Tactics to subordinate populations have been honed in modern conflicts. Peace, law, and democracy are hard-won in an armed world.
Public discussion of gun ownership in the United States focuses on individual gun owners and their interest in protecting themselves from violence—murder, robbery, rape, and similar crimes. Paramilitaries have not been part of that discussion. Paramilitaries have functioned as the military arm of political movements, as revolutionaries bent on ousting government, or as gangsters seeking loot. They either fight or collaborate with the professional military, threatening democratically elected governments. In their heyday, the KKK controlled large portions of the South and several border states while the Mafia controlled America’s biggest cities and through them several northern states.1 Other locally powerful and equally violent groups also controlled portions of the country. This is not just a foreign problem.
The founders of the United States preferred an army of citizens to a standing army. However, from experience, they were not romantic about the safety of arming citizens. Private armies in the western lands threatened the kind of secessionist effort with which Vice President Aaron Burr was charged a few years later. Militias of riffraff threatened public order. There were rebellions in a number of states. Shays’s Rebellion in Massachusetts crystallized the founders’ fears. Based on significant grievances, rebels closed the courts without firing a shot. Governor Bowdoin sent state troops to put down their rebellion—troops that were much less restrained than the rebels had been. News of the rebellion spread across the new nation and added impetus to hold the Constitutional Convention in Philadelphia. Many criticized Bowdoin’s economic policies and his response to the rebels. But rebels could not be allowed to take the law into their own hands.2
The Society of the Cincinnati, an organization of the military officers who served during the American Revolution, was much feared despite having George Washington at its head. Military power demands control. Article I of the Constitution gave Congress power to design the rules and training for all the state militias. Several years later the Second Amendment opened with its purpose to provide “a well-regulated Militia.” The founders were realistic; a civilian military required regulation.3
The Civil War and the forces behind it gave rise to new forms of American paramilitary organizations. The infamous Colfax Massacre in Louisiana used mass murder of Republicans, black and white, to hand elections to the segregationists. In 1876, the US Supreme Court overturned the convictions of their killers, holding that federal authorities had no jurisdiction to protect African Americans trying to exercise their federally guaranteed right to vote. The shield of that and later decisions allowed the KKK and other unofficial paramilitaries to segregate and subjugate the freedmen for a century, negating most of the gains promised by the postwar Reconstruction Amendments and civil rights acts.4 The Supreme Court’s states’ rights doctrine reigned largely unchanged until the Court slowly began backing up federal officials during World War II.
Since the KKK and other groups enforcing white dominance were unofficial, they did not run afoul of federal law as the Court defined federal authority. Freed of national control, they took control of the South by intimidation and violence. Their murders, lynchings, and beatings, inflicted for over a century, are now a legendary scar on the national memory of most Americans. Southern institutions could be counted on to protect the KKK, not their victims, or be too intimidated to consider taking any other action.
By the mid-twentieth century the line between unofficial organizations and public officials had almost ceased to exist. In many places, the KKK and the authorities worked in concert. Civil rights demonstrators were trained to face fire hoses, cattle prods, and beatings and to suffer without trying to fight back. For riding on unsegregated buses, Freedom Riders were beaten with bats, pipes, and chains. A bus burned while a mob tried to keep the riders inside. Others were killed while walking or driving, suspected of trying to help African Americans assert their legal and constitutional rights. Sheriffs handed prisoners to the KKK for execution. In fact, the sheriffs were often members of the KKK. The courage of the civil rights workers caused both pride and shame among many Americans: pride because Americans could persist in the face of such violence, and shame that they had to make those sacrifices. Some southern governors also called out the National Guard to defend segregation, and the media focused on the confrontations.
Eventually the demonstrators’ powerful allies woke up. Presidents Eisenhower, Kennedy, and Johnson put the National Guard under national orders to defend the rights of black students to go to integrated schools, and protect both black and white civil rights workers. The national press showed the carnage to horrified readers and viewers. Presidents Kennedy and Johnson insisted FBI Director J. Edgar Hoover squelch his racism and make an effort to solve the crimes committed against the blacks and their white supporters.5 Some courageous judges and U.S. courts of appeals came to their aid. The KKK and racists of the Old Confederacy could not have been beaten without the courage and persistence of African Americans themselves, their white allies who went South to help, and national political support.
