There were contradictions from the start. We all want to be free, but we also want to live in a safe and somewhat orderly society. Those two don’t mix easily. After all, we started out declaring our independence from a king, saying kings don’t matter – there were certain inalienable rights everyone has, to life, liberty and the pursuit of happiness. It was going to be life, liberty and the pursuit of property – following John Locke – but perhaps those with property at the time didn’t want to share. Still this was a radical idea. No king, or actually no government, has the inherent right to just take your life, or to toss you in jail and throw away the key, or to tell you that you can’t do what makes you happy. They were thinking of King George, claiming he had those rights, by divine mandate, but of course governments do have those rights, as they make a safe and somewhat orderly society possible. They make civil society possible. They make civilization possible. The trick is to develop a government that doesn’t abuse its power to punish and imprison and forbid all sorts of pursuits, even if those pursuits make an individual happy. Representative democracy was the answer. Monarchies and dictatorships were inherently illegitimate. What the government can punish and forbid and take should be determined by the informed consent of the governed. All we had to do was work out the details of that.
This took some time. The 1776 Declaration of Independence was only a statement of general principles, and the original Articles of Confederation was simply an agreement among thirteen seemingly sovereign states to cooperate in our war against England, if they felt like it, and a series of trade agreements. The matter of what the government can punish and forbid and take, and under what conditions, and what it cannot do, was finally addressed in the Constitution, adopted on September 17, 1787 – fairly late in the game. Much of the Constitution addresses structural issues – how the government is organized and which branch has which specific powers. That’s the boring stuff. The good stuff is in the Bill of Rights, right up front, fleshing out what freedom means, in a safe and somewhat orderly society.
That’s where what should be clear gets muddied. Freedom of speech and freedom of the press are guaranteed – except that later we all agreed you’re not free to shout FIRE in a crowded theater, and slander and libel are always forbidden, as is publishing anything that endangers national security. Those are matters still in dispute of course. Edward Snowden may or may not have damaged national security, or if he did, a bit, our right to know about such things may be more important to us. It’s complicated. The Fourth Amendment forbids illegal search and seizure by the government, unless by court order – a warrant based on probable cause. Technology has muddied the waters there – the metadata about everyone’s phone calls and electronic communications, not the content, may be fair game – or not. That leads to the right to privacy, never mentioned in the constitution but which the Supreme Court ruled was clearly implied. In the matter of Griswold v Connecticut they ruled the police can’t bust down the bedroom door and arrest a married couple they think are using some form of birth control. That’s going too far. Privacy is implicitly guaranteed as a constitutional right, but the Griswold ruling led to Roe v Wade – interfering with a woman’s decision to seek an abortion, in the first term, was also going too far – an unwarranted invasion of privacy of exactly the same sort. That also led to their ruling in Lawrence v Texas – the police can’t bust down the bedroom door and arrest two consenting adults engaged in homosexual activity, in private. That too is going too far. Each ruling follows the other, logically, enraging social conservatives and the religious right. That’s why Rick Santorum has long argued the whole problem started with the Griswold ruling – there’s no such thing as a right to privacy. Santorum says that was decided wrongly. If we want to live in a safe and somewhat orderly society there have to be rules, and God’s rules, as he understands them, will do just fine. Maybe so, but the First Amendment clearly states that the government should never, ever, make any law that even implies the establishment of religion, so he can’t really go there. Mitt Romney said he never heard of the Griswold ruling. Harvard Law isn’t what it used to be, but Mitt did sidestep a tricky issue.
The trickiest issue, right now, is raised by the Second Amendment. Citizens have the right to bear arms. Anyone can pack heat, but the business about how that’s because “a well-regulated militia” is important does muddy the waters. That’s the only rationale given, and no one knows what that means now. There’s some question of what it even meant then. Maybe it had something to do with having something like the Army Reserves or State National Guard – a spare force of armed soldiers can be useful, when the Indians attack or something. It couldn’t have meant that everyone should carry a gun. In a safe and somewhat orderly society only the police carry guns, to keep order – using them only when necessary. Trigger-happy asshole policemen lose their jobs and go to jail – or should. You can’t have everyone being an avenging vigilante. The government alone must have a monopoly on the use deadly force, and also be held accountable, by the people, for its use. If every man, woman and child is allowed to be judge, jury and executioner, civilization itself is impossible.
