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Posts Tagged ‘supreme court’

IJ scores 9-0 SCOTUS victory in Timbs v. Indiana

Posted by Richard on February 20, 2019

Good news from the Supreme Court today, as reported in the Institute for Justice press release:

In an historic ruling, the U.S. Supreme Court this morning held that the Excessive Fines Clause of the Eighth Amendment protects Americans not just against the federal government, but against states and local authorities too. No matter which state you live in, every level of government must now abide by the federal Constitution’s guarantee that property owners will be safe from excessive fines and forfeitures. “[T]he historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause,” wrote Justice Ruth Bader Ginsburg for the Court, “is overwhelming.”

Six justices signed onto Ginsburg’s opinion. Justice Thomas wrote a concurring opinion reiterating his contention that the court should base incorporation decisions on the 14th Amendment’s Privileges or Immunities Clause, not the Due Process Clause, quite properly calling the concept of substantive due process “oxymoronic.” Justice Gorsuch also wrote a concurring opinion stating that “the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause.” The PDF of the opinions is available here.

The Privileges or Immunities Clause was essentially made irrelevant by the Supreme Court’s 1873 ruling in the Slaughterhouse Cases, one of the worst SCOTUS rulings of all time. IJ has a good brief summary.

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Prediction: Kavanaugh will get bipartisan support

Posted by Richard on July 10, 2018

National Review’s Jim Geraghty has a roundup of conservative praise for Trump’s SCOTUS pick, Brett Kavanaugh. But the really interesting news, and the basis for my prediction, comes at the end:

The Susan B. Anthony List commissioned a poll of registered voters in Florida, Indiana, Missouri, North Dakota, and West Virginia, and asked voters, “As you may know, Justice Kennedy recently retired from the Supreme Court. The President will appoint a replacement and the U.S. Senate will vote on that person. Do you think Senator [Nelson, Donnelly, McCaskill, Heitkamp, or Manchin: depending on the state] should vote to confirm President Trump’s appointment to the Supreme Court?” (Note this poll is conducted before Kavanaugh was named.)

In Florida and Indiana, 56 percent of registered voters answered Yes. In Missouri, 57 percent of respondents said Yes, in West Virginia it was 59 percent, and in North Dakota it was all the way up to 68 percent.

It’s a near certainty that some of those senators, facing tough re-election battles, will decide that keeping their job trumps (if you’ll forgive the expression) loyalty to the party leadership. All five races are currently considered toss-ups. Donnelly, Heitkamp, and Manchin voted to confirm Gorsuch, arguably even more of an originalist/textualist on the Constitution than Kavanaugh.

Another five Senate Democrats are running for re-election in states that Trump carried in 2016 (Michigan, Wisconsin, Ohio, Montana, and Pennsylvania). But those senators (Stabenow, Baldwin, Brown, Tester, and Casey, respectively) are currently favored to retain their seats, and thus are less likely to break ranks for reasons of self-preservation.

I’m guessing that Kavanaugh will get three or four Democratic votes, more than enough to offset the possibility of one or two GOP defectors (Collins and a RINO to be named later).

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Another GOP “leader” caves to the left

Posted by Richard on March 24, 2016

Today brings yet another example of why many rank-and-file Republicans are so fed up and pissed off that they’re saying “screw all the party politicians, I’m backing Trump.” Press release from Americans for Limited Government (emphasis added):

March 24, 2016, Fairfax, Va.—Americans for Limited Government President Rick Manning today issued the following statement blasting Sen. Jerry Moran’s (R-Kan.) statement that “the process ought to go forward” for President Barack Obama’s Supreme Court nominee Merrick Garland:

“Jerry Moran’s decision to cave on considering Obama’s Supreme Court nominee is incomprehensible.  As the former head of the National Republican Senatorial Committee, Moran spent the past two years telling America that they needed a GOP majority to stop Obama from fundamentally transforming America.  Now, Moran is opening the door for a Supreme Court nominee who would lock in Obama’s agenda for a generation.  This is an outright betrayal of the very GOP Senate majority which Moran successfully led the fight to achieve.  Jerry Moran needs to understand one simple fact, stopping Obama’s agenda is his job, and pandering to the hard left which demands that he kowtow to their whims is hopefully a misquote rather than his considered position.”


