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December 7, 2015

Justice Thomas (with Justice Scalia) dissents from cert denial in Second Amendment challenge to local assault weapon ban

After SCOTUS released on Friday its most list of certiorari grants (including a sentencing case as noted here), the highlight of today's long order list of denials of certiorari comes in the form of this dissent authored by Justice Thomas and joined by Justice Scalia. The dissent from the denial of certiorari in Friedman v. City of Highland Park, Illinois, begins and ends this way (with a few cites removed):

“[O]ur central holding in” District of Columbia v. Heller, 554 U. S. 570 (2008), was “that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” McDonald v. Chicago, 561 U. S. 742, 780 (2010) (plurality opinion).  And in McDonald, we recognized that the Second Amendment applies fully against the States as well as the Federal Government. Id., at 750; id., at 805 (THOMAS, J., concurring in part and concurring in judgment). Despite these holdings, several Courts of Appeals— including the Court of Appeals for the Seventh Circuit in the decision below — have upheld categorical bans on firearms that millions of Americans commonly own for lawful purposes.  See 784 F. 3d 406, 410–412 (2015).  Because noncompliance with our Second Amendment precedents warrants this Court’s attention as much as any of our precedents, I would grant certiorari in this case....

[The Seventh Circuit's] analysis misreads Heller.  The question under Heller is not whether citizens have adequate alternatives available for self-defense.  Rather, Heller asks whether the law bans types of firearms commonly used for a lawful purpose — regardless of whether alternatives exist.  554 U. S., at 627–629.  And Heller draws a distinction between such firearms and weapons specially adapted to unlawful uses and not in common use, such as sawed-off shotguns. Id., at 624–625.  The City’s ban is thus highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes.  Roughly five million Americans own AR-style semiautomatic rifles.  See 784 F.3d, at 415, n.3.  The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting.  See ibid.  Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.

The Seventh Circuit ultimately upheld a ban on many common semiautomatic firearms based on speculation about the law’s potential policy benefits.  See 784 F. 3d, at 411–412. The court conceded that handguns — not “assault weapons” — “are responsible for the vast majority of gun violence in the United States.”  Id., at 409.  Still, the court concluded, the ordinance “may increase the public’s sense of safety,” which alone is “a substantial benefit.”  Id., at 412.  Heller, however, forbids subjecting the Second Amendment’s “core protection . . . to a freestanding ‘interest-balancing’ approach.”  Heller, supra, at 634.  This case illustrates why.  If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing.

The Court’s refusal to review a decision that flouts two of our Second Amendment precedents stands in marked contrast to the Court’s willingness to summarily reverse courts that disregard our other constitutional decisions.... There is no basis for a different result when our Second Amendment precedents are at stake.  I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right.

As I have noted in prior posts, the Second Amendment has been relegated to status as a "second-class right" primarily due to dicta in Heller suggesting that any person who ever commits a crime can and does forever forfeit the "personal right to keep and bear arms for lawful purposes."  Lower courts since Heller have consistently upheld federal prosecution and severe sentencing of persons who long ago committed nonviolent crimes simply for much later seeking to "keep and bear arms for lawful purposes."  Not a single Justice has said a peep about this extreme restriction on Second Amendment rights even though, to my knowledge, few have ever seriously argued that any other right enumerated in the Bill of Rights is or should be subject to permanent forfeiture forever once a person is adjudicated guilty of a crime.

The significant and enduring pattern of courts upholding laws criminalizing persons with criminal records for gun possession, especially in a nation in which it seems more than a 25% of adults have some kind of criminal record, is what I think truly relegates the Second Amendment to a second-class right.  But, for obviously reasons, I am not expecting any SCOTUS Justices to note anytime soon that a mere local ban on possessing a certain type of firearm is far less consequential than the current federal ban on tens of millions of Americans ever being able to possess any firearm even for self-defense in their home.

December 7, 2015 at 10:40 AM | Permalink


Do limits to voting rights & the associational rights of those convicted of crime mean they too are "second class rights"? People have "argued" that a permanent voting ban is at least constitutional. I have long been concerned about that issue, including the open-ended nature of the "crimes" involved. In practice, every "crime" wasn't covered and it isn't here -- every petty crime does not result in life time bans. A sympathetic test case can easily be imagined, maybe involving fish.

Not sure if it is "permanent," but limits on sex offenders regarding 1A rights are rather long. Convictions also provide long reductions of 4A rights. Also, special limits to those convicted of a crime are notable to me in general; does only a life time ban make it a "second class" right? And, the exception, wrong or not, was not invented in 2008. Let's note, if we must, the length of time of the wrong here.

