Ilya Shapiro and I published an Op-Ed in the Richmond Times Dispatch on McDonald v. Chicago titled Opening the Door to More Liberty. Here is a segment:
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 the 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’ 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.