Constitutional Orphans

It could not have been issued at a worse time, when the rawness of the slaughter of 17 high school students remained fresh and brutal. And there could be no vehicle less demanding than a dissent to a denial of certiorari. But Justice Clarence Thomas’ 14-pages appeared nonetheless, without any other justice signing on to his polemic.

On the other hand, given the nature of his opinion, it could only appear in a dissent to a denial of cert. That was part of the problem against which he argued. And what use is life tenure if not to express views that the other eight would not? That it came at such a bad time was either a product of exceptional tone-deafness or couldn’t be helped. The denial issued inopportunely, leaving Thomas with the option of dissenting then or saying nothing.

Sometimes saying nothing is the better choice. It’s not the choice Thomas made.

California has a ten-day waiting period for the purchase of guns. The justification is rational.

This waiting period gives state officials time to run a background check on the buyer, and also creates a “cooling off” period allowing someone who intended to give “individuals who might use a firearm to harm themselves or others an opportunity to calm down.”

But the legitimacy of this rationale only applies to the purchase of a first gun, not subsequent guns.

The plaintiffs in Silvester v. Becerra claim that they should not be subject to this waiting period because they either already own guns or already have a concealed-carry license — and Justice Thomas seems to agree with their argument.

“Common sense suggests that subsequent purchasers contemplating violence or self-harm would use the gun they already own,” the justice claims, “instead of taking all the steps to legally buy a new one in California.”

A fairly classic case of “remember the rubric, forget the rationale.” Whether or not this waiting period is a big deal seems likely to be a product of how one feels about the urgency of needing that new gun. But while Justice Thomas may well have felt their pain, his complaint was directed toward a more curious problem. Circuit courts have basically ignored the Supreme Court’s precedent in Heller and MacDonald and challenged the Supreme to reverse them.

Our continued refusal to hear Second Amendment cases only enables this kind of defiance. We have not heard argument in a Second Amendment case for nearly eight years. Peruta v. California, 582 U. S. ___, ___ (2017) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 7).  And we have not clarified the standard for assessing Second Amendment claims for almost 10.  Meanwhile, in this Term alone, we have granted review in at least five cases involving the First Amendment and four cases involving the Fourth Amendment—even though our jurisprudence is much more developed for those rights.

He’s got a point. Circuits have done as they pleased subsequent to Heller, and the Supreme Court’s reaction has been crickets.

If this case involved one of the Court’s more favored rights, I sincerely doubt we would have denied certiorari…. The Court would take these cases because abortion, speech, and the Fourth Amendment are three of its favored rights.  The right to keep and bear arms is apparently this Court’s constitutional orphan.  And the lower courts seem to have gotten the message.

While it is fair to assume that Thomas would be inclined to throw his vote behind robust support of the fundamental individual right to keep and bear arms, whereas his support for the rest of the Bill of Rights ranges from flaccid to non-existent, there are two ways to read his dissent.

The first way is to attribute a disingenuous motive to his comparisons, that a justice who has been so antagonistic to civil rights would try to appear as a supporter only when because this involves the Second Amendment, the right he favors as he is a reliable vote to diminish the ones he doesn’t.

There is another way to read his dissent, that it’s not about the outcome of the Court’s consideration of other rights, the ones that don’t interest Thomas much, but the failure of the Court to do its job and deal with it, one way or the other. He’s right that the eight years since MacDonald, ten since Heller, and the many Circuit decisions that appear to refuse to take the two decisions seriously, if not poke the Supreme Court in the eye, have created a morass of conflicting law that can’t be explained.

But Thomas doesn’t stop there.

In a section of his opinion that will delight conservative cultural warriors, Thomas even compares the Court’s refusal to hear the Silvester case to his speculative belief that the Court would “review a 10-day waiting period for abortions, notwithstanding a State’s purported interest in creating a ‘cooling off’ period.” (Patients seeking abortions, unlike gun purchasers, often face a rigid deadline because of laws restricting abortions later in pregnancy, so a 10-day waiting period would amount to a denial of the right an an abortion in many cases.)

This indulgent “whataboutism” deservedly feeds the criticism that Thomas is just being disingenuous, just another outcome-oriented rationalization because he loves guns and hates abortion, maybe even more than he hates the Warrant Clause, though if there was a case promoting a Tuesday exception for search and seizure, he would vote for it.

The fact that the Supreme Court has studiously ducked the issues, run away from the Circuit bullies who demanded to know “whatcha gonna do about it?” when they ignored Heller and ruled as they pleased, remains despite Thomas not being the best justice to try to argue a principled position.

Thomas does appear to be right about one thing: His colleagues show little interest in taking up another major Second Amendment case.

When Nino Scalia wrote the opinion in Heller, including the errant paragraph relied upon to wreak havoc with the rest of the decision, he opened a can of worms. The Circuits keep throwing worms at SCOTUS and the justices keep ducking them. If the Supreme Court regrets its decisions, then they should toughen up and admit they blew it.

