Is SCOTUS Establishing a Constitutional Right for Armed White Bigots to Engage in Political Terrorism?

EDITOR: I thought I would repost this essay today in light of an interesting and persuasive commentary today in the AZMirror on a similar theme. Also a post by George Takei (yes, Sulu…) and Jay Kuo have an interesting take on the matter in their essay ‘Vigilante Justice: How The GOP Is Putting The Law In The Hands Of Extremists‘.

It is my contention that recent decisions by the current SCOTUS demonstrate an active engagement in reactionary efforts to expand gun rights and allow bigots to discriminate against minority groups. Through their radical re-interpretations of the First and Second Amendments, they are placing these political domains beyond the reach of democratic decision-making, creating a right for armed white bigots to freely engage in political terrorism and intimidation. I’ll get to that rather inflammatory thesis – I swear – but a little background first.

I discussed the topic of gun rights and controls on the Jan. 28th episode of The John C. Scott Political Forum radio show recently (the archived episode is available now). I thought I would fill out my thoughts on the topic more fully and cogently than one is able to in a radio segment.

Admitting We Have a Problem

John had a gun rights advocate, Charles Heller, on in the prior segment, and so in my segment I briefly responded to some of his points, which I won’t reiterate in full here (if you’ve ever heard a gun advocate lying with statistics and repeating the mantra about how guns don’t kill people, people do, then you pretty much got his pitch). He gave a fairly standard defense for doing nothing about the problem of gun violence, other than reacting to mass casualty events more effectively by restricting media coverage of the identity of the perpetrators, and more effective trauma response to save more lives of those shot. I find it disgusting and unimaginative to essentially concede that we can’t do anything to prevent such tragedies, so we just have to respond more effectively.

One of the points I made in response to the pro-gun segment was that we really don’t understand well enough the problem of gun violence in general, and mass casualty events in particular, because our Federal Government has been restricted from spending money and resources on studying the problem as a public health and safety challenge until very recently. That’s thanks to the gun lobby, which doesn’t want the issue explored and studied rigorously. We might find much better policy responses when we more fully understand the issue through careful observational and experimental study.

It cannot be denied that we have SO many guns in America. We have more privately owned guns per capita than any other nation on earth, and many times more than comparatively rich Western nations. The correlation between the number and availability of guns in wealthier and Western societies, such as ours, and the overall rate of gun violence is straightforward and obvious (notwithstanding the deceptive assertions of the gun lobby). But the sheer level of gun violence in our society is much higher than would be expected based on the prevalence of guns alone, suggesting that something specific to American society further exacerbates gun violence. If we actually understood the specific causes of gun violence in our communities, we could begin to address them and perhaps slow or reverse the alarming rise of mass shootings.

Some factors increase community gun violence anywhere they are found, but some are especially relevant to the United States.

  • Easy access to guns by people at elevated risk for violence
  • Income inequality
  • Concentrated poverty
  • Underfunded public housing
  • Under-resourced public services
  • Underperforming schools
  • Lack of opportunity and perceptions of hopelessness
  • Police brutality and lack of police legitimacy.

The factor that I find most directly intuitive, and that I have the most professional experience with (as a former prosecutor), is the easy access to guns by people at elevated risk for violence, such as domestic abusers and deluded and radicalized bigots. Although the other factors obviously contribute to violence in general, they do not relate as directly to gun violence and to actual gun control policies in this country, or feed so clearly into mass shooting events. For this reason, the rest of this post focuses mostly on this aspect of gun policy and causation.

UPDATE: Shortly after writing this post, I read an excellent article exploring this public harm reduction approach to controlling who has access to weapons in the Sunday New York Times that I highly recommend to anyone serious about gun policy – from either side of the debate.

First, we have to understand our nation’s history around one particular risk group and how that group is being protected by the legal regime currently being constructed by the SCOTUS.

Present at the Creation

Any objective observer of our nation’s founding and history would certainly admit that there has always been a tight nexus between the concept of whiteness, the Christian religion (especially in Evangelical sects after the Great Awakening of the late 18th and early 19th century), and the more or less formal license to use violence to enforce racially/culturally/sexually motivated discrimination in our nation. I call this nexus, as do most scholars of the subject, white supremacy, although this term lies quite uncomfortably on the shoulders of those whom it describes. This nexus is largely responsible for the backlash against “wokeness” and “political correctness” and the fury over public school curricula perceived to promote these “agendas” (usually lumped together under the concept of critical race theory).

Our founders’ motivations for enacting the Second Amendment (“2A”) were complex, but they undeniably sought to prevent a standing army from having too much power in our national affairs, while reserving for the white elites a monopoly of organized armed force and police powers. White supremacy was so accepted and normative at that time that that is was barely perceived as a principal motivation, but we can clearly see that 2A provided the white constituency with the means to enforce its supremacy against minority groups – be they slaves, native peoples, or the propertyless poor. White violence was seen as a legitimate force for ordering society, and 2A was a means of maintaining the power of organized force within the white elite.

