Clarence Thomas on Gun Rights and the Privileges or Immunities Clause

As Jacob Sullum noted below, the Supreme Court issued its long-awaited decision in McDonald v. Chicago this morning, ruling that the Second Amendment is incorporated against the states via the Due Process Clause of the 14th Amendment. This is a major victory for gun rights—as it opens the door for legal challenges to countless state and local gun control laws and finally gives the Second Amendment its due alongside the rest of the Bill of Rights—but it’s not the victory it should have been. That’s because only Justice Clarence Thomas followed the text and history of the Constitution and held that the Second Amendment must be incorporated via the Privileges or Immunities Clause of the 14th Amendment, not the Due Process Clause.

As Thomas notes in his concurrence,

the record makes plain that the Framers of the Privileges or Immunities Clause and the ratifying-era public understood—just as the Framers of the Second Amendment did—that the right to keep and bear arms was essential to the preservation of liberty.  The record makes equally plain that they deemed this right necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery. ...

I agree with the Court that the Second Amendment is fully applicable to the States.  I do so because the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship.

Read the full McDonald decision here. Read more about Due Process vs. Privilege or Immunities Clause incorporation here.

Note to libertarian history buffs: Thomas cites both Frederick Douglass and Lysander Spooner in his concurrence.

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  • Esoteric||

    Thomas is, after all these years, still the only SCOTUS justice I'd trust to actually preserve my liberties.

  • Jeffersonian||

    And the first one I'd like to sit down over a plate of ribs and a beer with. God bless this man with a long, long life.

  • ||

    "The man is on the Court. You know, I hope his wife feeds him lots of eggs and butter and he dies early like many black men do, of heart disease. Well, that’s how I feel. He is an absolutely reprehensible person."

    http://en.wikipedia.org/wiki/Julianne_Malveaux

  • Jeffersonian||

    I remember that, Julie, and I recall how it made me think you were such a nice person.

  • DanHan||

    You are a gravy sucking pig with the moral turpitude of slime ball. Eat s and die.

  • ||

    Like when he helped name George W. Bush president instead of allowing the votes to actually be counted?

  • Jeffersonian||

    Mmmmmmmmm

  • ||

    HURR DURR GORE WOULD HAVE BEEN BETTER

    HUURRRR DURR HUURRRRR DUUURRRRR!

  • Algore||

    I have a right to federally-funded handjobs!!!!!

  • Mr. Mayday ||

    No, no, no, no, he wasn't pushing for Gore, he was pushing for Nader.

  • The Angry Optimist||

    Like when he helped name George W. Bush president instead of allowing the votes to actually be counted?

    I don't remember that.

  • marlok||

    I don't know Thomas' entire body of work well enough to comment on it, but his opinion linked above is pure poetry.

  • RATFUCKER||

    Note to libertarian history buffs: Thomas cites both Frederick Douglass and Lysander Spooner in his concurrence.

    LONG DONG SILVER! Scalia's BITCH! Bong Hits For Jesus! Searching Teenage Girl's Underwear For Advil!

    Just thought I'd get that out front. Thankfully the ranks of those commenters grow thinner.

  • ||

    My favorite is Thomas' motto: "Affirmative Action for Me, But Not for Thee".

  • Jeffersonian||

    The grinding of your teeth is like sweet music from the harps of angels, comrade. Please continue.

  • Michael Ejercito||

    The grinding of your teeth is like sweet music from the harps of angels, comrade. Please continue.


    He sounds like a Klansman whining about Brown v. Board of Education .

  • ||

    Or the passing of the Grand Cyclops.

  • EscapedWestOfTheBigMuddy||

    Right.

    Because you can be in favor of letting high school principals strip search young girls and still be a good person.

    It's just possible that he's the best we've got right now, but that doesn't make him a friend of liberty.

  • ||

    BFF? No. But surely a friend.

  • EscapedWestOfTheBigMuddy||

    Nope.

    Principals strip searching young girls is beyond the pale. And the idea that the war of drugs somehow conferred that power is idiocy: are we to believe that if congress decides to pass a national war on transfats that principals can strip search people in search of oleo? Nonsense.

    I'm not going beyond "only occasionally an enemy".

  • Fluffy||

    I think he is a friend of clockwork law.

    Since in his clockwork, schoolchildren have no rights, he's willing to follow that all the way into the fucking pit if need me.

    That's not great for outcomes if you're a schoolkid.

