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Clarence Thomas rocks my socks

SCOTUS voted 5-4 in favor gun right in McDonald vs Chicago today. The decision means that the 2nd Amendment holds up against the States as well as the Federal Government. The reason is simple, the 14th Amendment confers all the rights (Due Process and Privileges or Immunities) of the Federal Government to the citizens of the States. Writing for the majority Justice Alito, (joined by Robers, Scalia and Kennedy) says the following:

The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner.

Substantive refers to the Due Process clause of the 14th Amendment. Yet, Justice Thomas writes in a separate concurrence:

The meaning of (14th Amendment)’s next sentence has divided this Court for many years. That sentence begins with the command that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” On its face, this appears to grant the persons just made United States citizens a certain collection of rights—i.e., privileges or immunities— attributable to that status.
This Court’s precedents accept that point, but define the relevant collection of rights quite narrowly. In the Slaughter-House Cases, 16 Wall. 36 (1873), decided just five years after the Fourteenth Amendment’s adoption, the Court interpreted this text, now known as the Privileges or Immunities Clause, for the first time. In a closely divided decision, the Court drew a sharp distinction between the privileges and immunities of state citizenship and those of federal citizenship, and held that the Privileges or Immunities Clause protected only the latter category of rights from state abridgment.

Chief among those cases is United States v. Cruikshank, 92 U. S. 542 (1876). There, the Court held that members of a white militia who had brutally murdered as many as 165 black Louisianians congregating outside a courthouse had not deprived the victims of their privileges as American citizens to peaceably assemble or to keep and bear arms. Ibid.; see L. Keith, The Colfax Massacre 109 (2008).According to the Court, the right to peaceably assemble codified in the First Amendment was not a privilege of United States citizenship because “[t]he right . . . existed long before the adoption of the Constitution.” 92 U. S., at 551 (emphasis added). Similarly, the Court held that the right to keep and bear arms was not a privilege of United States citizenship because it was not “in any manner dependent upon that instrument for its existence.” Id., at
553. In other words, the reason the Framers codified the right to bear arms in the Second Amendment—its nature as an inalienable right that pre-existed the Constitution’sadoption—was the very reason citizens could not enforce it against States through the Fourteenth.
That circular reasoning effectively has been the Court’s last word on the Privileges or Immunities Clause.1 In the intervening years, the Court has held that the Clause prevents state abridgment of only a handful of rights, such as the right to travel, see Saenz v. Roe, 526 U. S. 489, 503 (1999), that are not readily described as essential to liberty.

Justice Thomas lays some serious smack down on the previous Courts narrow interpretation of the Privileges clause. He also berates the current Court for following the messy Due Process clause instead of the Privileges Clause.

While this Court has at times concluded that a right gains “fundamental” status only if it is essential to the American “scheme of ordered liberty” or “‘deeply rooted in this Nation’s history and tradition,’” ante, at 19 (plurality opinion) (quoting Glucksberg, 521 U. S., at 721), the Court has just as often held that a right warrants Due Process Clause protection if it satisfies a far less measurable range of criteria, see Lawrence v. Texas, 539 U. S. 558, 562 (2003) (concluding that the Due Process Clause protects “liberty of the person both in its spatial and in its more transcendent dimensions”). Using the latter approach, the Court has determined that the Due Process Clause applies rights against the States that are not mentioned in the Constitution at all, even without seriously arguing that the Clause was originally understood to protect such rights. See, e.g., Lochner v. New York, 198 U. S. 45 (1905); Roe v. Wade, 410 U. S. 113 (1973); Lawrence, supra.
All of this is a legal fiction. The notion 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. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish “fundamental” rights that warrant protection from non fundamental rights that do not. Today’s decision illustrates the point….(STEVENS, J., dissenting) (warning that there is no “all-purpose, top-down, totalizing theory of‘liberty’” protected by the Due Process Clause). But any serious argument over the scope of the Due Process  Clause must acknowledge that neither its text nor its history suggests that it protects the many substantive rights this Court’s cases now claim it does.
I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This Court’s substan-tive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. I believe the original meaning of the Fourteenth Amendment offers a superior alternative, and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed.

So what rights in the 14th can protect with “greater clarity and predictability”? The Privileges or Immunities Clause that’s what!

But for purposes of discerning what the public most likely thought the Privileges or Immunities Clause to mean, it is significant that the most widely publicized statements by the legislators who voted on §1—Bingham, Howard, and even Hale—point unambiguously toward the conclusion that the Privileges or Immunities Clause enforces at least those fundamental rights enumerated in the Constitution against the States, including the Second Amendment right to keep and bear arms.

