He hardly ever speaks during oral arguments, often appearing asleep on the bench. But in his written opinion this week 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' 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, 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 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 be saying.
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 this 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.
© 2010 The Washington Post