Justice Thomas: “the Second Amendment is a disfavored right in this Court”
Opponents of the 2nd Amendment are gearing up to exploit the Parkland School shooting by making it part of the Resistance movement against Trump, the NRA and Republicans.
That was obvious from the start, and it’s more so now that the March For Our Lives on March 24 picks up celebrity donations and endorsements. Rather than proposing solutions that might actually reduce school gun violence while also respecting the constitutional rights of law abiding citizens protected under the 2nd Amendment, it is turning into the equivalent of the Women’s March that greeted Trump’s Inauguration. Meanwhile, a week before that, the Women’s March organization itself is organizing a national school walkout.
By hijacking the issue of school safety and repurposing it for anti-Trump and anti-2nd Amendment goals, the people behind these events have guaranteed that nothing productive will happen as to actually protecting students.
Yet there will be intense pressure to “do something” even if that something is unproductive and unconstitutional.
While we would like to think the Supreme Court ultimately would protect 2nd Amendment rights, a Dissent (pdf.) by Justice Clarence Thomas gives pause to that assurance. (Full opinion embedded at bottom of post.)
The case involved a California mandatory 10-day waiting period which had to be observed even for those who already owned guns legally and had gone through the permitting and background check. That period had to be observed for the sake of being observed, even if all the follow up background checks the waiting period was intended to allow already had been completed. It was waiting for the sake of waiting, unrelated to any legitimate government interest. The waiting period was struck down by the District Court, but then upheld by the 9th Circuit.
The Supreme Court denied the petition for a writ of certiorari today, meaning the Supreme Court would not hear the case, leaving the 9th Circuit decision and the waiting period in place.
Justice Thomas’ dissent on the issue of whether the Supreme Court should hear the case was sharp and scholarly, which is no surprise. That the other conservative Justices did not join the dissent is curious, but may have been tactical. If there was not a majority to overturn the 9th Circuit, then it might be better not to take the case at all. Justice Thomas’ dissent, in my view, likely reflects the views of other Justices as well, though it was issued in his name only as a marker and warning as to what is happening at the Supreme Court level when it comes to protection of 2nd Amendment rights.
Read the whole thing, of course, but here are some excerpts. In the opening page, Justice Thomas noted that the 2nd Amendment right “to keep and bear arms” is a disfavored right “in this Court”:
The Second Amendment protects “the right of the people to keep and bear Arms,” and the Fourteenth Amendment requires the States to respect that right, McDonald v. Chicago, 561 U. S. 742, 749–750 (2010) (plurality opinion); id., at 805 (THOMAS, J., concurring in part and concurring in judgment). Because the right to keep and bear arms is enumerated in the Constitution, courts cannot subject laws that burden it to mere rational-basis review. District of Columbia v. Heller, 554 U. S. 570, 628, n. 27 (2008).
But the decision below did just that….
If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court.
Because I do not believe we should be in the business of choosing which constitutional rights are “really worth insisting upon,” Heller, supra, at 634, I would have granted certiorari in this case.
Justice Thomas then went through the mechanics of the waiting period and the lower court decisions, and the level of scrutiny courts should apply. He then returned to discuss the disfavored status of 2nd Amendment rights:
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 Amendment to the same extent that they protect other constitutional rights…. In the Ninth Circuit, it seems, rights that have no basis in the Constitution receive greater protection
than the Second Amendment, which is enumerated in the text.
Then Justice Thomas argued that the Supreme Court’s refusal to hear 2nd Amendment cases sent a message that the lower courts have heard loud and clear, that the lower courts need not uphold 2nd Amendment rights:
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 involving the Fourth Amendment—even though our jurisprudence 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….
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.
Our 2nd Amendment rights are under attack politically and the courts will serve as only an inconsistent protector of those rights.
There’s one thing that could change the situation — more Supreme Court Justices nominated by Trump. Which is why the anti-2nd Amendment groups have seized so quickly and vigorously on exploiting the Parkland school shooting for political remedies that will not actually protect school students. To them it’s not about protecting students, it’s about damaging Trump.
The Supreme Court matters. And elections matter on Supreme Court selections, and the continued viability of the 2nd Amendment.
This seems like a good time to repost our original video many of you probably have not seen, since we ran it many years ago, Veteran stands up for 2nd Amendment at Chicago anti-gun forum:
Veteran: Sir, sir. While you’re standing up. I’ve sat here [inaudible] and I’d like to agree with the professor. Everyone standing in this room right now, especially the veterans in the room right now, know, that we are all Americans. The problem with this country right now is it’s us and it’s f***ing them. We need to stop this crap.
Now, the thing I would like you to answer, sir. And I did go to war for this country. Whether it was for everyone in here’s ability to have oil and gas in their cars, or the banks, or whatever. I went to war for my country.
And I went to war for your ability to have the First Amendment, to say what you stood up there and said today, to write what you want to write in your newspaper, and have whatever opinion you want to have. You can practice whatever religious freedoms you want. I would like you to answer the question, since you just said that one of the rights that I went to war over to defend, that is inalienable, to every American citizen. If this discussion was going on, about your First Amendment rights, would you still have the same opinion that we don’t need that any more either.
Goodman: You didn’t hear my answer….that’s not what I said…I said it doesn’t matter what their reasons are, what matters is whether or not it’s relevant today.
Audience member: It’s an eternal truth, an eternal truth….
Goodman: When they consider any part of the Constitution, any law, they’re going to say, “what does it mean today?”
Veteran: The threat of tyranny, today, is no less than at the turn of the century in 1900, in 1800, or in 1700!
Donations tax deductible
to the full extent allowed by law.