mean ‘a special need for self-protection 

distinguishable from that of the general community or of persons engaged in the 

same profession.’” Id. at *1–2 (internal citations omitted). Kachalsky found that “the 

scope of the Second Amendment right in Heller does not extend to invalidate 

regulations . . . on carrying handguns.” Id. at *20. “[T]he language of Heller makes 

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clear that the Court recognized ‘not a right to keep and carry any weapon 

whatsoever in any manner whatsoever and for whatever purpose,’ but rather a 

much narrower right—namely the ‘right of law-abiding, responsible citizens to use 

arms in defense of hearth and home.’” Id. (quoting Heller, 554 U.S. at 626, 635). 

Even where the licensing law regulates possession in the home, the Southern 

District of New York has upheld it against constitutional challenge. See Moreno, 

2011 WL 2748652, at *4 (finding that as long as the denial of an “application 

comports with New York licensing laws—which regulate, but do not prohibit, 

firearm possession in the home—this Court finds that the denial is consistent with 

Heller and does not infringe upon [the applicant’s] Second Amendment rights”). 

The District of Hawaii also dismissed a constitutional challenge to a statute 

requiring an applicant to demonstrate need to carry a handgun outside the home. 

Young v. Hawaii, No. 08-cv-00540, 2009 WL 1955749, at *9 (D. Haw. Jul. 2, 2009). 

Reading Heller, the court concluded that it could not “identify any language that 

establishes the possession of an unconcealed firearm in public as a fundamental 

right. Heller held as unconstitutional a law that effectively banned the possession of 

a useable handgun in one’s home.” Id. 

State courts have also consistently upheld convictions for unlawful possession 

of a handgun in public without a permit despite arguments that the underlying 

permit laws were unconstitutional under the Second Amendment. The Maryland 

Court of Appeals upheld a conviction for possession of a handgun in public without 

a permit on the grounds that the permit requirement did not burden any Second 

Amendment rights. Williams v. State, 10 A.3d 1167, 1177–78 (Md. 2011), cert. 

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denied, Williams v. Maryland, No. 10-1207, 2011 WL 4530130 (Oct. 3, 2011). The 

court wrote “it is clear that prohibition of firearms in the home was the gravamen of 

the certiorari questions in both Heller and McDonald and their answers. If the 

Supreme Court . . . meant its holding to extend beyond home possession, it will need 

to say so more plainly.” Id. The Supreme Court declined to review that holding by 

its denial of certiorari. The statute upheld in Williams is similar to New Jersey’s in 

that one requirement to obtain a permit is that the 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.” 

Md. Code Ann., Pub. Safety § 5-301(d) (West 2003). Maryland’s regulations require 

consideration of the “[r]easons given by the applicant as to whether those reasons 

are good and substantial; . . . Whether the applicant has any alternative available to 

him for protection other than a handgun permit; . . . [and] Whether the permit is 

necessary as a reasonable precaution for the applicant against apprehended 

danger.” Md. Code Regs. 29.03.02.04 (2011). 

In People v. Dawson, the Illinois Appellate Court upheld the defendant’s 

conviction under a statute barring individuals from carrying loaded firearms. 

People v. Dawson, 934 N.E.2d 598, 604, 607 (Ill. App. Ct. 2010), cert. denied, 

Dawson v. Illinois, 131 S.Ct. 2880 (2011). The Illinois court noted that the Supreme 

Court “deliberately and expressly maintained a controlled pace” in outlining the 

scope of the Second Amendment and limited its holdings in both Heller and 

McDonald to “the right to possess handguns in the home, not the right to possess 

handguns outside of the home in case of confrontation . . . .” Id. at 605–06. Because 

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the statute did not prohibit possession of a firearm in one’s “legal dwelling,” it “does 

not implicate the fundamental right to keep and bear arms in one's home for selfdefense.” Id. at 607. See also People v. Aguilar, 944 N.E.2d 816, 826–28 (Ill. App. Ct. 

2011) (“No reported cases have held that Heller or McDonald preclude states from 

prohibiting the possession of handguns outside the home.”), appeal allowed, 949 

N.E.2d 1099 (Ill. 2011). The District of Columbia has also upheld convictions under 

a law prohibiting individuals from carrying handguns in public without a license. 

See Little v. United States, 989 A.2d 1096, 1101 (D.C. 2010) (“Appellant concedes 

that he was not in his own home. Thus, appellant was outside of the bounds 

identified in Heller, i.e., the possession of a firearm in one’s private residence for 

self-defense purposes.”). See also Sims v. United States, 963 A.2d 147, 149–50 (D.C. 

2008). 

C. Historical sources cited by Heller reveal at most historical 

uncertainty about the scope of the right outside the home. 

In addition to relying on the language of Heller, the plaintiffs argue that the 

historical understanding of the enumerated rights codified in the Second 

Amendment included a general right to carry arms for self-defense. Justice Scalia 

wrote in Heller that “[c]onstitutional rights are enshrined with the scope they were 

understood to have when the people adopted them . . . .” Heller, 554 U.S. at 634–35. 

