Clarence Thomas, in Dissent, Asserts Gun Rights Aren't 'Favored' at High Court

Justice Clarence Thomas. Credit Diego M. Radzinschi ALM

In the case Silvester v. Becerra, two lawful gun owners and two nonprofits challenged the constitutionality of the state'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.

The 9th Circuit Court of Appeals upheld the law.

Mass shootings including one in which a gunman killed 17 people at a Parkland, Florida high school on February 14 have added to the long-simmering USA debate over the availability of firearms.

One of the court's most conservative justices, Clarence Thomas, dissented from the decision to reject the waiting-period case and accused his colleagues of showing contempt toward constitutional protections for gun rights.

The waiting period also gives officials time to run background checks and ensure that weapons being sold are not stolen or being purchased for someone prohibited from gun ownership, it added.

U.S. Supreme Court Justice Clarence Thomas.

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The advocacy group Calguns Foundation praised Thomas' dissent and said it would "continue to challenge unconstitutional gun control laws until the Second Amendment takes its place as a peer among constitutional rights". That review was nothing more than a ruling on the basis of that court's "own common sense", he said.

Silvester, however, is also part of a larger crusade by Thomas to convince his colleagues to hear more gun cases.

Saying that it's been 10 years since the court clarified the standard for assessing Second Amendment claims, Thomas notes that the court has by contrast granted review, in this term alone, to "at least five cases involving the First Amendment and four cases involving the Fourth Amendment". The right to keep and bear arms is apparently this court's constitutional orphan. Thomas even went as far as to liken the 10-day waiting period to a "10-day waiting period for abortions, notwithstanding a State's purported interest in creating a "cooling off' period". It said the 10-day waiting period is a reasonable safety precaution for all purchasers of firearms and need not be suspended once a purchaser has been approved.

Criticizing the standard by which the Ninth Circuit reviewed the challenge, Thomas said it "allowed California to justify its waiting period with mere 'rational speculation unsupported by evidence or empirical data'".

Ever since the high court ruled in 2008 that the Second Amendment protects an individual's right to possess guns for self-defense, Thomas said, the Ninth Circuit and other lower courts "are resisting this court's decisions" and providing lesser protections for the Second Amendment than for other constitutional rights.

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