Supreme Court Declines To Review San Francisco Gun Law
Supreme Court Declines To Review San Francisco Gun Law, But Strong Dissenting Opinion Provides Hope For Second Amendment Advocates
On Monday, June 8, the United States Supreme Court denied a request to hear the NRA-CRPA supported case of Jackson v. San Francisco. The Jackson cased raised a Second Amendment challenge to the City’s requirement that handguns be kept secured in a locked box or disabled with a trigger lock unless the firearms are being carried on one’s person. The case was one of many coordinated civil rights cases filed in the wake of the Heller and McDonald decisions in 2008 and 2010, respectively.
Although the Supreme Court declined the opportunity to review the case, two Supreme Court Justices issued a fervent dissenting opinion that provides hope for gun owners and will be useful for Second Amendment advocates. The dissent, authored by Justice Clarence Thomas and joined by Justice Antonin Scalia (the author of the Heller opinion), is the first written clarification from the Supreme Court since the Heller and McDonald decisions were handed down. Although a number of Second Amendment cases have been presented to the Supreme Court for potential review, up until now the Supreme Court had refrained from issuing any dissenting opinions.
The dissent sends a strong message to lower courts that the analytical framework for reviewing Second Amendment challenges cannot be overly deferential to governmental interests. It also suggests that the Court may be waiting for a better vehicle to provide further clarification of the proper scope and application of the Second Amendment.
On the first point, Justice Thomas largely echoed the arguments raised by the NRA-CRPA legal team throughout the litigation. As the plaintiffs explained in their briefs, the subjective “intermediate scrutiny” framework employed by the Ninth Circuit and other courts allow political and personal bias to creep into the judicial review process and effectively creates a toothless and overly deferential review of government infringements on Second Amendment rights. Under this type of watered-down judicial “standard of review,” judges who are so inclined can find that virtually all restrictions on the right to keep and bear arms are constitutional, simply by accepting post-hoc government justifications uncritically, or by characterizing an infringement as “insubstantial.”
The Jackson dissent makes clear that this was not what Justice Scalia had in mind he penned the Heller decision. As Justice Thomas warns:
“The decision of the [Ninth Circuit] Court of Appeals is in serious tension with Heller.”
The dissent goes on to explain that:
“[W]hen a law burdens a constitutionally protected right, we have generally required a higher showing than the Court of Appeals demanded here.”
Justice Thomas also acknowledged the plaintiffs’ argument that while the ordinance permits residents to carry a firearm in the home and use it in self-defense, it flatly denies the right to “keep” a firearm operable for immediate self-defense in many circumstances when carrying the firearm is not practical.
“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… 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.”
These admonishments from Supreme Court Justices are likely to influence how lower courts interpret and apply Heller and McDonald in pending and future Second Amendment cases.
So, although the Court didn’t ultimately accept the Jackson case, it has proven to be of substantial value.
The dissent also sheds light on the reasons surrounding the Court’s decision to decline to hear the Jackson case and suggests that the other members of the Court may be waiting for a better vehicle to revisit the Second Amendment. Often, the Supreme Court will opt to select cases that provide clear “circuit split” among the federal courts of appeal. The dissent suggests that this was likely the case with Jackson, although Justices Thomas and Scalia acknowledged they would have gone ahead and heard this case in the absence of a circuit split, as is sometimes done in other constitutional contexts.
“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….the Court has been willing to review splitless decisions involving alleged violations of rights it has never previously enforced…I see no reason that challenges based on Second Amendment rights should be treated differently.”
These statements suggest that other members of the Court may be waiting to further address the Second Amendment in another case supported by the NRA and CRPA, Peruta v. San Diego. In 2014, that case resulted in a landmark decision from a 3-judge panel of the Ninth Circuit confirming that the Second Amendment secures a right to carry a firearm for self-defense. That case is currently scheduled for rehearing before an 11-judge “en banc” panel on June 16, 2015. Regardless of who ultimately prevails at the Ninth Circuit, both sides are expected to appeal the decision to the Supreme Court. And given that there is already a circuit split among the federal courts on the “right to carry” issue, the Peruta case may ultimately wind up being the next Second Amendment case to be decided by the Supreme Court.
C.D. “Chuck” Michel commented, “The Court’s action leaves San Francisco residents at a disadvantage when the need arises to defend themselves in their own homes. The highly unusual dissenting opinion, however, shows the Court recognizes that the standard of review is being misapplied by the lower courts, and suggests that a future case presenting a split among the lower courts would provide an attractive vehicle to clarify the appropriate level of scrutiny for courts to use in evaluating Second Amendment challenges. The Peruta case, to be re-argued in San Francisco next week, may present just such a vehicle for the Supreme Court to set Second Amendment jurisprudence straight.”
If and when the Supreme Court clarifies the analytical framework for Second Amendment challenges (whether in the Peruta case or otherwise), the outcome of the Jackson case may very well be called into question. The NRA and CPRA stand ready to continue litigating the Jackson case or file new litigation at the proper time to prevent misguided locked storage restrictions from hampering the rights of law-abiding citizens to keep and bear arms.