Tuesday is the Supreme Court’s first day in session since a gunman walked into Marjory Stoneman Douglas High School in Parkland, Florida and murdered 17 people. It’s also the day Justice Clarence Thomas picked to deliver a 14-page rant about the fact that it isn’t easier to buy guns in the United States.
California law requires most gun purchasers to wait 10 days when they wish to buy a gun. This waiting period gives state officials time to run a background check on the buyer, and also creates a “cooling off” period allowing someone who intended to give “individuals who might use a firearm to harm themselves or others an opportunity to calm down.”
The plaintiffs in Silvester v. Becerra claim that they should not be subject to this waiting period because they either already own guns or already have a concealed-carry license — and Justice Thomas seems to agree with their argument.
“Common sense suggests that subsequent purchasers contemplating violence or self-harm would use the gun they already own,” the justice claims, “instead of taking all the steps to legally buy a new one in California.”
Although the Supreme Court held, for the first time in 2008, that the Second Amendment protects an individual right to own firearms, the Court’s decision in District of Columbia v. Heller still leaves lawmakers with considerable leeway to regulate these firearms. Among other things, Justice Antonin Scalia wrote for the Court in Heller, “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 Heller, the Court has only handed down one other major Second Amendment decision, in a case that held the Second Amendment applies to state governments and not just to Congress. 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.
Thomas’ primary grievance with the lower court’s decision in Silvester is he thinks that the court of appeals should have started with a stronger presumption against gun regulation.
Silvester, however, is also part of a larger crusade by Thomas to convince his colleagues to hear more gun cases. He claims that “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,” and that the Supreme Court exacerbated this trend by not hearing a major Second Amendment case in the past eight years.
In a section of his opinion that will delight conservative cultural warriors, Thomas even compares the Court’s refusal to hear the Silvester case to his speculative belief that the Court would “review a 10-day waiting period for abortions, notwithstanding a State’s purported interest in creating a ‘cooling off’ period.” (Patients seeking abortions, unlike gun purchasers, often face a rigid deadline because of laws restricting abortions later in pregnancy, so a 10-day waiting period would amount to a denial of the right an an abortion in many cases.)
In any event, the most interesting thing about Thomas’ Silvester opinion may be what it does not say. No other member of the Court — not even Neil Gorsuch, who typically partners with Justice Thomas on matters where Thomas used to stand alone — joined Thomas’ dissent from the Court’s decision not to hear Silvester.
Thomas does appear to be right about one thing: His colleagues show little interest in taking up another major Second Amendment case.