Control by extralegal violence and intimidation is very much part of the American experience. The organized reign of terror that enforced the peculiar institutions of the segregated South was one of the most extensive examples of unofficial organized force supplanting democratic government in the history of this country; but there were other important ones, such as the goon squads attached to political machines and underworld organizations, both of which long ran large chunks of the country. Organized extralegal use of weapons has been domestic and dangerous.
Hate-defined militias in the United States continue the animus of slavery, Civil War, segregation, and the KKK. National Rifle Association (NRA) President and Alabama lawyer Jim Porter told the New York Rifle and Pistol Association at their annual meeting in June 2012 that what most Americans call the Civil War, “we call . . . the ‘War of Northern Aggression’ down South.” He went on to refer to President Obama as a “fake president” and Attorney General Eric Holder as “rabidly un-American.”6 Militiamen differentiate between whites who would have been citizens without the Fourteenth Amendment and “Fourteenth Amendment citizens,” who owe their citizenship to the amendment (i.e., blacks and people of color), saying they are not “real” citizens.7
The Southern Poverty Law Center (SPLC) follows hate groups, private militias and vigilante organizations closely, especially those that have taken the law into their own hands, intimidating both local and federal officials from enforcing the law. They pose real local threats to democratic government and national threats of terrorism. They have affected national politics and try to take advantage of other controversies.
The SPLC identified hundreds of self-described Patriot Militias in the United States aimed at taking law into their own hands. Timothy McVeigh, the terrorist who bombed the Oklahoma City federal building in 1994, emerged from these groups. There were ninety-five “plots, conspiracies and racist rampages” between April 1995 and the end of 2012, with thirty-three people killed and more than two hundred injured in eighteen different attacks, all by homegrown terrorists.8 Those attacks damaged or destroyed an Amtrak passenger train, Olympic and abortion facilities, a gay bar, a Jewish community center, a mosque, and a Sikh temple. The terrorists’ targets included a popular black former college basketball coach, a Filipino American mailman, a Korean doctoral student, a bank security guard, police officers, a nine-year-old Latina, an IRS employee, a reporter, and random African Americans, Asians, Jews, and others whom the culture identifies as minorities and nonwhites. The attacks were committed in the name of the Sons of Gestapo, Aryan Nations, and other white supremacist and neo-Nazi groups, based on anti-semitic Christian Identity theology or simply to challenge the legitimacy of the federal government. They did their damage as anti-immigrant vigilante “citizens patrols,” as “sovereign citizens” who claimed the right to make their own rules, or as an anti-tax executioner. Some teach others how to avoid paying taxes, to create bogus documents and permits, and to avoid foreclosure on their property. Some steal and try to steal property for use in future attacks.9
Their activity declined briefly after the 9/11 attacks but mushroomed following the election of President Obama, illustrating the difference between their definitions of tyranny and the democratic choices most Americans make.
Some places in this country have become lawless as law enforcement officers dare not try to enforce the law. In many parts of the world, judges and other public officials have become vulnerable targets for violent groups seeking power by force.10 When judges, agents, and other law enforcement personnel fear for their lives and families, a “culture of impunity” is born and some get away with anything because authorities do not dare offend them.11 That problem has now reinfected parts of this country.
American paramilitaries share a sense of loss, believing their country has been “invaded.” It is easy to dismiss them because the literature promoted at militia gatherings suggests a divorce from reality, including Holocaust denial and conspiracy theories blaming world and local affairs on “Bilderbergers,” the “Trilateral Commission,” international Jewry, and the belief that the United Nations is sending military units to take over the United States. However, as similarly inclined people move around to join each other, they gain in numbers locally. Not long ago, a group of armed militiamen blocked the federal government from charging Cliven Bundy the fee for grazing his cattle on federal land. Then they took their weapons to a closed federal canyon, to open it by force for use by all-terrain vehicles. They bluntly deny the authority of the federal government. To make it worse, prominent Republicans praised Bundy’s refusal to pay for grazing his cattle on federal land, and the armed intervention of his militia supporters, as “patriotic.”12 As the catalog by the SPLC makes clear, these are not isolated incidents.
