Josh Blackman writes for National Review Online about U.S. Supreme Court Justice Clarence Thomas’ approach to the Second Amendment.
Twice this year, Justices Thomas and Scalia have called out their colleagues for abdicating the judiciary’s safeguard of the Second Amendment. First, in June, the justices sat by idly as San Francisco rendered it impossible for law-abiding citizens to keep a handgun for self-defense. Second, … the Supreme Court looked the other way as Highland Park, Ill., criminalized an entire class of rifles owned by millions of Americans. In each case, the hard-fought victories to vindicate the right to keep and bear arms have slowly and painfully been chipped away. A careful study of Justice Thomas’s passionate yet reasoned dissents charts a proper course to restore the Second Amendment to its esteemed place in our Bill of Rights. …
… Justice Thomas was flummoxed by how the Ninth Circuit ignored the Supreme Court’s rulings. “Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense,” he wrote in the dissent, “lower courts, including the ones here, have failed to protect it.” He continued, saying that “Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document” and that he found the Court’s unwillingness to defend the Second Amendment “difficult to account” for in light of the fact that it often reviews other violations of cases concerning the First, Fourth, and Eighth amendments. “I see no reason,” Thomas concluded, “that challenges based on Second Amendment rights should be treated differently.” His admonitions went unheeded. …
… The usually even-tempered Thomas, however, saved his sharpest criticisms for the seven other justices, and by implication Chief Justice Roberts and Justices Kennedy and Alito. The trio joined the majority in Heller and McDonald, but have been absent since. Thomas faulted the “Court’s refusal to review a decision that flouts two of our Second Amendment precedents.” This stands in contrast to other cases in which lower courts violate constitution rights and in which the Court summarily reverses, without even the benefit of oral argument. “There is no basis for a different result when our Second Amendment precedents are at stake,” Thomas charged.
In the last sentence of his dissent, Justice Thomas takes us full circle from McDonald v. Chicago. In that case, the Windy City asked the justices to “treat the right recognized in Heller as a second-class right.” This, Justice Alito wrote in 2010, the Court would not do. Yet, now, in 2015, Justice Thomas has called Alito’s bluff, writing, “I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right.”
