The Supreme Court issued a per curiam decision in Whitton v. Dixon, 608 U.S. ___ (2026), a Florida death-penalty habeas case, sending it back to the Eleventh Circuit to be reconsidered under the correct standard. On its face, the ruling has nothing to do with the right to keep and bear arms. But buried in the dissent is a message that every serious student of the Second Amendment should be reading closely — because of who wrote it, and because of his track record.
The case itself is grim. Gary Whitton was convicted by a Florida jury of stabbing a man to death, and was sentenced to die. After exhausting his appeals in the state courts, he turned to federal habeas corpus, the parallel route by which a state prisoner can argue his conviction was obtained unconstitutionally. The Court did not declare him innocent or order him released. It held only that the Eleventh Circuit had applied the wrong methodology — it leaned on DNA evidence developed a decade after trial, evidence the jury never saw, when assessing whether a jailhouse informant’s false testimony was material — and instructed the appeals court to try again.
A Dissent That Isn’t Really About Habeas
Justice Clarence Thomas, joined by Justice Samuel Alito, dissented. Their objection was not sentimental sympathy for a convicted murderer. It was about consistency. The Court, they observed, has grown increasingly willing to grant summary relief to criminal defendants over minor, likely harmless lower-court errors — while routinely turning away law-abiding citizens whose constitutional injuries are far more consequential. As Justice Thomas put it:
It would be one thing if this practice reflected the Court’s consistent commitment to correcting legal error in all cases. But, in reality, this Court routinely declines to provide relief to law-abiding Americans when it would actually matter, even after lower courts conspicuously flout this Court’s precedents in ruling against them.
That is the heart of it. If the Court will expend its summary docket to fix an “inconsequential foot fault” for a death-row inmate, it can and should do the same when lower courts trample the rights of ordinary Americans who have broken no law.
Why Thomas’s Signals Matter
I have learned to take Justice Thomas’s signals seriously, because history keeps vindicating them. In Printz v. United States, 521 U.S. 898 (1997), he wrote separately to suggest the Second Amendment protects an individual right — eleven years before the Court held exactly that in District of Columbia v. Heller, 554 U.S. 570 (2008). He argued for years that racial preferences in admissions were unlawful; the Court eventually agreed in Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023). He questioned the foundations of Roe; Dobbs later swept them away. When this Justice flags the direction the Court ought to travel, the Court has a way of arriving there.
So when he writes that the Justices should start correcting lower-court errors for law-abiding citizens, I read it as a preview, not a lament.
The Examples He Chose — and the One He Didn’t
Justice Thomas pointed to two non-criminal cases the Court had passed over. One was the Boston exam-school admissions dispute, where school officials adopted a policy designed to reduce the share of white and Asian students and made their intent unmistakable, yet the First Circuit blessed it. The other was a challenge to a university bias-response team that chilled student speech, which lower courts dodged on standing grounds in tension with the Court’s own precedents.
What strikes me is the case category he did not invoke: the Second Amendment. That silence may be the loudest part of the dissent. The lower courts keep committing the same two errors, over and over. They pretend that AR-15s and standard-capacity magazines are not even “arms” within the plain text of the Second Amendment — though Caetano v. Massachusetts, 577 U.S. 411 (2016), already confirmed that instruments useful for armed self-defense qualify. And they keep upholding sweeping “sensitive place” gun bans on the theory that an area is merely crowded — even though Bruen expressly rejected the idea that Manhattan can be declared a gun-free zone because it is densely populated and patrolled.
These are exactly the kind of clear, recurring mistakes that a short summary opinion could fix, just as the Court did here in the habeas posture. The vehicles are already waiting. Duncan v. Bonta, the California magazine-ban litigation, sits at the Court’s doorstep, as does the Washington State magazine case. A per curiam reversal — “go back and apply the right standard” — would take little effort and do enormous good.
I am not predicting it will happen tomorrow. But Justice Thomas has told us where he thinks the Court should go. If the past is any guide, the rest of the Court tends to follow. That is good news, and it is worth watching very carefully.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.