So-called Patriot Militia build on the right to carry guns. They tell each other they must prepare for national tyranny against a government trying to enforce rules the militias despise such as controls on guns, fees for grazing on public lands, and taxes. A common thread is the ability to take on the Bureau of Alcohol, Tobacco, and Firearms, the IRS, and the U.S. Army!13 Their language is conditional—if America is taken over by tyrants. Yet, they believe the tyrants are already here, and they need only the tanks and canon to defend themselves.
The history of the movement is not comforting. Randy Weaver moved to Ruby Ridge, Idaho, where he could be near the compound of the Aryan Nations and other American neo-Nazi, white supremacist, and anti-semitic groups. Their offshoots became terrorists; they robbed, counterfeited, and murdered their “enemies,” including the Denver talk-show host Alan Berg. Weaver was arrested in 1991 on a firearms charge but failed to show up for trial. He made it clear that he would shoot anyone attempting to take him into custody and would not be taken alive. The press eventually questioned why he had not been apprehended, and the marshal tried to make the arrest. In a series of shootouts, a federal marshal as well as Weaver’s wife and teenage son were killed. Ruby Ridge became a rallying cry of the white supremacist movement.14
The following year, the Bureau of Alcohol, Tobacco, and Firearms tried to execute search-and-arrest warrants for David Koresh in Waco, Texas, after a UPS driver discovered that he was delivering hand grenades to the Branch Davidians, and a brief investigation revealed a large cache of guns, grenades, powder, chemicals, fuses, and ammunition had been shipped via UPS. The Davidians were a religious cult preparing for God’s entry into world affairs and “a cosmic struggle between good and evil; the forces of evil would be concentrated in the present center of earthly power, the government of the United States.”15 An attempt to execute the warrants resulted in two shootouts. At least four federal agents died in the initial shootout. A siege of nearly two months followed during which many people left the compound. Attorney General Janet Reno approved another effort to enforce the warrants, resulting in a shootout in which the compound caught fire. More than eighty people died inside.
The implications for enforcing federal law were clear. Many agents in several states sent their families away because of threats directed at them and their families for carrying out their assigned duties. Others simply backed off. In several cases, federal departments stopped enforcing the law for fear of creating another armed confrontation.16
The power of these groups reached Congress, leading the Republican majority to hold hearings on Reno’s handling of these events and claims that federal officials used excessive force. Congressman Charles Schumer responded with unofficial hearings on America’s private right-wing armies and the burgeoning threats against federal officials,17 eventually driving the leadership to schedule hearings of their own. Republicans then proposed requiring federal agents to get consent from local sheriffs before executing an arrest warrant or enforcing national regulations on federal lands.18
These private hate-filled paramilitaries continue training across the country, with concentrations in Idaho and Montana, and stashes of weapons to defend “their” race, independence, and country against the federal government or other “enemies.” Kenneth Stern points out that these groups have experience within the US Armed Forces, actively recruit within the military, and claim strong support among active-duty personnel. As Stern put it, “Timothy McVeigh was a model soldier”—at least before he bombed the Alfred P. Murrah building in Oklahoma City.
Political scientists have found armed, unauthorized, and unregulated militias a significant threat to modern democracies. For that reason, as the European Commission for Democracy Through Law observed, “In numerous states . . . [there is a] general ban on the creation of para‑military formations.”19 When armed militias fight, the usual outcome is autocratic rule—sometimes as a result of efforts to defeat the militias, at other times as a result of militia victory. As Juan Linz wrote, “Only those on the extremes of the political spectrum are prepared to fight or are likely to have the organizational resources to do so.”20
Paramilitaries tempt government to abandon civil liberties. In the theatre of battle everything is “justifiable” and democracy often becomes only the memory of a luxury. Law-abiding citizens become victims to abuse by both sides. Desperate people frequently create strongmen or turn to dictators in response to the perceived failure of the central government to control violence attributed to armed paramilitaries. Sometimes they turn to the very armed groups causing the violence on the assumption they would stop attacking people, as in the infamous decision of German President Hindenburg to make Hitler chancellor. Similar processes took place in Italy, Chile, and other countries.21 Sometimes as paramilitaries claim to act on behalf of particular racial, religious, or ethnic groups, their victims embrace hatred and prejudice in reverse, leading to a cycle of murder and devastation, all too familiar from the civil wars of the last decades. Despite rhetoric about protecting democracy and the traditions emanating from the American Revolution, paramilitaries are much more likely to threaten than to guard democracy.22
Even short of a successful coup or revolution, democracy loses whenever private paramilitary militias have the power to replace the ballot with lethal weapons, or declare what government may and may not do, as they have in parts of the western United States. Guns can trump other forms of influence on the political system,23 and guns are political regarding issues from abortion to taxes.24
Conversely, if everyone is armed, no one is in charge. Every disagreement has the potential of becoming lethal, of drowning the country in its own blood. Gangs, private paramilitaries, warlords, and similar groups threaten chaos or tyranny, making places like Iraq and Afghanistan almost ungovernable. Abundant arms also encourage an arms race for self-protection.
