Tuesday, August 15, 2017

Actions speak louder than words

You got something to say?

So, on the question of violence in Charlottesville, who showed up with guns and body armor and pepper spray, and who did not?  And what effect did it have on the police response to the protests, and on the "counter-protestors"?

That's the base question behind this excellent article at Slate about how the 2nd Amendment has devoured the First.  As the essay points out, since the Skokie case the Supreme Court has held that public spaces are particularly important to the exercise of free speech.  But since the Heller decision, state laws have allowed people to bring guns to their exercise of free speech, an exercise of their 2nd Amendment rights.  Now, it's true, many states have laws against "brandishing" weapons, but it's a fine line between carrying a gun slung over your shoulder, and "brandishing" that gun.  And in a crowed, the distinction between brandishing and shooting is a moot one because the police officer has to be standing at the elbow of the person "brandishing" in order to keep it from being a shooting.

If you cast your mind back to the standoff in the desert over the Bundy family, there was a reason the government didn't take anyone into custody that day, but has been rounding up people it could identify pointing guns ("brandishing" under the relevant laws, I assume; although I imagine it's a more serious crime the FBI is charging) ever since.  When everybody is armed, you don't throw a lit match on that kerosene-soaked pile of rags.  The same reasoning applies in Charlottesville:  the police response might have led to a slaughter if they had waded into a crowd of armed people and started taking guns away by force, "force" here meaning "at gunpoint."

And how would they prove "brandishing" in the first place?  And how quickly would things have gotten out of hand, escalating from fist fights to gun fights?  And how does your so-called 2nd Amendment right to carry a gun in public (but not "brandish" it or shoot it?) trump my 1st Amendment right to peaceably assemble?  Indeed, how quickly does a "peaceful" assembly turn violent when guns are present?  It's very likely the Charlottesville police decided fisticuffs and pepper spray were less violent than bullets.  In a nutshell:

Nonviolent demonstrators lose their right to assemble and express their ideas because the police are too apprehensive to shield them from violence. The right to bear arms overrides the right to free speech. And when protesters dress like militia members and the police are confused about who is with whom, chaos is inevitable.
And doesn't the right to peaceably assemble include the right not to be intimidated, by the government or anyone else, as you do so?  "Carrying" turns to "brandishing" turns to "shooting" so quickly we can't realistically separate them, anymore than we can separate a driver at the wheel of a car from a driver using that car as a weapon.  Would anyone have objected if police had closed the streets in the area to vehicular traffic, for precisely that issue of public safety and right to peaceful assembly?  Presumably they did, because the killing and injuring with a car occurred some distance from Emancipation Park.

Aside from the driver of that car, 3 people were arrested in Charlottesville; one for misdemeanor assault and battery, one for disorderly conduct, one for carrying a concealed weapon.  Compare that with the running list of people arrested at Occupy Wall Street demonstrations between 2011 and 2014.  I don't remember hearing of anyone carrying weapons on behalf of OWS, which may be why 300 were arrested at one protest in New York City in 2011.  It is more dangerous to the police and the innocent to arrest armed protestors, especially in large numbers.

When the police are literally too afraid of armed protesters to stop a melee, First Amendment values are diminished; discussion is supplanted by disorder and even death, and conversations about “time, place, and manner” seem antiquated and trite.

Gov. McAuliffe said it plainly, in defending the police response:

“It’s easy to criticize, but I can tell you this, 80% of the people here had semiautomatic weapons," McAuliffe said.

“You saw the militia walking down the street, you would have thought they were an army ... I was just talking to the State Police upstairs; [the militia members] had better equipment than our State Police had,” McAuliffe said. “And yet not a shot was fired, zero property damage.” 
It's actually a good thing no shots were fired.  But that's only because one side had the guns, and the other side declined to challenge them because of it.   A well-regulated militia is necessary to the security of the state, the 2nd Amendment says.  A mob of armed people is not a well-regulated militia; and suppressing the speech of others through intimidation is not providing for the security of the state.