    But a different part of his clockwork says that the Constitution means what it says, and we need justices who will embrace that no matter what the consequences to existing institutions or ways of doing the public's business.

  • EscapedWestOfTheBigMuddy||

    This seems the likely reason for the inconsistency.

  • ||

    It's not an inconsistency. It's an almost frightening consistency.

    Remember that the other Justices in that case all took a "it depends on the circumstances" view of what kind of searches was allowed. The rest of the Court agrees that minors don't quite have full rights, and that in loco parentis partially applies. They scratch their heads trying to figure out exactly what is too far, and decide that they'll know it when they see it. They agree that there could be a search, but perhaps not a particularly humiliating one.

    Thomas is not particularly interested in that sort of "it depends" jurisprudence that turns on complex balancing questions and details of the circumstances. For him, it was fairly simple. Everyone conceded that schoolchildren don't have full 4th Amendment rights, and that some search was permissible. Once that boundary line has been crossed, he wasn't particularly interested in saying that some searches were allowed but not others.

  • T||

    Yup. The law is what the law is, and if that produces shitty results, it's not his job to change it if it is consistent with the Constitution.

  • ||

    Justice Thomas is an incredibly committed formalist. He cares about the logical consistency and the forms of law; issues of morality and justice are the concerns of the legislature.

    He doesn't even care about stare decisis.

  • ||

    Issues of justice aren't the concerns of Justices of the Supreme Court? WTF? All 9 who didn't say, "Wait for the parents to consent of the search and if those parents demand a warrant, wait for the warrant" are wrong, so I guess all 9 are wrong. This is so easy, it is appalling so few understand it.

  • Fluffy||

    Can someone summarize what the 4 justices in the minority wrote for me? I don't have the stomach to look at it myself.

  • ||

    Beyer gave four reasons. They are all stunningly ignorant and false.

    1. There is no popular consensus” that the right is fundamental;

    2. The right does not protect minorities or persons neglected by those holding political power;

    3. Incorporation of the Second Amendment right would “amount to a significant incursion on a traditional and important area of state concern, altering the constitutional relationship between the States and the Federal Government” and preventing local variations; and

    4. Determining the scope of the Second Amendment right in cases involving state and local laws will force judges to answer difficult empirical questions regarding matters that are outside their area of expertise.

  • Michael Ejercito||

    1. There is no popular consensus” that the right is fundamental;


    We now know how Justice Breyer would rule in Perry v. Schwarzenegger .

    3. Incorporation of the Second Amendment right would “amount to a significant incursion on a traditional and important area of state concern, altering the constitutional relationship between the States and the Federal Government” and preventing local variations; and


    Incorporation of the First Amendment amounted to the traditional and important area of speech regulation by the states.

    Determining the scope of the Second Amendment right in cases involving state and local laws will force judges to answer difficult empirical questions regarding matters that are outside their area of expertise.


    That is what judges do.

  • West Texas Boy||

    That is what judges do.

    No shit.

    What he is literally saying here is, "This is Illinois and they're sophisticated and since they have already written a law with which I would agree, I will defer to their expertise. But if the shoe was on the other foot, OF COURSE I would insert myself and overrule whatever troglodyte law some yahoo in Mississppi might come up."

    blech

  • Jeffersonian||

    Christ, what thin gruel. I can't believe the vote wasn't 9-0 for incorporation, but reading this it's clear what lies at the root is pure, unadulterated intellectual dishonesty.

  • qwerty||

    That's what scares me. Obama is just one justice away from destroying the 2nd amendment. We got this ruling by the skin of our teeth.

  • marlok||

    Damn right.

    I would be celebrating, but the 5-4 thing makes it a cause for concern. Conservative justices will probably never overturn Roe v. Wade, but the liberals wouldn't hesitate a millisecond if they thought they could overturn this ruling and effectively nullify the 2nd amendment.

  • ||

    2. The right does not protect minorities or persons neglected by those holding political power;

    Sounds like an excellent argument for why "may issue" carry permits are constitutionally suspect, and "shall issue" permits that don't depend on the whims of those holding political power as much are better.

  • Llama Face||

    I keep trying, but I can't make my brain do the contortions required to understand this...how does incorporating a Constitutionally protected right onto the States NOT protect minorities or persons not in political favor? It would seem to me, who is admittedly NOT a legal scholar (although still a fairly smart cookie) that it would do just the opposite- protect minorities who are more vulnerable to government abuse of their rights. How did we get retards on the Supreme Court? Did the dissenters win the Brawndo sweepstakes?

