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Wednesday, July 7, 2010

Barone on Justice Thomas and McDonald

Today's Washington Examiner has a great Op/Ed pinned by Michael Barone that discusses Justice Thomas's opinion in McDonald vs. Chicago. Thomas took the "priviliages and immunities" route in his opinion while the other four justices took the more traveled "due process" route in finding Chicago had violated the rights of Otis McDonald. Barone believes the opinion is on a par with Justice Lewis Powell's decision in the Bakke Case, an opinion that no other justice joined but that decided a case - and an argument that has now been embraced by a majority of the court.
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 14th 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.

Barone wrote that legal scholars have generally considered that the Supreme Court's decision in 1873 in the Slaughter-House Cases rendered the privileges and immunities clause null, but Thomas has a habit of declining to follow precedent he believes to be incorrect. In doing so, Barone (and Mark Levin on his radio program) said Thomas has argued persuasively that the privileges and immunities clause was the correct approach that adheres more closely to the intent of the founders. In his opinion, Thomas address the purposes of the original gun control laws - to keep freed blacks from owning guns.

As Thomas pointed out, the 14th Amendment was passed in 1868 to guarantee the rights of the newly freed slaves. The Slaughter-House 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.

It's a great read. The more people talk about the Thomas opinion, hopefully the more weight it will receive.

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