A Word of Thanks to Four Black Men and A Gun

As an American, I owe a tremendous debt of gratitude to many, many people who have risked and given their lives to defend our liberty. But as I reflect on the recent Supreme Court decision in McDonald v. City of Chicago, I thought I should take a moment to mention four Americans who have made a relatively uncelebrated contribution to the freedom I cherish and enjoy. I owe a special debt to four black men, and one gun.

The most important of these men, to me, was my father. When I was a boy, he and my mother moved our family of six from the Terrace Village public housing projects in Pittsburgh’s Hill District to a predominantly white neighborhood. While many of our neighbors welcomed us, we were not welcomed by all. I recall a brick through the front window, and other incidents. But burned into my memory is the Sunday evening when my father was beaten with a tire iron on the street in front of our home, and in front of us, his four little children. Those three young white men were never caught.

When my father, with his surgically reconstructed eye socket and jaw, was released from the hospital, he did something he never once considered when we lived in the projects. He bought a gun.

Every evening after that, before going to bed, I and my siblings would go out onto the front porch to say goodnight to my father as he sat in his chair, shotgun across his lap, with its black barrel glistening under the porch light. I never once felt unsafe. I never once had trouble sleeping. My sense of security did not come from the Pittsburgh Police, or from the law. My sense of security came from my father, and his gun.

There were no more incidents, at least not any that I can recall, after my father exercised his Second Amendment right.  It was his contribution to “non-violence” in our neighborhood.

Just like the millions of children of our nation’s police officers, we were instructed to never touch my father’s gun. And like those millions of children, we did not touch it. My father believed that it was his first responsibility to protect his family, and that it was reasonable for him to avail himself of a firearm to do so. But so many black men before him have been denied this basic right, and it is important to thank the other black men who have made important contributions in preserving it.

Foremost among these, in my mind, is Frederick Douglass. The self-educated runaway slave turned abolitionist newspaper editor and orator, Douglass was alarmed at the unaddressed violence unleashed on black people in the wake of the Civil War. As Douglass pointed out in his autobiography, black Americans could not count on the government to protect them; they had to defend themselves against the rash of lynchings committed by the Ku Klux Klan and even state and local authorities. Citizenship, according to Douglass, rested upon three boxes: “the ballot box, the jury box, and the cartridge box.”

As Tim Sandefur of the Pacific Legal Foundation recently pointed out, Douglass was wise to realize that black Americans needed to rely on themselves for their own safety and security. Douglass argued that the post-Civil War Amendments, the Thirteenth, Fourteenth, and Fifteenth, were written to protect the freed slaves from a backlash by the Southern states. The 14th Amendment’s Privileges or Immunities Clause says that: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Douglass urged the federal government to enforce the Constitution as written, to secure for black Americans, indeed for all Americans, the “privileges or immunities” of full citizenship.

Douglass’s plea fell on deaf ears. In 1873, the Fourteenth Amendment’s “privileges or immunities” clause was gutted in The Slaughterhouse Cases, where the Supreme Court upheld the State of Louisiana’s decision to close down butchers competing with a politically-well-connected private monopoly. The Court ruled that this clause only protected rights of national scope, such as the right to access foreign embassies or the right to protection while traveling the high seas. This was, as Georgetown Law Professor Randy Barnett recently noted, “a preposterous interpretation — these were hardly the rights congressional Republicans in the aftermath of the Civil War were most concerned to protect in the wake of the terrible abuses of free blacks and white unionists by Southern states.”

Nevertheless, the “privileges or immunities” clause was dead. Moribund, as the constitutional law scholars like to put it. It has been dead for one hundred and thirty two years.

But the “privileges or immunities” clause is still there in the Fourteenth Amendment to the Constitution, still in the actual document. A handful of scholars have kept up the fight to get these words noticed again. These scholars are not ones you will have heard of, especially if you have a law degree from a top law school. Most of these scholars toil away in think tanks, since the doors of many law schools have been shut to them. In fact, if you have attended a top law school, your first reaction is likely to have been, “don’t you mean ‘privileges and immunities’ clause?” While you may have been exposed to the “privileges and immunities” clause of Article IV, your con law professor is unlikely to have mentioned the “privileges or immunities” clause of the 14th Amendment.

This reaction is understandable, because constitutional law scholarship in most law schools has become a closed, insular conversation among both liberal and conservative law professors who have, in their own ways, become completely at ease with the sweeping scope of government power in a world devoid of the “privileges or immunities” clause.  Liberals dislike the “privileges or immunities” clause for fear that it might legitimate the kinds of unenumerated rights they hold in contempt, like the rights to property and freedom of contract.  It is not a coincidence that these are precisely the rights that the Reconstruction Congress sought to protect with the Civil Rights Act of 1866.  Likewise, conservatives, including the plurality in McDonald, are uncomfortable with the “privileges or immunities” clause because it legitimates unenumerated rights, like the right to privacy recognized in Griswold v. Connecticut and Roe v. Wade.  Justice Alito demonstrated his discomfort with economic liberty too, when he asked in oral argument whether the “privileges or immunities” clause included the right to contract, clearly hoping that the answer was “no.”

