Clarence Thomas and the 2nd Amendment

[JustThisGuy]

Real Clear Politics has an interesting article on U.S. Supreme Court Justice Clarence Thomas, which delves into his beliefs on the 2nd Amendment and how he has influenced SCOTUS in this matter.

"Thomas' leadership on the Second Amendment reflects his frequent forays into history. Many of his opinions track the development of the law from the 18th or even the 17th century, and in many such cases, all or almost all his colleagues concur.

In addition, as Toobin accurately reports, Thomas is the strongest "originalist" on the court, the justice who most consistently seeks to apply the provisions of the Constitution as they originally were understood.

This has led him to take positions, sometimes in lonely dissent, that most New Yorker readers abhor. The 18th-century understanding of what constituted the "cruel and unusual punishments" banned by the Eighth Amendment is not widely shared these days on the Upper East Side of New York.

And Thomas' interpretation that the three post-Civil War amendments ban all racial quotas and preferences is anathema to the university administrators and corporate apparatchiks who employ them every day.

They might be embarrassed, however, if they actually read the parts of his opinions in which, with searing prose, he draws on his own experiences growing up in segregated Georgia and on his considerable knowledge of the history of oppression of black Americans.

And he brings up the embarrassing fact that the first gun control laws and limits on corporate campaign contributions were advanced by those who sought to deny rights to blacks."

http://www.realclearpolitics.com/art...as_111158.html

I think all we who value the 2nd Amendment owe a debt of gratitude to Constitutional Originalists like Clarence Thomas

[alloy]

Limbaugh tore into the subject for 1/2 an hour the other day, I think they are friends and it was a great little segment.
Transcript:
http://www.rushlimbaugh.com/home/dai...111.guest.html
Part of what stood out was this particular Thomas quote, what it means moving forward, and how he seems to be on a pathway towards bringing some clarity or definition to 2 and 10, regardless of precedent which may lean to the contrary.

from United States Petitioner vs. Alfonso Lopez Jr. 1995, the Commerce Clause. Clarence Thomas: "If we wish to be true to a Constitution that does not cede a police power to the Federal Government, our Commerce Clause’s boundaries simply cannot be 'defined' as being commensurate with the national needs or self consciously intended to let the Federal Government defend itself against economic forces that Congress decrees inimical or destructive of the national economy."

Music to my ears.

[JerryM]

Not surprised. Justice Thomas is one of my most admired individuals.
Jerry

[zukiphile]

As much as I enjoy Scalia's temperment, I think a Supreme Court full of Thomases would better fufill its function. His view of his role is modest and many of his opinions are brief and direct.

For all the oxygen we used in L-school yacking about the commerce clause, it is shocking in retrospect that no one in my class, me included, made an observation as simple as Thomas' in his dissent in Raich.

The Clause’s text, structure, and history all indicate that, at the time of the founding, the term “ ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.” Id., at 585 (Thomas, J., concurring). Commerce, or trade, stood in contrast to productive activities like manufacturing and agriculture. Id., at 586—587 (Thomas, J., concurring).

http://www.law.cornell.edu/supct/html/03-1454.ZD1.html

The idea that "interstate commerce" means actual commerce that is interstate would be embarrassingly obvious had the observation not gone missing for so long.

[chack]

The type of individual that a candidate will nominate or vote to confirm should be a major consideration when you vote.

Thomas is the type of judge that is protecting our rights. We need more like him.

[ltc444]

When Justice Thomas was first nominated I was not a supporter. I was not a supporter, though I admired him, of his mentor Sen. John Danforth.

Over the years I have come to admire and respect the Justice for his strength of character, courage to face brutal attacks, and his sense of history and judicial temprament.

[Tom Servo]

I think a Supreme Court full of Thomases would better fufill its function.

I wouldn't want that. You do need some diversity of opinion to keep folks thinking and questioning.

That said, I've grown to be a great admirer of Justice Thomas. He writes little, and speaks less, but when he does, it's worth listening. His dissent in McDonald was the conclusion I sorely wish the rest of the Court had come to.

[Al Norris]

Justice Thomas is the only true originalist, currently on the Supreme Court.

Regardless of whether or not I agree or disagree with his written opinions, I appluad him in his steadfast adherence to the Constitution.

In Gonzales v. Raich, Justice Thomas started his dissent with this:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.

Prophetic words when one considers the current Patient Protection and Affordable Health Care Act.

Fortunately, the Court appears to be shifting towards the views of Thomas, as Jeffrey Toobin writes in The New Yorker.

[Eghad]

amen

[Wag]

One of the best threads I've read on any forum, bar none.

Thanks for this. It tends to give me some hope to cling to.

--Wag--

[alloy]

Link to Walter Russell Mead's blog, reviewing the Toobin atricle.

