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2nd Amendment rights are under attack, but don’t count on the Supreme Court

2nd Amendment rights are under attack, but don’t count on the Supreme Court

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?”

Audience: NO!

Veteran: The threat of tyranny, today, is no less than at the turn of the century in 1900, in 1800, or in 1700!


Justice Thomas Dissent on 2nd Amendment in Silvester v. Becerra Cert Petition by Legal Insurrection on Scribd


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Guess we need to swap out the Ginsburg and Kennedy seats.

Thomas is my favorite living jurist.

Like pigs, some amendments are more equal than others….

I guarantee, these useful idiots who advocate the removal of the 2nd Amendment will not be pleased if they ever get their way. They, of course, do not want dialog, as with most leftists, the only conversation they tolerate is with those who agree with them.

    Gremlin1974 in reply to oldgoat36. | February 20, 2018 at 9:40 pm

    You will never know if they are please or not because like all supporters of socialist ideals the ones that fought to bring down the previous government will be the first ones disappeared because they have demonstrated an ability to bring down a government.

Professor Jackobson:
You never seem to fail me.
Our 2nd Amendment rights were handed down by God, according to the bill of rights, correct?
And we have that 2nd Amendment so as to defend ourselves from not Rabid Ducks…
But our Opressors.

Justice Thomas is spot-on, as is Professor Jacobson.

Part of this is explained by the fact that justices are increasingly from a liberal class and peer group, as covered by Professor G. Reynolds, and the general cultural war on guns – which has failed at a broader level but succeeded in certain narrow circles (e.g. Rich liberals who can afford to outsource their protection needs)

I didn’t feel strongly about this right when I was younger (I had very liberal parents who drilled into me the evils of guns and still do). As I have gotten older I have come to appreciate how critical this right is.

They would be horrified, mortified and embarrassed if I ever let them know how strongly I feel this is a critical right today (as the only conservative in a family of liberals, though, I am used to being a source of embarrassment to the family).

The best thing to do is to teach your children and open-minded family members about gun safety. Then Take them shooting. Preach self-defense. I never preach gun control or 2A facts, but they ask after they start shooting or handling guns.

And watch from a little acorn a mighty 2nd A defender grow. That’s what the country needs more of.

    alaskabob in reply to PrincetonAl. | February 20, 2018 at 10:26 pm

    In the 1920’s and 30’s the disarmament movements wanted the US and Britain to massively scale down their militaries,already small, as a commitment to world peace. Same was seen and still seen with nukes. The irony is that the very countries where disarmament was pushed didn’t need to be disarmed and missed out on the real threats. Two words…. “Deep State”. Some applaud this but what really would counter a corrupt “Deep State” takeover… good thoughts, marches, rallies, #hashtags? No checks and balances.

I couldn’t find a recent thread to put this:

Kids in charge of over a million dollars?!?

Not even a whisper in any text of the document supports the “right” (so-called) to murder the unborn. Only through a search of the nether regions of emanations and penumbras could something be fabricated, meaning made up, out of nothing. Yet that “right” is extolled by the left as if it had come directly from the Almighty and therefore is absolutely untouchable which is perversity itself since the Almighty has instructed us, Deut 30,16, to choose life. Meanwhile another right, a guarantee actually of inherently endowed rights, which has express constitutional text, and it’s kicked to the curb.

Amazing that Obergefell v. Hodges is treated with almost religious reverence by the left. A commandment from on high that one must not dare disobey. But yet Crawford v Marion County and District of Columbia v. Hellerb are routinely ignored by judges and scoffed at.

    Aarradin in reply to clerk. | February 21, 2018 at 1:22 am

    True, except the “amazing” part.

    They don’t care about the Constitution at all. Never have. They’d really prefer to abolish it entirely.

    It gets in the way of their agenda.

Kennedy is unreliable at best in support of the 2A, so I’m not surprised they aren’t taking any 2A cases where he could sink it. They’re biding their time and waiting for Ginsburg to retire or have a stroke or something.

Is Roberts squishy on this too?

How is it that a state can unilaterally amend the federal constitution? Could a state force its citizens to register their religion with the state? Or how about making it illegal to criticize an elected official. Or lets enact a law that electronic communications aren’t 1st amendment protected because the founding fathers could not envision computers or the internet.

The Court has not really entertained any 2nd Amendment cases except for Heller, Heller II and McDonald. And, in those cases, the “strict constructionists” laid out a road map to circumvent the language of the 2nd Amendment. Roberts is “compromised and has been since the Obamacare case. Alito and Thomas sold out in Heller and McDonald, choosing to follow a political path, some say to head off a move to amend the 2nd Amendment, rather than one based upon strict jurisprudence. However, there will be a battle over the 2nd Amendment and it become more likely that it will be fought in the streets rather than in the courtroom. The rest of the court all strongly adhere to the idea of creative anarchy. They routinely rule that the traditional standards of this society are no longer applicable and go out of their way to eliminate the rule of law, any law.

