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SCOTUS Refuses to Hear 2nd Amendment 'Assault Weapons' Case, Clarence Thomas Files Sharp Dissent

Justice Thomas faults his colleagues for "relegating the Second Amendment to a second-class right."

Credit: C-SPANCredit: C-SPANThe U.S. Supreme Court refused today to hear a major Second Amendment case out of Illinois which asked whether a city's ban on "assault weapons" violates the U.S. Constitution. By refusing to hear the case, the Court has allowed a lower court decision upholding the gun ban to stand. Writing in dissent, Justice Clarence Thomas, joined by Justice Antonin Scalia, faulted the other justices for giving their blessings to a lower court decision "that flouts two of our Second Amendment precedents" and "eviscerates many of the protections recognized in Heller and McDonald."

At issue in Friedman v. City of Highland Park is that Illinois city's ban on the sale and possession of "assault weapons" and of gun magazines that hold more than 10 rounds. The city's regulations were upheld by the U.S. Court of Appeals for the 7th Circuit, which deemed such gun bans permissible under the Second Amendment. A majority of the Supreme Court today allowed that 7th Circuit decision to survive. Only Justices Thomas and Scalia spoke out in opposition.

"I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right," Thomas wrote today. In his view, the city's regulation is "highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes.... The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting.... Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons."

Thomas was also dismissive of the 7th Circuit's claim that the "assault weapons" ban "may increase the public's sense of safety," which that court deemed "a substantial benefit" of the city's actions. But as Thomas pointed out, "If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing."

Justice Thomas' dissent from denial of certiorari in Friedman v. Highland Park is available here.

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  • Fist of Etiquette||

    Why does it seem it's only their liberty-minded rulings they refuse to back up.

  • ||

    Because they're largely unprincipled douchebags?

  • Fist of Etiquette||

    That's what you get for only appointing lawyers.

  • sarcasmic||

    Thomas and Scalia are obviously on the NRA payroll. There is no other explanation.

  • ||

    I think this just proves how Roberts and Kennefy will vote the next time the 2A writ large ends up before the SC.

    Looks like the civil war most of us have been dreading, or the splintering of the country many of us have been waiting for, will get here sooner than we thought.

  • Idle Hands||

    If a gun regulation bill is passed by congress i think it is safe to say Roberts would be in favor of protecting it.

  • ||

    He's turning into the worst thing to ever happen to our court system

  • Idle Hands||

    He's terrible but predictable, as he prefers his tyranny to be democratic in nature.

  • Loki||

    he prefers his tyranny to be democratic in nature.

    Well, don't you know democracy makes it all better? If two wolves and a sheep vote on what to eat for dinner, and the wolves vote to eat the sheep, the sheep has not right to complain since he got to vote too. Because "democracy".

  • Mickey Rat||

    Roberts hascbern ruling in favor of a powerful executive, not democracy.

  • kbolino||

    Roberts [has been] ruling in favor of a powerful executive, not democracy government and then hand-waving justifications for it.

    FTFY

  • Robert||

    Would you rather make 2 wolves unhappy, or 1 sheep?

  • R C Dean||

    I always thought Heller had gaping loopholes. Their refusal to apply strict scrutiny to the right of self-defense has always been a signal to me that SCOTUS was a weak reed, indeed.

    Heller should have clarified two things that it did not; that the 2A applies to the states, and that challenges to gun laws will be reviewed with strict scrutiny.

  • AD-RtR/OS!||

    They corrected the Incorporation issue with McDonald, but they still have to rule on 'scrutiny' - perhaps when Peruta comes up.

  • Scarecrow & WoodChipper Repair||

    That's my thinking too. Trying to understand these refusals rationally, I can only think that some justices who might vote for the second amendment are worried that one of the Heller/McDonald 5 (Kennedy? Roberts) would flipflop, and they think it better to continue the uncertain status quo than put it to a black and white vote.

    Or the flipfloppers regret the Heller and McDonald decisions, and think it would be better to drop this bombshell after the election, in the hope that a Democrat wins, because they know if they eviscerated the second amendment, the Democrats would have committed political suicide for a couple of terms, and the resulting Republican President and Congress might well pass a beefed up amendment to restore the original second amendment.

  • MJGreen - Docile Citizen||

    I wonder how one would "beef up" the second amendment's language.

  • perlchpr||

    Eliminate the prefatory clause.

    "The right of the people to keep and bear arms shall not be infringed."