The top constitutional law scholars were completely caught off guard when a third black man, Justice Clarence Thomas, reinvigorated the “privileges or immunities” of citizenship in McDonald v. City of Chicago two weeks ago. In McDonald, the court struck down a Chicago ordinance banning handguns. Justice Thomas had been reading the scholarship on the “privileges or immunities” clause over the last several decades. He read it and understood it. And while this scholarship did not matter in the opinion of many of our nation’s top constitutional law professors, it did matter in an opinion that, itself, matters a lot.

In his concurrence to the four other justices in the 5-4 majority, Justice Thomas refused to stretch the 14th amendment’s “due process” clause to guard the right to bear arms. Instead, he bravely read the constitution the way it was written, with little regard for how his opinion would be attacked from both the left and the right. His opinion acknowledged that the right to bear arms was clearly one contemplated by the framers of the “privileges or immunities” clause. Justice Thomas stood with Fredrick Douglass, and stood up for a black man trying to protect himself and his family in a city where the police admittedly cannot.

Otis McDonald is that black man, the fourth to whom I owe so much. As I attempt to raise my two sons to be strong, confident and secure Christian men, I am grateful that this 76-year-old grandfather fought for my right to protect them from those who might try to do them harm.

I purchased a gun several years ago, when I became concerned for the safety of my young family after receiving a verbal racial assault in our 21st century Northern California neighborhood. Perhaps I am the only Stanford Law professor who owns guns, including the one that once graced my father’s lap on that porch forty years ago. As an American, I am grateful for that gun. I am also grateful for the four black men who have made it possible for my sons to sleep at night, secure in the knowledge that I, and it, will do what is necessary to protect them.

114 thoughts on “A Word of Thanks to Four Black Men and A Gun

    1. Yeah, but to hold them and exercise them, they must be recognized. Unless you accept that someone will point to the 9th as their right to run around nude in front of your daughter. Because someone out there really would, don’t underestimate the oddity of the population.

  1. Thank you very much for that excellent essay, Prof. Cole.

    You are right by the way, in my Con law class “priviledges and immunities” was only mentioned in the context of Griswold v. Connecticut. In looking for a textualist argument to support the right to privacy, my professor stated that such a right could be found in the “priviledges and immunities clause,” because priviledge sounds like privacy.

  2. Fine reading. Thanks.

    One nit to pick.

    “Liberals dislike the “privileges or immunities” clause for fear that it might legitimate the kinds of unenumerated rights they hold in contempt, like the rights to property and freedom of contract. It is not a coincidence that these are precisely the rights that the Reconstruction Congress sought to protect with the Civil Rights Act of 1866. Likewise, conservatives, including the plurality in McDonald, are uncomfortable with the “privileges or immunities” clause because it legitimates unenumerated rights, like the right to privacy recognized in Griswold v. Connecticut and Roe v. Wade. ”

    Suggest the argument is better framed in terms of a government with limited powers, as opposed to rights that are favored or not.

    Indeed, let’s bring back the 9th Amendment (and 10th for that matter) – along with the whole 14th. I’m good for the whole constitution all the time, personally. That is certainly not what we have now – think commerce clause jurisprudence for one appallingly obvious example.

    1. “Liberals dislike the “privileges or immunities” clause for fear that it might legitimate the kinds of unenumerated rights they hold in contempt, like the rights to property and freedom of contract. It is not a coincidence that these ”

      Watch Beck and Bill O much? sounds like it when you repeat the libruls are evil bs..

      I happen to be a liberal , white, gay, democrat and as far as my 9 generations of lib dems go we have served in every war since the French and Indian wars. We cherish our property rights..I get sick of folks trying to put words and deeds they in their fevered halucinations put off on us.

      I know first hand what the second amendment means as well as the others.
      I lived in an old house.
      The so called christians started first a whispering campaign that graduated to name calling, banging on my door at 630 700 am on sat mornings(i worked 3 jobs and late nights on weekends) with their little pamphlets and trying to come into my house to have a prayer vigil for us evil queers.
      We minded our own and were polite and gracious as could be until the tires on my car (new tires old car) were slashed.
      Then one night when I had a young black woman staying in the spare room to try to keep her safe from her abusive husband, the Kreestians gathered on my lawn with their white sheets and tried to burn the house down.. them fat rednecks can run pretty fast when an enraged f*g is chasing them down the street firing a 12 g pump shotgun over their heads..I hit where I aim.
      I had some rock salt loads in it since I really did not want to spend my days on death row..but none them sat comfy after I shot them in the a–.
      What really angered me was the bricks through the stained glass window I had just finished rebuilding and the lumber for the cross came out of my own stock as did the kerosene they dumped on it.

      I no longer live in Nazibama, I live in a little ‘mayberry ‘ kind of town with population of about 1/2 white/black.
      Treating your neighbors with respect and dignity is normal for here. I still keep guns jic someone does try one of those stunts here and my Christian (the real kind) would definitely have my back and we also have the occasional rabid critter to dispatch.

      1. WOW, HILLBILLY ….. THAT’S THE BIGGEST LOAD OF B.S. I THINK I’VE EVER READ. ALTHOUGH I DO BELIEVE YOU’RE A GAY LIB …… THE REST – NOT SO MUCH! AND TRYING TO DUMB-DOWN YOUR WRITING TO SOUND LIKE A “HILLBILLY” IS REALLY INSULTING TO US HILLBILLIES. AND FOR THE RECORD – MOST OF US DON’T THINK LIBERALS ARE EVIL …. THEY’RE JUST IDIOTS!

