If the 74-year-old justice is reaping a bounty, it’s because he’s been planting seeds for decades. In particular, three issues have long motivated [Clarence] Thomas above all others. The first is guns. The second is rights. The third is race.
On guns, Thomas pioneered a robust interpretation of the Second Amendment before it became conservative dogma. As a justice, he first floated the idea that the amendment guarantees a “personal right” (his emphasis) to own firearms in a solo concurrence in 1997. It took 11 years for five justices to adopt that position in District of Columbia v. Heller — at least as applied to guns kept in the home.
Thomas wasn’t satisfied, though. In the years after Heller, he urged the court to take up more gun cases and further expand the amendment’s scope. When the court turned down those cases, Thomas wrote dissent after dissent, castigating his colleagues for treating the Second Amendment as a “constitutional orphan” and a “disfavored right.”
Earlier this year, he finally prevailed. In his majority opinion in New York State Rifle & Pistol Association v. Bruen — probably the most important opinion Thomas has ever written — he extended the right first recognized in Heller beyond the walls of the home, so the Second Amendment now protects individuals who wish to carry concealed handguns in public.
Most significantly, he enshrined originalism as the legal test for analyzing gun-control measures. Rather than looking at contemporary evidence about gun violence, courts must now strike down any gun restriction unless an “analogous” regulation existed centuries ago.
— James Romoser in John Roberts Is the Chief. But It’s Clarence Thomas’s Court.
Too bad this wielding of power by Thomas didn’t come to fruition 20 years ago.
Sad part is that but for the unforced GOP errors of appointing Justices Souter and Kennedy, much of this probably could have happened 20 years ago.
Remember, when Thomas first got on the Court, the conventional wisdom in legal academia and the courts (shared even by “conservative” judges like Warren Burger and Robert Bork) was that the Second Amendment didn’t actually protect anything . . . mumble mumble mumble Miller mumble mumble mumble. It wasn’t until the late 1980’s that the popular understanding of the Second Amendment started being taken seriously in legal academia for the first time in generations:
https://www.thetruthaboutguns.com/kates-and-levinson-a-post-bruen-look-at-the-roots-of-modern-second-amendment-scholarship/
That was what led to first Thomas, and then other justices, to do their thing.
Especially if this term, SCOTUS kills off Chevron deference, affirmative action, section 230 immunity, and other stuff that Saint Thomas been pressing for years, Thomas will go down in history as probably the most influential SCOTUS justice since Oliver Wendall Holmes. Recall also that he’s planted the seeds for getting rid of big media’s near complete immunity for defamation (NYT v. Sullivan), qualified immunity, substantive due process, the near-limitless reach of the interstate commerce clause, and many others.
He may not get all of them, but coupled with the quiet, generation-long work of the Federalist Society to find, groom, and shepherd people like ACB, James Ho, and a raft of other originalists into federal judicial positions, Thomas is effectively presiding over the biggest changes at the Supreme Court in the last 50 years.
The fun part will be if the GOP gets control of the Senate AND the White House in 2024 . . . then we’ll probably see Thomas and Alito retire and be replaced with even more hard core originalists like 5th Circuit Judge James Ho. That would cement originalist control over the Court for another generation.
And if the actuarial tables were to catch up with Sotomajor during that time . . . .
“And if the actuarial tables were to catch up with Sotomajor during that time . . . .”
That’s what baffles me. Why they wouldn’t consider her diabetes when selecting her for a lifetime position? That’s a bomb that can just go off at the worst possible time for them. A bit like how *everybody* knew Trump wouldn’t win, and what it cost them with Ginsburg on the high court.
This video is highly instructional. Watch how convinced they are that Trump will lose. How dead CERTAIN they are he will lose :
Thanks for your take, if he makes a dent in the ridiculously overbroad interpretation of the commerce clause he will have put a stake in the heart of always expanding power of the federal government. He is already the most significant modern Supreme Court Justice.
i am not surprised the only people upset and showing their behinds over Judge Thomas are members of the democRat Party. Same party that owns the legacy of slavery, segregation, Jim Crow, the kkk, lynching, Eugenics, Gun Control and other race based atrocities.
