When it comes to guns, the justices duck – Washington Examiner

The Supreme Court on Monday declined to take up Rogers v. Grewal, a case dealing with a restrictiveNew Jersey law that prohibits the carrying of a firearm unless a "justifiable need" to do so can be demonstrated. The decision punts on the next logical question in Second Amendment jurisprudence, following the District of Columbia v. Heller decision of 2008: How restrictive can gun laws become before they start abridging a constitutional right?

The case involves a New Jersey man who applied for a permit to carry a firearm. Because he serviced ATMs in high-crime areas, he felt he needed a gun for self-defense. His application was not found to meet the state's requirements, and he was denied.

The New Jersey law in question requires that private citizens requesting carry permits "specify in detail the urgent necessity for self-protection, as evidenced by 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."

Inother words, to prove your need for self-defense, you pretty much need to be attacked first. Good luck; we hope you survive. If you can prove that someone has specifically threatened to attack you, then maybe. Otherwise, your desire to stop potential attacks, even likely ones, is not sufficient grounds for a permit.

The court ruled in Heller that theSecond Amendment guarantees a right to self-defense within the home, among a few other things. The logical next step is to ask how it guarantees self-defense outside one's home. Had it taken the case, the court could have offered clarity on the constitutionality of "good reason" provisions, which are codified in states with various levels of restriction. Moreover, the court could have debated the merits of treating self-defense as a mode of reaction versus as a mode of prevention, which is itself a profoundly compelling question.

Justice Clarence Thomas took the unusual step of filing a dissent from the court's denial of the Rogers petition. In it, he laments how the court has treated Second Amendment cases in recent years, offering criticisms by analogy. "This Court would almost certainly review the constitutionality of a law requiring citizens to establish a justifiable need before exercising their free speech rights," he writes."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."

It's unclear why the court passed up this case when there are so many remaining loose ends in this area of jurisprudence. Perhaps the justices want a narrower question. Perhaps they are comfortable with letting lower courts develop more case law. Either way, the court has to recognize the restrictiveness of certain "good cause" provisions and deal with them. By passing up Rogers, the Supreme Court has declined an opportunity to instruct lower courts on the extent to which the Second Amendment protects the right to self-defense.

As Thomas points out, the lower courts want to be directed. They have said as much. "On the question of Hellers applicability outside the home environment, we think it prudent to await direction from the Court itself," Judge Paul Niemeyer wrote for the 4th Circuit Court of Appeals in a 2011 case, which Thomas cites in his dissent. More cases will surely come, but the court missed an opportunity to offer that direction.

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When it comes to guns, the justices duck - Washington Examiner