Clarence Thomas on McDonald

Let's play a game, you get to have lunch with a Supreme Court Justice. Who do you pick?

For me it's always been Clarence Thomas.

Thomas is clearly the brightest guy up there. He's not always right mind you, but he's clearly the brightest and has the keenest understanding of the historical context.

Note in this context: Right = Agrees with Mark.

Consider Thomas's concurrence in McDonald.

Thomas's reasoning is exceedingly clear. The "rights of the people" listed in various places in the Bill of Rights are not granted rights, they are enumerated rights. I.e. they are innate rights not "procedural" rights.

This should be pretty clear to anyone who has actually read the Federalist, AND Anti-Federalist papers.

Thus invoking the due process clause of the 14th Amendment is stupid. It simply does not apply, and the proper way to apply the 1st through 8th amendments to the states is via the Privileges and Immunities clause.

So wile Roberts and Alito are willing to go to extraordinary lengths to honor stare decisis in order to get the proper result Thomas is more than happy to say the hell with precedent, the Constitution clearly says what it says, and if the court said otherwise in the past they were wrong then as well.

Note, there is an interesting side effect. The privileges and immunities clause specifically references "citizens" not "the people" and thus the end up-shot of McDonald is that strictly speaking, the court has only enjoined the states from violating the 2nd amendment rights of citizens, and not of legal resident aliens.

This raises the interesting question of whether Thomas would have invoked BOTH clauses had McDonald not been a citizen.