Thomas Calls Second Amendment High Court's 'Constitutional Orphan'

Firearms are shown for sale at the AO Sword gun store in El Cajon California

The state says it needs the time to complete background checks and for a "cooling off period" for those who might be buying a gun to hurt themselves or others.

The US Supreme Court [official website] on Tuesday declined to review a decision from the US Court of Appeals for the Ninth Circuit upholding California's 10-day waiting period [JURIST report] for purchasing a gun. Lower courts, meanwhile, have developed elaborate rules governing which sorts of gun laws should receive especially skeptical review by judges, and when courts should be more deferential to lawmakers.

The case is Bauer v. Becerra, 17-719.

The court also refused to hear a Second Amendment challenge to a California law that requires $5 of each $19 transfer fee on gun sales go to fund enforcement efforts against illegal firearm purchasers through California's Armed Prohibited Persons System (APPS).

Denial of certiorari comes amid a backlash to Second Amendment absolutism in the wake of yet another mass shooting.

U.S. Supreme Court Justice Clarence Thomas.




With only Justice Clarence Thomas in dissent, the justices let stand a ruling of the 9th Circuit Court that called the California law a "reasonable safety precaution" and one that does not violate the constitutional right to own a gun.

"If a lower court treated another right so cavalierly, I have little doubt that this court would intervene", Thomas wrote. It arose when several lawful California gun owners, supported by the Calguns Foundation and the Second Amendment Foundation, filed a lawsuit claiming that the state's 10-day waiting period for firearms purchases is unconstitutional as applied to "those purchasers who already own a firearm or have a license to carry a concealed weapon, and who clear a background check in fewer than 10 days".

The Supreme Court has not taken up a major firearms case since issuing important gun rulings in 2008 and 2010 that established an individual right to own guns for self-defense. "Our continued refusal to hear Second Amendment cases only enables this kind of defiance", he wrote.

Thomas wrote that the Supreme Court has been much more attentive to other constitutional rights and would surely have mustered the four votes needed to put a case on the court's docket had a different right been at issue.

The 9th Circuit Court of Appeals disagreed. He said its inaction is a signal the Second Amendment is "a disfavored right in this Court".

He said that California made no "attempt to defend a 10-day waiting period", and noted that the background-check process creates a natural 24-hour waiting period for 80 percent of purchasers. The court would take these cases because abortion, speech and the Fourth Amendment are three of its favored rights.

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