The counterargument is self-defense. The police can’t be everywhere, and everyone has the right to protect themselves. The guys who hammered out the Bill of Rights didn’t mention that at all, but the argument is that this is the real reason they came up with the amendment. If a right to privacy, never mentioned in the Constitution at all, can be inferred, then this too can be inferred. That must be it, as in common law self-defense has always been a defense when you’ve killed someone. You had no choice. In all states, if safe retreat is possible, you’re supposed to scram rather than shoot the guy – except that in Florida and other states they have new Stand Your Ground laws, written for them by the NRA and ALEC – you are not required to retreat, even if you safely can. You can shoot the guy. That must be why everyone has a right to bear arms.
That’s hypothetically possible – no one knows what the Founders were really thinking – but that leads to some odd events, as shown in this examination of how the new Stand Your Ground law has affected Florida, from the Tampa Bay Times last month:
The number of cases is increasing, largely because defense attorneys are using “stand your ground” in ways state legislators never envisioned. The defense has been invoked in dozens of cases with minor or no injuries. It has also been used by a self-described “vampire” in Pinellas County, a Miami man arrested with a single marijuana cigarette, a Fort Myers homeowner who shot a bear and a West Palm Beach jogger who beat a Jack Russell terrier.
People often go free under “stand your ground” in cases that seem to make a mockery of what lawmakers intended. One man killed two unarmed people and walked out of jail. Another shot a man as he lay on the ground. Others went free after shooting their victims in the back. In nearly a third of the cases the Times analyzed, defendants initiated the fight, shot an unarmed person or pursued their victim – and still went free.
This is a basic breakdown in civilization, and thus what happened with Trayvon Martin doesn’t seem so odd now. There were contradictions between freedom and orderliness from the start. Now they’re really playing out.
It’s a struggle, and no one has struggled with the issue as oddly as the Washington Post’s Richard Cohen:
I don’t like what George Zimmerman did, and I hate that Trayvon Martin is dead. But I also can understand why Zimmerman was suspicious and why he thought Martin was wearing a uniform we all recognize. I don’t know whether Zimmerman is a racist. But I’m tired of politicians and others who have donned hoodies in solidarity with Martin and who essentially suggest that, for recognizing the reality of urban crime in the United States, I am a racist. The hoodie blinds them as much as it did Zimmerman. …
Where is the politician who will own up to the painful complexity of the problem and acknowledge the widespread fear of crime committed by young black males? This does not mean that raw racism has disappeared, and some judgments are not the product of invidious stereotyping. It does mean, though, that the public knows young black males commit a disproportionate amount of crime. In New York City, blacks make up a quarter of the population, yet they represent 78 percent of all shooting suspects – almost all of them young men. We know them from the nightly news.
Zimmerman pursued the young black man, but he was right to do so, and saying so shouldn’t get you labeled as a racist:
In New York City, blacks make up a quarter of the population, yet they represent 78 percent of all shooting suspects – almost all of them young men. We know them from the nightly news.
Those statistics represent the justification for New York City’s controversial stop-and-frisk program, which amounts to racial profiling writ large. After all, if young black males are your shooters, then it ought to be young black males whom the police stop and frisk.
Still, common sense and common decency, not to mention the law, insist on other variables such as suspicious behavior. Even still, race is a factor, without a doubt. It would be senseless for the police to be stopping Danish tourists in Times Square just to make the statistics look good.
I wish I had a solution to this problem. If I were a young black male and were stopped just on account of my appearance, I would feel violated. If the police are abusing their authority and using race as the only reason, that has got to stop. But if they ignore race, then they are fools and ought to go into another line of work.
