However, I was fascinated to see this piece at Slate: Red Summer. Excerpts:
In his new book, 1919, The Year of Racial Violence: How African Americans Fought Back, David F. Krugler, professor of history at the University of Wisconsin–Platteville, looks at the actions of people … who resisted white incursions against the black community through the press, the courts, and armed defensive action. The year 1919 was a notable one for racial violence, with major episodes of unrest in Chicago; Washington; and Elaine, Arkansas, and many smaller clashes in both the North and the South. (James Weldon Johnson, then the field secretary of the NAACP, called this time of violence the “Red Summer.”) White mobs killed 77 black Americans, including 11 demobilized servicemen (according to the NAACP’s magazine, the Crisis). The property damage to black businesses and homes—attacks on which betrayed white anxiety over new levels of black prosperity and social power—was immense.
While there is a notable cluster of examples of black communities fighting back in the racial conflicts of 1919, the history of armed self-defense goes back even further. Law professor Nicholas Johnson points to fugitive slaves who armed themselves against slave-catchers as some of the earliest examples of the practice. In another dark period of racial violence at the end of the 19th century, Ida B. Wells-Barnett, a journalist and investigator of lynching, advocated “boycott, emigration, and the press” as weapons against white aggression, outlining the rationale in her 1892 pamphlet Southern Horrors: Lynch Law in All Its Phases. When those peaceful strategies failed, Wells-Barnett thought a more active strategy was the answer, observing: “The only times an Afro-American who was assaulted got away has been when he had a gun and used it in self-defense.” For this reason, she wrote, “[A] Winchester rifle should have a place of honor in every black home, and it should be used for that protection which the law refuses to give.”
Worth your time to read. And the top-rated comment:
Anyone who found this article interesting should immediately read Justice Thomas’s concurrence in McDonald v. Chicago, a gun control case wherein Thomas argues very persuasively that the right to bear arms was intended to be one of the “privileges” protected by the 14th Amendment, specifically aimed at giving newly freed slaves in the South the right to carry weapons to protect themselves from whites.
I am by no means a gun enthusiast, but Thomas’s concurrence makes some excellent points and had it been the majority opinion, American jurisprudence would have been the better for it. – John Marshall Alexander Jr.
I am a gun enthusiast, but I too have made that argument repeatedly here in this blog. I concur with Mr. Alexander – American jurisprudence would have been better had the “privileges and immunities” clause been resurrected.
From that concurrence:
I agree with the Court that the Fourteenth Amendment makes the right to keep and bear arms set forth in the Second Amendment “fully applicable to the States.” I write separately because I believe there is a more straightforward path to this conclusion, one that is more faithful to the Fourteenth Amendment’s text and history.
Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment’s Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty,” and ” ‘deeply rooted in this Nation’s history and tradition,’ “. I agree with that description of the right. But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.” Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause.
The notion that a constitutional provision that guarantees only “process” before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish “fundamental” rights that warrant protection from nonfundamental rights that do not. Today’s decision illustrates the point.
(A)ny serious argument over the scope of the Due Process Clause must acknowledge that neither its text nor its history suggests that it protects the many substantive rights this Court’s cases now claim it does.
I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This Court’s substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. I believe the original meaning of the Fourteenth Amendment offers a superior alternative, and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed.
I acknowledge the volume of precedents that have been built upon the substantive due process framework, and I further acknowledge the importance of stare decisis to the stability of our Nation’s legal system. But stare decisis is only an “adjunct” of our duty as judges to decide by our best lights what the Constitution means. Moreover, as judges, we interpret the Constitution one case or controversy at a time. The question presented in this case is not whether our entire Fourteenth Amendment jurisprudence must be preserved or revised, but only whether, and to what extent, a particular clause in the Constitution protects the particular right at issue here. With the inquiry appropriately narrowed, I believe this case presents an opportunity to reexamine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it.
Which is what Alan Gura argued for and was told to shut up about by people on our side. But the Court dodged the opportunity, not (I believe) wanting to upset the mountain of bad law that a century of stare decisis has created.