Thomas’ Privileges or Immunities Opinion

Thomas agreed with the majority in McDonald in judgement, but he wrote his own opinion suggesting that the Court ought to incorporate the Second Amendment under the Privileges or Immunities clause of the 14th Amendment, as the petitioners in McDonald wanted.

I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This Court’s substan- tive 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 mean- ing of the Fourteenth Amendment offers a superior alter- native, 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.

I acknowledge the volume of precedents that have been built upon the substantive due process framework, and I further acknowledge the importance of stare decisis to the stability of our Nation’s legal system. But stare decisis is only an “adjunct” of our duty as judges to decide by our best lights what the Constitution means. Planned Par- enthood of Southeastern Pa. v. Casey, 505 U. S. 833, 963 (1992) (Rehnquist, C. J., concurring in judgment in part and dissenting in part). It is not “an inexorable com- mand.” Lawrence, supra, at 577. Moreover, as judges, we interpret the Constitution one case or controversy at a time. The question presented in this case is not whether our entire Fourteenth Amendment jurisprudence must be preserved or revised, but only whether, and to what ex- tent, a particular clause in the Constitution protects the particular right at issue here. With the inquiry appropri- ately narrowed, I believe this case presents an opportunity to reexamine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it.

I wish we had four more on the Court like him, because I generally agree with Thomas that stare decisis should not stand when it’s in clear conflict with the text and meaning of the Constitution, as it is here. Thomas’ opinion goes into a detailed analysis of Privileges and Immunities, and what types of rights it could conceivably cover. He also goes into the Reconstruction history of the 14th Amendment:

As a whole, these well-circulated speeches indicate that §1 was understood to enforce constitutionally declared rights against the States, and they provide no suggestion that any language in the section other than the Privileges or Immunities Clause would accomplish that task.

When read against this backdrop, the civil rights legis-
lation adopted by the 39th Congress in 1866 further sup- ports this view. Between passing the Thirteenth Amend- ment—which outlawed slavery alone—and the Fourteenth Amendment, Congress passed two significant pieces of legislation. The first was the Civil Rights Act of 1866, which provided that “all persons born in the United States” were “citizens of the United States” and that “such citizens, of every race and color, . . . shall have the same right” to, among other things, “full and equal benefit of all laws and proceedings for the security of person and prop- erty, as is enjoyed by white citizens.” Ch. 31, §1, 14 Stat. 27.

Both proponents and opponents of this Act described it as providing the “privileges” of citizenship to freedmen, and defined those privileges to include constitutional rights, such as the right to keep and bear arms. See 39th Cong. Globe 474 (remarks of Sen. Trumbull) (stating that the “the late slaveholding States” had enacted laws “de- priving persons of African descent of privileges which are essential to freemen,” including “prohibit[ing] any negro or mulatto from having fire-arms” and stating that “[t]he purpose of the bill under consideration is to destroy all these discriminations”); id., at 1266–1267 (remarks of Rep. Raymond) (opposing the Act, but recognizing that to “[m]ake a colored man a citizen of the United States” would guarantee to him, inter alia, “a defined status . . . a right to defend himself and his wife and children; a right to bear arms”).

Three months later, Congress passed the Freedmen’s Bureau Act, which also entitled all citizens to the “full and equal benefit of all laws and proceedings concerning per- sonal liberty” and “personal security.” Act of July 16, 1866, ch. 200, §14, 14 Stat. 176. The Act stated expressly that the rights of personal liberty and security protected by the Act “includ[ed] the constitutional right to bear arms.” Ibid.

Next we have a cite in Thomas’ opinion for Dave Hardy:

First, however consequential we consider the question today, the nationalization of constitutional rights was not the most controversial aspect of the Fourteenth Amend- ment at the time of its ratification. The Nation had just endured a tumultuous civil war, and §§2, 3, and 4—which reduced the representation of States that denied voting rights to blacks, deprived most former Confederate officers of the power to hold elective office, and required States to disavow Confederate war debts—were far more polarizing and consumed far more political attention. See Wilden- thal 1600; Hardy, Original Popular Understanding of the Fourteenth Amendment as Reflected in the Print Media of 1866–1868, 30 Whittier L. Rev. 695, 699 (2009).

