Justice Clarence Thomas issued a blistering dissent on Tuesday after his colleagues on the Supreme Court denied without comment a request by gun rights activists to rule on California’s 10-day waiting period for firearm sales. Thomas was the only justice to dissent from the high court’s refusal to review a ruling by the U.S. Court of Appeals upholding California’s law, which is similar laws in the District of Columbia and eight other states. Writing that the 9th Circuit’s ruling was “symptomatic of the lower courts’ general failure to afford the Second Amendment the respect due” as a constitutional right, Thomas wrote, “If a lower court treated another right so cavalierly, I have little doubt that this court would intervene.” Thomas’s dissent read: “But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this court.”
California requires a 10-day waiting period for the purchase of any firearm, with limited exceptions. According to state law, the wait is needed to complete background checks and for a “cooling off period” for those who those seeking to hurt themselves or others. Two men whose names were already on the California database of gun owners, and have valid concealed-carry licenses.
Thomas’s 14-page dissent came after the mass shooting at the Marjory Stoneman Douglas High School in Parkland, Florida, and a renewed debate about gun control accompanied by rallies by gun control advocates. At the Florida high school, 17 people were killed. Justice Thomas criticized the lower court for relying on a “common sense understanding” that waiting periods may deter violence. According to Thomas, the appeals court had not rigorously examined the law that restricts an enumerated constitutional right. “If this case involved one of the court’s more favored rights, I sincerely doubt we would have denied” review, Thomas added. “I suspect that four members of this court would review a 10-day waiting period for abortions, notwithstanding a state’s purported interest in creating a ‘cooling off’ period.”
The case is Silvester v. Becerra. In the case Silvester v. Becerra, two lawful gun owners and two nonprofits challenged the constitutionality of California’s 10-day waiting period as applied to "subsequent purchasers" who already own a firearm or have a license to carry a concealed weapon, and who clear a background check in less than 10 days.
"If a lower court treated another right so cavalierly, I have little doubt that this court would intervene," Thomas wrote. "But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this court." He also noted that his colleagues have not heard any arguments on the Second Amendment case in nearly eight years, despite a number of challenges reaching the court during that time. Thomas also noted that the Supreme Court had not clarified the standard for reviewing gun regulations for almost 10 years. Since the landmark 2008 decision in District of Columbia v. Heller, Clarence had joined Justices Antonin Scalia and Samuel Alito in dissenting on Second Amendment cases.
"If this case involved one of the court’s more favored rights, I sincerely doubt we would have denied certiorari," Thomas wrote. "I suspect that four members of this court would vote to review a 10-day waiting period for abortions, notwithstanding a state’s purported interest in creating a 'cooling off' period. I also suspect that four members of this court would vote to review a 10-day waiting period on the publication of racist speech, notwithstanding a state’s purported interest in giving the speaker time to calm down." Thomas continued: "Similarly, four members of this court would vote to review even a 10- minute delay of a traffic stop. The court would take these cases because abortion, speech, and the Fourth Amendment are three of its favored rights. The right to keep and bear arms is apparently this court’s constitutional orphan. And the lower courts seem to have gotten the message."