As time goes by, it is becoming all too clear that the U.S. Supreme Court would rather side-step state and local violations of the Second Amendment than sort out the increasingly thorny issues that are being caused by overreaching state legislatures. Out of almost a dozen opportunities set before them, the justices denied hearing a single case that involves the right to bear arms. Associate Justice Clarence Thomas is none too happy about this and issued a dissent regarding the Court’s refusal to make decisions in several crucial gun rights cases. One is left to conclude that the topic of the Second Amendment is just too hot to handle in these most uncommon times.
By refusing to consider these legal questions, the High Court sends a message to the states that they will not be held to account for infringing on the Second Amendment rights of their citizenry and ultimately bestows tacit approval on a number of gun rights violations. In essence, this lack of action on the part of the High Court provides for the disproportionate application of the right to bear arms.
All it Takes is Four
It takes four associate justices to agree before the U.S. Supreme Court can hear an argument. Only the newest member of the Court, Associate Justice Brett Kavanaugh, was willing to stand up and be counted with Thomas for much of the dissent.
Barred from the historic Supreme Courtroom where oral arguments are made are crucial questions regarding gun rights, including the ability to carry a firearm in public, and another eight cases dealing with qualified immunity. This last topic is a hot button issue because it involves protecting police officers from being liable for their conduct on the job. One can (almost, but not quite) understand why the Supreme Court felt this legal doctrine should be left for another day.
However, on the issue of state encroachment regarding the fundamental right to bear arms, there does not appear to be just cause to let these cases hang on for another year. Justice Thomas wrote a lengthy dissent with commanding logic regarding the unequal application of these laws when compared to other issues of the day:
“Yet, in several jurisdictions throughout the country, law-abiding citizens have been barred from exercising the fundamental right to bear arms because they cannot show that they have a “justifiable need” or “good reason” for doing so. One would think that such an onerous burden on a fundamental right would warrant this Court’s review. This Court would almost certainly review the constitutionality of a law requiring citizens to establish a justifiable need before exercising their free speech rights. 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.”
Thomas continued his opposition to the Court’s refusal to hear Rogers v. Grewal, stating that the private citizen whom the case centers around has “no ability to obtain a [carry] permit” even though the man “is forced to operate his business in high-risk neighborhoods with no firearm for self-defense.” The justice then calls out the state of New Jersey for its “near-total prohibition on carrying a firearm in public.” As well, he points out that Rogers v. Grewal would provide much-needed clarification for two decade-old cases, McDonald v. Chicago, and the landmark case of District of Columbia v. Heller. In his final salvo, Thomas gives exceptional reasoning for the High Court to take up the case:
“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 on that right.”
Liberty Nation’s Legal Affairs Editor Scott Cosenza seconded Justice Thomas’ dissent, lamenting, “It shocks the conscience to see so many Supreme Court justices content to allow such divergence of respect for a fundamental right in the lower courts. The Supreme Court’s refusal to address these claims sadly shows the third branch of government can be as dysfunctional as the other two.”
A right is not a right if one is forced to justify his need to the state in order to exercise it. In refusing to hear a single Second Amendment case, the U.S. Supreme Court rings the bell of truth to the legal maxim that “Justice delayed is justice denied.”
Read more from Leesa K. Donner.