Clarence Thomas: Right to Keep and Bear Arms Has Become a ‘Constitutional Orphan’

The Supreme Court on Tuesday turned down a request from gun rights activists to examine California’s 10-day waiting period for firearm sales, prompting Justice Clarence Thomas to say his colleagues are turning the Second Amendment into a “disfavored right.” Thomas was alone among the justices to note his dissent from the court’s refusal to review a ruling from the U.S. Court of Appeals upholding California’s law, which is similar to one in the District of Columbia and eight other states.

The US Supreme Court issued a number of orders this morning. One of which was the denial of certiorari in a case brought by CalGuns and others challenging the constitutionality of California’s 10-day waiting period to purchase firearms. In Silvester v. Becerra, the plaintiffs had argued that mandating a so-called cooling off period in the case of people who already own guns is ridiculous and unnecessary. But when it comes to firearms regulation, ridiculous is what California and the Ninth Circuit do best.

The Supreme Court hasn’t taken a Second Amendment-related case since the McDonald decision back in 2010. Last June, the Court let the Ninth Circuit’s Peruta decision stand, leaving in place California’s strict controls on concealed carry. In November, the Court refused to hear an appeal of Maryland’s “assault weapons” ban. Now the Supremes have validated the Ninth’s waiting period decision by, again, refusing to take the case.

Justice Clarence Thomas, one of the Court’s most conservative and strictly constitutionalist Justices, has apparently had enough.

In response to the Court’s eight-year-long refusal to take another Second Amendment-related case, Thomas penned a lone, lengthy and scathing dissenting opinion to the Silvester denial of cert, pointing out the Ninth Circuit’s double standard where gun rights are concerned and declaring that, as a result, the right to keep and bear arms has become a second-class right.

Here’s the juicy part:

The Ninth Circuit’s deviation from ordinary principles of law is unfortunate, though not surprising. Its dismissive treatment of petitioners’ challenge is emblematic of a larger trend. As I have previously explained, the lower courts are resisting this Court’s decisions in Heller and McDonald and are failing to protect the Second Amend- ment to the same extent that they protect other constitu- tional rights. See Friedman v. Highland Park, 577 U. S. ___, ___ (2015) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 1); Jackson v. City and County of San Francisco, 576 U. S. ___, ___ (2015) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 1).

This double standard is apparent from other cases where the Ninth Circuit applies heightened scrutiny. The Ninth Circuit invalidated an Arizona law, for example, partly because it “delayed” women seeking an abortion. Planned Parenthood Arizona, Inc. v. Humble, 753 F. 3d 905, 917 (2014). The court found it important there, but not here, that the State “presented no evidence whatsoever that the law furthers [its] interest” and “no evidence that [its alleged danger] exists or has ever [occurred].” Id., at 914–915. Similarly, the Ninth Circuit struck down a county’s 5-day waiting period for nude-dancing licenses because it “unreasonably prevent[ed] a dancer from exer- cising first amendment rights while an application [was] pending.” Kev, Inc. v. Kitsap County, 793 F. 2d 1053, 1060 (1986). The Ninth Circuit found it dispositive there, but not here, that the county “failed to demonstrate a need for [the] five-day delay period.” Ibid. In another case, the Ninth Circuit held that laws embracing traditional mar- riage failed heightened scrutiny because the States pre- sented “no evidence” other than “speculation and conclu- sory assertions” to support them. Latta v. Otter, 771 F. 3d 456, 476 (2014). While those laws reflected the wisdom of “thousands of years of human history in every society known to have populated the planet,” Obergefell v. Hodges, 576 U. S. ___, ___ (2015) (ROBERTS, C. J., dissenting) (slip op., at 25), they faced a much tougher time in the Ninth Circuit than California’s new and unusual waiting period for firearms. In the Ninth Circuit, it seems, rights that have no basis in the Constitution receive greater protec- tion than the Second Amendment, which is enumerated in the text.

Our continued refusal to hear Second Amendment cases only enables this kind of defiance. We have not heard argument in a Second Amendment case for nearly eight years. Peruta v. California, 582 U. S. ___, ___ (2017) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 7). And we have not clarified the standard for assessing Second Amendment claims for almost 10. Meanwhile, in this Term alone, we have granted review in at least five cases involving the First Amendment and four cases in- volving the Fourth Amendment—even though our juris- prudence is much more developed for those rights.

If this case involved one of the Court’s more favored rights, I sincerely doubt we would have denied certiorari. I suspect that four Members of this Court would vote to review a 10-day waiting period for abortions, notwith- standing a State’s purported interest in creating a “cooling off ” period. Cf. Akron Center for Reproductive Health, Inc. v. Akron, 651 F. 2d 1198, 1208 (CA6 1981) (invalidating a 24-hour waiting period for abortions that was meant to create a “‘cooling off period’”), aff’d in relevant part, 462 U. S. 416, 450 (1983); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 887 (1992) (joint opinion of O’Connor, KENNEDY, and Souter, JJ.) (disavowing Akron but upholding a 24-hour waiting period only “on the record before us, and in the context of this facial challenge”). I also suspect that four Members of this Court would vote to review a 10-day waiting period on the publication of racist speech, notwithstanding a State’s purported interest in giving the speaker time to calm down. Cf. Forsyth County v. Nationalist Movement, 505 U. S. 123 (1992) (holding that the First Amendment forbids a county from charging even a small permitting fee to offset the costs of providing security for a white-nationalist rally); Virginia v. Black, 538 U. S. 343 (2003) (holding that the First Amendment protects the burning of a 25-foot cross at a Ku Klux Klan rally); Brandenburg v. Ohio, 395 U. S. 444, 446, n. 1 (1969) (per curiam) (holding that the First Amendment protects a film featuring Klan members wielding firearms, burning a cross, and chanting “ ‘Bury the niggers’ ”). Similarly, four Members of this Court would vote to review even a 10- minute delay of a traffic stop. Cf. Rodriguez v. United States, 575 U. S. ___ (2015) (holding that the Fourth Amendment prohibits the police from delaying a traffic stop seven or eight minutes to conduct a dog sniff). The Court would take these cases because abortion, speech, and the Fourth Amendment are three of its favored rights. The right to keep and bear arms is apparently this Court’s constitutional orphan. And the lower courts seem to have gotten the message.

Nearly eight years ago, this Court declared that the Second Amendment is not a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion). By refusing to review decisions like the one below, we undermine that declaration. Because I still believe that the Second Amendment cannot be “singled out for special — and specially unfavorable — treatment,” id., at 778–779 (majority opinion), I respectfully dissent from the denial of certiorari.

No argument here.

About Dan Zimmerman 22 Articles
Born and raised in St. Louis, Dan is now a happy Texan, living in the Live Music Capital of the World. He’s been shooting guns for the last 25 years and writing about them for the last eight or so. While he finds pistols and rifles lots o’ fun, it’s shotguns that have always really floated his boat. He’s happiest breaking clays but has become a fan of duck and pheasant hunting, too.


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