What Clarence Thomas Gets Wrong About the Second Amendment

The justice’s consistent pro-gun arguments fail to reconcile rights with their lived consequences.

Never let it be said that Justice Clarence Thomas is overly concerned with appearances. Witness his release of a passionately pro-gun opinion, less than a week after a school shooting took 17 lives at Marjorie Stoneman Douglas High School in Parkland, Florida.

As near as I can tell, only two subjects excite this most phlegmatic of justices: the death penalty and the Second Amendment’s “right to bear arms.” I was present in Court two years ago when Thomas broke his 11-year silence on the bench—to ask Assistant U.S. Solicitor General Ilana Eisenstein why a misdemeanor conviction for domestic abuse should deprive the abuser of the right to possess firearms: “Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a state law?”

The quick-witted Eisenstein responded that Congress based the law on a record showing that “individuals who have previously … battered their spouses, pose up to a six-fold greater risk of killing, by a gun, their family member.”

But that answer didn’t satisfy Thomas. The following June, when the Court decided, 6 to 2, that Congress could outlaw gun possession by abusers, Thomas dissented, writing, “Under the majority’s reading, a single conviction under a state assault statute for recklessly causing an injury to a family member—such as by texting while driving—can now trigger a lifetime ban on gun ownership. … We treat no other constitutional right so cavalierly.” (Justice Sonia Sotomayor joined Thomas’s dissent as to the proper reading of the statute; but she refused to sign on to the section complaining that laws restricting gun ownership by abusers venture into “constitutionally dangerous territory.”)

Yesterday’s opinion was a dissent from the high court’s refusal to review California’s 10-day waiting period for purchase of a firearm. A district judge had struck the order down, in part because some people already legally possess guns, and should not be put to the inconvenience of waiting for 10 days for another one. The Ninth Circuit reversed, reasoning that “the 10-day wait is a reasonable precaution for the purchase of a second or third weapon, as well as for a first purchase.”

These dissents from denial of review have become almost a ritual. In June 2015, Thomas dissented when the Court denied review of a San Francisco ordinance requiring handgun owners to keep them in a gun safe or secured by a trigger lock. He found the law oppressive, in part, because one of the challengers,

… an elderly woman who lives alone, explained that she is currently forced to store her handgun in a lock box and that if an intruder broke into her home at night, she would need to “turn on the light, find [her] glasses, find the key to the lockbox, insert the key in the lock and unlock the box (under the stress of the emergency), and then get [her] gun before being in position to defend [herself].”

In December 2015, he dissented from decision not to hear a challenge to an Illinois city ordinance that bans possession and sale of “the most commonly owned semiautomatic firearms, which the City branded ‘Assault Weapons’” and high-capacity magazines. A lot of Americans own semi-automatic weapons, he protested.

The City’s ban is thus highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes. Roughly five million Americans own AR-style semiautomatic rifles. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.

This opinion was released five days after a married couple, Syed Rizwan Farook and Tashfeen Malik, stormed into a San Bernardino County agency holiday party with two assault weapons—one illegally altered to make it fully automatic and the other adapted to an illegal high-capacity magazine. In that attack, they killed 14 people and injured 22 others.

Last June, Thomas dissented when the Court refused to review an en banc decision of the Ninth Circuit that “there is no Second Amendment right for members of the general public to carry concealed firearms in public.”

Thomas’s dissents center around Heller v. District Columbia. In that 2008 case, the Court did hold, 5 to 4, that the Second Amendment guaranteed a law-abiding, non-felonious DC resident the right to possess a handgun in the home for purposes of self-defense. (Two years later, a 5 to 4 majority extended that right against the states as well.) But the Heller opinion, by Justice Antonin Scalia, was not an endorsement of any gun-rights claim anywhere by anyone:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Since those two decisions, enthusiastic gun advocates and some lower-court judges have battered other regulations of firearms such as the assault weapons ban or concealed-carry restrictions. Lower courts have been reluctant to extend Heller to cover rights line open-carry or assault weapons, and the Supreme Court has not granted review. Thomas believes that lily-livered lower court judges are rejecting gun-rights claims because they fear the consequences of firearms possession. “[C]ourts,” he wrote in the trigger-lock dissent, “may not engage in this sort of judicial assessment as to the severity of a burden imposed on core Second Amendment rights.”

