As part of its Orders List today, the Supreme Court announced that it would not review a Ninth Circuit decision which held that there is no Second Amendment right for members of the general public to carry concealed firearms in public. The case had been brought by residents of San Diego and Yolo Counties who had sought to carry concealed firearms in public for self-defense, but alleged they were denied licenses to do so because they did not satisfy the “good cause” requirements in their counties. Two Justices dissented from this denial of review—Justices Thomas and Gorusch—and, hoo boy, they’re upset.
Some background first: Yolo County defined “good cause” as including “ a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm’s way. Simply fearing for one’s personal safety alone is not considered good cause. This criterion can be applied to situations related to personal protection as well as those related to individual businesses or occupations.” So under this policy, “Victims of violent crime and/or documented threats of violence” or “Business owners who carry large sums of cash or valuable items” had good cause; “Self protection and protection of family (without credible threats of violence)” or “Employment in the security field” by itself did not.
And Justices Thomas and Gorsuch wanted this case to be heard. And reversed:
Neither party disputes that the issue is one of national importance or that the courts of appeals have already weighed in extensively. … As we explained in Heller, to “bear arms” means to “‘wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.’” The most natural reading of this definition encompasses public carry. I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.
… [T]he Second Amendment’s core purpose further supports the conclusion that the right to bear arms extends to public carry. The Court in Heller emphasized that “self-defense” is “the central component of the [Second Amendment] right itself.” This purpose is not limited only to the home, even though the need for self-defense may be “most acute” there. “Self defense has to take place wherever the person happens to be,” and in some circumstances a person may be more vulnerable in a public place than in his own house.
Moreover, they kvetch, win or lose, it’s time to settle this question:
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. …
The Court’s decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right. See Friedman v. Highland Park, 577 U. S. ___, ___ (2015) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 6) (“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”); Jackson v. City and County of San Francisco, 576 U. S. ___, ___(2015) (same). The Constitution does not rank certain rights above others, and I do not think this Court should impose such a hierarchy by selectively enforcing its preferred rights. Id., at ___ (slip op., at 1) (“Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document”). The Court has not heard argument in a Second Amendment case in over seven years—since March 2, 2010, in McDonald v.Chicago, 561 U. S. 742. Since that time, we have heard an argument in, for example, roughly 35 cases where the question presented turned on the meaning of the First Amendment and 25 cases that turned on the meaning of the Fourth Amendment. This discrepancy is inexcusable, especially given how much less developed our jurisprudence is with respect to the Second Amendment as compared to the First and Fourth Amendments.
Anyone want a big, harumphing finish?
For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent.
None of the other seven Justices wrote to explain why the case shouldn’t be heard, but, honestly, that’s typical.