  3. The Constitution has been so perverted over the years as to be unrecognizable. The fact that a high priesthood has arisen to cloak this simple document in mystery and nonsensical interpretation is all you need to know about how far we have FALLEN–not risen–as a republic. When I read Article I, Section 8 and compare that to what the federal government has become by way of the torturing the interstate commerce clause, I realize that only explosive devolution or economic ruin will allow for the rebuilding of our constitutional republic. I doubt if I’ll live long enough to see the Constitution retake its rightful role in that pit of corruption known as Washington D.C.

  4. Articles and essays like this make the whole blogosphere worthwhile. Thanks for making me think about this is an entirely different way.

  5. The Ninth protects unenumerated rights against the Federal government. The Fourteenth protects against the states.

  6. I knew some of what you mentioned in this article but you further enlightened me on some things I did not. I also enjoyed your personal story which helps hammer home the point of being armed for the defense of self and loved ones.

    Clarence Thomas is without a doubt the only Supreme Court Justice that interprets the US Constitution according to the intent of those who wrote it. He is a credit to our country and I hold him in the highest regard. If only the rest of SCOTUS did the job they were appointed to do then we would all be truly free regardless of race, religion and creed.

    I look forward to the day a constitutionally restricted republic is restored and the power the political class has amassed at the expense of individual liberty is returned to the people.

    1. NickD,
      I agree completely with your remarks.

      I also particularly like your final paragraph, and fully intend to re-use it! To whom may I give attribution?

  7. Amazing article! Grateful you are sharing this with the rest of us.

    I realize this is a small sample, but I want to call out the two instances of outright racism in your post. One in PA (presumably in the 60s-70s?), and one in modern, liberal NoCA. The second one amazes me the most. I thought racism like this only occurred in the bad old South, at least that’s what our betters in the media want us to believe. Sounds like it’s alive and well in the extended Bay Area, especially for folks who might have a different point of view other than prevailing opinions. Would it be wrong to assume this racism was sparked due to a disagreement with one of those “peaceful” NoCA hippies?

    1. While I am no expert on racism I do feel obliged to say that on most occasions where a person is brought to extreme anger for what ever reason obvious physical features are put into play. An example would be a woman hitting a man’s car with her car from behind. It would not be unheard of for the man to jump out and exclaim “You stupid bitch” even though he could easily be married to a similar looking woman. I am not excusing anything mentioned above or mitigating it but I have witnessed events like the one I mentioned and do not feel that such an event would bring misogyny into play anymore than a color slur would necessarily bring racism into play. I would like to believe that what happened in NoCal could be put into my category instead of out right racism. IMHO

  8. What a beautiful piece! And what a father you had. You indeed were blessed.

    Otis McDonald is an American hero. I saw him briefly on TV the day the Supreme Court decision was released and there he was – this most humble man. Someone you wouldn’t really notice walking down the street. And yet I, and all Americans who understand what is at stake, owe him much.

    Thank you for your post.

  9. Thanks very much for this essay. It certainly brought up a constitutional issue that I had not heard discussed before. God bless you and your family. Keep the faith.

  10. Great post, Marcus. Thank you. Someday we ought to compare notes on the moral standing of fathers who try to hide, under guise of relying on civil authorities, from their duties to protect their families. In the meantime, you might appreciate this stirring image, from the Cleveland Soldiers’ and Sailors’ Monument, of Lincoln arming the newly-emancipated slaves: http://www.soldiersandsailors.com/images/image006.jpg.

  11. Professor: I would love to have taken a Constitutional Law course under you. Such clear thinking is so rare these days. Every liberal and ultra-conservative have to interpret the Constitution with their biases ruling the outcome. The Constitution requires no spin, it means what it says.

  12. “Liberals dislike the “privileges or immunities” clause for fear that it might legitimate the kinds of unenumerated rights they hold in contempt, like the rights to property and freedom of contract. It is not a coincidence that these are precisely the rights that the Reconstruction Congress sought to protect with the Civil Rights Act of 1866. Likewise, conservatives, including the plurality in McDonald, are uncomfortable with the “privileges or immunities” clause because it legitimates unenumerated rights, like the right to privacy recognized in Griswold v. Connecticut and Roe v. Wade. ”

    Of course, there is a difference between the two views, touched on but not expanded on. The case is convincingly made that the Reconstruction Congress sought to protect property rights and freedom of contract. Can a convincing case really be made that the Reconstruction Congress sought to protect abortion rights?

    A more fundamental difference between the two views is that liberals regard the concept of unenumerated rights as license for judges to create new rights. This is, of course, viewed as a bit dangerous in that rights restrict government, and there is a danger of rights expanding to restrict government in ways liberals dislike (property rights, rights of contract and association) rather than in ways liberals like (social rights). This is not an insuperable obstacle, however, as once the idea that judges determine rights takes hold, there is likely to be little opposition to judicial decisions that rights liberals dislike don’t really exist after all. In addition, the mislabeling of entitlements as rights (“right” to a “living wage”, etc.) allows the concept of unenumerated rights to actually justify expansion of government, not restriction of it.

