Justice Clarence Thomas. Photo credit: pbs.org.

As Nick reported earlier, The U.S. Supreme Court has yet again declined to take a case that implicates the Second Amendment to the U.S. Constitution, over the vociferous objections of Justices Clarence Thomas and Antonin Scalia. The case, Friedman v. City of Highland Park, was brought by plaintiffs Arie Friedman and the Illinois State Rifle Association. Friedman challenged an ordinance enacted by Highland Park, Illinois that bans “manufacturing, selling, giving, lending, acquiring, or possessing many of the most commonly owned semiautomatic firearms which the city branded ‘Assault Weapons.'” The ordinance . . .

describes in nauseating detail the specifics of the modern sporting rifles and pistols that it deems illegal, and even called out a laundry list of apparently evil and fearsome sporting rifles. As you’d expect, the AK-47 and AR15 are listed by name. (Almost apologetically, the ordinance also specifically excludes any weapon “designed for Olympic target shooting events” to avoid a politically embarrassing David Gregory-esque episode involving the police and the U.S. Olympic Team, I suppose.)

Highland Park also banned any magazines that were capable of holding more than ten rounds of ammunition, based on the theory, I suppose, that an inert box made of plastic and metal capable of holding ten rounds of ammunition was perfectly safe, but when the eleventh round was added, the box turned ordinary people into satanic nazi baby-killing machines. For the curious, the relevant portion of Highland Park’s ordinance can be found here, bandwidth permitting.

Friedman’s case was thrown out of the U.S. District Court for the Northern District of Illinois, which granted Highland Park’s Motion for Summary Judgment (which is lawyer-speak for: “Highland Park said that even if everything the dude said is true, they still win because he doesn’t have a case under the law, and the Judge agreed.”) Friedman appealed, and a divided 3-judge panel in the 7th Circuit Court of Appeals affirmed the lower court, holding that, among other things, “law-abiding citizens retain[ed] adequate means of self-defense,” and that “[i]f criminals can find substitutes for banned assault weapons, then so can law abiding homeowners.”

This seemed to be a case ripe for Supreme Court review, not merely because the case involved the a law that restricted civil liberties, but because as Justice Thomas pointed out, the Seventh Circuit arguably invented a new test for assessing the constitutionality of firearms regulations. At the very least, it seems wise for the Court to either conform or reject the legal theory that the Seventh is now spinning. Per Justice Thomas:

[T]he [Seventh Circuit’s] majority believed [that] Heller and McDonald “leave matters open” on the scope of the Second Amendment. The majority thus adopted a new test for gauging the constitutionality of bans on firearms: “[W]e [will] ask whether a regulation bans weapons that were common at the time of ratification or those that have some reasonable relationship to the preservation or efficiency of a well regulated militia, . . . and whether law-abiding citizens retain adequate means of self-defense.”

But, as Thomas explains, this was not at all what the Heller Court said:

Instead of adhering to our reasoning in Heller, the Seventh Circuit limited Heller to its facts, and read Heller to forbid only total bans on handguns used for self-defense in the home. All other questions about the Second Amendment, the Seventh Circuit concluded, should be defined by “the political process and scholarly debate.” But Heller repudiates that approach. We explained in Heller that “since th[e] case represent[ed] this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field.” We cautioned courts against leaving the rest of the field to the legislative process: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad….”

The question under Heller is not whether citizens have adequate alternatives available for self-defense. Rather, Heller asks whether the law bans types of firearms commonly used for a lawful purpose—regardless of whether alternatives exist….

Roughly five million Americans own AR-style semiautomatic rifles. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.

