Civil Rights and Armed Self-Defense

Understanding Clarence Thomas' extraordinary concurring opinion in McDonald v. Chicago

On December 11, 2002, the U.S. Supreme Court heard oral arguments in the case of Virginia v. Black. At issue was the constitutionality of a Virginia statute that prohibited the act of cross burning, a ban the Court later struck down as a violation of the First Amendment. As is often the case, Justice Clarence Thomas was preparing to cast a lone dissenting vote.

“It’s my understanding that we had almost 100 years of lynching and activity in the South by the Knights of Camellia and the Ku Klux Klan, and this was a reign of terror and the cross was a symbol of that reign of terror,” Thomas told Deputy Solicitor General Michael Dreeben during oral arguments. In his dissent a few months later, Thomas dug even further into American history, citing sources ranging from a scholarly encyclopedia of the Ku Klux Klan to contemporaneous reports of cross burnings, lynchings, and other acts of racist terrorism to make the case that cross burning was an act of thuggish intimidation that deserved no protection under the First Amendment.

It wasn’t the first time Clarence Thomas weighed in on America’s long and bloody history of racism—and it wouldn’t be the last. In his concurring opinion last month in the landmark gun rights case McDonald v. Chicago, Thomas held that the right to keep and bear arms is fully applicable against state and local governments via the Privileges or Immunities Clause of the 14th Amendment. In the process, Thomas provided a sweeping history of the 14th Amendment’s roots in the anti-slavery movement and its original purpose as a shield against the predatory actions of the former Confederate states, who sought to deny the civil, political, and economic rights of black Americans and their white allies—including the right to keep and bear arms.

This focus on African-American history left more than a few liberal commentators scratching their heads. Washington Post columnist Courtland Milloy—who recently said he would like to “knock every racist and homophobic tooth” out of the mouths of Tea Party activists—was shocked by the stirring words of the conservative justice. “This was no muttering from an Uncle Tom, as many black people have accused him of being,” Milloy wrote, perhaps alluding to his own previous unguarded thoughts about Thomas. “His advocacy for black self-defense is straight from the heart of Malcolm X.”

Had he followed Thomas’ career more carefully, Milloy would have discovered that the justice’s views stretch back even further than that. Thomas’ concurrence in McDonald draws from a long and uninterrupted line of civil rights activists who preached the virtues of armed self-defense. The great abolitionist leader Frederick Douglass, for instance, who famously urged President Abraham Lincoln to arm the liberated slaves against their former masters, was an outspoken champion of gun rights in the decades after the Civil War. American liberty depends upon “the ballot-box, the jury-box, and the cartridge-box,” Douglass wrote in his third and final autobiography, The Life and Times of Frederick Douglass (1881). Without these privileges and immunities of citizenship, “no class of people could live and flourish in this country.” Blacks therefore required all three.

Similarly, Mississippi doctor, entrepreneur, and civil rights activist T.R.M. Howard saw no reason to separate the struggle for racial equality from the case for armed self-defense. A founder of the pioneering Regional Council of Negro Leadership and a longtime ally of the NAACP, Howard acted as unofficial head of security during the highly publicized murder trial that followed the death of Emmett Till—a 14-year-old African American savagely murdered in 1955 for whistling at a white woman. Among other duties, Howard transported Till’s grieving mother, Ebony reporter Clyde Murdock, Rep. Charles Diggs (D-Mich.), and others who gathered to observe the trial to and from the courthouse each day in a heavily-armed caravan. Back at his large, lavishly provisioned home, Howard slept with a Thompson submachine gun at the foot of his bed. Like Douglass before him, Howard understood all too well the deep ties between the white supremacist regime and a disarmed black populace.