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R.I.P., Antonin Scalia. R.I.P., Liberty?

Posted by Richard on February 13, 2016

For lovers of liberty, 2016 had already become a consequential and concerning year. With the sudden and unexpected death of Justice Scalia, it has become ten-fold so. We were already looking with dismay at an election season in which an avowed socialist is threatening to best the more leftist and vicious of the Clintons, while she seeks desperately to demonstrate that she’s just as “progressive” as he is. In which a flawed contingent of GOP candidates is led by a bombastic, anti-intellectual demagogue with no particular political philosophy or principles.

If President Obama is able to appoint yet another Kagan or Sotomayor, the First and Second Amendments are likely to become dead letters. Property rights, already seriously weakened, could be much further eroded. The Supreme Court’s stay of the EPA’s “Clean Power Plan” just this week will be merely a temporary delay in that lawless agency’s “complete restructuring of the energy sector.” Obama’s preference for “positive rights” (the unlimited power of government to bestow goods, services, and preferential treatment on some at the expense of others) over “negative rights” (limits on the power of government) will likely be enshrined for a generation. The left’s “living Constitution” (infinitely malleable by five collectivist justices) will rule this nation.

If you feel confident the the McConnell-led Senate Republicans will prevent that, I respectfully suggest that you haven’t been paying attention for the past seven years.

I fear for my country. I fear for our Constitution. I fear for our liberties.

Costa Rica looks nice.

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Defending ‘truthiness’ in political speech

Posted by Richard on March 5, 2014

Susan B. Anthony List v. Driehaus is going before the Supreme Court. It’s a free speech case in which the pro-life group Susan B. Anthony (SBA) List challenges an Ohio campaign law criminalizing false statements about politicians. During the 2010 campaign, SBA List claimed that Rep. Steven Driehaus’ vote for Obamacare amounted to a vote for taxpayer-funded abortions. This was an illegal false statement according to Driehaus.

Here’s where it gets interesting. Some folks associated with the Cato Institute, including P.J. O’Rourke, have filed an amici curiae brief in the case (PDF). It provides by far the most entertaining reading the Supremes will encounter all year. Here’s a sample:

In modern times, “truthiness” — a “truth” asserted “from the gut” or because “it feels right,” without regard to evidence or logic — is also a key part of political discourse. It is difficult to imagine life without it, and our political discourse is weakened by Orwellian laws that try to prohibit it.

After all, where would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America? Voters have to decide whether we’d be better off electing Republicans, those hateful, assault-weapon-wielding maniacs who believe that George Washington and Jesus Christ incorporated the nation after a Gettysburg reenactment and that the only thing wrong with the death penalty is that it isn’t administered quickly enough to secular-humanist professors of Chicano studies.

HT: Steven Hayward

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The power to destroy

Posted by Richard on July 3, 2012

Howard Rich at Investor’s Business Daily:

Nearly two centuries ago Daniel Webster stood before the U.S. Supreme Court on behalf of James McCulloch, head of the Baltimore branch of the Second Bank of the United States.

At issue were two basic questions: Did the federal government have the authority to establish a bank? And did states have the authority to tax that bank (and by extension the federal government)?

“An unlimited power to tax involves, necessarily, the power to destroy,” Webster famously argued in opposition to the latter question. Chief Justice John Marshall agreed, parroting Webster’s words almost verbatim in his ruling. “That the power to tax involves the power to destroy … (is) not to be denied,” Marshall wrote.

Yet this “undeniable” premise — first invoked in 1819 on behalf of an onerous expansion of federal authority — has been explicitly rebuked 193 years later in support of an even more onerous expansion of federal authority. In fact the destructive power of taxation has just been extended far beyond a mere list of items subject to duties, imports or levies — it can now actually compel participation in the private sector.

