The Art of the Footnote – McDonald v. City of Chicago

Justice Thomas’ concurrence in McDonald v. City of Chicago, 561 U.S. 742 (2010), is probably one of the most consistently, compellingly originalist opinions of any that have come from the Court since the start of the Rehnquist Era. It is masterful on a number of levels, but I have new reason to appreciate it: footnote twenty-two.

As Justice Thomas tears through incorrect-but-never-reversed century-old precedent, he takes the time to provide a bit of historical context behind some of the cases which opponents of the individual right to keep and bear arms relied on. One of those, United States v. Cruikshank, 92 U.S. 542 (1876), held that the individual right to keep and bear arms was not a “privilege” of United States citizenship as guaranteed by the Fourteenth Amendment, and thus states were free to regulate that right, even if it meant regulating it out of existence. Problematically, the facts of Cruikshank were particularly detestable:

Three years after Slaughter-House, the Court in Cruikshank squarely held that the right to keep and bear arms was not a privilege of American citizenship, thereby overturning the convictions of militia members responsible for the brutal Colfax Massacre. . . . the consequences of Cruikshank warrant mention as well. Cruikshank‘s holding that blacks could look only to state governments for protection of their right to keep and bear arms enabled private forces, often with the assistance of local governments, to subjugate the newly freed slaves and their descendants through a wave of private violence designed to drive blacks from the voting booth and force them into peonage, an effective return to slavery. Without federal enforcement of the inalienable right to keep and bear arms, these militias and mobs were tragically successful in waging a campaign of terror against the very people the Fourteenth Amendment had just made citizens.

McDonald, 561 U.S. at 855-56 (Thomas, J., concurring). Justice Thomas then goes on to detail one such instance where this happened in practice.

Take, for example, the Hamburg Massacre of 1876. There, a white citizen militia sought out and murdered a troop of black militiamen for no other reason than that they had dared to conduct a celebratory Fourth of July parade through their mostly black town. The white militia commander, “Pitchfork” Ben Tillman, later described this massacre with pride . . . . None of the perpetrators of the Hamburg murders was ever brought to justice.

Id. at 856. Then, in one striking footnote, Justice Thomas manages to drive the point home against the dissent both in this case AND in Citizens United (Justice Stevens in both instances):

Tillman went on to a long career as South Carolina’s Governor and, later, United States Senator. Tillman’s contributions to campaign finance law have been discussed in our recent cases on that subject. See Citizens United v. Federal Election Comm’n, 558 U.S. 310, 394-395, 433, 446, 476, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010) (Stevens, J., dissenting) (discussing at length the Tillman Act of 1907 . . . ).

Id. at 856 n.22. Interestingly, Justice Stevens’ dissent in McDonald makes no mention of Cruikshank in the main text, despite his having addressed it at some length in his dissent in District of Columbia v. Heller, 554 U.S. 570, 672-74 (2008) (Stevens, J., dissenting), and despite it being material to the question of incorporation at issue in McDonald. Justice Stevens only cites it once, in footnote one of his dissent, where he is quick to clarify in passing that though he feels the case “correctly resolved” the incorporation question, he “did not agree with all other aspects of the[] decision[].” McDonald, 561 U.S. at 858-59 & n.1 (Stevens, J., dissenting).

A short paragraph in a small footnote shedding light on the ignominious facts behind contrary precedent, and that precedent basically vanishes in disagreeing justices’ counterarguments. Whether or not that is directly attributable to Justice Thomas’ historical aside in footnote twenty-two, I tend to think it had its intended effect, especially given the dynamics at play when Justice Thomas recalls the horrors endured by African-Americans in the South during Reconstruction and thereafter to remind the (non-black) dissenting justices why the individual right to keep and bear arms should have always been understood to be incorporated against the states.

I suppose that’s why you should always read the footnotes.

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