In support of that claim, he points to language in Heller stating that judges should not “decide on a case-by-case basis whether the right is really worth insisting upon.” But his use of that language is misleading: The words were a response to Justice Stephen Breyer’s suggestion that the right to home-handgun possession—the only right at stake in Heller—could be eliminated in certain high-crime cities. The “case-by-case” inquiry it discussed was geographic. Heller did not say that the right itself includes possession of assault weapons or the right to carry concealed weapons in public.

In case after case, Thomas complains, the Court intervenes to protect rights like free speech, fair trial, and even reproductive choice—and yet ignores limits on gun possession. In Tuesday’s opinion, he wrote that, “I suspect that four Members of this Court would vote to review a 10-day waiting period for abortions, notwithstanding a state’s purported interest in creating a ‘cooling off’ period.”

That complaint is so silly that it exposes the flaw in all of Thomas’s “rights talk.” The central fact of reproductive rights is that a pregnancy lasts nine months. Thus, requiring a 10-day delay—nearly 4 percent of the total length—would make the right more dangerous to many women, and deny it entirely to some. The same cannot be said of the “need” to buy a weapon.

Though we call constitutional guarantees by the common term “rights,” each one of them involves different circumstances and different consequences. The First Amendment, for example, textually guarantees no fewer than six liberties—freedom from “establishment of religion”; “the free exercise” of religion; “the freedom of speech”; a concomitant freedom “of the press”; the right to “peaceably assemble”; and the right to “petition the government for redress of grievances.” These are phrased as immunities from government interference; but each one has spawned its own set of cases and judicial tests, because they are tested in different circumstances.

The right to assemble, for example, can be subject to fair-licensing procedures; the right to speak cannot. Other guarantees of the Bill of Rights involve the way government itself operates its courts and prisons—“searches and seizures,” grand juries, trial by jury, “assistance of counsel,” double jeopardy, “excessive bail” and fines, “cruel and unusual punishments.” Courts must apply each of them by balancing the needs of the state against those of individuals.

In none of these cases do courts apply the abstract guarantee to concrete facts without weighing the consequences of their decisions.

Seriously weighing the consequences of widespread gun ownership and use gives the Second Amendment jurisprudence a different twist. Eisenberg’s answer to Thomas in the domestic-abuser case, for example, struck me as a good one. A raft of studies have shown a strong correlation between gun possession by abusers and murder of their partners or families. Very few people who read the news in 2018 would conclude that America’s problems include a shortage of weapons in the hands of abusers.

In the trigger-lock case, the complaint about the elderly plaintiff also rings hollow. I myself am well-stricken in years, but I find it reassuring to know that a fellow senior might be required to awaken fully and put on her glasses before unleashing lethal violence on a blurry shape in the dark. And studies that show that firearms in the home present a much graver risk of suicide to the elderly than to the general population. A 2002 study found that older white men were at greatest risk, and that “[a]mong subjects who kept a gun in the home, storing the weapon loaded and unlocked were independent predictors of suicide.”

Is it really surprising that the First Amendment protects speech differently than the Second Amendment protects gun access? Speech is not violence; not even the most aggressive critic of “hate speech” would claim that angry words or symbols could kill 17 people in a few short minutes. Indeed, the rationale for broad protection of speech is precisely that it allows dissent to emerge without violence; the Second Amendment does not—and cannot—play a similar role in our political life. Not even justified self-defense is political speech.

In Tuesday’s dissent, Thomas complained that “[t]he right to keep and bear arms is apparently this Court’s constitutional orphan.” But in a world where consequences matter, the choice of the “orphan” metaphor is a particularly regrettable one: Guns in America have created real orphans in every city and state. No other right I can think of has done the same.

The steady increase in mass shootings in the United States is degrading our public life, deforming our educational system, and threatening our very existence as a nation rather than a Hobbesian dystopia. To Thomas, though, these consequences—the massacred families, the dead children, the “active shooter” drills in our schools, the national humiliation of being the only major nation with a mass-shooting problem—are simply irrelevant.

“There is danger,” Justice Robert Jackson once wrote in a different context, “that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

Well, by God, as I read the Bill of Rights, it’s not a homicide pact either.