Supreme Court Decides To Be A Doormat

In the face of numerous US District and Appeals Courts flat out ignoring its rulings in Heller and McDonald, the Supreme Court has obviously decided they preferred to be a doormat. In today’s Orders of the Court, virtually every single case dealing with the Second Amendment had certiorari denied. The only remaining case is Rodriguez v. San Jose which involves the confiscation of firearms from a non-prohibited person. (Last sentence is a correction from the original post)

With the exception of Rogers v. Grewal, a New Jersey carry case, all the other cases were denied certiorari without any comment or dissent. I don’t count the granting of permission to file an amicus brief and then denying cert as the Court did with Mance and Cheeseman as a comment.

The across the board denial of certiorari could mean a number of things. First, it could be a strategic move by Justices Thomas, Alito, Gorsuch, and Kavanaugh to not bring a case where they weren’t sure they had the vote of Chief Justice John Roberts. He seems more interested in his own legacy as it will be written by the Washington elite and liberal academia. The man has lost all semblance of a spine. You saw it with clarity in his decision in the ObamaCare case. Roberts either sees himself as the successor to Justice Kennedy’s man in the middle or has decided to go full-Souter.

Second, it could mean the more conservative justices are waiting until such time as Justice Ginsberg is off the Court in hopes that President Trump will appoint someone would vote to respect the Second Amendment. This, too, has risk as the presidential election appears to be a toss-up right now and Ginsberg keeps hanging on (and on and on) despite her health issues.

Third, a number of the justices find the Second Amendment “icky” and any attempt to go beyond Heller and McDonald is a bridge too far. Certainly the liberal four are in this camp and they are depending upon the lower courts to continue to emasculate those rulings. They consider the Second Amendment a second-class civil right.

Fourth, it means that the Roberts Court has no self-respect and doesn’t give a big rat’s ass if their rulings are roundly ignored by the lower courts. We all know that if it a lower court ignored a ruling on abortion or some other most favored “right”, the Court would have been all over it and swatted the lower court down like flies.

I will examine Justice Thomas’ dissent on the denial of certiorari in Rogers v Grewal in which Justice Kavanaugh joined in part in a subsequent blog post. There is a lot there. I do find it instructive that the only justice to actually face racial discrimination is the primary supporter on the Court of the Second Amendment.

The Supreme Court Continues To Be A Doormat

In the usual course of events, when the Supreme Court issues definitive rulings on an area of constitutional law, it fully expects lower courts to abide by their ruling. If these lower courts don’t, they get slapped down for their impertinence. However, when it comes to the Second Amendment, the Supreme Court in the post-McDonald era has allowed lower courts to treat it like a doormat. Their submissive posture in the face of decisions coming out of especially the 4th and 9th Circuits that ignore Heller and McDonald is, to be blunt, nauseating. The only justice that seems to have a spine and recognizes the danger to the powers of the court is Justice Clarence Thomas.

I write this as a prelude to the announcement today that the Supreme Court decided to deny certiorari in Silvester et al v. Becerra et al. It was on appeal from the 9th Circuit which found the 10-day waiting period for those with a California CCW, a California Certificate of Eligibility, or already had firearms registered to them had a valid government purpose. While supposedly deciding it on intermediate scrutiny, it was in fact decided on a rational basis. The problem with that is that rational basis cannot be used when it comes to an enumerated right. This case was originally a win in the District Court but reversed by 9th Circuit.

Justice Thomas noted in his 14 page dissent that:

This deferential analysis was indistinguishable from rational-
basis review. And it is symptomatic of the lower courts’
general failure to afford the Second Amendment the re-
spect due an enumerated constitutional right.

If a lower court treated another right so cavalierly, I
have little doubt that this Court would intervene. But as
evidenced by our continued inaction in this area, the
Second Amendment is a disfavored right in this Court. Because I do not believe we should be in the business of
choosing which constitutional rights are “really worth
insisting upon,”
Heller, supra, at 634, I would have granted
certiorari in this case.