Thomas makes good points here. Alas, this isn’t the first time he’s had to make them. Highland Park is just the latest of several cases involving the Second Amendment that the Court has declined to hear. Some of these cases that the Court declined to hear even involved disagreements between different Circuits (usually a sure-fire way to gain a hearing,) or decision like this one in which the lower courts appear to be at odds with earlier Supreme Court decisions. Per established practice, the Court needs four justices to vote to hear a case. Obviously, Justice Thomas (who wrote the dissent,) and Justice Scalia (who joined in Thomas’ opinion,) would have voted to hear it. Justices Alito and Kennedy, as well as Chief Justice Roberts, were the others who joined the majority opinion in the landmark Second Amendment decisions of Heller and McDonald. Which two of them are keeping any more Second Amendment cases from getting heard? And why? The Court, as is its practice, didn’t bother explaining why it denied the hearing, so all we have a is an ever-growing list of lower court decisions on the Second Amendment, which in many circuits take a restrictive view of the right to keep and bear arms, and which in some circuits take an expansive view, none of which the Court has deigned to review. It would be reasonable to assume that the Court would subsequently take up additional cases and address those Circuit splits and other cases at some point. But ever since the McDonald decision, providing clarity on the Second Amendment is something in which the Court has manifestly been uninterested. Take a look at just some of the cases that it has refused to hear:

Jackson v. City and County of San Francisco – June 8, 2015, Supreme Court refused to hear challenge to San Francisco ordinance in which a handgun in the home could be carried on the body of the person, but otherwise had to be stored in a locked container or else disabled with a trigger lock.

NRA v. McCraw – February 24, 2014, Court refused to hear case challenging a Texas law that barred adults aged 18-21 years old from bearing arms.

NRA v. Bureau of Alcohol Tobacco and Firearms – February 24, 2014, Court refused to hear challege to the federal law barring licensed gun dealers from selling handguns to those in the 18-21 age bracket.

Lane v. Holder – February 24, 2014, Court refused to hear case involving the issue of when gun purchasers have standing to go to court to challenge federal restrictions on gun buying (the case specifically involved a challenge to the 1968 law barring interstate purchases of firearms except through federally-licensed gun dealers.)

Chardin v. Police Commissioner of Boston – November 4, 2013, the Court refused to hear an appeal concerning Massachusetts’ firearm licensing statute, which requires an applicant to show a “good reason to fear injury to his person or property” to obtain a license.

Woollard v. Gallagher – October 15, 2013, the Court refused to hear a Fourth Circuit case that limits the right to carry a concealed weapon to those who have provided a “good and substantial reason”.

Kachalsky v. Westchester County – April 15, 2013, the Court refused to hear a Second Circuit case that upheld New York’s Kafka-esque handgun licensing system.

United States v. Masciandaro – November 28, 2011, the Court refused to hear a Fourth Circuit case that applied intermediate scrutiny to the application of the Second Amendment, and specifically declined to recognize a right to bear arms outside of the home.

Williams v. Maryland – October 3, 2011, the Court refused to hear a case involving a Maryland Court of Appeals decision that found that no right to bear arms outside the four walls of one’s own home.

It’s one thing for the Court to decline to hear cases on matters of law that are fairly well-settled. Just because someone asks, that doesn’t automatically mean that a case is worth the Court’s limited time. But here, Justice Thomas is correct: through its inaction, the Court appears to be relegating the Second Amendment to a second-class right.

If I were a suspicious type, I’d say that it’s almost as though someone has his finger to the wind, and wants to wait out having to come to a decision on the issues until the 2016 election is over.

Did you need any more reason to get out and…not just vote, not just donate money, but to throw yourself energetically into supporting candidates at all levels that support the right to keep and bear arms next year?

(Hat tip: Enzo M., Josh Blackman @ spectator.org, SCOTUSblog.)

50 Responses to Justice Thomas Dissents from SCOTUS’ Refusal to Hear Gun Rights Case

    • Not a legal scholar. But my understanding of treason is that the act has to be involving a foreign power.

      What I believe they are engaging in is civil rights violations. Which I believe are punishable in civil and criminal court.

      Again, not a lawyer.

      • You could see the answer by looking into how many people were tried after the Civil War, the Whiskey Rebellion or the WV coal strikes in the early 1900s.

    • “the Court needs four justices to vote to hear a case. Obviously, Justice Thomas (who wrote the dissent,) and Justice Scalia (who joined in Thomas’ opinion,) would have voted to hear it. Justices Alito and Kennedy, as well as Chief Justice Roberts, were the others who joined the majority opinion in the landmark Second Amendment decisions of Heller and McDonald. Which two of them are keeping any more Second Amendment cases from getting heard?”

    • I lost all confidence in the Supreme Court when I learned about the 1942 case of Wickard v. Filburn.

