Earlier today [Monday], Justice Clarence Thomas (joined by Justice Antonin Scalia) issued a pointed dissent to the Supreme Court’s order denying review in the Jackson v. San Francisco Second Amendment gun rights case. In the amici brief we submitted to the Supreme Court asking that they take up the Jackson case, your Firearms Policy Coalition argued, in part, that . . .
Notwithstanding this Court’s explicit direction, the lower courts have adopted a test that requires them to engage in the very sort of interest balancing Heller and McDonald forbid….
There is thus a clear divide between those courts that nod along to Heller as they perform the post-Heller two-step (but actually apply Justice Breyer’s deferential interest-balancing inquiry), and those courts determined to review Second Amendment claims in a manner consistent with Heller and McDonald.
In the meantime, as more lower courts apply more layers of scrutiny that defer to state and local government policy choices (the supposed process of reviewing Second Amendment claims under Heller and McDonald), those governments become all the more emboldened to push the envelope with regulations that become the functional equivalent of the outright bans on possession in the home (the substance of the “core” right recognized in Heller and McDonald).
In their dissent, Justices Thomas and Scalia agreed:
The decision of the [Ninth Circuit] Court of Appeals is in serious tension with Heller….
Since our decision in Heller, members of the Courts of Appeals have disagreed about whether and to what extent the tiers-of-scrutiny analysis should apply to burdens on Second Amendment rights. Compare Heller v. District of Columbia, 670 F. 3d 1244 (CADC 2011) (“We ask first whether a particular provision impinges upon a right protected by the Second Amendment; if it does, then we go on to determine whether the provision passes muster under the appropriate level of constitutional scrutiny”), with id., at 1271 (Kavanaugh, J., dissenting) (“In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny”). One need not resolve that dispute to know that something was seriously amiss in the decision below.
Seriously amiss, indeed. And while the Supreme Court’s decision to let the Ninth Circuit’s Jackson opinion stand is very disappointing, Justice Thomas made a number of strong statements that might influence how lower courts perceive the commands of Heller and McDonald in future applications of the law:
[W]hen a law burdens a constitutionally protected right, we have generally required a higher showing than the Court of Appeals demanded here. See generally Heller, 554 U. S., at 628–635; Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 662 (1994) (explaining that even intermediate scrutiny requires that a regulation not “burden substantially more speech than is necessary to further the government’s legitimate interests” (internal quotation marks omitted)).
Though it appears that the Court’s refusal to grant certiorari in Jackson is most likely related to the lack of a “circuit split” on the underlying gun control regulation, Thomas points out how the Court has been inconsistent in their approach to such “splitless” controversies–and that Second Amendment rights are not second-class rights:
The Court’s refusal to review this decision is difficult to account for in light of its repeated willingness to review splitless decisions involving alleged violations of other constitutional rights. See, e.g., Glossip v. Gross, 574 U. S. ___ (2015) (cert. granted) (Eighth Amendment); Ontario v. Quon, 560 U. S. 746 (2010) (Fourth Amendment); Hill v. Colorado, 530 U. S. 703 (2000) (First Amendment).
Indeed, the Court has been willing to review splitless decisions involving alleged violations of rights it has never previously enforced. See, e.g., BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996) (right to limit on punitive damages awards).
And it has even gone so far as to review splitless decisions involving alleged violations of rights expressly foreclosed by precedent. See, e.g., Boumediene v. Bush, 553 U. S. 723 (2008) (right of aliens held outside U. S. territory to the privilege of habeas corpus); Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in adult, consensual same-sex intimate behavior). I see no reason that challenges based on Second Amendment rights should be treated differently.
Restating Heller’s warning that the Constitution’s Second Amendment (and the fundamental, individual right to keep and bear arms it protects from government infringement) would become a practical dead letter if courts ignored the proper ‘text, history, and tradition’ method of judicially scrutinizing gun control laws, Justice Thomas’s dissent implies that the Ninth Circuit’s Jackson decision–and the Supreme Court’s refusal to hear the case–may be a serious blow to the Right to Keep and Bear Arms:
We warned in Heller that “[a] constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.” 554 U. S., at 634. The Court of Appeals in this case recognized that San Francisco’s law burdened the core component of the Second Amendment guarantee, yet upheld the law. Because of the importance of the constitutional right at stake and the questionable nature of the Court of Appeals’ judgment, I would have granted a writ of certiorari.
Ultimately, Justices Thomas and Scalia believe that the Jackson petition should have been granted to accomplish two things: (1) to review the Ninth Circuit’s “questionable” decision, and (2) provide guidance as to how courts should review challenged gun control laws:
The Court should have granted a writ of certiorari to review this questionable decision and to reiterate that courts may not engage in this sort of judicial assessment as to the severity of a burden imposed on core Second Amendment rights. See Heller, 554 U. S., at 634 (“The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis what is really worth insisting upon”); id., at 635 (explaining that the Second Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home”).
A number of strong, well-argued Second Amendment lawsuits are currently working their way through various courts of appeal. We will keep you updated as they develop, especially if any of the parties request Supreme Court review. For the next year or so, however, gun owners would be wise to shift some of their energy back to the gun rights “ground game:”