Justice Alito should have thoroughly refuted both the DPC argument and the 9th argument. He should have refuted the DPC argument by insisting that the clause does not mean, it was never intended to mean, anything more than the literal words themselves, which only ensure that fair procedures are used before imposing a punishment on anyone. Alito has not, in Dobbs, explained it that way at all. (I can tell, from his concurring opinion, that Thomas believes in saying that very thing - fair procedures, that's all - but Thomas probably couldn't get all five in the Dobbs majority to agree to say it that way.)
Yeah, Alitio again in a decision that doesn't do what everyone knows needs to be done . . .
Consider for a moment where we would be today if Thomas's concurrence was the majority opinion in
McDonald v Chicago.
Slaughterhouse would be in the dumpster and the privileges or immunities clause would have been reinvigorated. . .
The 2ndA would be better enforced; hundreds of bad laws would be gone today, dozens of bad lower court decisions sustaining bad laws would never have happened (circuit court two-step) and all unenumerated rights would be constitutionally recognized and secured and the rickety 'substantive due process' / penumbral rights theory would've been jettisoned over a decade ago.