More than at any other time in American history, the power to tax has indeed become the power to destroy — our economy, our liberty and perhaps one day even our lives. Chief Justice John Roberts’ refusal to rein in this destructive force will have immediate and lasting reverberations.


Apologists for Roberts have argued that his opinion cleverly constrained the Commerce Clause — as if he didn’t have the option of making the same finding as part of a majority striking down Obamacare in its entirety, and as if there were no dispute regarding Roberts’ ruling (see numerous July 1-3 posts on the Volokh Conspiracy about whether Roberts’ discussion of the Commerce Clause is a holding or a dictum).

Even if the ruling modestly restricts the federal government’s powers under the Commerce or Necessary and Proper Clause, so what? The power to tax is the power to destroy. And Roberts has given them permission to impose punitive taxes for failing to obey their dictates. Limited government, my ass.

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The power to tax and broccoli

Posted by Richard on June 28, 2012

During oral arguments on Obamacare, Justice Alito asked if the federal government can force us to buy broccoli. In today’s ruling, Chief Justice Roberts has answered that question: No, but it can force us to pay a penalty “tax” for failing to buy broccoli.

So, although the Commerce Clause doesn’t quite give the federal government unlimited power, it effectively has unlimited power anyway.

So says what passes for a conservative justice.

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Obamacare upheld 5-4, Roberts joins statists

Posted by Richard on June 28, 2012

Chief Justice John Roberts wrote the majority opinion, basically arguing, “We can’t stretch the Commerce Clause far enough to justify the individual mandate, but the penalty is sort of like a tax, so let’s just call it a tax. And everyone knows that the government can do whatever it wants with regard to taxes. Oh, but Congress said it’s not  a tax … so I guess it’s not really a tax, and the Anti-Injunction Act doesn’t apply.”

Based on such nonsense, the entire monstrosity survives. Because of this unprincipled “mainstream conservative” weasel. Disgusting.

Scalia, Kennedy, Thomas, and Alito joined in a dissenting opinion, and Thomas also filed his own dissenting opinion. I look forward to reading that one.

Bill Wilson of Americans for Limited Government:

The U.S. Constitution died today.  The underlying hope and belief that our nation’s founding document protected individual freedoms from an ever encroaching government is a thing of the past based upon this ruling.  It is inconceivable how these nine lifetime appointed jurists could have decided to keep a law that is such a blatant intrusion into each of our lives, but the result of their decision is that individuals can no longer rely on the federal government power being limited by anything other than the political pressure their individual elected representatives feel.  Ultimately, the Supreme Court has opted out of the battle to retain our freedoms, and has thrown in entirely with those who advocated for unlimited government authority.  It is truly a sad day for our nation.


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Is Obama ignorant or cynical?

Posted by Richard on April 4, 2012

James Taranto is one of many who were dumbfounded by the President’s suggestion that the Supreme Court has no business overturning an act of Congress and no history of doing so:

We were half-joking yesterday when we asked if Barack Obama slept through his Harvard Law class on Marbury v. Madison, the 1803 case in which the U.S. Supreme Court first asserted its power to strike down unconstitutional laws. It turns out it’s no joke: The president is stunningly ignorant about constitutional law.

Taranto found further evidence of presidential ignorance in Obama’s answer to a question about his attempt to lobby/bully/denigrate the Supreme Court.

… He spoke slowly, with long pauses, giving the sense that he was speaking with great thought and precision: “Well, first of all, let me be very specific. Um [pause], we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner,right? So we’re going back to the ’30s, pre-New Deal.”

In fact, Lochner–about which more in a moment–was decided in 1905. …

But in citing Lochner, the president showed himself to be in over his head.

The full name of the case, Lochner v. New York, should be a sufficient tip-off. In Lochner the court invalidated a state labor regulation on the ground that it violated the “liberty of contract,” which the court held was an aspect of liberty protected by the 14th Amendment’s Due Process Clause. …

Lochner, which was effectively reversed in a series of post-New Deal decisions, did not involve a federal law–contrary to the president’s claim–and thus had nothing to do with the Commerce Clause, which concerns only the powers of Congress.