      If the Federal government can tell a farmer how much wheat he can grow (to feed his own livestock – on his own farm) based on the interstate commerce clause of the Constitution, then we really have no liberty left. The Constitution and the rule of law really mean almost nothing to these people.

      I am happy whenever I hear that the High Court makes a right decision, but I generally expect them to make bad ones. They interpret the Constitution like liberal Episcopalians interpret the Bible (dishonestly).

      • EVERYBODY interprets the bible dishonestly, including atheists and muslims, etc. Because it’s nonsense magic, has to be “interpreted” in order to say anything at all. Like the Koran.

        • That is a nonsensical argument. You are certainly free to reject the Bible, but it is obviously possible to interpret it honestly (even if it is just magic/nonsense). The Bible is generally pretty straightforward. It says what it says. Look into it, and see if it makes sense. Then either believe it, or reject it.

          The problem is that liberals want to pretend that they accept it while they actually reject it. That is dishonest. They do the same thing in politics that they do in religion. They give lip service to the Constitution while they actually reject it.

          I can respect an honest atheist, agnostic, or Muslim who rejects the Bible. I can respect an honest Marxist who clearly rejects the Constitution. I cannot respect a liberal “Christian” who pretends to believe the Bible while they actually despise it. I cannot respect a liberal politician or judge who pretends to uphold the Constitution while continually working to undermine and destroy it.

        • Hah I nominate this post for biggest bullshit response of the century. Logic? We don’t need that, I just don’t like the Bible so it’s all magic.

          Seriously.

      • Art out West,

        You are spot on. Fedzilla came to life in the 1930s and 1940s. I imagine it was possible because people were too busy recovering from the Great Depression in the 1930s and trying to survive World War II in the 1940s. We the People were not watching the hen house … so the weasels waltzed right in and asserted their permanent place.

        • Fedzilla – I like that name.

          It has come in waves, and FDR and his New Deal (and NFA) were a big part of it. The progressives of the early 20th century (like Wilson) also constituted a big wave, as did LBJ and his Great Society (plus GCA of 1968).

          The destruction of a great country does not happen overnight. This cancer has been eating away at the bones of our country for many years now.

        • It began in 1803. There should’ve been a revolution right then and there. Since it wasn’t corrected immediately, I guess the Court reads that as a sort of estopple in matters of Judicial Review. IMHO, the free nation was eventualy doomed. We are just reaping what was sown long ago.

          How can a court decide matters of a Constitution when it does so unconstitutionally?

          http://constitutionality.us/SupremeCourt.html

    • Pretty sure it was Roberts that turncoated on us again. Whatever the NSA/ Obama has on him must be truly awful and inhumanly horrific.

      • Maybe Roberts and Alito felt that it was a loser, given the precariously split nature of the current court. We don’t need the court to uphold a law that dictates, regulates or prohibits certain innocuous design features of rifles and shotguns.

        Magazine capacity is almost certainly a fight you don’t want to get into in court. It’s unlikely that even the most libertarian court would ever rule that States do not have at least some authority in regulating the ammunition capacity of firearms.

        • A libertarian ought to argue that no State has any authority to tell a citizen they can’t own a specific thing, ever. Be it a magazine (for holding ammunition), a magazine (with porn), or hard drugs. Just owning something is not inherently bad for anyone; hurting someone else with it, to get it, or to sell it, is the crime, and is the only thing worth punishing.

      • I’ve often wondered what kind of skeleton Roberts has in his closet. Somebody seems to have a lot of leverage on him.

        • Questionable adoption practices for his kid, that’s what. He may simply not be brave enough to stand in the way of a trillion dollar bill like Ocare and lose his child for the trouble.

  1. Yeah, SCOTUS doesn’t want any more 2A cases. And we need to stop relying on the nine people in robes to save us from our own elected “leaders.”

    Instead, why don’t we try electing decent human beings who care about the rule of law instead of the Democrat criminals that rule us today like feudal barons.

      • Earlier this year i watched the florida 4th DCA rule against the 2A in Norman v State. That court was packed with so called conservatives by Republican Gov Rick Scott. It dont mean crap!

        • So there’s no difference between Scalia and Sotomayor?

