Jurisprudence

Clarence’s Carnage

Justice Thomas’ Second Amendment opinions ignore the gruesome reality of gun violence. When he rules on death penalty cases, he fixates on it.

US Supreme Court Associate Justice Clarence Thomas sits for an official photo with other members of the US Supreme Court in the Supreme Court in Washington, DC, June 1, 2017. / AFP PHOTO / SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)
Supreme Court Associate Justice Clarence Thomas in Washington on June 1, 2017.
Saul Loeb/AFP/Getty Images

Justice Clarence Thomas makes no secret of his enthusiasm for guns. In the decade since the Supreme Court first found that the Second Amendment secures an individual right to bear arms, Thomas has written a series of opinions attacking laws that regulate gun ownership. On Tuesday, six days after the shooting in Parkland, Florida, the justice penned his fiercest firearm screed yet, condemning a California law that requires gun owners to wait 10 days before buying each additional weapon. According to Thomas, the Constitution prohibits states from imposing a brief “cooling-off” period on individuals who wish to stockpile guns.

In a powerful Atlantic piece, Garrett Epps points out that Thomas consistently fails to weigh “the consequences of widespread gun ownership” in his Second Amendment decisions—“the massacred families, the dead children, the ‘active shooter’ drills in our schools.” The one thing I’d add to Epps’ excellent piece is that there is one context in which Thomas is willing, even eager, to discuss the horrors that bullets can inflict upon the human body. Indeed, his death penalty opinions often read like public service announcements for gun control.

Thomas’ death penalty decisions describe shootings in graphic detail, lingering on the visceral brutality of gun violence. Consider his account of Jason Wayne Hurst’s murder of Daniel Lee Branch, from whom Hurst had just purchased a shotgun:

The two men met in a field, where Hurst asked if he could test-fire the gun. As Branch walked into the field to set up some cans and bottles for that purpose, Hurst opened fire. Hurst shot Branch three times. His first shot struck Branch in the ribs or stomach, prompting him to yell, “‘[N]o, no, don’t shoot.’ ” His second shot struck Branch in the side, causing him to fall. Hurst then walked over to Branch and shot him in the head, before taking his keys and driving off in Branch’s car.

Or his description of Kevan Brumfield and Henri Broadway’s attack on Cpl. Betty Smothers and Kimen Lee:

Brumfield fired seven rounds from a .380-caliber handgun at close range from the left side of the cruiser, while Broadway fired five rounds from a .25-caliber handgun from the right rear of the cruiser. Brumfield hit Corporal Smothers five times in the forearm, chest, and head. Lee was hit multiple times as well, causing 11 entrance and exit wounds, but she somehow managed to slide over on the bench seat and take control of the police car. She drove to a nearby convenience store, where she was able to call for help and to describe Broadway to police. Emergency responders transported both women to the hospital. Corporal Smothers was pronounced dead on arrival. Lee survived.

Or his lurid description, in a dissent issued just last month, of Keith Tharpe shooting his sister-in-law with a shotgun, rolling her body into a ditch, reloading, and then firing a second, fatal shot.

In Tharpe and Brumfield’s cases, a majority of the court ruled in favor of the defendant on narrow legal grounds, delaying execution. In Hurst’s, the court declined to review the judgment of a lower court. Thomas was furious that the court spared all three men from imminent death at the hands of the state. He used his dissents to force his colleagues to confront the defendants’ gruesome crimes—even though these facts were irrelevant to the legal issues at hand.

The justice ignores the reality of gun violence, by contrast, when the facts get in the way of his ideological extremism. His opinion in Silvester v. Becerra, the challenge to California’s 10-day “cooling off” period, is typical of his Second Amendment fulminations.* Studies indicate that waiting-period laws may save lives: These measures appear to reduce both homicides and suicides involving guns. The 9th U.S. Circuit Court of Appeals upheld California’s act, and the Supreme Court declined to review its judgment. In response, Thomas complained that his colleagues had turned “the right to keep and bear arms” into a “second-class right” and a “constitutional orphan.” He added that at least “four members of this court” would question a 10-day waiting period for abortion or cross-burning—two rights that, according to Thomas, are not protected by the Constitution.

Last term, the justice wrote a similar opinion, this time joined by Justice Neil Gorsuch, attacking a California law that limits the concealed carry of weapons. Once again, he chastised his colleagues for failing to appreciate the putative importance of guns in American life. “For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous,” Thomas wrote. “But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it.”

As Epps notes, these dissents have become something of a ritual. Thomas has also slammed a San Francisco measure that compels residents to keep their guns locked up; a federal law that bars domestic abusers from purchasing firearms; and a Highland Park, Illinois, ordinance that bans assault weapons. (He went out of his way to praise “AR-style semiautomatic rifles,” the weapon of choice for mass shooters, in the latter dissent.) In none of these opinions did Thomas seriously consider the other side of the equation—the lives saved by these modest restrictions on gun ownerships.

Indeed, reading Thomas’ Second Amendment opinions, you might get the sense that the justice is entirely unaware of the gun violence epidemic that plagues the United States. But his concurring and dissenting opinions in death penalty cases prove he is well aware of the carnage that guns routinely inflict on human bodies in this country.

Thomas would likely argue that there’s nothing inconsistent about his near-absolute opposition to gun control and his fixation on the atrocity of gun violence in the context of capital cases. In his jurisprudence, law-abiding gun owners always use their weapons responsibly and upstanding citizens must bear arms to protect themselves from monsters like Hurst, Brumfield, and Tharpe. Any restriction on firearms—from cooling-off periods to assault-weapon bans—only endangers the men and women who keep guns for self-defense.

The students of Marjory Stoneman Douglas High School could tell Thomas that this stark division between good guys with guns and bad guys with guns has no purchase in the real world. The gunman who shot up their school fired more than 100 rounds in several minutes, killing 17 people. He bought his gun legally. It was an AR-15–style rifle, the exact model Thomas alleged to be constitutionally protected.

American trauma surgeons have grown familiar with the effect ammunition fired from an AR-15 have on the human body. The rifle’s bullets travel three times faster than a typical handgun bullet and are far more lethal. They cause catastrophic bleeding and exit wounds the size of an orange. Most victims die on the spot.

Thomas did not see fit to discuss any of this when he opined on the importance of these weapons for “millions of Americans.” He did not acknowledge the risk widespread AR-15 ownership creates for the rest of us. (Mass shootings surged after the federal assault weapons ban expired.) Instead, the justice describes gun rights in gauzy abstractions about personal freedom and disregards the human toll of firearms—unless he’s discussing a death row defendant who, he believes, deserves to die. There is little consistency, and even less respect for human life, in the justice’s jurisprudence. There is only a fatalistic resignation to the notion that frequent mass slaughter is the price Americans must pay for liberty.

Correction, Feb. 23, 2018: This article originally misspelled the name of the case Silvester v. Becerra.

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