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Are Gun Rights Second-Class Rights?

06/10/2015 10:03 am ET | Updated Jun 10, 2016
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Does a law that burdens Americans' right to self-defense at times when they are most vulnerable violate the Second Amendment? On Monday, the Supreme Court took a pass on that vital question. In declining to review a Ninth Circuit Court of Appeals decision upholding a San Francisco law that prohibits private citizens from keeping handguns operable for the purposes of immediate self-defense when not carried on their person, the Court failed to correct a flagrant and consequential judicial error. It also failed to clarify that it meant what it said in previous Second Amendment cases: Judges are not to decide on a case-by-case basis whether the right to bear arms in self-defense is really worth insisting upon.

In a vigorous dissent from denial of review, Justice Thomas (joined by Justice Scalia) summarized the Court's key Second Amendment cases, District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010). In Heller, the Court held that a District of Columbia ordinance requiring firearms in the home to be kept inoperable, without an exception for self-defense, violated the Second Amendment because it "ma[de] it impossible for citizens to use [their firearms] for the core lawful purpose of self-defense." In McDonald, the Court invalidated a Chicago ordinance that effectively banned handgun possession by any private citizen. In so doing, the Court stated that "[s]elf-defense is a basic right, recognized by many legal systems from ancient times to the present day" and that "individual self-defense is 'the central component' of the Second Amendment right." In both cases, the Court explicitly rejected the use of ad hoc "interest-balancing" by courts. Heller in particular made plain that judicial engagement is required whenever the right to keep arms in one's home for self-defense is burdened--that is, exacting judicial scrutiny, grounded in reliable evidence, which "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."

As Justice Thomas observed, the San Francisco ordinance prevents people from keeping their handguns operable when they are "sleeping, bathing, changing clothes, or otherwise indisposed"--when "they are at their most vulnerable." Remarkably, the Ninth Circuit concluded that this was not a "severe burden," reasoning that "a modern gun safe may be opened quickly." In light of this "fact," the Ninth Circuit applied a deferential form of review, concluding ultimately that the law "served a significant government interest by reducing the number of gun related injuries and deaths from having an unlocked handgun in the home." That is to say, the appellate court performed exactly the kind of interest-balancing that the Supreme Court has held to be categorically improper when core Second Amendment rights are burdened.

The conclusion that such restrictions do not burden the right to defend oneself blinks reality, as Justice Thomas made plain. One of the petitioners challenging the law "explained that she is currently forced to store her handgun in a lock box and that if an intruder broke into her home at night, she would need to 'turn on the lights, find [her] glasses, find the key to the lockbox, insert the key in the lock and unlock the box... and then get [her] gun.'" An insignificant burden? Try a matter of life or death.

The Court's widely-noted failure to clarify the scope of Americans' Second Amendment rights is shocking and inexcusable. Justice Thomas ruefully observed that the Court has granted review in decisions "involving alleged violations of rights it has never previously enforced" and involving rights claims that are "expressly foreclosed by precedent." And yet, in the Second Amendment context, the Court has refused to give law-abiding citizens seeking to exercise their rights the certain protection they deserve. Various federal courts of appeal have disagreed about whether the Second Amendment guarantees the right to carry a handgun outside the home; whether states need to offer any evidence at all in support of laws burdening the right to bear arms; and whether consumers have standing to challenge federal restrictions on gun sales. The Court has yet to resolve any of these consequential circuit splits, despite being given ample opportunity.

Sometimes, the decisions that the Court refuses to make have a broader impact than those which it does. As Justice Thomas stated, the right to bear arms is derived from the right of self-defense--that is, from the right to preserve one's life. It was of central importance to the Framers of the original Constitution and the Reconstruction Amendments, and it is still of central importance to ordinary Americans. It is high time that the Court stopped treating the Second Amendment as if it occupied second-class constitutional status.