That’s the gist of it, but the Atlantic’s Ta-Nehisi Coates pushes back:
It is very important to understand that no one is asking the NYPD to “ignore race.” If an officer is looking for a specific suspect, no one would ask that the NYPD not include race as part of the description. But “Stop and Frisk” is not concerned with specific suspects, but with a broad class of people who are observed making “furtive movements.”
With that said, we should take a moment to appreciate the import of Cohen’s words. They hold that neither I, nor my twelve year old son, nor any of my nephews, nor any of my male family members deserve to be judged as individuals by the state. Instead we must be seen as members of a class more inclined to criminality. It does not matter that the vast, vast majority of black men commit no violent crime at all. Cohen argues that that majority should unduly bear the burden of police invasion, because of a minority who happens to live among us.
Richard Cohen concedes that this is a violation, but it is one he believes black people, for the good of their country, must learn to live with. Effectively he is arguing for a kind of racist public safety tax. The tax may, or may not, end with a frisking. More contact with the police, and people who want to be police, necessarily means more deadly tragedy. Thus Cohen is not simply calling for my son and I to bear the brunt of “violation,” he is calling for us to run a higher risk of death and serious injury at the hands of the state.
Cohen is actually calling for the end of civilization:
The problems of the black underclass are hardly new. They are surely the product of slavery, the subsequent Jim Crow era and the tenacious persistence of racism. They will be solved someday, but not probably with any existing programs. For want of a better word, the problem is cultural, and it will be solved when the culture, somehow, is changed.
This paragraph is the American approach to racism in brief. Cohen can name the root causes. He is not blind to history. But he cannot countenance the import of his own words. So he retreats to cynicism, pronouncing the American state too bankrupt to clean up a problem which it created, and, by an act of magic, lays it at the feet of something called “culture.” …
What you must understand is that when the individual lives of those freighted by racism are deemed less than those who are not, all other inhumanities follow. That is the logic of Richard Cohen.
Ed Kilgore is more precise:
Both in terms of the Zimmerman/Martin case and the gun issue generally, we ought to be asking Americans if they really want to be protected from crime by the police, or be forced to do it themselves or rely on the likes of George Zimmerman. If they think police resources are inadequate or their personnel are untrustworthy, let’s talk about fixing those problems, not throwing up our hands and engaging in an arms race with criminals we can never win.
Never forget: an important hallmark of a modern civilized society is a monopoly on the use of deadly force by public authorities under the supervision of laws, courts and elected officials. When we indulge in the barbarism of sanctioned private killing, we also inevitably encourage other forms of barbarism, like racism.
Actually it was Zimmerman who saw the breakdown in civilization, and wanted to fix that all on his own, with his own small step. He no doubt saw himself as the hero here, made a victim by the stupid laws.
Salon’s Andrew O’Hehir says it’s even more complicated than that:
In a ghoulish and almost comical footnote to a traumatic summer weekend in America, many of us in the media received an email on Monday from the office of former congresswoman Gabrielle Giffords and her husband, the retired astronaut and Navy captain Mark Kelly. “Gabby fired a gun for the first time since Tucson,” the subject line announced. Oh, good! In a blow for responsible gun ownership, or maybe just for painful historical irony, the victim of one of the most famous shootings in recent American life is ready to pack heat again, just as the perpetrator of another, George Zimmerman, gets his own gun back. If they ever meet in person, at least Giffords will have better odds than Trayvon Martin did.
No, that’s not funny. But I’m not trying to be funny. I’m suggesting that if liberal female legislators from red states, and African-Americans who go out at night in neighborhood-watch communities, and lesbian, gay or transgender people in conservative small towns decide to arm themselves in self-defense, that’s a legitimate response to a crazy situation, and we don’t have the right to get high-minded about it.