    Or First Amendment it. "Congress shall pass no law abridging the right of the people to keep and bear arms."

  • AD-RtR/OS!||

    So, ask your Congress Kritter to submit an amendment to the Congress editing the 2nd Amendment, because you can't change the language via a Court decision.

  • Robert||

    Read some state constitutions. They're much more explicit than the USA's. It should say, "People are allowed to keep & carry weapons of their choice, and have them available for purchase, notwithstanding the provisions of any law."

  • AD-RtR/OS!||

    The wording is fine as it tells everyone "Hands Off", which is what "shall not be infringed" means; and, since it is not directed towards any entity, it is universal.

  • Slim Strontem||

    up

  • EscherEnigma||

    And then were' back to backyard howitzers.

    Most people that are against *gun* control are still for *artillery* control.

  • Slim Strontem||

    If we had operated as should have been, then this would not be so much so--And all things "howitzer" (i.e.) would be largely resolved.

  • ||

    Question: if another appeals court declared a so-called "assault weapons" ban unconstitutional, will the court have to take up the case? Or will they let two different federal jurisdictions recognize different sets of fundamental rights?

  • R C Dean||

    They should take up a conflict between circuits. SCOTUS doesn't have to take an appeal on anything, though. If they do, of course, I think we know which way they will rule, and it won't make you happy.

  • tarran||

    if another appeals court declared a so-called "assault weapons" ban unconstitutional,

    OOOH! This is one of those hypothetical questions about something that won't ever happen in real life, like killing baby Hitler in the crib, right?

  • CatoTheChipper||

    Post-911, the 4th, 5th, and 6th Amendments have become "second-class rights".

    The 2nd, 9th, and 10th Amendments are are actually third-class rights. Considering that the 9th and 10th cover everything not explicitly listed in the BoR, that means that pretty much everything other than the right to publish pornography is a third-class right.

    Obama and Lynch are actually trying to make the 2nd Amendment a fourth-class right. And their PC allies are trying to make the 1st a second-class right.

    At least the 3rd Amendmend is safe so far.

  • BearOdinson||

    We'll see about that. When the cops or the FBI need to stake out a right-wing terrorist anti-government group, then there should be no problem with the "citizens" being required to give them room and board at no cost for as long as they need.
    After all, you don't hate your government, do you?

  • Loki||

    When the cops or the FBI need to stake out a right-wing terrorist anti-government group, then there should be no problem with the "citizens" being required to give them room and board at no cost for as long as they need.

    You mean like what's already happened at least once?

  • BearOdinson||

    I knew it had happened fairly recently but I couldn't remember when and where (and I had a meeting at work so I didn't get a chance to google it.)

  • PM||

    Henderson cops are notoriously cunts. Trigger happy too. When I have to pass through there I always mind my Ps and Qs.

  • Long Woodchippers||

    You're validating their behavior.

  • ||

    After all, you don't hate your government, do you?

    Well, hate is probably too strong a word....

  • GroundTruth||

    Loathe?

  • Cloudbuster||

    At least the 3rd Amendmend is safe so far.

    Nope. No it's not. Apparently it's now a controversial thing telling cops they can't take over your house at their whim.

    http://blogs.wsj.com/law/2013/.....vada-case/

    The Mitchell case is still in progress. "Speedy trial" has become a joke. Discovery cutoff won't be until March 2016 at the earliest, nearly three years after the case was filed. Further extensions have been requested.

    Don't hold your breath that the Mitchells will eventually win.

  • Scarecrow & WoodChipper Repair||

    I imagine the government's primary excuse is that cops are not soldiers. Somehow the concept of "standing army" is lost on the public because they don't realize there were no police back then, and British soldiers were used as cops nowadays are used, and that is the standing army despised by the founders.

  • Loki||

    The cops will just try to drag it out until the Mitchells run out of money, which is one their go-to tactics in these kinds of cases. Is there any kind of legal defense fund for these guys?

  • Ken Shultz||

    "But as Thomas pointed out, "If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing."

    Are there any other constitutional rights that can be violated on the basis that doing so makes people feel safer, or is violating our Second Amendment rights the only one?

    If some racists wants to ban blacks and Mexicans from town, is that okay so long as it makes people there feel safer?

    What about the First or Fifth Amendment? If banning mosques or refusing counsel to accused criminals makes the locals feel safer, is that some kind of justification for doing so?

  • Loki||

    Are there any other constitutional rights that can be violated on the basis that doing so makes people feel safer, or is violating our Second Amendment rights the only one?

