Ed Brayton, in Dispatches for the Culture Wars, had much the same reaction as I did to the concurrence of Justice Thomas in the case of McDonald v. Chicago (pdf).
This case was not, strictly speaking, about whether the Second Amendment guarantees an individual right to bear arms or whether that right is tied to regulation of a militia. The Supreme Court decided the former in the Heller case back in 2008. Rather, the question was whether the Second Amendment – whatever it means – applies to the states and, if so, why.
Ed says:
The fact that the second amendment applies to the states through 14th amendment incorporation should be utterly uncontroversial. It is absolutely clear from the debate surrounding the amendment that one of the primary motivations for passing the law was to overturn laws in the south forbidding blacks from owning guns.
The problem with the majority opinion is that it follows bad precedent by incorporating via the due process clause of the 14th Amendment. Justice Thomas has, correctly I think, been pushing for jurisprudence that incorporates those rights through the privileges and immunities clause. The Supreme Court basically read the privileges and immunities clause out of the 14th Amendment in the Slaughter-House cases back in 1873.
Concludes Ed:
The position Thomas is taking is one that is very popular, virtually a consensus, among most legal scholars — with some conservative exceptions, who fear that the P & I clause is broader than the due process clause and will lead to more recognition of unenumerated rights, which is exactly why I like the idea.
He’s right on this one. And the fact that he continues to beat the drum for a revival of the P & I clause despite the fact that none of his colleagues are willing to go along with him — not because he’s wrong but because doing so would mean reevaluating a bunch of other cases — is something that I admire.
Just for reference, the text of the Fourteenth Amendment:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Judge Clarence Thonas at his best.
Privileges and Immunities!