Clarence Thomas Upbraids SCOTUS for 'Prolonging Our Decade-Long Failure to Protect the Second Amendment'

"The fundamental protections set forth in our Constitution," Thomas writes, should be "applied equally to all citizens."


In District of Columbia v. Heller (2008), the U.S. Supreme Court struck down D.C.'s local handgun ban because it violated the individual right to keep and bear arms secured by the Second Amendment. In McDonald v. Chicago (2010), the Court enforced that right against the states, invalidating a similar handgun ban in Chicago. The Court has since had multiple opportunities to review the constitutional merits of various other gun control schemes, but it has mostly declined to hear those cases.

That inaction continued today. Once again, the Court refused to hear a major Second Amendment case. And once again, the Court's failure to act prompted a sharp complaint from Justice Clarence Thomas, who upbraided his colleagues this morning for "prolonging our decade-long failure to protect the Second Amendment."

Thomas' complaint came in the form of a dissent from the denial of certiorari in Rogers v. Grewal. The case dealt with New Jersey's requirement that any person seeking to get a handgun carry permit must first demonstrate to the satisfaction of the authorities "that he has a justifiable need to carry a handgun." Among other things, the applicant must "specify in detail the urgent necessity for self-protection, as evidence 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." Under the rules, "generalized fears for personal safety are inadequate."

Thomas Rogers, who operates a business that services automated teller machines, wanted to carry a gun for self-defense while out on the job. But he failed to meet the state's exacting standards. The Supreme Court today declined to take up his constitutional challenge to the gun control regulation.

"In several jurisdictions throughout the country," Justice Thomas observed of Rogers' case and others like it, "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." Indeed, Thomas continued, "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."

Thomas left little doubt that it if were up to him, Second Amendment cases like this one would get their day at the Supreme Court—and the gun owners would prevail.

NEXT: Supreme Court Rules, 6–3, That LGBT Workplace Discrimination Violates Civil Rights Act

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  1. I'm against hand gun permits. All law abiding people should be able to carry. If cops can, so should we. And people should be able to have any weapon cops use.

    1. If you really want to see how "common sense" gun laws are, just propose that a voter registration card become a federal carry permit.

      1. "That card had jolly well better not have an ID photograph!"

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      2. I advocate this. Actually, I come at it from the other direction. I tell lefties who demand permits simply for firearms *ownership* that I'll go along with that, and however restrictive and expensive they want to make it, as long as that same permit is required to register to vote.

        Oddly, they seem less than thrilled by this proposal.

        1. I've been agitating for the welfare application process to go like the process for CCW: two forms of approved ID, proof of citizenship (and proof of state residency), fingerprints taken, wants & warrants run, FBI background check, intrusive questions like on Form 4473. Then you have to have yet another photo ID made with fingerprints enbedded. Because it's for welfare, we'll waive the non-trivial fees that accompany CCW applications.

          The good news side-effect here is that he resulting photo ID would be valid for voter ID purposes.

    2. All law abiding people should be encouraged to carry.

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      2. I don't know about all. I certainly know some people I wouldn't encourage to carry a gun. Most of them make the right decision on their own.

  2. We need more like Thomas on 2A

  3. "Thomas left little doubt that it if were up to him, Second Amendment cases like this one would get their day at the Supreme Court—and the gun owners would prevail."

    What a grand old justice, may he soon write just such a decision.

    The first purpose of the Second Amendment is too often overlooked, fostering a liberty of mind and action necessary in the individual citizens of a free republic

    1. It's not up to Thomas, so even if gun owners did get their day in court I don't trust this lot to do much to protect that constitutional right or stop its constriction.

      1. Which is why the Court is ignoring 2nd Amendment cases, even egregious ones, until RBG's haggard ass is finally gone. Not that Roberts will be much better, I fear.

        1. RBG's haggard ass may well be replaced by a younger one of the same stripe. That's a certainly if Biden gets elected... she'll retire the day after inauguration.

          1. "... if Biden gets elected… she’ll retire the day after inauguration."

            I expect given her recurring cancer diagnosis at age 86 [or is it 87?] that is the only thing keeping her alive.

            1. One more reason Trump is our only hope to keep the country from going socialist.

            2. the only thing keeping her alive.

              is certainly not a collectivized health care system.