    Don't give these fascist fucks any ideas.

  • Ken Shultz||

    Not giving people any ideas is why they shouldn't have let this ruling stand.

    People will cite this case now that it hasn't been overturned, amirite?

  • ||

    "People will cite this case"

    Do you mean regular people talking about it, or judges using it as precedent?

  • Ken Shultz||

    I mean government lawyers will cite this case as precedent--will they not?

    "At issue in Friedman v. City of Highland Park is that Illinois city's ban on the sale and possession of "assault weapons" and of gun magazines that hold more than 10 rounds. The city's regulations were upheld by the U.S. Court of Appeals for the 7th Circuit, which deemed such gun bans permissible under the Second Amendment."

    Why wouldn't other cities defend similar bans by citing this case?

  • ||

    I mean government lawyers will cite this case as precedent--will they not?

    It's only precedent for the seventh circuit.

  • Ken Shultz||

    I understand that cases based on the jurisdiction of states only impact the jurisdictions of those states, but I was unaware that cases decided in one federal district can't be cited in another federal district court.

    Are you sure about that?

    We're not talking about one state ruling based on the logic of one state constitution and applying it to the jurisdiction of another state. We're not talking about judges appointed and confirmed under the authority of one governor and state legislature on another state.

    All the district court judges are appointed by the same federal jurisdiction, and they're ruling based on the same federal law and the same Constitution.

  • ||

    Yes, I'm sure about that. They could be cited, of course, but not as precedent.

  • Robert||

    Judge Wapner used a Penna. law re dogs & cats when he couldn't find one for Cal.

  • EscherEnigma||

    A judge or lawyer can *cite* just about anything they want. They can cite the bible, the laws of England, or their grandmother's cross-stitch if they like.

    But that doesn't make it binding precedent.

  • Ken Shultz||

    Maybe you're questioning whether the logic in a Second Amendment case can bleed over into, say, a First Amendment or Fifth Amendment case?

  • Ken Shultz||

    I'll never get judicial restraint as a consistent principle either.

    You defer to elected politicians whenever possible, but the fact that elected politicians could repeal the Second Amendment if they wanted to is completely ignored?

    Don't both of those things represent the democratic will of the people, and isn't that what they're trying to respect by way of judicial restraint?

  • sarcasmic||

    Separation of powers makes it hard to get things done. The Senate can block the House. The Executive can block them both. And the Judiciary can block them all. It's so much better when everyone gives each other a pass. That way you can get a lot of stuff done. You know - progress.

  • Ken Shultz||

    Rights are a pain in the ass, too. There are more than 300 million people in this country, each of them with myriad rights of their own, and protecting the rights of one of them just makes the rest of them think they can do whatever they want to do so long as they aren't violating anyone else's rights.

  • sarcasmic||

    Oh yeah? What about a person's right to feel safe? How can they feel safe if guns are allowed? Huh? Ever think of that?

  • Ken Shultz||

    Holding other people responsible for how we feel is like the definition of emotional abuse.

    "Look what you made me do!"

  • ||

    "If you kids don't settle down right now, I'll turn this second amendment around, and there won't BE any cake"

  • Ken Shultz||

    No soup for you.

  • Some Engineer||

    Oh yeah? What about a person's right to feel safe? How can they feel safe if guns are allowed?

    Oh yeah? What about my right to feel safe? How can I feel safe if you make me walk around unarmed?

    Now let's see how the courts decide whose rights are more important, theirs or mine.

  • sarcasmic||

    If you walk around armed, then the cops will feel unsafe. Their rights always trump yours.

  • perlchpr||

    This isn't really in question. It'll be the person whose feels give them the right to be more thuggish.

  • AD-RtR/OS!||

    It's not the gun that wants to harm you, it is the person wielding the weapon; and absent a gun, they'll use whatever comes to hand.

  • Free Society||

    I think the modern version of "judicial restraint" is just a subset of "democracy-uber-alles" ideology. Don't you know that requiring anything more than 51% approval for a law is superdooper undemocratic and therefore evil?

    But at the same time, "judicial restraint" is nowhere to be found when the justices see a law that they really like or want to overturn a law they don't like.

  • Ken Shultz||

    Well it certainly seems to be one sided.

    If they're taking the fact that democracy voted for a law into consideration, then they should also take the fact that democracy did NOT repeal an Amendment into consideration.

