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
Firearm Turn-ins, Worse than Useless?

News  

Monday, April 28, 2025

Firearm Turn-ins, Worse than Useless?

Once again, Chicago has provided a cautionary tale in gun control. This time the city helped to illustrate the futility of gun turn-ins – sometimes incorrectly termed “buybacks” by those under the misimpression that all ...

Declassified Document: Biden-Harris Administration Targeted Gun Owners and Second Amendment Rights Under “Domestic Terrorism” Pretext

News  

Monday, April 21, 2025

Declassified Document: Biden-Harris Administration Targeted Gun Owners and Second Amendment Rights Under “Domestic Terrorism” Pretext

On April 16, Director of National Intelligence Tulsi Gabbard made good on a promise to expose the ways in which the Biden administration had weaponized the federal government against its political adversaries by releasing the Biden-era “Strategic Implementation Plan ...

U.S. Supreme Court Allows Decision Recognizing Young Adult Carry to Stand

News  

Monday, April 28, 2025

U.S. Supreme Court Allows Decision Recognizing Young Adult Carry to Stand

On Monday, April 21, the U.S. Supreme Court declined to review an appeal from the state of Minnesota in Worth v. Jacobson, allowing to stand an Eight Circuit ruling declaring that a ban on obtaining carry permits by ...

Australian Gun Regime Exposes the Fallacy of “Red Flag” Laws

News  

Monday, April 28, 2025

Australian Gun Regime Exposes the Fallacy of “Red Flag” Laws

As we wrote about last week, a cornerstone of the Biden administration’s “Strategic Implementation Plan for Countering Domestic Terrorism,” a plan aimed at curtailing Second Amendment rights under the guise of fighting domestic terrorism, was ...

Trump Administration Revives Federal Firearm Rights Restoration Provision

News  

Friday, March 21, 2025

Trump Administration Revives Federal Firearm Rights Restoration Provision

On March 20, the U.S. Department of Justice (DOJ) published an interim final rule entitled, Withdrawing the Attorney General’s Delegation of Authority. That bland title belies the historic nature of the measure, which is aimed at reviving ...

Legal Update: April 2025 Litigation Update

Monday, April 21, 2025

Legal Update: April 2025 Litigation Update

In the first quarter of 2025, the National Rifle Association filed three new lawsuits and five amicus briefs, while continuing to litigate dozens of ongoing lawsuits across the country.

Florida: Legislation to Remove 2A Restrictions During Emergencies Sent to Governor’s Desk

Wednesday, April 23, 2025

Florida: Legislation to Remove 2A Restrictions During Emergencies Sent to Governor’s Desk

Today, companion bills Senate Bill 952 and House Bill 6025, protecting our Second Amendment Rights during a state of emergency, received final passage from the legislature and will now head to Governor DeSantis's desk for his consideration.  

Vermont: Committee Approves Burlington Gun Ban

Monday, April 21, 2025

Vermont: Committee Approves Burlington Gun Ban

On Friday, April 18, the Vermont Senate Government Operations Committee approved S. 131, a change to the Burlington City Charter that would allow the city to ban firearms in establishments that serve alcohol.

Rep. Feenstra Reintroduces Legislation to Protect Second Amendment Rights of Tenants

News  

Tuesday, April 22, 2025

Rep. Feenstra Reintroduces Legislation to Protect Second Amendment Rights of Tenants

On April 17, 2025, Representative Randy Feenstra (R-IA-04) reintroduced the Preserving Rights of Tenants by Ensuring Compliance to the Second Amendment Act, or the PROTECT the Second Amendment Act. 

Federal Court in Massachusetts Enforces Range Access Statute in Pathbreaking Case

News  

Monday, April 21, 2025

Federal Court in Massachusetts Enforces Range Access Statute in Pathbreaking Case

It has happened before in Massachusetts: A small, hardy band of armed Americans faces off against elements of the most powerful military in the world and commits a revolutionary act that paves the way for ...

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.