Justice Thomas on the Privileges or Immunities Clause, Substantive Due Process, Stare Decisis, and the Right to Keep and Bear Arms

June 28th, 2010

In McDonald v. Chicago, for the first time in the history of the Supreme Court, a Justice found that an essential liberty is protected by the Privileges or Immunities Clause. I discussed Justice Thomas’ opinion in this post, but I will break down his opinion here.

Privileges or Immunities Clause

In this stunning opening paragraph, Justice Stevens says something no Justice has ever said before. The Privileges or Immunities Clause protects a fundamental right–the right to keep and bear arms.

I agree with the Court that the Fourteenth Amendment makes the right to keep and bear arms set forth in the Second Amendment “fully applicable to the States.” Ante, at 1. I write separately because I believe there is a more straightforward path to this conclusion, one that is morefaithful to the Fourteenth Amendment’s text and history.
Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear armsapplies to the States through the Fourteenth Amend-ment’s Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty,” ante, at 19 (citing Duncan v. Louisiana, 391 U. S. 145, 149 (1968)), and “‘deeply rooted in this Nation’s history and tradi-tion,’” ante, at 19 (quoting Washington v. Glucksberg, 521
U. S. 702, 721 (1997)). I agree with that description of theright. 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 throughthe Fourteenth Amendment’s Privileges or Immunities Clause.

Thomas finds that the right to Keep and Bear arms is included among the Privileges or Immunities of citizens.

The evidence overwhelmingly demon-strates that the privileges and immunities of such citizensincluded individual rights enumerated in the Constitution, including the right to keep and bear arms.

In conclusion, the right t

Update: For some reason, a significant portion of this post was deleted. I am trying to recover it.