The U.S. Supreme Court recently declined to consider a legal challenge to California’s 10-day waiting period for the purchase of guns. In recent years, the Court has refused to wade into the growing Second Amendment debate.
In a strongly-worded dissent, Justice Clarence Thomas criticized the court’s decision not to hear the case, characterizing the Second Amendment as the Supreme Court’s “constitutional orphan.” He argued that the justices should have reviewed the Ninth Circuit’s decision to uphold the waiting period.
“If a lower court treated another right so cavalierly,” Thomas wrote in his dissent, “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.”
Supreme Court’s Second Amendment Precedent
The Second Amendment states, in relevant part: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
Because the Constitution offers no other guidance regarding the right to bear arms, the precise line that delineates what the government may or may not regulate in regard to guns has always been somewhat unclear.
The Court last considered the right to bear arms in McDonald v. Chicago, 561 U.S. 742 (2010).
The slim majority held that the 14th Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states.
As explained by Justice Samuel A. Alito, Jr.: “It is clear that the Framers… counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.”
However, the justices were bitterly split 5-4, just as they were in the landmark case of District of Columbia v. Heller, 554 U.S. 570 (2008).
In Heller, the majority held that the Second Amendment protects an individual’s right to possess a firearm unconnected with service in a militia and to use that arm for traditionally lawful purposes, such as self-defense within the home.
The Supreme Court, however, was also quick to note that Second Amendment has its limits.
As explained by the Court, “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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.”
The school shooting in Florida renewed calls for further gun restrictions. While many would like the U.S. Supreme Court to bring clarity to the gun debate, it is unclear if the justices will decide to intervene in the near future.
Donald Scarinci is a managing partner at Scarinci Hollenbeck—read his full bio here.