File photo of U.S. Supreme Court Justice Clarence Thomas in 2013. Credit: Diego M. Radzinschi / ALM

Against the backdrop of a nation struggling again with the tragedy of a school shooting and a debate over guns, U.S. Supreme Court Justice Clarence Thomas, in a blistering dissent Tuesday, accused the U.S. Supreme Court of making the right to keep and bear arms “a constitutional orphan.”

The high court declined, without comment, to review a challenge to California's 10-day waiting period for the purchase of firearms. In the case Silvester v. Becerra, two lawful gun owners and two nonprofits challenged the constitutionality of the state's 10-day waiting period as applied to “subsequent purchasers” who already own a firearm or have a license to carry a concealed weapon, and who clear a background check in less than 10 days.

The waiting period, according to California, is necessary to conduct background checks and to provide a “cooling off” period for individuals who might use a weapon to harm themselves or others. The challengers specifically questioned the state's interest in the cooling off period for individuals who already owned firearms.

In his 14-page dissent from the denial of review, Thomas focused his unhappiness with that decision at both his colleagues and the U.S. Court of Appeals for the Ninth Circuit, which had upheld the waiting period.

The Ninth Circuit, Thomas wrote, applied the wrong standard of review in weighing the constitutionality of the waiting period. Instead of applying a heightened review standard, known as intermediate scrutiny, he said, the appellate court applied the lowest—and least rigorous—standard to the state's regulation: rational basis review. That review was nothing more than a ruling on the basis of that court's “own common sense,” he said.

“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 noted that the high court had not heard argument in a Second Amendment case in nearly eight years, despite a number of challenges reaching the justices during that period. And, he said, the court had not clarified the standard for reviewing gun regulations for almost 10 years.

Thomas, Justice Samuel Alito Jr., and the late Justice Antonin Scalia had dissented many times from the high court's denials of review in Second Amendment cases since the landmark 2008 decision in District of Columbia v. Heller.

“If this case involved one of the court's more favored rights, I sincerely doubt we would have denied certiorari,” Thomas wrote. “I suspect that four members of this court would vote to review a 10-day waiting period for abortions, notwithstanding a state's purported interest in creating a 'cooling off' period. I also suspect that four members of this court would vote to review a 10-day waiting period on the publication of racist speech, notwithstanding a state's purported interest in giving the speaker time to calm down.”

Thomas continued: “Similarly, four members of this court would vote to review even a 10- minute delay of a traffic stop. The court would take these cases because abortion, speech and the Fourth Amendment are three of its favored rights. The right to keep and bear arms is apparently this court's constitutional orphan. And the lower courts seem to have gotten the message.”

The challengers were represented by Erik Jaffe of Washington, D.C. California Deputy Attorney General Jonathan Eisenberg represented California Attorney General Xavier Becerra.

The Supreme Court's order is posted in full below:

[falcon-embed src="embed_1"]

Read more: