The Volokh Conspiracy
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The Supreme Court denied certiorari in another Second Amendment case on Monday. Since deciding D.C. v. Heller and McDonald v. Chicago, the Court has shown little interest in clarifying the scope of constitutionally protected gun rights. In Jackson v. City and County of San Francisco, however, two justices believe the Court should have granted review. Justice Clarence Thomas filed a dissent from the denial of certiorari, joined by Justice Antonin Scalia.
At issue in Jackson was a local ordinance that restricted gun possession in the home. Specifically, the law prohibits the keeping of a handgun in the home unless it is a) disabled (as with a trigger lock) or b) carried on the person of an adult. The U.S. Court of Appeals for the Ninth Circuit rejected a challenge to this law, prompting several gun owners to seek Supreme Court review. Although the law here would seem to raise serious questions under Heller and McDonald, there were not four justices willing to vote for certiorari.
Justice Thomas opened his dissent as follows:
"Self-defense is a basic right" and "the central component" of the Second Amendment's guarantee of an individual's right to keep and bear arms. McDonald v. Chicago, 561 U. S. 742, 767 (2010) (emphasis deleted). Less than a decade ago, we explained that an ordinance requiring firearms in the home to be kept inoperable, without an exception for self-defense, conflicted with the Second Amendment because it "ma[de] it impossible for citizens to use [their firearms] for the core lawful purpose of self defense." District of Columbia v. Heller, 554 U. S. 570, 630 (2008). Despite the clarity with which we described the Second Amendment's core protection for the right of self-defense, lower courts, including the ones here, have failed to protect it. Because Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document, I would have granted this petition.
After reviewing the facts and procedural history of the case, Justice Thomas further explained why Jackson merited Supreme Court review.
The decision of the Court of Appeals is in serious tension with Heller. We explained in Heller that the Second Amendment codified a right "'inherited from our English ancestors,'" a key component of which is the right to keep and bear arms for the lawful purpose of self-defense. 554 U. S., at 599. We therefore rejected as inconsistent with the Second Amendment a ban on possession of handguns in the home because "handguns are the most popular weapon chosen by Americans for self-defense in the home" and because a trigger-lock requirement prevented residents from rendering their firearms "operable for the purpose of immediate self-defense." Id., at 629, 635. San Francisco's law allows residents to use their handguns for the purpose of self-defense, but it prohibits them from keeping those handguns "operable for the purpose of immediate self-defense" when not carried on their person. The law thus burdens their right to self-defense at the
times they are most vulnerable-when they are sleeping, bathing, changing clothes, or otherwise indisposed. There is consequently no question that San Francisco's law burdens the core of the Second Amendment right.
That burden is significant. One petitioner, an elderly woman who lives alone, explained that she is currently forced to store her handgun in a lock box and that if an intruder broke into her home at night, she would need to "turn on the light, find [her] glasses, find the key to the lockbox, insert the key in the lock and unlock the box (under the stress of the emergency), and then get [her] gun before being in position to defend [herself]." Declaration of Espanola Jackson in Support of Motion for Preliminary Injunction, Record in Case 3:09-cv-02143 (ND Cal.), Doc. 136-3, p. 2. As she is over 79 years old, that would "not [be] an easy task." Ibid. Another petitioner stated that she is forced to store her gun in a code-operated safe and, in the event of an emergency, would need to get to that safe, remember her code under stress, and correctly enter it before she could retrieve her gun and be in a position to defend herself. If she erroneously entered the number due to stress, the safe would impose a delay before she could try again. A third petitioner explained that he would face the same challenge and, in the event the battery drains on his battery-operated safe, would need to locate a backup key to access his handgun. In an emergency
situation, the delay imposed by this law could prevent San Francisco residents from using their handguns for the lawful purpose of self-defense. And that delay could easily be the difference between life and death.
Since our decision in Heller, members of the Courts of Appeals have disagreed about whether and to what extent the tiers-of-scrutiny analysis should apply to burdens on Second Amendment rights. Compare Heller v. District of Columbia, 670 F. 3d 1244 (CADC 2011) ("We ask first whether a particular provision impinges upon a right protected by the Second Amendment; if it does, then we go on to determine whether the provision passes muster under the appropriate level of constitutional scrutiny"), with id., at 1271 (Kavanaugh, J., dissenting) ("In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny"). One need not resolve that dispute to know that something was seriously amiss in the decision below. In that decision, the Court of Appeals recognized that the law "burdens the core of the Second Amendment right," yet concluded that, because the law's burden was not as "severe" as the one at issue in Heller, it was "not a substantial burden on the Second Amendment right itself." 746 F. 3d, at 963-965. But nothing in our decision in Heller suggested that a law must rise to the
level of the absolute prohibition at issue in that case to constitute a "substantial burden" on the core of the SecondAmendment right. And when a law burdens a constitutionally protected right, we have generally required a higher showing than the Court of Appeals demanded here. See generally Heller, 554 U. S., at 628-635; Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 662 (1994) (explaining that even intermediate scrutiny requires that a regulation not "burden substantially more speech than is necessary to further the government's legitimate interests" (internal quotation marks omitted)).
The Court should have granted a writ of certiorari to review this questionable decision and to reiterate that courts may not engage in this sort of judicial assessment as to the severity of a burden imposed on core Second Amendment rights.
This is not the first time lower courts have been slow to follow the Supreme Court's doctrinal lead. In the five years after the Court invalidated the Gun-Free School Zones Act for exceeding the scope of the federal Commerce Power in United States v. Lopez, only one federal appellate court found another federal law to be unconstitutional. The U.S. Court of Appeals for the Fourth Circuit invalidated the civil damages provision of the Violence Against Women Act, in a decision the Supreme Court affirmed, and that was it. A few successful Commerce Clause challenges followed Morrison, but federal appellate courts resumed their uniformly deferential ways after the Supreme Court rejected a Commerce Clause challenge to the federal prohibition on marijuana possession in Gonzales v. Raich.
Given this pattern, it's unsurprising that lower courts have done little with Heller or McDonald. If there is to be meaningful review of Second Amendment claims in lower courts, they need a signal from the Supreme Court that Heller and McDonald were for real, and were not merely symbolic nods to the Second Amendment. Until then, the Second Amendment (like parts of the Fifth) will remain one of the poor relations within the Bill of Rights.