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Two out of three IS bad

Copyright 2014 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.The Associated Press
Tuesday, June 27, 2017 09:18 am

In the last few days, we've seen the Supreme Court strongly affirm the First Amendment and do serious damage to the Fifth Amendment.

And the tie-breaker is . . . unfortunately, a blow to the Second Amendment:

The Supreme Court has rejected a major 2nd Amendment challenge to California's strict limits on carrying concealed guns in public.

The justices by a 7-2 vote turned away an appeal from gun rights advocates who contended that most law-abiding gun owners in San Diego, Los Angeles and the San Francisco Bay area were being wrongly denied permits to carry a weapon when they leave home.

The justices let stand a ruling from the 9th Circuit Court of Appeals which held last year that the “2nd Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.”

In dissent, Justice Clarence Thomas, joined by Justice Neil M. Gorsuch, said the court's refusal to hear the appeal "reflects a distressing trend: the treatment of the 2nd Amendment as a disfavored right.”

What California tells its citizens is that they can carry concealed weapons, but only if they can show "good cause." This state law is enforced by the county sheriffs. In San Diego, Los Angeles and other urban counties, sheriffs have set a high bar for what qualifies as a “good cause,” such as a particular need for protection. “Simply fearing for one's personal safety is not considered good cause,” a San Diego official told a judge there.

For those of you gun-rights advocates who thought Second Amendment cases were all going the other way and that your worries were over, let this be your wake-up call. 

In a couple of big cases,  in 2008 and 2010, the court shot down ordinances in Washington, D.C., and Chicago that banned nearly all private possession of weapons, including the keeping of handguns at home for self-defense. So, the "right of self-defense" was thus established as a true constitutional right.

But in the home. The right to have a gun in public, concealed or otherwise, has not been established as a constitutional right. It has been argued back and forth in local jurisdictions all across the country. And with this decision not to take up the California case, it is a guarantee that those arguments will keep raging. It wouldn't be surprising to see a number of other states start going down the "good cause" route.

It should be noted that the court here merely declined to hear a case, which means what the California courts ruled still stands in that state. If the Supreme Court had actually heard the case and sided with California, then it would have applied to all 50 states, and the Second Amendment, as we have come to understand and appreciate it, would be in serious trouble. So maybe it would be more accurate to call this case a setback for the Second Amendment rather than a blow to it.

But it is also a useful reminder to pay attention to what's going on in legislatures and courts. Rights that have been hard-fought for by thousands for decades can be just one court decision away from disappearing. Never take them for granted.

It's worth noting in this case that new Justice Neil Gorsuch joined Justice Clarence Thomas, the most reliable constitutional originalist on the bench, in lamenting the treatment of the Second Amendment as a "disfavored right." Imagine telling someone he had to have a "good reason" to exercise his First Amendment right to free speech. Or that he had a right to speak his mind in his own home but not out in public.

Despite his short tenure on the bench, Gorsuch's votes and writing have so far shown him to be exactly the thoughtful and articulate conservative he as advertised to be, so chalk up at least one hooray for our side. 

The Associated Press also makes the Gorsuch-Thomas connection:

Gorsuch has already paired up four times with Justice Clarence Thomas — the court’s most conservative member — in separate opinions that dissent from or take issue with the court’s majority rulings.

 While the sample size is small, the results show Gorsuch’s commitment to follow the strict text of the law and a willingness to join Thomas in pushing the envelope further than the court’s other conservatives.

Of course the AP, it is fair to say, isn't exactly as thrilled as I am with that pairing. In fact, to the liberals-who-won't-admit-it at the news bureau, "a "commitment to follow the strict text of the law" is more insult than praise, as the AP makes clear in its reflexive smear of Thomas:

Thomas, appointed to the court in 1991, takes pride in his many dissents — often alone — insisting that the justices follow the original meaning of the Constitution even when that means overturning established case law. His absolutist stance has earned praise from conservative supporters. But critics point out that he rarely writes major opinions for the court because his views rarely align with the majority.

As john Hinderaker notes, the claim that Thomas' views rarely align with the majority” is absurd. Most Supreme Court cases are decided unanimously, so that assertion would be false as to any justice. In the 2016 term, Thomas voted with the majority in 51 out of 64 cases. As for the claim that Thomas “rarely writes major opinions,”"it depends on what the AP considers major. The justices tend to write about equal numbers of majority decisions. In the 2016 term, Thomas wrote six majority decisions, while Kennedy, Roberts, Alito, Sotomayor and Kagan wrote seven, and Ginsburg and Breyer wrote eight.

What does stand out about Justice Thomas is that he writes a lot of opinions. More than any other justice, he is committed to developing a coherent jurisprudential legacy, and he works tirelessly in both concurring and dissenting opinions to set out his views on the governing principles of constitutional and federal law. In last year’s term, Thomas authored a total of 28 opinions–six majority, twelve concurring, two concurring and dissenting, and eight dissents.

Perhaps the AP is faulting Thomas for being both principled and hard-working. No other justice wrote more than 18 opinions–that was Justice Alito–and Elena Kagan wrote only 8.

All of which is to say, if Justice Gorsuch really does follow in Justice Thomas’s footsteps, hallelujah.

"Coherent jurisprudential legacy" is right, even a bit of an understatement. Thomas is kind of a litmus test for me. Anyone who makes light of his intelligence, reasoning or understanding of legal history and principles simply hasn't read him and, furthermore, has as much understanding of the Constitution as I do of quantum mechanics.  I therefore find it hard to take such a person seriously about anything. 

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