          Don’t bogart that joint my friend. Pass it over to me.

        • No Ralph, there really isn’t any difference. Each has pet Amendments that they are willing to champion, and others that they will throw under the bus on a whim.

      • easy on the dems, muffin – if we’d have “packed the bench” in the last presidential election (with Romney), we would be living under another assault weapons ban right now. Romney would have rolled over & so would the congress. Neither team is on your side unless you’re a billionaire.

  2. They’re just stalling until president Hillary can stack the supreme court and strip the 2nd amendment of any right to own firearms. It is so obvious I don’t know why no one see’s it.

    • …Wait until Hillary stacks the bench…
      That’s like waiting for your own execution, which is more plausible than you might think.
      Where is Sirhan Sirhan now that we need him? Oh yeah, he was Palestinian and TRUMP won’t let in no Muslums!

  3. We really need some better judges in the scotus.

    Perhaps a petition to impeach the four dissenting judges in the Heller case?

    This is almost as bad as the Dred Scott decision. These bastards in black robes let their personal opinions get in the way of the constitution.

    We need an amendment saying that any law restricting our freedoms should be thrown out unless all 9 judges support it. This would eliminate most of the excess rule of law in this country.

    Also, better yet, Laws should only go to the President’s desk for approval AFTER being reviewed by the supreme court. Heller overturned the DC handgun ban, but AFTER 30 years on the books!

    • The original intent of SCOTUS was not judicial review, I believe they assumed that right with Marbury v. Madison. So making SCOTUS review any and all law passed would probably be unconstitutional.

      • The Court STOLE that privilege. They hadn’t the power to assume anything, let alone a RIGHT. Governments aren’t living beings. They cannot posess rights; only privileges afforded them by a people. When they assume privilege beyond that, it is tyranny.

        http://constitutionality.us/SupremeCourt.html

        In the absence of a constitution or some other government creating and limiting document, a government secures its privilege through brute force. However, our system of government established a constitution to create itself and limit itself. Any power assumed beyond that document is illegitimate and the government is then considered tyrannical.

    • The States need to amend the U.S. Constitution to give the States more power. Imagine if Federal judges could be removed by a vote of say 30 State Senates.

      • We gave a Federal Constitution a good try but it failed. In my opinion, what we need now are Articles of Confederation wherein each state is sovereign. As far as I know, that is what our revolution was fought for. The Federal Constitution was bait and switch. Don’t get me wrong, I think it held up quite well. However, I much prefer Articles of Confederation.

  4. Does anybody really believe we would have gotten 5 votes? Cause you gotta know we certainly will not get 4 of them. So we need to go a perfect 5 for 5 on the remaining justices – one a loose cannon and the other a known waffler.

    • Good point. No, I dont think most experienced appellate lawyers or SCOTUS court-watchers thought Friedman had a chance- not because of the legal principles, but because of the mechanics- this was an issue about AWB ban by a city, that did NOT have a split to resolve, nor did this speak strongly enough to some of the ambiguous issues that need clarification- what is the dividing line between strict and intermediate scrutiny, what are the elements of government benefit- some say Easterbrook might have even been trolling SCOTUS on “feelings”, as if we didn’t learn the lesson of imaginary micro-aggressions and safety zones in lefty universities, about “feelings” vs facts.

  5. “Which two of them are keeping any more Second Amendment cases from getting heard? And why?”

    Johannes (and the other TTAG lawyers), it could have been a tactical decision by the conservatives on the court..

    If Kennedy voted to hear it with the intent to vote against it, Scalia or Roberts may have declined to hear it to deny Kennedy the chance to gut the 2A.

  6. I believe one or more of the court wants to retire.
    They are just waiting out the results of the coming elections.
    Depending on who wins.
    All hell will break loose regardless. One side or the other.

    • One of these days, Ginsburg is going to drop dead in chambers. But nobody will actually notice for a couple of weeks.

  7. A civil war may be coming. Lot’s of people respect nothing-let alone 9 in black robes. Remember what Andrew Jackson said when the supremes “ruled” he couldn’t forcibly remove thousands of Cherokees…

    • If I recall correctly…Thomas Jefferson didn’t rule out judicial assassination as a means of bringing the court back into line.

