In late April the Supreme Court sent a challenge to the constitutionality of New York City’s ban on the transport of handguns outside the city back to the lower court without ruling on whether the ban was constitutional. By a vote of 6-3, the justices concluded that the case was moot – that is, no longer a live controversy – because the city had changed the rule last year. In a concurring opinion, Justice Brett Kavanaugh suggested that the lower courts “may not be properly applying” the Supreme Court’s most recent gun rights rulings, and he recommended that the justices take up another Second Amendment case “soon.”
The justices seemed to poised to do exactly that: Shortly after issuing the decision in the New York case, the court distributed for consideration at their May 1 conference 10 gun rights cases that had been on hold, presumably waiting for a ruling on the merits in the New York case. The justices considered the cases at six consecutive conferences this spring. The conventional wisdom was that – in light of their earlier decision to take the New York case and Kavanaugh’s concurring opinion – the justices would inevitably grant at least one of the 10 cases, and the delay was likely due to the justices’ desire to choose the most appropriate case or cases from the group. However, today the justices denied review in all 10 cases. Although there is no way to know what’s going on behind the scenes, today’s orders suggest that even if there are four justices among the court’s conservative wing who may be in favor of taking up another Second Amendment case, there is not an appetite to do so now – perhaps because they may not be certain of a fifth vote on their side.
The court denied nine of the 10 petitions without comment, in cursory notations on today’s order list. Justice Clarence Thomas dissented from the denial of review in Rogers v. Grewal, a case that hailed from New Jersey, which grants licenses to carry a handgun in public only if the applicant can show a “justifiable need.” The state has defined “justifiable need” to mean “a special danger to life that” can only be avoided with a permit to carry a gun; Thomas Rogers, a New Jersey resident who runs a large automatic-teller business and applied in 2017 for a public-carry permit, argued that these restrictions violate the Second Amendment – which, he said, makes clear that there is a general right to carry handguns outside the home.
In a 19-page opinion that was joined in part by Kavanaugh, Thomas lamented that “[o]ne would think that such an onerous burden” as the New Jersey scheme “on a fundamental right would warrant this Court’s review.” For example, Thomas observed, the Supreme 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.” However, today the Supreme Court “simply looks the other way” when “faced with a petition challenging just such a restriction on citizens’ Second Amendment rights.”
Thomas argued that Rogers’ case would have given the justices a chance 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 division among the lower courts on whether restrictions like New Jersey’s are constitutional. For that reason, he would have granted Rogers’ petition for review.
This post is also published on SCOTUSblog.