Tuesday, August 23, 2011

Jeff Toobin's History: Scarcely Related to Reality

Jeffery Toobin’s new piece on Justice Clarence Thomas and his wife Ginni leaves one wanting. I was waiting for a “gotcha” moment or perhaps a revelation about the couple that I hadn’t previously known or, at least, anything of interest that would warrant a few thousand words in the New Yorker.

Instead, what I read was a bunch of intimation about the Thomases traveling in conservative social circles, the revelation that Justice Thomas is an originalist (!!!), and a smattering of information about his life on the High Court.

One could have gotten as much useful information off of the justice’s Wiki page.

But what got me about the article wasn’t its complete lack of substance—an appalling lack, though it was, given the outlet and the author’s credentials as an astute Court watcher—but its blatant whitewashing of 14th Amendment history. 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.* In Thomas’s view, the Constitution imposes an ideal of racial self-sufficiency, an extreme version of the philosophy associated with Booker T. Washington, whose portrait hangs in his chambers. (This personal gallery also includes Frederick Douglass, Abraham Lincoln, Ronald Reagan, and Margaret Thatcher.) *emphasis mine

I don't want to get into the campaign finance argument, but the gun rights comment was just too patently ignorant to let go.

Apparently looking to emulate his CNN colleague Wolf Blitzer and become the witless wonder of legal journalism, Toobin exhibits no respect for the substance of either the Heller or McDonald amicus briefs or decisions. Beyond that, Toobin should have a reasonable enough grasp of history—and by reasonable, I mean a basic, non-sanitized history understood by grown-ups—to be familiar with the stripping of blacks' legal protections that came in the post-Reconstruction era and continued up through the Civil Rights Movement of the 1960s. When marauding bands of hooded murderers ride the nights on horseback, the ability to protect one's family from them is very much a civil rightand the systematic removal of those rights doesn't require a special “angle” of jurisprudence to understand. 

UCLA law professor Adam Winkler penned a piece for the September issue of the Atlantic called “The Secret History of Guns.” Professor Winkler spent nearly 2400 words (of roughly 4700) detailing the explicitly race-based nature of various gun control actions—from Andrew Johnson unsuccessfully vetoing the gun rights of Freedmen (the legislative precursors to the 14th Amendment) to then-Governor Ronald Reagan capitalizing on the spectre of armed Black Panthers at the California capitol. A snippet:

Indisputably, for much of American history, gun-control measures, like many other laws, were used to oppress African Americans. The South had long prohibited blacks, both slave and free, from owning guns. In the North, however, at the end of the Civil War, the Union army allowed soldiers of any color to take home their rifles. Even blacks who hadn’t served could buy guns in the North, amid the glut of firearms produced for the war. President Lincoln had promised a “new birth of freedom,” but many blacks knew that white Southerners were not going to go along easily with such a vision. As one freedman in Louisiana recalled, “I would say to every colored soldier, ‘Bring your gun home.’”

After losing the Civil War, Southern states quickly adopted the Black Codes, laws designed to reestablish white supremacy by dictating what the freedmen could and couldn’t do. One common provision barred blacks from possessing firearms. To enforce the gun ban, white men riding in posses began terrorizing black communities. In January 1866, Harper’s Weekly reported that in Mississippi, such groups had “seized every gun and pistol found in the hands of the (so called) freedmen” in parts of the state. The most infamous of these disarmament posses, of course, was the Ku Klux Klan.

In response to the Black Codes and the mounting atrocities against blacks in the former Confederacy, the North sought to reaffirm the freedmen’s constitutional rights, including their right to possess guns. General Daniel E. Sickles, the commanding Union officer enforcing Reconstruction in South Carolina, ordered in January 1866 that “the constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed.” When South Carolinians ignored Sickles’s order and others like it, Congress passed the Freedmen’s Bureau Act of July 1866, which assured ex-slaves the “full and equal benefit of all laws and proceedings concerning personal liberty … including the constitutional right to bear arms.”

That same year, Congress passed the nation’s first Civil Rights Act, which defined the freedmen as United States citizens and made it a federal offense to deprive them of their rights on the basis of race. Senator James Nye, a supporter of both laws, told his colleagues that the freedmen now had an “equal right to protection, and to keep and bear arms for self-defense.” President Andrew Johnson vetoed both laws. Congress overrode the vetoes and eventually made Johnson the first president to be impeached.

Fittingly, as DC readies itself to officially open the memorial to America's most beloved and famously peaceful civil rights leader, Winkler goes on to note that Martin Luther King Jr. applied for—and was denied—a concealed carry permit for a handgun after his home was bombed.

Apparently Dr. King also subscribed to this “extreme” and peculiar “angle” of civil rights.

It's not that I think Toobin wrote this as a hit piece. (It was, if anything, a miss piece.) But by writing this as he did, he mischaracterized an important and well-documented aspect of traditional civil rights in America thatat the very leastany responsible Court watcher would instantly recognize from recent cases, whether or not he agreed with the policy outcomes. Toobin goes further to imply Thomas relies on a revisionist history that is perceived through his putatively unorthodox originalism and colored by his race. That is simply bullshit. 

Gun rights and self-defense have gone hand-in-hand with civil rights for blacks since the very first Civil Rights Act in our nation's history. It seems Mr. Toobin is the one with a questionable understanding of traditional American civil rights. 

bellum medicamenti delenda est

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