Once the existing rule of law is irreparably broken, a new rule of law, one favorable to the authoritarian progressives, will be installed. In order for that to happen, the citizenry has to be disarmed. It is simply part of the direction the elite Progressives want this nation to go.

There are no heroes in government anymore.

The victims of gun control are young men who are poor and black. Those who propose gun control want to see this demographic suffer.

He really is one of the all-time best Justices.

Few have come close.

He’s not pulling any punches here at all.

In fact, he’s being remarkably explicit in his condemnation of his peers.

    VaGentleman in reply to Aarradin. | February 21, 2018 at 11:05 am

    In fact, he’s being remarkably explicit in his condemnation of his peers.

    Yes, and that may be an indication of how deeply divided the court is and how frustrated he is. And that’s a very bad sign.

Justice Thomas is pretty squishy on the 2nd.

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.

They can’t subject it to any review. Laws which “burden” it are infringements, specifically disallowed by the text of the Constitution.

There are ways the 2nd can be hemmed in a bit, mostly in interpreting the phrase “the people”. But it’s pretty hard to pretend ignorance of the meaning of the word “infringed”.

    The Packetman in reply to tom_swift. | February 21, 2018 at 7:17 am

    “Justice Thomas is pretty squishy on the 2nd.”

    I would disagree …

    During Heller(?) oral arguments, Alan Gura was shot down very quickly by Justice Scalia when he started his arguments based on Priviledges and Immunities; Scalia understood that to allow that would open up lots of precedent to reevaluation* (and that likely would not hold up under a new standard). Justice Thomas in his concurrance chided his colleagues for not giving P&I more attention.

    *IANAL, but I’ve heard it explained by lawyers and, to me, the P&I argument makes a much more powerful justification.

    Milhouse in reply to tom_swift. | February 21, 2018 at 3:43 pm

    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.

    They can’t subject it to any review. Laws which “burden” it are infringements, specifically disallowed by the text of the Constitution.

    Sez you. Even laws that burden the first amendment are subject to review under strict scrutiny, and if they pass they’re valid.

Só what are you going to do about it?

Until you can get 100,000 people out on the streets the spineless cowards in the gope arent going to pay you any attention!

If you dont get out to vote in the mis terms you are going to get exactly what you reserve, democrats in power. And we all know that will mean more corruption and less right for everyone bar the politically correct of Thought!

    Edward in reply to mailman. | February 21, 2018 at 8:25 am

    However, if the Republicans head down the primrose path of gun control in order to “do something”, they can kiss goodbye to all the good which the tax law has done to improve their chances in November.

    George H.W. Bush was allegedly told by his political advisor, Lee Atwater, that he could sign the ban on importing AKs without any problems because “The gunnies have no place else to go.” George 41 found on the first Tuesday in November, 1992 that “home” was a place to go for many Second Amendment voters.

    It doesn’t matter if Trump reverts to his NY City roots and leads the Republicans to join the Democrats in their perennial efforts to enact more gun control, or he remains neutral (so far the evidence is favoring at least edging toward some of the former). The Republicans in Congress will be blamed (and should be) if they cave to the Left’s use of children to move the GOP down that primrose path.

      Anonamom in reply to Edward. | February 21, 2018 at 9:31 am

      “However, if the Republicans head down the primrose path of gun control in order to ‘do something’…”

      This. This is my fear.

    jack burns in reply to mailman. | February 21, 2018 at 12:21 pm

    The voting solution is over. We own the government and here we are. There will be fraud on a whole new plane in November and they will win so time to think outside the box.

legalizehazing | February 21, 2018 at 3:13 am

A gun on a laboer’s Wall is a sign of Democracy.

    The full quote: “That rifle on the wall of the labourer’s cottage or working class flat is the symbol of democracy. It is our job to see that it stays there.”

    – George Orwell

    Obviously the English failed to heed his words and now in Britain “All animals are equal but some animals are more equal than others.”

    For those in Rio Linda, that last quote is from the book Animal Farm by Orwell.

The entire Constitution is hanging by a thread. Much of it is already gone, due to the the courts distorting its meaning to suit their political preferences, and the rest will soon be gone without judges who respect it, and rule according to what it was intended to mean, rather than what it would need to mean to support their political position.

It’s probably better that they aren’t taking 2nd Amendment cases with the present makeup of the court. There’s no guarantee that the Constitution would be upheld, and a bad ruling would stand for many years, maybe never being reversed.