He concluded his dissent by saying:

Nearly eight years ago, this Court declared that the
Second Amendment is not a “second-class right, subject to
an entirely different body of rules than the other Bill of

Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion). By refusing to review decisions like the one

below, we undermine that declaration. Because I still
believe that the Second Amendment cannot be “singled out
for special—and specially unfavorable—treatment,” id., at
778–779 (majority opinion), I respectfully dissent from the
denial of certiorari.

I don’t know if any other justices voted to grant certiori but I do know that there weren’t the required four votes. Decisions like that go to illustrate just how much we miss the late Justice Scalia and his leadership.

The Calguns Foundation which supported this lawsuit along with the Second Amendment Foundation issued the following statement:

WASHINGTON, D.C. (February 20, 2017)­­­­­­ — The Calguns Foundation has issued the following statement regarding the Supreme Court’s decision to not review a Ninth Circuit Court of Appeals decision that upheld California’s 10-day waiting period for existing gun owners who pass a background check:

We are disappointed, but not entirely surprised, that the Court has once again decided against taking up a Second Amendment challenge to plainly unconstitutional laws.

In his important 14-page dissent from the Court’s denial of certiorari, Justice Clarence Thomas detailed why the Ninth Circuit applied an improper “deferential analysis” that was “indistinguishable from rational-basis review,” showing “the lower courts’ general failure to afford the Second Amendment the respect due an enumerated constitutional right.”

We agree with Justice Thomas that the Ninth Circuit’s “double standard is apparent from other cases,” like one where it invalidated an Arizona law partly because it “delayed” women seeking an abortion, and another where it struck down a Washington county’s 5-day waiting period for adult dancing licenses because it “unreasonably prevent[ed] a dancer from exercising first amendment rights while an application [was] pending.”

As Justice Thomas explained, the “Ninth Circuit would not have done this for any other constitutional right, and it could not have done this unless it was applying rational-basis review.” He is, of course, correct—just as we have maintained throughout the course of this appeal and in our briefing to the Supreme Court. But in the Ninth Circuit, it appears, “rights that have no basis in the Constitution receive greater protection than the Second Amendment, which is enumerated in the text.”

From the bottom of our hearts, we wish to thank every single supporter who generously helped us litigate this long-running case through trial and up to the Supreme Court. We also want to thank amici Cato Institute, Crime Prevention Research Center, Firearms Policy Coalition, Madison Society Foundation, Gun Owners of California, and Firearms Policy Foundation for their excellent briefs in support of our case and the cause of individual liberty.

The Calguns Foundation will continue to challenge unconstitutional gun control laws until the Second Amendment takes its place as a peer among fundamental rights, like those in the First Amendment, rather than the “constitutional orphan” and “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees” that it is in the Ninth Circuit today.

SCOTUS Denies Cert In Peruta Case

Damn, damn, damn. I thought the Peruta case had a chance to bring carry before the Supreme Court. In the orders released this morning, the Supreme Court denied certiorari in the case of Peruta et al v. California et al.

Justice Thomas and Justice Gorsuch dissented in this denial of cert. Justice Thomas wrote a strong dissent with which Justice Gorsuch joined. I am putting the full dissent below. I will be adding comments after I have had time to read the whole thing.

The addition to the Court of Justice Gorsuch was good. I just wish there were more like him and Justice Thomas who care about both the precedents of Heller and McDonald as well as the Second Amendment.

1
Cite as: 582 U. S. ____ (2017)



THOMAS
, J., dissenting



SUPREME COURT OF THE UNITED STATES
EDWARD PERUTA,
ET
AL
.
v.
CALIFORNIA,
ET AL



.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT



No. 16–894. Decided June 26, 2017


The petition for a writ of certiorari is denied.


JUSTICE
THOMAS
, with whom JUSTICE
GORSUCH
joins,
dissenting from the denial of certiorari.



