While U.S. Supreme Court Justice Clarence Thomas concurred with the majority in the landmark 5-4 ruling, he wrote an opinion arguing that there was a constitutionally stronger way to argue that the 2nd Amendment is fully applicable to states than the 14th Amendment's due process clause: He writes in his concurring opinion: "But I cannot agree that it is enforceable against the States through a [due process] 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." Justice Thomas argues that gun rights come as a privilege of American citizenship.
The Wall Street Journal argues that Justice Clarence Thomas's originalist argument is his finest hour: "Understanding why requires us to back up just a bit. In the McDonald case, the justices were asked by the plaintiffs to strike down Chicago’s gun-control ordinance as a violation of the Second Amendment to the Constitution. In order to do so, the justices would have to make two maneuvers. Of course, they’d have to rule that the ordinance runs afoul of the Second Amendment’s prescription that 'the right of the people to keep and bear Arms, shall not be infringed.' But they’d also have to rule that the Second Amendment restricts not just Congress’s ability to make laws controlling the use of guns, but that of state governments as well. Remember, the Bill of Rights, as originally constructed, only applies to the federal government. In order to extend the Second Amendment to laws passed by states or cities, the court was faced with a choice of two clauses embedded in the 14th Amendment. It could 'incorporate' the Second Amendment to the states through the 14th Amendment’s Due Process Clause. Or, pursuant to the 14th Amendment’s Privileges or Immunities Clause, it could deem 'the right to bear arms' one of the 'Privileges' or 'Immunities' that the states are forbidden from taking away. So you’ve never heard of the Privileges or Immunities Clause? We’re not surprised. The clause was largely neutered in a set of cases decided in 1873."
The paper continues: "Those arguing for resuscitation of the Privilege or Immunities Clause [because they believe that the due process clause is insufficient in arguing against state intervention on gun rights] 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 [New York Times reporter Adam] 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."
Even liberals - well, black liberals - are praising Justice Thomas in this case. Rev. Al Sharpton - who favors gun control - says that it was "stunning" that 90% of the callers to his radio show (ahem, black folks) support the ruling. Hot Air, a conservative website, writes: "Speaking of self-defense, and in light of the good reverend’s surprise that his audience might feel this way, for your companion reading I want you to dive into the history lesson tucked away in Clarence Thomas’s concurrence in Monday’s gun-rights decision. Scroll down to page 41 of his opinion (page 107 of 214 in the total PDF document) and go from there. Remember, this was a case about whether the Fourteenth Amendment, which was passed after the Civil War to protect the rights of blacks against racist state governments, guarantees the right to bear arms to an American citizen when the local authorities try to take it away. Thomas’s answer: How could it not, when grabbing guns from slaves and freed slaves was one of the chief means used by states to keep blacks powerless? So striking was Thomas’s argument on this point that WaPo columnist Courtland Milloy — who was last seen threatening to punch tea partiers in the face — wrote a near love letter to him in today’s edition."
Speaking of liberal commentator Courtland Milloy, here's his support for Justice Thomas's "scorcher of an opinion that reads like a mix of black history lesson and Black Panther Party manifesto": "Thomas, the only black justice, sided with the court's conservative majority in a 5 to 4 vote to give Otis McDonald, a 76-year-old black man from Chicago, the right to buy a handgun. In his lawsuit to repeal Chicago's restrictive handgun law, McDonald said he needed a gun to protect himself -- not from a white mob but from young black 'gangbangers' who were terrorizing his suburban Chicago neighborhood [Booker Rising note: Mr. McDonald lives within the city limits]. Thomas agreed with McDonald, concluding that owning a gun is a fundamental part of a package of hard-won rights guaranteed to black people under the 14th Amendment. And just because some hooligans in Chicago or D.C. misuse firearms is no reason to give it up."
More from Mr. Milloy: about Justice Thomas's decision "From Frederick Douglass, Thomas writes: 'The black man has never had the right either to keep or bear arms,' and that, until he does, 'the work of the Abolitionists was not finished.' Because of his conservative take on affirmative action and prisoners' rights, he has been cast as an uncouth African American who didn't understand black history, a dupe for arch conservative Justice Antonin Scalia and a man who couldn't think for himself. What Thomas has created, however, is a legal defense of the Second Amendment so thoroughly original and starkly race-based that none of the white justices would even acknowledge it, as if it were some blank sheet crafted by an invisible man. That ought to be a clue enough for black people that this document is at least worth a look. You may not agree with his conclusion, but there'll be no mistake about where he's coming from."
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McDonald v. Chicago: Clarence Thomas's Finest Hour?
