Cases Attacking the Second Amendment the Supreme Court Refused to Hear

U.S.A. –-(AmmoLand.com)- Because the U.S. Circuit Court of Appeals, in cases discussed infra,* had blatantly ignored and dismissed Heller and McDonald precedent, Justice Thomas and the late Justice Scalia, and, later, Justice Gorsuch, were visibly annoyed, angered really, at the failure of the High Court to take up any of the cases, as evidenced in several dissenting comments. These cases include:

Silvester vs. Becerra: Petition for certiorari denied on February 20, 2018

“Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit improperly applied lenient scrutiny in a Second Amendment challenge to the application of California’s full 10-day waiting period to firearm purchasers who pass their background check in fewer than 10 days and already own another firearm or have a concealed carry license; and (2) whether the Supreme Court should exercise its supervisory powers to cabin the U.S. Court of Appeals for the 9th Circuit’s concerted resistance to and disregard of the Supreme Court’s Second Amendment decisions.”

California’s full 10-day waiting period to firearm purchasers remains in effect.

Justice Thomas was livid. He said:

“The Second Amendment protects “the right of the people to keep and bear Arms,” and the Fourteenth Amendment requires the States to respect that right, McDonald v. Chicago. . . . 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. District of Columbia v. Heller.

But the decision below did just that. 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, the Second Amendment is a disfavored right in this Court. Because I do not believe we should be in the business of choosing which constitutional rights are “really worth insisting upon,” Heller . . . I would have granted certiorari in this case.”

Drake v. Jerejian: Petition for certiorari denied on May 5, 2014

No hearing; no comment

“Issue: (1) Whether the Second Amendment secures a right to carry handguns outside the home for self-defense; and (2) whether state officials violate the Second Amendment by requiring that individuals wishing to exercise their right to carry a handgun for self-defense first prove a ‘justifiable need’ for doing so.”

The weblog, outside the beltway, had this to say about the case:

“Well it’s official. The Supreme Court has abdicated the Second Amendment.

No Second Amendment right, in New Jersey, to carry a handgun outside the home; and proof of “justifiable need” to carry handgun outside the home for self-defense remains in effect in New Jersey

“Today, the Court denied cert in Drake v. Jerejian, the New Jersey carry case. This case offered a perfect vehicle to test whether the Second Amendment applies outside the home. It was relisted a few times, which this term has been a prerequisite to cert. Yet, it was denied today.

Since the Supreme Court decided McDonald v. Chicago in 2010, they have not deigned to take a single Second Amendment case. Not one. Several have been relisted a few times, but all ultimately denied, with not even a statement concurring or dissenting from denial of cert.

As I noted in this post, this strategy of ‘deny, deny, deny’ is reminiscent of the absence of Cert grants in cases concerning Guantanamo Bay. There, the Court seems content to let the D.C. Circuit rewrite habeas law. I suppose, in a similar fashion, the Court is happy with a plethora of nation-wide Circuit splits about the meaning of the right to keep and bear arms.”

Jackson vs. City & Cnty. of San Francisco: Petition for certiorari denied on June 8, 2015

“Issue: Whether San Francisco’s attempt to deprive law-abiding individuals of immediate access to operable handguns in their own homes is any more constitutional than the District of Columbia’s invalidated effort to do the same.”

The requirement to keep handguns inaccessible in-home remains in effect in San Francisco.

(Thomas dissenting; Scalia joins dissent) Thomas writes:

“‘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. 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. Despite the clarity with which we described the Second Amendment 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.”

Friedman vs. City of Highland Park, Illinois: Petition for certiorari denied on December 7, 2015

“Issue: (1) Whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with a class of constitutionally protected ‘arms’ that includes the most popular rifles in the nation; and (2) whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with ammunition magazines that number in the tens of millions and make up nearly half of the nation’s total stock of privately owned ammunition magazines for handguns and rifles.”

Semiautomatic weapons defined as ‘assault weapons,’ even if in common use remain illegal in City of Highland Park, Illinois

Thomas dissenting:

“The City of Highland Park, Illinois, bans manufacturing, selling, giving, lending, acquiring, or possessing many of the most commonly owned semiautomatic firearms, which the City branded “Assault Weapons.”

The City gave anyone who legally possessed ‘an Assault Weapon or Large Capacity Magazine’ 60 days to move these items outside city limits, disable them, or surrender them for destruction. Anyone who violates the ordinance can be imprisoned for up to six months, fined up to $1,000, or both.

Instead of adhering to our reasoning in Heller, the Seventh Circuit limited Heller to its facts and read Heller to forbid only total bans on handguns used for self-defense in the home. All other questions about the Second Amendment, the Seventh Circuit concluded, should be defined by ‘the political process and scholarly debate.’

But Heller repudiates that approach.

There is no basis for a different result when our Second Amendment precedents are at stake. I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right.

Kolbe vs. Hogan: Petition for certiorari denied on November 27, 2017

No hearing and no comment

Issues: (1) Whether District of Columbia v. Heller excludes the most popular semiautomatic rifles and magazines from Second Amendment protection; and (2) whether they may be banned even though they are typically possessed for lawful purposes, including self-defense in the home.

Maryland’s ban on ‘military-like’ ‘assault weapons’ and ‘high-capacity magazines upheld.

Peruta vs. California: Petition for certiorari denied on June 26, 2017

Issue: Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

California law denying law-abiding citizens the Second Amendment right to carry handguns outside the home for self-defense in the absence of a showing of “good cause” remains in effect.

Thomas Dissenting; Gorsuch joins Dissent:

The Second Amendment to the Constitution guarantees that ‘the right of the people to keep and bear Arm[s] shall not be infringed.’ At issue in this case is whether that guarantee protects the right to carry firearms in public for self-defense. Neither party disputes that the issue is one of national importance or that the courts of appeals have already weighed in extensively. I would therefore grant the petition for a writ of certiorari.

The Court’s decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right.

For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent.”

It is one thing for a lower Federal Court to abdicate its responsibility to defend and protect the U.S. Constitution. It is quite another thing for the U.S. Supreme Court to do so. The lower Courts take their cue from the Highest Court in the Land. If the Supreme Court abdicates its responsibility, it should well expect the lower Courts to do so as well.

And, they have.

 

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