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.