07.07.2010 1

Justice Thomas Offers Concurring Opinion on Second Amendment Case that Deserves Careful Study, Extensive Press Coverage

By Kevin Mooney — Within the academy and the news media, prevailing opinion holds that the Supreme Court’s decision in the 1873 Slaughter-House cases essentially negated the privileges and immunities clause portion of the 14th amendment. Even the more conservative members of the bench, have been incline to defer here to long standing precedent as opposed to original intent.

By contrast, U.S. Supreme Court Justice Clarence Thomas has long argued that Slaughter House was incorrectly decided. Unlike his colleagues, who ruled in favor of extending Second Amendment rights to the states on the basis of the 14 amendment’s due process clause, Thomas argued for restoring the privileges and immunities command to its proper station.

His concurring opinion included as part of McDonald v. Chicago is worthy of closer examination in the news media as it goes into great detail about original of the second amendment and its relevance to contemporary Americans.

The New York Times report that reviewed the major points made by majority and dissenting justices does an effective of encapsulating the divergent arguments. There is no denying the complexity involved in various court cases and the reporter deserves credit for covering a lot of ground in limited space.

However, there is room for a separate piece on the connection between the second amendment and civil rights that is worthy of an additional report. The following few paragraphs reference Justice Thomas’s distinct view without going into great detail:

“Many constitutional scholars had hoped that the court would use Monday’s decision, McDonald v. Chicago, No. 08-1521, to revise its approach to how constitutional protections are applied to, or `incorporated against,’ the states.

They argued that the court should rely not on the due process clause but on the 14th Amendment’s `privileges or immunities’ clause, which says that `no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.’ There is evidence that the authors of the clause specifically wanted it to apply to allow freed slaves to have guns to defend themselves.

But only Justice Thomas signed on for that project.”

Since the 1940s, Supreme Court justices have been arguing about whether or not certain federal rights should also be applied the states. It is evident now that this debate could continue well into the 21st Century.

His concurring opinion could serve as the foundation of future rulings aimed at expanding constitutional rights that have been locked away as the result of long-standing, but constitutionally dubious precedents.

As is typically the case with court decisions that do not break with liberal sentiment, the NYT gives great weight and space to dissenting views. Justices Stephen Breyer and John Paul Stevens are both cited at some length and their opinions are worthy of examination. After all, any 5-4 decision could potentially be reversed over time as new justices are named to the bench. But Justice Thomas could be a pointing the way to a more principled jurisprudence rooted in the fundamental rights of the Constitution.

His opinion was somewhat lost in the coverage this time around but it is very rich, very well research and wide open to ambitious journalists.

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