Clarence Thomas, Gun Control and the Case for Black Self-Defense
3 hours ago
Supreme Court Justice Clarence Thomas doesn't say much from the bench, rarely asking a question or revealing what he's thinking. But every so often he gives us a glimpse of what is underneath that taciturn exterior. And in his concurring opinion for last week's 5-4 court ruling in McDonald v. Chicago, which affirmed an individual's right to bear arms, Thomas bares his soul in words that reflect the weight of history he feels as a black man who came of age in white America.
Kudos to Washington Post columnist Courtland Milloy for bringing Thomas' words to the attention of readers. Only the most zealous court watchers typically read every concurring opinion, and occasionally there are gems to be found. Thomas traces his support for expanded gun rights to the post-Reconstruction era, when white citizen patrols went door to door to hunt down blacks suspected of possessing firearms. Disarming blacks was a way to calm white fears that this enslaved and oppressed population might seek revenge: "Then when the Ku Klux Klan and other white supremacist groups proliferated, the use of firearms for self-defense was often the only way black citizens could protect themselves against mob violence."
Milloy, like Thomas, is African-American, and he marvels at Thomas' unbridled advocacy for black self-defense. The opinion reads more like a manifesto that could have been written by Malcolm X, writes Milloy, who wonders if that's the reason none of the other justices acknowledged it. In the post-racial culture America strives to be, it is eye-popping for a Supreme Court justice to advance an unabashed race-based argument as the basis for arming citizens, and black citizens in particular. Thomas quotes Frederick Douglass, the black abolitionist and friend of President Lincoln, who said, "The black man has never had the right either to keep or bear arms," and until he does, "the work of the Abolitionists was not finished."
Those words were relevant in Lincoln's day, but they are out of date and out of touch with the America of today. The flaw in Thomas' judicial philosophy is its view that nothing ever changes, that he can interpret the Constitution the same way it was interpreted when blacks were enslaved, or in the days of Jim Crow, when they were denied basic rights, or when Thomas, now 62, was making his way in the world and bracing against every act of racism and every real or imagined slight directed at him.
In last week's gun case, the court affirmed the right of a 76-year-old black man from Chicago, Otis McDonald, to buy a handgun, which he claims he needed for protection from marauding "gangbangers" in his neighborhood. The gangbangers are presumably black, and the proliferation of guns in urban areas kills more blacks than whites, so smoothing the way for more people to own the handguns doesn't offer peace of mind -- quite the opposite. Justice Stephen Breyer noted in his dissent that the Chicago gun-control law, which was a near ban on the possession of handguns by private citizens, is credited with saving some thousand lives since it was put in place in the early 1980s.
Milloy points out somewhat wryly that if the white militias enjoying a resurgence since Barack Obama's election turn as violent as their racist rhetoric sometimes implies, then Thomas will look prescient and "will almost certainly go down in history as the nation's foremost black radical legal scholar." The more immediate problem for the black community, however, is black-on-black crime, made more deadly by the easy access to guns in a political environment where gun control seems to have no future.
Gun-control advocates took some comfort from the court saying that reasonable state and local restrictions can remain, so we're in for a spate of lawsuits as the NRA and its allies test how far they can go. In Virginia, gun enthusiasts celebrated a new law last week allowing people with concealed-weapon permits to carry their firearms into bars and restaurants that serve alcohol -- as long as they don't drink. The law was a victory for the Virginia Citizens Defense League, a gun-rights organization that makes the NRA look moderate.
The history of gun control tells us that it occurs on the federal level in spurts and typically only after the country is shocked by some horrific act. The Gun Control Act of 1968 was passed after two assassinations (Martin Luther King Jr. and Robert Kennedy); it prohibited felons, illegal immigrants and the mentally ill from purchasing guns. Another wave came in 1993 with the Brady Act, which required background checks for gun buyers, followed by the assault weapons ban of 1994, which was allowed to lapse in 2004. The passage of the 1993-94 laws required the efforts of a new Democratic president, a Democratic Congress and a Republican champion in Sarah Brady -- the wife of James Brady, who was grievously wounded in the 1981 attempt on President Reagan's life -- to overcome the pro-gun forces in both political parties.
It's been a decade and a half since any meaningful national gun-control legislation has passed, or even been attempted. The country has since been through the 1999 school shootings at Columbine, the 2007 massacre at Virginia Tech, and last year's shooting spree by an Army psychiatrist that killed 13 people and wounded many others at Fort Hood in Texas. All this violence and there's not a peep about gun control. Democrats have concluded it's a non-starter, and they don't want to repeat the experience of 1994, when they lost the House and Senate in part because of President Clinton's push for the Brady bill and the assault-weapons ban.
With an estimated 200 million guns in private hands, firearms are so ingrained in the American psyche that Clarence Thomas has nothing to worry about. Should the dreaded race war come to pass, there'll be plenty of weaponry to go around with or without this latest court ruling.