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It couldn’t have been more perfect than Supreme Court Justice Clarence Thomas penning the definitive decision that the right to carry guns on one’s person for self-defense is inherent for all Americans.
First of all, Thomas has been after the court to take up more gun rights cases. He used his considerable influence with Chief Justice John Roberts to continue looking for gun rights cases to take. The New York State Rifle & Pistol Association, Inc., et al. v. Bruen and the state of New York was the obvious choice. Remember, the state of New York, before Thursday’s decision as a “may issue” state, read the tea leaves and tailored its law after the federal courts were prevailed upon to take the case.
Second, Thomas is the one who assigns the decisions when the conservatives are in the majority due to his seniority on the court, according to former federal prosecutor Andy McCarthy. Thomas assigned himself the task of writing for the majority opinion. This may explain why he chose Justice Samuel Alito to pen the other hot button decision of the court this session, the Dobbs abortion case.
Thomas left no doubt that there shouldn’t be a test to determine if one should be permitted to carry a gun. Concurring opinions by Justices Roberts, Kavanaugh, and Barrett made clear that this doesn’t mean the right is unfettered, but that justices must apply strict scrutiny to any decision about it, as all civil rights cases must be considered.
Thomas wrote, “the constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’ McDonald, 561 U. S., at 780 (plurality opinion). The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self-defense is no different. New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms in public.”
New York and other “may issue” states require persons who want to carry a weapon to demonstrate a need with which the state agrees. And Thomas, noting that Heller had already decided this issue, blew that up for good, saying the two-step balancing test required by the state was “one step too many.” Indeed, the one test he endorsed was the historical “traditions of the American people … [which] demands our unqualified deference.” When was the last time you heard someone in the federal government say that?
Anticipating the reactions of the three justices who reflexively and predictably dissented (Will these people ever surprise us? Or is that just left to the conservative majority members?), Thomas’s historical recitation noted the ways that gun laws were misused, writing that even in the Dred Scott decision, “Chief Justice Taney … recognized (albeit unenthusiastically in the case of blacks) that public carry was a component of the right to keep and bear arms—a right free blacks were often denied in antebellum America.”
In other words, denying gun rights or creating a test that’s too onerous is racist.
Justice Alito, writing a concurrence, also mentioned the civil rights groups Black Guns Matter, Asian Pacific Gun Owners, and National African American Gun Association, among others who filed amicus briefs drawing attention to how minorities tend to have an even greater need to defend themselves.
Alito also took the court’s liberal minority to task for their emotional arguments untethered from the issue at hand. “The dissent cites statistics on children and adolescents killed by guns,” he wrote, “but what does this have to do with the question whether an adult who is licensed to possess a handgun may be prohibited from carrying it outside the home?” He continued his total annihilation, writing, “the dissent cites the large number of guns in private hands—nearly 400 million—but it does not explain what this statistic has to do with the question whether a person who already has the right to keep a gun in the home for self-defense is likely to be deterred from acquiring a gun by the knowledge that the gun cannot be carried outside the home.” And, thankfully, Alito included the truism that criminals don’t obey gun laws. “No one apparently knows how many of the 400 million privately held guns are in the hands of criminals, but there can be little doubt that many muggers and rapists are armed and are undeterred by the [New York] Sullivan Law” — some of the very reasons, he judged, why “law-abiding citizens to feel the need to carry a gun for self-defense.”
Before the concurrent and dissenting opinions, Thomas issued his coup de grâce on any lingering doubts there could be about the right to bear arms under the Second and 14th Amendments.
“We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense. New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.”
The gun decision was likely written months ago, but it was released, among many other decisions, on Thomas’s birthday.
Happy 74th birthday to Justice Clarence Thomas. pic.twitter.com/Qog5jdMHnt
— Miles Commodore (@miles_commodore) June 23, 2022
As one Twitter observer put it, it’s a generous man who gives everyone else a gift on his birthday.