    Whereas conservatives view the unenumerated rights as a mandate for judges to respect traditional rights existing at the time of the Framing. This view, at least when sincerely held, restricts the scope of expansion for rights. Abortion rights are a prime example; whatever arguments may be made for them, the argument that they are traditional rights is a non-starter.

  13. Whether or not a God-given (as all rights are) ‘right to privacy’ was contemplated by the Framers as a privilege or immunity to be protected by the Constitution, there’s no way in the world they would have wanted the Federal Gov’t to force every state, thru some twisted interpretation of that right, to allow a mother to be so derelict of her similarly God-given duty to care for her children as to deliver them into the hands of a butcher masquerading as a doctor in order to have them killed.

  14. Great essay, except for the defense of one of three worst Court decisions in history…Roe vs. Wade. Toss in Dred Scott and Kelo to round out the Three Horrors.
    Life, Liberty, and the Pursuit of Happiness begins with Life. And unlike Southern Fireeaters or their modern descendants, I don’t see people as property no matter what Dred Scott or Roe says.

    How can you have a Constitutional Republic when its corrupt at its very base?

  15. Thank you, Marcus, for this poignant essay.

    It reminded me of my own family’s tiny part in the civil rights struggle. My great-great-grandfather, John Beard, was a minister in the Cumberland Presbytery. He preached the Gospel in a tiny church in what is now Mt Juliet, TN. And he was an abolitionist, which not a popular position in Tennessee in the 1830’s and 40’s. It is a matter of church history that, as Rev. Beard delivered his sermons on the evils of slavery, he would keep a pistol at hand in the pulpit. And he would begin every sermon by brandishing the pistol and declaring, “I trust there will be peace!”

    BBB

  16. “… these were hardly the rights congressional Republicans in the aftermath of the Civil War were most concerned to protect in the wake of the terrible abuses of free blacks and white unionists by Southern states.”

    Congressional REPUBLICANS! Are you sure that shouldn’t read DEMOCRATS? There’s NO WAY republicans would want to “protect” the poor or disadvantaged. They ONLY care about the rich and powerful you know. Is this more of the rewriting of history? (SNARK)

    Just wanted to point that out even though repukicraps are on my poopy list these days too. I’ve developed an abhorrence for everything politician – repukicraps and demoncraps.

    1. Diamondback: you are wrong. The Democrats were solidly behind keeping black people in subjection, and enacted most of the Jim Crow laws from that era. Republicans were, at that time, the “good guys”.

      Some who have taken the time to study the effects (rather than the stated intentions) of recent Democrat-sponsored plans will tell you that the Democrats are STILL concerned with keeping the black man down.
      Oppressed minorities are a voting block whose support they have always been able to count on, despite the lack of any real progress.

    2. You should take some time to educate yourself before making absurd comments like these. Look into the history of both parties and see what they both have actually stood for throughout our history. Democrats have ALWAYS been the slavery and anti-civil rights party. How they have managed to rewrite history to the point that minorities actually think the Democrats have their interests at heart is hard to fathom. The Republican party was created to fight slavery and the evils that the Democrats and their henchmen (the KKK and other white supremists) were perpetrating on the freed slaves.

      You could start by reading this book by Rev. Wayne Perryman.

      http://www.amazon.com/Whites-Blacks-Racist-Democrats-Perryman/dp/1935359304/ref=sr_1_6?ie=UTF8&s=books&qid=1279812150&sr=8-6

      1. Geez, didn’t ANYONE see the (SNARK) in my comments?

        Was it so poorly written that the obvious sarcasm was unevident?

        Sorry.

  17. Thank you, Mr. Cole, for these portraits of courage.

    You mentioned Frederick Douglass’s Autobiography. I would also recommend Justice Clarence Thomas’s wonderful autobiography, My Grandfather’s Son: A Memoir.

    Bless you.

  18. Greetings:

    I grew up in the Bronx of the last ’50s and ’60s but was fortunate to be in a family that had a summer bungalow about 60 miles north in Putnam County. Thus, I had the benefit of both an urban culture and a country culture.


    Spending summers upstate, my friends were country boys, used to going into the woods, camping overnight, and having our days to ourselves with no threat of nearby adult supervision. 

Before long, I wanted to acquire the local accoutrements, guns and knives being my highest priorities.

    My city-girl mother wasn’t having any of it; my father, born in Ireland and a WWII graduate, quickly became my only chance for successful acquisitions. Initially, I separated him from his “war-knife” and subsequently began working on him for a 22 caliber rifle.

 When my mother found out that my father was having me join a gun club in preparation for my new tool, he and my mother had an intensive dinner time discussion about the appropriateness of a relative youngster having his own firearm.

    My mother insisted that this was no way to raise a child. My father’s conclusionary statement was “I’m not raising a child; I’m raising a man.”

    1. Wonderful story, especially your father’s statement.

      When my children were younger, I attend a series of lectures by a psychiatrist, called “Donuts with Dads”. It dealt with the role fathers play in the raising of children, how important that role is, and how it differs from the mother’s role. That was a turning point for me as a father – no longer did I apologize when my wife commented on how I was handling the kids differently than she would, from then on my response was that I was a father, and how I interacted with them was different but no less correct than how she interacted with them! Obviously, we still discussed major issues, punishments, restrictions, etc. but I was an equal partner in those discussions.