    I have to stop scratching my head over this because I am starting to bleed....

  • robc||

    Re #3 - THAT WAS THE FUCKING PURPOSE OF THE 14TH AMENDMENT, YOU FUCKING MORON.

    That was aimed at Breyer, just wanted to make that clear. The 14th amendment was about limiting local variations, like wgt slavery (yeah, the 13th took care of that, but you know what I mean).

  • Mr. Mayday ||

    This comment needs to be promoted vigorously.

  • Astrid||

    2. The right does not protect minorities or persons neglected by those holding political power;

    So could someone translate into newspeak for me how prohibiting a elderly black man from owning a handgun to protect himself and his property from thugs actually "protects" him. Seriously, just how far up his ass did Beyer have to stick his head to come to that conclusion?

    Allowing citizens, including minorities, to keep guns is part of what protects them from paternalistic ass-hats like you Beyer. That's the fucking point.

  • Llama Face||

    I tried to comprehend the Newspeak, but it gave me an anuerism.

  • Cyto||

    So could someone translate into newspeak for me how prohibiting a elderly black man from owning a handgun to protect himself and his property from thugs actually "protects" him.

    It keeps him from getting shot and killed by undercover narcotics police in his own front yard as he attempts to scare off unwanted, trespassing drug dealers. There, that wasn't so hard, was it?

  • Astrid||

    Right, because the police have never shot an unarmed black man before.

  • ||

    Nope. Never.

    Whether the gun appeared before or after the shooting is irrelevant.

  • Cthorm||

    I'll give it a shot:

    Second amendment privileges doubleplus ungood. Ungood bellyfeel. Only goodthinkers can be permitted to own guns, consistent with blackwhite. Crimethinkers must be protected from ThinkPol vaporization due to gun ownership.

  • Astrid||

    Sadly I think that still makes more sense then the rational that one needs in order to not see the issues in Breyer's point. At least the good guys (mostly) won this one.

  • Brett L||

    I'm sorry, did they just become States' Rights fans? Isn't that dog-whistle for racist?

  • Jeffersonian||

    Boom!

  • ||

    So if somebody was to bring a gun into the Supreme Court chambers, Thomas and the the other four would be fine with it?

  • ||

    Don't be his porn.

  • ||

    I am quite sure Thomas would be. Indeed, the Supreme Court has its own police force who all are armed.

    Keep crying Dan. We actually are enjoying your tolling today. You have no idea how happy your tears make us.

  • rho||

    How much time did you spend in high school crammed in your locker, smelling your own farts?

  • Ska||

    He drives a Prius?

  • PicassoIII||

    Quoting Daley II = LAME.

  • ||

    Yummy, salty tears....

  • Liberal Ignoramus||

    Clarence Thomas is a raving right wing lunatic, and a traitor to his race.

  • Johnnybegood||

    You forgot "Uncle Tom."

  • West Texas Boy||

    And "Scalia's Houseboy".

  • Michael Ejercito||

    So if somebody was to bring a gun into the Supreme Court chambers, Thomas and the the other four would be fine with it?


    Lawrence v. Texas struck down anti-sodomy laws.

    Does that mean that you can enter the Supreme Court chambers with your lover and get boned in the ass right there in front of the justices?

  • Jeffersonian||

    What do you think the SCOTUS is, the Episcopal Church?

  • RATFUCKER||

    Lol!!!

  • Liberal Ignoramus||

    Dan, I like the way you think. Kerry won too.

  • Tman||

    This is yet another opinion that shows that Thomas is clearly the most protective of individual rights and liberty afforded via the constitution. People like to argue that he follows Scalia on everything, but this is so much bullshit. Thomas continually comes up with original opinions based upon the historical roots of the constitution.

    Thomas is the anchor of the SCOTUS in terms of limiting the power and scope of the federal government right now, and considering the current administrations policies, I don't want to imagine what would happen without him.

  • ||

    This is yet another opinion that shows that Thomas is clearly the most protective of individual rights and liberty afforded via the constitution.

    As long as you aren't a minor.

  • robc||

    Yep. Minors (In Thomas's world) dont have rights so that isnt a problem. Or something like that.

  • ||

    And in the rest of the SCOTUS's world, minors have some kind of nebulous half-rights, particularly in school. But Justice Thomas doesn't do things halfway.