Make no mistake about it…Anytime a Black Man steps off the plantation today’s democRat Party gets upset like yesterday’s democRat Party.
Many blacks see the Dems as only using them for votes and then abandoning them. This includes black leaders of the Dem party that enrich themselves while leaving other black behind. They see the grift of BLM and want no part of it. They are now the ones suffering the most from the Biden/Dem policies. Living paycheck to paycheck as inflation hits all-time highs, having to decide which groceries you can and can’t afford, while trying to pay for gas, changes how you see the world and the people that have fucked you over.
And this is what it took for them to finally open their eyes to see reality.
As a justice, he first floated the idea that the amendment guarantees a “personal right” (his emphasis) to own firearms in a solo concurrence in 1997. It took 11 years for five justices to adopt that position in District of Columbia v. Heller — at least as applied to guns kept in the home.
The way I remember it, nine justices supported the individual right theory in Heller v DC, but only five of them believed that DC violated that right. Those nine included Breyer and Ginsberg. The four were obviously spouting dogma, not interpreting Constitutional Law. Yep, you have RKBA. Nope, a total ban on possession inside your home doesn’t violate that RKBA.
Technically, the dissenting four, although agreeing that it was an individual right, concluded that the opening clause of the second, “a well-regulated militia…” as limiting the right to keep and bear arms for the purpose of swerving in the militia, and not for the purpose of individual defense. So you could say that instead of “because we need a militia we need guns,” the clause means “in order to participate in a militia we need guns.”
How many have ever really read this….and understands the message, “most” only say from hearsay that it is our right to bear arms!
https://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution
Read “To Keep and Bear Arms: The Origins of an Anglo-American Right” by Joyce Lee Malcolm if you want the complete history.
Justice Thomas hit the nail on the head.
Today’s left calls originalism an extreme right ideology or some other epithet from their politically correct thesaurus. It’s a pity that most of them have never actually read our Constitution let alone our founders actual intent and rationale for it.
The GVR of a Mass. 2A case yesterday by the high Court shows we don’t need to have a case granted cert. and heard to get a positive outcome for our 2A rights.
We won big with ‘Bruen’. Expect them to double or triple-down on their hatred of our civil rights. Donate to 2A rights groups to keep the lawsuit pipeline loaded with quality challenges.
EDIT – Can anyone recommend an aftermarket Glock 17 slide/barrel combo for a Poly-80 build of decent quality that won’t make me broke? I don’t need optics cutouts or other such ‘bling’.
Many thanks… 🙂
G-man, I recommend Lone Wolf. I have used them for years, never had any issues.
https://www.lonewolfdist.com/
TTAG-POTG, Please support “Florida Strong”, donate to the Red Cross for H. Ian relief.
I am in contact w/ my friends on Pine Island, which to little surprise, is not getting any media attention. No surprise that the media is focused on the the $$ locations: Naples, Marco, Bonita…. Pine Island is cut off from the mainland, yet has seen looting going on from bad actors coming over on boats at night to rip off the waterfront homes and anything else they can get. They’ve hit Bob & Annie’s Marina pretty hard, stealing gas, diesel, outboard motors off of boats, etc. Little to no FEMA support. Inadequate police patrols, w/ literally no patrols at night. There have been at least 5 looters shot, but nothing on MSM. Almost 7,000 residents on the island. I have spoken w/ my friends about forming a formal militia. Lot of good people there that have given of themselves in past disasters to help others. They deserve our support.
Haven’t done much with glocks for over a decade and that is the first company that comes to mind………also try gunbroker for barrel/slide combos a buddy found a compatible option for his gen 4 glock 40 to do a shorter frame 45acp conversion.