  1. This is a case where I language fails us. The media use peace and non-violent interchangeably, whereas they are not the same. Even our use of non-violence lacks a full meaning of the actual circumstances. Intimidation and coercion as you have noted are important to the context of the situation. A lack of violence that is predicated on high levels of intimidation and coercion is not peace, it is merely a lack of violence on one side that arises from a threat of violence on the other. Actual peace would require a lack of violence by all parties, and also a lack of threats, intimidation or coercion by all parties. (Let alone a peace that surpasses all understanding...)

    There can be no peaceful protest when the protesters are armed. There is implicitly a threat of violence against counter-protesters or the police. I don't think we should even call these non-violent protests. We lack the language to adequately describe the situation and the media doesn't communicate the true nature of the situation.

    We are constitutionally protected from intimidation of our speech rights by the state, but the state has no positive obligation to protect our free speech rights from intimidation by private actors. Oppression via Jim Crow and other avenues was a state sponsored oppression implemented by state actors. From Brown v. Board of Education (and yes, based on even earlier SCOTUS decisions) to the various civil rights and voting rights acts, overt state oppression was eliminated. The backlash as it has formed is to move that oppression to private actors. This is the intent of open carry and unrestricted hidden carry laws. It is the reasoning for now allowing with recent jurisprudence, private actors to discriminate in the work place, impose religion in ways the state could never impose. I don't think we are even at the middle of the wave of this empowerment of the private actor to take on the oppression and intimidation that used to be practiced by the state. For example, stand your ground laws allocate the power to judge and inflict punishment to the private actor. Previously the state retained this power, and only under the most exceptional cases of self defense. Now in some states we allow for the imposition of the death penalty by a private actor in the mere defense of private property.

    Our constitutional system is inadequate to respond to the current situation. To go further then immediate situation in Charlottesville, when the constitution was created, there was the individual and the state. Other private actors, by which I mean corporate entities, were not seen as powerful actors and certainly weren't considered to have rights in the way they were intended for the individual. The rise of the limited liability corporation, and the power it can exert and its ability by design to avoid responsibility and accountability has altered the landscape of the allocation of power.

    I have rambled, but as I am typing more has been bubbling up. I need to go think about this more. Thank you for the place to think out loud.

    The Peace that surpasses all understanding...
    Peace be with you.

  2. And also with you.

    We are constitutionally protected from intimidation of our speech rights by the state, but the state has no positive obligation to protect our free speech rights from intimidation by private actors.

    Actually it does, else public schools would not be concerned with school bullies (always have been, so far as I know), and peaceful protestors would not be protected by police from violent counter-protestors (if it was simply a matter of keeping the peace, protests would not be allowed in the first place).

    What we have lost is the idea that speech itself is a communal, not just an individual (i.e., personal) right. If I am intimidated by someone staring at me as I speak, that's my problem. If I am intimidated by someone carrying a gun and staring at me, that's the state's problem, and an abrogation of it's obligation by passing laws allowing such open carrying of firearms. (And imagine if black protestors had shown up armed. Huey Newton could tell you about that.).

    As a group and as a person, I have the freedom to speak, and the state not only has to allow that, but protect it. If it only does the former, but not the latter, what right do I have?

  3. Thank you for your reply. I think where we differ is our confidence that the state has any positive obligation to protect my right to speak (other than some general preference for public order). A appreciate your mentioning schools having a positive obligation to protect the students from other students, I hadn't thought of that circumstance. The only one I could think of where the state has to positively protect rights was the state needing to provide counsel to the accused in a criminal proceeding. Of course the counter party in that circumstance is again the state.

    But I think my point of the state having no positive obligation to protect rights still holds. Here is what occurred at a synagogue in Charlottesville this weekend. Synagogue Where is the freedom to practice religion if the city doesn't provide police? The congregation can't go to court to demand the city act. If the city was preventing their worship, they could bring an action. But since it's private actors, they have no recourse other than to appeal to the political process. (Now I do suspect there is in federal civil rights law an ability to seek recourse).