Thomas stands firm for Scalia

When Justice Clarence Thomas recently ended his record 10 years of silence during Supreme Court arguments, most of the comments were directed at the phenomenon itself, that a streak being broken. Thomas had not asked a single question from the bench during that period, while his eight comrades made it a practice to pepper advocates with more or less probing inquiries.

During that period, Thomas' silence was the subject of considerable comment, much of it derogatory, some implying that he was less than attentive to the arguments before him. His answer was that he did not like to interrupt counsel, and wished to allow advocates to present their cases as they planned.

Thomas should not have had to defend himself. No one learns anything while they are talking, and concentration on the arguments being presented may be the best means of making a thoughtful decision. He should have been given the benefit of a doubt during his silence. The reasons for his breaking his silence merit both personal and jurisprudential consideration.

The case being argued was Voisine v. United States, the appeal by a defendant convicted of a misdemeanor crime of domestic violence, with the resulting loss of the Second Amendment right to possess a firearm. A federal statute makes it a crime for anyone convicted of such an offenses to possess a firearm. The appeal raised a highly technical point, addressing whether the language of the violated state statute justified the denial of the right to possess a gun.

In fact the issue was a purely statutory one, the Supreme Court having granted a hearing only that argument, expressly declining to hear the contention that the Second Amendment right to gun ownership was involved.

Since the Supreme Court held in District of Columbia v. Heller in 2008 that the Second Amendment creates an individual right to possess firearms, Thomas and the late Justice Antonin Scalia, (both of whom concurred in the 5-4 decision, which Scalia wrote) had endeavored to assure that the lower courts properly recognize the case's constitutional mandate.

The Voisine case was the first since Scalia's death to suggest Second Amendment issues. Scalia had always been most active in questioning from the bench. With his absence (his seat remained vacant and draped in black during the argument), Thomas no doubt felt obligated to express their jointly held views on the subject.

The circumstances of the questioning were themselves unusual. The government attorney, Ilana Eisenstein, was defending the conviction, and the court had no more questions. She had completed her argument with 10 minutes left in her assigned argument time. She then said "If there are no further questions," intending to sit down. At that point, Thomas spoke up, "Ms. Eisenstein, one question." And it was a great question.

"Can you give me - this is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?"

She could not. In fact, Thomas asked seven questions in all, in the same vein. And never received a satisfactory answer.

The decision in the case has not been made as yet (the argument was Feb. 29), and it is unlikely that either the conviction will be upset or the question Thomas raised will figure in the decision. But the depth of Thomas' commitment to the Second Amendment should not be underestimated. Two appeals from Supreme Court denials of certiorari in earlier cases are relevant.

On June 8, 2015, Thomas, joined only by Scalia, dissented from the denial of certiorari in a case (Jackson v. San Francisco) in which the Court of Appeals had allowed a municipal ordinance to survive a Second Amendment attack. The dissent was critical of the appellate court, criticizing it for concluding that the burden the law placed on the gun owner (disassembly and a locked box) was not as severe as in Heller. The court, he wrote, should have taken the case to "reiterate that courts may not engage in this sort of judicial assessment as to the burden imposed on core Second Amendment rights."

Thomas and Scalia were the only justices to take this view. It takes four votes to grant certiorari for the Supreme Court to hear a case, and the individual justices' votes are not disclosed. The occasional dissent from a denial discloses the identity only of those who strongly believe the case should be heard.

Friedman v. Highland Park Illinois, decided Dec. 7, 2015, is almost the same case. The issue was a municipal law banning assault weapons. The Court of Appeals sustained the ordinance, the Supreme Court denied certiorari. Thomas was critical, finding that the appellate court had read Heller too narrowly, limiting Heller's effect to its facts, that is, forbidding only the outlawing of handguns for self-defense in the home. That result would leave firearms regulation to the political process. Thomas: "We cautioned courts against leaving the rest of the field to the political process." He said it would ignore the Heller holding that the right to keep and bear arms is an independent political right.

Although Thomas and Scalia dissented from the denial of certiorari again, two more votes to hear the case in the highest court were not forthcoming.

These two dissents complain that the lower courts are not following the law as set forth in governing Supreme Court decisions, and that the Supreme Court, by not accepting cases like these for review, is letting them get away with it. The Court of Appeals decisions involved in the two cases strongly suggest that the lower federal courts are not as committed to gun rights as the Supreme Court majority that decided Heller.

In the Jackson dissent, Thomas made perhaps the clearest statement of where he places Second Amendment rights in the pantheon of rights: "The Court's refusal to review this decision is difficult to account for in light of its repeated willingness to review ... decisions involving alleged violations of other constitutional rights." He cited cases sustaining challenges based on Eighth Amendment, Fourth Amendment, First Amendment, as well as cases involving punitive damages limits, habeas corpus and intimate personal behavior.

In Thomas' view, the right to a firearm is equated to freedom of speech and the other fundamental rights of citizenship.

With Justice Scalia's death, Justice Thomas is left to express forcefully the scope of the Second Amendment. It is not coincidental that the occasion for his breaking his silence was the absence of the legendary energetic questioner who shared his views. Thomas was the only member of the Supreme Court bench to participate in Scalia's funeral, offering a reading from scripture. It is not a reach to suggest that his breaking his silence was a highly personal statement.