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.