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 â€œâ€˜inherited from our English ancestors,â€™â€ 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 â€œhandguns are the most popular weapon chosen by Americans for self-defense in the homeâ€ and because a trigger-lock requirement prevented resi- dents from rendering their firearms â€œoperable for the purpose of immediate self-defense.â€ Id., at 629, 635. San Franciscoâ€™s law allows residents to use their handguns for the purpose of self-defense, but it prohibits them from keeping those handguns â€œoperable for the purpose of im- mediate self-defenseâ€ when not carried on their person. The law thus burdens their right to self-defense at the times they are most vulnerableâ€”when they are sleeping, bathing, changing clothes, or otherwise indisposed. There is consequently no question that San Franciscoâ€™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.