Thomas' Principled Jurisprudence in Arms Case

In 1978, Justice Lewis Powell wrote an opinion in the Bakke case asserting that the need for diversity could justify racial preferences in university admissions. No other justice joined this opinion, but because the other justices were split 4-4, Powell's opinion decided the case, and in time his argument has been embraced by a majority of the court. A regrettable result, in my view, but a consequential one.

Last month, Justice Clarence Thomas delivered a similarly decisive opinion in McDonald v. Chicago, the case holding that the Second Amendment's right to keep and bear arms, recognized by the court in 2008 as applying to the federal government, also limits the power of the states.

The other eight justices argued whether that right was fundamental enough to apply to the states under the Fourteenth Amendment's guarantee of "due process of law." Since the 1940s, the justices have been arguing whether various federal rights were fundamental enough to apply to the states under this clause. In McDonald, four justices argued that the Second Amendment was fundamental to the states and four disagreed.

Justice Thomas, writing separately, declined to apply the due process clause. Rather he argued that the Second Amendment applied to the states because the right to keep and bear arms under the Fourteenth Amendment's command that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

Legal scholars have generally considered that the Supreme Court's decision in 1873 in The Slaughterhouse Cases rendered the privileges and immunities clause a nullity. Thomas, who has regularly declined to follow precedent he considers incorrect, argued persuasively that the 1873 case was incorrectly decided.

Certainly it is not a precedent that is an ornament of the law. As Thomas pointed out, the Fourteenth Amendment was passed in 1868 to guarantee the rights of the newly freed slaves. The Slaughterhouse Cases undercut that purpose and made possible the violent subjugation of American blacks that is one of the most regrettable episodes of our history.

And, as Thomas argues in vivid detail, one of the key rights black Americans were deprived of was the right to keep and bear arms. The wisdom of the Founders' inclusion of the Second Amendment in the Bill of Rights is clear from the efforts black Americans made to exercise that right and from the efforts of white racists to deprive them of it.

For many years, "the educated class" has denigrated the Second Amendment and argued that it was outmoded and only concerned national guards. But legal scholars, liberal as well as conservative, demonstrated that the Framers fully intended to protect citizens' rights to arm and protect themselves.

At the same time, empirical evidence has made it clear that gun control laws infringing that right left law-abiding citizens at the mercy of criminals. And empirical evidence in the 40 states that now allow law-abiding citizen to carry concealed weapons has demonstrated that they could be trusted to exercise that right responsibly.

The only alarming thing about the McDonald decision was that it was decided by only a 5-4 margin and could conceivably be reversed later by the court. As a practical matter, it allows reasonable restrictions on firearms while eliminating laws that attempt, futilely, to ban them altogether.

Thomas' colleagues, like many legal scholars, were evidently unwilling to join him in overturning The Slaughterhouse Cases and based their decisions on the privileges and immunities clause, presumably because that might undercut other precedents.

But Thomas, in my view, has the better logical argument. "The notion," he writes, "that a constitutional provision that guarantees only 'process' before a person is deprived of life, liberty or property could define the substance of those rights strains credulity for even the most casual user of words."

As he points out, the Court has used the due process clause to find rights -- notably the right to an abortion -- that are not specified in the Constitution, while at the same time four current justices have also used it to argue that a right specified in the Second Amendment does not apply to the states.

Thomas' concurring opinion points the way to a more principled jurisprudence, based more clearly on the text of the Constitution, while at the same time making the strongest of possible cases that Second Amendment rights are fundamental.

Something that gun control proponents constantly hide from is that nearly every gun control law is based on the subjugation of one or more minority groups: Whether it's based on the NAZI gun control laws (1968 GCA) or keeping guns out of the hands of Black people (NY's Sullivan Act).

The simple fact is that while many useful idiots believe that gun control laws will "protect the people," gun control usually only protects those at the top of the political food chain, and keeps those below chained down.

Mark

“The only alarming thing about the McDonald decision was that it was decided by only a 5-4 margin”

The more I think about 5-4 SCOTUS decisions in our favor the more I like them.
The verdicts we hardcore RKBA types want go well beyond anything the court will produce (like overturning NFA outright); the more comprehensive the potential decision for liberty, the fewer justices will support it out of tyranny or fear or ignorance. Ergo, the bigger the win for us the fewer the justices who will sign the verdict; the bigger the margin of victory the less which is won thereby. It’s a “lowest common denominator” issue: the more in favor, the less which is favored.

In this case, increasing support for a dominant P&I verdict would have cost us a vote and lost us the case. To win at all, the Due Process theory had to prevail; at least Thomas was able to offer a concurring dissent which, as this article notes, gets the boulder rolling in the right direction.

So...I like 5-4 decisions. We win more sooner.

". . . Thomas, in my view, has the better logical argument. 'The notion,' he writes, 'that a constitutional provision that guarantees only 'process' before a person is deprived of life, liberty or property could define the substance of those rights strains credulity for even the most casual user of words.'"

Thomas, here, reveals the kind of analysis and approach Jefferson recommended when he made the following statement on Constitutional interpretation:

"On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and in the debates, and instead of trying what meaning may be squeezed out of the text, or invdnted against it conform to the probable one in which it was passed." - Thomas Jefferson 1823

Then, there is Justice Hugo Black's statement in 1968:

"The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' view of fairness, reasonableness, or justice. I have no fear of constitutional amendments properly adopted, but I do fear the rewriting of the Constitution by judges under the guise of interpretation."

Most excellent.

One thing I would have liked to have seen Justice Thomas mention would have been that even if the Fourteenth Amendment merely prohibited discrimination in whose rights will be honored, and would have permitted a handgun ban that truly applied to everyone, the moment the government were to allow some people to possess handguns, all other free persons would be entitled to do so as well. Since states are forbidden from granting titles of nobility, there would be no basis for granting to government employees rights which are denied to other free persons.

If MacDonald had raised this point earlier, and established on the record that Chicago allows certain Friends of Richard to keep and bear arms, Justice Thomas could have raised the point explicitly rather than conditionally (e.g. could have said "because Chicago does allow Friends of Richard to keep and bear arms, it must allow all free persons to do so".) Nonetheless, I think raising the "equal protection" point--even conditionally--would have been helpful to preempt some of the un"reasonable" restrictions Chicago was obviously going to respond with.

To that, I would add that while it is important that judges honor stare decisis in those cases where the Constitution and statutes would otherwise be ambiguous, legitimate(*) stare decisis must yield to the Constitution and statutes. All too often, stare decisis is regarded as superior, when all legitimate stare decisis is subservient.

(*) If someone adversely relies upon illegitimate stare decisis, it may be proper for a court to consider that in making a judgment; the court should make abundantly clear that the previous decision was illegitimate, and future reliance upon it will no longer be excusable.

The wisdom of the Founders' inclusion of the Second Amendment in the Bill of Rights is clear from the efforts black Americans made to exercise that right and from the efforts of white racists to deprive them of it.

Democrat white racists at that.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.