Explore The NRA Universe Of Websites

U.S. Supreme Court Declines to Hear Second Amendment Case, Draws Strong Dissent From Thomas, Scalia

Wednesday, June 10, 2015

U.S. Supreme Court Declines to Hear Second Amendment Case, Draws Strong Dissent From Thomas, Scalia

On Monday, the U.S. Supreme Court declined a petition to either summarily reverse or hear an appeal of the decision in Jackson v. City and County of San Francisco, issued by the U.S. Court of Appeals for the Ninth Circuit on March 25, 2014. The Ninth Circuit decision upheld San Francisco ordinances requiring any firearm within the home not actually carried on the person to be in a locked container or disabled by a state-approved trigger lock and banning the sale of hollow point ammunition.  In each case, the Ninth Circuit wrongly determined that while the ordinance "burdens" the "core" Second Amendment right of self-defense within the home, it does not entirely "destroy" it. The court then wrongly applied a deferential form of "intermediate" scrutiny to the regulations and found they satisfied that test. Justice Clarence Thomas, joined by Justice Antonin Scalia (who wrote the landmark District of Columbia v. Heller opinion) penned a sharply critical dissent (see p. 11 at link) of the Supreme Court's refusal to hear the appeal.

The dissent noted, "Because it is impossible to 'carry' a firearm on one's person while sleeping, for example, petitioners contended that the law effectively denies them their right to self-defense at times when their potential need for that defense is most acute." Justice Thomas emphasized that the Ninth Circuit decision was in "serious tension with Heller" and noted that the District of Columbia's very similar firearm storage law had been held by that case to violate the Second Amendment. Criticizing the Ninth's Circuit analysis of the burden, the dissent noted that a person suddenly awakened from sleep by an intruder faced a significant impairment to the right of self-defense by the necessity of having to negotiate the locks on the firearm or safe. "That delay," Justice Thomas wrote, "could easily be the difference between life and death."

The dissent also gave a rare glimpse into how two members of the five-justice majority in Heller view development of Second Amendment jurisprudence in the wake of that case. According to Justice Thomas: "[N]othing in our decision in Heller suggested that a law must rise to the level of the absolute prohibition at issue in that case to constitute a 'substantial burden' on the core of the Second Amendment right. And when a law burdens a constitutionally protected right, we have generally required a higher showing than the Court of Appeals demanded here." The petition should have been granted, he stated, "to review this questionable decision" and "to reiterate that courts may not engage in this sort of judicial assessment as to the severity of a burden imposed on core Second Amendment rights."

The petition should have been granted, Justice Thomas stated, "to review this questionable decision" and "to reiterate that courts may not engage in this sort of judicial assessment as to the severity of a burden imposed on core Second Amendment rights."

For firearm and self-defense advocates, the Supreme Court's decision signals a disinterest by the high court in revisiting its Second Amendment jurisprudence. Lower federal courts have sustained Second Amendment challenges in the face of absolute prohibitions (for example, on shooting ranges, sales, or carrying for self-defense outside the home). Yet virtually any justification by a state or locality has been deemed sufficient for regulations falling short of an all-out ban on protected Second Amendment activity. This is so, moreover, even where the courts have grudgingly acknowledged that the regulation burdens self-defense, which the Supreme Court has made clear is at the heart of the Second Amendment.  

To be sure, the most anti-gun jurisdictions in America remain willing to push the envelope, even with the considerable latitude they have been given by the courts.  As a result, cases concerning a total ban on "bearing" arms for self-defense in public (for example, Peruta v. County of San Diego or Wrenn v. District of Columbia) may yet prove unavoidable, even for the increasingly gun-shy Supreme Court. 

In the meantime, however, Thomas and Scalia's reproof to the Court provides rather cold comfort to liberty-loving Americans who are weary of the Second Amendment being treated as a second class right by the same imperious, activist judges who used to deny it provided any individual protection. In the concluding paragraph of the dissent, Justice Thomas offered a final admonition: "We warned in Heller that "[a] constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all." That is how the anti-gun legal establishment once had it, and anti-gun lawyers and jurists are clearly working to restore that dismal state of affairs.

