Firearms Policy Coalition on Supreme Court Decision Not to Hear Jackson

(courtesy baltimorecriminaldefenselawyerblog.com)

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:”

comments

  1. avatar Red In Texas says:

    “Shall not be infringed.”

    Just sayin’

  2. avatar PPGMD says:

    It is my understanding that the celebrating or gnashing of teeth is a bit premature. That the SCOTUS decision on taking up the case was in relation to the injunction related to the enforcement of the law.

    And that the actual case about the law legality isn’t even decided yet.

    1. avatar Dirk Diggler says:

      give that man a cigar! I believe that is the correct answer. It is a procedural question as to whether or not the lower court should have enjoined the city of san fran from enforcing the law as an impermissible burden on 2A rights. the actual Jackson case has not been heard yet. Give the supremes time, this stuff takes awhile and there are several good cases coming along where there is a split.

      1. avatar WayneMHK says:

        My biggest concern with “giving the courts time” is that the next president won’t be of the type to fill the next SCOTUS vacancy with a constitutional conservative. We have 2 completely unqualified supremes now simply because too many folks “couldn’t vote for Romney”.

    2. avatar Danilushka says:

      UM, yes it is. The infringing local laws are left standing. And that will encourage a deluge of local laws in every fear-craven anti-gun municipality and state in the nation to do the same. This is a disaster that might take a bit for some of you to grasp but it is none the less.

      1. avatar PPGMD says:

        Temporary injunctions that stand are not common when there is a challenge to existing laws.

        1. avatar Dave357 says:

          Is it common for temporary injunctions to reach SCOTUS? And given that cert denial came with dissent in this case, is there much of a chance now that this case still has some life left in it?

  3. avatar David says:

    We got to be consistent. Guns do not save lives or take them. People do that. Guns are tools.

  4. avatar Vhyrus says:

    Soap, ballot, jury, ammo…. Which one are we on now?

    1. avatar James says:

      Lube.

      1. avatar Robert W. says:

        DOPE

    2. avatar uncommon_sense says:

      In my opinion we have just about exhausted the “jury box” (courts). The next phase is either acquiescence or active resistance.

      Note: the fact that we have almost exhausted the “jury box” by definition means we have exhausted the “soap box” (attempting to persuade the public and hence politicians and bureaucrats through reasoned arguments in free speech) and the “ballot box” (voting to defend our rights).

      1. avatar Chris says:

        Based on the increasing number of OC and CCW states, I think you are wrong.

        I think we walk a fine line, but all of the boxes are still available to us at this time.

        1. avatar advocatusdiaboli says:

          I agree with you: we have permanently (probably given population rarely declines) lost 7 of the most populous states where the population has become used to city life and rejected the outdoors except as a sort of once a year Disneyland in an RV. California, despite being the 3rd largest state in land mass, it dead last (50th) fishing licenses per capita. Metro people have different values and most of what they know about guns they learn through the distorted leftist anti-gun lens of Hollywood. The only way to reserve your guns rights is to live among people who value them. You can no longer live in an anti-gun state or even a large metro area in a 2A battleground state and expect to keep your 2nd amendment right for long: you will certainly eventually lose it and sooner rather than later if the democrats take the White House again. Those of you whistling past the graveyard on this have been warned.

  5. avatar J says:

    Look, any lawyer can tell you that the court takes less than 3% of cases that it gets briefs for. Don’t blow this out of proportion. The chance of even getting it on the docket were super low to start with

    1. avatar advocatusdiaboli says:

      DO yourself a favor, go look up “stare decisis” and learn. They are the highest court in the nation; there is no one above them to overrule them. No one. they are Mount Olympus, the gods of US law. While they only take a single-digit percentage of cases, their decisions become the law of the land without appeal.

  6. avatar Ralph says:

    About five years ago, Justice Scalia stated that he expected the next SCOTUS 2A case to relate to the types of arms covered by the “right to keep and bear.”

    Maybe he was trying to tell us something.

