United Liberty

Bob Barr, a former Congressman and NRA Board Member, weighed in yesterday on the McDonald v. Chicago decision, which was handed down from the Supreme Court last week:

By a five to four majority last week, the United States Supreme Court ruled that neither a state nor a city acting under a grant of authority from the state, can deny a person the right to possess a firearm as guaranteed by the Second Amendment to the Constitution.  Interestingly, of that slim, five-member majority, only one justice had the constitutional backbone to rule the right way for the right reason.  It was not Chief Justice Roberts, and it was not Antonin Scalia, considered by many as the most conservative of the tribunal’s nine members.

Standing alone in his correct and bold interpretation of both the Second Amendment and the Fourteenth, which figured prominently in the Court’s consideration of McDonald v. City of Chicago, Illinois, is Justice Clarence Thomas.  Thomas — who was savagely attacked by Democratic opponents in the Senate when the first President Bush nominated him in 1991 – solidified his reputation as the true constitutionalist on the Court.
[…]
Justice Thomas, in his concurring opinion in McDonald, citied the legislative history of the 1868 Fourteenth Amendment, which included language clearly indicating one of its purposes was to ensure that freed slaves could not be deprived of their right to protect themselves by use of firearms. He then applied this history and reasoning to 2010’s McDonald case. Thomas’ more timid colleagues, while correctly concluding that Chicago’s gun ban was indeed unconstitutional, exhibited less courage by basing their ruling on the premise that the ban violated a citizen’s right to “due process of law.”  This majority opinion ensures continued wrangling over whether and to what extent the fundamental right to keep and bear arms can be limited by states and cities, based more on process than substance.

Justice Scalia, who sarcastically attacked Gura during the oral argument in the case last March, offered perhaps the least persuasive argument in favor of adopting the more limited, although questionable, “due process” basis.  The acerbic Scalia cited allegiance to a late 19th-century case that severely — though in the view of many constitutional scholars, erroneously – limited the reach of the “privileges or immunities” clause, as a reason for refusing to return the clause to its rightful place in constitutional law.  A precedent is, after all a precedent, even if it’s a bad one.

I’ll never understand why conservatives continue to idolize Justice Antonin Scalia and the rest of the pseudo-originalists on the court.

While he isn’t a liberal, he has done much to tear down the Constitution and expand government. For example, Scalia sided with the majority in Gonzales v. Raich, which further distorted the Commerce Clause by ruling that marijuana grown and consumed in California, which has a compassionate use law, could be regulated by the federal government. So much for origialism.