Once again the Supreme Court has denied certiorari in another Second Amendment Case. Silvester, et al. v. Becerra was an appeal from the 9th Circuit challenging California’s 10-day waiting period to firearm purchasers. In particular, the petition for certiorari raised the issue of whether 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.” (SCOTUS Blog Case Summary).
Justice Thomas, once again, issued a scathing dissent from the denial of certiorari. He noted that the analysis the 9th Circuit employed was “indistinguishable from rational-basis review.” For those readers unfamiliar with the levels of scrutiny, rational-basis is the lowest standard a court employs with respect to constitutional rights.
…it is symptomatic of the lower courts’ general failure to afford the Second Amendment the respect due an enumerated constitutional right.
Justice Thomas continues “[i]f 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.”
Petitioners Jeff Silvester and Brandon Combs (Firearms Policy Coalition) brought suit challenging California’s 10 day waiting period under the Second Amendment, specifically that the waiting period was unconstitutional as applied to “subsequent purchasers”. The District Court entered a judgment for the Petitioners.
The District Court, after applying an intermediate scrutiny analysis, found that the waiting period was not reasonably tailored to promote an important government interest. It is at the District Court that findings of fact occur. The Court found, among other things, that twenty percent of background checks are auto-approved and took less than two hours to complete. Silvester v. Harris, 41 F. Supp. 3d 927, 964 (ED Cal. 2014). It also found that the arguments for the “cooling off period”, while novel, were inconclusive as to their effectiveness. Id at 954-955. The Court noted that the studies presented by the government, seemed “to assume that the individual does not already possess a firearm.” Id. at 966.
California, unsurprsingly, appealed the decision to the 9th Circuit, which reversed the District Court’s judgment, upholding the 10 day wait period. The 9th Circuit, claimed to have applied intermediate scrutiny, but as Justice Thomas noted, “its analysis did not resemble anything approaching that standard.” Perhaps most egregious is that the 9th Circuit did not defer to the District Court’s findings of fact.
The Ninth Circuit’s deviation from ordinary principles of law is unfortunate, though not surprising. Its dismissive treatment of petitioners’ challenge is emblematic of a larger trend. As I have previously explained, the lower courts are resisting this Court’s decisions in Heller and McDonald and are failing to protect the Second Amendment to the same extent that they protect other constitutional rights. (emphasis added).
The dissent shows Justice Thomas’s frustration with the Supreme Court’s continued denial of certiorari in Second Amendment matters. “The right to keep and bear arms is apparently this Court’s constitutional orphan. And the lower courts seem to have gotten the message.”
Time will tell if the Court opts to pick up a Second Amendment challenge in the future. Justice Gorsuch joined Justice Thomas in his dissent from the denial of certiorari in Peruta v. California, signaling that he too believes Second Amendment issues are ripe for discussion.