By Mike Dorf
Last year, in Ricci v. DeStefano, Justice Alito wrote a truly remarkable concurrence in which he painted a picture of ugly racial politics in New Haven (as I observed here). That concurrence--and more generally Justice Alito's votes on race cases--placed him squarely on the side of those white Americans, especially those Italian-Americans, who take the view that race-conscious government decision making has gone too far. Justice Alito called attention to a statement by an African-American New Haven minister who opposed promoting some of the white firefighters because "they just have too many vowels in their names."
What a difference a year makes. In Justice Alito's opinion for the Court in McDonald v. Chicago, race is a predominant theme. The crucial portion of the opinion is Part III, in which Justice Alito applies the test for determining whether the 2nd Amendment right is incorporated. And the core of that portion of his analysis is a discussion of how, in the wake of the Civil War, white Southern governments attempted to disarm African Americans, many of them returning to their homes after having served in the Union Army. Thus, Justice Alito argues, a central purpose of the Fourteenth Amendment itself was to confer the right to keep and bear arms on African Americans. (He makes other arguments, of course, but I think I'm reading the opinion fairly in saying that this one plays a key role.) Moreover, in recounting the facts at the beginning of the opinion, Justice Alito emphasizes that the eponymous plaintiff, Otis McDonald, "lives in a high-crime neighborhood" and "is a community activist" who has faced "violent threats from drug dealers." Justice Alito does not say that McDonald is African American, but he pretty clearly implies as much, and in fact, McDonald is African American.
So, has Justice Alito come around from foe to friend of the black community? Hardly. I'm sure that Justice Alito would say that he was never a foe of African Americans; he is simply skeptical of race-conscious decision making of the sort at issue in Ricci and other cases, in substantial part because it reinforces racial divisions and stereotyping. By contrast, McDonald is not a race case at all. The doctrinal point of Justice Alito's invocation of the history of disarmament of African Americans is simply that it informs the original understanding--and thus the contemporary meaning--of the Fourteenth Amendment.
Yet it is also plain that Justice Alito is trying to gain some normative value out of portraying gun possession as a civil rights issue. For example, in explaining why the Court's 1875 decision in U.S. v. Cruikshank does not have binding effect, he provides the historical context: The Court, in reversing a conviction for the interference with civil rights, denigrated the right to arms possession as a way of assisting the white perpetrators of the Colfax Massacre in getting away with murder.
I'm happy to acknowledge that the history Justice Alito cites is real--although there is also evidence that some of what the Framers of the original 2nd Amendment were trying to do was to preserve state militias against nationalization precisely so that they could be used to put down slave revolts. It's also true that there are law-abiding African Americans, like Otis McDonald, who want to be able to own firearms to protect themselves against armed criminals. But all that said, it is at least a bit jarring to see Justice Alito wrap himself and the Court in the mantle of civil rights warrior when he is voting to strike down state and local handgun control laws of the sort that law-abiding African Americans themselves tend to support. I'm not saying that makes the Court hypocrites or racists or anything of the sort. I am saying that this somewhat subtle playing of the race card seems a bit rich.