Lund Comments on Thomas' Concurrence in McDonald

Professor Nelson Lund calls Justice Thomas' concurrence in McDonald v. Chicago on the basis of the Privileges or Immunities Clause the most interesting aspect of the Supreme Court's decision in that case.

Thomas' concurrence, says Lund, "rejects the plurality's reliance on the judicial fiction of substantive due process. Thomas relies instead on the original meaning of the Privileges or Immunities Clause. His opinion is scholarly and judicious, and it cements his standing as the only Justice who is more than a half-hearted originalist."

The endorsement by Heller of various gun control regulations that were not at issue in either of the cases leaves many important questions unanswered, says Lund.

Thomas' concurrence on the Privileges or Immunities Clause, SCOTUSblog, June 28, 2010. By Nelson Lund.

"One question raised by the disagreement between the plurality and Thomas involves the rights of noncitizens to keep and bear arms. The Due Process Clause (on which the plurality relied) applies to all 'persons' while the Privileges or Immunities Clause (on which Thomas relied) protects only 'citizens.' Thomas prudently declines to speculate on what difference this may make in future cases.

"The plurality is not so restrained. They reaffirm a number of irresponsible dicta in the Heller opinion that endorsed various gun control regulations that were not at issue in either case. Those dicta, however, still leave many important questions unanswered. Here are some examples:

"Heller endorsed bans on the carrying of concealed weapons, but said nothing about a right to carry weapons openly. Because the Second Amendment expressly protects the right to 'bear' arms, as well as the right to 'keep' arms, the text of the Constitution seems inconsistent with allowing the government to forbid both open and concealed carry of weapons. Such a ban would also be inconsistent with Heller’s emphasis on self-defense as the core of the Second Amendment right: most people are in much more danger of encountering dangerous criminals outside their homes than within them. But the issue remains open in the courts."

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