If the President really believes what he’s been saying about the Supreme Court, then he’s indeed remarkably ignorant for someone who once taught constitutional law. But Rush Limbaugh thinks Taranto and others are mistaken:

… I simply refuse to accept the notion that Obama doesn’t know what he’s talking about. I refuse to accept the notion that he doesn’t understand judicial review, doesn’t know what Marbury v. Madison is. I think he’s doing something entirely different. He is appealing to the dumbest, the most uninformed, and what he’s basically telling them is: “This court is going to take away your health care that I’ve given you.” That’s what he’s telling them, and he’s counting on the dumb and the stupid to believe that, to not read any of these law professors who are correct. He doesn’t care.

I’m inclined to go with Rush on this. Obama may be weak on Lochner (I bet his Harvard Law professors taught little about Lochner besides how evil it was), but he certainly knows Marbury v. Madison. (Heck, I learned about John Marshall and Marbury v. Madison in high school. But nowadays …)

(Rush also suspects that one of the justices, probably Kagan, leaked the results of the vote to the White House, and that’s why Obama and his supporters have gone bat-sh*t crazy regarding the Supreme Court, including calls to impeach justices who vote to overturn Obamacare.)

Obama’s remarks about the Supreme Court are like his rant about the Ryan budget, which Guy Benson called “Obama’s Worst Speech Yet”:

…  Barack Obama managed to out-do himself by uncorking what very well may have been the most dishonest, demagogic, and bitterly partisan speech of his presidency.  I render that assessment as someone who has sat through and analyzed countless Obama lectures, some of which earned very high marks for deceit and ideological invective.  Indeed, today’s Occupy-inspired rant takes the cake.  It was a depressing and enraging preview of the next seven months, over which this president will unleash a barrage of sophistic and pernicious arguments deliberately designed to sow discord and divide Americans.  He will do so with no regard for the truth, history, or the Constitution he swore to uphold.  …

The President doesn’t really think that the Supreme Court has no business overturning an act of Congress. And he doesn’t really believe that the Republicans’ modest moves toward fiscal restraint in the Ryan budget are designed to starve children, kill old people, and poison our food, air, and water. His demagoguery is aimed at his natural constituency, those who can be led to believe these things.

For the past three years, this allegedly post-partisan, post-racial politician who was supposed to unite us all has used every possible opportunity to attack straw men, demonize anyone who opposed his policies, increase racial tensions, and promote partisan divisions. He’s redoubling these efforts for the election campaign, hoping to energize his base and fool enough of the ignorant and poorly educated to win reelection despite his administration’s disastrous record. Expect things to get even nastier.

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Can the Obama administration simply ignore federal laws it doesn’t like?

Posted by Richard on February 22, 2012

That’s the question at issue, according to Van Irion, in U.S. v. Arizona. His Liberty Legal Foundation recently filed an amicus brief with the U.S. Supreme Court in this case.

Arizona’s S.B 1070 says that when state law enforcement officers have legitimate reasons for detaining an individual, they should request information about the individual’s immigration status from the INS. The Obama administration ordered the INS not to provide such information, in violation of Federal law (8 U.S.C. §1373), which states in subsections (a) & (b) (emphasis added by Van Irion):

“Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual…no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual: (1) …requesting or receiving such information from, the Immigration and Naturalization Service”

In Federal District Court, the Obama administration asked for and received an injunction prohibiting Arizona law enforcement agencies from requesting immigration status information from the INS. They cited subsection (c) of that same law (8 U.S.C. §1373), which requires the INS to respond to such requests. And they argued … well, I’ll let Irion explain (emphasis in original):

… You see, the Arizona Court and Obama both reason that because subsection (c) requires the INS to respond, if Arizona police make too many requests, then the INS will be too busy to “pursue other priorities,” as determined by Obama.

To summarize the argument: Because Federal law requires us to do this, if you make us do it we won’t be able to not do it. And that argument won the day.

This argument essentially asks the Judicial branch to validate the Executive branch’s decision to ignore the Legislative branch’s mandate. Do you see the danger to our entire form of government?

