Understanding Clarence Thomas’ extraordinary concurring opinion in McDonald v. Chicago
Damon W. Root | July 9, 2010
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.