Even opponents of Fourteenth Amendment enforcement legislation acknowledged that the Privileges or Immunities Clause protected constitutionally enumerated individual rights.

I’m a big fan of the Privileges or Immunities Clause. I have written before that a proper interpretation of that clause would have negated the need for the Civil Rights Act of 1964. Justice Thomas’ smack down of the Due Process clause in favor of the Privileges Clause pretty much makes him my favorite Justice right now. I used to think Scalia was alright, but his worrying that the if the Court would have favored McDonald via the Privileges or Immunities would undercut years of Court precedent is unfortunate. I think he is just being lazy. Thomas even acknowledges that in his concurrence.

Moreover, as judges, we interpret the Constitution one case or controversy at a time. The question presented in this case is not whether our entire Fourteenth Amendment jurisprudence must be preserved or revised, but only whether, and to what extent, a particular clause in the Constitution protects the particular right at issue here. With the inquiry appropriately narrowed, I believe this case presents an opportunity to reexamine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it.

So now the question is, why makes Liberals not like the Privileges or Immunity Clause?


Damon Root provides some commentary here.

Randy Barnett provides some commentary here. Barnett notes that since Alito’s opinion doesn’t contradict anything Thomas said, that Thomas’ opinion can and should be used as precedent in other cases. I’m no lawyer, but if Barnett likes it, then I’m all for it as well.

Neither Justice Alito for the plurality, nor Justices Stevens or Breyer in dissent, even attempted to impeach Justice Thomas’ analysis, which now stands uncontradicted in the Supreme Court Reports.  Decades of academic research that has lead to a remarkable consensus among constitutional scholars that The Slaughter-House Cases was wrongly decided have now been vindicated.

Categories: SCOTUS
  1. yttik
    June 28, 2010 at 21:14

    LOL, you’re going to liberal purgatory for praising Justice Thomas!

    I just read Scalia’s opinion when he shot down non disclosure of those petition names. It was really good, he spoke about civic courage and how this behavior does not resemble the home of the brave. Now Justice Thomas, he went and dissented on that case.

    • June 29, 2010 at 13:26

      Right! Liberal Heresy! Well I’m already pariah anyway so may as well go the full monty!

  2. Seth
    July 2, 2010 at 13:06

    So, help me out here. Did Thomas just say that the 14th Amendment means what it says and that folks are idiots for pretending it says something else?

    • July 2, 2010 at 13:28

      I think Justice Thomas was saying that, yes the 14th extends every right under the Constitution to anyone in the Union. As I said, we never think that a State can restrict our freedom of speech, because it’s protected in the Constitution. But it only applied to the citizens of the States after the 14th was ratified. I think Thomas was more going after how the Courts have over used the Due Process clause into things that it were never intended, just like how the Commerce Clause has been so overused that it almost meaningless now, thank you Wickard V Filburn.
      Thomas is going after the Slaughterhouse cases, which gutted the 14th of protections under the Privileges clause. Thomas, as do I, see the Privileges Clause has having a more substantive basis for protections of rights under the Constitution. The Due Process clause was originally intended to only protect people after violations occurred. So after a State had violated a right, then Due Process kicks in. Whereas the Privileges clause is what extended those rights in the first place.
      So yes, Thomas is going after all the court precedent before him that looked passed the Privileges clause. He goes after Scalia indirectly for his preference for the Due Process over P&I clause, because Scalia is afraid of overturning precedent. Remember that this is the same Scalia that is supposed to be an originalist, maybe he lost his balls somewhere along the way. Either way, as Barnett noted, since none of the other justices even attempted to criticize Thomas concurrence, maybe lower courts will start referring to Thomas’ concurrence when citing McDonald V Chicago.
      We know municipalities are going to pass laws challenging McDonald, if some courts strike down those laws based on Thomas’ reading…then we are all better off for it.

  3. Seth
    July 2, 2010 at 14:18

    Great comment. Thanks. That helps! Somehow, I don’t quite have that confidence in the lower courts. But, like you said, if “some courts” do, then we are better off for it. Good stuff.

    • July 2, 2010 at 14:46

      I’m optimistic because of what happened in New Orleans with the Moratorium judgment. That judge’s argument is strengthened by Justice Thomas’ arguments. The Privileges and Immunities of the citizens that are negatively affected are being trumped by political posturing. I can see Thomas’ arguments being used in such away against asinine government dictates.

      We’ll see….somehow we always make it through these things, and usually for the better….remember we never could have totally discredited socialism if not for Stalin, Mao, Pol Pot, and Hitler. I wish that none of that would ever have happened but you have to look at the positives as well.

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