In sup­port of gun rights for blacks

Austin American-Statesman - - OPINION -

He hardly ever speaks dur­ing oral ar­gu­ments, of­ten ap­pear­ing asleep on the bench. But in his writ­ten opin­ion sup­port­ing the right to bear arms, Supreme Court Jus­tice Clarence Thomas roared to life.

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 5-4 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, con­clud- ing 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 Washington, 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.”

Thomas made no men­tion of the black loss of life and lib­erty from hand­guns be­ing wielded by other blacks. But he has made clear on other oc­ca­sions that the prob­lem is not that there are too many guns in the black com­mu­nity; the prob­lem is too many crim­i­nals.

He dis­missed the co­gent gun-con­trol ar­gu­ments of his re­tir­ing col­league, John Paul Stevens, con­jur­ing up the abo­li­tion­ist Thad­deus Stevens in­stead: “When it was first pro­posed to free the slaves and arm the blacks, did not half the nation trem­ble?” Let ’em quake, Thomas ap­pears to say. From Fred­er­ick Dou­glass, Thomas writes: “ ‘The black man has never had the right ei­ther to keep or bear arms,’ and that, un­til he does, ‘the work of the Abo­li­tion­ists was not fin­ished.’ ”

Be­cause of his con­ser­va­tive take on af­fir­ma­tive ac­tion and pris­on­ers’ rights, he has been cast as an un­couth African Amer­i­can who didn’t un­der­stand black his­tory, a dupe for arch con­ser­va­tive Jus­tice An­tonin Scalia and a man who couldn’t think for him­self.

What Thomas has cre­ated, how­ever, is a le­gal de­fense of the Sec­ond Amend­ment so thor­oughly orig­i­nal and starkly race-based that none of the white jus­tices would even ac­knowl­edge it, as if it were some blank sheet crafted by an in­vis­i­ble man.

That ought to be a clue enough for black peo­ple that the doc­u­ment is at least worth a look. You may not agree with his con­clu­sion, but there’ll be no mis­take about where he’s com­ing from.

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