Michael Barone

For many years, "the educated class" has denigrated the Second Amendment and argued that it was outmoded and only concerned national guards. But legal scholars, liberal as well as conservative, demonstrated that the Framers fully intended to protect citizens' rights to arm and protect themselves.

At the same time, empirical evidence has made it clear that gun control laws infringing that right left law-abiding citizens at the mercy of criminals. And empirical evidence in the 40 states that now allow law-abiding citizen to carry concealed weapons has demonstrated that they could be trusted to exercise that right responsibly.

The only alarming thing about the McDonald decision was that it was decided by only a 5-4 margin and could conceivably be reversed later by the court. As a practical matter, it allows reasonable restrictions on firearms while eliminating laws that attempt, futilely, to ban them altogether.

Thomas' colleagues, like many legal scholars, were evidently unwilling to join him in overturning The Slaughterhouse Cases and based their decisions on the privileges and immunities clause, presumably because that might undercut other precedents.

But Thomas, in my view, has the better logical argument. "The notion," he writes, "that a constitutional provision that guarantees only 'process' before a person is deprived of life, liberty or property could define the substance of those rights strains credulity for even the most casual user of words."

As he points out, the Court has used the due process clause to find rights -- notably the right to an abortion -- that are not specified in the Constitution, while at the same time four current justices have also used it to argue that a right specified in the Second Amendment does not apply to the states.

Thomas' concurring opinion points the way to a more principled jurisprudence, based more clearly on the text of the Constitution, while at the same time making the strongest of possible cases that Second Amendment rights are fundamental.


Michael Barone

Michael Barone, senior political analyst for The Washington Examiner (www.washingtonexaminer.com), is a resident fellow at the American Enterprise Institute, a Fox News Channel contributor and a co-author of The Almanac of American Politics. To find out more about Michael Barone, and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com. COPYRIGHT 2011 THE WASHINGTON EXAMINER. DISTRIBUTED BY CREATORS.COM


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