In case you missed it in all the other political excitement this week, Justice Clarence Thomas asked a question of a lawyer during oral argument at the Supreme Court this week.  Thomas’ questioning was a big deal because he had not asked a question during oral argument in TEN YEARS.  What inspired him to speak up?  The answer to that question shows exactly where we are on gun rights, and why the current fight for the next Supreme Court justice is so important.

First off, I am not one of those people who says Thomas is an idiot because he never asks questions. I don’t think that is the case at all.   Every judge has his or her own style.  Most judges ask questions during oral argument, but some just sit there and look at you.  Some judges only ask questions of one side, and that is normally the side they are going to rule against.  When that happens, you just shut up and watch the show.  So whatever, Thomas doesn’t ask questions.  NBD.  But it is a big deal if he doesn’t ask a single question for ten years, and then all of sudden does.  

The case is Voisine v. United States, and the issue is whether a 1996 law that prohibits convicted domestic abusers from possessing firearms is constitutional.  You see, that is where we are on gun rights today, whether CONVICTED wife beaters can continue to own a gun.  The NRA would have you believe that the cutting edge issue is whether President Obama is coming for everyone’s shotgun, or ammunition, or both.  Not exactly.  The cutting edge issue is whether we can continue to have a law that has been on the books for TWENTY YEARS that prohibits convicted criminals from owning guns.

So here is where Justice Thomas comes in.  The court can decide this case without reaching the 2nd Amendment, and for reasons that are probably only interesting to first year law students, and then maybe.  But Justice Thomas wasn’t having any of that.  Justice Thomas pointed out that possession of a gun “at least as of now, is still a constitutional right,” and asked how we could have a law that suspends a person’s constitutional right for life.  Thomas asked if there was any other constitutional right that can be suspended based on a violation of state law?  For example, Thomas wanted to know, could you eliminate a publisher’s 1st Amendment right to publish FOR LIFE if he was convicted of a misdemeanor?

The answer, of course, is no, and there is whole body of law on what justification the government needs for restricting constitutional rights like freedom of the press, freedom of religion, etc.  Justice Thomas would elevate the right to own a gun to that same level, and measure any restriction on guns by the same standard, apparently.  This individual constitutional right to own a gun has only been around since 2008, when the Supreme Court, by a 5-4 vote, discovered this individual right in the 2nd Amendment, and used it to prevent laws requiring trigger locks or restricting ownership of handguns.  Justice Thomas would expand this individual “right” even more, and subject any government regulation on gun ownership to strict scrutiny.  He probably has three other votes that are with him on that (Roberts, Alito and Kennedy), and four against (Ginsberg, Breyer, Sotomayor and Kagan).  

The next justice appointed to the Supreme Court will break the tie.  Kind of a big deal, at least if you think wife beaters should be prevented from owning guns, and graduating to become wife killers.

While on the subject of Justice Thomas, Republicans have stated that they will oppose ANY judge nominated by President Obama to replace Justice Scalia.  Republicans are outside their minds on the appointment because it will likely swing the court to a 5-4 liberal majority, the first time the balance on the court has changed since Justice Thomas was confirmed in 1991, when he replaced liberal Justice Thurgood Marshall, the first African American on the Supreme Court.

Supreme court appointments since Justice Thomas was appointed in 1991 haven’t changed the balance on the court.  Bill Clinton’s appointments didn’t change anything–Ginsberg replaced liberal Byron White, Breyer replaced liberal Harry Blackmun.  George W. Bush’s also didn’t change much–Roberts replaced conservative William Rehnquist and Alito replaced Sandra Day O’Connor, although Alito is more reliably conservative than O’Connor was.  President Obama’s appointments thus far haven’t changed anything either – Sotomayor replaced liberal David Souter and Kagan replaced liberal John Paul Stevens.  That’s why the battle over the next Supreme Court nominee will be epic.  This nomination will likely swing the court for the first time in 25 years, since Justice Thomas was appointed.

And you can’t mention Justice Thomas without mentioning Anita Hill and Thomas’ confirmation hearings.  Well, I guess you can, but I won’t.  Anita Hill claimed that Thomas had sexually harassed her, and offered some absolutely shocking testimony before Congress.  Well, shocking by the standards in 1991, but today, maybe not so much.  In 1991, to get confirmed to the Supreme Court, Thomas was questioned about whether he ever bragged about his sexual prowess.  Today, the leading Republican presidential candidate brags about exactly that, and it doesn’t seem to hurt him one bit.  We live in interesting times.

Who can forget:

Did you ever say in words or substance something like there is a pubic hair on my Coke?  

No Senator.

Did you ever refer to your private parts in conversations with Professor Hill.

Absolutely not Senator.

Did you ever brag to Professor Hill about your sexual prowess?

No Senator.

Did you ever use the term Long Dong Silver?

 

Anita Hill testimony: