SCOTUS will not review preliminary injunction issue in Jackson v. San Francisco

[KyJim]

The Supreme Court today denied review of Jackson v. San Francisco, 746 F. 3d 953 (9th Cir. 2014) available at https://scholar.google.com/scholar_c...as_sdt=4000003. The 9th Circuit had refused to overturn the district court's denial of a preliminary injunction sought by the plaintiff gun owners against enforcement of an ordinance which required firearms to be locked up in the home.

Justice Thomas wrote a dissent, with which Justice Scalia joined. It is available at http://www.supremecourt.gov/opinions...4-704_jiel.pdf. Dissents from denial of a cert petition are fairly unusual, though certainly not rare. Justice Thomas wrote:

The decision of the Court of Appeals is in serious tension with Heller. We explained in Heller that the Second Amendment codified a right “ ‘inherited from our English ancestors,’ ” a key component of which is the right to keep and bear arms for the lawful purpose of self-defense. 554 U. S. , at 599. We therefore rejected as inconsistent with the Second Amendment a ban on possession of handguns in the home because “handguns are the most popular weapon chosen by Americans for self-defense in the home” and because a trigger-lock requirement prevented resi - dents from rendering their firearms “operable for the purpose of immediate self-defense.” Id. , at 629, 635. San Francisco’s law allows residents to use their handguns for the purpose of self-defense, but it prohibits them from keeping those handguns “operable for the purpose of im - mediate self-defense” when not carried on their person. The law thus burdens their right to self-defense at the times they are most vulnerable—when they are sleeping, bathing, changing clothes, or otherwise indisposed. There is consequently no question that San Francisco’s law burdens the core of the Second Amendment right.

The dissent went on to note conflicts in the lower courts on the standard of review. This is not the final word since the issue on appeal only involved a preliminary injunction. The issue could resurface when the case is final and the Supreme Court could decide to review the decision at that point. Other justices may simply not want to weigh in on such an important issue when it is procedurally complicated by the requirements for a preliminary injunction; e.g. the need to show irreparable harm. Nevertheless, the decision is a bit discouraging.

[bandaid1]

Maybe this was just a "once over the bow" situation, warning to the court to look at the Heller case and not get creative. At lest I hope so. It seems that the law is in conflict with Heller and the SCOTUS has already ruled on this issue.

[KyJim]

Maybe this was just a "once over the bow" situation, warning to the court to look at the Heller case and not get creative. At lest I hope so. It seems that the law is in conflict with Heller and the SCOTUS has already ruled on this issue.

That's putting a very positive spin on a setback. The most positive thing I could think of was that some justices just didn't want to get involved in the preliminary injunction phase.

[maestro pistolero]

All I can say is they better be saving their powder for the mother of all slap-downs, and that better be reason for this denial. That slap-down (should it occur) better foreclose all the fact patterns of every outrageous 2A cert denial of the past 5 years, starting perhaps with Woollard and certainly including Kachalsksy.

If not, I cannot imagine what besides the sharpening of pitchforks would
remain in the constitutional playbook.

[leadcounsel]

Be careful what we wish for.

We won Heller 5-4. Remember the NRA was against applying for Cert with the Court due to a very divided court and a swing vote. I remember holding my breath the morning the verdict came out - it was tense. We could have lost. Very very real thing indeed.

Well, with a 5-4 on Heller, and the POTUS still has time to replaced RBG if she retires, the some of the Justices may wisely know that the timing is bad to hear this sort of case. It takes a long time for a case to work through the SCOTUS. Heller was first disputed in 2002, the SCOTUS agreed to hear it in 2007, and a full year later in 2008 decided the case.

A loss on this SF case would mean sweeping "lock up your gun" laws.

There is a lot of danger right now with hints of RBG retiring, and either Obama or Hillary being able to appoint the next SCOTUS Judge. Kicking the can down the road is better than setting bad precedent.

The timing of Heller was brilliant and a stroke of luck.

We have Heller. I don't want another case to come before the SCOTUS until and unless there's an awesome pro-gun issue and a stacked conservative court with at least 6 conservative members.

A liberal court could easily dilute Heller with a terrible ruling.

[kilimanjaro]

Heller was not the sweeping pro-Second Amendment decision a lot of folks make it out to be. Did anyone really expect the Court to declare the RKBA applied to the military, instead of the people?

The crux of the decision was, to me, the language that the RKBA right could be regulated where a compelling public interest was indicated. That means all kinds of controls, like it or not, can become the law of the land at certain times.