Although our military has clearly changed and our suspicion of standing armies has receded, 2A continues to support a white supremacist social order. Skeptical? See the history of racial pogroms against minority groups, the organized postbellum terrorism of the KKK, the rise of the private, predominantly white armed militias (despite being formally illegal in almost all states!) over the past 50 years, and the recent Jan 6 insurrection, not to mention the multiple armed standoffs against Federal officials and agents, armed invasions and intimidation campaigns in and around state capitals, and our entire history of armed voter intimidation. The continued connection between white supremacy and 2 is obvious to anyone willing to actually look.

Consider as ancillary to my thesis that every time gun control has been seriously debated as a policy in this country, it has been prompted by a  challenge to 2A’s white supremacist assumptions. In the 1970s, the Black Panthers, the Nation of Islam, and other minority groups began to conduct open-carry patrols, leading to the first wave of gun control laws. Later, in the 1980s and 90s drug wars, police concerns about being “outgunned” by (mostly) minority street gangs prompted the passage of the assault weapons ban and a new wave of gun control legislation. Simply put, white America only considers implementing new gun control regimes when minority groups start to organize and arm themselves using the protection of the 2A.

Creating a Constitutional Refuge for Armed White Bigotry

The changing demographics of the US are causing many white people to fear for their continued dominance of the democratic process. At the same time, the religiously and racially bigoted assumptions and norms of white supremacy are being openly challenged in our culture and politics. The political backlash has been fierce, and arguably explains Donald Trump’s political appeal.  That backlash is also present in the legal rearguard actions of the white supremacist power structure.

SCOTUS has always been the final refuge of political powers on the decline in our elected branches. It is a lagging indicator of waning political power in that the group losing power always seeks to use constitutional interpretation to entrench its views and preferences, placing them beyond the reach of normal democratic governance and deliberation.

The current SCOTUS is engaged in protecting white supremacist power on multiple fronts, including those related to gun rights and religious discrimination. Recent SCOTUS decisions concerning 2A cases such as Heller, where they invented a new personal right to own firearms, and Bruen, where they sweepingly foreclosed states and localities from adopting or continuing most firearms control measures, have constituted a sharp turn in constitutional jurisprudence. By these decisions, the SCOTUS is placing gun control largely beyond the reach of the democratic process (even as they use the same faulty historical reasoning to place reproductive rights back into the realm of democratic contention).

The SCOTUS is also building a bigoted jurisprudence that protects religious discrimination under the auspices of the First Amendment (most often under the guise of religious freedom, but also under the guise of free speech). Discrimination based on sexual mores can be followed in the line of cases from Klein (the first “cake” case) to 303 Creative (the website case) and Masterpiece Cake Shop (the second “cake” case). As it continues to find new “protections,” I have little doubt that the SCOTUS will  also start to protect discrimination against women and minorities under the guise of other “sincerely held religious convictions” or “freedom from compelled speech.”

This Court’s reactionary jurisprudence is retrenching the essential components of white supremacy beyond democratic regulation. By protecting bigots and their guns, this Court is creating a de facto and de jure constitutional right of white supremacists to use guns to threaten and intimidate others under the pretense of protecting religious freedom and free speech.

It is my belief that the heart of both historical and current resistance to gun control is the intent to protect and entrench white (male) supremacist violence against women and minorities. It is terrifying that SCOTUS’ reasoning through Bruen is even now being fitted to destroy restrictions on gun access for those convicted of domestic violence. Are there any groups more primed for gun violence than domestic abusers and angry, politically radicalized bigots? If there were ever prime targets on which to focus our legal efforts to disarm high-risk groups, it should be these.

The stochastic terror permitted and privileged by largely unregulated firearms will continue to be a feature of American life until the victims have sufficient power and will to tear out these foundations of white supremacy. The gun lobby and the radicalized extreme Right, galvanized around the threatened status of white supremacy, will act together to protect organized armed violence as a means to terrorize their opponents. When we can’t be safe in our schools, our public gatherings, our houses of worship, and the places of refuge and community for our minority citizens, we are not fully free. When our nation’s communities are allowed to become places of intimidation and violence, we cannot fully participate in political life. That suppressive effect on our communities is an intentional result of lax gun laws and the protection of bigotry, not an accidental side-effect.

1 thought on “Is SCOTUS Establishing a Constitutional Right for Armed White Bigots to Engage in Political Terrorism?”

  1. The current SCOTUS is illegitimate, which is not helpful right now I know.

    What these folks want is an armed religion based America with no government regulations.

    Also known as a Third World Shithole.

    But more importantly, who’s behind those Foster Grants? 🙂

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