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The court hasn’t handed down a major Second Amendment ruling in about a decade. On Monday, it for now put off the possibility of changing that anytime soon.
The U.S. Supreme Court on Monday declined to hear 10 Second Amendment cases, despite inconsistent gun law rulings by lower courts in recent years and clear interest among some justices to weigh in on how legal challenges over the right to bear arms are evaluated.
Justice Clarence Thomas wrote a dissent disagreeing with the court’s rejection of one of those cases—Rogers v. Grewal—which concerned requirements that New Jersey imposes on people seeking permits that allow them to carry handguns outside of their homes. Justice Brett Kavanaugh signed onto much, but not all, of Thomas’ dissent.
Those interested in firearms law and gun rights have been watching closely to see if the court would take up any of the pending cases.
In late April, the court sidestepped setting any new precedents related to the Second Amendment when it dismissed a New York City dispute that concerned handgun restrictions city and state lawmakers rolled back after the high court decided to hear the case.
The court last handed down a major Second Amendment ruling about a decade ago.
One Second Amendment scholar, Adam Winkler, a law professor at the University of California, Los Angeles, suggested on Twitter that the rejection of the pending cases is an indication that Chief Justice John Roberts isn’t keen to take up gun rights cases.
“The Court's refusal to hear any of these gun cases is likely due to Chief Justice Roberts, who apparently isn't in favor of broadly expanding the scope of the Second Amendment,” he wrote.
He also noted that two other justices in addition to Thomas and Kavanaugh—Neil Gorsuch and Samuel Alito—are also on the record saying that the court should take up another Second Amendment case soon. Combined the four justices could have forced the to court to do so, but didn’t.
Robert Cottrol, a law professor at The George Washington University, said it is interesting that all four of the justices have never together signed onto a dissent to the court’s rejection of a firearms-related case, and said this could be an acknowledgement by the justices that they don’t have a fifth colleague who is willing to push beyond current Second Amendment precedent.
Like the New Jersey case that Thomas weighed in on, at least four of the other pending gun cases before the court involved challenges over “public carry” restrictions. And two of those cases were also focused on New Jersey’s permit requirements.
The other cases the court turned down dealt with issues like bans on assault weapons and large capacity magazines, as well as a federal prohibition on out-of-state handgun purchases.
Cottrol said public carry, along with what types of firearms—semi-automatic rifles, for instance—people are entitled to have under the Second Amendment are two areas where the court has not yet handed down definitive guidance.
Similar to some other jurisdictions around the country, in order to get a handgun carry permit in New Jersey, a person must demonstrate that they have a “justifiable need” to move about in public with their weapon. The 3rd U.S. Circuit Court of Appeals has found that requirement doesn’t violate the Second Amendment.
But Thomas takes issue with these sorts of requirements in his dissent. He argues that such limits have barred law-abiding citizens from exercising their right to bear arms and says if similar mandates were imposed on other constitutional rights, like free speech, the court would step in.
“But today, faced with a petition challenging just such a restriction on citizens’ Second Amendment rights, the Court simply looks the other way,” he wrote.
“This case gives us the opportunity to provide guidance on the proper approach for evaluating Second Amendment claims; acknowledge that the Second Amendment protects the right to carry in public; and resolve a square Circuit split on the constitutionality of justifiable-need restrictions on that right,” Thomas added. “I would grant the petition for a writ of certiorari.”
Cottrol said that Thomas is raising important points about how the court has approached gun rights. “The court says there are no second class constitutional rights, but they certainly treat the Second Amendment that way,” he said. “For the longest time, they totally ignored it.”
The Supreme Court's most recent landmark Second Amendment rulings came in District of Columbia v. Heller in 2008 and McDonald v. City of Chicago in 2010.
Taken together, the rulings held that individual Americans have a right to bear arms that must be respected under federal, state and local laws. But the justices didn’t outline a rigid standard for reviewing legal challenges under these rulings, essentially leaving this to lower courts.
“Lower courts have struggled to determine the proper approach for analyzing Second Amendment challenges,” Thomas wrote.
Thomas also takes the position that the right to carry arms for self-defense includes the right to carry firearms in public and says it’s “extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.”
The portion of Thomas’ dissent where he delves into why he believes the New Jersey case provides an opportunity for the court to clarify that the Second Amendment guarantees a right to public carry is the only portion that Kavanaugh did not sign onto.
Thomas also notes that a key issue where appeals courts are split is on the constitutionality of “justifiable need” or “good cause” restrictions, like the New Jersey requirement, when it comes to allowing people to carry arms in public. He says the court should move to settle the conflict.
George Mocsary, a professor at the University of Wyoming College of Law who is an expert on firearms law, was critical of the court’s rejection of the latest Second Amendment cases, and especially those dealing with public carry restrictions.
“It’s difficult to come up with language strong enough to describe how poor it is and how badly [the court] has abdicated its responsibilities,” he said. Mocsary also noted that most states east of California and west of the eastern seaboard have legalized public carry in some form.
“The public has accepted this already,” he added. “Really what the court is doing is just bending to the desire of a few state and local governments in which the majority doesn’t want the minority in those areas to be able to arm themselves in public. And that’s really a problem.”
But advocates for tighter gun control laws hailed the Supreme Court’s action on Monday. “Today provided more proof that gun safety laws are not in conflict with the Second Amendment,” said Hannah Shearer, litigation director for the Giffords Law Center.
“The gun lobby has long peddled a false narrative that even the most modest, common sense gun safety laws infringe on individual rights,” Shearer added. “In declining to take up legal challenges to these lifesaving laws, the Supreme Court affirmed the right of states to continue fighting for the policies that will reduce violence in America.”
Bill Lucia is a senior reporter for Route Fifty and is based in Olympia, Washington.
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