  • ||

    If they don't have rights, then their parents would have to consent to searches or demand a warrant for a search. So, Thomas could have been consistent and still criticized the search, but he didn't because like the rest, people make mistakes and do stupid things. In loco parentis is stupid. I am my child's parent. My wife is my child's parent. No one else is, ever. Her grandparents, her aunts and uncles, her daycare providers, her parents friends when with them, all care for her due to my consent or that of my wife. The same goes for teachers and school administrators.

  • Give it time||

    The Constitution refers to men, people, citizens(*). It never says "adults". But practice since forever has taken to assume that the Constitution only means adults when it says people. Like the wording of "men" today means "men or women" but originally did mean "men only", a time will come when "people" will mean "adults and minors". For the time being, I am much more comfortable with no rights to minors than with no rights to anyone - even if it's obviously not what I really want.

    (*) In turn, some of the rights of citizens are extended to (legal, at least) aliens easily, so strictly speaking, even "citizens" is today read more broadly than it would be if it were read literal.

  • ||

    Constitutional Rights are not extended to citizens, nor restricted from aliens. Rights are afforded to people in a jurisdiction, namely the United States and it's territories and possessions. Otherwise citizens abroad would have rights as they do here, but that is not the case. A foreigner visiting the US has to follow the laws of the US when in the US.

  • ||

    I love how Thomas pisses all over stare decisis. Seriously. There's such a tremendous body of crappy SCOTUS decisions. At least he doesn't come to the table feeling handcuffed by them.

  • ||

    That is the big difference between him and Scalia. Thomas has the balls that Scalia pretends he has. Scalia acts like a hell raiser, but when it comes down to it he admits that he would rather keep bad law that upset precedent. Thomas gives bad law no such deference.

  • robc||

    Yep, Scalia doesnt like chaos. Thomas might be a discordian (although one with a weird attitude towards school administrators).

    Hail Eris!

  • RATFUCKER||

    no hot dog buns

  • ||

    Here's a hypothetical. Imagine a Swedish-style system of public schooling where all funds follow the student, but there's a "public option." Does Justice Thomas's opinion on school administrators become more palatable in that case? I'm fairly certain that it becomes less palatable in a situation where private schooling is outright outlawed.

  • ||

    That is the big difference between him and Scalia. Thomas has the balls that Scalia pretends he has.

    I don't even think it's about "balls". It's about intellectual honesty. Scalia is a results based disingenuous prick who only pays lip service to the "originalism" when it has a preferred outcome.

    Thomas isn't as concerned about the effects of the rulings and tries to be philosophically consistent and intellectually honest.

    Thomas is willing to rule opposite of what he would personally prefer, Scalia not so much.

    Thomas seems takes his job seriously, while Scalia tends to want to use his position to push his worldview.

  • robc||

    I remember seeing a Scalia interview in which he basically said he isnt willing to overturn a century of precedent just because that is the right decision if it would throw the country into chaos. He would prefer to roll back to that, instead of doing it all at once. Thomas, on the other hand, doesnt give a fuck.

    While I think some of it is what you say (Raich), I think other times its just Scalia not rocking the boat. Basically, see his concurrence today. You can tell his philosophy is closer to P&I, but that isnt going to pass, so might as well use due process, even though its the wrong thing. Cant go overturning the Slaughter House cases all at once.

  • The Angry Optimist||

    robc - no. Dead wrong. I mean, when you say "isn't going to pass", what does that even mean? If he wants to sign onto P&I and get rid of SDP, then do it already. What's he waiting for?

    By signing onto SDP, he's sacrificed the principled for the politically expedient and has, in fact, reinforced a judicial concept he allegedly hates. That does not make sense.

    What does make sense is that he pretends to be principled but is, in fact, a Utilitarian at heart. Which makes him anathema to me.

  • ||

    It means "stare decisis." There's a belief that consistent laws and rulings have a certain value by themselves. We can all agree that custom has a certain value-- people may have opinions on whether to drive on the left or the right side of the road, but once it is settled, if the Court or legislature were to switch back and forth every few years it would be far worse than just picking a side and staying with it, even to most people who would have originally argued for the side that lost.

    Someone investing in a career might disapprove of regulations controlling who can enter it, but they'd hate it even more if the rules kept changing on them mid-stream. If you want to start a business selling something, you might prefer knowing that you can't do it from the start to the laws constantly changing.

    Almost all justices pay some lip service to stare decisis. Almost all also find some reason to overcome it when things are "important enough," and each Justices bias comes into play then.

    Justice Thomas alone pretty much doesn't believe in stare decisis. If it's wrong, it's wrong. But for any judge that does, a century of precedent is a lot, especially when there's an alternative method to get to nearly the same result.

