FPF filed an amicus brief at the United States Supreme Court in the Second Amendment case of Jackson v. San Francisco arguing that (2) lower courts were applying the sort of “interest-balancing” (lower) scrutiny that was expressly rejected in D.C. v. Heller, and (2) that the Supreme Court should grant certiorari in Jackson v. San Francisco to resolve the case and clarify the standard of scrutiny that should be applied by lower courts.
In our brief, FPF argued:
The Court should grant certiorari to reaffirm key principles concerning the scope and substance of the Second Amendment. In District of Columbia v. Heller, 554 U.S. 570, 635 (2008), the Court held that the Second Amendment confers an individual right to keep and bear arms for self defense, and in McDonald v. City of Chicago, 561 U.S. 742, 778 (2010), confirmed that this right is a fundamental one. Many lower courts have taken great pains to avoid the consequences of these decisions—defying a fundamental constitutional limitation this Court made explicit in Heller: “The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” 554 U.S. at 635 (emphasis in original). Stated another way, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.”
In their dissent from the Court’s denial of certiorari, Justices Clarence Thomas and Antonin Scalia took note of the issues FPF briefed and agreed that the Court should correct intransigent lower court rulings.