Because the “original meaning” of the Second Amendment included a recognition 

that “some categorical limits are proper,” legislatures have retained power to enact 

regulations limiting firearm possession that are outside the scope of the Second 

Amendment. Skoien, 614 F.3d at 640. As the Third Circuit has interpreted Heller, 

laws regulating possession that fall outside the scope of the Second Amendment 

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must be based either on (1) longstanding historical regulations that have become 

incorporated over time into the understanding of the right or (2) novel regulations 

designed to address a heightened capability to cause damage. Marzzarella, 614 F.3d 

at 91–95. 

The plaintiffs point to the reasoning of a selection of nineteenth-century 

authorities mentioned in Heller to support their proposition “that concealed carry 

might be banned if people were still allowed to carry guns openly.” Pls.’ Br. 16. The 

plaintiffs argue that “if concealed carry bans can be upheld only where open carry 

remains available, then ipso facto, there is a basic right to ‘carry’ guns – perhaps 

subject to a requirement that the gun be kept concealed or exposed.” Pls.’ Br. 17. 

The plaintiffs also refer to Peruta v. County of San Diego, a Southern District of 

California opinion, to support their conclusion that “the right to bear arms 

historically allowed concealed carry to be banned where ‘alternative forms of 

carrying arms were available.’” Pls.’ Reply Br. 26 (citing 758 F. Supp. 2d 1106, 1114 

(S.D. Cal. 2010)). 

That conclusion is off-target because the focus of the nineteenth-century 

cases was on the upholding of prohibitions on concealed carry of arms. Heller cited 

these cases to emphasize that the Second Amendment does not convey “a right to 

keep and carry any weapon whatsoever in any manner whatsoever and for 

whatever purpose.” 554 U.S. at 629. Only one nineteenth-century case went far 

afield to find that a handgun ban was unconstitutional to the extent that it also 

categorically prohibited the open carry of a pistol. Nunn v. State, 1 Ga. 243, 251 

(1846) (cited in Heller, 554 U.S. at 629.). 

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Rather than establishing that there is a general right to carry firearms 

outside the home for self-defense, these cases stand for little more than a suggestion 

that a categorical ban on carrying firearms in public without any alternative could 

implicate the Second Amendment. This Court agrees with the Southern District of 

New York’s reading that these cases 

seem not to be premised on the existence of open carry provisions 

specifically, but rather on the existence of provisions for some other 

means of carry generally; in other words, they suggest that such 

statutes would fail to pass muster only if functioning as complete bans 

to carrying weapons outside the home under any circumstances. 

Kachalsky, 2011 WL 3962550, at *22. As Kachalsky noted, the plaintiffs’ reading is 

also in tension with other nineteenth-century cases that upheld the 

constitutionality of more general bans on carrying handguns outside the home 

either openly or concealed. Id. That court cited Fife v. State as upholding a statute 

that generally prohibited carrying a pistol as a weapon because this prohibition was 

a lawful “exercise of the police power of the State without any infringement of the 

constitutional right.” Id. (quoting 31 Ark. 455, 1876 WL 1562, at *4 (1876)). See also 

State v. Workman, 14 S.E. 9, 11 (W.Va. 1891). 

Furthermore, because these are nineteenth-century cases, they do not 

specifically define the scope of the pre-existing right at the time the Second 

Amendment was adopted but provide a window into “the public understanding of a 

legal text in the period after its enactment or ratification.” Heller, 554 U.S. at 605. 

Without engaging in a full historical analysis of the scope of the right to bear arms 

as it was understood at the time the Second Amendment was adopted, these sources 

serve only to reveal a historical uncertainty in applying the Second Amendment 

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outside the home that long pre-dates the Supreme Court’s 2008 decision. Given this 

uncertainty, it follows that the historical sources cited by Heller do not establish 

that the individual right necessarily extended to a broad general right to carry for 

self-defense. At most, they suggest that there may be a limited right to carry a 

handgun outside the home for certain purposes in certain situations that should be 

explored and determined on a case-by-case basis. 

Peruta does not support the proposition that the historical scope of the 

Second Amendment has been held to extend outside the home. Contrary to 

plaintiffs’ assertion that Peruta “certainly recognized a general right to carry guns 

in public,” Pls.’ Reply Br. 26, Peruta expressly avoided the question. The court 

explicitly said that it did “not need to decide whether the Second Amendment 

encompasses Plaintiffs’ asserted right to carry a loaded handgun in public.” Peruta, 

758 F. Supp. 2d at 1115. The plaintiffs’ themselves quote the court as writing “to 

the extent [the concealed weapon law] burden[s] conduct falling within the scope of 

the Second Amendment, if at all, the burden is mitigated by the provisions . . . that 

expressly permit loaded open carry for immediate self-defense.” Pls.’ Reply Br. 26 

(quoting Peruta, 758 F. Supp. 2d at 1114–15) (emphasis added, emphasis in original 

omitted). The Peruta court discussed concealed versus unconcealed, or open, carry 

to address only whether the challenged concealed carry law could survive the 

applicable level of scrutiny for the statutory scheme as a whole. It assumed for the 

sake of disposing of the case that the Second Amendment right did extend outside 

the home, without addressing its scope. Peruta, 758 F. Supp. 2d at 1114–15. 

