A New Jersey man sought permits for three handguns. He had been the object of several 911 calls by his wife. No convictions of domestic violence but ill temper was evidenced. In Appeal of the Denial of the Application of Z.L the Appellate Division agreed with the trial court and the local police chief that the applicant was not a good bet.
I suppose it all depends on how you view the "self-defense" rationale enunciated in Heller and how intrusive you think the federal government should be in an area of traditional state primary jurisdiction. But to my mind the "well regulated militia" contemplates a high degree of state control and even accepting Heller the right should be closely tied to a demonstrable need for self defense and a determination that the gun possessor is an appropriate bearer of arms. To some that is virtual repeal.
Justice Clarence Thomas recently complained in Jackson v. San Francisco that "Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense, lower courts, including the ones here, have failed to protect it. Because Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document, I would have granted this petition."
Unlike Justice Thomas I see the public health as a powerful support for the kind of broad discretion that the statute permits. Some - like the majority of the New Jersey Law Journal Editorial Board from which I dissent - worry, like Justice Thomas that courts are too lax or standards too low. In my view not all rights are created equal. Strict scrutiny for speech should not be extended to regulation of weapons. - gwcPrawfsBlawg: Is Heller Being Narrowed From Below?
by Prof. Richard M. Re (UCLA School of Law)
Last week, Justice Thomas dissented from the Court’s denial of certiorari in the Second Amendment case Jackson v. San Francisco. Joined only by Justice Scalia, Thomas argued that San Francisco had adopted a firearm regulation substantially identical to the one struck down in Heller v. District of Columbia. The most interesting feature of the case was Thomas’s allegation that the decision below is an example of a much broader pattern. According to Thomas, “lower courts, including the ones here, have failed to protect” the right to bear arms and so have drained Heller of practical effect. If Thomas is right, then Jackson provides an important example of what I’ve called “narrowing from below”—that is, of lower courts narrowing higher-court precedent.
San Francisco generally prohibits people from having handguns in the home unless the weapons are “carried on the person” or stored in a locked container. In Jackson, a group of gun owners argued that the San Francisco law burdened their ability to defend themselves. While sleeping, for instance, private firearm owners must lock their weapons. And if an intruder attacked in the night, then a gun owner may have to spend precious time unlocking her firearm. One of Thomas’s examples involved a 79-year-old woman who is concerned about having to find her glasses to unlock her weapon before using it in self-defense.
In arguing that the Court should have granted review, Thomas conceded that there was no conflict in the courts of appeals. To deal with that shortcoming, Thomas pointed toward a less common basis for granting certiorari: a conflict with Supreme Court precedent. To wit, Thomas contended that “[t]he decision of the Court of Appeals is in serious tension with Heller.” Thomas accordingly argued that the Court should have granted review “to reiterate” the reasoning of Heller.