  19. I’ve heard a lot of quotes from Frederick Douglass, but not that one. Thank you for an essay full of enlightening info.

  20. Marcus Cole: this is a great post. Rare are the voices that recognize that the threat to America and the idea it represents comes from both the Left and conservatism; they differ only in particulars, not in principle.

    The aptly named “Vader” provides the evidence.

    A more fundamental difference between the two views is that liberals regard the concept of unenumerated rights as license for judges to create new rights.

    This is the indictment of conservatism from which they cannot escape; it exposes the lie that freedom is a conservative principle, and establishes the basic anti-Americanism that informs both that benighted movement and their Leftist siblings.

    The Ninth and Tenth Amendments were intended as a catch-all, a constraint on government that essentially goes as follows: Anything we didn’t think of to include in the Bill of Rights, is not to be construed as an “unprotected” right.

    There is no time limit to this provision. Rights, therefore cannot be “expanded”; they are already open-ended. It therefore applies to any and all particular choices that Americans may make, then or in the future.

    Attempting to portray this as “creating new rights” is profoundly dishonest and disingenuous.

    Whereas conservatives view the unenumerated rights as a mandate for judges to respect traditional rights existing at the time of the Framing

    By that logic, the Second Amendment only pertains to muzzle-loaders and other “traditional weapons existing at the time of the Framing”…. or that the First Amendment only protects handwritten documents, printed pages and other “traditional forms of speech existing at the time of the Framing”.

    In addition, the mislabeling of entitlements as rights (“right” to a “living wage”, etc.) allows the concept of unenumerated rights to actually justify expansion of government, not restriction of it.

    Well, conservative, the catch here is that the entitlements, or so-called “positive rights” to particular goods or services, represent unchosen obligations imposed upon those who must provide the goods in question. The proper term to describe “unchosen obligations” is not “entitlement”, but duty.

    Far from being opposed to such a thing, conservatives are quite fond of invoking “duty” when it serves their particular statist interests (the military draft, anyone?)

    Describing positive “rights” as entitlements rather than duties, is just a verbal sleight-of-hand to obscure yet another Left-conservative commonality.

    The notion of “duty” is directly antithetical to the notion of “rights”. The so-called “positive rights” are not an “expansion of rights”, but a horrific contradiction which undercuts and obliterates the very notion of rights.

    1. The “new rights” include the right to take others possessions, for example? The ridiculous “new rights” of the Left are rights only in the sense that they enable the dismantling of original rights. “Social justice” is not a traditional right, it is an attempt to cancel personal rights by defining a levelling of wealth to a common value and limiting access to services to those described by a predietermined rule set, as determined by the elite controllers; and it is applied to all members of a group while negating the value of individual member’s prior rights.

      Next the second amendment refers to arms, and the (traditional) right to bear them; your interpretation is nonsensical. It is not the right to bear (traditional) arms.

      Next, comparing conscription to government redistribution of wealth as a right (entitlement) is a category error, aka Black and White Fallacy. It won’t wash. Conscription can be a requirement for survival under attack. Redistribution of wealth is the institution of the co-dependent victimology strategy of political parties wanting more voters.

      Finally, positive rights are those that are specifically allowed by the ruling government. Your definition does not match that definition.

  21. Great read! Growing up in upstate NY family and neighbors alike had guns we were forbidden to touch. Until the time came when dad showed us how to use them.

  22. Seerak — There is a difference between rights, and judicially-enforceable rights. The Founders never intended that the judiciary be the sole protector of our rights. They certainly never expected the “least dangerous branch’ to have a roving commission to strike down laws without regard to any constitutional text. Judicial review was originally understood as something very simple: When a federal judge can’t enforce one law without violating a Constitutional rule, the Constitution prevails. When there is no contrary Constitutional provision, it is the legislature that is responsible for upholding the Constitution.

  23. Wonderful essay.

    Vader: you are wrong.

    The Constitution does not enumerate the rights of the people. It enumerates the powers of government. Judges (or any other officers of government) don’t ‘create’ new rights, they can only recognize pre-existing rights.

    The 14th Amendement protects all rights, on principle. Not some rights on historical basis. Your abortion example is quickly shown to be absurd if you replace abortion with any other number of rights we can exercise today that the reconstruction congress could not have foreseen. Ex: lasik eye surgery, breast enhancement surgery, radiation therapy for cancer, travel by airplane and automobile, cellphone based communication, etc (assumig of course that we can pay for it).

    Our rights are not determined by tradition. They are not merely a social convention. To hold such a view is to negate the meaning of rights.


    1. Vader: you are wrong.

      I find your lack of faith disturbing.

      The Constitution does not enumerate the rights of the people. It enumerates the powers of government. Judges (or any other officers of government) don’t ‘create’ new rights, they can only recognize pre-existing rights.

      So far, we are in agreement.

      The 14th Amendement protects all rights, on principle. Not some rights on historical basis. Your abortion example is quickly shown to be absurd if you replace abortion with any other number of rights we can exercise today that the reconstruction congress could not have foreseen. Ex: lasik eye surgery, breast enhancement surgery, radiation therapy for cancer, travel by airplane and automobile, cellphone based communication, etc (assumig of course that we can pay for it).

