Constitution Daily

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Podcast: The Supreme Court and the Right to Bear Arms

February 25, 2014 by NCC Staff


Earlier this week, the Supreme Court turned down three cases that sought to better define the gun control rights in light of two earlier Court decisions.  But there is another case heading toward the Court that might offer better guidance about the right to carry a handgun outside your home for self-defense reasons.

gunswideThe case of Drake v. Jerejian is about gun control laws in New Jersey and a petition was filed with the Court in January. Currently, the state of New Jersey has until mid-March to respond.

The Drake case asks two questions: Does the Second Amendment secure a right to carry handguns outside the home for self-defense; and do state officials violate the Second Amendment by requiring that individuals wishing to exercise their right to carry a handgun for self-defense first prove a “justifiable need” for doing so.

There’s no guarantee the Court will accept the Drake case at some point, but some Court observers believe it has more potential than three cases rejected this week after a private conference of the Justices.

A key component of the Drake case is the history of the Second Amendment at the Supreme Court, including its historic 2008 ruling in District of Columbia v. Heller, where a majority led by Justice Antonin Scalia ruled that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” It extended that ruling to state laws in the 2010 McDonald v. City of Chicago decision.

But how comprehensive were those two decisions, and does Drake offer a chance for the Court to really address the Second Amendment in detail?

To review these issues, we’ve asked two leading experts on the subject to join National Constitution Center president Jeffrey Rosen on this podcast.

Lawrence E. Rosenthal is a professor at Chapman University’s Dale E. Fowler School of Law. He was an editor of the Harvard Law Review, and clerked for Justice John Paul Stevens of the United States Supreme Court, before becoming an Assistant United States Attorney for the Northern District of Illinois. He has also argued in front of the Supreme Court, and he continues to engage in litigation in the Supreme Court and other appellate courts, usually on a pro bono basis.

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. He has provided testimony to Congress and state legislatures and, as coordinator of Cato’s amicus brief program, filed more than 100 “friend of the court” briefs in the Supreme Court. He also has filed a brief in the Drake case.

You can listen to the entire podcast in the player below, or click on the following link: Download this episode (right click and save)

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