Nowhere in the Constitution or anywhere else is it written that all these changes must be one way: that liberal judges can overturn conservative precedents while conservatives must let liberal precedents stand.

http://blogs.the-american-interest.c...dment-of-doom/

Counting on a little common sense could go a long ways these days, and I'd have to agree with Wag.

[secret_agent_man]

Clarence Thomas--not exactly the stereotypical guy Obama thought of as back in the hills, clinging to guns, religion, Coca-Cola and other groovy things. A far out dude in his own right, Clarence Thomas.

[blume357]

I don't trust any of those Supreme Court judges.... they've spent their whole lives paid by government.... how in the world can they more often than not divide 5 to 4.... most of these decisions are decided as a group in the back.... if it was really serious there is not way they would constantly have that 5-4.

[poptime]

I don't trust any of those Supreme Court judges.... they've spent their whole lives paid by government.... how in the world can they more often than not divide 5 to 4.... most of these decisions are decided as a group in the back.... if it was really serious there is not way they would constantly have that 5-4.

Huh?

[Brian Pfleuger]

Originally Posted by blume357

I don't trust any of those Supreme Court judges.... they've spent their whole lives paid by government.... how in the world can they more often than not divide 5 to 4.... most of these decisions are decided as a group in the back.... if it was really serious there is not way they would constantly have that 5-4.

It's 5-4 because we're lucky enough to be slightly in the majority right now. There's no conspiracy.

It is bothersome to me that the nominations are handled as they are today. Every American should be an "originalist" in the sense that the basic principles of the COTUS are unchanging. Liberal, Conservative, all should want honest, original, interpretations. Nominations should not be "who will further my agenda". It should be "Who will protect the Constitution?"

I like Justice Thomas. A few more like him would be nice.

[Aguila Blanca]

So many decisions are 5-4 rather than 7-2 or 8-1 because too many of the sitting justices were nominated as much for their political leanings as for their legal acumen. ALL cases before the SCOTUS are supposed to be decided on the basis of what the Constitution says is and is not allowed for government to do. If ALL cases were, in fact, decided on this basis, a lot more cases would be unanimous or nearly unanimous. The fact that so many are cliff-hangers and that one moderate justice is so often the "swing vote" is proof positive that many of the justices are NOT reading what the Constitution says, they are reading what they want it to say or what they wish it says.

[publius42]

Fortunately, the Court appears to be shifting towards the views of Thomas, as Jeffrey Toobin writes in The New Yorker.

Toobin is wrong. I wish he were right, but he's not.

Did you catch his evidence that the Court is moving toward Thomas on the commerce power? Very, very thin. He mentions the Lopez case, without mentioning that it overturned a previous version of the law, leaving the current one in place, where it remains.

He did NOT mention Morrison, another significant commerce case.

He most certainly was not going to mention Raich, because that subject is pretty much taboo everywhere these days. Had he mentioned it, he would have been faced with the inconvenient fact that Scalia, the other "originalist" in his article, voted the other way, and the fact that Thomas was in dissent. Two pretty big clues that "The Court" is not going his way; he can't even get Scalia!

Toobin's evidence was also thin in other areas. He quoted from an opinion without naming it. Does anyone know which opinion it was? Kelo. Another toxic, taboo subject. In addition to omitting the case in question with his quote, Toobin omitted the fact that Thomas was again in dissent.

[Tom Servo]

Scalia is the firebrand we hear about on the evening news. Thomas' influence runs just as deep, but it's far more subtle. It was his opinion in the Printz case that influenced the Emerson decision, which in turn gave impetus to the Heller case.

The New Yorker article is actually quite respectful. The parallels between Thomas and Hugo Black hand't occurred to me before, but I can see that now.

[Buzzcook]

Supreme Court Justice Clarence Thomas has amended 13 years’ worth of disclosure reports to include details of wife Virginia Thomas’s sources of income, documents released on Monday show.

The documents indicate that Thomas’s wife, who goes by Ginni, had worked for Hillsdale College in Michigan, the Heritage Foundation and the Republican leadership in the House of Representatives, among other entities.

Like all federal judges, Thomas must file annual disclosure reports on his personal finances, but he had omitted details of his wife’s earnings in what he wrote was a “misunderstanding of the filing instructions.” He also had checked a box marking no spousal income.

Thomas did not include in his new submissions any information about Ginni’s work for Liberty Central, a tea-party-affiliated group. The group’s 2009 990 tax form did not include any payments to her and she stepped down from her official role with the group in November.

Last week, watchdog group Common Cause reported that none of the nearly $690,000 the Heritage Foundation said it had paid Ginni Thomas between 2003 and 2007 had been reported on Justice Thomas’s annual financial disclosure forms.

Basically Thomas has cheated on his taxes for 13 years and lied about it in official government forms. If you or I did the same we would be in front of the bench not behind it as Thomas is.

As has become more apparent. Thomas perjured himself during his confirmation hearing.
http://www.politico.com/news/stories/1010/44051.html
http://articles.latimes.com/2001/jul/03/news/cl-18003

There would be an active investigation if you or I were accused of the same thing.

