The Right To Keep And Bear Arms

The most interesting opinion on the McDonald v. Chicago ruling from the Supreme Court on Monday actually came down from Justice Clarence Thomas, as the WaPo's Courtland Milloy documents.

Referring to the disarming of blacks during the post-Reconstruction era, Thomas wrote: "It was the 'duty' of white citizen 'patrols to search negro houses and other suspected places for firearms.' If they found any firearms, the patrols were to take the offending slave or free black 'to the nearest justice of the peace' whereupon he would be 'severely punished.' " Never again, Thomas says.

In a scorcher of an opinion that reads like a mix of black history lesson and Black Panther Party manifesto, he goes on to say, "Militias such as the Ku Klux Klan, the Knights of the White Camellia, the White Brotherhood, the Pale Faces and the '76 Association spread terror among blacks. . . . The use of firearms for self-defense was often the only way black citizens could protect themselves from mob violence."

This was no muttering from an Uncle Tom, as many black people have accused him of being. His advocacy for black self-defense is straight from the heart of Malcolm X. He even cites the slave revolts led by Denmark Vesey and Nat Turner -- implying that white America has long wanted to take guns away from black people out of fear that they would seek revenge for centuries of racial oppression.

Of course, Thomas's references to historic threats posed by white militias might have been dismissed if not for a resurgence of such groups in the year after Barack Obama's election as the nation's first black president.

And if their behavior turns as violent as their racist rhetoric often threatens, then Thomas will almost certainly go down in history as the nation's foremost black radical legal scholar.

Thomas, the only black justice, sided with the court's conservative majority in a 5 to 4 vote to give Otis McDonald, a 76-year-old black man from Chicago, the right to buy a handgun. In his lawsuit to repeal Chicago's restrictive handgun law, McDonald said he needed a gun to protect himself -- not from a white mob but from young black "gangbangers" who were terrorizing his suburban Chicago neighborhood.

Thomas agreed with McDonald, concluding that owning a gun is a fundamental part of a package of hard-won rights guaranteed to black people under the 14th Amendment. And just because some hooligans in Chicago or D.C. misuse firearms is no reason to give it up.

"In my view, the record makes plain that the Framers of the Privileges or Immunities Clause and the ratifying-era public understood -- just as the Framers of the Second Amendment did -- that the right to keep and bear arms was essential to the preservation of liberty," Thomas wrote. "The record makes equally plain that they deemed this right necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery." 

Even I have to admit I'm actually impressed by Thomas's argument here.  Many people completely overlook the entire reason for the case was that an elderly black man wanted to buy a gun to protect himself from gangs and couldn't.  Nobody in the legal analyst circles I've read even brought up Thomas's opinion.  And yet reading it, I cannot disagree with the man at all.

It's a bit shocking to see Thomas argue that owning a firearm is not just a Second Amendment issue, but a Fourteenth Amendment issue as well.  However, he's absolutely right.  As I've said before I don't own a handgun, but I support the right of people to make the choice to be able to own them.  It's my choice not to have one, and if I reach age 76 like Mr. McDonald here, maybe I would change my mind at some point.

But I would have the choice to do so.  And yes,  this means I'm admitting Clarence Thomas was actually correct about something.

Please check your lottery tickets.  Now, having said that:

I do have a problem with Milloy's near hagiography of Thomas here.  This one decision falls far, far short of rehabilitating one of the most mindlessly conservative anti-freedom hacks the bench has ever seen.  His opinions are almost universally dismal...this just happens to be one of the "almosts".  It's also mildly disingenuous:  I don't understand why the Second Amendment relates so clearly in Thomas's mind to the Fourteenth, but not the Fourth, for instance.  Thomas has all but gutted that over the years.  He's clearly doing this to serve the narrow interests of striking down Chicago's gun ban.  Why he's trying to pad his race cred, I don't know.  It clearly hasn't bothered him up until now.

The right opinion for the wrong reasons is still wrong.