The Second Amendment to the Constitution guarantees
that “the right of the people to keep and bear Arm[s] shall
not be infringed.” At issue in this case is whether that
guarantee protects the right to carry firearms in public for
self-defense. Neither party disputes that the issue is one
of national importance or that the courts of appeals have
already weighed in extensively. I would therefore grant
the petition for a writ of certiorari.



I


California generally prohibits the average citizen from
carrying a firearm in public spaces, either openly or con­
cealed. With a few limited exceptions, the State prohibits
open carry altogether. Cal. Penal Code Ann. §§25850,
26350 (West 2012). It proscribes concealed carry unless a
resident obtains a license by showing “good cause,” among
other criteria, §§26150, 26155, and it authorizes counties
to set rules for when an applicant has shown good cause,
§26160.



In the county where petitioners reside, the sheriff has
interpreted “good cause” to require an applicant to show
that he has a particularized need, substantiated by docu­mentary evidence, to carry a firearm for self-defense. The
sheriff ’s policy specifies that “concern for one’s personal
safety” does not “alone” satisfy this requirement.
Peruta
v.
County of
San Diego
, 742 F. 3d 1144, 1148 (CA9 2014) (internal quotation marks omitted). Instead, an applicant
must show “a set of circumstances that distinguish the
applicant from the mainstream and cause him to be placed
in harm’s way.”
Id.
, at 1169 (internal quotation marks
and alterations omitted). “[A] typical citizen fearing for
his personal safety—by definition—cannot distinguish
himself from the mainstream.”
Ibid.
(emphasis deleted;
internal quotation marks and alterations omitted). As a
result, ordinary, “law-abiding, responsible citizens,”
District of Columbia
v.
Heller
, 554 U. S. 570, 635 (2008), may
not obtain a permit for concealed carry of a firearm in
public spaces.



Petitioners are residents of San Diego County (plus an
association with numerous county residents as members)
who are unable to obtain a lic
ense for concealed carry due
to the county’s policy and, because the State generally
bans open carry, are thus unable to bear firearms in public
in any manner. They sued under Rev. Stat. §1979, 42
U.
S. C. §1983, alleging that this near-total prohibition on
public carry violates their Second Amendment right to
bear arms. They requested declaratory and injunctive
relief to prevent the sheriff from denying licenses based on
his restrictive interpretation
of “good cause,” as well as
other “relief as the Court deems just and proper.” First
Amended Complaint in No. 3:09–cv–02371, (SD Cal.)
¶¶149, 150, 152. The District Court granted respondents’
motion for summary judgment, and petitioners appealed
to the Ninth Circuit.



In a thorough opinion, a panel of the Ninth Circuit
reversed. 742 F. 3d 1144. The panel examined the consti­
tutional text and this Court’s precedents, as well as histor­ical sources from before the founding era through the end
of the 19th century.
Id.,
at 1150–1166. Based on these
sources, the court concluded that “the carrying of an oper­able handgun outside the home for the lawful purpose of
self-defense . . . constitutes ‘bear[ing] Arms’ within the meaning of the Second Amendment.”
Id.
, at 1166. It thus
reversed the District Court and held that the sheriff ’s
interpretation of “good cause” in combination with the
other aspects of the State’s
regime violated the Second
Amendment’s command that a State “permit
some form
of
carry for self-defense outside the home.”
Id.,
at 1172.



The Ninth Circuit
sua sponte
granted rehearing en banc
and, by a divided court, reversed the panel decision. In
the en banc court’s view, because petitioners specifically
asked for the invalidation of the sheriff ’s “good cause”
interpretation, their legal challenge was limited to that
aspect of the applicable regulatory scheme. The court thus
declined to “answer the question of whether or to what
degree the Second Amendment might or might not protect
a right of a member of the general public to carry firearms
openly in public.”
Peruta
v.
County of San Diego
, 824
F.
3d 919, 942 (2016). It instead held only that “the Sec­
ond Amendment does not preserve or protect a right of a
member of the general public to carry
concealed
firearms
in public.”
Id.,
at 924 (emphasis added).