Thomas has signed onto some of the most activist decisions in the history of the court.
"Citizens United" made it legal for corporations to make unlimited anonymous contributions to political campaigns. Find an originalist argument for that.
"Alabama v. Garrett" Thomas sides with the decision that makes it illegal to sue your state in federal court.
"Ledbetter v. Goodyear" Thomas sided with the majority decision that Ledbetter could not sue for the wages she had been cheated out of, because she wasn't aware she was being cheated by Goodyear from time Goodyear started cheating.

Thomas is the antithesis of either a conservative or an originalist. That is unless your definition of "conservative" means pro-business political functionary and "originalist" means finding expedient justifications for political activism.

[Bartholomew Roberts]

Originally Posted by Buzzcook

Basically Thomas has cheated on his taxes for 13 years and lied about it in official government forms.

Thomas did not cheat on his taxes, and that is according to the New York Times, who hates Thomas. The Ethics in Government Act requires Supreme Court Justices to disclose their sources of income in order to promote open government. Thomas did not disclose income his wife earned under this Act until recently.

Suffice it to say that without getting into the politics angle that isn't a subject for conversation here, several of your other accusations are subject to a different interpretation than the one you gave.

"Citizens United" made it legal for corporations to make unlimited anonymous contributions to political campaigns. Find an originalist argument for that.

The First Amendment?

[Bartholomew Roberts]

And for the record, even before Citizens United, corporations could do all kinds of political favors - the New York Times being a prime example of a corporation who wields its power for political influence free of any campaign finance rule. Reason did an excellent article about why Citizens United isn't a disaster

[Brian Pfleuger]

Originally Posted by buzzcook

"Citizens United" made it legal for corporations to make unlimited anonymous contributions to political campaigns. Find an originalist argument for that.

Tell me where it's prohibited?!

That's the catch, and the single biggest error of interpretation today. The COTUS is not intended (primarily, substantially) to limit people or companies. It is intended to limit government interference with people and companies.

So many people see it backwards. How can I use this to influence, add power, usurp authority, enforce my will?

No. Wrong. The COTUS was intended to PREVENT undue government influence. LIMIT government power. MAINTAIN the authority of the people. ENSURE the will of THE PEOPLE.

Fact is, the National government should have very little influence on the day to day lives of people and companies. It's primary interactions should be with the states themselves and foreign powers.

The states should have more, but still limited, influence and power over people within their borders. The local governments should have yet more, but even still limited, influence over the people directly.

The people were to control the government. Not what we have today. THAT is the originalist argument.

[maestro pistolero]

Money is only part of the picture where influence is concerned. When the mainstream media (read: groups of individuals) supports a candidate or a piece of legislation, they are, in effect, throwing the entire weight of their assets behind that cause. And they have a right to do it under the first amendment.

So, now, do individuals or groups of individuals NOT in the media business.

[raisitup]

I don't trust any of those Supreme Court judges.... they've spent their whole lives paid by government.... how in the world can they more often than not divide 5 to 4.... most of these decisions are decided as a group in the back.... if it was really serious there is not way they would constantly have that 5-4.

I just visited Washington, D.C. and took the "tour" of the Supreme Court (where you sit in the courtroom and the tour guide speaks). If I remember correctly one of the facts mentioned was that over some time period that I can't recall a near majority of decisions handed down (i.e. nearly 50%) were 9-0 or 8-0. I guess you'll have to place your distrust solely on the fact that they're, um, government workers.

Ryan

[Webleymkv]

So many decisions are 5-4 rather than 7-2 or 8-1 because too many of the sitting justices were nominated as much for their political leanings as for their legal acumen. ALL cases before the SCOTUS are supposed to be decided on the basis of what the Constitution says is and is not allowed for government to do. If ALL cases were, in fact, decided on this basis, a lot more cases would be unanimous or nearly unanimous. The fact that so many are cliff-hangers and that one moderate justice is so often the "swing vote" is proof positive that many of the justices are NOT reading what the Constitution says, they are reading what they want it to say or what they wish it says.

That is simply human nature my friend and something that the founder obviously understood. If a SCOTUS justice could always be trusted to impartially interpret the constitution, we would need only one rather than nine. Consider also that the number of justices and lifetime appointments are in place to prevent a single administration from being able to "load the bench" completely with justices of one ideology. Through the current system, SCOTUS needs not be overly concerned with which way the political wind happens to be blowing at the moment nor can they be easily bullied by the administration or congress.

As far as 2A is concerned, I think we've got a pretty good bunch with the five-justice majority of both Heller and McDonald. The originalists like Thomas and to a slightly lesser degree Scalia are persuasive enough to ensure that 2A cases go our way, but the more moderate justices, Roberts and Kennedy in particular, temper them so that they don't "legislate from the bench" with unforeseen consequences.