Douglas Andrews / June 27, 2022

Clarence Thomas Makes His Presence Felt

Last week was a great one for Life and Liberty and for the Supreme Court’s longest-serving justice.

If you’re Justice Clarence Thomas, last week was deeply satisfying. As the Supreme Court’s longest-serving justice, Thomas has for decades endured the slings and arrows of the Left while holding fast to the thing that matters most: the Constitution.

Last week was no exception. At issue was New York State Rifle and Pistol Association v. Bruen, New York’s “may issue” concealed carry permit law, under which authorities could deny an application for a permit simply because they didn’t think the applicant showed sufficient cause.

What part of “shall not be infringed” do these folks not understand?

In a 6-3 majority opinion he authored on Thursday, which happened to be his 74th birthday, Justice Thomas made clear that the Second Amendment isn’t merely “nice to have,” and that it wasn’t meant to restrict law-abiding citizens from bearing arms only in their homes. As Thomas put it, “After all, the Second Amendment guarantees an ‘individual right to possess and carry weapons in case of confrontation,’ Heller, 554 U. S., at 592, and confrontation can surely take place outside the home.”

To support this point, he noted that a Chicagoan “is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower.”

That point is inarguable, and it rendered the New York law, which had been on the books since 1911, inarguable as well.

As our Nate Jackson noted, Thomas further buttressed his opinion with this oft-repeated statement: “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.’”

Then, the Second Amendment and our First Civil Right having been resoundingly upheld, it was on to another 6-3 ruling on Friday.

“The Constitution does not confer a right to abortion; Roe and [Planned Parenthood v.] Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.” So wrote Thomas’s fellow constitutionalist justice, Samuel Alito, in Dobbs v. Jackson Women’s Health Organization. In doing so, the High Court also overturned Roe v. Wade, which our Nate Jackson rightly called “the horrendous decision responsible for this half-century atrocity.”

But what seemed to garner even more attention than Alito’s majority opinion was Justice Thomas’s concurring opinion that the High Court ought to take another look at the legal theory of “substantive due process” — including rulings that protect gay marriage and access to birth control. As Thomas put it, “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”

“We have a duty,” he continued, “to ‘correct the error’ established in those precedents. After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”

This caused those on the Left to reach for their smelling salts. As Power Line’s Steven Hayward writes:

There’s much more to be said about Thomas’s attack on [so-called] substantive due process. You may have heard the breathless and hysterical left say that Thomas is now after same sex marriage (Obergefell), contraception privacy (Griswold), and basic gay rights (Lawrence). That is a deliberate and willful misreading of his argument (though stupidity cannot be ruled out). … This is an invitation for a long overdue consideration of natural rights.

The point is, Justice Thomas is interested in assessing whether some of these rights are constitutional or natural; whether they belong before the Supreme Court or the states and the legislatures and the people. This seems to us a fascinating and important discussion to have, especially since the same legal theory — substantive due process — which underpinned the right to an abortion in Roe was also used to discover and justify rights in these other cases.

UPDATED to include a more thorough discussion of the legal theory of substantive due process.

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