The courts are meant to protect our constitutional rights. Shouldn’t they jump gleefully when they get the chance to enforce a right that is triply armored in the Constitution by the words “shall not be infringed?”
That is the question Justice Clarence Thomas has for his colleagues on the Supreme Court, who once again rejected an appeal from gun rights activists after lower courts erased the Second Amendment from the Constitution. SCOTUS has spoken loudly with its incomprehensible silence in the face of blue states and lower courts assaulting the plain language of a right that pre-dated the Constitution. And the Court does so against its own precedents.
At issue in Silvester v. Becerra is California’s draconian and categorical 10-day waiting period for purchasing any firearm — the second longest waiting period in the country. The Supreme Court continued its trend of refusing to hear the case after the Ninth Circuit upheld the gun law as a commonsense balancing of a state interest. The problem with this rationale, as is the case with “assault weapons” bans, magazine capacity bans, and anti-carry laws, is that Heller already established that as a fundamental right, the Second Amendment cannot be subjected to rational basis analysis or interest-balancing tests. It is just like the First Amendment. Yet time and again, the lower courts have been using the dissent, not the majority opinion, in Heller as their guidepost.
No other right is treated so cavalierly. Indeed, any appearance of intangible roadblocks placed in front of even non-rights, such as abortion and immigration, are immediately slapped down by the courts. Yet the one right that the Constitution declares “shall not be infringed” is infringed upon with impunity.
In an unprecedented 14-page dissent on the denial of certiorari in the case, Justice Thomas observed that “if a lower court treated another right so cavalierly, I have little doubt that this Court would intervene.”
We, in fact, observe this almost every week. The courts have recently blocked any health and safety regulation on abortion clinics and have now granted illegal aliens the right to come here and demand immediate access to abortions. In the case of a teenage illegal alien seeking an elective abortion, the D.C. Court of Appeals wouldn’t even allow HHS to release her to a third party to access the abortion. The court ordered the Trump administration to drive her directly to the abortion clinic. Remember, even legal immigrants don’t have full First and Second Amendment rights to own guns or donate to political campaigns, yet the “right” to an abortion is the one that “shall not be infringed” in any way whatsoever.
Imagine if a lower court used the dissents in Obergefell or Roe as their guideposts on cases involving gay marriage or abortion? The Supreme Court would probably grant the appeal before the petition was even filed.
No other justice signed on to Thomas’s dissent. Justice Alito has joined other dissents on the denial of certiorari in some past gun cases. Judges do have quirky standards governing how and when they issue dissents on denials of certiorari. Yet it’s still disappointing that Alito and Gorsuch didn’t at least sign their names once Thomas wrote the dissent. As for Kennedy and Roberts, it’s quite evident where they stand on the issue. It takes at least four members to agree to hear the case, which means that Roberts and Kennedy are content with the lower courts’ lawlessness. Much as with immigration, they have allowed the lower courts to continue running roughshod over our national sovereignty and basic Article I and II powers, as well as settled case law.
According to the judicial oligarchy, anything short of driving an illegal alien directly to an abortion clinic or not allowing in an unlimited number of immigrants from every single Muslim country is a violation of a right. Those rights do not actually exist. Yet a 10-day waiting period to exercise an inviable right, on any handgun purchase, even for subsequent purchasers who already passed multiple background checks, as was the case with the plaintiffs in this court battle, is fair game.
After the district court sided with the plaintiffs, the Ninth Circuit reversed the decision and upheld the state law as in the state’s interest to protect against violence. But as Thomas observed, the Ninth Circuit would never be so callous with any other real or court-concocted right simply because the Second Amendment is out of favor and a “constitutional orphan” among the legal elites. Thomas reminded the Ninth Circuit that it once struck down a county’s five-day waiting period for nude dancing licenses because it “unreasonably prevent[ed] a dancer from exercising First Amendment rights while an application [was] pending.” He further reminded the court of how it required so much empirical data from states to uphold their marriage laws, even though they reflected human experience since the dawn of time, yet gun restriction laws get a free ride away from stricter scrutiny.
Thomas concluded with an ominous warning for those who think the Supreme Court will bail us out from lower court tyranny:
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.
The lesson for conservatives is that if you are waiting for Kennedy and Roberts to grant relief to us from lawlessness in the lower courts, you will be waiting for a long time.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.