Posted by: Joe | Dec 7, 2015 10:56:03 AM

I don’t always admire Justice Thomas’ reasoning •

I admire his dissent and Justice Scalia’s concurrence •

Posted by: Docile Jim Brady „ the Nemo Me ☺ Impune Lacessit guy in Oregon ‼ | Dec 7, 2015 11:17:18 AM

Voting is not a Right, despite its being referred to as such. Neither is marriage (in the legal sense) or a few other things given that label in modern parlance. The very simple test to see if something is a Right or not is "does this activity require action on the part of others?" If yes, then it's not a Right. If no, then perhaps.

Voting requires registration (complete with eligibility requirements) and a system to record & tally the votes. Marriage is by definition the result of a grant by license. These things not only require the action of others (government) but the permission of others (again, government).

Owning & carrying weapons is a Right, an individual Right that predates the concept of government, not merely this iteration of it we have now. By subjecting a person to licensing, any sort of permit process, or even seeking permission in the form of "background checks" the Right is treated as a mere privilege; something the government gives & the government may take away.

The limitations on freedom of expression or association & privacy that are often the after effects of a conviction of certain crimes are generally wrong, no matter the time applied. if a person is to be free in society then any intrusion upon his Rights is an unjust act by the courts. Conversely if a person cannot be trusted with the freedoms due a human being, then they should not be roaming about without direct supervision.

As to the length of time a person's Right to arms has been subject to a court's leniency - if I'm correct in my recollection it's just a little over 100 years. It wasn't until this century that an old law in Colorado, providing a released inmate with a horse & a pistol was finally removed from the books (it hadn't been applied in many decades, but it was there none the less). federal prohibitions on people owning weapons date only back to 1938. Scalia's big mistake in Heller was mentioning "long standing prohibitions", when those prohibitions only stood so long because the lower courts insisted that the 2nd amendment did not concern an individual Right - which is kind of like saying even though we finally recognize the world is round this should no way disturb faith in the accuracy of all those maps drawn when we thought the world was flat.

So yes, the Right to arms is treated as if it were a mere privilege, so the "2nd class Right" complaint is most valid.

Posted by: Publicola | Dec 7, 2015 12:46:21 PM

Excellent points Publicola, and I will add Joe that it is also critical to really line up potential exercises of rights to see how extreme the current doctrine is for the 2d A. Under federal law and existing doctrine, a person convicted of a nonviolent drug selling crime as an 18 year old kid in 1965 could be subject to up to 10 years in federal prison for trying to purchase/acquire a hunting rifle or handgun as a 68 year old woman for self protection. Pre-Heller than might make sense if 2A did not confer any personal rights, but Heller makes clear there are personal 2A rights, and Thomas here expresses concern about their second class status.

In sharp contrast, even the Boston Bomber condemned to death row and subject still to extreme lawful punishment retains some limited 1A, 4A, 5A, 6A and 8A rights. More to the point, it would seem ludicrous for someone to assert now we could have a federal laws making it a serious federal criminal offense for Martha Stewart or Scotter Libby to attempt to write a book about terrorist or sentencing reform (1A right) or to seek compensation for a taking (5A right).

My main point here is that for many reasons, some valid some not so valid, the 2d A after Heller is viewed and treated radically differently that any other right in the Bill of Rights. In other words, there actually already is a consensus that 2A is a lesser right than all the other classic personal ones, but how much lesser it is and what that means doctrinally and practically remains to be seen.

Posted by: Doug B. | Dec 7, 2015 1:24:01 PM

The Supreme Court and general public cite things as "rights," but you know, they really aren't rights, since I have my own definition for you. And, a nice newsletter.

A fair trial requires "actions of others" -- juries, judges etc. There are various types of "rights" here including those that don't predate government. Does Prof. Berman REALLY want to join all of this philosophical pleading? It REALLY doesn't advance his point to say that it denying a person the right (sic) to marry for a trivial crime is of less concern since marriage isn't really a "right" unlike owning a gun.

To the degree the comment advances my argument that the 2A isn't the only thing we should be concerned about here, fine. "Conversely if a person cannot be trusted with the freedoms due a human being, then they should not be roaming about without direct supervision." It isn't an absolute business -- certain people need some supervision, but their rights are only taken away as much as necessary. Thus, religious liberty even in prisons is protected except when it clashes with penal interests.

The citation to the Colorado rule doesn't help me to determine how every single jurisdiction treated criminals. Criminals, at least certain types, suffered a sort of "civil death" denying a range of rights. Also, I have no desire to defend Scalia's use of history generally, but he cites general prohibitions in place since the 18th Century with the understanding that the right in question was being defended generally. How criminals apply here as a matter of history is a complex question & I'm very open to issue by issue examination of the examples cited in the opinion.

"Limited" rights to me are "second class" rights -- full rights are first class rights. I agree the 2A should be applied more sanely as to those who committed crimes and our drug laws in general are extreme. All 'criminals' still aren't denied 2A rights even there & sorry if you think denial of voting rights are not as important since it isn't even a right going by the "excellent" analysis cited.