The amicus brief is quite short, simple, and commendably clear. I urge you to read it (PDF).

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Liberty Legal Foundation on Florida court ruling

Posted by Richard on January 29, 2011

I gave two cheers when the Virginia district court ruled that Obamacare's individual mandate is unconstitutional. I gave three cheers when the Florida district court ruled that, since the Democrats chose not to include a severability clause in that legislative monstrosity, the entire thing is unconstitutional. The Liberty Legal Foundation's Van Irion was pleased, too, but put the ruling into perspective (via email; emphasis in original): 

I was actually pretty disappointed with the Virginia Court when it found the individual mandate unconstitutional, but then found that it could sever the individual mandate from the rest of the bill. Now at least one Federal court has corrected that mistake.

I’m also disappointed that both Courts explicitly stated that Congress has the power to regulate health care and insurance. My immediate reaction was that both judges must be reading some other Constitution. The Constitution I have does not list “regulation of health care” within the enumerated powers granted to Congress. Then I remember, they’re following Wickard v. Filburn.

You see, District Courts work under the assumption that they must follow existing precedent from higher courts and rarely even consult the Constitution. Both the Virginia and Florida Courts were simply applying Wickard v. Filburn when they re-affirmed Congress’ general authority to regulate healthcare. This is why our Obamacare Class Action lawsuit must go all the way to the Supreme Court to get Wickard v. Filburn overturned.

Our Obamacare Class Action lawsuit is STILL unique because it is the only lawsuit against Obamacare that begins and ends with one argument: the commerce clause does not grant unlimited power to Congress, therefore Wickard v. Filburn must be overturned. I may sound like a broken record, but this message needs to be repeated until everyone in America understands it. For the first 150 years after the Constitution was ratified, all courts agreed that the Commerce Clause gave Congress only the authority to prevent individual states from implementing burdensome regulations on interstate commerce. Then the FDR-packed Supreme Court destroyed our Constitutional Republic by re-interpreting the commerce clause, eliminating all limits on Congressional authority.

The goal of all of the State-filed lawsuits is to get rid of Obamacare any way they can. That is an admirable goal, but it falls short of the more important goal. Liberty Legal Foundation’s goal is NOT simply to overturn Obamacare. Our goal is to restore Constitutional limits on Congressional authority so that when the political winds shift again, Congress can’t repeat a similar massive power grab.

Obamacare is simply the latest and worst example of Congressional abuse of authority. So, it became our tool to overturn Wickard v. Filburn. For 150 years the courts got the Commerce Clause right. For the past 68 years they got it wrong based solely on the political motivations of a handful of judges. There is more historical precedent supporting our arguments than supporting Wickard. This is a fight we can win! And success means Obamacare will be overturned AND our Constitutional Republic will be restored.

I urge you to join me as a plaintiff in the Obamacare Class Action lawsuit. All you need to do is go to Liberty Legal Foundation and sign on with a minimum donation of $1 (if you can afford more, please give more).

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Whose money is it?

Posted by Richard on November 5, 2010

On Wednesday, the Supreme Court heard oral arguments in another important Institute for Justice case, Wynn v. Garriott. I haven't been keeping up with all of IJ's fine work lately and was unfamiliar with this case, which made its way to the Supremes after the 9th Circuit reversed a ruling that the suit was frivolous.

But over at Big Government, Adam B. Schaeffer made it clear why this case is extremely important: 

The 9th Circuit’s reasoning arrogates to the state all property , dissolving the distinction between public and private funds as well as public and private choices. It is a disturbing, dangerous decision.

They assert that tax cuts are the equivalent of government funds, a conclusion possible only if one assumes that all personal income belongs by default to the state rather than to the individual who earned the money. It asserts as well that when taxpayers and parents privately choose to support religious educational organizations, they are in violation of the First Amendment. This reasoning blatantly ignores the logic and plain meaning of the 2002 Zelman decision upholding school vouchers, among others.

Here is a prediction; the court will have their absurd ruling on an Arizona education tax credit program posted on the wall of judicial shame like so many others issued from their Circuit.