    Amendments have been passed and subsequently repealed. Not only can that happen, it has happened.

  • ||

    sounds like our HOA needs to put some limits in place on the 16th.

  • Free Society||

    The 2nd Amendment: Liberal Edition

    "...the Right of the People to keep and bear arms shall not be infringed....unless like, guns get way more advanced than today. Because this thing is totally about hunting you guys, I'm super serious. Like if the gun can fire like more than one round in a minute or if it can hold like, a crapton of bullets...like say 10, or maybe 5 I don't know [...] when guns have too many bullets in it you'll totally know."

  • Unicorn Abattoir||

    And banning the AR-15 is like so TOTALLY racist.

    #BlackGunsMatter

  • The Grinch||

    How can a ban that's clearly unconstitutional be accepted by a group of presumably intelligent constitutional scholars? So municipalities can just mosify various constitutional rights now with the hope, but no proof, that the public will be made safer? I don't see how that could possibly go wrong.

  • sarcasmic||

    It makes people feel safer, and that's all that matters.

  • AlmightyJB||

    It makes pussys feel safer

  • perlchpr||

    Pussy makes me feel safer, so I have a right to whatever one I want, right?

  • Mickey Rat||

    That is such a fantastic argument going forward. Our rights are subject to modification by literal appeals to emotion.

  • GILMORE™||

    ""If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing.""

    No one has linked that South Park "Safe Spaces" yet? Good. Now there is no need.

  • ||

    They are so close they can taste it. If only they could disarm the plebes they would be in for the win.

  • Tundra, well-chilled.||

    Oh, they're close all right. Just not to what they are thinking.

  • RangerPaul||

    A lot comes to mind as I read this.

    First, the fallacy that 5 of the 9 are conservative minded. That only two justices dissented is proof of a mostly liberal court or blackmail and extortion from ideologues with an agenda to disarm the American citizens gradually. Blackmail and extortion sound crazy? The NSA spies on everyone, including all 9 members of SCOTUS. both houses of Congress and POTUS. Ask yourself, what is the most likely/powerful benefit of such unconstitutional surveillance?

    Second, the right to keep and bear arms is not conferred or granted to free men. It is a natural right the government exists to protect, preserve and never infringe upon.

    Third, and most importantly, the lack of citing the irrefutable fact that the Second Amendment's main purpose was to ensure the American citizens always possessed the ability to alter or abolish their government and institute a new government, by force if necessary. As the framers of the Constitution and founders of our nation did.

  • Careless||

    Holy shit, the 7th Circuit really did say that feelings were enough.

    If it has no other effect, Highland Park's ordinance may increase the public's sense of safety... If a ban on semiautomatic guns and large-capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that's a substantial benefit.

  • perlchpr||

    Muh FEEEEEELZ!

  • Robert||

    Lemme get this straight: Judges write opinions full of law stuff on whether they should take a case or not??! If they're going to do that, why shouldn't they just take all cases? Come to think of it, is there any other gov't job where the employee does just whichever assignments s/he thinks best?

  • Alan@.4||

    Not that I know of, in response to your question.

  • Abu Nudnik||

    Not that I agree with the majority opinion, but you have to realize there are hundreds of applications and only 9 jurors at this level. They couldn't even take the cases they all want to hear if they agreed on them.

  • Alan@.4||

    Shame on the majority of The Court, Justices Thomas and Scalea excepted.

  • Abu Nudnik||

    Someone will have to break the law, get arrested and make his case directly to the jury, notifying them of their total rights, obligations, and duties. This worked in the 60s and was called civil disobedience. It will be the same thing. Jury nullification is one step above, not below, the highest court, a fact too little known. See the site of the Fully Informed Jury Association here: http://fija.org/

  • AD-RtR/OS!||

    Best case scenario: They're waiting for Peruta to be finalized, so they can deal with the issue of 'scrutiny', which will then be applied across the board to all 2-A issues.

  • Rockabilly||

    From my cold dead hands.

  • Akira||

    Everybody knows that Clarence Thomas isn't a REAL black person. He's guilty of doubleplusungoodthink, so he's out of the club.

  • American Liberal||

    Perhaps a majority of the court has concluded the Heller was wrongly decided.

  • Enjoy Every Sandwich||

    At least the anti-self defense crowd aren't pretending any longer that their position is based on logic or principle. They're coming out and admitting that it's just their irrational pee-in-their-panties fears.

  • pushpadevi||

    Happy New Year 2016

    nice to read

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