Does prosecuting a person for possessing a firearm without a permit violate the Second and Fourteen Amendments when that person was unable to receive such a permit solely due to an unconstitutional requirement that he establish a heightened need for self-defense?

QUESTION PRESENTED In N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), this Court clarified that people have a Second Amendment right to carry a handgun in public for self-defense. In doing so, the Court struck down laws in seven jurisdictions, including New Jersey, that denied permits to exercise this right unless a person could first establish a special or heightened need for self-defense. Bruen therefore recognized that seven jurisdictions in the United States had been improperly denying their citizens their Second Amendment right to bear arms, leading to liberalized permitting schemes for future applicants in those jurisdictions. Left unresolved, however, was how this ruling would affect people who were prosecuted or convicted for not complying with the old, unconstitutional permitting schemes. In the absence of such guidance, litigants and courts have turned to this Court’s case law addressing permitting schemes that violated other constitutional rights. In those cases, which primarily addressed the First Amendment, this Court uniformly held that a person does not need to comply with a permit requirement that wrongly deprived them of a constitutional right, and that they may instead disregard the requirement and exercise their right, without fear of punishment. These principles, if applied to the Second Amendment, would mean that a state cannot punish a person for carrying a handgun without a permit when such a permit was unavailable due to an unconstitutional heightened self-defense requirement. Indeed, courts in some jurisdictions have already held or indicated as much. i Courts in New Jersey, however, have reached a different conclusion. As discussed below, New Jersey’s Appellate Division has held that the Second Amendment is entitled to lesser protection than the First Amendment and that prosecutions for possessing a handgun without a permit can proceed even when, as in the case of Petitioner Shawn Reeves, the person applied for a permit under the old scheme and satisfied every requirement for a permit other than an unconstitutional heightened need for self-defense requirement. The Question Presented is therefore: Does prosecuting a person for possessing a firearm without a permit violate the Second and Fourteen Amendments when that person was unable to receive such a permit solely due to an unconstitutional requirement that he establish a heightened need for self-defense? ii