Thomas’ opinion is an excellent piece of originalist writing, very similar to Heller, in that regard. It goes into serious historical detail to make its case, highlighting the racist origins of gun control laws in this country every step of the way.

Cruikshank’s holding that blacks could look only to state governments for protection of their right to keep and bear arms enabled private forces, often with the assistance of local governments, to subjugate the newly freed slaves and their descendants through a wave of private violence designed to drive blacks from the voting booth and force them into peonage, an effective return to slavery. Without federal enforcement of the inalienable right to keep and bear arms, these militias and mobs were tragically suc- cessful in waging a campaign of terror against the very people the Fourteenth Amendment had just made citizens.Take, for example, the Hamburg Massacre of 1876. There, a white citizen militia sought out and murdered a troop of black militiamen for no other reason than that they had dared to conduct a celebratory Fourth of July parade through their mostly black town. The white mili- tia commander, “Pitchfork” Ben Tillman, later described this massacre with pride: “[T]he leading white men of Edgefield” had decided “to seize the first opportunity that the negroes might offer them to provoke a riot and teach the negroes a lesson by having the whites demonstrate their superiority by killing as many of them as was justifi- able.” S. Kantrowitz, Ben Tillman & the Reconstruction of White Supremacy 67 (2000) (ellipsis, brackets, and inter- nal quotation marks omitted). None of the perpetrators of the Hamburg murders was ever brought to justice.22[…]

The use of firearms for self-defense was often the only way black citizens could protect themselves from mob violence. As Eli Cooper, one target of such violence, is said to have explained, “‘[t]he Negro has been run over for fifty years, but it must stop now, and pistols and shotguns are the only weapons to stop a mob.’” Church Burnings Fol- low Negro Agitator’s Lynching, Chicago Defender, Sept. 6, 1919, in id., at 124. Sometimes, as in Cooper’s case, self- defense did not succeed. He was dragged from his home by a mob and killed as his wife looked on. Ibid. But at other times, the use of firearms allowed targets of mob violence to survive. One man recalled the night during his childhood when his father stood armed at a jail until morning to ward off lynchers. See Cottrol, 354. The experience left him with a sense, “not ‘of powerlessness, but of the “possibilities of salvation”’” that came from standing up to intimidation.

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.

Congratulations to Bob Cottrol for being cited in Thomas’ opinion. I sincerely hope that Thomas’ opinion doesn’t get overlooked because it was not the majority view. It’s well worth reading, even for laymen, and deserves an equal place to the rest of the McDonald ruling.

10 thoughts on “Thomas’ Privileges or Immunities Opinion”

  1. Once again, I say, “BRAVO!!!” to Justice Thomas. This ruling is what should have been the majority decision, if the court only had the courage to stand up to its own bad jurisprudence and overturn it. Heaven forbid they may have to admit their predecessors were wrong.

  2. More than just Thomas have admitted that’s it’s wrong, it’s just Thomas is the only one who doesn’t mind the worms crawling around unpredictably once the can is opened.

  3. Finally!!! I have finally read what I have always felt but could not adequately express about the due process theory. I thank God for Justice Thomas!

    I love Clarence Thomas. Always have; always will. He is a patriot, an American, a Constitutionalist. May he indwell the Court for decades to come.

  4. While Justice Thomas certainly gets it right in his concurring opinion, he needs to be more vocal while hearing arguments.

    Even as CJ Roberts and J Scalia were putting the kibosh on Gura’s P&I arguments, if Thomas had strong feelings about the argument, he should certainly ask the pointy questions that would allow Gura to speak.

    Probably wouldn’t make a difference in the end, but would further serve to embarrass some other justices.

  5. “While Justice Thomas certainly gets it right in his concurring opinion, he needs to be more vocal while hearing arguments.”

    You’re right, but unfortunately, Thomas’ philosophy is that the justices shouldn’t be interrupting during arguments at all. At one point he went three years without asking a question at all, and has been quoted as saying “My colleagues should shut up!”

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