            3. Why do you think she is alive? It's "Weekend at Bernie's" at the Supreme Court.

  4. Under the rules, "generalized fears for personal safety are inadequate."

    You see, that's why New Jersey police don't get to carry guns.

    1. Forget NJ carry permits. The whole FOID process in NJ is unconstitutional.

  5. Sorry, but we're on our own. For the last 10 years, we've heard that the conservatives were avoiding the cases because they didn't know how Anthony Kennedy aka Gay Buttsex is Protected by the 14th Amendment, would rule. Now the same apologists are saying that it's because they don't know how John Roberts aka The Individual Mandate is a Tax, would rule.

    Even if Trump pulls off a miracle and is reelected and is able to replace Ginsburg, we'll be hearing another excuse for the next 10 years.

    The Court is not going to protect our rights. It's a branch of government that seeks to expand the power of government.


    1. don't they all?

    2. The SCOTUS is always one wingnut short of abolishing abortion or ending gay marriage. Why is that? Whatever reason it is pretty sad.

      1. Because RBG won't die and let the majority shift.

      2. Not as sad as you imagining legitimate, earnest attempts to abolish gay marriage on the Court level.

      3. Those boats have sailed. And rightly so. States may be allowed to chip away at Roe by adding minimal requirements, but that’s about all. Even rock ribbed conservatives are accepting, if not supporting, gay marriage. 1st, 2nd, and 4th amendments are in trouble from squishy judges.

      4. Interesting, to justify a blatant denial of a fundamental constitutional right you deflect to a claim that another derived right is under imminent threat.

        This evidences consciousness of guilt. You know the NJ law is unconstitutional so you plead whataboutism.

      5. Abolishing abortion and gay marriage?

        That's a strawman. Courts don't abolish things. Legislatures do that.

        Removing a made-up constitutional (incorporated) right to abortion is not abolishing abortion. If the court overturned Roe v. Wade, abortion would still be legal everywhere it is right now. If individual state legislatures (or Congress) decided to try to ban it, if successful, *that* would abolish abortion, and the blame or credit for doing so would be on the legislators that voted for it, along with the executive who signed it, unless a veto was overridden.

        It's the same with gay marriage (certainly the most pressing issue of our time, I think we can all agree). Personally, I favor gay marriage being legal, as government does not have a dog in that hunt. None of their business. If there's an opportunity to tell government to GTFO of our lives, we should take it, always.

        That said, though, I can see where it could be argued that not allowing gay marriage in any given state does not constitute a breach of equal protection because the very definition of marriage is a union between one man and one woman, and that gay individuals have the same right to enter into such a union as the rest of us. Gay marriage, under that paradigm, would be redefining the term 'marriage,' not simply removing discriminatory prohibitions.

        I'm not inclined to support a court decision because I like the outcome if the principles involved are invalid. I'm strongly pro-choice, but Roe V. Wade is an abomination, and it should be overturned yesterday. If you wish for there to be a constitutional right to abortion, there's a means for amending the Constitution, and it doesn't involve five black-robed individuals stating (with a straight face) that it's already in there, even though it quite obviously is not. That's probably the clearest example of legislating from the bench that's ever existed, and that is not how our system works.

        The argument against gay marriage bans not violating equal protection is compelling enough that I would be okay with that being an issue to be decided by the various states, though I don't want government at any level getting involved with it. I'm also okay with it standing as is.

        In order to make sure government doesn't have a dog in that hunt, I'd also get rid of most or all of the "goodies" that are handed out with marriage, which serve as incentives to marry outside of the generally-accepted purpose of the institution. To hand out special tax breaks (and other such things) as marriage perks brings government into the union, and there should only be two entities in the marriage. The government (at any level) is not one of those two. GTFO, government.

        1. " If the court overturned Roe v. Wade, abortion would still be legal everywhere it is right now."

          I'm not so sure about that, there are a lot of laws still on the books that Roe struck down, and if Roe got overturned, wouldn't they be enforceable again?

