February 21, 2018

What’s Up With SCOTUS Avoiding Gun Cases?

The latest pass came this week regarding California’s 10-day waiting period for prospective gun buyers.

In its October 2009 term, the Supreme Court took up McDonald v. City of Chicago. Here’s how the justices described the crux of the case: “Chicago … and the village of Oak Park, a Chicago suburb, have laws effectively banning handgun possession by almost all private citizens.”

For background, the justices recalled a 2008 case, District of Columbia v. Heller, in which they “held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense and struck down a District of Columbia law that banned the possession of handguns in the home.”

In McDonald, the justices addressed the predicament “that Heller had explicitly refrained from opining on whether the Second Amendment applied to the States” by decreeing in their June 2010 ruling “that the Fourteenth Amendment incorporates the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self-defense.” In layman’s terms, the justices made it clear that all governments, from federal on down, contain a constitutional proscription against blanket firearm bans.

Both Heller and McDonald were critical and wisely deduced rulings. Strangely, however, the Supreme Court’s intervention in firearms-related cases ever since has been nonexistent. Following McDonald, the Supreme Court has opted against hearing a slew of cases of significant import.

The latest pass came this week regarding a law in California, where a 10-day waiting period for prospective gun buyers will remain on the books. The state law was originally voided by the U.S. District Court for the Eastern District of California until the Ninth Circuit Court of Appeals stepped in to save it. The former agreed that existing gun owners shouldn’t be obligated to abide by the 10-day rule, but the latter was unfazed by that premise. And because the Supreme Court won’t be ruling on the case, the 10-day waiting period will remain.

Justice Clarence Thomas is understandably flustered by the Supreme Court’s sudden apprehension toward ruling on gun-related cases. In dissent, he noted how “the Second Amendment is a disfavored right in this Court.” Even more sternly, he added: “I suspect that four Members of this Court would vote to review a 10-day waiting period for abortions, notwithstanding a State’s purported interest in creating a ‘cooling off’ period. … The right to keep and bear arms is apparently this Court’s constitutional orphan.”

Perhaps the justices are flummoxed in the same way Congress is. Regardless of which side of the debate they came down on, there will be an uproar. But the Supreme Court’s job is to protect the Constitution and the inalienable rights it enumerates, not succumb to political willpower. The Supreme Court’s refusal to delve into further Second Amendment controversy reveals that it’s badly missing the target.

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