      Curiously, every one of these things is presently regulated to a greater or lesser degree. Lasik eye surgery can only be legally performed by a doctor licensed by the state, at least in my state. Ditto breast enhancement surgery and radiation therapy. Radiation therapy is in addition partially dependent on radioisotopes, produced in reactors that are licensed by the federal government. Travel by airplane is restricted to persons not on a do-not-fly list that are willing to endure the restrictions and intrusions involved in airport security. Automobile travel requires a driver licensed by the state. Cell phones are regulated by the FCC.

      I am not suggesting that all these exercises of government power are good; I am only pointing out that they presently exist.


      Our rights are not determined by tradition. They are not merely a social convention.

      How does one objectively determine what is a right, then?


      To hold such a view is to negate the meaning of rights.

      Not at all. Rights are a product of society and tradition. If our society did not have a tradition of respecting certain rights, there would be nothing keeping the government from flagrantly violating them.

      I believe in these traditional rights. They are consistent with my philosophy of what Man is. But my belief and philosophy would be pretty irrelevant if my society had a tradition (let us suppose) of exterminating religious, ethnic or political minorities. You cannot so lightly discount the body of social tradition that gives force to the Constitutional guarantee of rights.

      New rights can be established, but this best comes about through a gradual process of social acceptance rather than a sudden judicial fiat. Otherwise you risk an overreach that is likely to boomerang on you.

  24. This is a story repeated many times and deleted many times from the history of civil rights.

    Note that Roy Innis, National Chairman of the Congress of Racial Equality, is also a board member of the National Rifle Association. It seems like he has been there forever.

    Charlton Heston, past President of the NRA marched with Martin Luther King. Mr. Heston used his position as President of the Screen Actors Guild to introduce Dr. King to the leaders of Hollywood’s technical unions leading to opening those unions.

    The National Rifle Association is a civil rights group for the most basic of civil rights, the right to self defense.

  25. The truth about gun ownership is that it is necessary since many in law enforcement do not want to protect us, black or white, and those who do respond almost always arrive too late.

  26. Reminded me of my childhood in Detroit. My white father bought a gun after being robbed and assaulted by four black men.

    So I guess we’re all safe, now.

  27. I remember watching the fight over Justice Thomas’ appointment. IIRC, he was nominated after Justice Bork was rejected.

    It was a bitter bloody nomination fight, and I am glad he won. The man’s brilliant, and has done nothing but add honor to the US Supreme Court, and liberty to Americans, since he landed on its bench.

    God bless him and keep him well for a long, long time.

    (Yes, Julianne Malveaux, I’m thinking of you.)

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  29. I grew up in Terrace Village in Pittsburgh. We moved there in the beginning of WW2. The projects were half white with the curious segregation of two black buildings next to two white buildings. Most of the whites were Catholics and they went to a Catholic grade school while I went to a black elementary school.
    The blacks families that I knew were families. They were a better class than the folks in the lower Hill.

  30. Kudos to Mr. Cole.
    Note: 1] Rights predate government. 2] Rights, akin to breathing, require neither permission, acceptance nor affirmation to exist. 3] Rights exist, and are often most evident, while being violated. 4] Rights are not subject to repeal, revocation, amendment, nor the democratic process. 5] SCOTUS has consistently ruled the police are not responsible for the safety of the individual citizen. 6] An armed man will kill an unarmed man with monotonous regularity.
    “Resistance to sudden violence, for the preservation not only of my person, my limbs and life, but of my property, is an indisputable right of nature which I have never surrendered to the public by the compact of society, and which perhaps I could not surrender if I would.” – John Adams, American Patriot, U.S. President, and British Traitor.

  31. Thank you, Sir, for your powerful piece. I read it on my mobile’s tiny screen but I read it whole and I read it twice. I am a white American born and raised in a Communist country and I know that if we don’t defend our rights as predating any system of governments, good or bad, we are bound to lose them. I wish I could go back in time and be there with my gun when your father was ambushed, or sit with him on the front porch to ease those lonely hours afterwards. Reading the other posts, though, I’m afraid he would have needed a much bigger porch if such time travel became possible.

  32. It’s true that the initial gun laws in this were to restrict blacks from keeping and bearing arms. However, I don’t believe your story of rock salt performance in a shotgun. I’ve reloaded shotshells and metallic cartridges for exactly 40 yrs now. I tried that rock salt load in a 12g, 2 3/4″ with Red Dot and both plastic and card wads in the 70’s. The vast majority of the salt is powdered by the acceleration and heat of the expanding gasses. Ridiculous assertion, but it makes a nice story to the uninformed.

    1. So you are saying that he could not fired a rock salt load above the heads of people because what now?

      Also, he says he did fire rock salt rounds into the butts of a few…He makes the assumption that they could not sit down. It’s quite possible the rock salt load has no affect. He doesn’t know that, but he does know they ran like hell after firing them right?

      So, what I am saying is that it’s possible that he did exactly what he thought he did. But yes, a firearm should be loaded for lethal force, not just to scare people.

  33. I am trying to reconcile gun ownership, and faith in God. Didn’t Jesus rebuke Peter for lifting a sword to protect him?

    1. Yes he did, but Jesus was on a different page. He wasn’t talking about Peter protecting his family. Jesus was on a mission from God and He had a message to get out and it wasn’t about a knife fight. I recall the message of a Jamaican preacher:”Yu mus fight for your family and your faith, an if yu cannot fight, well, me sorry fe you!”

