Bad News for the Second Amendment from SCOTUS

All eyes have been on the Supreme Court to see what they would do in the case of Jackson v. City and County of San Francisco, which challenged San Franscisco’s ordinance mandating that firearms kept in the home be locked and rendered essentially unready for self-defense. The Court had the option of summarily reversing the decision, but it chose not to. Additionally, Justices Scalia and Thomas filed a dissent to the denial of cert:



The decision of the Court of Appeals is in serious tension with Heller. We explained in Heller that the Second Amendment codified a right “‘inherited from our English ancestors,’” a key component of which is the right to keep and bear arms for the lawful purpose of self-defense. 554 U. S., at 599. We therefore rejected as inconsistent with the Second Amendment a ban on possession of handguns in the home because “handguns are the most popular weapon chosen by Americans for self-defense in the home” and because a trigger-lock requirement prevented resi- dents from rendering their firearms “operable for the purpose of immediate self-defense.” Id., at 629, 635. San Francisco’s law allows residents to use their handguns for the purpose of self-defense, but it prohibits them from keeping those handguns “operable for the purpose of im- mediate self-defense” when not carried on their person. The law thus burdens their right to self-defense at the times they are most vulnerable—when they are sleeping, bathing, changing clothes, or otherwise indisposed. There is consequently no question that San Francisco’s law burdens the core of the Second Amendment right.

It only takes four justices to agree to hear a case, and it seems that Scalia and Thomas certainly wanted to take this one. So which of two of the Heller Five are just fine with letting the lower courts gut the Heller decision, and why? I’m fairly certain that Justice Alito is pretty solid on the Second Amendment, however for whatever reason he may not have wanted to join this dissent. Perhaps Chief Justice Roberts and Justice Kennedy weren’t willing to destroy the Second Amendment, but for whatever reason are not particularly keen to revisit the issue, even in the face of the lower courts thumbing their nose at Heller and McDonald.

This is a lot of tea leaf reading, but I don’t think this says good things about the Second Amendment and SCOTUS. We have to put a Republican in the White House in 2016. If the Courts can’t agree to take a case like Jackson, which would really just be reaffirming Heller, the Second Amendment is effectively dead unless we can get Scalia and Thomas the extra solid votes they need.

10 Responses to “Bad News for the Second Amendment from SCOTUS”

  1. terraformer says:

    Read the dissent carefully. This was not denied cert because of the outcome, it was denied cert because of deficiencies in the case itself. It was an awful construction and what would have helped narrow the case down would have been a district court finding of fact (ie; does the law apply to those scenarios) which was skipped because this is an appeal from a PI. Now, that said, the real issue appears to be the lack of any decisions save the CA9 decision and the MA SJC decisions in Comm v. Reyes and Comm v. McGowan last year. There is a natural aversion to dealing with cases like this until after courts have noodled on the issue from a few different sides.

    Don’t read too much into this. IMHO, the only reason Scalia and Thomas wrote this dissent was to make it clear publicly they know the lower courts are being assholes about the situation.

    • Sebastian says:

      I hope you’re right. You know I tend to get frustrated and pessimistic about the Courts.

      • terraformer says:

        Yeah, it can be frustrating, especially when Judges use their own judgement (read biases) on what is happening in a given situation. This is why I think this result in Jackson isn’t a bad one. Here you had no one arrested or charged, you had no facts in front of the justices from which to work. Here you only had supposition. And it would have been all “It’s for the children” from the other side which would have fed data into those supposition machines (their biased brains) the justices would have been relying on to orient themselves.

        This is why the court tends to shy from cases of first impression. They want to see a bunch of situations so they get the right answer. If you told me purse carry could be a storage problem a year ago, I would not have believed it, but then 6 months ago some woman is killed using her brand new CCW purse because her kid got into the purse. The real issue in storage is who are you protecting and how much do you need to protect them. Kids. Check. Felons? Hmmm… If you need storage to protect from a felon accessing (read: breaking in), how much? Does a trigger lock cut it? Clearly no. Does a safe cut it? Not really. Jackson didn’t really address that issue very well. It could have, but as petitioned the cert petition talked about everything but storage.

        • Patrick H says:

          With a just Court, in regards to protected rights, they don’t want for things like “standing” or “splitness”. They take the case and strike down the laws.

          Courts love to play games to get out of doing their jobs. This is another case of that.

    • dwb says:

      Please quote from the dissent where you think you see support for this statement. Not saying you are wrong, I just don’t see how you get to there from the dissent.

      • terraformer says:

        “The Court’s refusal to review this decision is difficult to account for in light of its repeated willingness to review splitless decisions involving alleged violations of other constitutional rights.”

        You need to read in between the lines. The dissent is telling us exactly why the court demurred.

        “Since our decision in Heller, members of the Courts of Appeals have disagreed about whether and to what extent the tiers-of-scrutiny analysis should apply to burdens on Second Amendment rights. Compare Heller v. District of Columbia, 670 F. 3d 1244 (CADC 2011) (“We ask first whether a particular provision impinges upon a right protected by the Second Amendment; if it does, then we go on to determine whether the provision passes muster under the appropriate level of constitutional scrutiny”), with id., at 1271 (Kavanaugh, J., dissenting) (“In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny”). One need not resolve that dispute to know that something was seriously amiss in the decision below.”

  2. Brad says:

    I’m with Sebastian, this is a very depressing outcome. I no longer expect the courts to protect us. Our only hope now is with the legislature, and god help you if you live in a blue state. It’s why I’m getting out of Commiefornia.

    Whatever is going on inside the Supreme Court, I can see only one consistent result and that is no matter which side wins, the Supreme Court sides with whoever won at appeal. Circuit splits don’t matter. When the anti-gunners appeal a loss, the Supreme Court takes the case just to shut them down as in Heller and Mcdonald. When pro-gunners try to appeal a loss the Supreme Court won’t even take the case.

    Since most of the courts of appeal are hostile to the second amendment, we are out of luck hoping for any relief. I foresee the divisions between the states only growing more extreme when it comes to guns.

  3. Ian Argent says:

    I may expound on this some more, but I think we may be at the point at which we don’t strictly need the courts. We got Heller and McDonald, which were bedrock. We may need to take those gains and run with them via Congress and the 14th Amendment’s enforcement clause. A majority of states have liberalized their gun laws in my lifetime (maybe even a supermajority), and the process is ongoing. States are going Constitutional Carry, via legislative action, for goodness sake, and forced reciprocity is a plausible pass in the US Senate, and a definite pass in the House. This isn’t ’34, or ’68, or even ’92 – we’re not holding down the damage in Congress any more

    • Brad says:

      Assuming you are right, realistically such relief is at least 5 years away. I can’t see a Republican president pushing such legislation (or wanting to see it) until after the 2018 midterm elections. Enforcement wouldn’t happen for about a year after enactment, so were talking 2020 at best. The anti-gun states are going to cause a great deal of grief to their residents from now until 2020.

      • Ian Argent says:

        They’ve been causing grief since 1865. The Anti-gun legal edifices weren’t built in a day, they’re not going to be torn down in a decade.

        One thing we really need to learn the lesson of – the anti-gun forces built their laws on sand – they begged the question that gun control was constitutional and popular.


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