II


We should have granted certiorari in this case. The
approach taken by the en banc court is indefensible, and
the petition raises important questions that this Court
should address. I see no reason to await another case.



A


The en banc court’s decision to limit its review to
whether the Second Amendment protects the right to
concealed carry—as opposed to
the more general right to
public carry—was untenable. Most fundamentally, it was
not justified by the terms of the complaint, which called
into question the State’s regulatory scheme as a whole.
See First Amended Complaint ¶63 (“Because California
does not permit the open carriage of loaded firearms, concealed carriage with a [concealed carry] permit is the
only means by which an individual can bear arms in pub­
lic places”);
id.
, ¶74 (“States may not completely ban the
carrying of handguns for self-defense”). And although the
complaint specified the remedy that intruded least on the
State’s overall regulatory regime—declaratory relief and
an injunction against the sheriff ’s restrictive interpretation of “good cause”—it also requested “[a]ny further relief
as the Court deems just and proper.”
Id.,
¶152.



Nor was the Ninth Circuit’s approach justified by the
history of this litigation. The District Court emphasized
that “the heart of the parties’ dispute” is whether the
Second Amendment protects “the right to carry a loaded
handgun in public, either openly or in a concealed man­
ner.”
Peruta
v.
County of San Diego
, 758 F. Supp. 2d 1106,
1109 (SD Cal. 2010). As the Ninth Circuit panel pointed
out, “[petitioners] argue that the San Diego County policy
in light of the California licensing scheme
as a whole
violates the Second Amendment because it precludes a
responsible, law-abiding citizen from carrying a weapon in
public for the purpose of lawful self-defense in
any
man­
ner.” 742 F. 3d, at 1171. The panel further observed that
although petitioners “focu[s]” their challenge on the “li­
censing scheme for concealed carry,” this is “for good
reason: acquiring such a license is the only practical ave­nue by which [they] may come lawfully to carry a gun for
self-defense in San Diego County.”
Ibid.
Even the en banc
court acknowledged that petitioners “base their argument
on the entirety of California’s statutory scheme” and “do
not
contend that there is a free-standing Second Amend­
ment right to carry concealed firearms.” 824 F. 3d, at 927.



