[I]n 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. …
Petitioner asks this Court to grant certiorari to determine whether New Jersey’s near-total prohibition on carrying a firearm in public violates his Second Amendment right to bear arms…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 restrictions on that right. I would grant the petition for a writ of certiorari. …
[In Heller] we explicitly rejected the invitation to evaluate Second Amendment challenges under an “interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other.” … But the application of the test adopted by the courts of appeals has devolved into just that. In fact, at least one scholar has contended that this interest-balancing approach has ultimately carried the day, as the lower courts systematically ignore the Court’s actual holding in Heller. …With what other constitutional right would this Court allow such blatant defiance of its precedent? Whatever one may think about the proper approach to analyzing Second Amendment challenges, it is clearly time for us to resolve the issue.
– Justice Clarence Thomas’s dissent in the cert denial of Rogers v. Grewal
