Freedom Line Blog

Any reader familiar with Supreme Court Justice Antonin Scalia knows his professional reputation is etched with the cuts of (seemingly) a thousand harshly worded dissents.  In fact, they are so clear and compelling there’s a book called Scalia Dissents that catalogues some of his most pointed opinions.

Justice Clarence Thomas takes a different approach.  His most intriguing opinions usually come in the form of concurrences, agreeing with the conservative majority’s result, but not its process.  The most recent example was his unchallenged concurrence to the Chicago gun rights case (McDonald v. City of Chicago).  In it, the Court’s clearest thinking – and best writing – justice observed that “due process” of the 14^th Amendment guarantees nothing more than the process due a person before taking his life, liberty or property.

In other words, the government can deprive a person of any one or all three, it just needs to establish a scheme for doing so.

Thus, if it’s true that there are certain fundamental rights – like the 2^nd Amendment’s guarantee to carry a weapon for self-defense – that cannot be infringed by states and localities, conservatives and liberals will have to look somewhere other than the due process clause to protect them. Justice Thomas found the mechanism in the 14 Amendment’s privileges or immunities clause.  Not only does it fit with the intent of the amendment’s framers, it boasts the honor of not confusing the process of depriving rights with the substance of those rights.

All lawyers should strive to be so helpful.