As bad as the timing of Thomas’ dissent to a cert denial is, and it’s just awful, at least he deserves some credit for doing his job as a justice. The others don’t care enough about “constitutional orphans” to deal with it. That’s true of the Second Amendment, and true of the other Amendments (and the Double Jeopardy Clause) as well.

They’re hardly shy about manufacturing exceptions to the Fourth Amendment, so let them face up to the Second. And before we all engage in the same favoritism that Thomas is accused of, we would do well to bear in mind that either constitutional rights demand respect or they don’t. They come as a bundle, not a la carte.

8 comments on “Constitutional Orphans

  1. Skink

    I have no problem with the timing. It’s the Court’s job to continue, and current events have no place in that business. That’s exactly what I expect from any court. This is a cold business–it must be.

    Thomas’ beef is clear and with his own Court: it hears a bunch of cases based on other enumerated rights and clearly set the standards to be applied by the districts, but it refuses to hear 2nd Amendment cases, so it never set the standard beyond “not rational basis.” Otherwise, the 9th said it applied intermediate scrutiny, but actually applied what has been held not to apply: rational basis. The tone and subject of this dissent makes me wonder if Thomas authored the PC opinion in CNH Industrial, which immediately precedes this dissent and tells the 6th to pay attention to what it was told to do three years ago.

    The gun in Florida was purchased legally. The state has a 3-day waiting period for purchasers that do not have a concealed carry license. He probably shouldn’t have been allowed to purchase the gun, but that’s a discussion for another day.

    1. SHG Post author

      The problem with the timing issue isn’t that the Court should be subject to the news cycle, but it’s the Least Dangerous Branch. This makes Thomas’ cert denial dissent doubly dubious.

  2. MonitorsMost

    For some reason, this post reads very similar to your frustration on the lack of guidance/direction from Douglas in Brady vs Maryland. I like the similarity; it draws an interesting parallel and reinforces the “bundle of rights” closing.

    1. SHG Post author

      It’s one of my consistent themes with the Supremes. Finish what you start. But then, I think like a trench lawyer, who has to actually use whatever rhetoric they come up with, so I’m disinclined to be patient and wait 30 years (or forever) for an answer.

  3. Billy Bob

    We are unable to retrieve the Thomas pdf. We trust that is a *blessing in disguise*. Will try again tomorrow morn.
    Did somebody say “fourteen pages”? Is “My-Lips-Are-Sealed” Thomas suddenly, after twenty years, seeing the *Light*? Fat Chance, there buster. And it’s not about the color of his peapickin skin, it’s about the color of his innermost soul, which we presume to be black as the Ace of Spades. Bush #41 said, “So you want a person of the colored persuasion on SCOTU$, well lookee here, I’ll show em! I’ve got just the man,… and I’m a short-timer anyhow. So who gives a sh!t? Take this life-appointment preveeert aborigine, you dumb progressive, bleeding-heart librals.” P.S., Bush #41 got the Last Laugh, and now we suffer the inconsequential terrors of his ignorant reign.

    The irony is, Anita Hill’s lips were not sealed, but that’s water over the dam. Thanky ye, Nino Totenberg-breath for you tireless efforts at deconstructing the hi-tech lynching of the crybaby from PeaPod, GA. Now she [Anointed One] is a professor of Constituitional Law out there in flyover country somewhere, where she cannot do too much damage to the established disorder in D.C. in general,or SCOTU$ specifically. We hesitate to speak badly of the deceased, but Nino–ah Nino, the Fresh of Breath Air–was the Man until he went duck hunting with “Cheno” Cheney who shot himself in the foot. The vice President who could not shoot straight goes for an outing with the Justice who could not write a straight opinion without putting his foot in the mouth. That’s our boy, Nino, may he rest in one piece. You cannot make this stuff up, no matter how talented/creative a writer you are.

    Not to worry, Neil GoreSuch a guy to the rescue! Call 1-800-911-SUPREME. Life on the Suprremes goes on, if that’s what you wanna call it? We call it Utter Madness. Oh hi, Elena and Sonia! Where’s Ruth “Bad Girl” Bader? I wanna have a few words with her, if I may? Sorry to hear you two have no *trial experience*. No, I mean it! How can you,….

    1. John Barleycorn

      You talking about Joe parting the blue sea for the “black Jesus” Bill or did the esteemed one ignoring the anniversary of Metallica’s Master of Puppets Album set you off?

      Anyway, might be neither. Besides, what do the Supremes do after all but put CDL’s in the money. (kind of a joke if I my…?)

      As per the post? Clarence and his peers have help. Q is how much? The why Q might not midge nor nudge to be a Metallica question.

      P.S. Disinclined patience cold be a cold theme.


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