By Barbara Leonard
WASHINGTON (CN) – Supreme Court Justice Clarence Thomas berated his colleagues Tuesday for rejecting a challenge by gun owners to California’s 10-day “cooling-off” period.
“The right to keep and bear arms is apparently this court’s constitutional orphan,” Thomas wrote. “And the lower courts seem to have gotten the message.”
Thomas penned the dissent this morning after his colleagues quietly denied certiorari in the case Silvester v. Becerra — a challenge by California gun owners to 10-day waiting period that the Golden State imposes on all firearms purchases.
While the 14-page opinion makes no mention of it, the dissent came less than a week after 17 people were killed in Parkland, Florida, last week — the country’s sixth school shooting this year. The year 2017 meanwhile was the deadliest stretch of mass shootings in modern U.S. history.
Thomas instead is critical of what he calls a “larger trend” wherein the lower courts “are failing to protect the Second Amendment to the same extent that they protect other constitutional rights.
Blaming cert denials like today’s for “enabl[ing] this kind of defiance,” Thomas noted that the court has “not heard argument in a Second Amendment case for nearly eight years.”
Quoting that case, the 2010 ruling McDonald v. Chicago, Thomas noted that the Second Amendment is not a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”
Saying that it’s been 10 years since the court clarified the standard for assessing Second Amendment claims, Thomas notes that the court has by contrast granted review, in this term alone, to “at least five cases involving the First Amendment and four cases involving the Fourth Amendment.”
The Ninth Circuit upheld California’s law in December 2016, and Thomas says that ruling ignored “several ordinary principles of appellate review.”
“Purporting to apply intermediate scrutiny, the Court of Appeals upheld California’s 10-day waiting period for firearms based solely on its own ‘common sense,’” Thomas wrote. “It did so without requiring California to submit relevant evidence, without addressing petitioners’ arguments to the contrary, and without acknowledging the District Court’s factual findings.”
For Thomas, such treatment “ is symptomatic of the lower courts’ general failure to afford the Second Amendment the respect due an enumerated constitutional right.”
“If a lower court treated another right so cavalierly, I have little doubt that this court would intervene,” Thomas continued. “But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this court.”
Quoting the 2008 gun-rights case District of Columbia v. Heller, Thomas also quipped that the high court should not “be in the business of choosing which constitutional rights are ‘really worth insisting upon.’”
The dissent notes that California enacted its waiting period — which he called “the second longest in the country” — both to allow time for state authorities to run background checks and to allow would-be gun buyers time to calm down in case they might use the firearm to cause harm.
Jeff Silvester and co-plaintiff Brandon Combs say that the waiting period is unconstitutional as applied to residents like them who already own guns.
They focused their challenge only on the cooling-off period, Thomas wrote, quoting the finding by the trial court that only 20 percent of background checks are approved automatically and completed in less than two hours.
Another finding by the trial court that Thomas quoted is that individuals who meet California’s requirements for a concealed-carry license are uniquely “unlikely” to “engage in impulsive acts of violence.”
He said that California made no “attempt to defend a 10-day waiting period,” and noted that the background-check process creates a natural 24-hour waiting period for 80 percent of purchasers.
Criticizing the standard by which the Ninth Circuit reviewed the challenge, Thomas said it “allowed California to justify its waiting period with mere ‘rational speculation unsupported by evidence or empirical data.’”
“The Ninth Circuit did not address these obvious mismatches between the ends and means of California’s waiting period,” Thomas wrote. “It instead dismissed any tailoring concerns by observing that intermediate scrutiny requires ‘only that the regulation “promote a substantial government interest that would be achieved less effectively absent the regulation.”’”