Hobbes argued the public had to give up the right to self-defense.25 The founders stressed regulation.26 Max Weber, a major figure in the evolution of modern social science, described the state as having a monopoly on the legitimate use of force.27 Whatever one’s starting point, the separation of weapons from accountability, oversight, and regulation is dangerous for democracy.
The weak restrictions of the 1993 Brady Bill, named for the press secretary who was severely injured in an attack on President Reagan, encouraged a large increase in the membership of the Patriot Militias because of the belief that the Brady Bill created a threat to gun ownership. The militias believed, therefore, that they would have to take on the feds over the right to bear arms.
Scholars suggest that some older white groups feel a lack of respect from a government that seemed to toy with their livelihoods via farm policy, taxes, and efforts on behalf of minorities. They argue that we need to respond to those grievances that are legitimate and fuel the desire to take up arms, but in return for control over the possession of arsenals of weapons and the enforcement of law.28
Internationally, studies show a worldwide rise in armed conflict of about 2 percent per year since 1950. We could contrast instances abroad from the militia, gang, criminal, KKK, and other organized violence in this country. But the patterns do not tell us whether or when it will change. Studies of civil wars and insurgencies around the globe reveal that the major causes of armed conflict are the factors that make them possible—the “technology of military conflict,” places to hide, sources of support, and traffic in arms—because those inclined toward violence will take advantage of whatever they can.29 Factors that make armed conflict possible include how weapons, owners, and organizations are accountable and “well regulated” in the words of the Second Amendment.
The NRA argues that people, not weapons, kill, but most often it is a combination of both. Internationally, the United States does not willingly arm its enemies and pushes for nuclear nonproliferation because nuclear weapons have the potential to make conflict more devastating, and because we see the advantage of multiple strategies for dealing with the people and the weapons.
Division between unauthorized and government-supported militias is fluid, a continuum of power. The KKK began as unofficial opposition to Union Army protection of the freedmen and their supporters after the Civil War. With violence, influence, assassination, coups, and voter intimidation, the KKK drove the freedmen out of government and stopped government from protecting them. Later, the KKK often dominated the state and local governments it had put in place.30
The use of private armies in other contexts is nothing new in the United States. Corporations hired armies of guards and used them to break up unions, leading to considerable violence until the National Labor Relations Act helped cool things down at the end of the Great Depression.31
The U.S. government has increasingly used private mercenaries and military organizations,32 with appropriations in the military budget.33 At least in theory, private companies provide economies,34 minimize political opposition,35 and allow the government to act by indirection;36 the use of military contractors also allows high-profile officials or departments to deny responsibility for human rights violations.37 The Constitution gives Congress power to control the privatization of warfare.38 Both the law and the Constitution prohibit the violation of protected freedoms by anyone the government uses to accomplish it.39 Deniability undermines those prohibitions. Congress tried to limit the government’s involvement in violence40 and domestic spying41 after the Church Committee Report on covert activities by government agencies.42 However, every new threat undermines limitations on the weapons used against alleged enemies or criminals.43 Inevitably, violence against alleged perpetrators sweeps too broadly, regardless of intentions, and undermines personal security and trust in the protection of government.