  6. This is an interesting failure of the people to understand the differences between law, as in constitutional common law and statutory codes of the BAR Association & Municipal Corporation/STATE OF...
    If you are going to fill out an application to beg the municipal corporations permission, to be within their statutory jurisdiction, outside of the constitution, they have every right to set what (rules), not laws, rules, that they want and to deny you that permission. Just like McDonalds doesn't have to hire you just because you filled out an application. It is the contrivance that you can't do that thing without their permission that is the failure.
    The statute that tells me I need that permission is repugnant to the constitution and so null & void from the beginning. Period. i.e., I don't have to ask anybodies permission to carry, I just do it. It is an inalienable right.
    The STATE CORPORATION training their municipal terrorists to harass. arrest and/or kill anyone that is carrying without their statutory, unconstitutional permission is where the real crime is being committed. The police need to be arrested and prosecuted for every single denial of Due Process of Law & Deprivation of rights under USC Title 18 section 242. Then their supervisors and the people that trained them or failed to train them properly and the people running the municipal corporation they work for.

    1. Your logic is great, but I'd advise against visiting NJ based on it.

      1. I live in New Jersey. Can't wait to get out, but have been here a long time.

        1. Condolences.

          NJ, NY, MA, RI; all beautiful places to live, except for the people.

  7. Does this 2nd amendment apply to those people who have set up anarchist collectives in Seattle to keep out a feared and hated police force with a history of beating and tear-gassing its own citizens? Asking for a friend.

    1. The Shogunate of Capital Hill, formerly known as the Capital Hill Autonomous Zone, is ruled by King Raz!

      1. So, apparently, brandishing a weapon is ok when it’s done you a bunch of Infowar freaks protesting about their right to a fashy haircut, but not ok when done by Black men who have a funny habit of dying whenever the police are around. The situational ethics of libertarians continue to baffle me.

        1. Oh, look the Commie jackass is trying to project the fact that he’s a loathsome hypocrite who suddenly has nothing to say when his Comrades use guns to stage an ACTUAL insurrection.

        2. Alex Jones is a humble water filter salesman. Nothing more, nothing less. He has to feed his family like everyone else!

    2. People that have seized property that doesn't belong to them and are actively obstructing other peoples free exercise of their liberty??? Nope, don't think so.

      1. The second amendment does apply to those people. But a whole bunch of criminal statutes do as well.

        1. Yes, and those will be ‘good shoots’ in anyone’s book.

    3. Yes, 100%.

    4. Of course. They don't have the right to use those guns to initiate violence against others.

  8. Did any of the other Justices show an interest in these cases, or is Thomas truly the lone voice crying out in the wilderness?

    1. Thomas was joined by Kavanaugh.

      They and Alito and Gorsuch seem to be reliably pro 2A; Four are not, and Roberts can't be counted on as we all know. We need one more justice to make this happen; I honestly hoped that Ginsberg would have gone to the great chambers in the sky by now, but it is apparent that her desire to hang on until she hopes Trump is beaten is keeping her going.

      1. Maybe Trump’s win will kill her.

        1. Just not enough half-educated bigots, superstitious slack-jaws, and disaffected clingers left in America -- not even in our most desolate, can't-keep-up backwaters -- to position Trump for another trick shot at the Electoral College.

          So carry on, clingers . . . but only so far and so long as your betters permit.

          1. Fuck off, you piece of shit.

          2. In case you haven't been paying attention to reality, it's mostly not the places you would label "can't keep up backwaters" that are being looted and burned. Our "betters" seem to be doing an outstanding job of screwing over their own and motivating them to reconsider, in growing numbers, the folly of progressivism.

            Given that over three-quarters of truck drivers have recently asserted that they will not deliver into areas which have declared that law enforcement will be de-funded or disbanded, there will be no need for you to "open wide" - there will be nothing to eat in your lefty concrete jungles. Good riddance.

      2. Does it strike anyone else as a bit unfortunate that the Chief Justice has also become the swing vote? He gets to decide not only how the case will be decided, but (as Chief) gets to decide who writes up the ruling.

        Not that "swing" vote is a constitutional office, but it would be great if Gorsuch or Thomas (as semi-libertarian as they come on this court) got to send out the writing assignments. I can hear it now "I know we don't agree, but we will appreciate your best arguments". With Roberts I worry that it's really just one nice easy pitch across the plate after the next.