Even non-violent civil rights activists carried guns for self-defense. John R. Salter, one of the organizers of the famous 1963 sit-ins against segregated lunch counters in Jackson, Mississippi, declared simply, “I'm alive today because of the Second Amendment and the natural right to keep and bear arms.” As Salter recalled in 1994, he always “traveled armed” while working as a civil rights organizer in the Deep South. “The knowledge that I had these weapons and was willing to use them kept enemies at bay,” he wrote. “Years later, in a changed Mississippi, this was confirmed by a former prominent leader of the White Knights of the KKK when we had an interesting dinner together at Jackson.” As gun rights scholar Dave Kopel put it, Salter’s gun ownership allowed him “to stay alive in order to exercise his First Amendment rights to advocate for enforcement of the Fourteenth Amendment.”

It is altogether fitting, therefore, that the lead plaintiff in the landmark decision restoring gun rights to their proper place in our constitutional system is a 76-year-old African American grandfather and Army veteran who simply wants “a handgun in my house for my protection,” while the most constitutionally sound opinion in the case cites Frederick Douglass and was written by the Court’s one African-American justice.

To put that another way, McDonald v. Chicago is a resounding victory for both the Constitution and the civil rights struggle. Too bad it took such a long time coming.

Damon W. Root is an associate editor at Reason magazine.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Suki||

    I *heart* Justice Thomas :)

  • Some Guy||

    Blind squirrel, etc...

  • ||

    I like you, Clarence. Always have.

    *snaps fingers*

    Always will.

  • RSDavis||

    I've always found its better to have a gun and not need it than to need a gun and not have it.

  • ||

    I quote this everyday, along with my other maxim "There are no victims, only volunteers..."

  • Old Mexican||

    The great abolitionist leader Frederick Douglass, for instance, who famously urged President Abraham Lincoln to arm the liberated slaves against their former masters, was an outspoken champion of gun rights in the decades after the Civil War.

    Anti-gun activist:
    But blacks don't need guns to protect themselves because that's what the police is there for and . . . what are you guys laughing at?

  • Barry Loberfeld||

    +1

  • Fiscal Meth||

    To protect and taze? ...bro?

  • Chicago PD||

    Especially us. Ignore the multiple ongoing torture investigations that we will most likely lose.

  • Suki||

    +1

  • Robespierre||

    +2

  • Fiscal Meth||

    Good Work Justice Thomas! And good Work Root!

  • Chris||

    How many race lynchings have occurred in Chicago recently? I'm going to guess the number is close to 0. Thanks to the efforts of progressives race relations have come a long way in this country and minorities don't have to fear getting killed for saying the wrong thing around racist, knuckle-dragging whites. This is really a silly reason to claim the need to carry a gun. The inner cities need less guns, not more.

  • Jordan||

    Pssst. Handguns were already banned in Chicago, but gangbangers had no problem getting them. Only law abiding blacks were disarmed until this ruling. And the Chicago PD is one of the most abusive police departments in the country. I'm sure blacks would love to be at their mercy for personal safety.

  • Tony||

    A lot of the guns in states with strong gun laws come from states with weak gun laws.

  • Jordan||

    [citation needed]

  • The Libertarian Guy||

    Tony is just an anti-gun pussy.

  • ||

    Then clearly those "strong" laws against possessing guns are an epic fail.

  • bubba||

    Pablo, all we need is more cowbell.

  • Jason||

    Why would a criminal go through a background check and waiting period to pay for an overpriced gun when he or she could get one cheaper on the black market with no questions asked?

  • ||

    States like. . .Mexico?

  • RM||

    Clearly those states with weak gun laws would have higher crime rates - except they have significantly lower crime rates. And the other replies to this troll are good too.

  • zoltan||

  • LarryA||

    A lot of the guns in states with strong gun laws come from states with weak gun laws.

    How can that be? It's illegal under federal gun control law for a resident of Chicago to purchase a firearm in any state but Illinois, and it's illegal for anyone from another state to sell a firearm to a resident of Chicago.

  • ||

    You mean...criminals BREAK THE LAW?!?!?!? WHAT?!?! Bu...but... there are LAWS against that?!! What is going on?!?! Somebody explain to me what the hell is going on, PLEASE!!!! Someone who makes sense...like a prog troll like Tony the dipshit or Chris the moron.....Thank you.

