JUSTICE THOMAS, dissenting from the denial of certiorari.
The Second Amendment protects “the right of the people
to keep and bear Arms,” and the Fourteenth Amendment
requires the States to respect that right, McDonald v.
Chicago, 561 U. S. 742, 749–750 (2010) (plurality opinion);
id., at 805 (THOMAS, J., concurring in part and concurring
in judgment). Because the right to keep and bear arms is
enumerated in the Constitution, courts cannot subject
laws that burden it to mere rational-basis review. District
of Columbia v. Heller, 554 U. S. 570, 628, n. 27 (2008).
But the decision below did just that. Purporting to
apply intermediate scrutiny, the Court of Appeals upheld
California’s 10-day waiting period for firearms based
solely on its own “common sense.” Silvester v. Harris, 843
F. 3d 816, 828 (CA9 2016). It did so without requiring
California to submit relevant evidence, without addressing
petitioners’ arguments to the contrary, and without ac-
knowledging the District Court’s factual findings. This
deferential analysis was indistinguishable from rational-
basis review. And it is symptomatic of the lower courts’
general failure to afford the Second Amendment the re-
spect due an enumerated constitutional right.
If a lower court treated another right so cavalierly, I
have little doubt that this Court would intervene. But as
evidenced by our continued inaction in this area, the
Second Amendment is a disfavored right in this Court.
Because I do not believe we should be in the business of
choosing which constitutional rights are “really worth
insisting upon,” Heller, supra, at 634, I would have granted
certiorari in this case.
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