The Supreme Court denied a writ of certiorari for Jackson et al v. City and County of San Francisco. This case was an appeal from the 9th Circuit Court of Appeals which upheld a San Francisco law requiring handguns to be stored in a locked container or with a trigger lock if not on one’s person. This, on the face of it, was in conflict with the Supreme Court’s ruling in DC v. Heller.
Justice Thomas issued a dissent on the denial of certiorari with which Justice Scalia joined. His six page dissent examines why the lower courts’ ruling with regard to this case are in conflict, in his opinion, with Heller. He notes that “because Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document, I would have granted this petition.”
Justice Thomas says the ruling of the Court of Appeals is “in serious tension with Heller.” He concludes that the San Francisco law burdens the core right of self defense and it does so at a time when people are most vulnerable – at night and asleep – which is a “significant burden.” The 9th Circuit reasoned that this was not a “severe burden” justifying strict scrutiny because “a modern gun safe may be opened quickly.” Thomas disagrees.
But nothing 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.
Justice Thomas goes on to say:
The Court should have granted a writ of certiorari 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
Finally, Justice Thomas takes issue with the Supreme Court’s refusal to review this decision in light of their “repeated willingness” to review splitless decisions involving alleged violations of other constitutional rights.
I realize that the Supreme Court gets many more appeals than it can reasonably hear. Nonetheless, I am in agreement with Justice Thomas that this is one in which certiorari should have been granted. That they didn’t even though a majority of the state attorneys general urged them to do so is inexplicable.