Absent the regulation language, I think Heller would have been 4-5, not 5-4.

[raimius]

Did anyone really expect the Court to declare the RKBA applied to the military, instead of the people?

That's what a lot of opponents in the Heller decision argued. Even (now) President Obama made comments supporting D.C.'s ability to ban handguns.

[leadcounsel]

anyone really expect the Court to declare the RKBA applied to the military, instead of the people?

4 out of 9 SCOTUS Justices felt that it is NOT an individual right! Pretty chilling.

[natman]

This is rather disappointing, because the SF law is in clear contradiction to a point that was explicitly dealt with in Heller. IMO, SCOTUS should have smacked the SF law down on the spot.

However, it's important to keep this in perspective. SCOTUS did not uphold the SF storage law. They merely refused to add an issue regarding a preliminary injunction onto the list of cases they'll hear this year. 99 out of 100 cases submitted don't make the list. They may have decided that there were other cases regarding actual trial outcomes to deal with first.

The case, Jackson Arms v SF, still has to go to trial. IMO, the conflict with Heller is so obvious that even the Ninth Circuit should be able to see it, especially since Scalia and Thomas have now pointed it out.

We shall see.

[thallub]

Heller was not the sweeping pro-Second Amendment decision a lot of folks make it out to be.

Indeed.

Four justices watered it down in order to get a fifth justice, Kennedy, aboard.

[Glenn E. Meyer]

I said that a long time ago. Not that I'm a genius. However, some one time visitor to TFL came on with a tirade on how Scalia was a wily old bird and this was the beginning of the end for firearm restrictons.

Guess not. I think this court spoke its piece and that's that.

[csmsss]

It's unusual (though not unprecedented) for justices to attach written comment when cert is denied. I don't think Thomas would have gone to the trouble of doing so if he thought that the court was just waiting for the fruit to grow ripe (ie waiting to rule on a permanent, as opposed to preliminary injunction). If anything, I sense alarm in his opinion - that what little protection Heller provides is being subjected to slash and burn by the lower courts and the Court idly watching it happen.

Regarding Ginsberg, well...there is a puzzler, but it's irrelevant to this discussion. The loose cannon as always is the idiotic Kennedy. Though he voted our way on Heller (kinda...sorta), he seems to have no rudder whatsoever. I would not be surprised to learn that he decides how to vote based on a coin toss.

[Glenn E. Meyer]

I agree with this. Thomas has it right and the others are just switching into benign neglect.

Without a change in composition, it will just sit. A strong progun justice might be good. A strong anti and Heller goes away.

[maestro pistolero]

For the record, most of the justices on the Heller court disagreed with the collective rights argument. Astonishingly only five thought it applied in DC. And let's not forget we still had five for McDonald, without which we would be stuck with an unincorporated right.

[Tom Servo]

Originally Posted by maestro pistolero

Astonishingly only five thought it applied in DC. And let's not forget we still had five for McDonald, without which we would be stuck with an unincorporated right.

Problem is, the momentum seems to have stalled after that. We've had several pressing cases since then, all of which they've declined to hear. The ban at hand flaunts Heller pretty boldly, but they're letting it stand. That worries me.

[maestro pistolero]

It worries me too. If the court didn't want to grant review it could have issued a summary reversal. They clearly didn't have the votes.

The only (backhandedly) positive possibility I can imagine is that were four justices who would have taken Jackson, but they knew they wouldn't have five to strike it.

So better to leave the question unanswered indefinitely (or until there is a change in the makeup of the court) than to bury the right alive forever.

As I have noted previously, we are not to impute anything on the merits from a cert denial, but the same cannot be said of a dissent to the cert denial. The dissent necessarily stands unopposed and sometimes gives rare insight into how (at least some) judges might decide an issue in the future.

One person asked me why Roberts wouldn't have joined the dissent if he disagreed with Jackson. Again, if there were four for granting certiorari but not five to strike the law, it would be awkward (to say the least) to have a four way dissent when four could have granted certiorari.

People might then question the strategic decision to leave the question for a better day.

Also, the more who join the dissent the more it would tip the hand of other judges as to how they might rule on a similar case in the future. Since the views of Scalia and Thomas are the most predictable on this topic, they would be perfect choices for the dissent while keeping private the views of other justices, especially the chief justice who should appear as neutral as possible.

That's probably enough speculation for one day.