The Supreme Court on Monday decided that it would not hear appeals in 10 gun rights cases. Second Amendment enthusiasts are livid – but perhaps none quite as much as Justice Clarence Thomas. He penned a 19-page dissent on the Court’s denial of certiorari–most of which was joined by Justice Brett Kavanaugh. Justice Thomas slammed the Court for its refusal to consider an appeal in Rogers v. Grewal. Thomas had hoped to use the case to set the country straight about just what the Second Amendment means — and since he won’t get the chance to do so as part of a decision, he’s determined to do it in a way which carries zero weight.
The facts in Rogers v. Grewal are a right-wing fantasy: a law-abiding New Jersey businessman applies for a permit to carry a handgun. He services ATM machines in high-crime areas and wants to protect himself from threats of violence. Plus, he’s been the victim of crime before, so he’s a little extra on-guard. Sure, what could go wrong?
New Jersey law requires that a private citizen show some kind of “justifiable need” to obtain a carry permit; that need must be specified in detail in a permit application that lays out “specific threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot be avoided by means other than by issuance of a permit to carry a handgun.” In Jersey, it’s not enough that you want to carry a gun – you have to actually need it.
The man, Thomas Rogers, helpfully joined by the Association of New Jersey Rifle & Pistol Clubs, sued and took his permit denial all the way to the Supreme Court – which has now refused to consider the case. An annoyed Justice Thomas chastised his colleagues for their unwillingness to revisit the handgun issue:
One would think that such an onerous burden on a fundamental right would warrant this Court’s review… But today, faced with a petition challenging just such a restriction on citizens’ Second Amendment rights, the Court simply looks the other way.
In Thomas’s tirade against the majority, he called New Jersey’s requirement that a person actually need to carry a gun a “near-total prohibition,” and then raised some truly maddening arguments. Let’s enumerate them.
(1) He went there with the gun-abortion comparison.
A favorite (and often unconvincing) device of both liberals and conservatives is to compare abortion regulations with gun control laws. The rights at hand are both grounded in the Bill of Rights; however, abortion is read into the amendments while gun control is enumerated in the text of the document. Critically, both are legally regulable to some degree. Remember that phrase “well regulated”? That neither the right to have an abortion nor the right to bear arms is absolute is common ground. But the two are not exactly parallel, given the very different practical impacts involved: bearing arms is not quite the same as bearing children. Clarence Thomas, though, was happy to offer up the willfully obtuse argument that New Jersey’s gun law should fail, because the same rules could not be applied to abortions:
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.
Honestly, a legal mind of Thomas’s caliber could have done markedly better. Abortions are not guns. The history, background, law, and public interest relevant to abortions is completely different to the law relevant to carrying handguns. Gun rights for self-protection and their unwanted consequences — violence, mass shootings — are not the same as a philosophical idea about when life starts and the burdens borne by those who carry unwanted pregnancies. Equating the very private nature of abortion with the very public possible risk created by carrying firearms is galling in its commitment to thick-headedness.
(2) He dredged up some truly ridiculous history.
Clarence Thomas is here to let us know that the lower courts are getting Heller wrong. Like an exasperated teacher confronting low test scores, Thomas railed against the “many courts” that “have resisted” precedent on gun control. “Whatever one may think about the proper approach to analyzing Second Amendment challenges,” Thomas wrote, “it is clearly time for us to resolve the issue.” As a sample of the kind of clarity needed from SCOTUS, Thomas launched into a pages-long lesson on English history. He brought up James II, what the right to bear arms meant in 1688, and English treatises from the founding era.
Look, I get the desire to stay true to the ideals of the founding fathers. But — come on. On many issues, including guns, staunch historical interpretations of constitutional language clearly do not work. I really thought we were all clear on this, given that whole women-and-blacks-weren’t-really-considered-people thing from the days of our nation’s birth. There may be good arguments against certain overly intrusive gun laws, but they’d be a hell of a lot more convincing if they were grounded in our current reality, and not in a time when flintlock muskets and cannons constituted “technology.”
It’s worth noting that not even Justice Kavanaugh – who joined in the rest of Thomas’ dissent – was unconvinced by this lengthy walk down ye olde lane, and opted out of this section.
(3) He brought up the need for black citizens to protect themselves, and he totally wasn’t trying to be ironic.
Quoting himself from a prior case, Thomas explained that the Second Amendment rights of newly freed slaves were routinely violated by the old Confederacy, which feared violent uprisings. “The importance of the right to carry arms in public during Reconstruction and thereafter cannot be overstated,” wrote Thomas, “The use of firearms for self-defense was often the only way black citizens could protect themselves from mob violence.”
Tell us more, Justice Thomas. Have any other terrible things happened to black Americans as a result of gun ownership? What if I showed you these pictures of Trayvon Martin and Philando Castile? What about Ahmaud Arbery? For the love of all that is rational, if there were ever a month not to argue that unfettered gun access is good for the black community, I think we’ve reached it.
[Image via Chip Somodevilla/Getty Images]
This is an opinion piece. The views expressed in this article are those of just the author.
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