  • The Angry Optimist||

    Except Scalia does not normally support precedent on the ICC...except when he does (e.g. Raich). Now why would he go against himself in Raich?

  • ||

    You can argue about Raich all you want; like I said, the problem with most Justices and stare decisis is that you overrule it "only when it's really pressing," and that's a big loophole to let bias through.

    This case, however, the stare decisis argument is pretty obvious.

    This is exactly the result that I predicted here before the case.

  • ||

    I don't think this ruling is all it's been made it out to be. Since the Supreme Court refused to make gun ownership a Privilege or Immunity (see 14th Am), handgun bans are still ok so long as due process is given. That's the whole point of the ruling: if gun ownership is a Privilege or Immunity, then it is beyond the government's authority to regulate. By denying that status, the Supreme Court in the long run changes nothing, because now we're only arguing about how bans are enacted and not the government's right to enact them in the first place.

  • ||

    You need to read up on Substantive Due Process.

  • ||

    ...once the federal courts decide what substantive rights are protected buy Substantive Due Process, it can use Judicial Review to enforce these rights by reviewing all state legislation for compliance with these rights.

    How long does this take, and does it mean I don't need a permit from NY State to open carry or concealed carry a handgun?

  • robc||

    In the long run, I think (or at least hope) Thomas's opinion today is going to have lasting impact. Not quite the sole dissent that gets quoted centuries later, but it could be the start of something. Or not.

  • Michael Ejercito||

    That's the whole point of the ruling: if gun ownership is a Privilege or Immunity, then it is beyond the government's authority to regulate. By denying that status, the Supreme Court in the long run changes nothing, because now we're only arguing about how bans are enacted and not the government's right to enact them in the first place.


    And similarly, since freedom of speech is only incorporated by due process, we are now only arguing about how restrictions on speech are enacted and not the government's right to enact them in the first place.

  • ||

    Yes but there are a hell of a lot fewer restrictions on speech thanks to the incorporation than there would have been had it not been incorporated.

    I think you guys would bitch if you were hung with a new rope.

  • robc||

    If it had been incorporated via P&I, there would be less restrictions than via due process.

  • ||

    I think EVERY American should be armed at ALL times. The crime rate would literally vanish.

    Lou
    www.real-anonymity.se.tc

  • bubba||

    If Thomas had relied on Due Process, he'd have to rethink his dissent in Lawrence vs Texas. On the contrary, Thomas thinks States should be allowed to regulate all kinds of things.

    The (black) history of gun bans, on the other hand, leads him to view gun ownership as a Privilege or Immunity of Citizens. He's correct on this mark, but don't over extrapolate from this ruling with respect to personal liberties.

    Maybe this is just another example of Blacks looking out for themselves, but still hating gays? :)

  • ||

    If Thomas had relied on Due Process, he'd have to rethink his dissent in Lawrence vs Texas.

    But not very much. Gun rights are pretty obviously mentioned in the Constitution; gay rights quite a lot less.

  • ||

    Remember too, that Thomas went out of his way to note that the Texas sodomy law was a bad law. He frequently makes a point of pointing out what he would like versus what the constitution and the law allow.

    He made a separate concurrence in a case in the nineties that while the Clinton Administration's policy towards Haitian refugees was racist, immoral, mean-spirited and inhumane, it was nevertheless within the powers of president under the Constitution.

    We should always avoid the temptation to make the COTUS say what we want it to.

  • Anonymous Backstabber||

    Spooner in da house!!

  • Stephanie||

    Like I needed another reason to like Justice Thomas.

    The comments on this article are almost more interesting, and certainly more entertaining, than the article itself.

  • ||

    Don't forget, y'all. . .

    CCW permit holders are allowed in the Texas State House & Washington is open carry & the State House there is even more libertine about the proper exercise of our 2nd amendment rights there.

    My question on the ruling is will it affect any previous Federal firearms legislation?

    tD

  • ||

    To continue defending Thomas: he did vote on the right side of Raich, in the 6-3 dissent against the commerce clause's power to allow federal "regulation" of medical marijuana.

  • ||

    Consider Thomas's opinion in FCC v. Fox. He agreed on the matter of administrative law, but then wrote separately to indicate that the entire basis of FCC regulation (Red Lion and Pacifica) was suspect.

  • ||

    Wouldn't it be something if we could get his wife elected president. Man would that mess with the left's head.

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