Thanks everyone! 🙂
U.S. Patriot Armory has a plethora of options for P80 builds. Good quality stuff they make themselves.
Looks good, thanks to all who gave leads… 🙂
Swenson barrels at Midway USA. Or you might try Bear Creek Arsenal.
Thanks! 🙂
Yeah, one guy totally made up the idea that the Constitution means what it says, but not until 1997 /s
I never could wrap my head around how everywhere else in the Constitution “The People” denoted individual Rights. But in 2A it meant a collective Right to National Guard units. The People means all of the citizens, not just certain groups. Keep and Bear is to own, and to carry about on one’s person
Oh, I’m sure places like NY believe that 1A’s “right of the people peaceably to assemble” refers to a collective state power to have a State Assembly.
The idea came from Miller v. US. But that idea was entirely eliminated by Heller 9-0, much to the chagrin of the ACLU.
it is refreshing that somebody has brains out there. hard to come by these days.
Attorney Mark Smith at the ‘Four Boxes Diner’ YouTube channel has a few thoughts on the SCotUS denying cert. on the 2 bump-stock cases, and ‘Chevron Doctrine’ :
Fifteen minutes of blah blah blah buy my books blah blah blah two minutes of a suit in a lower court that won’t do squat and he can’t say Chevron Deference?
Budget Margaret Thatcher needs a better editor.
The path from “shall not be infringed” to “let’s just ignore that and infringe at will” up to todays “maybe we shouldn’t be infringing so much but not really” is long, stupid and a grand testament to mans innate desire to be ruled by petty tyrants.
It is just a “goddamn piece of paper” after all and if a bunch of academia eggheads and nerd losers want to come and take it they’re welcome to have a go.
When all is said and done we exist in a state of anarchy. That is the natural order. No amount of legislation, regulation or technology can negate reality. Therefore the only rights you have are the rights you are willing to kill for. All fights eventually devolve into kill or be killed.
“Conservatives and liberals largely agree with the premise of substantive due process, though they fiercely disagree on the specific rights that make it up. (Conservatives invoke certain economic rights; liberals invoke the rights to privacy and bodily autonomy.)”
That might be the way things used to be (maybe). But it certainly is not the way it currently is. Right now, there is absolutely no thought of ‘bodily autonomy’ or sense of ‘privacy’ within the minds of liberals. I’m not all that sure that these things have ever been there.
Abortion is not about a woman’s right to control her own body. Any woman that refuses that philosophy becomes a cast out. Much like how conservative blacks are referred to as ‘uncle Tim’s’. Women are treated as a tool, being coerced, as they are told “you will conform, do as your told, and abort your baby or you will be seen as a less than a woman. There is no autonomy here. Getting the Covid shots became the same thing, just amplified to the max on our entire society. Individuals are no longer allowed to choose for themselves.
None of this has any chance of success unless our language gets manipulated. When words get redefined and made to mean the exact opposite from their actual meaning, the result is mass confusion for the specific goal to control people and what the do and why. If we don’t get control of our education system then everything else becomes pointless.
Laurence Silberman, conservative judge who shaped Second Amendment jurisprudence, dead at 86 > https://www.msn.com/en-us/news/opinion/laurence-silberman-conservative-judge-who-shaped-second-amendment-jurisprudence-dead-at-86/ar-AA12xuzJ?OCID=ansmsnnews11
“Judge Laurence Silberman, an influential member on the U.S. Court of Appeals for the District of Columbia Circuit who was known for helping formulate Second Amendment jurisprudence, died Sunday, according to his son Robert Silberman.
…
The judge, appointed by President Ronald Reagan, is often cited for a 2007 appeals court opinion holding that a Washington ordinance regulating gun ownership was unconstitutional. Under the ordinance, handguns were essentially banned in the district and required that long rifles be disassembled or disabled even if they are kept inside a home.
