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  • The Second Amendment: Supreme Court offers handguns as affirmative action for the poor

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    The U.S. Supreme Court has found that the best way for African Americans, women, and other oppressed groups in America to improve their lot is to buy a gun.

    In an irony that is hard to overlook, in the very week that Republicans on the Senate Judiciary Committee would attack Elena Kagan for her association with civil rights activist and distinguished Supreme Court Justice Thurgood Marshall, the Supreme Court's conservative majority wrapped itself in the mantle of civil rights to celebrate the Second Amendment as a vital resource for the nation's downtrodden and oppressed.

    In their decision in the case of McDonald et al. v. City of Chicago, the five conservative justices extended the scope of the Second Amendment to the states and struck down handgun bans in Chicago and Oak Park, Illinois, framing their decision in the language of civil rights.

    In his majority opinion Justice Samuel Alito writes, “The right [to keep and bear arms] is especially important for women and members of other groups that may be especially vulnerable to violent crime. . . . The Second Amendment right protects the rights of minorities and other residents of high-crime areas whose needs are not being met by elected public officials” (McDonald v. Chicago [08-1521], Opinion of the Court, 43). In his separate concurrence, Justice Clarence Thomas suggests that the two most important rights denied to blacks in the South both before the Civil War and after it were literacy and guns (J. Thomas concurrence, 42-47).

    Alito locates the historical source of the Second Amendment in English common law: “The 1689 English Bill of Rights explicitly protected a right to keep arms for self defense” (20), forgetting to mention that today England bans virtually all privately-owned handguns. But in addition to constitutional arguments, Alito takes great pains to argue that nineteenth-century armed violence against southern blacks was due in part to the failure to extend Second Amendment rights to African Americans. He suggests in a series of historical references that a main focus of the 1866 Civil Rights act and of the Fourteenth Amendment was to protect the right of everyone to carry a gun without regard to race or previous condition of servitude (32, J. Thomas concurring, 44). Here are some of those references:

    Abolitionist authors wrote in support of the right [to bear arms] (Opinion of the Court, 22).

     

    After the Civil War, many of the over 180,000 African Americans who served in the Union Army returned to the States of the old Confederacy, where systematic efforts were made to disarm them and other blacks (23).

     

    The laws of some States formally prohibited African Americans from possessing firearms (23).

     

    Throughout the South, armed parties, often consisting of ex-Confederate soldiers serving in the state militias, forcibly took firearms from newly freed slaves. In the first session of the 39th Congress, Senator Wilson told his colleagues: “In Mississippi rebel State forces, men who were in the rebel armies, are traversing the State, visiting the freedmen, disarming them, perpetrating murders and outrages upon them; and the same things are done in other sections of the country” (24).

     

    In one town, the “marshal [took] all arms from returned colored soldiers, and [was] very prompt in shooting the blacks whenever an opportunity occur[red]" (25).

     

    After the Civil War, the Southern States engaged in systematic efforts to disarm and injure African Americans. These injustices prompted the 39th Congress to pass the Freedmen’s Bureau Act of 1866 and the Civil Rights Act of 1866 to protect the right to keep and bear arms. . . . the Fourteenth Amendment . . . was understood to provide a constitutional basis for protecting the rights set out in the Civil Rights Act (4).

     

    Disarmament by bands of former Confederate soldiers eventually gave way to attacks by the Ku Klux Klan. In debates over the later enacted Enforcement Act of 1870, Senator John Pool observed that the Klan would “order the colored men to give up their arms; saying that everybody would be Kukluxed in whose house fire-arms were found” (fn., 25).

     

    In debating the Civil Rights Act of 1871, Congress routinely referred to the right to keep and bear arms and decried the continued disarmament of blacks in the South. (29)

    To be fair, Justice Alito also notes the objections to post-Civil War attempts to disarm southern white militias. But he goes on to compare the systematic disarming of blacks in the Reconstructionist South with today’s handgun bans:

    African Americans in the South would likely have remained vulnerable to attack by many of their worst abusers: the state militia and state peace officers. In the years immediately following the Civil War, a law banning the possession of guns by all private citizens would have been nondiscriminatory only in the formal sense. Any such law—like the Chicago and Oak Park ordinances challenged here—presumably would have permitted the possession of guns by those acting under the authority of the State and would thus have left firearms in the hands of the militia and local peace officers. And as the Report of the Joint Committee on Reconstruction revealed . . . those groups were widely involved in harassing blacks in the South (32).

