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

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.)