Thomas, conservatives impatient at Supreme Court's inaction on 2nd Amendment

What's the Supreme Court done about the 2nd Amendment lately? Not much, to the deep frustration of Justice Clarence T...

Posted: Feb 23, 2018 1:16 PM
Updated: Feb 23, 2018 1:16 PM

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."

Indiana Coronavirus Cases

Data is updated nightly.

Cases: 300913

Reported Deaths: 5332
CountyCasesDeaths
Marion41330845
Lake26364448
Allen17299290
Elkhart16665212
St. Joseph16319220
Hamilton12459164
Vanderburgh9428112
Tippecanoe826727
Porter791279
Johnson6139164
Hendricks5807154
Vigo574474
Monroe525247
Clark495374
Delaware4789103
Madison4760119
LaPorte446894
Kosciusko446139
Howard325575
Warrick316072
Floyd306177
Bartholomew303262
Wayne295261
Cass293431
Marshall289944
Grant258747
Noble246846
Hancock243749
Henry237136
Boone235154
Dubois230430
Dearborn208829
Jackson206033
Morgan200643
Knox178017
Gibson177022
Clinton174920
Shelby174554
Lawrence171646
DeKalb171229
Adams165219
Miami155114
Wabash153018
Daviess152243
Fayette145233
Steuben141113
Jasper138311
Harrison137624
LaGrange136629
Montgomery131226
Whitley129910
Ripley123714
Decatur123542
Huntington122310
Posey118913
Putnam118326
Wells118327
Randolph117819
White117421
Clay115621
Jefferson114214
Greene100253
Scott99818
Jay95012
Starke89221
Sullivan86615
Fulton81117
Perry80921
Jennings80514
Spencer8047
Fountain7378
Washington7176
Carroll66813
Franklin65925
Orange65728
Vermillion5832
Owen5816
Parke5416
Newton54012
Tipton53726
Rush5216
Blackford51211
Pike50218
Pulaski36810
Martin3485
Brown3263
Benton3251
Crawford2781
Union2621
Switzerland2473
Warren2352
Ohio2257
Unassigned0265

Ohio Coronavirus Cases

Data is updated nightly.

Cases: 363304

Reported Deaths: 6020
CountyCasesDeaths
Franklin49267665
Cuyahoga35214736
Hamilton29462371
Montgomery19636225
Butler14472144
Lucas14033409
Summit12962310
Stark8529197
Warren798975
Mahoning7068299
Lake662766
Lorain623697
Clermont563946
Delaware540335
Licking535875
Fairfield523763
Trumbull5159144
Greene510563
Clark501064
Allen460685
Marion457751
Wood4394107
Medina428654
Miami416465
Pickaway396448
Columbiana339597
Portage334471
Tuscarawas317557
Wayne314993
Richland306732
Mercer284737
Ross239259
Hancock232736
Muskingum231910
Auglaize223230
Putnam221449
Erie217165
Darke217058
Ashtabula215753
Geauga197351
Scioto193615
Union18658
Lawrence185436
Shelby184815
Athens18454
Seneca173118
Belmont158529
Madison156218
Sandusky152327
Preble148421
Huron147518
Defiance137921
Holmes137739
Logan123613
Knox122518
Fulton122025
Crawford119116
Ottawa118930
Washington116427
Clinton103414
Ashland102722
Williams10238
Jefferson10124
Highland99517
Henry98422
Brown9644
Champaign9345
Jackson90312
Van Wert8976
Fayette89217
Hardin86118
Morrow8552
Guernsey83313
Coshocton81413
Perry77012
Adams75012
Pike7261
Wyandot70516
Gallia70413
Paulding62710
Hocking61011
Noble59722
Carroll44310
Meigs37612
Monroe31021
Morgan2395
Vinton2105
Harrison1913
Unassigned00
Fort Wayne
Scattered Clouds
34° wxIcon
Hi: 42° Lo: 39°
Feels Like: 34°
Angola
Broken Clouds
34° wxIcon
Hi: 38° Lo: 37°
Feels Like: 28°
Huntington
Overcast
36° wxIcon
Hi: 43° Lo: 40°
Feels Like: 36°
Decatur
Overcast
37° wxIcon
Hi: 43° Lo: 40°
Feels Like: 33°
Van Wert
Overcast
37° wxIcon
Hi: 42° Lo: 39°
Feels Like: 33°
Snow/Rain Showers Tuesday
WFFT Radar
WFFT Temperatures
WFFT National

Community Events