The Supreme Court Misses an Opportunity to Defend the 2nd Amendment

Jacob Sullum
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Posted: Jun 10, 2015 12:01 AM
The Supreme Court Misses an Opportunity to Defend the 2nd Amendment
This week, the Supreme Court passed up an opportunity to get the government out of the bedroom. Counterintuitively, the case involved an ordinance adopted by the famously tolerant and progressive city of San Francisco eight years ago.

The puzzle is solved when you learn that the ordinance deals with guns, tools for exercising a constitutional right that is decidedly unfashionable in the City by the Bay. By declining to hear the case, the Supreme Court -- which in 2010 affirmed that the Second Amendment binds states and cities, as well as the federal government -- undermined that principle, suggesting that the right of armed self-defense is constrained by local sensibilities.

San Francisco's ordinance requires that handguns kept at home be "stored in a locked container or disabled with a trigger lock" except when they are being carried. As the six residents challenging the ordinance pointed out in their petition asking the Supreme Court to consider the case, that requirement means "law-abiding individuals must render their handguns inoperable or inaccessible precisely when they are needed most, whenever they are not physically carrying them on their persons -- including when they are asleep in the dark of night."

In District of Columbia v. Heller, the 2008 decision recognizing that the Second Amendment protects an individual right to keep and bear arms, the court overturned a similar restriction in the nation's capital. Writing for the majority, Justice Antonin Scalia said the District's "prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense" violated the Second Amendment.

During oral argument in that case, Walter Dellinger, the lawyer representing the District, said he was able to remove a trigger lock in "three seconds," albeit "in daylight" and not including the time necessary to load the gun. Chief Justice John Roberts suggested that someone awakened in the middle of the night by an intruder breaking in to his home might not be so speedy: "You turn on the lamp. You pick up your reading glasses..."

Although that comment elicited laughter from the audience, the delay caused by such storage requirements is no joke when you suddenly need a gun to protect yourself or your family, a situation in which even a few extra seconds can make a crucial difference. "If I heard an intruder break in to my home in the middle of the night," said Espanola Jackson, the elderly lead plaintiff in the San Francisco case, "I would have to turn on the light, find my glasses, find the key to the lockbox, insert the key in the lock and unlock the box (under the stress of the emergency), and then get my gun before being in position to defend myself. That is not an easy task at my age."

As the U.S. Court of Appeals for the 9th Circuit recognized when it considered Jackson's arguments last year, San Francisco's ordinance "burdens the core of the Second Amendment right" by making it more difficult to use guns for self-defense. The appeals court nevertheless upheld the ordinance, deeming the burden justified by the city's asserted "interest in preventing firearms from being stolen and in reducing the number of handgun-related suicides and deadly domestic violence incidents."

That justification -- which the city added to the ordinance in 2011, after the Supreme Court made clear that local governments must respect the Second Amendment -- sounds a lot like the "freestanding 'interest-balancing' approach" that the court rejected in Heller. Dissenting from the court's denial of Jackson's petition, Justice Clarence Thomas, joined by Scalia, observed that the 9th Circuit's "questionable decision" is "in serious tension with Heller."

Thomas noted that San Francisco's ordinance "burdens (residents') right to self-defense at the times they are most vulnerable -- when they are sleeping, bathing, changing clothes, or otherwise indisposed." The government has no business intruding into these intimate settings, whether by decreeing what can go on in your bed or by dictating what can go into your nightstand.