But I want more from the Court. This ruling is so awful that I can only pray SCOTUS rules beyond the questionable standing of the plaintiffs and comprehensively dismembers this most egregious 9th Circuit decision.

The Obama administration has weighed in on the right side, according to the WaPo article linked above. But I suspect their motives. Acting Solicitor General Neal K. Katyal (to the apparent surprise of his former boss, Justice Kagan) argued that the taxpayers challenging Arizona's tax credit for private education donations didn't have standing to bring their suit.

I'll bet dollars to doughnuts that the Obama administration fervently hopes this case is decided on the standing issue and not on the merits because a decision on the merits is almost certainly going to go against one of their cherished, bedrock philosophical beliefs: that the government ultimately owns and controls everything.

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Four black men and a gun

Posted by Richard on July 24, 2010

Marcus Cole is a professor of law at Stanford University. He recently posted an homage to four men and a gun that brought a tear to my eye. It begins thus:

As an American, I owe a tremendous debt of gratitude to many, many people who have risked and given their lives to defend our liberty. But as I reflect on the recent Supreme Court decision in McDonald v. City of Chicago, I thought I should take a moment to mention four Americans who have made a relatively uncelebrated contribution to the freedom I cherish and enjoy. I owe a special debt to four black men, and one gun.

The most important of these men, to me, was my father. When I was a boy, he and my mother moved our family of six from the Terrace Village public housing projects in Pittsburgh’s Hill District to a predominantly white neighborhood. While many of our neighbors welcomed us, we were not welcomed by all. I recall a brick through the front window, and other incidents. But burned into my memory is the Sunday evening when my father was beaten with a tire iron on the street in front of our home, and in front of us, his four little children. Those three young white men were never caught.

When my father, with his surgically reconstructed eye socket and jaw, was released from the hospital, he did something he never once considered when we lived in the projects. He bought a gun.

Please read the rest. Thank you, Professor Cole.


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The marvelous McDonald opinion of Justice Thomas

Posted by Richard on July 12, 2010

I've had Justice Clarence Thomas's concurring opinion in McDonald v. Chicago sitting on my desktop for some time, but hadn't gotten around to reading it. I'd read about it, of course, and knew his essential argument. But at the urging of a friend, I finally made time to read the whole thing this weekend. I'm very glad I did.

Completely aside from the fact that I agree with Thomas on every point, it's just such a pleasure to read such a well-reasoned, well-organized, and clear opinion. But don't take my word for it; Cornell Law School has it in both HTML and PDF form. I encourage you to read it for yourself. If you're not familiar with court opinions, all the inline citations might cause you to stumble a bit at first. But once you get used to them, you'll just skip right past them, and the clarity, readability, and directness of Thomas's prose will shine through. 

That such clarity is relatively rare in court opinions has as much to do with purpose as writing ability. Many opinions are attempts to twist the plain meaning of some constitutional provision or law into something more to the author's liking, or they're attempts to craft some compromise interpretation that papers over fundamental differences. Thomas simply examines the language and the historical record, explains those in clear and direct fashion, and arrives at a conclusion that leaves a fair-minded, rational person saying, "That makes sense." 

In Section I, Thomas provides a brief overview of how and why the Fourteenth Amendment came to be; how its Privileges or Immunities Clause was rendered meaningless by the Court's Slaughter-House and Cruikshank decisions (the latter is one of the Court's most racist and shameful rulings, and a perfect example of incoherent reasoning used to arrive at a conclusion to one's liking); and how the Court has since strained the Due Process Clause into a vehicle for protecting the "fundamental" substantive rights that the Court chooses to protect. Thomas forcefully rejects this state of affairs (emphasis added):

The notion 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. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish “fundamental” rights that warrant protection from nonfundamental rights that do not. Today’s decision illustrates the point. … 

I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This Court's substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. I believe the original meaning of the Fourteenth Amendment offers a superior alternative, and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed.

