As we are all very much aware, opponents of the Second Amendment to the Constitution are gearing up to further degrade those rights. It is the belief of many, including me, that another stepping stone to abolition of our rights is underway.
Professor Jacobson at Legal Insurrection points out,
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.
We all hope that the Supreme Court will protect our Second Amendment rights but, as Professor Jacobson points out in his piece yesterday, it seems that the hope is misplaced. Yesterday, the Supreme declined to hear a California case regarding an additional and unnecessary mandatory waiting period for those who already legally own firearms.
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.
Part of Justice Thomas’ opinion:
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.
Another excerpt from Justice Thomas’ opinion:
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.
The complete dissenting opinion available here on Scribd:
The Supreme Court has, in effect, issued a quiet notice that they might stand down in the event that further attacks are made on our Second Amendment rights. If Justice Thomas believes this is true, I think we should take very serious notice.
It is obvious that the courts are being used (particularly the 9th Circuit Court of Appeals) by liberal judges to erode our liberties as quickly as they can. It seems that the only way to fend off the attacks is for our President to even more quickly put through his conservative judicial appointments.
Here is the list of the latest appointments, announced earlier this month:
First on the list is Mark J. Bennett of Hawaii to serve as a Circuit Judge on the U.S. Court of Appeals for the Ninth Circuit. Mr. Bennett’s curriculum vitae, and that of the other nominees, is available at the link.