  9. "Brandishing" a weapon is not the same as carrying a weapon. Black men are encouraged to carry guns as they see fit and as the law allows, though it is almost always a bad idea to point it at police. They will kill you every time.

    1. Why do white pigs care about their own lives more than black lives?

  10. Second amendment clearly says WELL REGULATED

    1. Fuck off, you lying piece of shit. You know full well what that means.

      1. There’s been a bunch of lefty trolls that are so stupid showing up here lately, that I’m not sure xer does know what it means.

      2. Where are the other "conservative" justices? All it takes is 4 votes to grant cert.

        1. Yes, 4 to grant cert, but 5 to make a rule.
          The best guess is that Roberts has made it clear that he doesn't want a 2A case that will force him to make a decision.

          Whether he's afraid of not being invited to the 'best cocktail parties', or secretly threatened with the closet door being opened and that skeleton being let out, we really don't know.

          I know of some people saying, go ahead and take a case to make them rule one way or the other. Pro or Anti gun rights.
          Answer the question of just what we have left in the Bill of Rights so people can decide that to do with that information.

    2. Second amendment clearly says WELL REGULATED

      Which means well functioning/trained you meat-headed shitsack

    3. Yes, well regulated, which at the time meant disciplined and well practiced, which happens as a result of owning, possessing, carrying, and using the arms in question. "Regulated" as a weaselly way of saying "restricted by force of government" is a more recent interpretation of the word, in a euphemistic way.

      "Regulated" is a word in the first clause of 2A, and that's merely stating the justification for the second bit, which is the bit that does the actual restriction of government. This is very clear, and there is nothing at all that is hard to understand about what the single sentence making up the Second Amendment means. The anti-gun people only claim it's mysterious and obscure because their ability to pull a rabbit out of a hat (like with Roe v. Wade) lives in that obscurity, in the lawyerly tradition.

      1. Well said.

    4. Read the amendment. Well-regulated pertains to the MILITIA, not to the RIGHT of the people as individuals. "A well-regulated MILITIA being necessary to security of a free state, the RIGHT of the PEOPLE SHALL NOT BE INFRINGED." (Emphasis added.) While "well-regulated" may apply to the militia, "shall not be infringed" applies to the right of the people as individuals.

      1. Yes. This.

  11. Might as well just vote for Biden. Voting for Republicans doesn't get us conservatism, so why bother?

    1. You may not get conservatism, but at least you don't get full on leftist. And don't forget the "coat-tail" effect. If Uncle Joe gets in, he's likely to have a lot of unpleasant company at the election night too. Just imagine (or remember) the Executive , the Senate AND the House all controlled by leftists.

      So get out and vote. Hold your nose, dress all in black, whatever, but don't let the Democrats claim they "have a mandate".

      "Elections are won not by converting your opponent, but by getting out the vote" Heinlein (To Sail Beyond the Sunset)

      1. Ehh, whatever. Just let it all burn so we can start over.

  12. Clarence Thomas is one of the great jurist of our time.

    1. Ironically, if they hadn't put him through hell during his confirmation, he might not have been. They turned him into the honey badger Justice.

  13. heck with trying to find libertarian leaning or classical liberal leaning ..bla , bla, bla like Gorsuch...just give me Thomas everytime

  14. Arguing Federalist ideology midstream is a waste of breath, because anything that is implemented with lies, deceit, falsehood or corruption cannot help but perpetuate its own parentage.

    You either do the right thing because its the right thing, or you take the twisted path of attempting to do the wrong thing - and get away with it - which is the standard route for the corrupt and untrustworthy, and it leads to where we now find ourselves.

    Currently, we are a fully broken shell of a nation, and that path was blazed long ago, because the urge of the worst among men is precisely to do the wrong thing and then to use money, bribes, power and cheating to try to get away with it. Accepting or cohabitating with norms of corruption, lies and cheating will always lead back to that same abyss Goethe warned about.

    We are now a failing, bankrupt state in which the ideological descendants of John Marshall's Federal Politburo legacy have only days ago declared that the gender-confused mentally ill have supreme constitutional rights to do anything that they wish.