Section II makes up the bulk of the opinion (pages 9-47 in the 56-page PDF). Its three parts consider the meaning of "privileges and immunities," the nature of the rights the clause was intended to protect, and whether it protects only against state discrimination or establishes a "minimum baseline of rights for all American citizens." It's a detailed, well-referenced examination of the historical record surrounding the circumstances leading up to the Fourteenth Amendment, the public debate and discussions about it, the intent of its supporters, and the understanding of its meaning by the general public at the time of passage and immediately after. In the process, Thomas systematically addresses and refutes all the arguments against the Privileges or Immunities Clause.

Section III takes up the issue of stare decisis and whether the precedents of Slaughter-House and Cruikshank ought to be retained. Thomas provides a detailed analysis of Slaughter-House and why its strained argument separating the rights of state citizenship from those of federal citizenship deserves to be rejected. In the process, in footnote 21 (page 51 of the PDF), he gets in a dig at Justice Stevens that made me jump up from my chair with a little whoop of joy (emphasis added): 

To the extent Justice Stevens is concerned that reliance on the Privileges or Immunities Clause may invite judges to “write their personal views of appropriate public policy into the Constitution,” post, at 3 (internal quotation marks omitted), his celebration of the alternative—the “flexibility,” “transcend[ence],” and “dynamism” of substantive due process—speaks for itself, post, at 14–15, 20.

Unlike Slaughter-House, Thomas dismisses Cruikshank peremptorily (I wholly approve; emphasis and link added):

Three years after Slaughter-House, the Court in Cruikshank squarely held that the right to keep and bear arms was not a privilege of American citizenship, thereby overturning the convictions of militia members responsible for the brutal Colfax Massacre. See supra , at 4–5. Cruikshank is not a precedent entitled to any respect. The flaws in its interpretation of the Privileges or Immunities Clause are made evident by the preceding evidence of its original meaning, and I would reject the holding on that basis alone. But, the consequences of Cruikshank warrant mention as well.

There follows a chilling three-page recitation of some of those consequences. Chilling.

Thomas concludes:

In my view, the record makes plain that the Framers of the Privileges or Immunities Clause and the ratifying-era public understood—just as the Framers of the Second Amendment did—that the right to keep and bear arms was essential to the preservation of liberty. The record makes equally plain that they deemed this right necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery. There is nothing about Cruikshank ’s contrary holding that warrants its retention.

*  *  *

     I agree with the Court that the Second Amendment is fully applicable to the States. I do so because the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship.

There is nothing wrong with this country that putting four or five more Clarence Thomases on the Supreme Court couldn't cure.

UPDATE: If you're interested in the racial aspects of this case and Thomas's opinion, you might want to also read Damon Root's recent column at Reason.

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McDonald v. Chicago: victory for 2nd Amendment rights

Posted by Richard on June 28, 2010

Woohoo! Well, two cheers, anyway:

As Jacob Sullum noted below, the Supreme Court issued its long-awaited decision in McDonald v. Chicago this morning, ruling that the Second Amendment is incorporated against the states via the Due Process Clause of the 14th Amendment. This is a major victory for gun rights—as it opens the door for legal challenges to countless state and local gun control laws and finally gives the Second Amendment its due alongside the rest of the Bill of Rights—but it’s not the victory it should have been. That’s because only Justice Clarence Thomas followed the text and history of the Constitution and held that the Second Amendment must be incorporated via the Privileges or Immunities Clause of the 14th Amendment, not the Due Process Clause.

As Thomas notes in his concurrence,

the record makes plain that the Framers of the Privileges or Immunities Clause and the ratifying-era public understood—just as the Framers of the Second Amendment did—that the right to keep and bear arms was essential to the preservation of liberty.  The record makes equally plain that they deemed this right necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery. …

I agree with the Court that the Second Amendment is fully applicable to the States.  I do so because the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship.

Read the full McDonald decision here. Read more about Due Process vs. Privilege or Immunities Clause incorporation here.

Note to libertarian history buffs: Thomas cites both Frederick Douglass and Lysander Spooner in his concurrence.

Clarence Thomas is a treasure. If only there were more like him.

It's a win, but not as big a win as it could have been. Still, it's big.

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