While it seems the Supreme Court is never going to hear another Second Amendment case, many in the Second Amendment community are upset by the court’s refusal to hear some of the potential cases before it. Some of these are important matters of law, direct and obvious infringements on the rights of ordinary citizens.
It seems, though, that not everyone on the Court was oblivious to the importance
Justice Clarence Thomas went off on a number of points regarding the Court’s refusal. It also seems that some seem to think they understand the law better than Thomas.
A favorite (and often unconvincing) device of both liberals and conservatives is to compare abortion regulations with gun control laws. The rights at hand are both grounded in the Bill of Rights; however, abortion is read into the amendments while gun control is enumerated in the text of the document. Critically, both are legally regulable to some degree. Remember that phrase “well regulated”? That neither the right to have an abortion nor the right to bear arms is absolute is common ground. But the two are not exactly parallel, given the very different practical impacts involved: bearing arms is not quite the same as bearing children. Clarence Thomas, though, was happy to offer up the willfully obtuse argument that New Jersey’s gun law should fail, because the same rules could not be applied to abortions:
This Court would almost certainly review the constitutionality of a law requiring citizens to establish a justifiable need before exercising their free speech rights. And it seems highly unlikely that the Court would allow a State to enforce a law requiring a woman to provide a justifiable need before seeking an abortion.
Honestly, a legal mind of Thomas’s caliber could have done markedly better. Abortions are not guns. The history, background, law, and public interest relevant to abortions is completely different to the law relevant to carrying handguns. Gun rights for self-protection and their unwanted consequences — violence, mass shootings — are not the same as a philosophical idea about when life starts and the burdens borne by those who carry unwanted pregnancies. Equating the very private nature of abortion with the very public possible risk created by carrying firearms is galling in its commitment to thick-headedness.
Ah, the old “it says ‘well regulated’ in there” canard. They always seem to forget the part that says “the people’s right to keep and bear arms shall not be infringed,” don’t they?
However, Thomas’s point is sound, despite the commentator’s claim. Rights are rights, and if you’re going to impose regulations on when someone can exercise their rights, it does open the door for others to try and regulate when different rights can be exercised.
A prime example of this is how people justify gun control by claiming that there are limits to freedom of speech. “You can’t yell fire in a crowded theater,” is the favorite, go-to example.
So, if rights can be infringed, the question becomes just when can right be infringed upon. If the Court will forbid abortion regulations, then why is that the sacrosanct line that cannot be crossed and not one of the fundamental, enumerated rights clearly spelled out in the Constitution?
That wasn’t all, though:
Clarence Thomas is here to let us know that the lower courts are getting Heller wrong. Like an exasperated teacher confronting low test scores, Thomas railed against the “many courts” that “have resisted” precedent on gun control. “Whatever one may think about the proper approach to analyzing Second Amendment challenges,” Thomas wrote, “it is clearly time for us to resolve the issue.” As a sample of the kind of clarity needed from SCOTUS, Thomas launched into a pages-long lesson on English history. He brought up James II, what the right to bear arms meant in 1688, and English treatises from the founding era.
Look, I get the desire to stay true to the ideals of the founding fathers. But — come on. On many issues, including guns, staunch historical interpretations of constitutional language clearly do not work. I really thought we were all clear on this, given that whole women-and-blacks-weren’t-really-considered-people thing from the days of our nation’s birth. There may be good arguments against certain overly intrusive gun laws, but they’d be a hell of a lot more convincing if they were grounded in our current reality, and not in a time when flintlock muskets and cannons constituted “technology.”
It’s worth noting that not even Justice Kavanaugh – who joined in the rest of Thomas’ dissent – was unconvinced by this lengthy walk down ye olde lane, and opted out of this section.
Except, again, Thomas is right. While you can argue that the historical arguments are irrelevant–and you’d be wrong–the truth of the matter is that the core of Thomas’s dissent was that lower courts are essentially ignoring Heller. We’ve seen this time and time again. After all, Heller ruled that guns that were in common use weren’t to be banned. That would include so-called “assault weapons,” yet lower courts have held up those bans as constitutional in far too many instances.
The author fails to address that and, honestly, I’m disappointed in Justice Kavanaugh over this.
Of course, there’s plenty more where that came from, but holy crap.
Justice Thomas made valid points throughout his dissent, but unfortunately, dissents don’t create law. They don’t overturn bad laws such as this case from New Jersey where a man with a clear need still couldn’t get a permit because the need wasn’t against a specific threat. In other words, New Jersey isn’t issuing many permits, thus interfering with people’s right to bear arms.
Thomas wanted the Court to overturn that, but they instead refused to even hear the case.
He was right to be upset. I sure as hell am.