Justice Thomas and the Second Amendment: Protecting Liberty and Promoting Equal Justice

(By Steven G. Bradbury, Partner at Dechert LLP and Former Head of the Office of Legal Counsel during the Bush Administration and a Former Clerk to Justice Thomas)

So much of the power of Justice Thomas’s work on the Supreme Court springs from his vigilant contemplation of the fuller context of the Court’s decisions. Even when construing statutes, as much as in interpreting the Constitution, Justice Thomas exhibits a constant awareness of how the Court’s exercise of its duties contributes to the greater goals of preserving freedom and attaining equal treatment under law for all Americans. This judicial virtue is on full display in Justice Thomas’s Second Amendment jurisprudence.

By a single-Justice majority, including Justice Thomas, the Supreme Court has recognized that the Second Amendment protects an individual’s fundamental right to keep and bear arms for self-defense. District of Columbia v. Heller (2008). With the loss of Justice Scalia, of course, that basic constitutional right now hangs in the balance. But even if the individual right to own and use a firearm for self-defense survives at the high court, how far government may go to restrict and regulate that right remains a wide-open question.

In certain contexts, the Court has given the government extremely broad leeway to take away a person’s Second Amendment right forever, and Justice Thomas, alone among the remaining eight Members of the Court, has raised constitutional objections. Most Americans may be surprised to learn that Congress has imposed a lifetime ban on the possession of a gun by anyone who has pleaded guilty to a misdemeanor act of “domestic violence,” which the Court has said may include, for example, firmly squeezing a spouse’s arm. United States v. Castleman (2014). Most recently, the Court has interpreted this federal lifetime ban on gun ownership to extend to any “reckless” act that results in injury to a family member, such as texting while driving. Voisine v. United States (2016). Only Justice Thomas objected to this statutory decision on the ground that it treats a fundamental protection of the Bill of Rights “so cavalierly” as to relegate the Second Amendment to “second-class” status. It is difficult to imagine the Court would let Congress permanently revoke a person’s First Amendment right to use social media based on a single guilty plea for texting while driving, but that is essentially what the Court has said Congress may do when it comes to the right to keep and bear arms. Justice Thomas has stood firm against this encroachment on individual liberty.

He showed the same vigilant concern for liberty in his dissent (joined by Justice Scalia) from denial of cert review in Friedman v. Highland Park (2015), where the Court refused to hear a challenge to the City of Highland Park’s categorical ban on the possession of semiautomatic rifles, a common firearm safely used by millions of Americans for lawful purposes. Condemning the lower court’s willingness to sacrifice a provision of the Bill of Rights in favor of the local government’s interest in promoting a false sense of public safety, Justice Thomas observed, “If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing.”

And Justice Thomas has stressed the importance of the Second Amendment in our Nation’s long march toward equal justice under law, including equal justice for Americans of all races. When the Court held in McDonald v. City of Chicago (2010) (again by a tenuous five-to-four margin) that the Second Amendment’s individual right to keep and bear arms is binding on the States under the Fourteenth Amendment, Justice Thomas wrote separately, with particular focus on the savage legacy of slavery, to emphasize that this right should be viewed as a privilege of citizenship that no State may abridge.

The Fourteenth Amendment, he pointed out, was ratified “to repair the Nation from the damage slavery had caused” and was based on the historical lesson that “slavery, and the measures designed to protect it, were irreconcilable with the principles of equality, government by consent, and inalienable rights proclaimed by the Declaration of Independence and embedded in our constitutional structure.” One of the motivating purposes of the Fourteenth Amendment was to stop those exercising local authority in the former Confederate States from continuing to deprive African-American citizens of the fundamental right to keep and bear arms. Justice Thomas recited the history of how Southerners from before the Civil War had tried to suppress slave rebellions by depriving African Americans of their basic rights to learn to read, to speak out in dissent, to assemble peaceably, and to possess and carry firearms. In his separate opinion in McDonald, Justice Thomas, again alone among his colleagues, urged the Court to recognize, in light of this history, that the Second Amendment right was originally meant to be given stronger and more consistent application as a substantive guarantee protected by the Privileges or Immunities Clause of the Fourteenth Amendment, rather than being relegated to uncertain and situational application under the procedural protections of the Due Process Clause.

These Second Amendment precedents show Justice Thomas’s abiding dedication to ensuring that the substantive liberties guaranteed by the Constitution are given effective and meaningful protection and that the fundamental provisions of the Bill of Rights are applied equally and consistently for the benefit of all Americans.