      1. Also, in John 22:36 “He said to them, “But now if you have a purse, take it, and also a bag; and if you don’t have a sword, sell your cloak and buy one.”

  34. Great post, and thanks for sharing your personal experience. I haven’t read the opinions in McDonald yet, but as a (1) liberal (2) attorney (3) Chicagoan, I absolutely agreed with the outcome. Gun bans like Chicago’s come from a combination of popular fear — Chicago’s tragedy is that it continues to be pretty violent, with more total murders (most of them by handgun) each year than New York, a city almost three times its population — and a tradition of strong, intrusive, local government.

    To those who think the the Ninth Amendment or the “privileges or immunities” clause of the Fourteenth Amendment only apply to economic rights and not to something like abortion, I think you’ve missed the point. The Ninth Amendment, like the rest of the Bill of Rights, make clear that the Constitution gives only limited powers to the federal government; the Fourteenth Amendment imposes the same restrictions on the governments of the states. It isn’t that there’s a specific constitutional right to an abortion, it’s that the government doesn’t have the right to get in the middle of the doctor-patient relationship where there is no fraud or coercion.

  35. Thank you sir.
    Some other black men you might wish to investigate and perhaps acknowledge are accounted for in Lance Hill’s recent book The Deacons for Defense

  36. “Just like the millions of children of our nation’s police officers, we were instructed to never touch my father’s gun. And like those millions of children, we did not touch it.”

    You must the only person that believes me, a cop’s kid, when I swear that I didn’t touch, nor did my siblings ever touch, my father’s guns.

    You and I were raised right!

    Thank you for an excellent and stirring essay.

  37. Wonderful essay. For years I have maintained that “gun control” is decidedly racist in nature: disarming the people in the very places where arms are needed. This hit home many years ago as I read a story in which a black Chicago shop keeper defended himself and his business with a pistol against a robbery. As I recall, nobody was hurt in the incident. However, I remember how apalled I was that the Chicago cops confiscated HIS gun, leaving him defenseless in a crime-ridden neighborhood against the next assault! Honest black businesspeople who struggle against the odds in big “gun control” cities should thumb their noses at “gun control” rhetoric, and rise up, march in the streets and DEMAND their constitutional right to bear arms! I would be there with them! What a sight it would be to see. And what a conundrum for the liberal city leaders!

  38. Thank you, Marcus Cole.

    What a splendid tribute to those four men – and to the intended meaning of the 14th Amendment. After reading Justice Thomas’ opinion when the decision in McDonald v. the City of Chicago was published, I excitedly wrote to friends to say the following, which I say again as a thanks to you – for caring enough to have written your tribute:

    I found Justice Thomas’ opinion to be not just an opinion for this case alone, but a passionate manifesto for an originalist’s approach to the Constitution as a whole. As such, it can be read “out of context,” as a stand-alone essay.

    He argues in support of the conclusion of the opinion, but for a different reason: the Privileges or Immunities Clause rather than the Due Process Clause. Beginning at page 35 of his opinion, he gets to the heart of his reasoning. He develops – with dazzling clarity – the historical connection between a denial of Second Amendment guarantees to freed slaves and the efforts of some Southern states to make it a crime to teach a black person how to read.

    Thomas’ opinion is dazzling for its simple clarity and reasonableness – and readability. You don’t need a law degree to read him. He is focused on thinking in fundamental principles and on the historical context of words and their intended meanings in the Constitution. His discussion of the Missouri Compromise, Daniel Webster, John Bingham (1866), the “freedmen,” the Hamburg Massacre and the Ku Klux Klan, wonderfully promotes the strength of his main point: that the states may not abridge fundamental rights of individual citizens, because the Constitution guarantees these rights – via the Privileges or Immunities Clause.

    It is 56 pages of fast reading. Except, many passages will entice you to slow down and savor them!

  39. “Liberals dislike the “privileges or immunities” clause for fear that it might legitimate the kinds of unenumerated rights they hold in contempt, like the rights to property and freedom of contract.”

    This is absurd. As a liberal, life long gun-owning, 2nd amendment proponent who owns property and writes contracts that I expect others to abide by, and in turn abides by contracts that I sign; I find this statement to be not only absurd, but patently inflammatory.

    This renders this whole essay, which has at its roots the essence of American Freedom and Liberty, a sham; and that is a damn shame.

    I recognize the need of the Father in this story to make a proactive statement by sitting on the porch with the shotgun.

    However, my right to own a firearm and if necessary use it in my defense, does NOT entitle me to openly intimidate others without provocation. That is brandishing.

    Someone else would then have the right to brandish their weapon in retaliation to show me that they are not intimidated.

    In the modern uncivil discourse, this can only lead to escalation.

    This is madness.

  40. What a wonderful post. I feel the need to send a fan letter to Justice Thomas now – I probably should have done that a long time ago.

  41. Wow. saying it was a good esaay woul;d be demeaning your work. Great piece of historical detective work.

    What was refreshing was how rock solid your Dad was to defend his family. Now thats a True American!!
    Grit with resolve mixed.
    Learned quite a bit , thanks for the teaching!

