There are two versions of this essay, an extended exploration of the subject, The Constitution Politics and Public-Suicide and a 1200 word version presented in its entirety here below. They are the result of extended research and reflection. The deaths of all those children at Sandy Hook Elementary School set in motion a project that has become much bigger than I ever expected.
Read on to see how the agenda pushing Gun Rights and attempts to limit Voting Rights are linked in 2016.
Read on to see how both have their origins in the US Constitution, in the very provisions originally crafted to protect the powers of slave holders in the slave states.
Read on to see how danger faces the First Amendment today, under threat from the Second Amendment in a confluence of violence and votes in sit-ins, Town Halls and the halls of Congress.
PLEASE CONSULT BEFORE PUBLISHING THIS PIECE ELSEWHERE. meyerknh@evergreen.edu
Gun Rights, Voting Rights and the First Amendment
The New York Times made headlines itself when it chose to run an editorial headlined “End the Gun Epidemic in America” on its Dec. 4, 2015, Front Page.
In the newly revived Times Magazine, the paper was also in the midst of an extended series of stories about repeated challenges to voting rights across the USA.
Though they appeared in different parts of the paper, these are not separate issues. Their common ground is the US Constitution. Seeds of both were planted after a fateful bargain, hammered out by six states committed to protecting the rights of slave holders and seven which were willing to let them do so.
Violence and intimidation, of course, were embedded in master/slave relationships from the beginning. White owners understood that the risk of dreadful violence hovering over slaves and their families was required to keep slaves on the plantations and at work. Signing onto the US Constitution’s Fugitive Slave clause and later Fugitive Slave Laws made the entire nation complicit: to return any African American to his or her master was to subject them to dreadful torture, the kind that makes death a release.
The states planning to repudiate slavery also agreed to allocate to slave states a disproportionate share of the nation’s voting power. The infamous 3/5 count of African slaves added so many unwarranted Congressional seats to the slave states that they controlled the Electoral College and the Presidency for all but eight of this nation’s first 40 years.
A succession of ingenious official rationalizations enabled horrendous violence, particularly against African Americans, to develop as times changed. In the earliest years slave owners were exempt from prosecution if grievous bodily harm or even death resulted from “correcting” their own slaves. In the aftermath of the Civil War, mobs masquerading in white hoods used “anonymity” to evade punishment for lynching. Police violence against blacks, recently occurring at rates seven times their representation in the population has never even been tallied, until now, by the governments responsible.
The law and the courts were not silent about citizen violence either. After the abolition of slavery, perhaps also in support of the violence embedded in the westward march of a settler population, state courts and the US Supreme Court repeatedly expanded the right of ordinary citizens to kill in the name of self defense. Attack, without trying to evade violence is, of course the core of the current enthusiasm for Stand Your Ground laws, and a reason for the hesitant investigation of the Trayvon Martin case. Those earlier Supreme Court rulings mean that today a “true” man (1876), a “reasonable” man (1895), a man who whose power to “think in the presence of a raised knife” has evaporated (1920), can be free to kill without facing any consequences.
Violence and intimidation enabled whites in the defeated Confederacy to regain their disproportionate electoral power as well. The early 1870s, when whites started shooting in courtrooms and the legislature, were truly horrifying years in Mississippi. In 1895 the US Supreme Court made segregation and disproportionate white political power the law of the land once again, and political intimidation grew less and less constrained. By the 1960s, Sheriff Bull Connor in Alabama was shamelessly attacking would-be voters with dogs and fire hoses on national television. Back in Mississippi the politically powerful turned a blind eye to the murders of young men trying to register blacks to vote.
Violence, government violence and voting rights are pressing in upon us again as they have not since the 1960s. The voting rights issues are clear. For several years a movement to restrict voting rights has been working its way through Republican controlled legislatures. The US Supreme Court chimed in by restricting Federal monitoring of voting rights.
Another climax will come sometime in 2016 when a Supreme Court ruling tries to define the phrase “one person one vote.” This is not an obvious matter. Do we count children who cannot vote? Do we count all citizens who can, even though some do not? Do we count only registered voters? Do we, as we did at the Founding, write a definition which distorts the count in favor of one or another kind of person? Or do we continue the practice now in effect — counting every single living resident in the United States on the day of the count?
And, since states have constitutions and write electoral rules for themselves, what say does the Federal government have anyway? The power rests on the count, derived from the guidelines for the census. If we are originalist readers of the Constitution we have plenty of justifications for a ruling that favors rural, gun-oriented America, by deciding to eliminate recent immigrants from the count. Disproportionality after all, is what we did originally.
Ideally the US Supreme Court rejects that legacy, with a renewed commitment to authentic equity in voting rights. Still, by itself that will not be enough to heal the Constitutional wounds that remain.
We need another case, one that is not on its way to the Supreme Court, but should be. We are not in Mississippi in 1874 but this new millennium has brought guns front and center into politics and into public debates.
These guns, mind you, are the guns that belong to whites. If you are black, armed and alone on the street at night, you risk death. If you are white and armed with a loaded gun, the University of Texas is required to let you onto campus and into class.
If you are part of the group that carries assault rifles to Town Hall meeting on a health care plan you loath, you are unchallenged, but if you protest a police killing in your neighborhood risk being called a “thug.”
If you are a white mob invading a Federal nature reserve in Oregon, it takes days for any official to speak up and challenge you. If you are black, 12 years old and dead because you had a toy gun in your hands, the Cleveland Prosecuting Attorney will make sure your killer, the police officer, is not even charged.
If you vote against the white controlled NRA in Congress or the states, be ready for a brutal onslaught to drive you from office at the next election.
These kinds of violence and intimidation are a real and direct threat to America’s First Amendment rights. How can we freely assemble and debate the public issues of our time, if gun owners plan to destroy elected officials with whom they disagree? if a college student might offend a fellow student who just happens to be armed? if a black child cannot play in the park without risking death?
The Second Amendment requires that the right to bear arms be “well regulated.”
Our Federal government knows that guns cannot be allowed into the halls of Congress but “well regulated” must also mean that we reject the community of lobbyists pressing the NRA cause because we recognize that the very same community is using a dozen different strategies to cut back on voting rights.
“Well regulated” means that disproportionate violence leveled by the government against African Americans must stop, and it means that we must roll back legalization of new arenas for everyday citizen violence in Open Carry and Stand Your Ground.
Above all it means that someone, somewhere, needs to present the Supreme Court with a case which forces us all to reconcile our desire for the rights guaranteed under the First Amendment with the rights guaranteed under the Second.
Wisdom in voting rights and sanity in the face of violence depend as much if not more on the structures of government as on the behavior of individuals. The government can prevent or enable some gun owner to strip freedom of speech from a gathering of thousands. As a nation that is ready for war when democracy needs defense, we know that violence which impedes free speech and free assembly matters immensely.
This is not the time to teeter between choosing a society of violent dominance for some or a society with full participation by all. Compromise 1791, in 1820, in 1850 and a faulty sense of urgency in 1954 have led every time to renewed tension and conflict. If the country fails to set explicit limits on the power of the minority to force us to continue to live as we are, the fateful bargain struck by the Founders will do what it has always done.
We will sink ever deeper into a mire of government sanctioned, race-based political injustice and violence.
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