  • Mike123||

    Ahhh, yes, great point. We just need to ban guns in the entire country. I mean, we all know that once we ban something across the entire country, it's impossible to get into the country.

    I'm off now to the corner to buy some heroin, or maybe some cocaine...nah, I'll just take it easy and get some pot....

  • Old Mexican||

    Re: Chris,

    How many race lynchings have occurred in Chicago recently? I'm going to guess the number is close to 0.

    Irrelevant.

    This is really a silly reason to claim the need to carry a gun. The inner cities need less guns, not more.

    Non sequitur. The fact that people today would have less to fear from race-related crime does not mean ipso facto their concern for OTHER crime has diminished nor does it mean people's right to possess firearms should be infringed.

  • ||

    Americans don't have to claim to have a "need" to carry a gun. It is our right to self-preservation and also specifically stated as a Constitutional Right in the 2nd Amendment.

  • ||

    We pack in my hood and the crims have moved elsewhere - down to the cities that have thos idiotic anti pack and conceal laws that limit the right to protect your ass.

  • Jason||

    Lynchings started to go down in the late 19th and early 20th century (the Progressive Era): Lynchings: By Year and Race.

    You could say that Jim Crow and the bans on black ownership of guns helped eliminate lynchings...

  • Adolf Hitler||

    I just love gun control laws!

  • Joseph Stalin||

    I just love gun control laws

  • Grand Wizard of the KKK||

    I just love gun control laws

  • Barrack Obama||

    I just love gun control laws

  • ||

    Don't forget Pol Pot, Mao Zedong, and kim Jong Il....

  • ABC||

    lulz

    How is it under that bridge?

  • Cookie Monster||

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  • Oscar the Grouch||

    I just love trash.

  • LarryA||

    How many race lynchings have occurred in Chicago recently? I'm going to guess the number is close to 0.

    “If it saves one life...”

  • ||

    Chris, have you ever talked to someone who lives in the inner city? Many of them want guns to protect themselves. Surely you know, you must know,that criminals have no problems getting guns. The days when a burglar would just steal and run away if he heard the owner of the house coming are long gone. Burglars now stick around to rape, beat up, and kill. People are genuinely afraid. They see quite clearly that a person who wants to commit a crime always has a gun. But an honest person can't get one.

    As for race fighting, if things go the way they seem now, blacks may need arms to protect themselves from other non white groups. The US seems likely to become a failed state full of race or ethnic based gangs permanently at war with each other.

  • ||

    minorities don't have to fear getting killed for saying the wrong thing around racist, knuckle-dragging whites. This is really a silly reason to claim the need to carry a gun.

    Yes, and white on black violence is the only kind. Well done.

  • Gabe E||

    +1

  • ||

    minorities don't have to fear getting killed for saying the wrong thing around racist, knuckle-dragging whites.

    A good reason not to worry bout whether racist, knuckle-dragging whites have guns, wouldn't you say?

  • Jordan||

    You're silly. He's worried about the darkies having guns. Gun control has always been about race.

  • ||

    Thanks to the efforts of progressives race relations have come a long way in this country

    Then why so many cries of "RACIST" from those same progressives?

  • ||

    +1000

  • T||

    Well, the rest of us unenlightened knuckle-draggers haven't caught up to the progressives' consciousness. We need to be reminded we haven't made the goal yet.

  • Tony||

    Well said.

  • Urkobold™||

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  • ||

    If this means "fuck you, Tony" then +1

  • Urkobold™||

  • Apostate Jew||

    Thanks for the link.

  • Almanian||

    Even three days after the fact, that is fucking awesome

  • ||

    Because progressives have learned to accuse others as a way to hide their own sins. Mote. Beam. Eye.

  • ||

    That's the Copperheads for you. From the plantation to the collective, slavery's best friends.

  • Teabagging douche||

    Only minorities are racist. Obama is a racist, obviously. Black people are RACIST!!!!

    Fucking liberals always crying RACISM.

  • TheOtherSomeGuy||

    They're throwing rappers into prison these days when they use the "The knowledge that I had these weapons and was willing to use them kept enemies at bay" defense.