Posted by: Joe | Dec 7, 2015 2:07:31 PM

If you'd rather Rights were defined solely by the opinions of a select few or by some sketchy form of consensus in place of reason, then my perspective is going to be far too alien for you to take.

To give the extremely simplified account, Rights are nothing more than property Rights, with the understanding the primary Right is self-ownership. From that extends the acquisition & dispensation of material property, contract, self defense & finally owning & carrying weapons. They all pre-date government, are individual in nature, and do not require any action on anyone else's part (though consensual action regarding contracts is real damn nice). The only involvement of government in them (legitimate involvement at least) is to not interfere with their practice, except when necessary to immediately protect the equal Right of some other party. Anything other than those, or a variation of them, isn't properly a Right no matter how trendy it is to call it such. This is what can be reasoned with the help of folks like Locke & Rand (& of course disregarding Rousseau). It provides a much more objective definition of Rights than anything else I've heard about, but by all means, if you have some other way of describing Rights that follows a logical pattern, do tell.

As to trials, you have a situation where government is seeking to justify an intrusion upon someone's Rights. Having judges, juries, even a lawyer (Vishnu forbid) are niceties & I'd rather not give them up, but they fall more under contractual obligations on the governments part rather than true Rights.

Denying someone a drivers license is less of a concern than denying someone their ability to read religious materials, isn't it? Then why wouldn't denial of a marriage license (when licensing in & of itself denotes a privilege) be less important than denial of owning or carrying a weapon? You think it'd be an unpopular position, alienating advocates of marriage? Possibly, but lumping privileges in with Rights, & giving them equal status is the heart of the problem - a Right being treated like a privilege is accurately in a state of being a "2nd class right".

It is Mr. Berman's site so I can't answer for him, but I assumed that this "philosophical pleading" as you put it, deals with the essence of what a Right is & how it should & should not be treated. If you don't establish the principals, then you'll eventually lose the argument on the particulars.

Rights generally are an absolute business. For example, who is it that determines which people "need" supervision, & how much? & how much of a Right being denied is "necessary" for say an arsonist that served 12 years versus a person that bounced a check for $320 in Alabama & got out after only 14 months? I think the point stands as both a practical & principled matter; if a person cannot be trusted with a device as mechanically & morally simple to operate as a firearm, then they should be under constant direct supervision, not free to roam about where they have access to cars & gasoline & matches & bleach & other assorted dangerous items. Also, I simply do not trust government with something as important as deciding who may or may not exercise a fundamental individual Right.

Colorado was made a state in 1876, so the statute was enacted sometime after that. I'm sure by the mid-20th century it wasn't acted upon much if at all, but it shows that at least in one state in the late 19th century owning a firearm was not prohibited after conviction & release.

As to ex-convicts being denied the Right to arms, that didn't start to happen in the states until the late 19th, early 20th century. Federally it was 1938. & I stress that with some limited exceptions, the courts regarded the 2nd amendment as only affecting the federal government (for the most part) until McDonald v Chicago (2010) & until Heller (2008) they claimed it was only a collective, not an individual right. The laws that stood the challenges pre-Heller mostly did so because of the wrong perspective on the court's part. So again, saying that any prohibition was long standing doesn't mean much if those prohibitions were upheld because the courts didn't respect an individual's Rights.

The 2nd article of the Bill of Rights won't be applied sanely. Perhaps not ever. This is because there's a fundamental misunderstanding about what constitutes a Right (as we've been arguing here) as well as the source of said Right. The courts think that Rights aren't absolute & some (perhaps many) exceptions are allowed if the government can reasonably justify them. The prohibition on "felons" is one of them, even though as Mr. Berman pointed out it adversely affects millions of people (Read "Three Felonies A Day" sometime to understand just how broad this problem could be). After all, it merely takes a conviction of a crime "punishable" by more than 1 year fed (or 2 years state) to be forever prohibited from owning or possessing firearms or ammunition. Most folks don't realize they're prohibited until they get denied for a purchase or get arrested for possession, simply because they did little or no jail time for some seemingly petty offense. So when most judges come from the progressive culture, where a top down, collectivist-centric perspective is taught, then it's swimming upstream to hope they'll respect a concept that originated from a bottom up, individual-focused culture.

(Oh, Mr Berman - since you seem to ask where your readership is coming from, I wandered over here via a link from David Hardy's site [ http://armsandthelaw.com ]. I'm not a lawyer - I've always made an honest living :)I've read & written about firearms law & the politics surrounding it for most of this century, on & off, but as a sideline rather than a profession or area of accredited study.)