B


Had the en banc Ninth Circuit answered the question
actually at issue in this case, it likely would have been
compelled to reach the opposite result. This Court has already suggested that the Second Amendment protects
the right to carry firearms in public in some fashion. As
we explained in
Heller
, to “bear arms” means to “
‘wear,
bear, or carry upon the person or in the clothing or in a
pocket, for the purpose of being armed and ready for offen­sive or defensive action in a case of conflict with another
person.’
” 554 U. S., at 584 (quoting
Muscarello
v.
United
States
, 524 U. S. 125, 143 (1998) (GINSBURG
, J.,
dissent­ing); alterations and some internal quotation marks omit­
ted). The most natural reading of this definition encom­
passes public carry. I find it extremely improbable that
the Framers understood the Second Amendment to protect
little more than carrying a gun from the bedroom to the
kitchen. See
Drake
v.
Filko
, 724 F. 3d 426, 444 (CA3
2013) (Hardiman, J., dissenting) (“To speak of ‘bearing’
arms solely within one’s home not only would conflate
‘bearing’ with ‘keeping,’ in derogation of the [
Heller
]
Court’s holding that the verbs codified distinct rights, but
also would be awkward usage given the meaning assigned
the terms by the Supreme Court”);
Moore
v.
Madigan
, 702
F. 3d 933, 936 (CA7 2012) (similar). already suggested that the Second Amendment protects
the right to carry firearms in public in some fashion. As
we explained in
Heller
, to “bear arms” means to “
‘wear,
bear, or carry upon the person or in the clothing or in a
pocket, for the purpose of being armed and ready for offen­sive or defensive action in a case of conflict with another
person.’
” 554 U. S., at 584 (quoting
Muscarello
v.
United
States
, 524 U. S. 125, 143 (1998) (GINSBURG
, J.,
dissent­ing); alterations and some internal quotation marks omit­
ted). The most natural reading of this definition encom­
passes public carry. I find it extremely improbable that
the Framers understood the Second Amendment to protect
little more than carrying a gun from the bedroom to the
kitchen. See
Drake
v.
Filko
, 724 F. 3d 426, 444 (CA3
2013) (Hardiman, J., dissenting) (“To speak of ‘bearing’
arms solely within one’s home not only would conflate
‘bearing’ with ‘keeping,’ in derogation of the [
Heller
]
Court’s holding that the verbs codified distinct rights, but
also would be awkward usage given the meaning assigned
the terms by the Supreme Court”);
Moore
v.
Madigan
, 702
F. 3d 933, 936 (CA7 2012) (similar).
The relevant history appears to support this under­
standing. The panel opinion below pointed to a wealth of
cases and secondary sources from England, the founding
era, the antebellum period, and Reconstruction, which
together strongly suggest that the right to bear arms
includes the right to bear arms in public in some manner.
See 742 F. 3d, at 1153–1166 (canvassing the relevant
history in detail); Brief for Na
tional Rifle Association as
Amicus Curiae
6–16. For example, in
Nunn
v.
State
, 1 Ga.
243 (1846)—a decision the
Heller
Court discussed exten­sively as illustrative of the proper understanding of the
right, 554 U. S., at 612—the Georgia Supreme Court
struck down a ban on open carry although it upheld a ban
on concealed carry. 1 Ga., at 251. Other cases similarly
suggest that, although some regulation of public carry is already suggested that the Second Amendment protects
the right to carry firearms in p
ublic in some fashion. As
we explained in
Heller
, to “bear arms” means to “
‘wear,
bear, or carry upon the person or in the clothing or in a
pocket, for the purpose of being armed and ready for offen­sive or defensive action in a case of conflict with another
person.’
” 554 U. S., at 584 (quoting
Muscarello
v.
United
States
, 524 U. S. 125, 143 (1998) (GINSBURG
, J.,
dissent
ing); alterations and some internal quotation marks omit­
ted). The most natural reading of this definition encom
passes public carry. I find it extremely improbable that
the Framers understood the Second Amendment to protect
little more than carrying a gun from the bedroom to the
kitchen. See
Drake
v.
Filko
, 724 F. 3d 426, 444 (CA3
2013) (Hardiman, J., dissenting) (“To speak of ‘bearing’
arms solely within one’s home not only would conflate
‘bearing’ with ‘keeping,’ in derogation of the [
Heller
]
Court’s holding that the verbs codified distinct rights, but
also would be awkward usage given the meaning assigned
the terms by the Supreme Court”);
Moore
v.
Madigan
, 702
F. 3d 933, 936 (CA7 2012) (similar).



The relevant history appears to support this under­
standing. The panel opinion below pointed to a wealth of
cases and secondary sources from England, the founding
era, the antebellum period, and Reconstruction, which
together strongly suggest that the right to bear arms
includes the right to bear arms in public in some manner.
See 742 F. 3d, at 1153–1166 (canvassing the relevant
history in detail); Brief for National Rifle Association as
Amicus Curiae
6–16. For example, in
Nunn
v.
State
, 1 Ga.
243 (1846)—a decision the
Heller
Court discussed exten­sively as illustrative of the proper understanding of the
right, 554 U. S., at 612—the Georgia Supreme Court
struck down a ban on open carry although it upheld a ban
on concealed carry. 1 Ga., at 251. Other cases similarly
suggest that, although some regulation of public carry is permissible, an effective ban on all forms of public carry is
not. See,
e.g., State
v.
Reid
, 1 Ala. 612, 616–617 (1840) (“A
statute which, under the pretence of regulating, amounts
to a destruction of the right, or which requires arms to be
so borne as to render them wholly useless for the purpose
of defence, would be clearly unconstitutional”).



