The U.S. Supreme Court has once again avoided an opportunity to rule on whether the Second Amendment protects a right to bear arms outside the home, with Justice Clarence Thomas, joined by Justice Neil Gorsuch, writing a blistering dissent.
“We should have granted certiorari in this case,” Justice Thomas wrote. “The approach taken by the en banc court is indefensible, and the petition raises important questions that this Court should address. I see no reason to await another case.
“The Court’s decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right,” they later added.
The case of Peruta v. California challenges that state’s concealed carry law, which is a “may issue” type statute that allows police agencies to reject concealed carry applications on the basis of “good cause.” If an applicant cannot demonstrate “good cause,” which is up to the subjective decision of the sheriff or police chief, the law-abiding citizen is out of luck.
In California, open carry of sidearms is prohibited, so the only way a private citizen may be armed for personal protection is to carry concealed. Prof. Eugene Volokh weighed in at the Washington Post.
The Peruta Case is supported by the National Rifle Association. After seeing their case rejected for review, NRA’s Chris Cox, executive director of the Institute for Legislative Action, issued the following statement:
“We are disappointed in the Court’s rejection of the appeal in Peruta v. California, which now leaves millions of law-abiding Californians with no ability to bear arms outside the home. As Justices Thomas and Gorsuch correctly stated, too many courts have been treating the Second Amendment as a second-class right. That should not be allowed to stand. As the Supreme Court stated in its landmark decision in Heller v. District of Columbia, the Second Amendment guarantees an individual right to keep and bear arms for self-defense. The framers of our Constitution did not intend to limit that right to the home. We look forward to a future Court affirming that the right to keep and bear arms is as much a part of our Constitution as the other enumerated rights that it protects. We will not stop fighting until a future Court affirms this fundamental right.”
Since the high court ruled on the Second Amendment in the Heller and McDonald cases, no other Second Amendment case has been accepted for review, though there have been several challenging laws in Maryland, New Jersey and New York.
In their dissent, Thomas and Gorsuch scolded their colleagues by observing, “Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry, the time has come for the Court to answer this important question definitively. Twenty-six States have asked us to resolve the question presented… and the lower courts have fully vetted the issue. At least four other Courts of Appeals and three state courts of last resort have decided cases regarding the ability of States to regulate the public carry of firearms. Those decisions (plus the one below) have produced thorough opinions on both sides of the issue…”
If it did nothing else, this case gave Gorsuch an opportunity to clearly demonstrate his position on the right to keep and bear arms.
In a separate decision, the high court also rejected review of the Second Amendment Foundation’s case in Binderup v. Attorney General of the United States.
That case involved a man named Daniel Binderup, who pleaded guilty in 1996 to a misdemeanor charge related to a consensual relationship he had with a 17-year-old female employee. He received three years’ probation and a $300 fine. However, because the crime could have resulted in jail time of more than one year for which the federal gun law blocks firearms possession, Binderup sought protection of his rights via the courts.
The Third Circuit Court of Appeals ruled in Binderup’s favor, but the Obama Justice Department appealed.
“While we were confident that our case would once again prevail before the Supreme Court, we’re delighted at the high court’s decision that allows our victory in the Third Circuit to stand,” noted SAF founder and Executive Vice President Alan M. Gottlieb in a news release. “We established the principle that people who are convicted of certain misdemeanor crimes cannot be stripped of their fundamental right to keep and bear arms for life.
“We cannot allow government to simply deny constitutionally-delineated rights on such flimsy grounds,” he added.