Posted by: Publicola | Dec 7, 2015 3:04:44 PM

No, "I rather" not, though to be clear, "Rights" are "rights," right?

Your analysis on "Rights" is debatable based on "reason" and others can philosophically debate you if they wish. And, I'm fine with relying on "reason" though when interpreting the Constitution, yes, the Supreme Court is fairly important, and words and legal terms do gain meaning in important part by popular understandings. Another thing that is important is the text of the Constitution, including Amendment Six, which speaks of "rights" in a broader sense than your analysis, without differentiating "true" rights etc.

All of this really doesn't advance the professor's position, which bottom line, I support (prosecutions for crime should not result in such denial of gun rights). Belittling the importance of a right to marry isn't that helpful there. More people are married in this country than own a gun. Even for many who own one, marriage RIGHTS is more important. Duly noted you disagree.

STATES repeatedly recognized the right to own a firearm. So, "historical practice" as to those states (and English practice too to the extent there was an individual right analogue) is relevant. Non-incorporation therefore doesn't really do the heavy lifting you desire. The experience in one state (Colorado) won't either. As to the general practice, an in depth examination would be required. There is some dispute on this very question. Thus, Don Kates, a leader of the individual rights movement, accepted the exception on originalist ground, others challenge his sources. (See discussion from one perspective here - http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1347186)

Heller only in passing says that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill," and as in the First Amendment area (see, e.g., Chaplinksky v. N.H. summarizingly cabining various types of speech out) such ipse dixit warrants concern. A closer look is warranted.

Posted by: Joe | Dec 7, 2015 5:14:15 PM

ETA: Historical practice is useful to know and has some place in analyzing constitutional terms, but it only an aspect of finding the ultimate proper balance here. This is appealing given the limits of law office / judge chamber history.

Posted by: Joe | Dec 7, 2015 5:28:14 PM

Right On! That is one right thing. Right On Rattlesnake, is another. Two rights do not make a wrong. Neither is a prong of the Second Amendment. It would be wrong to say that the Framers of the Second Amendment did not want progress in firearms to be our most important product. At General Electric there are still arms which can fire. And so, in response to some of the comments above I say that we should saddle up, grab an Uzi and go kill a friggin Muslim swimming into shore from the Bahamas. A firearm does not have to be made in America to rest in the arms of a bear. The right to arm bears is sacred. To those who get it backwards I say go back to England or Ireland.

Posted by: Liberty1st | Dec 7, 2015 5:39:43 PM

The reality is that the decision in this case recognizes how minimalistic the decisions in Heller and McDonald were. Five justices held that, notwithstanding the reference to the militia, the second amendment was a personal right and was a fundamental right with four justices taking the position that it was a collective right. When you only have five justices taking the position that it is a personal right, it becomes very hard to get four justices to take up a case to decide the contours of that right.

This is particularly true as the lower courts seem to agree (regardless of the tests that they use) on the general contours of that right -- background checks okay, limits on certain types of weapons okay, bans on possessions by felons okay, outright bans on possession by non-convicts not okay.

Posted by: tmm | Dec 7, 2015 5:51:51 PM

Wow. I find myself in agreement with Joe, at least one one point. That point is that poster Publicola's definition of a right is out to lunch. "Does this activity require action on the part of others?" is the silliest definition of a right I have ever read unless one reads it so broadly that it makes everything a right. Voting does require an action on the part of others because if others do not count my vote my vote is purposeless. The action that is required by another is to COUNT IT. So the claim that voting is not a right by this measure is self-refuting.

In my view the what makes a right a right is that it is in the Constitution. All other rights are rhetorical.

Posted by: Daniel | Dec 7, 2015 6:47:36 PM

The strategic path might be to find some very sympathetic plantiff -- perhaps someone who cannot even hunt (Kagan has noted her enjoyment of hunting with Scalia; don't know how serious she was, but such at least was her public claim) because of some ancient minor criminal prosecution.

It might also be phrased as a due process or equal protection violation in some fashion. Finally, personally, I see value in piggybacking rights here. Voting and 2A would be logical bedfellows in this context. Fitting gun rights with others has already been done by various scholars and non-scholars. Prof. Amar, e.g., fits the 2A with jury and voting. Some have noted (I saw this recently too) a connection between abortion and gun rights (both a sort of self-defense mechanism).

A limited view of "rights" to me is unproductive there, putting aside (with respect) I find the analysis above problematic. Not novel, mind you -- been at this "rights" definition rodeo already & it has ancient roots anyways. But, YMMV there.

Posted by: Joe | Dec 7, 2015 7:41:28 PM

This is good news. If only Scalia and Thomas are dissenting here, then there is hope that someday the United States will come to its senses and prohibit civilian possession of this class of weapon nationwide.

Posted by: Gary | Dec 7, 2015 11:27:27 PM

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