Hunter Biden, Clarence Thomas, and the Idiocy of Originalism

Now that Hunter Biden has been convicted of lying on an application to purchase a weapon while addicted to drugs, many have speculated as to how his lawyers will craft their appeal.  If they decide to do so on Second Amendment grounds, they have a powerful argument supplied by, of all people, Clarence Thomas.

In his zeal to create a society in which Americans can blithely walk through parks, shopping malls, or on the streets sporting their Glocks or AK47s, Thomas wrote in his majority opinion in 2023 in New York State Rifle & Pistol Association v. Bruen that the only controls on firearms possession that would not violate the Second Amendment must match those enacted in the wake of the amendment’s ratification in 1791. 

To justify that gobsmacking conclusion, with which the other five conservative justices concurred, Thomas retreated to his long-held devotion to “originalism,” which holds that “the U.S. Constitution should be interpreted as it was understood at the time of its adoption.”  To subscribe to this theory, it is necessary to pretend two things: first, that conditions more than two centuries ago have not changed sufficiently to justify a re-examination of the meaning of the Constitution; and second, that those who wrote the Constitution did not favor such re-examination.

Both are false.  That conditions have changed is obvious, but the second of these is less so.  In fact, however, at numerous points during the debates, delegates such as Edmund Randolph, Elbridge Gerry, George Mason, and even James Madison made it quite clear that the document they were drafting should be written to enable, not suppress, fresh looks and updated interpretations as circumstances changed.  In other words, the originals were not originalists.

Nonetheless, since Thomas and his fellow time travelers insist on ignoring the Founders by attempting to recreate an America where tricorn hats would be all the rage, it makes sense to examine Bruen and see what the decision actually postulates.

The suit was brought by two New Yorkers who were denied concealed weapons permits because they did not have “proper cause,” as required by New York law, which required that an applicant “demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.”  In other words, someone could not tote around weapons simply because he or she said it was needed for self-defense—a dubious justification for most, but one that just about anyone could use. 

The would-be gunslingers lost in both district and circuit courts and appealed to the Supreme Court, where Clarence Thomas was apparently licking his chops at the prospect of eviscerating a law that attempted to quell the epidemic of gun violence that disproportionately plagues Black Americans.  Because in 1791, carrying weapons in public (many of which could not be relied on to hit a target across the room) was common and permits were not required, “The Court concludes that [New York] failed to meet their burden to identify an American tradition justifying New York’s proper-cause requirement.”

Citing D.C. v Heller, which for the first time—and incorrectly—ruled that the Second Amendment did not apply solely to state sanctioned militias and therefore guaranteed the right to keep a weapon in the home for self-defense, Thomas went Antonin Scalia, the author of that opinion, one better.  “Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms, and the definition of ‘bear’ naturally encompasses public carry.”

Both opinions, theoretically based in history, got the history wrong.  If Thomas or Scalia went back to 1787, when the Constitution was drafted, rather than 1791, they would have discovered that the right—or the requirement—to own weapons was totally based on the need for militias because of the deep distrust and prohibitive cost of a standing army.  Even using 1791 as a base, Thomas would also have discovered that of the gun control measures that were in effect, the most common was a prohibition on African Americans, both free and enslaved, owning firearms.  Guess he’ll have to turn in the arsenal that he almost certainly keeps in his basement.

Thomas did concede that in certain “sensitive areas,” such as schools, churches, and government buildings, “courts can use analogies to ‘longstanding’ laws to determine whether modern regulations are constitutionally permissible.”

But his sensitive area standard was extremely limited and did not apply to public streets. Or parks. Or shopping malls. Or nightclubs.  Or movie theaters.  Or public transportation.  Or any number of places where people gather in close proximity.

Thus, just about anyone could carry a concealed weapon—and perhaps an unconcealed weapon—in densely populated areas, such as Manhattan, a point which New York stressed.  But Thomas, man of the open road and free luxury vacations that he is, would not be moved.

“[New York’s] argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense.  Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place’ simply because it is crowded and protected generally by the New York City Police Department.”

Ignoring the obvious lunacy of that statement, the “historical basis” argument brings us to Hunter Biden.

In the period Thomas and others cite, there was no weapons permitting per se. What restrictions on firearms there were tended to be, as he noted, for categories of place rather than categories of (white) person. As such, there is no historical basis for denying the right to bear arms to drunks, the mentally ill, spousal abusers…or drug addicts.

There were no drug addicts in the modern sense of the term in 1791.  Opium was pretty much the only addictive drug available, but there were no legal standards to define an addict, nor was opium addiction considered a crime.  There could, then, be no prohibitions on drug addicts of that era owning weapons.

And so, following Bruen’s reasoning, if the two New Yorkers who wanted to carry a pistol on the streets of Manhattan could not be denied permits, neither could Hunter Biden.  And, if he could not be denied a permit based on his drug addiction, the requirement that he admit to his addiction on the permit application would be self-incriminating and therefore unconstitutional.

His conviction should therefore be voided.

So, Justice Thomas, now that we’ve moved back to 1791, why not next apply “historical basis” to inter-racial marriage?