Barone: Thomas’ principled jurisprudence in arms case

July 7th, 2010

Michael Barone has an excellent piece in today’s Washington Examiner, praising Justice Thomas’ principled approach to relying on the Privileges or Immunities Clause, rather than the Due Process Clause in McDonald v. Chicago.

The only alarming thing about the McDonald decision was that it was decided by only a 5-4 margin and could conceivably be reversed later by the court. As a practical matter it allows reasonable restrictions on firearms while eliminating laws that attempt, futilely, to ban them altogether.

Thomas’ colleagues, like many legal scholars, were evidently unwilling to join him in overturning the Slaughter-House Cases and based their decisions on the privileges and immunities clause, presumably because that might undercut other precedents.

But Thomas, in my view, has the better logical argument. “The notion,” he writes, “that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty or property could define the substance of those rights strains credulity for even the most casual user of words.”

As he points out, the court has used the due process clause to find rights — notably the right to an abortion — that are not specified in the Constitution, while at the same time four current justices have also used it to argue that a right specified in the Second Amendment does not apply to the states.

Thomas’ concurring opinion points the way to a more principled jurisprudence, based more clearly on the text of the Constitution, while at the same time making the strongest of possible cases that Second Amendment rights are fundamental.

Read the entire thing.

Barone makes several of the same points Ilya Shapiro and I made in our Op-Ed published earlier this week in the Detroit News.

McDonald thus paints a bright picture for the future of constitutional liberty, and opens the door to reviving a long-ignored but powerful provision of our Constitution. Thomas’ clarion call for a liberty-focused originalism provides a step on which to build in future.

In the annals of Supreme Court history, solo opinions that introduce novel ideas often start a trickle of discussions. These arguments swirl and strengthen, and over time flow into a paradigm shift in constitutional law. Look no further than the monumental significance of Justice John Marshall Harlan’s dissent in Plessy v. Fergusson, which argued that separate is not equal. Harlan’s lone voice was crucial in starting the Court on a jurisprudential crescendo culminating in Brown v. Board of Education.

Thomas’s opinion in McDonald v. Chicago — even more noteworthy, because he was the decisive fifth vote for the majority opinion rather than a dissenter — has planted a similar seed, paving the way for the Privileges or Immunities Clause to protect our most basic freedoms.

While detractors of Privileges or Immunities continue to poo poo the clause, I beg to differ. To paraphrase Twain, the rumors of its death have beenĀ greatly exaggerated.