Clarence Thomas, Civil Rights, and the Second Amendment

In The New Yorker this week, Jeffrey Toobin has a long article on the judicial philosophy of Supreme Court Justice Clarence Thomas, focusing on the role that Thomas, along with his politically-active wife Virginia, may play "in killing Obama's health-care plan." It's nice to see that Toobin now recognizes Thomas' importance as an intellectual force on the Court. That wasn't always the case. In his 2007 book The Nine: Inside the Secret World of the Supreme Court, Toobin unflatteringly described Thomas as "a justice neither influenced by nor with influence upon his colleagues." Now Toobin worries that "the implications of Thomas's leadership for the Court, and for the country, are profound." So that's progress.

On the other hand, there are a few passages in the article suggesting that Toobin still has some more research to do. For example, Toobin writes:

In his jurisprudence, Thomas may be best known for his belief in a "color-blind Constitution"; that is, one that forbids any form of racial preference or affirmative action. But color blind, for Thomas, is not blind to race. Thomas finds a racial angle on a broad array of issues, including those which appear to be scarcely related to traditional civil rights, like campaign finance or gun control.

It's true that Thomas' landmark concurring opinion in McDonald v. Chicago provided a sweeping history of the 14th Amendment's roots in the anti-slavery movement—but that's only because the 14th Amendment was specifically designed and ratified to counteract 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. Anybody who really followed McDonald and the battle over Second Amendment incorporation against the states would have learned at least that much legal history. If Toobin really thinks that gun rights are "scarcely related" to civil rights, that's only because he wasn't paying attention.