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To further support their reading of Heller as recognizing a historical general 

right to carry a handgun for self-defense, the plaintiffs point to Heller’s examples of 

historical regulations that do not burden conduct protected by the Second 

Amendment. They cite Heller’s suggestion that laws burdening the individual 

ability to possess firearms in “sensitive places such as schools and government 

buildings” are “presumptively lawful.” See Heller, 554 U.S. at 626, 627 n.26. In a 

twist of logic, the plaintiffs argue that “this cautionary statement recognizes that 

carry bans are not presumptively lawful when they pertain to places that are not 

sensitive.” Pls.’ Br. 15–16 (internal citations omitted). 

To the extent that the Supreme Court has not yet established a right to carry 

a handgun for self-defense outside the home, these categorical exceptions are 

irrelevant and do not establish outer bounds for the scope of Second Amendment 

rights. In noting a longstanding history of prohibiting firearms in sensitive places, 

Heller was simply identifying one of several common firearms regulations that were 

clearly beyond the scope of the Second Amendment. The en banc Seventh Circuit 

decision in Skoien has warned that these references function as “precautionary 

language” about the limits of the Second Amendment rights recognized in Heller 

rather than “a comprehensive code” outlining the exact scope of those rights. 614 

F.3d at 640. 

The logical fallacy of the plaintiffs’ argument that the sensitive places 

exception necessitates the interpretation that the Supreme Court recognized a 

general right to carry outside the home is easily demonstrated. While Heller’s 

underlying reasoning does imply that there are some situations where the Second 

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Amendment includes a right to carry outside the home, logic does not bear the 

argument that the Supreme Court necessarily recognizes a general right to carry for 

self-defense in all non-sensitive locations. This presumptively lawful “sensitive 

places” ban could apply to cases having nothing to do with self-defense. Since 

Heller’s language limits even possession in a sensitive place, this prohibition could 

apply to the transport of weapons in an inoperable state through sensitive places. 

The exclusion on possessing firearms in sensitive places could also implicate other 

potentially protected Second Amendment rights, such as possessing firearms for the 

purposes of hunting or protection against governmental oppression. See 

Marzzarella, 614 F.3d at 92. 

And even if the Court was indicating, however obliquely, that the Second 

Amendment right to carry a gun for self-defense extends outside the home, it does 

not follow that it extends to a general right to carry everywhere. The plaintiffs 

erroneously argue that a categorical exception for sensitive places would have no 

effect if there is not an absolute right to carry firearms in public. This argument 

ignores the possibility that the Second Amendment right could extend outside the 

home in limited circumstances and locations, and that those locations could be 

subject to a sensitive places exception. Courts could potentially find that there are 

locations outside the home where there is an established historical right to bear 

arms for self-defense based on an individual’s vulnerability in that location. As 

example, the Handgun Permit Law would continue to be outside the scope of the 

Second Amendment even if the Supreme Court were to recognize a right to carry in 

one’s place of business. The Handgun Permit Law allows individuals to carry 

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handguns within their “place of business” without requiring them to demonstrate 

justifiable need. N.J. Stat. Ann. § 2C:39-6(e) (2011). But even if, hypothetically, the 

Second Amendment were to extend to one’s place of business, New Jersey would be 

free to prohibit people from bringing handguns to work if they work in sensitive 

locations. Heller’s statement about the presumptive lawfulness of laws limiting the 

right to carry in sensitive places would be fully operative despite the absence of an 

absolute constitutional right to carry firearms in public. 

Where the scope of the historical right to keep and bear arms under the 

Second Amendment is unclear, this right should be narrowly construed against 

recognizing an absolute right to carry in public. As said when this Opinion began, 

the Second Amendment is unique among the enumerated constitutional rights 

because it permits the use of a lethal weapon by one person who rightly or wrongly 

may cause serious personal injury – including the ultimate injury of death – to 

another person. The inherent risks associated with the public exercise of that right 

require this Court to carefully analyze the self-described limited scope of Heller. 

Given the considerable uncertainty regarding if and when the Second 

Amendment rights should apply outside the home, this Court does not intend to 

place a burden on the government to endlessly litigate and justify every individual 

limitation on the right to carry a gun in any location for any purpose. The risks 

associated with a judicial error in discouraging regulation of firearms carried in 

public are too great. See United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 

2011) (“This is serious business. We do not wish to be even minutely responsible for 

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some unspeakably tragic act of mayhem because in the peace of our judicial 

chambers we miscalculated as to Second Amendment rights.”) 

Drawing a historical distinction between the constitutional right to carry for 

self-defense at home and any right to carry for self-defense in public is neither 

unreasonable nor arbitrary. New Jersey, like other jurisdictions, already makes a 

significant distinction under its criminal laws by justifying the use of deadly force 

for self-defense without an obligation to retreat in the home. N.J. Stat. Ann. § 2C:3-

4 (2011). See, e.g., People v. Tomlins, 107 N.E. 496, 497 (N.Y. 1914) (“It is not now, 

and never has been the law that a man assailed in his own dwelling is bound to 

retreat. . . . Flight is for sanctuary and shelter, and shelter, if not sanctuary, is in 

the home. That there is, in such a situation, no duty to retreat is, we think, the 

settled law in the United States as in England.”); see also 40 Am. Jur. 2d Homicide 

§ 163 (2011) (“Regardless of any general theory to retreat . . . before one can justify . 

