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Subdeacon Joe

We Just Gotta Keep Tryin'

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The Supreme Court on Tuesday said it will not review California’s 10-day waiting period for firearm sales, prompting Justice Clarence Thomas to say his colleagues are turning the Second Amendment into a “disfavored right.”

Thomas was alone among the justices to note his dissent from the court’s refusal to review a ruling from the U.S. Court of Appeals upholding California’s law, which is similar to one in the District of Columbia and eight other states.

Thomas’s 14-page dissent comes as gun control has again dominated the national conversation following the mass shooting at a Florida high school, in which 17 people were killed.

It also illustrates the court’s reluctance to engage in challenges to restrictions on gun ownership and use, many of which have been upheld by lower courts without Supreme Court review.

“The right to keep and bear arms is apparently this court’s constitutional orphan,” Thomas wrote.

Thomas said the 9th Circuit’s ruling was “symptomatic of the lower courts’ general failure to afford the Second Amendment the respect due” a constitutional right.

“If a lower court treated another right so cavalierly, I have little doubt that this court would intervene,” Thomas wrote. “But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this court.”

Separately, the justices also turned aside a National Rifle Association challenge to a California law that imposes a fee on firearm sales and transfers and uses some of the money to track down illegally owned weapons.

“In the wake of mass shootings in Florida and elsewhere, it should be clear that sensible gun laws should have a place in our country — they certainly do in California,” California Attorney General Xavier Becerra said in a statement.

The state said that since 2013, it has seized more than 18,000 firearms from individuals who are legally barred from owning guns.

With limited exceptions, California requires a 10-day waiting period for the purchase of any firearm. The state says it needs the time to complete background checks and for a “cooling off period” for those who might be buying a gun to hurt themselves or others.

It was challenged by two men who already are in California’s database as gun owners and who have valid concealed-carry licenses.

Thomas criticized the appeals court for relying on a “common sense understanding” that cooling-off periods deter violence and self-harm. That is not the kind of rigorous examination required of laws restricting an enumerated constitutional right, Thomas wrote.

“If this case involved one of the court’s more favored rights, I sincerely doubt we would have denied” review, Thomas added. “I suspect that four members of this court would review a 10-day waiting period for abortions, notwithstanding a state’s purported interest in creating a ‘cooling off’ period.”

After finding in 2008 that the Second Amendment affords the right to own a handgun for self-defense inside the home, the Supreme Court has stayed out of the battle over state laws that restrict gun ownership, such as bans on certain types of weapons and strict laws on who may carry guns outside the home.

Thomas made clear he is frustrated.

“We have not heard argument in a Second Amendment case for nearly eight years,” he wrote. “And we have not clarified the standard for assessing Second Amendment claims for almost 10.”

The case is Silvester v. Becerra.




The Ninth Circuit’s deviation from ordinary principles of law is unfortunate, though not surprising. Its dismissive treatment of petitioners’ challenge is emblematic of a larger trend. As I have previously explained, the lower courts are resisting this Court’s decisions in Heller and McDonald and are failing to protect the Second Amendment to the same extent that they protect other constitutional rights. See Friedman v. Highland Park, 577 U. S. ___, ___ (2015) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 1); Jackson v. City and County of San Francisco, 576 U. S. ___, ___ (2015) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 1). This double standard is apparent from other cases where the Ninth Circuit applies heightened scrutiny. The Ninth Circuit invalidated an Arizona law, for example, partly because it “delayed” women seeking an abortion. Planned Parenthood Arizona, Inc. v. Humble, 753 F. 3d 905, 917 (2014). The court found it important there, but not here, that the State “presented no evidence whatso- 12 SILVESTER v. BECERRA THOMAS, J., dissenting ever that the law furthers [its] interest” and “no evidence that [its alleged danger] exists or has ever [occurred].” Id., at 914–915. Similarly, the Ninth Circuit struck down a county’s 5-day waiting period for nude-dancing licenses because it “unreasonably prevent[ed] a dancer from exercising first amendment rights while an application [was] pending.” Kev, Inc. v. Kitsap County, 793 F. 2d 1053, 1060 (1986). The Ninth Circuit found it dispositive there, but not here, that the county “failed to demonstrate a need for [the] five-day delay period.” Ibid. In another case, the Ninth Circuit held that laws embracing traditional marriage failed heightened scrutiny because the States presented “no evidence” other than “speculation and conclusory assertions” to support them. Latta v. Otter, 771 F. 3d 456, 476 (2014). While those laws reflected the wisdom of “thousands of years of human history in every society known to have populated the planet,” Obergefell v. Hodges, 576 U. S. ___, ___ (2015) (ROBERTS, C. J., dissenting) (slip op., at 25), they faced a much tougher time in the Ninth Circuit than California’s new and unusual waiting period for firearms. In the Ninth Circuit, it seems, rights that have no basis in the Constitution receive greater protection than the Second Amendment, which is enumerated in the text. 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.

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