Justice Thomas Speaks….And They Hear Nothing


When the late Justice Antonin Scalia issued a bold majority opinion, or a scathing dissent, that was all the buzz – that it was bold, or scathing, or something having to do with the intensity of it all. Nobody could give a fig about the substance of it, the constitutional logic behind it, what it meant for the maintenance of the Republic.Those pundits and pols who agreed with Scalia gave a big “Huzzah” and those opposed portrayed him as a curmudgeon.

Well Scalia is gone so it was a stroke of luck for the tabloidists today as Justice Clarence Thomas gave them “the lede”. He asked a question. Clarence Thomas rarely ever, almost never, does that in open court. So, yes, just that occurrence alone rated a remarking. But the issue itself, what he asked about? Will it generate any buzz?

The case in question involves the suspension of Constitutional rights – when it may legally occur and what the duration of said suspension may be. If we non-lawyers, non-scholars out here have not been paying rapt attention to the slow erosion of Constitutional rights in this country, have not kept up with the rapid expansion of the Federal Register and the volumes and volumes of US Code, not to mention what goes on not only in the 50 states but the thousands of municipalities across the country, we probably did not realize that the Second Amendment right to keep and bear arms may be withheld upon something as minor as a misdemeanor.

But Thomas peppered Eisenstein with several questions about Second Amendment gun rights, a topic no other justice had asked about. He noted that the law allows someone convicted of a misdemeanor assault charge to get a lifetime ban on possessing a gun “which at least as of now results in suspension of a constitutional right.”
“The suspension is not directly related to the use of a weapon?” Thomas asked.

Did that strike a nerve somewhere? Anywhere? Not only is the suspension of a constitutional right liable to take place for something as trivial as a misdemeanor, it can be imposed when the exercise of the right had absolutely nothing to do with the original offense. A guy got mad and slapped his wife. Not a gentlemanly thing to do, say all us decent folk, but for that he is henceforth unable to protect his home, his hearth, his family (if she forgave the cad), or even his self from even a felonius assault?

Yes, indeedy, replied the flummoxed attorney, still shell-shocked by the verbal outburst from the perpetually reticent jurist. In fact, the Second Amendment is not the only Right in the Bill Of Them liable to be voided if the pop culture demands it.

Eisenstein said he was correct, but that Congress passed the law to prevent people accused of domestic violence from later using weapons against a family member. She noted that violating other laws can in some cases limit a person’s free speech rights. Thomas then asked how long the suspension of the right to own a firearm lasts.
Eisenstein said it was indefinite.

So. RKBA, free speech. What else? Any other apples and oranges being paired up out there by our legislative/judicial “reformers”? Oh, yeah. Can you say “cakebakers”? Could you ever, in your wildest dreams envision a scenario where refusing to participate in the choreography of a wedding would result in your religious liberty being suspended? Can you imagine a Founding Father agreeing that because you use a cell phone to communicate with your fellow citizens, your Fourth Amendment right that there must be probable cause that you, specifically you, may be engaged in the furtherance of terrorism is suspended, indefinitely,so that the government may impound your personal data?

Sure, one can make emotional arguments in all of the instances mentioned above for suspension of constitutional liberties in certain cases, for certain people, in certain emergency situations and any number of scenarios, real or trumped up. You don’t want people predisposed to violence to be able to install surface-to-surface missiles in their back yard; you don’t want hundreds of people trampled to death because someone thought it would be cute to holler “Fire!” in a crowded entertainment venue and all that jazz.

The point, and what should be an exclamation point, is that Justice Thomas is not speaking merely to hear the sound of his voice. Neither is he speaking to obtain crucial information from the attorney-du-jour. He already knows the answer to his question and the other participants know the answer as well. Justice Thomas is speaking to us. He is speaking to those who aren’t so deaf that they will not hear. He is telling America that the Bill of Rights does not have to be repealed for it to be rendered moot. He is telling us “If you think the Second Amendment truly is one that guarantees respect for all the others, and you note that it can be suspended almost on a whim, do you not fear for all the rest?”

Justice Antonin Scalia knew, not only in his mind but in his soul, that many of the arguments appearing before the Supreme Court of the United States really had no business being there, and the mere fact of their being there amounted to nothing more than another nail in the coffin of the Republic, the Constitutional Republic, the Federal (as in ‘federation’) Constitutional Republic. In other words, that we even deign to talk about these things in an official capacity gives them a legitimacy they do not deserve.  Sure, when certiorari is granted, cases have to be heard. Sometimes even granting certiorari, or the acceptance of a case for review, is nothing more than getting hands dirty in order to stop the bleeding, or to keep a few live roots holding up the Tree of Liberty.

One of the last major cases Justice Scalia heard was the homosexual marriage case, whose outcome he lambasted as signifying that the end of the grand American experiment, which he believed to be divinely inspired, was nigh upon us. We do not know if it broke his heart. But he is gone.

If what Justice Thomas said in Court yesterday was a plaintive cry for the oathkeepers, the gatekeepers, and all the way down to the great unwashed masses to wake up and pay attention to the legislative/litigious assault on the founding principles of America, we can only pray that he be heard. And understood.


The other case involves William Armstrong III, who pleaded guilty to simple assault in 2002 after pushing his wife during an argument and leaving a “red mark.” Eight years later, police searching Armstrong’s home discovered six firearms and ammunition.



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March 2, 2016 7:31 am

I think we can look for Thomas to speak up more in the future. he and Scalia were generally of the same mind. Someone has to speak it.


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