If we are not to lose the rest of the Constitution, and maybe gain some of it back, there will have to be a few more reliable justices on the court. Half the supposedly conservative ones are flaky and unpredictable, and cannot be counted on to always support the Constitution in its original intent.

OleDirtyBarrister | February 21, 2018 at 12:08 pm

One of Thomas’ best qualities is often a subject of derision, and that is his tendency to remain quiet and refrain from asking disruptive and inapposite questions during oral arguments. He is considerate enough to allow the lawyers to argue their cases, and he is smart enough not to telegraph to the public that he has not read the actual briefs and cases (unlike the other justices often do with their dumb questions).

    What makes you think he has not read the actual briefs and cases?

      OleDirtyBarrister in reply to Milhouse. | February 21, 2018 at 7:17 pm

      What makes you think you are qualified to play a lawyer on the internet?

      Years of reports, statements at seminars, books, and interviews from former clerks reveal that the justices often have not read the parties’ respective briefs or all the actual cases when they attend oral argument. They instead often rely on bench briefs by clerks if they have prepared.

        OleDirtyBarrister in reply to OleDirtyBarrister. | February 21, 2018 at 7:18 pm

        And the lack of reading all those materials is why some justices and judges in lower courts ask so many obtuse questions during oral argument.

        Years of reports, blah blah blah, show that some justices don’t bother doing their homework. What is your basis for concluding that Thomas is of that number?

Time to revert to only apparently sound principle, inalienable rights. I’m tired of all of this haranguing by the communist grocery clerks. The objective is clear, void the constitution and assume full control and the numbers favor their being successful. So confront the end game sooner rather than later.

OleDirtyBarrister | February 21, 2018 at 12:23 pm

It is worth noting that leftists often state that the Second Amendment is outdated or obsolete. They are fools to say such a thing, particularly in the age of weapons of mass destruction and the emergency plans that exist among the military and the executive and legislative branches of the federal govt. It would be very useful to obtain the footage of interviews after the events of Sept. 11, 2001 in which politicians and senior military officers were discussing the “What If’s” and the plans for governance after “Doomsday”. I believe it was Gen. Holland of the USAF that I heard say explicitly that, “it is unrealistic to assume that a constitutional form of government could exist and function for quite some time” following a major strike on the US (including D.C.). Thus, the Second Amendment is our insurance policy that civilian control could be re-established in the aftermath of a major strike with WMD’s.

In its infancy, the US was lucky that Gen. Washington hung up his cloak and his sword and simply went home, surrendering control of the country to civilian authority. The country got lucky because a man of a different mindset could have easily become a military dictatorship. The whole world was surprised and impressed at Washington’s choice because it was rare and unusual, and although recognized for its magnitude at the time, that choice has largely faded in posterity. But the Framers did not leave it to luck in the Constitutional era, they gave us the right and power to choose and establish a government consistent with the constitution. And the Second Amendment is more relevant than ever.

    Washington was given the powers of dictator, it was one of the burdens he carried during the Revolution, not to abuse those powers given him. He frequently withheld his use of those powers, under his reasoning that it was to fight oppression that we were engaged in that war, and to act otherwise, even though it would be the easier road, would put lie to the cause.

    Progressives have eroded the truly amazing man who was Washington, the education system has condemned him for owning slaves while downplaying his leadership of an army made up of short term volunteers. It was because of his character that the military was placed under control of the President. Congress was the original idea for who controls the army. Imagine how different our history would be today under those different powers.

I still wonder why the Las Vegas shooting disappeared from the front page so quickly. Way more people were killed in that event than in this one.

Some victims deserve more sympathy than others? Who chooses and why?

buckeyeminuteman | February 21, 2018 at 2:53 pm

Whatever happened to Scalia (we’ll never know due to lack of autopsy-very suspicious) needs to happen to Ginsburg, and fast.

    I recall reading that she had pancreatic cancer, yet, despite the odds, she has lived longer with that than almost anyone else who has gotten that dreadful form of cancer.

    I still do not feel comfortable with the circumstance of Scalia’s death, mainly from how it was handled and the speedy cremation which is not something normally desired by Catholics. The refusal of an autopsy was also odd to me. He was an older man, and supposedly he had some health issues, but timing and the oddities just sit poorly with me.

      Milhouse in reply to oldgoat36. | February 22, 2018 at 12:50 am

      What the **** **** are you talking about? What cremation? In what universe did this happen?

      Scalia was not cremated, because he was a good old-fashioned Catholic, and the RC church still frowns on cremation. I assume he was not autopsied for much the same reason. I don’t know RC doctrine on cutting people up, but I imagine if it doesn’t like setting fire to them then it probably doesn’t like that either, at least without a very good reason. It’s the same principle, after all.

I guess we can only hope that McConnell and Ryan don’t betray us.