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Justice Clarence Thomas: Second Amendment codified a pre-existing right to self-defense

In his tightly written opinion declaring New York’s highly restrictive concealed firearms carry law to be unconstitutional Justice Clarence Thomas delivered what we hope is the Supreme Court’s definitive statement declaring that the Second Amendment protects a natural right to self-defense that predates the Constitution and that is on par with the other rights set forth in the Bill of Rights.

As Justice Thomas wrote, Heller and McDonald expressly rejected the application of any “judge-empowering ‘interest-balancing inquiry’ that ‘asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.’” Heller, 554 U. S., at 634 (quoting id., at 689–690 (BREYER, J., dissenting)); see also McDonald, 561 U. S., at 790–791 (plurality opinion) (the Second Amendment does not permit—let alone require—“judges to assess the costs and benefits of firearms restrictions” under means-end scrutiny). We declined to engage in means-end scrutiny because “[t]he very enumeration of the right takes out of the hands of Government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Heller, 554 U. S., at 634. We then concluded: “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.”

We won’t review Justice Thomas’s exhaustive examination of the history of government attempts to regulate the keeping and bearing of arms. Suffice it to say that Thomas found them unpersuasive because they were inconsistent with the Founder’s understanding of the plain language of the Second Amendment.

And he and the other members of the Court majority likewise found the “two-step” process Appeals Courts often applied to assess the constitutionality of firearms regulations to be “one step too many.”

In sum, wrote Justice Thomas, the Courts of Appeals’ second step is inconsistent with Heller’s historical approach and its rejection of means-end scrutiny. We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Konigsberg, 366 U. S., at 50, n. 10.

This Second Amendment standard accords with how we protect other constitutional rights, wrote Justice Thomas. Take, for instance, the freedom of speech in the First Amendment, to which Heller repeatedly compared the right to keep and bear arms. 554 U. S., at 582, 595, 606, 618, 634–635. In that context, “[w]hen the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.” United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 816 (2000); see also Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767, 777 (1986). In some cases, that burden includes showing whether the expressive conduct falls outside of the category of protected speech. See Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U. S. 600, 620, n. 9 (2003). And to carry that burden, the government must generally point to historical evidence about the reach of the First Amendment’s protections.

Once again, as we saw in Justice Alito’s opinion striking down Roe and Casey, what Justice Thomas argued for was reliance on the factual basis upon which the Drafters of the Second Amendment based their text, rather the personal policy preferences of judges:

But reliance on history to inform the meaning of constitutional text—especially text meant to codify a pre-existing right—is, in our view, more legitimate, and more administrable, than asking judges to “make difficult empirical judgments” about “the costs and benefits of firearms restrictions,” especially given their “lack [of] expertise” in the field.

Justice Thomas forcefully rebutted the claim that modern judges could engaged in an “interest balancing” analysis when assessing the constitutionality of a firearms regulation.

The Second Amendment “is the very product of an interest balancing by the people” and it “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms” for self-defense. Heller, 554 U. S., at 635. It is this balance—struck by the traditions of the American people—that demands our unqualified deference.

The Drafters of the Constitution and Bill of Rights in consultation with the American people already did the interest balancing concluded Justice Thomas, and judges must defer to the balance that they struck in the words of the Constitution and Bill of Rights.

Finally, we cannot conclude our review and analysis of New York State Rifle & Pistol Association, Inc. v. Bruen without celebrating one of Justice Thomas’s most insightful points of historical analysis, his allusion to the infamous Chief Justice Roger Taney’s Dred Scott decision.

Justice Thomas wrote, “…we think a short review of the public discourse surrounding Reconstruction is useful in demonstrating how public carry for self-defense remained a central component of the protection that the Fourteenth Amendment secured for all citizens.

“A short prologue is in order. Even before the Civil War commenced in 1861, this Court indirectly affirmed the importance of the right to keep and bear arms in public. Writing for the Court in Dred Scott v. Sandford, 19 How. 393 (1857), Chief Justice Taney [a vocal Democrat notes CHQ] offered what he thought was a parade of horribles that would result from recognizing that free blacks were citizens of the United States. If blacks were citizens, Taney fretted, they would be entitled to the privileges and immunities of citizens, including the right “to keep and carry arms wherever they went.” (emphasis by CHQ) Id., at 417 (emphasis added). Thus, even Chief Justice Taney recognized (albeit unenthusiastically in the case of blacks) that public carry was a component of the right to keep and bear arms—a right free blacks were often denied in antebellum America.”

Blacks had “procured great numbers of old army muskets and revolvers, particularly in Texas,” and “employed them to protect themselves” with “vigor and audacity,” wrote Justice Thomas, “Seeing that government was inadequately protecting them, ‘there [was] the strongest desire on the part of the freedmen to secure arms, revolvers particularly’.”

We doubt a better example of why the Drafters of the Constitution put the Second Amendment in the Bill of Rights could be found in our history than the story of how unconstitutional firearms regulation was used to facilitate the subjugation of Black Americans in the post-Civil War South. The same forces in the Democratic Party that argue against the natural right of self-defense are still at work today, kept at bay only by Justice Clarence Thomas and a Republican-appointed conservative Supreme Court majority.

CHQ Editor George Rasley is a certified rifle and pistol instructor, a Glock ® certified pistol armorer and a veteran of over 300 political campaigns, including every Republican presidential campaign from 1976 to 2008. He served as lead advance representative for Governor Sarah Palin in 2008 and has served as a staff member, consultant, or advance representative for some of America's most recognized conservative Republican political figures, including President Ronald Reagan and Jack Kemp. A member of American MENSA, he served in policy and communications positions on the House and Senate staff, and during the George H.W. Bush administration he served on the White House staff of Vice President Dan Quayle.

  • Second Amendment

  • self defense

  • Constitution

  • concealed carry permits

  • Heller decision

  • McDonald decision

  • Constitutional rights

  • natural law

  • interest balancing

  • New York State Rifle & Pistol Association, Inc. v. Bruen

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