Many in the legal profession focus their Supreme Court decision review based on the areas of law in which they practice or otherwise have an interest in, but sometimes, the best support for a particular legal issue comes not from a case on point but in an opinion or concurrence which most would overlook. Last week, on March 30th, the Court issued a decision in Luis v. U.S., No. 14-419, relating to whether the Government can seize assets of a criminal defendant, prior to trial. While the topic may sound bland and unenticing to most, it is Justice Thomas’ concurrence that makes a profound statement about the Second Amendment – a statement that has been overlooked by almost all in the media and legal profession.
So what exactly did Justice Thomas say?
Constitutional rights thus implicitly protect those closely related acts necessary to their exercise. “There comes a point . . . at which the regulation of action intimately and unavoidably connected with [a right] is a regulation of [the right] itself.” Hill v. Colorado, 530 U. S. 703, 745 (2000) (Scalia, J., dissenting). The right to keep and bear arms, for example, “implies a corresponding right to obtain the bullets necessary to use them,” Jackson v. City and County of San Francisco, 746 F. 3d 953, 967 (CA9 2014) (internal quotation marks omitted), and “to acquire and maintain proficiency in their use,” Ezell v. Chicago, 651 F. 3d 684, 704 (CA7 2011). See District of Columbia v. Heller, 554 U. S. 570, 617–618 (2008) (citing T. Cooley, General Principles of Constitutional Law 271 (2d ed. 1891) (discussing the implicit right to train with weapons)); United States v. Miller, 307 U. S. 174, 180 (1939) (citing 1 H.Osgood, The American Colonies in the 17th Century 499(1904) (discussing the implicit right to possess ammunition)); Andrews v. State, 50 Tenn. 165, 178 (1871) (discussing both rights). Without protection for these closely related rights, the Second Amendment would be toothless. (Emphasis added).
This statement is so profound and logical; yet, many judges overlook it…or, possibly, their political views overshadow their oath to uphold the Constitution. Regardless, Justice Thomas, along with Justice Alito, appear to be the new voice for the Second Amendment on the Court. A voice that may be extinguished, if Justice Scalia’s replacement is not one who upholds and defends the oath that he/she has already taken and will again be required to take before taking the bench. With the elections quickly approaching, I cannot emphasize enough the importance of having a Constitutional jurist appointed to the Supreme Court.