In short, civilization has broken down already:
Listen, NRA trolls: Save your self-righteous emails about liberty and your dumbass interpretations of the Second Amendment for someone else. I’m not here to take away your cache of assault weapons, your cans of Spam or your camo pants. Restricting access to dangerous weapons in some reasonable fashion – as opposed to pretty much removing all limits and regulations on gun ownership – would have been the rational response, of course. But you people are living proof that we don’t live in a rational country.
I mean it. How many times do we have to have the same stupid conversation about guns – after every school shooting, post-office massacre or attempted assassination – while elected officials shift uneasily in their loafers and gun lobbyists stand in the corner giggling into their $18 designer cocktails, before we realize that there’s no point? …
Easy availability of handguns and assault weapons enables the high murder rate characteristic of our beloved homeland, and most Americans would be totally fine with tighter federal regulations. (I realize, by the way, that that’s where Gabby Giffords’ actual position lies, and that her gun-shootin’ press release was a P.R. maneuver.) But I’m done with it. If you believe actual logic applies in the United States of America, as opposed to the bizarro-world logic of dreams and action movies, you haven’t been paying attention.
I’m here to say that given our sick and deranged society, Giffords’ decision to pick up a gun two years after getting shot in the head and suffering a massive brain injury makes perfect symbolic sense – and maybe literal sense too. We are a nation awash with guns, a people who love guns more than we love cars or children. Why should angry white men get them all? Most black people are too sensible to say this stuff out loud, but I guarantee you more than one African-American parent has had this thought in private: If Trayvon Martin had been armed the way George Zimmerman was – and the way that Scary Young Black Men are presumed to be – he might be alive today.
Think about that:
Trayvon Martin went out to the 7-Eleven without a gun or any other kind of weapon, committing no crime during his journey, and still wound up coming home in a box. From his family’s point of view, there is no worst-case scenario that’s worse than that. We hear all kinds of excuses and explanations about how this is just a story of two individuals and not another American moment of racial reckoning, and how Trayvon was no angel but a kid who may have shoplifted jewelry or struck gangster poses on Facebook (the penalty for those things being death, apparently), and how the jury in Sanford made the correct decision under Florida’s laws, which can pretty much be used to justify shooting anyone who strikes you as kind of scary. All of this may be true, up to a point, and also deliberately misses the larger meaning of this event. …
Gun ownership among the craziest people in our society is dangerously high, and there doesn’t seem to be anything we can do about it. Those who choose to counter it with their own guns are simply pursuing the inexorable logic of American life, the logic of the gun cult.
Ah, but there are pockets of civilized people, like one of Andrew Sullivan’s readers:
It really does seem that a lot of older white folks are stuck in the ’80s. I’m a young white guy living in DC, and every time I go home for the holidays or a party with extended family, after the usual small talk it always comes up: “How do you deal with the crime?” It’s honestly a question that drives me crazy. I’ve lived here five years and all I’ve ever witnessed is someone stealing something from CVS. I do know of friends of friends who have been mugged and such, but still … it’s far from a war zone. When I commented that I had recently moved to nearby Arlington, they said, “Well, of course – I mean, you can’t live in DC, really.” It’s apparent to me that despite my denials, my aunts and uncles are convinced that DC and other urban areas of the US are something akin to Baghdad. They just don’t seem to believe me when I tell them that, yes, there are a lot of black men around (“sketchy people”, in their words), and, no, they do not bother me. They are convinced there is mortal danger around every corner, just like Richard Cohen is.
Maybe this is a generational thing. Older folks see the world falling apart. Arm the young wannabe cops who volunteer for neighborhood watch, even if they’re flaky and unstable – arm everyone, except young black men. Everyone has the right to carry a gun, or many of them, everywhere, all the time. This is the only thing that will save civilization. We all want to live in a safe and somewhat orderly society.
There’s no point in pointing out how absurd that is. When every single citizen is free to be judge, jury and executioner, a safe and somewhat orderly society becomes impossible. This may not be what those fellows drafting the Second Amendment had in mind. They were just trying to work out the relationship between freedom and public order, and there were contradictions from the start. Those contradictions are still with us.