    This is a strong example of what happens when the crooked and corrupt seek a short-cut to get what they want, try to get away with deceit, corruption and lies, and in the end collapse the entire civilization because of their legacy of cheating and manipulation.

    Robert Yates warned ahead of ratification, explaining to the general public why the Federalist system (note the signage behind Judge Thomas as well as Gorsuch's benefactors) and specifically the Supreme Court was rigged to eventually entrap them, and where it diverged from the English system of actual checks and balances on the court system that it was simply partially copied from.

    Everyone literate in New York, at the time that our government was being formed, was warned that the deletion of active oversight on the courts was a malformed system, and in fact it was INTENDED by the plotters who created it to BE malformed, in order to work its purpose.

    Hamiltonians knew very well that they could not get through the Constitutional Convention machinations that they fully intended to later implement, and propositions such as forming a national bank controlled by "investors" was immediately refused when it was proposed, but they created a back-route that would be later used to get their way, every time.

    That route was the necessary and proper clause, coupled with a totally unrestrained supreme federal court that had the absolute power of a tinpot Dictatorship, and an assertion that no one ever added the word "expressly" to delineate limitations of Federal powers.

    None of this is particularly surprising because Hamilton was a serial liar, who regularly told whatever audience he was courting whatever he thought they wanted to hear. That Hamilton was a crook is evidenced, as with most such people, from their earliest efforts at self-enrichment or advancement.

    The New York legislature specifically stated in Hamilton, Lansing and Yates' appointment (notably Yates is appointed senior member of the New York delegation, while Hamilton is specifically a Junior member) to the convention that they were ONLY authorized to discuss alterations to the Articles of Confederation, and noting else.. Hamilton, being a deceiver, completely ignored the terms of his appointment by the representatives in the New York Senate and House, and did what he knew he was specifically prohibited from doing.

    The Hamiltonian Federalists did not want to pay the bills of the state and leave the people alone, they wanted to amass a permanent power to force, compel and control, which deliberately required a Supreme Court with dictatorial power that could not be challenged without outright military rebellion. In order to gain such a force monopoly, it requires lies, deceit and corruption, because honest people will not submit to such goals voluntarily if they are informed and aware. Unfortunately, most Americans at the time were not reading New York city newspapers.


    "31 January 1788

    To the Citizens of the State of New-York

    No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications.

    The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there
    is no appeal."

    "7 February 1788

    To the Citizens of the State of New-York

    What the principles are, which the courts will adopt, it is impossible for us to say; but taking up the powers as I have explained them in my last number, which they will possess under this clause, it is not difficult to see, that they may, and probably will, be very liberal ones.

    We have seen, that they will be authorized to give the constitution a construction according to its spirit and reason, and not to confine themselves to its letter."

    "20 March 1788

    To the Citizens of the State of New-York

    The judges in England are under the controul of the legislature, for they are bound to determine according to the laws passed by them. But the judges under this constitution will controul the legislature, for the supreme court
    are authorised in the last resort, to determine what is the extent of the powers of the Congress; they are to give the constitution an explanation, and there is no power above them to set aside their judgment.

    The framers of this constitution appear to have followed that of the British, in rendering the judges independent, by granting them their offices during good behaviour, without following the constitution of England, in instituting a tribunal in which their errors may be corrected; and without adverting to this, that the judicial under this system have a power which is above the legislative, and which indeed transcends any power before given to a judicial by any free government under heaven.

    Men placed in this situation will generally soon feel themselves independent of heaven itself.''


    Robert Yates also correctly called the initial soft target that would be selected once the scheming Federalists had the power of unrestrained taxation - positing in his responses to the Federalist papers that the first Federal taxation targets would initially be aimed at backwoodsmen brewing 'cider' and distilled spirits, due to the near total lack of political clout that such taxation targets would be able to bring to bear. Not only was he correct, but the cowardly Hamiltonian forces specifically sought to wage enforcement upon the western Pennsylvanians for specific tactical reasons - they are not southerners who would lead to immediate open revolt across most of the south and embarrass Washington in his home state, and they are also not New Englanders or New Yorkers with commercial / political clout.

    The Supreme court itself is ITSELF the abomination that it was originally designed to be, in order to allow Federalism to assert total control with any popular review.

  15. John Roberts is a coward through and through.

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