    Justice Alito is not suggesting that residents of Chicago and Oak Park arm themselves to protect against the depredations of their local police, but he does seem to be saying that extending the reach of the Second Amendment and striking down bans on gun ownership goes a long way toward reversing the evils of slavery and segregation. In addition,  he acknowledges the need for urban dwellers to arm themselves in order to protect their homes and persons from criminals, and he recognizes that urban dwellers, particularly African Americans, are the victims of disproportionate amounts of gun violence, citing the report of two Chicago legislators that “the number of Chicago homicide victims during the current year equaled the number of American soldiers killed during that same period in Afghanistan and Iraq and that 80% of the Chicago victims were black” (43).

    Adding to this portrait of the Second Amendment as a protector of civil rights is the fact that Otis McDonald, one of the plaintiffs in the case, is an African-American living in a crime-ridden Chicago neighborhood. In 2009, McDonald’s neighborhood of Morgan Park had the ninth-highest burglary rate of Chicago’s 25 police districts, though its violent crime rate was average for the city and its overall crime rate was slightly below the average (crime in Chicago is down over the past decade, though murders remain high, but murders in Oak Park have all but disappeared since that city passed its gun ban in 1983 [J. Breyer dissenting, 17]).

    Siding with the underdog is a position typically associated with the Court’s liberals, but as Richard Posner and others have noted, Second Amendment cases like Washington, D.C. v. Heller and McDonald v. Chicago have turned the Court’s conservatives into bleeding-heart activist judges interpreting a living Constitution that changes with the times, leaving the liberal minority to focus on strict construction based on the framers’ intent.

    In his dissent, Justice John Paul Stevens suggests that the connection between guns and civil rights may not be as clear as the majority holds: “Guns may be useful for self-defense . . . but they also have a unique potential to facilitate death and destruction and thereby to destabilize ordered liberty. Your interest in keeping and bearing a certain firearm may diminish my interest in being and feeling safe from armed violence” (J. Stevens dissenting, 36; the British comedian Eddie Izzard puts this more bluntly: “The National Rifle Association says that, ‘Guns don’t kill people, people do,’ but I think the gun helps”).

    Turning the Second Amendment into a civil rights issue seems a cheap shot, to say the least, since as Justices Stevens and Breyer argue in their dissents, statistics suggest that stocking up on .38’s won’t help the average American stare down armed intruders. And if we read the McDonald decision as a veiled return to the eighteenth-century principle that an armed citizenry is the best defense against a tyrannical government, then it’s easy to see that a gun-totin’ citizen hasn’t got a chance against today’s military, with its high-powered automatic weapons, air-to-ground missiles launched by drone aircraft, and tactical nukes.

    Fortunately not all conservatives are hiding their true disdain for minority rights behind self-serving civil rights metaphors. Right after the McDonald decision came down, Senate Republicans began excoriating Supreme Court nominee and current Solicitor General Elena Kagan for having clerked for Thurgood Marshall, the first African American to serve on the Supreme Court. Marshall made his legal mark when, as chief counsel for the NAACP, he successfully argued the twentieth century’s most famous civil rights case, Brown v. Board of Education (1954). He later served as U.S. Solicitor General, winning 29 or the 32 cases that he argued before the Supreme Court. According to the Washington Post, Marshall’s civil rights background is what made him such a dangerous presence on the Court in the eyes of today’s non-Court conservatives:

    John Kyle (R. Arizona) attacked Marshall as “a results-orient judge” who was guilty of an “unshakable determination to protect the underdog.”

     

    Jefferson Beauregard Sessions, III (R. Alabama), labeled Marshall “a well-known activist.”

     

    According to Charles Grassley (R. Iowa), Marshall’s legal view “does not comport with the proper role of a judge or judicial method."

     

    And John Cornyn (R. Texas) lambasted Marshall as “a judicial activist” with a “judicial philosophy that concerns me.”

    To sum up, in case you lost the thread: this week, Conservatives on the Supreme Court portrayed themselves as civil rights activists while conservatives everywhere else attacked civil rights activists like Thurgood Marshall (and, by implication, his one-time clerk, Elena Kagan) as unfit to serve on that same Supreme Court. Marshall was an Associate Justice of the Supreme Court from 1967 to 1991. He was replaced by Clarence Thomas.

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