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Paul Schmehl @PaulSchmehl
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Jeff McLean’s tweet prompts me to do something I’ve thought about for a long time. Talk about Justice Clarence Thomas
As many of you know, Thomas has been sneered at and ridiculed a lot by the liberal press

cnn.com/2016/02/29/pol…

And by liberals on twitter
twitchy.com/loriz-3139/201…
The fact that he doesn’t ask questions during arguments tells you nothing about him. The assumption is he’s either stupid, has already made up his mind, or could care less about hearing the arguments
But there is one case that Thomas commented on that shows he’s more insightful than even Alito.
The case? DC vs Heller The famous 2nd Amendment case that decided that “The ban on registering handguns and the requirement to keep guns in the home disassembled or nonfunctional with a trigger lock mechanism violate the Second Amendment. “
Here’s a link to the case: oyez.org/cases/2007/07-…
I’ve never seen anyone discuss Thomas’ opinion on this case.
I’m going to have to delay this until I can find the dern thing. All the copies I’ve found don’t include his opinion; only Scalia’s majority opinion and the two dissenting opinions written by Souter and Breyer. When I find it, I will continue, because I want to get this right.
There is a good reason I couldn’t find it. The case was McDonald v. Chicago, the 2nd landmark 2nd Amendment case supremecourt.gov/opinions/bound…
Justice Thomas brought up a very interesting point that no other justice had mentioned. Not the great Samuel Alito, not Justice Scalia, nor any other justice
He wrote: “I write separately because I believe there is a more straightforward path to this conclusion, one that is more faithful to the Fourteenth Amendment’s text and history. I therefore do not join Parts II–C, IV, and V of the principal opinion. “
What Justice Thomas argued, was that the Court had ignored the first clause of the 14th Amendment. Most people are familiar with the second phrase: “nor shall any State deprive any person of life, liberty, or property, without due process of law;”
But haven’t given much thought to the first phrase: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;” Known as the privileges and immunities clause, Thomas argues that the court has made it a nullity
In point of fact, there are very few cases about the privileges and immunities clause but many on the due process clause. Thomas argued that it carry equal weight with the due process clause
And not be ignored, as it has been since Slaughter-House cases of 1873 en.wikipedia.org/wiki/Slaughter…
He goes on to write about the many, many instances when laws were passed that disarmed black Americans so that racists and murdered could predate them without worrying about resistance
Thomas writes “But I cannot agree that it is enforceable against the States through a Clause that speaks only to “process.” Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States
through the Fourteenth Amendment’s Privileges or Immunities Clause. “
His argument captured my attention. Why HAS the Supreme Court ignored the privileges and immunities clause? The privileges and immunities clause certainly refers to the Bill of Rights, which includes the 9th & 10th Amendments.
Not only that, but the Court has ruled frequently on the 1st Amendment (and ignored the 2nd) since our founding. What Thomas is arguing is that our right to bear arms is an immunity, not subject to legal jurisprudence, just as our reserved (not specifically mentioned rights are)
Therefore, given that the 14th Amendment applies to the states, the states have no right to regulate our bearing of arms JUST AS THE FEDERAL GOVERNMENT DOES NOT. This is a critical argument, and it has been ignored completely by the legal profession.
I agree with Thomas. It’s time to restore the privileges and immunities clause to its rightful place, alongside the right to due process and equal to it in its ability to restrict the government’s intrusion in our affairs.
The meaning of § 1’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.
Why would they define those rights narrowly? Because we had just come through a horrible civil war, and many people were not yet willing to accept that Negroes were citizens JUST LIKE THEM.
You really should read his opinion. He recounts the sordid history of predation on black Americans and the gun control laws that were passed to render them helpless to defend themselves.
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.

OUR Supreme Court ruled this. Can you imagine? Now watch this.
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.” Seriously? Lawyers! My God! How do you sleep at night?
What we citizens must burn into our brains is, if they can do this to blacks, they can do it to anybody. No one is safe so long as the Constitution is interpreted in such a slipshod and biased manner. Do you need to be a lawyer to understand this? No!
Either we ALL have the same rights. Or NONE of us do. According to our Declaration of Independence, God gave us these rights. No government can take them away, but they can certainly suppress them by the use of force.
When SCOTUS rules in such a corrupt manner, WE must oppose them. WE must demand justice for all. WE must demand that THEY follow the Constitution. How does this apply today? Churches being forced to pay for contraceptive devices. Bakers being forced to bake cakes.
“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’s adoption—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.”
Thomas’ argument is a clear and devastating indictment of the Court. And it’s been ignored. It should not be. It should be trumpeted from the rooftops. Because Justice Clarence Thomas understands more about rights and freedom than any other Justice on the Court.
unroll please
When you read the Slaughter House cases, you find it’s a real head scratcher. supreme.justia.com/cases/federal/…
“The second clause protects from the hostile legislation of the States the privileges and immunities of citizens of the United States, as distinguished from the privileges and immunities of citizens of the States.”
What are the privileges and immunities of US citizens? And how do those differ from the privileges and immunities of state citizens? The former refers to the bill of rights. That latter could only be IN ADDITION TO the bill of rights.
IOW, those rights not defined in the Constitution, and thus left to the states and to the people. Yet somehow, this ruling has relegated the privilege and immunities clause to the dustbin of history and elevated the due process clause above it.
Thomas argues (rightly, in my opinion) that this is wrong. That gun control legislation should be viewed in the light of the privileges and immunities clause. IOW, the 2nd Amendment applies to ALL citizens and state laws CANNOT abrogate that right.
To do so does violence to the privileges and immunities clause of the 14th Amendment, which applied the Bill of Rights to the states as forcefully as it did to US citizens. There has been some discussion of Thomas’ dictum, notably on scotusblog: scotusblog.com/2010/06/mcdona…
As Prof. Lund points out, “The Due Process Clause (on which the plurality relied) applies to all "persons" while the Privileges or Immunities Clause (on which Thomas relied) protects only "citizens." “ This is a distinction with a profound difference.
Josh Blackman joshblackman.com/blog/2010/06/2… writes that Thomas has made a stunning argument never before made by any Justice of the Court.
Thomas argues “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.” If only the court would recognize the superiority of Thomas’ argument!
Perhaps some day in the future, the Court will consider Justice Thomas’ arguments and move to a position more consistent with the original meaning of the 14th Amendment. If/when they do, ALL our rights will be more fully protected than they ever have been before.
David Sheshtokas (@shestokas) discusses Thomas’ dictum and expresses hope that it will nudge the Court in the right direction. shestokas.com/constitution-e…
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