Last week, Justices Scalia and Thomas dissented from the Supreme Court's rejection of a challenge to an assault weapons ban by Highland Park, Illinois. What if the logic of that dissent was applied to other issues?

Justices Scalia and Thomas: Key Excerpts of their Opinions — Now and in Future

By James A. Kidney

Excerpts from recent opinions by Supreme Court Justices Clarence Thomas and Antonin Scalia:

This week:

Friedman v. City of Highland Park, Illinois, denial of certiorari, Thomas joined by Scalia dissenting (Dec. 7, 2015).  Denial of cert meant that the suburb’s ban on assault weapons is legal.

The City’s ban is thus highly suspect because it broadly prohibits common semiautomatic fire- arms used for lawful purposes. Roughly five million Americans own AR-style semiautomatic rifles. . . . The justice-scalia-did-not-know-you-cant-get-hbo-for-freeoverwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. . . . Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.

Future opinions by Justices Thomas and Scalia:

Big Pharma v. Federal Food and Drug Administration, denial of certiorari.  Thomas and Scalia dissenting:

The FDA’s heavy restrictions on narcotic sales through pharmacies — virtually a ban —  is suspect because it broadly prohibits access to heroin, cocaine, crack, morphine and other drugs that give comfort to as many as 30 million people. The overwhelming majority of citizens who own and use these drugs cause at most minimal damage to their friends, family and community.  Benefits of these drugs include reducing pain, both mental and physical, and limiting mobility, thus keeping drug users in their own neighborhoods.  This is sufficient for the free availability of such drugs to be a right under the Due Process clause of the Fifth Amendment. v. U.S. Department of Justice, denial of certiorari.  Thomas and Scalia dissenting:

Although portrayed by the Government as law enforcement for the protection of children, the laws at issue, banning the offering of under-age children for alleged sexual activity, is, as the defendant claims, overbroad and violates Due Process.  It is another of many examples of regulatory overreach applied to struggling small businesses.  As we noted for the majority in Wal-Mart v. National Labor Relations Board, Clarence Thomasunder-age children and large corporations have a constitutional right to bargain  for employment.  There is no reason to single out in-home employment for discriminatory treatment. Millions of men hire young girls and boys to visit their homes and limit their enjoyment to watching the child take off his or her clothes to get ready for bed, in the nature of a baby sitter.  The fact that there are a few bad apples should not condemn the whole barrel.

Fisher v. University of Texas, majority opinion by Thomas, joined by Scalia, Chief Justice Roberts, Justice Suter and Justice Kennedy:

While it is sad that the plaintiff’s principal problem is an addiction to suing the University of Texas, the issue she raises is a serious one: Should minorities be given special credit for the fact that he or she is a minority in admission to the law school?  Our answer is no.  Slavery was abolished by the 13th Amendment.  Its inference is that black folk, Spanish folk, Yellow folk and white folk are all on their own.  Millions of men and women have attended law school, other professional schools, and undergraduate college without special help,a few of them minorities.  But it is clear that affording special treatment to minorities on admission to law school does not necessarily make them good lawyers or better people.  I went to Yale.

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