. . taking life in self-defense, the law imposes no duty to retreat upon one who . . . is 

attacked at or in his or her own dwelling or home . . . . [T]he rule is practically 

universal . . . .”). The Supreme Court has found limitations on the scope of a 

constitutional right outside the home in the First Amendment context, recognizing a 

right to privately possess obscene materials in the home but allowing the states 

broad power to regulate obscenity outside the home. Stanley v. Georgia, 394 U.S. 

557, 565–68 (1969). 

D. Longstanding handgun permit regulations requiring applicants to 

demonstrate need do not burden protected conduct. 

To the extent that New Jersey’s Handgun Permit Law may implicate some 

narrow right to carry a firearm outside the home, the challenged provisions would 

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not necessarily burden any protected conduct. The requirement that an applicant 

demonstrate need for a permit to carry a handgun in public is a “longstanding” 

licensing provision of the kind that Heller identified as presumptively lawful. 554 

U.S. at 626–27, 627 n.26. The Third Circuit has found that these longstanding 

regulations have become exceptions to the right to keep and bear arms so that the 

regulated conduct falls outside the scope of the Second Amendment. United States 

v. Barton, 633 F.3d 168, 172 (3d Cir. 2011) (citing Marzzarella, 614 F.3d at 91); 

United States v. Huet, No. 10–4729, 2012 WL 19378 at *8 (3d Cir. Jan. 5, 2012). 

Marzzarella explained that this list of presumptively lawful regulations was not 

exhaustive and that other laws “derived from historical regulations” could be 

outside the scope of the Second Amendment. 614 F.3d at 92–93. 

The District of Columbia Circuit in Heller II found that certain basic 

handgun registration requirements are presumptively outside the scope of the 

Second Amendment based on their historical acceptance. 2011 WL 4551558, at *7. 

The court explained that a longstanding regulation “necessarily . . . has long been 

accepted by the public” and that “concomitantly the activities covered by a 

longstanding regulation are presumptively not protected from regulation by the 

Second Amendment.” Id. at *6. The court focused on the fact that the specific 

registration requirements it upheld were “longstanding in American law, accepted 

for a century in diverse states and cities and now applicable to more than one fourth 

of the Nation by population.” Id. at *7. Similarly, the New Jersey Handgun Permit 

Law’s requirement that an applicant demonstrate need to carry a handgun to state 

officials is longstanding. 

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The challenged provisions are longstanding because they are almost a 

century old. Noting that the “New Jersey Legislature has long been aware of the 

dangers inherent in the carrying of handguns and the urgent necessity for their 

regulation,” the New Jersey Supreme Court has traced the history of the Handgun 

Permit Law and its requirement that an applicant demonstrate need as far back as 

the 1920s. Siccardi v. State, 284 A.2d 533, 538 (N.J. 1971). 

[A]lmost a half century ago [the New Jersey Legislature] directed 

that no persons (other than those specifically exempted such as police 

officers and the like) shall carry handguns except pursuant to 

permits issuable only on a showing of ‘need.’ L. 1924, c.137; R.S. 

2:176-41-44. Under the terms of the 1924 statute the application for 

permit was submitted to the local chief of police for approval and, on 

approval, to the Justice of the Supreme Court holding the circuit for 

the county in which the applicant was a resident. If, after 

investigation, the Justice was satisfied with the sufficiency of the 

application and ‘the need of such person carrying concealed upon his 

person, a revolver, pistol or other firearm’ he would issue the permit. 

Id. Since that time, “there were many enactments affecting firearms but none of 

them changed the requirement that ‘need’ must be shown for the issuance of a 

permit to authorize the carrying of a handgun.” Id. See also In re Preis, 573 A.2d 

148, 151 (N.J. 1990). As a result, the challenged New Jersey handgun permitting 

requirements have been in effect and accepted by the public with substantially 

similar substance and procedure for almost a century. 

Without undertaking a full historical survey, this Court also notes that New 

Jersey is not the only state with a longstanding regulation by which permits to 

carry handguns are issued based on a discretionary determination of need or cause. 

New York has an even longer history of requiring a judicial or law enforcement 

official to grant a permit to carry a pistol based on a finding “that proper cause 

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exists for the issuance thereof . . . .” See People v. Tarantolo, 194 N.Y.S. 672 (N.Y. 

App. Div. 1922) (quoting N.Y. Penal Law § 1897 (1919)). See also Moore v. Gallup, 

45 N.Y.S.2d 63, 64–65, 68 (N.Y. App. Div. 1943) (upholding determination that a 

resident with good moral character and proper training alone failed to meet the 

“proper cause” standard for issuing a permit to carry). Notably, these statutes were 

adopted in the same era that states began adopting the felon in possession statutes 

that Heller explicitly recognized as being presumptively lawful longstanding 

regulations. Heller II, 2011 WL 4551558, at *6 (citing Heller, 554 U.S. at 630) (“The 

Court in Heller 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.”). 

This analysis further supports the conclusion that the challenged provisions 

of the Handgun Permit Law fall outside the scope of the Second Amendment. These 

provisions do not burden the right to possess handguns in the home for self-defense 

recognized in Heller. The Supreme Court has not recognized any absolute Second 

Amendment right to carry firearms in public for self-defense and the historical 

record does not persuade this Court that the holding of Heller should be extended to 

establish such. To the extent that the Second Amendment right may narrowly 

extend outside the home in certain circumstances, New Jersey’s permit 

requirements are longstanding regulations that are presumptively constitutional. 

