Yesterday’s opinion was a dissent from the high court’s refusal to review California’s 10-day waiting period for purchase of a firearm. A district judge had struck the order down, in part because some people already legally possess guns, and should not be put to the inconvenience of waiting for 10 days for another one. The Ninth Circuit reversed, reasoning that “the 10-day wait is a reasonable precaution for the purchase of a second or third weapon, as well as for a first purchase.”
These dissents from denial of review have become almost a ritual. In June 2015, Thomas dissented when the Court denied review of a San Francisco ordinance requiring handgun owners to keep them in a gun safe or secured by a trigger lock. He found the law oppressive, in part, because one of the challengers,
… an elderly woman who lives alone, explained that she is currently forced to store her handgun in a lock box and that if an intruder broke into her home at night, she would need to “turn on the light, find [her] glasses, find the key to the lockbox, insert the key in the lock and unlock the box (under the stress of the emergency), and then get [her] gun before being in position to defend [herself].”
In December 2015, he dissented from decision not to hear a challenge to an Illinois city ordinance that bans possession and sale of “the most commonly owned semiautomatic firearms, which the City branded ‘Assault Weapons’” and high-capacity magazines. A lot of Americans own semi-automatic weapons, he protested.
The City’s ban is thus highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes. Roughly five million Americans own AR-style semiautomatic rifles. 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.
This opinion was released five days after a married couple, Syed Rizwan Farook and Tashfeen Malik, stormed into a San Bernardino County agency holiday party with two assault weapons—one illegally altered to make it fully automatic and the other adapted to an illegal high-capacity magazine. In that attack, they killed 14 people and injured 22 others.
Last June, Thomas dissented when the Court refused to review an en banc decision of the Ninth Circuit that “there is no Second Amendment right for members of the general public to carry concealed firearms in public.”
Thomas’s dissents center around Heller v. District Columbia. In that 2008 case, the Court did hold, 5 to 4, that the Second Amendment guaranteed a law-abiding, non-felonious DC resident the right to possess a handgun in the home for purposes of self-defense. (Two years later, a 5 to 4 majority extended that right against the states as well.) But the Heller opinion, by Justice Antonin Scalia, was not an endorsement of any gun-rights claim anywhere by anyone:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Since those two decisions, enthusiastic gun advocates and some lower-court judges have battered other regulations of firearms such as the assault weapons ban or concealed-carry restrictions. Lower courts have been reluctant to extend Heller to cover rights line open-carry or assault weapons, and the Supreme Court has not granted review. Thomas believes that lily-livered lower court judges are rejecting gun-rights claims because they fear the consequences of firearms possession. “[C]ourts,” he wrote in the trigger-lock dissent, “may not engage in this sort of judicial assessment as to the severity of a burden imposed on core Second Amendment rights.”