In his court writings, Silberman sought to underscore the historical context for the right to bear arms as a protected individual right, not as a privilege solely connected to service in militias.
And in the Supreme Court’s 5-4 Heller v. District of Columbia ruling in 2008 to strike down the ordinance, the majority of justices at the time relied on Silberman’s own reasoning, being that the D.C. Circuit Silberman belonged to is considered the second-most powerful court in the nation. … “
This is also part of the Trump legacy. The man upended the wishy-washy Supreme Court, and turned it liberal.
We need to protect that status if we want to keep our guns, along with the right to worship as we see fit, to hold religious beliefs, free speech, and more. The so-called “liberals” are the ones trying to curtail all of those rights, and more.
And, I haven’t even touched or race relations. Liberals are setting things up for a race war, inflaming tensions around the nation.
Ooooops, Trump turned the Supreme Court CONSERVATIVE! How on earth did I type liberal in that first sentence?
Perhaps you thinking the traditional definition of liberal–leaning more towards freedom–than the currently (culturally?) appropriated version by social progressives?
adj.
2. relating to or denoting a political and social philosophy that promotes individual rights, civil liberties, democracy, and free enterprise.
noun
1. a supporter of policies that are socially progressive and promote social welfare.
This white Irish boy has one portrait of one Supreme Court Justice hanging in his house. Yes! The Honorable Clarence Thomas. The greatest mind on the court in our time .
It should be beside a portrait of Thomas Sowell.
And another of Walter Williams.
Wish the Leftist/fascists weren’t such racist bigots.
They try hard to appear not to be but cannot help themselves.
I will begrudgingly agree that New York State Rifle & Pistol Association v. Bruen is a step in the right (pun intended) direction; BUT…
1. Rights are unlimited, period. One’s ability to exercise a natural and Constitutionally protected right may have absolutely NO LIMITS whatsoever. Now, if whilst exercising that right you harm others, then certainly punishment is fitting.
2. Heller is deeply flawed. The “Common Use” test is absolute BS. At one time the MSR was not common. Would it be then be subject to bans? Miller (1934) had a far better test, “of efficacy to the military”. Any weapon of efficacy to the military (which is generally any weapon) is specifically protected by the introductory statement for the People.
3. The Bill of Rights is not, and can never be used as, a limit upon the People. The Constitution is a limit upon Government, period. The left beat the drum of “a collective right” was always BS as that mentality used the Bill of Rights as a limit upon the People.
4. Sensitive places bans are unconstitutional.
5. Bans on certain bad folk from having weapons after they serve their time is unconstitutional and plain stupid. If we, as a society, don’t trust you with a gun, why are you permitted amongst us in the first place? Is not a person who has done bad things not still a human being? Does he/she not have a right to defend life and love?
Justice Thomas is on the bubble; retirement, or internment. We have been fortunate, blessed, but reality always wins. The coming election, and the elections in 2024 just might actually be the most important elections in a century.
Take nothing for granted.
Geoff – new guy here, been reading the site for a while, but never posted before now. Check out https://mdxarms.com/ for aftermarket Glock slides, seem like decent quality, lots of options incl threaded barrels, RMR cuts, etc, without breaking the bank…I don’t know a lot about them, but looks like better quality than the Patmos & Swenson ones. I tried a Swenson slide once, had to mill out a ‘shelf’ portion inside that wasn’t finished using a Dremel just to get a 2nd brand of barrel to unlock…it made a roughly 1/16″ pinch point both left&right of the barrel hood, almost like they forgot to make a final pass with the milling machine ..Swenson is complete junk, I can’t steer customers away from them fast enough…Midway disapproved my scathing 0-star review, go figure…
It’s only as important as its effects. We’ll have to see if the court retains justices to maintain the theory of the decision.
After all, one majority can dismiss the ruling of a previous one rather easily, as we’ve seen this year.
