What’s the Supreme Court done about the 2nd Amendment lately? Not much, to the deep frustration of Justice Clarence Thomas.
Thomas, joined by two of his colleagues, the National Rifle Association and many gun rights supporters believe that lower courts are thumbing their nose at a landmark 2008 Supreme Court opinion holding that the 2nd Amendment protects an individual’s right to keep and bear arms.
Just this week, Thomas blasted the lower courts for what he described as a cavalier attitude toward the 2nd Amendment.
The landmark opinion – District of Columbia v. Heller – was penned in 2008 by the late Justice Antonin Scalia. Supporters of gun rights thought that after that opinion, and a follow up two years later, lower courts would begin striking down gun regulations across the country.
But in large part, that has not happened. Some judges have pointed to Scalia’s own words in Heller: “The right secured by the 2nd Amendment is not unlimited.”
Thomas, in an opinion released on Tuesday, criticized the courts for a “general failure to afford the 2nd Amendment the respect due an enumerated constitutional right.” He was writing a dissent after his colleagues declined to take up a challenge to California’s 10-day waiting period as it applies to individuals who already own guns.
“The lower courts are resisting this court’s decision” in Heller, Thomas complained, “and are failing to protect the 2nd Amendment to the same extent that they protect other constitutional rights.”
The 69-year-old justice also turned to his own colleagues on the bench bemoaning the fact that there haven’t been the necessary four votes to take up a major 2nd Amendment related case since Heller.
“If a lower court treated another right so cavalierly, I have little doubt that this court would intervene,” Thomas said. “The 2nd Amendment is a disfavored right in this court.”
No other justice joined Thomas’s dissent in the California case, but conservative Justices Neil Gorsuch and Samuel Alito have chimed in with similar sentiments concerning other cases.
Adam Winkler, a professor of law at UCLA School of Law, says the justices might be holding off before granting another significant 2nd Amendment case because there hasn’t been enough disagreement in lower courts to merit stepping in.
“The Supreme Court often stays its hand until there is a deep division in the lower courts,” he said in an interview. “So far they have been relatively uniform in their interpretations.”
But the court’s inaction frustrates gun rights supporters.
“Historically, the Supreme Court has been lax in enforcing the 2nd Amendment and that is exactly why people who care about 2nd Amendment rights have been very active politically, because they know they can’t always count on the courts to protect that part of the Constitution,” said David Kopel, a University of Denver law professor who supports gun rights.
Kopel points to the fact that just before Scalia suddenly died in early 2016, he too felt like the lower courts weren’t taking his opinion seriously. In December 2015, Scalia joined a dissent from denial penned by Thomas in a case concerning a Chicago suburb’s ban on some semi automatic firearms and magazines. The two justices criticized the lower court’s “crabbed” reading of Heller.
In a 2016 opinion, Alito, joined by Thomas, wrote a concurrence in a case regarding stun guns.
“The lower court’s ill-treatment of Heller cannot stand,” Alito said.
That same year, Thomas, who almost never speaks from the bench at oral arguments, stunned the audience by asking a series of questions. They were related to the 2nd Amendment.
And Scalia’s replacement, Gorsuch, joined Thomas last spring when the court declined to take up a case concerning the right to carry firearms in public.
Winkler notes another reason there hasn’t been the necessary four votes to take up a 2nd Amendment case: Justice Anthony Kennedy, the court’s swing vote on so many hot button issues, was in the majority in Heller.
“One of the great mysteries is how Anthony Kennedy would rule on future 2nd Amendment cases,” said Winkler ” If the liberal justices thought Kennedy would vote with them to limit the scope of the 2nd Amendment they would eagerly take one of these cases,” he said.
Several of the cases have been brought by lawyers for the NRA. Indeed, the court on Tuesday declined to take up the group’s challenge to a California law that imposes fees on firearms transactions.
On Thursday, Wayne LaPierre, the group’s executive vice president and CEO, spoke before a conservative crowd addressing the recent shooting in Parkland, Florida.
“Some people out there think the NRA should just stick to its 2nd Amendment agenda, and not talk about all of our freedoms,” he said. “But real freedom requires protections of all of our rights, and a 2nd Amendment isn’t worth its own words in a country where all of our other individual freedoms are destroyed,” he said.
In his comments, LaPierre didn’t mention the Supreme Court or the fact that it is in the midst of a momentous term. The court is contemplating cases concerning free speech, abortion related restrictions, privacy and religious freedom. But there is no 2nd Amendment case on the docket.
In his opinion on Tuesday, Thomas wrote that cases concerning “abortion, speech and the Fourth Amendment are three” of the Court’s favored rights. “The right to keep and bear arms,” he said, “is apparently this Court’s constitutional orphan.”