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CaliforniaLiberal
04-16-2009, 2:11 AM
Nice post on TheHighRoad

http://www.thehighroad.org/showthread.php?t=443577



So I got to ask Clarence Thomas about the second amendment today...(long)
Today I attended a speech and Q&A session at the U of M law school in Minneapolis, where Clarence Thomas was fielding "anything goes" type questions. After several questions selected from submitted cards asked by the school administrators, Justice Thomas, noting earlier that he "doesn't do censorship" just started taking questions directly from the audience.

He fielded 3 questions relating to guns.

**While I am an incoming law student to the U of M, I don't yet know squat about the law in any real sense, so I'm going to give you the impressions that I got from his answers.**

Question 1: First question asked directly of the audience after he asked to stop taking questions selected by the administrators. It had to do with Montana's "Made in Montana" guns. For those who don't know, Montana is challenging the bounds of the commerce clause with this gun law by saying that so long as every part of the gun both is made in, as well as stays in, Montana, then those particular guns are not subject to federal laws. The question was, how did Justice Thomas think that was going to go over with the feds.

"Good Luck!" was his answer. He wasn't being snarky. He meant it. Good luck.

Based on his further elaboration my impression was (and again, this guy is way too smart for where I am now) that the commerce clause was totally out of control. When pressed a bit, he literally said "Have you seen the [SCOTUS] Court's jurisprudence on the commerce clause recently?" The implication of course being that it had been taken way out of context and was not being applied correctly. He also got into states' rights a bit, saying that he felt that the states had a sphere of influence which should not be lessened by certain cases where people were misusing the concept of Federalism (though I don't know which ones he was referring to).

Question 2: This was my question, halfway through. He also elaborated for me a little bit later at the reception afterward. I asked him if, in the wake of Heller, he felt that the level of scrutiny to be applied to 2A and the application of incorporation were ripe for visitation by the court, and to elaborate as best he could.

He didn't touch the level of scrutiny. Either he didn't want to and so just ignored it (possibly with good reason), or wanted to talk about incorporation so much, that he let the scrutiny level fall by the wayside in his answer. But talk about incorporation he did.

He didn't answer my question directly until afterwards, but he got on the whole issue of incorporation vs. selective incorporation (as opposed to just the incorporation of 2A) saying that when he was in school, the idea of selective incorporation was very controversial and he really left me with the impression that he thought the whole idea of selective incorporation was, shall we say, flawed. Not understanding my question, he said that he didn’t think that revisiting the doctrine of selective incorporation was going to be addressed by the SC anytime soon.

Afterwards, when we had a chance to shake hands, he wanted to make sure he answered my question fully, so he gave me a second chance. So I took it and asked him about scrutiny and incorporation with respect to just guns. Damn my legal ignorance, I didn’t know how to put the question to him exactly, but there were others there that wanted the same answer fortunately, so they helped me out. Again, he said nothing about scrutiny, but he did say, and I thought this was big, that incorporation was assumed in the Heller decision. He backpedaled a bit right afterwards, saying that the “problem” with Heller was that it arose in DC, and therefore incorporation wasn’t decided in that case, but he left me with a very strong impression that you’d have to be an idiot to think it didn’t apply to the states. That was my impression, not what he said.

In any case, encouraging, to say the least.

FWIW, he also said he’d like the opportunity to re-address the way incorporation is handled in the SC (although as stated earlier, he didn’t think it was likely to come up)

Question 3: This question was asked by a liberal, I think. I didn’t hear her very clearly, but I think I figured out her question based on Justice Thomas’ response. She asked a multi-part question which asked – in part – about “community empowerment” laws, including the gun ban in DC, essentially saying that if the community felt it was a good idea to ban the guns, why shouldn’t they be able to?

His answer was very short, and very sweet (and I paraphrase here): “With regard to the guns, I just looked to the second amendment, and that was that.” He then went on to answer the more “complicated” parts of her question dealing with 4A and 6A, implying that the gun question was an easy one for him to answer based on what it plainly said in the Constitution.

I guess it’s really no secret by now that he came out strongly pro-gun, but it was just so cool to hear a SC Justice talking like that.

Also, as a side note, since it came up when Heller was being argued, he was asked today why he didn’t ask questions during oral arguments. He came out strongly saying that what many of the Justices do today is simply (and these are my words here) playing games with the attorneys. He would rather give them time to say their piece and let them argue it out… essentially that this is mostly the lawyers’ time to say their piece, not to have Justices nitpick about questions they already have the answer to.

It was really an experience being there today. He was very understated, casual, and approachable while at the same time being larger than life. I was really encouraged at the way he circumvented the administrators and insisted on taking direct questions from the audience.

TheBundo
04-16-2009, 2:33 AM
Wow, wish I was there. I've spoke with many Congressmen, Senators, and a few men that became President later. But never a SC Justice.

hill billy
04-16-2009, 4:46 AM
That's the way questions of this nature should ALWAYS be answered, " I just looked to the Constitution." He's a good man.

Whiskey_Sauer
04-16-2009, 7:26 AM
Good stuff; glad you had this opportunity.

So he said nothing about strict scrutiny vs. rational basis tests for future cases under Heller? Too bad, but I understand why he couldn't comment on something like that. A glimmer would have been nice, though.

M. D. Van Norman
04-16-2009, 7:30 AM
… but he did say … that incorporation was assumed in the Heller decision. He backpedaled a bit right afterwards, saying that the “problem” with Heller was that it arose in DC, and therefore incorporation wasn’t decided in that case, but he left me with a very strong impression that you’d have to be an idiot to think it didn’t apply to the states.…

Justice Thomas, welcome to the government.

In retrospect, it’s easy to see why they tried so hard to destroy him. I am so glad that they failed.

DDT
04-16-2009, 8:21 AM
Very interesting that, in light of Nordyke, Justice Thomas felt that both 2A would be incorporated and that P&I vs. Selective Incorporation wouldn't be heard....

I would have to to believe that he feels the circuits will incorporate 2A selectively and that either SCOTUS would decline to hear the cases on appeal or that the respondants wouldn't make a P&I claim over and above the circuits selective incorporation ruling.

Nodda Duma
04-16-2009, 10:13 AM
That or he hasn't heard about Nordyke or some of the other Incorporation cases coming down the pipe.

-Jason

Legasat
04-16-2009, 11:08 AM
Let's hope he is right...