While this Court finds unequivocally that the challenged provisions fall outside the 

scope of Heller’s Second Amendment right, because this area of law is unsettled the 

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Court deems it prudent to address, under Marzzarella’s second prong, whether the 

challenged provisions would survive the appropriate level of scrutiny. 

II. The Handgun Permit Law passes constitutional muster. 

If the scope of the Second Amendment extended to a right to carry handguns 

for self-defense outside the home, that right would still be subject to government 

regulation which does not unconstitutionally burden protected conduct. To repeat, 

the plaintiffs allege that the challenged provisions of the Handgun Permit Law are 

facially unconstitutional for two reasons: they vest “uncontrolled discretion” in the 

hands of state officials, Compl. ¶¶ 101–04, and “impermissibly burden” the alleged 

right by “requiring private citizens to show ‘justifiable need’ or ‘urgent necessity for 

self protection,’” Compl. ¶ 108. 

These provisions pass constitutional muster even if they burden conduct 

within the scope of the Second Amendment. The Handgun Permit Law would not be 

facially unconstitutional as a prior restraint because this doctrine should not be 

imported into the Second Amendment context and because the challenged 

provisions do not vest uncontrolled discretion in state officials. The justifiable need 

requirement would survive the intermediate scrutiny analysis applied to laws 

burdening protected conduct outside the core Second Amendment right because this 

requirement is sufficiently tailored to address an important state interest. 

A. The Handgun Permit Law is not invalid as a prior restraint 

vesting uncontrolled discretion to state officials. 

The plaintiffs argue that the Handgun Permit Law is facially 

unconstitutional under the Second Amendment because it gives the government 

“uncontrolled discretion” over licenses to state officials. Compl. ¶¶ 101–04. This 

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argument rests on the plaintiffs’ importation of the First Amendment analysis of 

prior restraints on speech to the Second Amendment context. See Pls.’ Br. 21–22 

(arguing that First Amendment principles should apply to the Second Amendment). 

Under the First Amendment, facial challenges to laws that burden “free expression” 

are permitted when “a licensing statute plac[es] unbridled discretion in the hands of 

a government official . . . .” City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 

750, 757 (1988). 

The defendants argue that “there is no basis or precedence for taking the 

prior restraint framework out of the First Amendment jurisprudence, to which it 

has been specifically limited, and applying it in this context.” Defs.’ Reply Br. 10. 

The general rule is that facial challenges are disfavored. It is only in light of 

particular censorship related concerns that “they have been permitted in the First 

Amendment context where the licensing scheme vests unbridled discretion in the 

decisionmaker and where the regulation is challenged as overbroad.” FW/PBS, Inc. 

v. City of Dallas, 493 U.S. 215, 223 (1990) (O’Connor, J., concurring); see also City of 

Lakewood, 486 U.S. at 759 (“[U]nbridled licensing schemes” are subject to facial 

challenge when the law has “a close enough nexus to expression . . . to pose a real 

and substantial threat of the identified censorship risks.”). As the Third Circuit has 

declined to extend overbreadth doctrine from the First Amendment to the Second 

Amendment, see United States v. Barton, 633 F.3d 168, 172 n.3 (3rd Cir. 2011), the 

prior restraint doctrine should not be transplanted from the First Amendment free 

expression context to a facial challenge analysis under the Second Amendment. 

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Even if the prior restraint framework were to apply, this Court finds that the 

Handgun Permit Law does not vest state officials with uncontrolled discretion. The 

prior restraint doctrine requires consideration of “any limiting construction that a 

state court or enforcement agency has proffered.” Ward v. Rock Against Racism, 491 

U.S. 781, 796 (1989); see also City of Lakewood, 486 U.S. at 770 (“[W]hen a state 

law has been authoritatively construed so as to render it constitutional . . . the state 

law is read in light of those limits.”). Such limits on discretion may be made explicit 

by “textual incorporation, binding judicial or administrative construction, or wellestablished practice.” City of Lakewood, 486 U.S. at 770. 

The standard controlling official discretion has been clearly laid out and 

consistently applied by all four of these routes. The statutory text’s standard is 

“justifiable need to carry a handgun.” N.J. Stat. Ann. § 2C:58-4(c)–(d) (2011). 

Though gun laws in New Jersey have changed, the requirement that permits are 

“issuable only on a showing of ‘need’” has persisted since at least 1924. Siccardi, 284 

A.2d at 538. This standard is further defined in binding judicial construction as 

requiring “urgent necessity for self-protection. 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, and a need to protect property alone does not suffice.” In re Preis, 573 

A.2d 148, 152 (N.J. 1990) (internal citations omitted); see also Siccardi, 284 A.2d at 

540 (Permits to carry are granted to those “who can establish an urgent necessity 

for self-protection. One whose life is in danger, as evidenced by serious threats or 

earlier attacks, may perhaps qualify . . . but one whose concern is with the safety of 

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his property, protectible [sic] by other means, clearly may not so qualify.”). This 

construction is repeated in the administrative code requiring permit applicants to 

provide evidence of this need by submitting certification of 

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. Where possible the applicant shall 

corroborate the existence of any specific threats or previous attacks by 

reference to reports of such incidents to the appropriate law 

enforcement agencies . . . . 

