Judicial Deference Over Constitutional Engagement on Second Amendment

Denial of Appellant’s plea to protect Second Amendment rights is a symptom of the larger problem of judicial deference. 

Unfortunately the Supreme Court has decided not to take up the gun law case coming out of San Francisco. The city requires that guns be kept either in a locked case or with a trigger lock. This mandate caused local gun owners to file suit which eventually led to the Ninth Circuit’s ruling, upholding the city’s law. Though the Supreme Court did not write the reason for denying the appeal, per custom, two justices joined in dissent regarding the Court’s rejection of the appeal. In part Justice Thomas wrote, joined by Justice Scalia:

Less than a decade ago, we explained that an ordinance requiring firearms in the home to be kept inoperable, without an exception for self-defense, conflicted with the Second Amendment because it “ma[de] it impossible for citizens to use [their firearms] for the core lawful purpose of self- defense.” District of Columbia v. Heller, 554 U. S. 570,/

‘d630 (2008). Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense, lower courts, including the ones here, have failed to protect it. Because Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document, I would have granted this petition. [emphasis added]

Denial of this case is discouraging for those who hope for a robust defense of individual rights, especially those outlined specifically in the Bill of Rights.  The dissent comes as no surprise, however, considering that Thomas and Scalia are the two largest advocates of originalism and are both vocal dissenters.  Also unsurprising is the attitude of government deference from the rest of the justices. Each, to varying degrees, defers to other government bodies over engaging with the constitution.  Now it appears the Supreme Court has chosen to allow a facially contradictory ruling from a lower court to remain in effect (a court historically prone to push constitutional limits), in apparent conflict with previous precedent, specifically District of Columbia v. Keller.

Ultimately this denial stands as further evidence of the conflict within the court, and the larger legal field, between judicial deference and judicial engagement, often mistakenly labelled as judicial activism.  Perhaps this explicit denial to defend second amendment rights may serve as a reminder of the need for a judiciary that is engaged with the text of the Constitution.

James C. Devereaux is an attorney and freedom fanatic. Questions, complaints and hysterics can be sent to james@reasonedliberty.com or follow him on twitter @jcdevereaux1.

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