    1. avatar Geoff PR says:

      Hopefully.

      The next 3 weeks will also bring big news from them…

    2. avatar uncommon_sense says:

      Interesting. I wonder if his statement was a veiled suggestion to challenge the restrictions on suppressors, short barrels, and full auto?

  7. avatar Sammy says:

    It’s all corrupted. We have no governmental representation that is responsive to our will and no consistent rule of law.

  8. avatar Joe R. says:

    “Heller” was not perfect either – black robed retards – as it swept into the ‘pile’ of “acceptable,” many things that were already NOT (as the were infringing) (you dumb POS’s).

    Think about this, D.C. Circuit was G R O S S L Y B R O K E N – People who needed jobs sought governmental positions, thought sh_t up and passed it. It was un-Constitutional (it was Against America, Against Americans, and Against that which would right-the-ship should she falter).

    SCOTUS weighed in and gave with one hand and took with the other.

    THINK ABOUT THIS !

    In an effort to unify court’s decisions and act as final-say in the matter they have shackled you to their own BROKEN PRECEDENT. YOU HAVE NO CONTROL OVER WHO BRINGS SUCH ACTIONS BEFORE SCOTUS, NOR HOW PROPER OR COMPLETE AND COMPETENT THEIR PROSECUTION OF THEIR CASE. LIKE THE ACA “OBAMACARE” WE ARE HOBBLED BY THE INCREDIBLY STUPID, WRONG, AND EVIL. WE ARE ESSENTIALLY STUCK WITH THE PUBLIC DEFENDER IN MY COUSIN VINNY PROTECTING EACH OTHER FROM EVENTS THAT WOULD CAUSE THE NEEDING TO COME TO ARMS AGAINST EACH OTHER.

    f U
    F them

    1. avatar Joe R. says:

      “The men who form the Court however, by Presidential appointment and Senate approval, ARE NOT THE FOUNDING FATHERS nor are they the contemporary incarnation of them [8].
      Therefore they are not, collectively, individually, or in-Chief [Justice] the blacksmith’s of a “living document” in their adaptation of the Constitution to the latest circumstantial tests of the societies they serve. They are the stalwart security for a piece of paper that secures their very role in protection of it. In such role, they instead (should) hammer the barbs of legal encroachment into cogs that mesh with the Constitution.
      None of the Justices rate a higher calling; apart from their citizenship and their membership interest as party to societal agreement with other U.S. citizens. Thereby, if it is in their purview to change America, and to radically alter how societies are incorporated, it is again, by the manner originally prescribed by the founding fathers, and that is by Abolition. For otherwise, they are untouchable by the persons they serve except by abandonment of societal agreement, and the resultant violence.” [TERMS, J.M. Thomas R., 2012, Pg. 78]

  9. avatar uncommon_sense says:

    From United States Supreme Court Justices Thomas and/or Scalia:

    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

    Note that all important statement that, “The very enumeration of the [Second Amendment] right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-bycase basis what is really worth insisting upon.”

    I don’t know how it can get any clearer than that. United States Supreme Court Justices Thomas and/or Scalia have just stated in plain terms that government laws and court decisions upholding those laws curtailing our Second Amendment rights have no basis in our United States Constitution. And yet various government entities continue their support and enforcement of said blatantly unconstitutional laws. This is a de facto declaration — from two United States Supreme Court Justices no less — that our government is corrupt and tyrannical … claiming authority that they do not have.

    1. avatar Joe R. says:

      Our Founders wasted a lot of blood, b_ll-sweat, and tears, pride, family, treasure, FEAR OF THE POTENTIAL OF GOING AGAINST THE WILL OF THEIR GOD, getting rid of King George for a 3% tax.

    2. avatar John in Ohio says:

      That was my impression as well.

  10. avatar Tom W. says:

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. ……. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.

    All the justification I need. A hearty raise of my middle finger to the Black Robes, RINO’S, Progressive’s, that leave “gaps” in inalienable rights, granted by our Creator, to be exploited, tweaked, revised, etc,..
    We are racing to the bottom.

