Clarence Thomas: The One-Man Palladium of Our Liberty

The magnificent character of Justice Clarence Thomas often glints its brightest when he’s in a minority of one, as in his dissent today in the Second Amendment case of United States v. Rahimi. Eight of Justice Thomas’s colleagues agree to deny the right to bear arms to Americans who are subject to restraining orders for domestic violence. Yet on what grounds, the justice asks, can that right — the palladium* of our liberty — be traversed?We carry no brief for any form of domestic violence. Nor, we are confident, does Justice Thomas. Yet his dissent underscores the fact that owning and carrying a firearm is a liberty possessed by all Americans — even those whose conduct is deplorable. This liberty, like the rights to speech, peaceable assembly, or religious free exercise, is vouchsafed to the constitutional bedrock and cannot be so easily waived by mere law.The law upheld by the majority today is flawed in other ways, Justice Thomas reckons. The measure, for one, “does not require a finding that a person has ever committed a crime of domestic violence.” Nor is it “triggered by a criminal conviction or a person’s criminal history,” he notes. The end result of such deficiencies, he contends, is that the law “strips an individual of his ability to possess firearms and ammunition without any due process.”The law, too, runs afoul of Supreme Court rulings like District of Columbia v. Heller, which “held that the Second Amendment protects an individual right to keep and bear firearms,” Justice Thomas says. That right was further clarified in New York State Rifle & Pistol Association v. Bruen, which requires gun regulations to conform to “the historical tradition that delimits the outer bounds of the right to keep and bear arms,” he writes.Relying on Bruen, the riders of the Fifth Circuit had overturned the law in dispute in Rahimi. The riders contended the government had failed to prove that the law “fits within our Nation’s historical tradition of firearm regulation.” The Nine today disagree. Writing for the majority, Chief Justice Roberts appears even eager to dial back the scope of the Bruen and Heller decisions. “These precedents were not meant to suggest a law trapped in amber,” he harrumphs.Restrictions on guns, the chief explains, need only be “consistent with the principles that underpin our regulatory tradition.” A law can pass muster, he adds, if it is “relevantly similar” to other “laws that our tradition is understood to permit.” So, he says, the Second Amendment “permits more than just those regulations identical to ones that could be found in 1791.” To suggest otherwise, he says, would mean the right was limited “only to muskets and sabers.”So, Chief Justice Roberts contends, quoting from The Great Scalia’s opinion in Heller, “the right secured by the Second Amendment is not unlimited.” The chief observes that America has a long history of “preventing individuals who threaten physical harm to others from misusing firearms.” Yet Justice Thomas finds that the law lacks a historical basis, noting that there is not “even a single regulation with an analogous burden and justification.”The split over the scope of the Second Amendment, says Politico’s Josh Gerstein, among the shrewdest reporters of the court, reflects an emerging “rift” among the high court’s conservatives. Mr. Gerstein places Justice Thomas and Justice Amy Coney Barrett at odds over how to apply “history and tradition” as a standard “to decide modern-day legal issues.” The dispute amounts to a “civil war among the court’s six conservatives,” Mr. Gerstein growls.The idea, Mr. Gerstein suggests, is to “avoid the certain political backlash” that would follow a decision saying “alleged domestic abusers have a constitutional right to carry a gun.” Justice Thomas, in Mr. Gerstein’s telling, “might not care about such backlash, but the more pragmatically minded Barrett is surely aware of it.” Well, may God grant the majority a portion of Justice Thomas’s wisdom. That’s our prayer — while praying is still permitted.________* The phrase used by Judge St. George Tucker and, later, by Justice Joseph Story to describe the Second Amendment.

Clarence Thomas: The One-Man Palladium of Our Liberty

Clarence Thomas: The One-Man Palladium of Our Liberty

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