N.J. Admin. Code § 13:54-2.4(d)(1). This is a specific and clear standard which 

guides officials’ discretion and has become part of well-established practice in 

reviewing permit applications. 

The plaintiffs’ real objection appears to be to the results generally reached by 

the consistent application of this clearly articulated standard, not to lack of any 

standard at all. Although the law is applied narrowly, this does not mean that the 

standard amounts in practice to an outright ban on issuing permits to carry: during 

the pendency of this very lawsuit, the original lead plaintiff Jeffrey Muller 

withdrew from this action because he was granted a permit after the Complaint was 

filed. Mots. Hr’g Tr. 3, Oct. 27, 2011. 

B. The Handgun Permit Law’s “justifiable need” requirement meets 

the appropriate level of judicial scrutiny. 

If New Jersey’s Handgun Permit Law implicates conduct within the scope of 

the Second Amendment, the burden imposed by the justifiable need requirement 

still survives judicial scrutiny under the applicable means-end standard. The 

Supreme Court in Heller avoided deciding what level of scrutiny to apply to a 

particular limitation on the right. 554 U.S. at 628–29. The Court found only that 

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the laws at issue in Heller would be unconstitutional “[u]nder any of the standards 

of scrutiny that we have applied to enumerated constitutional rights . . . .” Id. While 

this statement does not lead to a particular standard of scrutiny, it does indicate 

that one of the traditional standards applied to enumerated rights – either 

intermediate or strict scrutiny – should be applied. 

The defendants and their amici suggest that if the Handgun Permit Law 

burdens a Second Amendment right, the Court should apply the “reasonable 

regulation test.” Defs.’ Br. 19–20; Br. of Amici Curiae in Supp. of Defs. 15. The 

defendants’ amici describe the reasonable regulation test as applying a standard inbetween rational basis and intermediate scrutiny. Br. of Amici Curiae in Supp. of 

Defs. 16. Amici further describe this test as focusing on “the balance of the interests 

at stake . . . .” Id. But the Heller majority rejected a similar “interest-balancing 

inquiry” proposed by Justice Breyer in dissent. Heller, 554 U.S. at 634. Judge 

Breyer’s formulation would have asked “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.” Id. Justice Scalia answered 

that “[w]e know of no other enumerated constitutional right whose core protection 

has been subjected to a freestanding ‘interest-balancing’ approach.” Id. Handgun 

possession outside the home is not the Second Amendment’s core protection as 

defined in Heller. But if possession outside the home for the purpose of self-defense 

is protected as part of an enumerated right, this Court sees no reason to depart 

from the common forms of means-end scrutiny in favor of the reasonable regulation 

test. 

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Rational basis is also inappropriate to determine the constitutionality of 

specifically enumerated rights. Id. at 628 n.27. Heller explained that if rational 

basis were used, “the Second Amendment would be redundant with the separate 

constitutional prohibitions on irrational laws . . . .” Id. “Heller rejects [rational 

basis] for laws burdening Second Amendment rights.” Marzzarella, 614 F.3d at 95–

96; see also United States v. Huet, No. 10-4729, 2012 WL 19378, at *8 (3d Cir. Jan. 

5, 2012). 

a. The Handgun Permit Law would be subject to intermediate 

scrutiny. 

The question, then, is whether strict or intermediate scrutiny would apply to 

the justifiable need requirement of the Handgun Permit Law if such laws are within 

the scope of the Second Amendment. Courts look to First Amendment jurisprudence 

for guidance regarding which level of scrutiny applies to a law regulating conduct 

protected by the Second Amendment. See id. at 96. Just as laws burdening 

protected conduct under the First Amendment are susceptible to different 

standards of scrutiny, it is probable that “the Second Amendment can trigger more 

than one particular standard of scrutiny . . . .” Id. at 97; see also United States v. 

Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011). Because affirmative rights are not 

susceptible to a one-size-fits-all standard, a court must decide whether intermediate 

or strict scrutiny applies based on the individual case before it. 

In the First Amendment context, strict scrutiny “is triggered by contentbased restrictions on speech in a public forum . . . .” Marzzarella, 614 F.3d at 96 

(citing Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009)). In the Second 

Amendment context, strict scrutiny is triggered by the core of the right, “the right of 

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law-abiding, responsible citizens to use arms in defense of hearth and home.” See 

Heller, 554 U.S. at 635. See also Masciandaro, 638 F.3d at 470–71 (“[W]e assume 

that any law that would burden the ‘fundamental,’ core right of self-defense in the 

home by a law-abiding citizen would be subject to strict scrutiny.”). 

If the Second Amendment protects the right to carry a handgun outside the 

home for self-defense at all, that right is not part of the core of the Amendment. E.g. 