    I refer you to TI's case as a prime example of the changing times...

  • Ron||

    Clarence Thomas is one of the greatest justices in the history of the US Supreme Court. But alas, the justices who make a muck of things which get more acclaim from the dinosaur media.

  • ||

    Indeed. This is one of the finest opinions written. The beauty is that it simplifies the law and related all back to what? Voters! An opinion that actually concerns itself with what regular US citizens would think something means as opposed to some inbred cabal of jurists. His decision is a miracle. But then again, it is rather unfortunate that it takes a miracle for a someone to break the mold and get it right.

    Makes you wonder why all these folk out there comment on Thomas' lack of intellectual prowess.

    Well, I for one find the truth is usually 180 degrees from what morons assert and imply.

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  • ||

    Clarence Thomas is a brilliant justice and often shows he has a deeper knowledge of American History and it's effect on law than do most of the other justices.

  • ||

    Perhaps most interesting is that no other justice posed a significant challenge to his reasoning, his history, or his reliance on P or I to reach his conclusion. Apart from the usual grumbling about what rights might be discovered through P or I, all that was said was that they weren't going to address the Slaughter-House decisions. P or I has a heartbeat thanks to Thomas, and Slaughter-House should be targeted.

  • ||

    @Odysseus?

    Anyone know any slaughter houses that have state granted monopolies? We really need to overturn slaughterhouse.

  • ||

    Heh. But Drew 458 has it right when it comes to the effect of the Slaughter-house cases and the ruling that resulting that came from them. Putting aside the question of whether the cases were decided correctly - and there's an argument they weren't - the reasoning in the decision, and stare decisis, has effectively nullified the P or I clause of the 14th.

  • heathermc||

    After 1745, Britain got serious about breaking Scotland's Highland Clans. Banning the kilt was secondary to disarming the entire population, throughout Scotland. Also, America's Second Amendment is an explicit riposte to Europe's laws that limited the right to bear arms to an Aristocracy (and to soldiers who were controlled by aristocratic officers.)

  • ||

    Exactly Odysseus. Slaughterhouses must go. It was too tightly focused. The 14th recognizes the Privileges (rights) of citizens and gives them clear Immunities from state infringement. While the decision was made about actual meat packing plants, the use of that decision is thousands of times bigger, and it effectively killed half of the 14A. Which was judicial activism of the worst kind.

  • ||

    As the hunted single white male in this era all I can say is we will not be intimidated.

    Who gives a rat's ass about all this crap when the regime in DC is the worst, recent race bating org in the history of the US.

    It's now cool to "get whitey". F that!

  • ||

    What a different world it might be if we had used the 14th ammendment to destroy Jim Crow and other govt. discrimination instead of taking away the citizens right to "discriminate" (i.e. to pick or choose) and handing it over to the Govt.

  • Kat||

    What? You mean the Federal government let the states violate the 14th Amendment for almost 100 years?

  • Henry||

    Weren't there are a number of years when the Progressives and Democrats and liberal heroes were in charge? Why did they not enforce the 14th amendment?

    Progressives like Herbert Hoover were wonderful people, always pushing big government, building dams and the like.

  • Alan||

    Great article. I'd also like to give a shout out to the late, great Robert F. Williams, of "Negroes with Guns" fame.

  • ||

    I guess my biggest indorsement of gun ownership is the difference between Afghanistan and Rwanda.

    When tribes go after each other with machetes hundreds of thousands die (i.e. Rwanda).

    When tribes go after each other with guns hundreds or thousands die (i.e. Afghanistan).

    Guns are simply the great equalizer in armed conflict.

  • D.Brooks||

    Heh. CMOS Digital saleBut Drew 458 has it right when it comes to the effect of the Slaughter-house cases and the ruling that resulting that came from them. Putting aside the question of whether the cases were decided correctly - and there's an argument they weren't - the reasoning in the decision, and stare decisis, has effectively nullified the P or I clause of the 14th.

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