Finally, the Second Amendment’s core purpose further
supports the conclusion that the right to bear arms ex­
tends to public carry. The Court in
Heller
emphasized
that “self-defense” is “the
central component
of the [Second
Amendment] right itself.” 554 U. S., at 599. This purpose
is not limited only to the home, even though the need for
self-defense may be “most acute” there.
Id.,
at 628. “Self­
defense has to take place wherever the person happens to
be,” and in some circumstances a person may be more
vulnerable in a public place than in his own house. Volokh, Implementing the Right To Keep and Bear Arms for
Self-Defense: An Analytical Framework and a Research
Agenda, 56 UCLA L. Rev. 1443, 1515 (2009).



C


Even if other Members of the Court do not agree that
the Second Amendment likely protects a right to public
carry, the time has come fo
r the Court to answer this
important question definitively
. Twenty-six States have
asked us to resolve the question presented, see Brief for
Alabama et al. as
Amici Curiae
, and the lower courts have
fully vetted the issue. At least four other Courts of Appeals and three state courts of last resort have decided
cases regarding the ability of States to regulate the public
carry of firearms. Those decisions (plus the one below)
have produced thorough opinions on both sides of the
issue. See
Drake
, 724 F. 3d 426, cert. denied
sub nom.
Drake
v.
Jerejian
, 572 U. S. ___ (2014); 724 F. 3d,
at 440
(Hardiman, J., dissenting);
Woollard
v.
Gallagher
, 712
F.
3d 865 (CA4), cert. denied, 571 U. S. ___ (2013);
Kachalsky
v.
County of Westchester
, 701 F. 3d 81 (CA2 2012),
cert. denied
sub nom
.
Kachalsky
v.
Cacace
, 569 U. S. ___
(2013);
Madigan
, 702 F. 3d 933;
id.,
at 943 (Williams, J.,
dissenting);
Commonwealth
v.
Gouse
, 461 Mass. 787, 800–
802, 965 N. E. 2d 774, 785–786 (2012);
Williams
v.
State
,
417 Md. 479, 496, 10 A. 3d 1167, 1177 (2011);
Mack
v.
United States
, 6 A. 3d 1224, 1236 (D. C. 2010). Hence, I do
not see much value in waiting for additional courts to
weigh in, especially when constitutional rights are at
stake.



The Court’s decision to deny certiorari in this case re­
flects a distressing trend: the treatment of the Second
Amendment as a disfavored right. See
Friedman
v.
High

land Park
, 577 U. S. ___, ___ (2015) (THOMAS
, J., dissenting from denial of certiorari) (slip op., at 6) (“The Court’s
refusal to review a decision that flouts two of our Second
Amendment precedents stands in marked contrast to the
Court’s willingness to summarily reverse courts that
disregard our other constitutional decisions”);
Jackson
v.
City and County of San Francisco
, 576 U. S. ___, ___
(2015) (same). The Constitution does not rank certain
rights above others, and I do not think this Court should
impose such a hierarchy by selectively enforcing its pre­ferred rights.
Id.
, at ___ (slip op., at 1) (“Second Amend­ment rights are no less protected by our Constitution than
other rights enumerated in that document”). The Court
has not heard argument in a Second Amendment case in
over seven years—since March 2, 2010, in
McDonald
v.
Chicago
, 561 U. S. 742. Since that time, we have heard
argument in, for example, roughly 35 cases where the
question presented turned on the meaning of the First
Amendment and 25 cases that turned on the meaning of
the Fourth Amendment. This discrepancy is inexcusable,
especially given how much
less developed our jurispru­dence is with respect to the Second Amendment as com­
pared to the First and Fourth Amendments.



For those of us who work in marbled halls, guarded
constantly by a vigilant and dedicated police force, the
guarantees of the Second Amendment might seem anti­quated and superfluous. But the Framers made a clear
choice: They reserved to all Americans the right to bear
arms for self-defense. I do not think we should stand by
idly while a State denies its citizens that right, particularly
when their very lives may depend on it. I respectfully
dissent.