By a five to four majority last week, the United States Supreme Court ruled that neither a state nor a city acting under a grant of authority from the state, can deny a person the right to possess a firearm as guaranteed by the Second Amendment to the Constitution. Interestingly, of that slim, five-member majority, only one justice had the constitutional backbone to rule the right way for the right reason. It was not Chief Justice Roberts, and it was not Antonin Scalia, considered by many as the most conservative of the tribunal’s nine members.
Standing alone in his correct and bold interpretation of both the Second Amendment and the Fourteenth, which figured prominently in the Court’s consideration of McDonald v. City of Chicago, Illinois, is Justice Clarence Thomas. Thomas — who was savagely attacked by Democratic opponents in the Senate when the first President Bush nominated him in 1991 – solidified his reputation as the true constitutionalist on the Court.
The bottom line in last week’s decision was never really in doubt. Ever since the Court’s 2008 decision in Heller v. District of Columbia, in which the three-decades old ban on firearms in the nation’s capitol was struck down based on a ruling that the Second Amendment protects an individual’s right to possess a firearm, most legal scholars anticipated the Court would apply the same principle to a state or city gun ban. What was in doubt was the reasoning on which the court would base such ruling.
Alan Gura, the young, Virginia-based lawyer who presented both the Heller and the McDonald cases before the high Court, argued persuasively that the right to keep and bear arms was a fundamental right of citizens within the United States, and must therefore be protected as a basic “privilege or immunity” of citizenship under the Fourteenth Amendment. A ruling based on this provision would have firmly established the right to possess a firearm as an unquestionably fundamental right, akin to other fundamental privileges such as the right to vote. It could not be taken away without a clear and compelling case being made, based on an overriding governmental interest. In this scenario, restrictions on the exercise of one’s Second Amendment right – while still permissible – would be scrutinized very rigorously by the courts, with the burden being on the government to sustain them rather than on the individual to challenge them.
Justice Thomas, in his concurring opinion in McDonald, citied the legislative history of the 1868 Fourteenth Amendment, which included language clearly indicating one of its purposes was to ensure that freed slaves could not be deprived of their right to protect themselves by use of firearms. He then applied this history and reasoning to 2010’s McDonald case. Thomas’ more timid colleagues, while correctly concluding that Chicago’s gun ban was indeed unconstitutional, exhibited less courage by basing their ruling on the premise that the ban violated a citizen’s right to “due process of law.” This majority opinion ensures continued wrangling over whether and to what extent the fundamental right to keep and bear arms can be limited by states and cities, based more on process than substance.
Justice Scalia, who sarcastically attacked Gura during the oral argument in the case last March, offered perhaps the least persuasive argument in favor of adopting the more limited, although questionable, “due process” basis. The acerbic Scalia cited allegiance to a late 19th-century case that severely — though in the view of many constitutional scholars, erroneously – limited the reach of the “privileges or immunities” clause, as a reason for refusing to return the clause to its rightful place in constitutional law. A precedent is, after all a precedent, even if it’s a bad one.
Thank goodness at least one Justice exhibited a higher degree of constitutional fortitude in defense of the Second Amendment.