Kachalsky, 2011 WL 3962550, at *23 (collecting federal cases supporting the 

statement that “the core Second Amendment concern articulated in Heller [is] selfdefense in the home”). Burdens on any right to carry a gun outside the home should 

be subject to less exacting scrutiny than burdens on the right to use a gun for selfdefense in the home. “Since historical meaning enjoys a privileged interpretative 

role in the Second Amendment context, [the] longstanding out-of-the-home/in-thehome distinction bears directly on the level of scrutiny applicable.” Masciandaro, 

638 F.3d at 470 (citations omitted). New Jersey’s justifiable need requirement 

applies only to permits to carry outside the home. No permit is needed to lawfully 

carry a handgun “about [one’s] place of business, residence, premises or other land 

[one] own[s] or possesse[s]. . . .” N.J. Stat. Ann. § 2C:39-6(e) (2011). Even if the 

justifiable need requirement burdens some conduct protected by the Second 

Amendment, such conduct is not the possession and use of a handgun for selfdefense in the home. It follows that intermediate scrutiny is the appropriate 

standard to apply. See Masciandaro, 638 F.3d at 471 (“While we find the application 

of strict scrutiny important to protect the core right of the self-defense of lawCase 2:10-cv-06110-WHW -MCA Document 40 Filed 01/12/12 Page 39 of 46 PageID: 432
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abiding citizen in his home, . . . we conclude that a lesser showing is necessary with 

respect to laws that burden the right to keep and bear arms outside of the home.”). 

b. The “justifiable need” requirement survives intermediate 

scrutiny. 

In the Second Amendment context, the Third Circuit has described how to 

apply intermediate scrutiny derived from First Amendment speech cases. “In the 

First Amendment speech context, intermediate scrutiny is articulated in several 

different forms.” Marzzarella, 614 F.3d at 97. But the various terminology leads to 

essentially the same practical requirements: the cases “all require the asserted 

governmental end to be more than just legitimate, either ‘significant,’ ‘substantial,’ 

or ‘important.’” Id. at 98 (citations omitted). And they “generally require the fit 

between the challenged regulation and the asserted objective be reasonable, not 

perfect.” Id. Finally, the “regulation need not be the least restrictive means of 

serving the interest, but may not burden more speech than is reasonably 

necessary.” Id. (citations omitted). 

This Court finds that the justifiable need requirement in New Jersey’s 

Handgun Permit Law meets the intermediate scrutiny standard if a right to carry 

handguns in public for self-defense exists. First, the government has asserted 

important interests. Second, limiting permits to carry handguns in public to those 

applicants who demonstrate a justifiable need is a reasonable fit with New Jersey’s 

asserted interests. Finally, the permit requirement does not burden more protected 

conduct than is reasonably necessary to serve the State’s interests. 

The governmental interest in regulating permits to carry handguns is 

established. The Supreme Court has consistently recognized that the governmental 

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interest in protecting public safety is important or even compelling. United States v. 

Salerno, 481 U.S. 739, 745 (1987); Schall v. Martin, 467 U.S. 253, 264 (1984)). New 

Jersey has asserted that the interests served by the Handgun Permit Law include 

“combating handgun violence and combating the dangers and risks associated with 

the accidental and misuse of handguns” and “reducing the use of handguns in 

crimes.” Defs.’ Br. 26–27. All of these interests fall under the substantial 

government interest in “ensuring the safety of all of its citizens.” Defs.’ Reply Br. 14. 

This interest is substantial and significant. The protection of citizens from 

potentially lethal force is compelling. 

The justifiable need requirement fits reasonably with this asserted interest. 

When reviewing the constitutionality of statutes, the courts “accord substantial 

deference to the [legislature’s] predictive judgments.” Turner Broad. Sys., Inc. v. 

FCC, 520 U.S. 180, 195 (1997). The judiciary’s role is “to assure that, in formulating 

its judgments, [the legislature] has drawn reasonable inferences based on 

substantial evidence.” Id. New Jersey’s Handgun Permit Law is no political whim. 

The legislature has long recognized “the dangers inherent in the carrying of 

handguns” and decided as far back as 1924 to combat this danger by requiring that 

“no persons . . . shall carry handguns except pursuant to permits issuable only on a 

showing of ‘need.’” Siccardi, 284 A.2d at 538. The “need” requirement has been 

included in all iterations of New Jersey’s handgun regulation since then. Id.; see 

also In re Preis, 573 A.2d 148, 151(N.J. 1990) (“At the time of the reenactment of 

the gun-licensing provisions as part of the Code of Criminal Justice of 1979, the 

most relevant definition of ‘justifiable need’ was set forth in Siccardi v. State.”) 

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(citations omitted). The 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. 

This determination is supported by the reasoning of other district courts 

finding that comparable handgun permit regulations fit the interest in public safety 

where those regulations require applicants to demonstrate need based on specific 

circumstances. See Kachalsky, 2011 WL 3962550, at *28 (upholding New York 

permit law requiring articulable, non-speculative need for self-defense); Peruta v. 

City of San Diego, 758 F. Supp. 2d 1106, 1110, 1117 (S.D. Cal. 2010) (upholding 

concealed carry regulation requiring demonstration of “good cause” based on 

personal circumstances more specific than a “generalized fear for one’s personal 

safety”). Peruta found that this type of requirement sufficiently fit the government’s 

asserted interests, explaining that “the government has an important interest in 

reducing the number of concealed weapons in public in order to reduce the risks to 

other members of the public who use the streets and go to public accommodations.” 