“We’ll have to see if the court retains justices to maintain the theory of the decision. ”
Yesterday, the SC refused to review 2 cases trying to limit the ability of ATF to make law regarding bump stocks, one related to subjective criteria in deciding if a person can legally own firearms.
While bump stocks were the proximate cause of the first two cases, the core issue was whether ATF had legal authority to re-define terms in legislation.
In the third case, there were laws using highly subjective analysis of who was too dangerous to allow firearm possession. This case also was denied SC review.
In the fourth case, misdemeanor convictions barring firearm ownership for lime, SC GVR’d the case for re-trial under Bruen.
Armed Scholar:
Calm down. While disappointing, none of these are particularly surprising from my perspective as an appellate lawyer.
Bump stock cases . . . not surprised at all. Remember, these weren’t argued as 2A cases — basically Chevron deference cases, with a criminal law gloss. Additionally, the Fifth Circuit currently has one such case en banc (argued last month), and it might go the other way, so the Court may be waiting to see if the Fifth Circuit does it for them. So while I share the disappointment, there are lots of practical reasons I can see for SCOTUS not taking cert on them. Aways remember that >99% of all cert petitions are denied — even cases where there are glaring Circuit splits or clear errors. That’s just reality.
SCOTUS just heard argument on a case that could be the vehicle for nuking Chevron deference, and there are more in the pipeline. To nuke this longstanding precedent, the court will wait for the right case. Much as we’d like to see them stretch out and use the bump stock cases to do so, it is not surprising to me that they did not do so.
As for Whittaker, the case had serious mootness issues. As NYSR&PA #1 shows, that makes cert denial likely. Again, the reality is that SCOTUS generally takes only very “clean” cases. A mootness wart is typically fatal.
The last case (Morin) WAS vacated and remanded (1st Circuit, in a pre-Bruen opinion, used intermediate scrutiny). I’m more surprised they didn’t do it in the final order of the last term, but as I have commented before even under Bruen I see heavy sledding ahead for that case.
So, from a steely-eyed appellate lawyer perspective, I really don’t think any of these cases portend anything, and I think the podcaster above is more than a bit of a Chicken Little
“So, from a steely-eyed appellate lawyer perspective, I really don’t think any of these cases portend anything”
Thanx for the analysis.
My intent was to point out that Bruen isn’t kryptonite to gun control laws, and that some cases thought to be 2A can actually be more nuanced than that (Chevron defense, as you point out).
On the whole, for me the entire judicial system is as political as the executive and legislative branches of governments. The SC must appear to be “fair”, or “objective”, lest the other politicians shrink, or expand the court. Using Bruen to undo any and all perceived 2A cases would put the SC at risk of political attack.
Again, why does SC GVR, instead of overturning a case outright?
Where the court of appeals (and the district court) used a standard that is subsequently nuked by a SCOTUS decision, SCOTUS sends it back for them to do it over under the correct / new standard. (GVR => Cert petition granted, judgment vacated, case remanded)
For SCOTUS to reverse and render, there must be NOTHING left to do in the case. That’s never the case where, as here, the plaintiff got poured out on a motion to dismiss or summary judgment. Case has to go back for fact findings (which SCOTUS does not do except in the EXTREMELY rare cases where it has original jurisdiction (and even in those cases it usually appoints a special master to handle the trial).
At bottom, methinks your assessment of realpolitik motives for GVR is more than a bit simplistic. Jurisdiction and procedure are critical legal concepts that SCOTUS does take seriously.
@LKB
“At bottom, methinks your assessment of realpolitik motives for GVR is more than a bit simplistic. Jurisdiction and procedure are critical legal concepts that SCOTUS does take seriously.”
Thank you for replying.
“At bottom….” my assessment was that I did not know whether SC could actually render a final judgement, rather than GVR.
On the whole, I am skeptical of all court proceedings, because, like every other member of government, judges are political animals. Judges are either appointed by politicians, or judges run election campaigns to gain/retain their positions.