  42. This is the life and death struggle of the “right to bear arms” that no freedom loving American should ever take for granted.

    When a government tries to control your every breath of life, saying it is for your safety, beware my fellow Americans.

    If gun control or bans are ever put in place by the elite globalist in the United States of America? Then America will no longer cease to exist.

  43. I, am glad for you. My father, also, had a shotgun for the purpose to protect his family. Although I am grateful to say that we never received the racial threats you have, my father did receive many during the Vietnam riots, due to his military service. I wish I could do something to end racism on a broad scale. However, I try to live as an example of acceptance each day and to stand up against it when I hear it. My apologies to you for past ignorant people and God bless you for your families.

  44. Marcus, thank you. It seems sometimes that our rights are being stripped away faster than they can be defended.
    My fear is that government will see their agenda not moving fast enough and thus find ways to invalidate the Constitution.
    Too many politicians of both parties, concerned with their own preservation, would not raise a hand to defend against such an action.
    I pray we can survive this assault from our elected representatives.

  45. At 71, I well know the horror of being attacked! I am reminded daily by the pain of just such an attack on myself when I was 19. I find that even though I armed myself then and have been armed most of my life since, I have had to also alter my awareness of the inequality of the way that “The law” is administered by different entities. These men were brave enough to hold to core values that all of us would do well to have. We owe it to succeding generations to mandate the security of “life liberty and the pursuit of happiness” to all.

  46. Anyone who writes

    “Someone else would then have the right to brandish their weapon in retaliation to show me that they are not intimidated.

    In the modern uncivil discourse, this can only lead to escalation.

    This is madness”

    clearly has not been the victim of a violent assault and does want to believe that evil people also populate this world. In reality there are evil people who will seriously hurt or kill you with little thought and sometimes all that can stop them is downright force. Marcus Cole’s father could have attested to that.

  47. Excellent essay.

    If you read into the family history of Condoleezza Rice, she has a very similar story about her father and his defense of their family with a gun as well. This is part of her reasons for being a strong 2nd amendment right supporter.

  48. We can have our nation back as soon as we decide we want freedom over servitude in the name of “Government Programs”.
    We first have to care, we then have to quit demanding the government take care of our problems and give us what we desire, last we have to vote and we have to return to a citizens government with representatives that represent in lieu of politicians whose concern is re-election over the good of the nation and the rights of it’s citizens.
    Opinions – If someone has been in office for more than two terms it is time to give them the rest they deserve for their service. The hardest part of returning our government to the people is going to be finding jobs for the thousands that would be left unemployed. At present in the state of Texas they are making it awful easy for illegal aliens to vote and are more concerned with what Mexico has to say than the citizens of America.

  49. That was truly an impressive and powerful story to read.
    I have no legal expertise, but the story was moving.
    I am a caucasian firearms owner who also worries about
    his family in today’s uncertain times.
    THANK YOU

  50. As the very Liberal son of a black man and a white woman (both also Liberals), I can definitely relate to this story. My father had to deal with threats–that’s plural–to his life that my mother never had to even contemplate. I’m very glad that he had his gun, otherwise he’d be dead today, and I’d be without my Dad.

    Is that what Feinstein, Pelosi, and Boxer want–my father dead? Judging from their actions, maybe it is….

    My own awakening to the Second Amendment is at my Web site. We need to continue to educate people as to why the Framers put the 2A in there in the first place.

    Cowboy T
    San Francisco Liberal…With A Gun!

  51. Wow, awesome story. God bless your father and the men you highlighted in this story. As a white American, a conservative and supporter of civil rights and true equality and equanimity, I am a firm believer that ALL citizens, regardless of color, have a right to self defense. To be honest, I feel MORE comfortable with a law-abiding black neighbor who has taken the steps to defend his family than I would one who has not. It becomes a common bond between us. I would stand shoulder to shoulder with any law-abiding citizen to defend himself and his family from criminals, and his color is irrelevant. Reverend King was right: we should judge a man by the content of his character, and not the color of his skin (or the caliber of his weapon!)
    Together we stand, multicolored America!

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  53. As I lived in Hayward ca in 2009 my house was robed twice and I had some bad kids firing shut guns around my house and the only safety I had is was my gun since it took the police 4 days to come to lift fingerprints after my house was invaded and was told that house theft is a common problem in Hayward .
    My kids were violated and their clothes , pictures and toys were scattered all over the house and people who never experienced that are the liberal
    Who are asking our Federal government to have guns control.
    To these liberals I say till our cities are 100% safe and Gangsters are stripped from their guns there is no way I will nevergive up my guns.
    Parents have responsibilities to keep the firearms away and believe criminals have second thoughts a lot of time cause good citizens have firearms and once you take out guns away crimes will soar .
    To liberals I say wake up and keep in mind criminals and psychics will always have guns from the black market so stop crying keep our rights untouched cause we live in an era where crimes are soaring fr due to your liberal minds by having open borders and Immigrations for these jihadist to come to our beautiful America and take our lives away.
    Remember 9/11 , Waco,san bernadino and are you seeing what is going on in Paris , Sweden , Germany and the middleware with Isis who are living among us .
    I am glad trump came to wake you up and never less protect you and too bad some judges still living in lala land to block Mr Trump orders but not for too long .
    If you can not protect us please let our guns do when the bad guys comes in .

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