June 02, 2020
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Justice Thomas dissents from Supreme Court decision not to review California gun law

Pablo Martinez Monsivais | AP
Pablo Martinez Monsivais | AP
Supreme Court Associate Justice Clarence Thomas sits as he is introduced during an event at the Library of Congress, Thursday, Feb. 15, 2018, in Washington.

The Supreme Court on Tuesday turned down a request from gun rights activists to examine California’s 10-day waiting period for firearm sales, prompting Justice Clarence Thomas to say his colleagues are turning the Second Amendment into a “disfavored right.”

Thomas was alone among the justices to note his dissent from the court’s refusal to review a ruling from the U.S. Court of Appeals upholding California’s law, which is similar to one in the District of Columbia and eight other states.

Thomas said the 9th Circuit’s ruling was “symptomatic of the lower courts’ general failure to afford the Second Amendment the respect due” a constitutional right.

“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.”

Thomas’s 14-page dissent comes as gun control has again dominated the national conversation following the mass shooting at a Florida high school, in which 17 people were killed.

With limited exceptions, California requires a 10-day waiting period for the purchase of any firearm. The state says it needs the time to complete background checks and for a “cooling off period” for those who might be buying a gun to hurt themselves or others.

It was challenged by two men who already are in California’s database as gun owners and who have valid concealed-carry licenses.

Thomas criticized the appeals court for relying on a “common sense understanding” that cooling-off periods deter violence and self-harm. That is not the kind of rigorous examination required of laws restricting an enumerated constitutional right, Thomas wrote.

“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.”

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