Fortunately, the American people have always had more to say about the real fate of the Second Amendment and gun culture in America than the cloistered legal elite. Even when judges were dismissing the notion that the Second Amendment had anything to do with individuals, most Americans had relatively free access to and use of firearms. Indeed, gun owners throughout the world can only envy the freedom we in America have enjoyed throughout our history. Your NRA remains hard at work –in Congress, in state legislatures, in City Halls, and, yes, in the courts – to keep that heritage intact and to expand our precious freedoms.

The result in Jackson is yet another clear reminder of the importance of the 2016 elections.  Our nation cannot afford to have another anti-gun president pushing anti-gun nominees for the U.S. Supreme Court.  With your help, liberty will prevail – because the future of our freedom depends on it.

TRENDING NOW
U.S. Senate Adds Pro-Gun Tax Relief Language Back into Reconciliation Bill

News  

Saturday, June 28, 2025

U.S. Senate Adds Pro-Gun Tax Relief Language Back into Reconciliation Bill

Overnight, the U.S. Senate added pro-gun tax relief language back into the Reconciliation bill after the Senate Parliamentarian struck out an earlier provision.  While this new provision is not as expansive as the language we advocated for which ...

One Big Beautiful Bill Clears Senate, and Heads Back to House

News  

Tuesday, July 1, 2025

One Big Beautiful Bill Clears Senate, and Heads Back to House

Earlier today the U.S. Senate passed the “One Big Beautiful Bill.” This bill contained a provision that would, among other things, eliminate the burdensome $200 excise tax imposed by federal law on suppressors, short-barreled firearms, and “any ...

U.S. House Passes Reconciliation Bill, Removing Suppressors from the National Firearms Act

News  

Second Amendment  

Thursday, May 22, 2025

U.S. House Passes Reconciliation Bill, Removing Suppressors from the National Firearms Act

Earlier today, the U.S. House of Representatives passed H.R.1 the One Big Beautiful Bill Act, which included Section 2 of the Hearing Protection Act, completely removing suppressors from the National Firearms Act (NFA).

U.S. Senate Forced to Remove Pro-Gun Language from Reconciliation Bill

News  

Friday, June 27, 2025

U.S. Senate Forced to Remove Pro-Gun Language from Reconciliation Bill

Today, the U.S. Senate was forced to remove the pro-gun language that had been previously included in the Reconciliation Bill currently making its way through the chamber. We explained in a previous article that this language would, ...

Armed Churchgoers Prevent Mass Attack as State Lawmakers Plot More Gun Control

News  

Monday, June 30, 2025

Armed Churchgoers Prevent Mass Attack as State Lawmakers Plot More Gun Control

Just over an hour away from the state capitol in Lansing, Michigan – even as lawmakers worked feverishly to pass various gun control measures, including expansion of “gun free” zones – a chilling reminder unfolded of the ...

Urge the U.S. Senate to Pass the One Big Beautiful Bill – Contact Your U.S. Senators Today!

News  

Monday, June 30, 2025

Urge the U.S. Senate to Pass the One Big Beautiful Bill – Contact Your U.S. Senators Today!

The U.S. Senate has cleared a number of procedural hurdles and is preparing to vote on the One Big Beautiful Bill. This vote will likely come within the next day. The One Big Beautiful Bill includes ...

Canada’s Big Ugly Gun Grab: An Update

News  

Monday, June 30, 2025

Canada’s Big Ugly Gun Grab: An Update

Canada’s Liberal government is pressing on with its harebrained gun ban and confiscation program for “assault style weapons,” but, true to form and precedents, it has been far from smooth sailing.

North Carolina: Update on Gun Bills Moving through the General Assembly

Tuesday, June 24, 2025

North Carolina: Update on Gun Bills Moving through the General Assembly

Recently, House Bill 193 (H193) was reported favorably out of both the Senate Judiciary Committee and the Senate Rules Committee, with amendments.

U.S. Court of Appeals Backtracks on Adverse Suppressor Ruling

News  

Monday, June 23, 2025

U.S. Court of Appeals Backtracks on Adverse Suppressor Ruling

In a single sentence, the U.S. Court of Appeals for the Fifth Circuit added to the high-profile and consequential national conversation on firearm suppressors.

Argentina President Milei Continues to Make Improvements to Country’s Gun Laws

News  

Monday, June 30, 2025

Argentina President Milei Continues to Make Improvements to Country’s Gun Laws

We’ve reported before about Argentina President Javier Milei expanding access to firearms for law-abiding Argentinians.

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.