In D.C. v. Heller, the Supreme Court of the United States held that the Second Amendment protects an individual’s inherent right to keep and bear arms for self-defense-most notably, inside the home. Post-Heller, the lower courts are split on the Second Amendment’s protections outside of the home. This Note addresses the Third Circuit’s opinion on that split. In Drake v. Filko, the Third Circuit addressed whether New Jersey’s concealed carry permit law, which requires an individual to demonstrate a “justifiable need” to carry a handgun outside of the home, violated the Second Amendment. The plaintiffs were denied carry permits because they failed to demonstrate a “justifiable need” to carry a handgun in public. Because a “justifiable need” is defined as a special need for self-defense apart from the general population, the plaintiffs argued that it violated their Second Amendment rights to keep and bear arms for self-defense. The Third Circuit disagreed. This Note discusses how the Third Circuit’s decision in Drake v. Filko is inconsistent with the Second Amendment as interpreted by Heller. Furthermore, in light of the text and history of the Second Amendment and the Supreme Court’s precedent, this Note proposes that the Second Amendment protects a right to bear arms for the purpose of self-defense both inside and outside of the home.
Carrying the Second Amendment Outside of the Home: A Critique of the Third Circuit's Decision in Drake v. Filko,
Cath. U. L. Rev.
Available at: http://scholarship.law.edu/lawreview/vol64/iss1/12