In 1978, Justice Lewis Powell wrote an opinion in the Bakke case asserting that the need for diversity could justify racial preferences in university admissions. No other justice joined this opinion, but because the other justices were split 4-4, Powell’s opinion decided the case, and in time his argument has been embraced by a majority of the court. A regrettable result, in my view, but a consequential one.
Last month, Justice Clarence Thomas delivered a similarly decisive opinion in McDonald v. Chicago, the case holding that the Second Amendment’s right to keep and bear arms, recognized by the court in 2008 as applying to the federal government, also limits the power of the states.
The other eight justices argued whether that right was fundamental enough to apply to the states under the Fourteenth Amendment’s guarantee of "due process of law." Since the 1940s, the justices have been arguing whether various federal rights were fundamental enough to apply to the states under this clause. In McDonald, four justices argued that the Second Amendment was fundamental to the states and four disagreed.
Justice Thomas, writing separately, declined to apply the due process clause. Rather he argued that the Second Amendment applied to the states because the right to keep and bear arms under the Fourteenth Amendment’s command that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
Legal scholars have generally considered that the Supreme Court’s decision in 1873 in The Slaughterhouse Cases rendered the privileges and immunities clause a nullity. Thomas, who has regularly declined to follow precedent he considers incorrect, argued persuasively that the 1873 case was incorrectly decided.
Certainly it is not a precedent that is an ornament of the law. As Thomas pointed out, the Fourteenth Amendment was passed in 1868 to guarantee the rights of the newly freed slaves. The Slaughterhouse Cases undercut that purpose and made possible the violent subjugation of American blacks that is one of the most regrettable episodes of our history.
And, as Thomas argues in vivid detail, one of the key rights black Americans were deprived of was the right to keep and bear arms. The wisdom of the Founders’ inclusion of the Second Amendment in the Bill of Rights is clear from the efforts black Americans made to exercise that right and from the efforts of white racists to deprive them of it.
For many years, "the educated class" has denigrated the Second Amendment and argued that it was outmoded and only concerned national guards. But legal scholars, liberal as well as conservative, demonstrated that the Framers fully intended to protect citizens’ rights to arm and protect themselves.
At the same time, empirical evidence has made it clear that gun control laws infringing that right left law-abiding citizens at the mercy of criminals. And empirical evidence in the 40 states that now allow law-abiding citizen to carry concealed weapons has demonstrated that they could be trusted to exercise that right responsibly.
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 Slaughterhouse 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.