Justice Thomas Accuses Supreme Court of Dodging Gun Cases

Court has ruled in just one 2nd Amendment case since 2011

Justice Clarence Thomas / Getty Images
June 15, 2020

The Supreme Court on Monday denied a slew of gun-rights challenges focused on everything from state "assault weapons" bans to safety requirements and permit issues, sparking a blistering dissent from Justice Clarence Thomas who accused his fellow justices of "looking the other way" on Second Amendment cases.

Second Amendment advocates were hoping the High Court would take up at least some of the legal challenges to gun-control laws that have passed in New Jersey, California, Maryland, and Massachusetts. Those cases were denied certiorari, meaning the High Court will not take them up. 

The lack of action sparked some justices to dissent. Thomas slammed his colleagues for refusing to take up Rogers v. Grewal, a challenge to New Jersey's gun-carry law that allows government officials to subjectively deny permits. Thomas—joined by Justice Brett Kavanaugh—said the state government's requirement that residents provide a reason for exercising a constitutional right warranted judicial oversight. 

"This Court would almost certainly review the constitutionality of a law requiring citizens to establish a justifiable need before exercising their free speech rights," Thomas wrote. "And it seems highly unlikely that the Court would allow a State to enforce a law requiring a woman to provide a justifiable need before seeking an abortion. But today, faced with a petition challenging just such a restriction on citizens' Second Amendment rights, the Court simply looks the other way."

The Supreme Court has only ruled in one Second Amendment case since 2011. That 2016 case, Caetano v. Massachusetts, dealt with a law concerning stun guns and other less lethal weapons rather than firearms. Despite having a wealth of cases dealing with federal and state policies and laws, however, the High Court has largely sat out on debates about the Second Amendment. Gun-rights activists accused the Court of failing to protect the Second Amendment and of abdicating its role as a check on legislative and executive overreach. 

"Given the fact that the Supreme Court had a cafeteria-style menu of cases from which to choose, there is no excuse why the Court at this time chose to ignore the need to rule on any of these cases, and send a message to lower courts that they can no longer thumb their noses at the Heller [2008] and McDonald [2010] Supreme Court decisions affirming the right to keep and bear arms," Alan Gottlieb, founder of the Second Amendment Foundation, said. 

The National Rifle Association said the Court's silence on these controversies will allow "politicians to trample on the freedom and security of law-abiding citizens." 

"The Bill of Rights specifically includes the right to keep and bear arms because self-defense is fundamental to the liberty of a free society," the National Rifle Association said in a statement. "Today's inaction continues to allow so-called gun safety politicians to trample on the freedom and security of law-abiding citizens." 

Gun-control group Brady United praised the Supreme Court's decision, calling it a "win for the safety of Americans."

"Today's action was a blow to the NRA, the gun lobby, and those who seek to deprive Americans of the authority to enact strong public safety laws that protect their communities from gun violence. We are pleased that the Court chose not to consider the gun lobby's plea to radically reinterpret the Second Amendment," Brady chief counsel Jonathan Lowy said. "While today is a win for the safety of Americans, we must remain vigilant, as some Justices are bent on vastly expanding gun rights."

The move comes after the Court dismissed its first major gun case in nearly a decade in April without ruling on the merits. That case dealt with a strict New York City law limiting how owners could transport their firearms. The Court ultimately decided the issue was moot after the city moved to repeal its restrictions once the Court granted review in the case. 

Gottlieb, who had expressed optimism that the Court would become more active on gun cases when it took the New York case, blamed Chief Justice John Roberts for the Court's decision to deny the gun cases.

"The Supreme Court's refusal to take a Second Amendment Foundation case falls squarely at the feet of Chief Justice John Roberts," he said. "He owes every gun owner in the United States an explanation about why the High Court declined to hear a number of important Second Amendment cases."  

Ultimately, Justices Thomas and Kavanaugh said Rogers v. Grewal should have been taken up by the Court and expressed their dismay at the Court's refusal to further clarify the individual right to keep and bear arms that the Supreme Court protected in 2008's landmark Heller decision, which struck down Washington, D.C.'s handgun ban. 

"This case gives us an opportunity to provide lower courts with much-needed guidance, ensure adherence to our precedents, and resolve a Circuit split. Each of these reasons is independently sufficient to grant certiorari. In combination, they unequivocally demonstrate that this case warrants our review," Thomas wrote. "Rather than prolonging our decade-long failure to protect the Second Amendment, I would grant this petition."