Today the Supreme Court denied certiorari in Jackson v. San Francisco, a Second Amendment case where the City requires that lawfully-owned handguns must be stored in a locked container or have a trigger lock. Justice Thomas, joined by Justice Scalia, dissented from the denial of certiorari. I explored in a piece in the American Spectator that the Court has denied review of every single 2nd Amendment case since Heller. This case continues that tradition.

The dissent faults the 9th Circuit for effectively disregarding Heller, focusing on the “core protection” of the right.

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.

Thomas’s dissent makes clear this law, which nullifies the right of self defense if someone is asleep and cannot unlock the gun in time, is in “serious tension” with Heller.

The decision of the Court of Appeals is in serious tension with Heller. …  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.

Next Thomas sketches out the massive circuit split that has emerged since Heller.

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”).

While Justice Thomas does not purport to resolve that issue, he explains the San Francisco law doesn’t survive any scrutiny:

One need not resolve that dispute to know that something was seriously amiss in the deci-sion below. In that decision, the Court of Appeals recog- nized 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.

Thomas turns to the First Amendment to provide a basis to resolve these questions:

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 Second Amendment right. And when a law burdens a constitu- tionally 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 Broad- casting 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 inter- ests” (internal quotation marks omitted)).

Thomas urges that the Court should have granted the case to set the Circuit straight:

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. See Heller, 554 U. S., at 634 (“The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis what is really worth insisting upon”); id., at 635 (explaining that the Second Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home”).

The denial is especially striking as the Court takes other cases involving constitutional rights.

The Court’s refusal to review this decision is difficult to account for in light of its repeated willingness to review splitless decisions involving alleged violations of other constitutional rights. See, e.g., Glossip v. Gross, 574 U. S. ___ (2015) (cert. granted) (Eighth Amendment); Ontario v. Quon, 560 U. S. 746 (2010) (Fourth Amendment); Hill v. Colorado, 530 U. S. 703 (2000) (First Amendment). In- deed, the Court has been willing to review splitless deci- sions involving alleged violations of rights it has never previously enforced. See, e.g., BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996) (right to limit on punitive damages awards). And it has even gone so far as to review splitless decisions involving alleged violations of rights expressly foreclosed by precedent. See, e.g., Boumediene v. Bush, 553 U. S. 723 (2008) (right of aliens held outside U. S. territory to the privilege of habeas corpus); Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in adult, consensual same-sex intimate behavior). I see no reason that challenges based on Second Amendment rights should be treated differently. 

 

This echoes a point I made years ago, but has become truer since–the Second Amendment is treated by the Court as a second-class right.

With only Thomas and Scalia in dissent, we can presume that the Chief and Alito are content with maintaining this status quo where the lower courts continue to trivialize Heller.