Id. at 1117 (citations omitted). In Richards v. County of Yolo, another district court 

determined that a concealed carry licensing process that required demonstration of 

a “valid reason to request the permit,” including “credible threats of violence against 

the applicant,” did not substantially burden protected conduct and survived a facial 

challenge under rational basis review. No. 09-CV-01235, 2011 WL 1885641, at *1, 

*3–5 (E.D. Cal. May 16, 2011). 

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 The plaintiffs attempt to make much of the distinction between New Jersey’s 

Handgun Permit Law and permit laws that apply to concealed carry only. See Pls.’ 

Br. 35. This Court agrees with Kachalsky that when it comes to the application of 

intermediate scrutiny, “the same rationales apply equally, or almost equally, to the 

regulation of open carry [as to concealed carry].” 2011 WL 3962550, at *28. The 

strength of the interests are comparable, and whether a permit is required to carry 

a handgun either openly or concealed (as in New Jersey) or only to carry one 

concealed (as in California and New York) makes no difference to whether the law 

requiring a permit and setting out conditions for such permit is sufficiently tailored 

to the state’s asserted interests. 

 The plaintiffs’ argument also ignores the larger context of the statutory 

schemes in California and New York. In Peruta, the alternative open carry 

provision cited as mitigating some of the burden on any potential Second 

Amendment right is very limited. The California law permits open carry only where 

the individual “reasonably believes that the person or property of himself or herself 

or of another is in immediate, grave danger and that the carrying of the weapon is 

necessary for the preservation of that person or property.” Peruta, 758 F. Supp. 2d 

at 1113 (quoting Cal. Penal Code § 12031(j)). This section allowing open carry 

applies only in the “brief interval before and after the local law enforcement agency, 

when reasonably possible, has been notified of the danger and before the arrival of 

its assistance” and open carry by a person who “reasonably believes that he or she is 

in grave danger because of circumstances forming the basis of a current restraining 

order . . . .” Id. In circumstances beyond these very narrow situations where open 

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carry is permitted, those wishing to carry a firearm for self-defense in public must 

obtain a concealed carry permit. As explained in Kachalsky, concealed carry with a 

permit is the only option in New York. 2011 WL 3962550, at *2. Open carry of 

handguns is always illegal and even a concealed carry permit would not permit one 

to carry a handgun openly. Id. Neither New York’s nor California’s law is really far 

removed from New Jersey’s Handgun Permit Law, despite New Jersey’s permit 

requirement applying to both open and concealed carry. 

Finally, the justifiable need requirement of the Handgun Permit Law 

survives intermediate scrutiny because it does not burden more of any alleged right 

to carry a handgun for self-defense than would be reasonably necessary to achieve 

New Jersey’s interest in public safety. “[T]he overriding philosophy of [the New 

Jersey] legislature is to limit the use of guns as much as possible.” State v. 

Valentine, 307 A.2d 617, 619 (N.J. Super. Ct. App. Div. 1973). As discussed, it is 

within the discretion of the legislature to make the reasonable determination that 

limiting the use of guns leads to fewer incidents of gun-related injury and death. 

The Handgun Permit Law is tailored specifically to leave room for the exercise of 

any alleged right to carry a handgun in public for the sole purpose of self-defense. 

The justifiable need standard allows permits to be issued only upon showing of 

objective rather than subjective need. N.J. Stat. § 2C:58-4(c)–(d) delegates to 

neutral licensing officers the responsibility for determining whether such need 

exists. This process allows the legislature “to effectively differentiate between 

individuals who have a bona fide need to carry a concealed handgun for self-defense 

and individuals who do not.” Peruta, 758 F. Supp. 2d at 1117. The legislature’s 

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decision to allow for individualized consideration of each applicant’s need to carry a 

handgun shows a legislative desire to tailor the consideration to each applicant’s 

individual circumstances. The alternative to requiring “a showing of specific, direct, 

and serious threats to one’s physical safety” is granting a permit to carry a deadly 

weapon to those who feel the subjective need based on nothing more than “general 

fears” to go about their daily lives prepared to use deadly force. See In re 

Piszczatoski, No. PAS-10-040 (N.J. Super. Nov. 3, 2010), Piszczatoski Decl. Ex. 2, at 

4. A ruling mandating such a result would illegally interfere with the New Jersey 

legislature’s repeated determinations over nearly a century that this alternative to 

an individualized need determination would not meet the state interest in 

preventing gun-related injury, including the ultimate injury, death. 

CONCLUSION

The plaintiffs have failed to state a valid facial constitutional challenge to 

New Jersey’s Handgun Permit Law under the Second Amendment. The challenged 

provisions requiring those who wish to carry a handgun in public to obtain a permit 

based on justifiable need do not on their face burden conduct protected by the 

Second Amendment. Even if the justifiable need requirement does burden conduct 

protected by the Second Amendment right to keep and bear arms, the Handgun 

Permit Law is not facially invalid as an unconstitutional burden because there is a 

reasonable fit between the justifiable need requirement and the government’s 

compelling interest in public safety. The Handgun Permit Law is also not facially 

unconstitutional as a prior restraint because this framework does not apply in the 

Second Amendment context and the challenged provisions do not vest uncontrolled 

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discretion to state officials. The Court denies the plaintiffs’ motion for summary 

judgment and grants the defendants’ motion to dismiss this action with prejudice. 

January 12, 2012 

 

/s/ William H. Walls 

United States Senior District Judge 

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