On June 26, 2017, the Supreme Court denied the petition for certiorari in Peruta v. California. We filed amicus briefs on your behalf in both the U.S. Court of Appeals for the Ninth Circuit and on petition to the Supreme Court.
In our most recent filing with the Supreme Court, we had taken the controversial position that our “friends” litigating the case in California had bartered away Second Amendment rights in an attempt to appear reasonable to judges. We had gone back and forth about whether we should even file a brief and, if we did, whether it in fact should oppose the granting of the petition.
In what is in some ways a blessing, the Supreme Court decided not to hear the case. Interestingly, though, Justice Thomas, joined by Justice Gorsuch (in his first high court Second Amendment foray) filed an eight-page opinion dissenting from the denial of cert.
In their dissent, the justices wrote that “We should have granted certiorari in this case. 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.”
While we disagree that there was “no reason to await another case” (given the compromising done by the Peruta plaintiffs), everything else in the Thomas dissent is directly on point. Justice Thomas observed, “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.”
Criticizing the Court's refusal to hear Second Amendment cases, the Thomas/Gorsuch dissent called out their fellow colleagues for their failure to give the Second Amendment its due. “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. ... The Court’s decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right. ... 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. ... The Court has not heard argument in a Second Amendment case in over seven years ... Since that time, we have heard 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.”
Now Justice Gorsuch is on the record as to some of his views respecting the Second Amendment. At least we know there are two justices who favor further protection of Second Amendment rights. If President Trump gets another Supreme Court nomination (or two) in the coming years, who knows what might be possible?
The primary problem will be keeping our “friends” from bartering their birthright for a "pottage of lentiles."