On Friday, the nine justices on the U.S. Supreme Court will meet in conference to go through several dozen cases that are currently being considered for review by the Court. Among them are ten cases having to do with the right to keep and bear arms, and given the fact that justices Samuel Alito, Neil Gorsuch, Clarence Thomas, and Brett Kavanaugh all indicated this week that they want the Court to hear a Second Amendment challenge sooner rather than later, expectations are high that the justices could announce that they’ll hear at least one of these cases as early as next Monday.
On today’s Bearing Arms’ Cam & Co, I’m joined by Scott Bach, the executive director of the Association of New Jersey Rifle & Pistol Clubs to talk about one case that may be the most likely candidate to be chosen by justices. It’s called Rogers v. Grewal, and the case involves a challenge to New Jersey’s incredibly restrictive concealed carry laws, which are denying the average resident their right to bear arms.
In the writ of certiorari filed with the Supreme Court, attorneys for Thomas Rogers and other plaintiffs lay out their reasoning for why the court needs to hear the case, noting that there is currently a split among the various courts of appeals regarding the right to bear arms outside of the home.
In District of Columbia v. Heller, this Court held that the Second Amendment protects “the individual right to possess and carry weapons in case of confrontation” for “the core lawful purpose of self-defense.” But the lower courts have split over the constitutionality of laws that categorically bar typical, law-abiding citizens from carrying handguns outside the home for self-defense. The D.C. Circuit has seen these laws for what they are— “necessarily a total ban on most [citizens’] right to carry a gun”—and it has struck down the District of Columbia’s requirement that citizens show a “good reason,” other than self-defense, before carrying a handgun outside the home as categorically unconstitutional.
But the court below upheld New Jersey’s substantively indistinguishable “justifiable need” requirement, App.1a, based on its reasoning in an earlier case that such a law “does not burden conduct within the scope of the Second Amendment’s guarantee” and, even if it did, it would pass constitutional muster under a toothless version of “intermediate scrutiny” that consists of little more than blind deference to the State’s unbridled “sound judgment and discretion” in passing the law.
This direct conflict between the lower courts goes to the core of the Second Amendment. The question presented in this case is nothing less than this: Does the Second Amendment protect, as it says, the right to keep and bear Arms for all Americans? Or can some circuits effectively erase two of those words from the Constitution? This Court should intervene to ensure a uniform understanding of the Second Amendment and prevent the lower courts from nullifying rights guaranteed by the text of the Constitution.
Thomas Rogers tried to obtain a New Jersey Handgun Carry Permit in 2017, but was denied after the local police chief declared that Rogers had failed to demonstrate a justifiable need to carry. Rogers has been the victim of a violent crime, and regularly works in high crime areas in his job running an ATM business, but those weren’t seen as valid reasons to receive a license. “It’s my right” is also not a valid reason to receive a carry permit in the state, and in fact there are only a few hundred permits that have been issued in New Jersey, most to retired law enforcement, judges, and a few well-connected politicians.
The Third Circuit Court of Appeals dismissed the case, stating that the court had already ruled in an earlier case called Drake v. Filko that New Jersey’s carry laws didn’t violate the Second Amendment rights of residents, in part because “the right to carry a handgun outside the home for self-defense . . . is not part of the core of the [Second] Amendment.”
The Supreme Court declined to hear the Drake case, but in the years since, other lower courts, including the Seventh Circuit and the D.C. Circuit have issued opinions that conflict with the reasoning of the Third Circuit judges in Drake. Attorneys for Rogers argue in their brief to the Supreme Court that the circuit court split is one big reason why the Court should hear the current challenge to New Jersey’s carry laws.
This Court’s review is necessary in this case for three independent reasons: to resolve the direct conflict in the circuits over the constitutionality of laws like New Jersey’s, to correct the decision of the court below essentially ignoring the clear holdings of Heller and McDonald, and to end the lower courts’ open and massive resistance to those decisions.
Rogers has been held by the Court for well over a year now, which is another indication that at least four justices on the Court have an interest in hearing the case. We could soon learn what the Supreme Court plans to do with Rogers, and I’m cautiously optimistic that the court will grant cert in the coming days.
It’s also possible, though perhaps not likely, that the Court will agree to hear more than one Second Amendment-related case in the coming weeks. Coming up tomorrow at Bearing Arms, we’ll be taking a closer look at each of the cases that will be considered in conference and attempt to handicap the chances that each case could get a SCOTUS review.
Also on today’s show, we have a self-defense shooting at a Georgia motel, a sweetheart deal given to a Wisconsin man who pled guilty to shooting at occupants of a car, and a good deed performed by a police officer in Stafford Township, New Jersey. Don’t forget, you can subscribe to Townhall Media on YouTube or the Bearing Arms’ Cam & Co. podcast to stay up to date on all of our shows. Thanks as always for watching, listening, and spreading the word!