  11. avatar Ralph says:

    If SCOTUS is waiting for a split in the Circuits, it might have a very, very long wait.

  12. avatar Sheepdog6 says:

    There is a war coming.

    1. avatar Tom W. says:

      But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.

      This One.

      I prefer peace. But if trouble must come, let it come in my time, so that my children can live in peace.

      Thomas Paine

      You need only reflect that one of the best ways to get yourself a reputation as a dangerous citizen these days is to go about repeating the very phrases which our founding fathers used in the struggle for independence.

      Charles A. Beard

      More Questions? Specific Enough?

      1. avatar Kyle says:

        We are not anywhere near an absolute despotism.

        1. avatar John in Ohio says:

          It doesn’t have to be. It’s enough that the People recognize that we are inevitably heading there for the People to act. Why would anyone allow their position to become progressively weaker by allowing an enemy to build itself stronger? There is no turning this government back around. It simply isn’t going to happen. Therefore, it’s suicide for the People to wait much longer thereby allowing the power of a tyrannical government to become practically unstoppable. Sooner means less bloodshed and a greater chance of success.

          This government isn’t returning to constitutional constraints. We’ve allowed it to grow too big. That’s the reality.

  13. avatar JWM says:

    There’s always a war coming. Can you be a little more specific?

    1. avatar Tom W. says:

      My response was directed to your question. Not sheepdog.

    2. avatar Sheepdog6 says:

      One of the Civil type.

      It will be quick. This is not a regional thing, it is an ideological thing. Those with the ability to effectively fight the battles will find themselves in the majority and those that wish to fight the battles using the force of others will find themselves in the extreme minority. Even then the minority will find that the majority of those who they plan to use to subject the minority will refuse to fight for them and will largely defect to the other side.

      Quick, bloody, but effective.

      I too hope it happens sooner rather than later simply because I want my kids to not have to fight the battles.

  14. avatar Jeff A says:

    This post ended with “gun owners would be wise to shift some of their energy back to the gun rights “ground game:”
    Please offer up some ideas that would provide some ideas as to help.
    What do you mean by “ground game.”

    1. avatar uncommon_sense says:

      Ground game ==

      We, individual firearms owners, reach out to the people in our community. We prepare reasoned arguments and facts ahead of time and then share those reasoned arguments and facts wherever opportunities present themselves.

      We, individual firearms owners, lobby our politicians and bureaucrats and GET OUT AND VOTE for politicians who support our rights. We vote in both primaries and elections, no exceptions!

      Most importantly, we invite fence sitters and people who are mildly anti-gun to a local gun range and introduce them to firearms in a safe and controlled environment. This almost always wins people over to our side. I have done it and seen it myself.

      1. avatar uncommon_sense says:

        Important note: suppose that just one in 20 homes are “passionate” firearms owners who invite fence sitters and mildly anti-gun people to a local gun range. If those “passionate” firearms owners invite two homes to a local gun range per year, they would have invited everyone within 10 years. This is easily achievable.

  15. avatar SurfGW says:

    The original Heller left room for “reasonable regulation”. The refusal to hear this is the Supreme Court’s way of saying that they already made their call and “reasonable” is something for the lower courts to decide.
    This is a STRONG HINT for 2nd Ammendment types to stop pushing for court decisions because you will eventually get a decision you don’t want and can’t undo. Focus on the ballot and legislative methods, not on some pie in the sky wish for judicial activism that WILL EVENTUALLY BACKFIRE.

    1. avatar John in Ohio says:

      So this is the sum total of constitutional limits on government now? If so, then it’s time to restore our republic or scrap it all together.

      1. avatar SurfGW says:

        No, it is time for you to quit complaining and go back to old fashioned lobbyists and grass roots campaigns

Write a Comment

Your email address will not be published. Required fields are marked *

button to share on facebook
button to tweet
button to share via email