Justice Thomas' strong dissent from SCOTUS' denial of cert on 10 day waiting period for guns

[Chris0nllyn]

Silvester v. Becerra challenegd California's 10 day waiting period between buying guns. It made its way to SCOTUS because the Eastern District Court agreed the 10 day period was unconstitutional. 9CA stepped in and said "Nah dog, it's 'common sense' that a 10-day 'cooling off' period for gun buyers can help to reduce gun violence".

SCOTUS denied cert in this case and Justice Thomas came in all boss status in his dissent (sort of rare to dissent to denying cert).

Because the right to keep and bear arms is enumerated in the Constitution, courts cannot subject laws that burden it to mere rational-basis review.

But the decision below did just that. Purporting toapply intermediate scrutiny, the Court of Appeals upheld California’s 10-day waiting period for firearms basedsolely on its own “common sense.” It did so without requiring California to submit relevant evidence, without addressingpetitioners’ arguments to the contrary, and without acknowledging the District Court’s factual findings. 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 respect 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, theSecond Amendment is a disfavored right in this Court.

The Court also rejected “rational-basis scrutiny.” Heller found it “[o]bviou” that rational-basis review “could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right.” Otherwise, the Second Amendment “would be redundant with the separate constitutional prohibitions on irrational laws, and would haveno effect.”

The Ninth Circuit claimed to be applying intermediatescrutiny, but its analysis did not resemble anything approaching that standard. It allowed California to prove a governmental interest with speculation instead of evidence. It did not meaningfully assess whether the 10-day waiting period is reasonably tailored to California’s purported interest. And it did not defer to the factual findings that the District Court made after trial. 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.

This double standard is apparent from other caseswhere the Ninth Circuit applies heightened scrutiny. The Ninth Circuit invalidated an Arizona law, for example,partly because it “delayed” women seeking an abortion. The court found it important there, but not here, that the State “presented no evidence whatsoever that the law furthers [its] interest” and “no evidencethat [its alleged danger] exists or has ever [occurred].”

Similarly, the Ninth Circuit struck down acounty’s 5-day waiting period for nude-dancing licenses because it “unreasonably prevent[ed] a dancer from exercising first amendment rights while an application [was] pending.”

In another case, the Ninth Circuit held that laws embracing traditional marriage failed heightened scrutiny because the States presented “no evidence” other than “speculation and conclu- sory assertions” to support them. While those laws reflected the wisdom of “thousands of years of human history in every society known to have populated the planet,” they faced a much tougher time in the NinthCircuit than California’s new and unusual waiting period for firearms. In the Ninth Circuit, it seems, rights thathave no basis in the Constitution receive greater protection than the Second Amendment, which is enumerated in the text.

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. And we have not clarified the standard for assessingSecond Amendment claims for almost 10. Meanwhile, in this Term alone, we have granted review in at least fivecases involving the First Amendment and four cases involving the Fourth Amendment—even though our jurisprudence is much more developed for those rights.

If this case involved one of the Court’s more favored rights, I sincerely doubt we would have denied certiorari.I suspect that four Members of this Court would vote to review a 10-day waiting period for abortions, notwithstanding a State’s purported interest in creating a “cooling off ” period.

I also suspect that four Members of this Court would vote to review a 10-day waiting period on the publication of racist speech, notwithstanding a State’s purported interest in giving the speaker time to calm down.

Similarly, fourMembers of this Court would vote to review even a 10minute delay of a traffic stop. 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.

https://www.supremecourt.gov/orders/courtorders/022018zor_fd9g.pdf#page=34

 

[Kyle]

Reason to replace three more soon.

 

[stgislander]

You go Clarence! Channeling your inner Scalia.