Gun Club: Clarence Thomas & Our Privileges and Immunities

Speaking of guns, there's been a lot of commentary about Clarence Thomas' concurring opinion in the McDonald v Chicago (that's the "gun rights" case) decision. Thomas wrote a 56-page opinion on why he would have relied on the 14th Amendment's Privileges & Immunities Clause, rather than its Due Process Clause, to reach the decision that the Constitution guarantees an individual right to bear arms that is applicable to the states. This has,of course, sent waves of rapture through the "originalist" community: Is His Gun Control Concurrence Clarence Thomas' Finest Hour?

Commentators on the right and left urged the Supreme Court to reverse the 1873 cases and safeguard the right to bear arms through the Privileges or Immunities Clause. Such a move could have opened an avenue for individuals to claim new rights, some which might have pleased liberals, others which might have pleased conservatives.

Those arguing for resuscitation of the Privilege or Immunities Clause pinned their hopes on Justice Antonin Scalia and Justice Clarence Thomas, both known for their “originalist” approach to constitutional interpretation.

But Justice Scalia on Monday opted, along with Justices Alito and Kennedy and Chief Justice Roberts, to use the Due Process Clause. As Liptak noted, Justice Scalia, in a concurrence, “acknowledged misgivings about using the due process clause to apply Bill of Rights protections to the states” but went along with it “’since straightforward application of settled doctrine suffices to decide it.’”

But in a separate concurrence, Justice Thomas boldly went where no justice has gone before: to the arms of the Privileges or Immunities Clause. He wrote:

[T]he text of the Privileges or Immunities Clause . . . command[s] that “[n]o State shall . . . abridge” the rights of United States citizens . . . the Clause establishes a minimum baseline of federal rights, and the constitutional right to keep and bear arms plainly was among them.

The rationale didn’t carry the day, but many legal commentators were thrilled by Justice Thomas’s concurrence. “He’s sticking with the text of the Constitution,” said Georgetown law professor Randy Barnett, to the Law Blog. “At the same time, nobody voices disagreement with Justice Thomas. And that’s because they can’t.”

Writing at Scotusblog, George Mason’s Nelson Lund cheered Thomas’s opinion:

His opinion is scholarly and judicious, and it cements his standing as the only Justice who is more than a half-hearted originalist.

Barnett and others hope that Thomas’s lone dissent has planted the seeds for a constitutional reawakening rooted in the Privileges and Immunities Clause.

Now, I know that when non-attorneys see phrases like "Privileges & Immunities" and "Clarence Thomas' Concurring Opinion," they start to head towards the exits. Too bad, because Thomas is trying to correct one of the great travesties in the Supreme Court's jurisprudence.

The 14th Amendment famously provides that states cannot deny any person "due process" or "equal protection." The point of this - both at the time of its ratification and afterward - was to prevent the southern states from continuing to treat former slaves as chattel. But, if you actually read the 14th, you will see that it also says that states cannot deny any person the "privileges or immunities" of being a US citizen. What the heck is that all about? Well, the drafters of the 14th Amendment intended that the P&I Clause would extend the protections of national citizenship to the states, but the clause was interpreted into nothingness by a Southern Democrat dominated Supreme Court almost immediately, much to the consternation of people like US Grant (who saw his Anthony Kennedy-esque third choice nominee write the Cruishak opinion that Thomas castigates).

The result did not just set back race relations for a century. It did not simply gut the post-Civil War civil rights acts (passed by the GOP, which continued trying to pass similar legislation for decades afterward). It set blacks back, period. Not only that, the Court was left without a straightforward way to interpret fundamental constitutional rights as applied to the states, leading to the phenomenon of substantive due process, a form of tortured legal reasoning that led to Roe v Wade, and which forms the hysterical backdrop to Supreme Court nomination hearings. But, hey, at least the southern states didn't have to treat blacks as equal citizens, if you're into that sort of thing.

(On a personal note, when I was in law school, we had to spend weeks learning the ins and outs of the Court's substantive due process case law. After a few days of torture, I looked at the 14th Amendment, saw the Privileges & Immunities Clause, and thought "Heck, why not use this?" But, when I raised my hand in class, the professor simply growled something about it being a dead letter. In other words, "we've always done it this way.")

The crazy thing is: there is a lot of agreement on the left and the right that the Slaughterhouse Cases were wrongly decided. There is also plenty of agreement, up to and included some of the liberal justices, that Roe v Wade - the ultimate substantive due process case - was built on the legal equivalent of sand. We thus have a situation where the straight-forward means of analyzing fundamental rights is largely unavailable while the method used since the 1940's increasingly lacks credibility. Yes, I blame overly legalistic Democrats who would play word games, rather than interpret the Constitution in a straightforward manner.

"Stupid" Thomas at least has his finger on a more realistic and intellectually consistent interpretation of the Constitution, which is more than I can say for the legal eagles who went to better law schools than I did. I suspect the average person would also find his jurisprudence to be much more appealing for being cognizable and rooted in the actual language of the Constitution. There is a reason why Thomas is probably the most famous of the current justices, which is also why he is the most despised by the legal left.