It’s well-known that Supreme Court justice Clarence Thomas often stakes out positions distinctly to the right of his fellow conservatives on the Court, and that he’s significantly wordier in dissents than in majority or concurrent opinions. Both tendencies were abundantly in evidence today when, in the middle of one of America’s occasional bouts of self-recrimination over loose gun laws, Thomas pitched the juridical equivalent of a tempter tantrum over the Court’s refusal to sufficiently revere the Second Amendment and crack down on those anti-gun hippies on the Ninth Circuit Court of Appeals.
The occasion was a routine refusal of the Court to intervene in a highly technical California case involving that state’s ten-day waiting period for the purchase of shooting irons. To Thomas, it was the last straw: a demonstration that the rest of the Court was unwilling to provide the kind of scrutiny to state gun regulations that they apply to other state actions affecting “more favored” constitutional rights:
If a lower court treated another right so cavalierly, I have little doubt that this court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this court.
Thomas is especially angry because the Second Amendment involves rights enumerated in the Constitution, as opposed to what he considers contrived pseudo-rights like the right to an abortion and the right of same-sex marriage, both of which he mocked the Court for caring about more than guns in his dissent.
In a way, Thomas has a point: This relatively conservative Court has been far behind the rest of the right in exalting the Second Amendment as establishing a fundamental liberty interest in unregulated ownership of weapons. SCOTUS didn’t recognize an individual (as opposed to state militia) Second Amendment right until the 2008 decision in Heller v. D.C. And it didn’t make it clear that the Second Amendment was binding on the states via the 14th Amendment until the 2010 decision in McDonald v. Chicago. Both of these landmark decisions, moreover, were made by slim 5–4 majorities. SCOTUS has never been eager to weigh in on state and local gun-regulation matters, and has yet to come even close to the fashionable if dangerous conservative idea that the Founders wanted good, patriotic Americans to be armed to the teeth in case it became necessary to overthrow their own government — you know, for tyrannical acts like gun regulation.
I don’t know if that’s where Thomas’s constitutional jurisprudence is leading him, but he’s clearly sending signals to conservatives beyond the Court that Chief Justice Roberts & Co. need to get their dignified asses in gear to crack down on gun-disrespecting states like California. He’s not just blaming the Court’s progressive wing, by the way; he wants people to understand that it takes only four justices to agree to take an appeal from a circuit-court decision like the one in the current gun case.
I suspect that four members of this court would vote to review a 10-day waiting period for abortions, notwithstanding a state’s purported interest in creating a ‘cooling off’ period. I also suspect that four members of this court would vote to review a 10-day waiting period on the publication of racist speech, notwithstanding a state’s purported interest in giving the speaker time to calm down.
Similarly, four members of this court would vote to review even a 10- minute delay of a traffic stop. The court would take these cases because abortion, speech and the Fourth Amendment are three of its favored rights. The right to keep and bear arms is apparently this court’s constitutional orphan. And the lower courts seem to have gotten the message.”
I suspect those cozy Federalist Society dinners have just become less cozy for the chief and for Justices Alito and Gorsuch, too. Somebody’s keeping the Supreme Court from acting aggressively to defend gun rights. Maybe next time Clarence Thomas will name names.