      • If the long term problem is “they don’t respect me”, then shooting them when they try to take your stuff solves it about as well as anything else you can do. They either leave you alone, or they don’t, and if they don’t after that, nothing else would make them (except subjugation).
        For reference, see: Revolutionary War, American, late 18th century.

  8. I think its a tactical decision by the conservatives. I think they aren’t sure which way Kennedy is going to go and don’t want to risk a major loss. There is the potential for several appointments in the next four years and the court could look much different either way. I think they are hoping for a GOP pres to get a solid majority on the court. If Cruz wins or for some reason Perry were to come back into the fray, there’s a pretty good chance Justice Don Willet from the Texas Supreme Court would be high on the list of candidates. He’s a pretty strict constitutionalist and pro-2A.

  9. Most of my “liberal” friends despise Clarence Thomas. Why? Because they’re racists. He is a black man, but he does not behave according to proper instructions for the behavior of black men. Natch, they don’t see this as racism.

  10. I believe the court is hiding from any 2A cases because they know they have backed themselves into a corner.

    The points in their ruling in United States v. Miller are particularly troubling to them should a case come before them that would touch upon these points (especially points 3 & 4). This would either require them to overrule themselves in that case or open up the sale and possession of military arms (machine guns, SBR and the like) to the general public.

    It might even make things like the Brady Bill and many others to be ruled as unconstitutional.

    In other words the right of the people to keep and bear arms will no longer be infringed. We certainly can’t let that happen.

    • You hit the nail on the head. The curtain would be pulled back on the Wizard and the Court, wielding it’s unconstitutional power, would have to fish or cut bait. If they rolled any other way than “shall not be infringed”, there would be no denying that the Constitution no longer restrains our government. So, this is statism delaying until propaganda and the brainwashing of the public may perhaps hide the tyranny.

  11. I wonder how this will effect us in CT and NY considering some of there is overlap between the material of Shew v Malloy and the NY lawsuit.

    Perhaps having another two lawsuits from another district court challenging the same premises will help get certeriori?

  12. I think it’s got something to do with relying on a Kennedy for the deciding vote in such a case. Why he voted the way he did in Heller (and MacDonald) I’ll never know.

    It’s safe to say that the Dyke, the Wise Latina, and Grandma Ginsburg are going to vote for more government power every time, without exception. Might as well add Bryer to that list, too. There’s four against the cause, hands down.

    Roberts, Scalia, Thomas, and Alito are solid Republicans, but their conservative credentials can, at times, be called in to question. So that four that are likely for the cause.

    That leaves Kennedy.

    Do you really want the future of your Second Amendment rights in the hands of a Kennedy? I’d rather wait, personally.

    Wait for President Trump to stuff The Court with a couple true Conservatives after Ginsburg, Kennedy, and Bryer throw in the towel, and we’ll be set for a generation of 2A expansion.

    ALL HAIL GLORIOUS LEADER TRUMP!

  13. Dr. Friedman lost the minute he trusted Richard Pearson and the ISRA. ISRA did NOTHING to promote concealed carry for 40 years, and now Pearson thinks it was his idea all along.

    Pearson is one of the “men” who conned Otis McDonald into suing the City of Chicago to the Supreme Court, then when the U.S. District Court in Chicago totally overturned IL’s concealed weapons law in Dec. 2012, Pearson and NRA contract lobbyist Todd Vandermyde fell all over themselves to put Duty to Inform w/ criminal penalties in Rep. Brandon Phelps “NRA backed” HB183 carry bill, because the anti-gun Chiefs of Police wanted it.

    Pearson is a buffoon with Bryl Cream in his hair and a martini in his hand, a clown stumbling around the one-horse main street of Chatsworth IL, attempting to match wits with real politicians like Speaker of the House Mike Madigan. He thinks he is actually a man because he slaps the backs of the local Rotary Club mafia at the local nine hole golf course and has a Masonic ring on his finger. This bumbling good old boy retard and his rat scum sidekick Vandermyde not only betrayed Otis McDonald and every gun owner in IL, they have now shot down case law for every gun owner in all 50 states. What a team we have in IL, losers, traitors, and ignorant racist hicks. Go team NRA!

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