Law & the Courts

Justice Thomas: Second Amendment Is Not a ‘Second-Class Right’

(Chip Somodevilla/Getty)

In 2010, five Supreme Court justices invalidated Chicago’s handgun ban, rejecting the argument that the Second Amendment was a “second-class right.” Turns out only two of them — Justices Thomas and Scalia — really meant it. For the last five years, the right to keep and bear arms has been trapped somewhere between legal limbo and constitutional purgatory. The lower courts continue to whittle away the Supreme Court’s rulings in District of Columbia v. Heller and McDonald v. Chicago, while seven justices stand by quietly, refusing to intervene.

Twice this year, Justices Thomas and Scalia have called out their colleagues for abdicating the judiciary’s safeguard of the Second Amendment. First, in June, the justices sat by idly as San Francisco rendered it impossible for law-abiding citizens to keep a handgun for self-defense. Second, yesterday, the Supreme Court looked the other way as Highland Park, Ill., criminalized an entire class of rifles owned by millions of Americans. In each case, the hard-fought victories to vindicate the right to keep and bear arms have slowly and painfully been chipped away. A careful study of Justice Thomas’s passionate yet reasoned dissents charts a proper course to restore the Second Amendment to its esteemed place in our Bill of Rights.

San Francisco law requires that a handgun must be locked at all times at home, unless it is “carried on the person” of the owner. Good luck opening the trigger lock during a nighttime break-in. The Ninth Circuit Court of Appeals upheld this law, finding it was a reasonable safety measure — though it applies even if there are no children present. The case was appealed to the Supreme Court, but the majority of the justices refused to vote to hear it. In June 2015, Justice Thomas wrote a dissent from the denial of review, which was joined by Justice Scalia. Dissents from denial of certiorari are extremely rare. But more important, this was the first time the justices had weighed in on the right to keep and bear arms since McDonald in 2010.

Justice Thomas was flummoxed by how the Ninth Circuit ignored the Supreme Court’s rulings. “Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense,” he wrote in the dissent, “lower courts, including the ones here, have failed to protect it.” He continued, saying that “Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document” and that he found the Court’s unwillingness to defend the Second Amendment “difficult to account” for in light of the fact that it often reviews other violations of cases concerning the First, Fourth, and Eighth amendments. “I see no reason,” Thomas concluded, “that challenges based on Second Amendment rights should be treated differently.” His admonitions went unheeded.

A careful study of Justice Thomas’s passionate, yet reasoned dissents, charts a proper course to restore the Second Amendment to its esteemed place in our Bill of Rights.

San Francisco wasn’t alone in disregarding the impact of Heller. The City of Highland Park, Ill., criminalized all magazines that can hold more than ten bullets and so-called “assault weapons.” These are the sorts of guns and accessories owned by millions of law-abiding Americans for self-defense, hunting, and target shooting. The Seventh Circuit upheld both of these laws, limiting Heller to forbid only total bans on handguns — no other categorical bans would be affected. Plaintiffs appealed the case to the Supreme Court.

Once again, the Court denied review. And for the second time in six months, with much more powerful language, Justice Thomas penned a thoughtful dissent joined by Justice Scalia, decided yesterday. Thomas charged that the Seventh Circuit had a “crabbed reading of Heller” and “ignores Heller’s fundamental premise” that the Second Amendment “is an independent, individual right” unconnected to “what the militia needs.” Most strikingly, the court of appeals explained that even if the law didn’t actually improve safety, the law was valid because it “may increase the public’s sense of safety.” In other words, it makes people feel good. Thomas dismissed such faulty reasoning. “If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing.”

The usually even-tempered Thomas, however, saved his sharpest criticisms for the seven other justices, and by implication Chief Justice Roberts and Justices Kennedy and Alito. The trio joined the majority in Heller and McDonald, but have been absent since. Thomas faulted the “Court’s refusal to review a decision that flouts two of our Second Amendment precedents.” This stands in contrast to other cases in which lower courts violate constitution rights and in which the Court summarily reverses, without even the benefit of oral argument. “There is no basis for a different result when our Second Amendment precedents are at stake,” Thomas charged.

In the last sentence of his dissent, Justice Thomas takes us full circle from McDonald v. Chicago. In that case, the Windy City asked the justices to “treat the right recognized in Heller as a second-class right.” This, Justice Alito wrote in 2010, the Court would not do. Yet, now, in 2015, Justice Thomas has called Alito’s bluff, writing, “I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right.” By refusing to intervene when lower courts disregard the right to keep and bear arms, the Supreme Court has done exactly what Chicago wanted, and abdicated this cornerstone of the Bill of Rights.

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