The dangers are considerable.44 Working in concert with the authorities, so-called death squads disappeared people in Argentina, Chile, Guatemala, and El Salvador45 and facilitated the Rwandan genocide, among others.46 Paramilitaries have become a worldwide threat.47 Death threats to judges sometimes come from independent crime syndicates, extremists, or rebels, but they also come from paramilitary organizations with ties to local armies or parts of the government, often threatening a culture of impunity.48
Americans perceive police in stark terms as the good guys chasing the bad guys. Lawyers see enough wrongdoing that they are less prone to romanticize people by job title or uniform. Police are like most groups of people. When they are good they are very good, and when they are bad, they can do a lot more damage than most of us. Given that disconnect between nuanced and unromantic views of scholars and attorneys on the one hand, and many laymen on the other, it is important to develop a realistic view of police departments and of police as individuals, and then put the problem of the use of force in context.
Some of the problems involve deliberate misbehavior. Following the infamous Ramparts scandal, the Los Angeles Police Department’s Board of Inquiry wrote a report, and the president of the Los Angeles Police Protective League asked the well-known law professor, now dean, Erwin Chemerinsky to analyze the report.49 In his introduction, Chemerinsky wrote:
Police officers framed innocent individuals by planting evidence and committing perjury to gain convictions. . . . Innocent men and women pleaded guilty to crimes they did not commit and were convicted by juries because of the fabricated cases against them. Many individuals were subjected to excessive police force and suffered very serious injuries as a result. As Los Angeles County Supervisor Zev Yaroslavsky noted, Rampart’s danger far exceeds police abuse—it “is a dagger aimed at the heart of constitutional democracy.”50
The scope of the problem was substantial. By September 8, 2000, some 100 convictions were overturned, five officers were arrested on criminal charges and seventy faced disciplinary proceedings. Chemerinsky reported that an “estimated . . . 3,000 cases need to be reviewed.”51
One could look at the motives of the officers in detail, but Chemerinsky concluded that focusing on the individual officers minimized the scope of the problem: “[T]he report for all of its length and detail ignores the real problems in the Department and therefore fails to provide meaningful solutions. . . . Not a single recommendation of the 108 listed calls for any structural changes in the Department or its management. The Board of Inquiry [recommendations] . . . would not bring about the needed systemic reforms of the Department.”52 That’s actually why the police union asked for Chemerinsky’s involvement—rather than denying the problem, they understood that it was systemic and wanted the cleanup to involve the upper echelons as well.
The problem is not in any respect limited to the LAPD.53 Framing innocent people takes place in rural as well as urban areas;54 this problem has been repeatedly documented all over the country. 55
Some people are framed to cover up police misbehavior; the use of charges for resisting arrest and similar crimes to cover beatings, for example, has long been documented.56 Some percentage of government agents become involved in criminal enterprises or are otherwise corrupted on the force. And some percentage of police killings of innocent people have been the result of impulsive shootings by terrified officers—terrified not because anything illegal had happened but because they were in a minority neighborhood. When a young foreign man with limited English reached for his keys, terrified officers killed him in a hail of bullets.57 They were acquitted. Around the same time, a bystander to a fight was sodomized with a broom handle by officers in a police station. One was convicted.58 In 2014, widespread demonstrations took place after police officers killed unarmed men in Ferguson, Missouri, and New York City and a twelve-year-old boy with a toy gun in Cleveland, Ohio.
Police are taught that it is too late to draw a pistol, or even to try to fire one in your hand, after you realize someone else is about to shoot. Human beings cannot react fast enough. In a society where guns are ubiquitous, it seems police are very edgy: Amadou Diallo was killed for trying to put his key in his door; Gidone Busch was killed for holding a hammer; a young unarmed teen taking a shortcut was killed because his presence startled the officer; and twelve- and thirteen-year-olds were killed for playing with toy guns.59 Killing of innocent people is likely wherever police are on edge about their own safety.
Shootings and beatings can appear to be isolated events and the source of disruption in people’s lives, but they may also be understood as implying a threat, causing people to submit, flee, or strike back. That behavior has deeper consequences for the entire society. Understanding the scope of the problem, therefore, requires some background and context.
Since the Warren Court decided Terry v. Ohio,60 police have been permitted to stop people for questioning without reason to believe they committed or had knowledge of any crime. Police now routinely stop people in high-crime areas, or when their racial appearance makes it seem unlikely to the officer that they belong where they are. Police find some evidence of crime and make arrests in less than 5 percent of the stops.
Most of us have probably been stopped in our cars regarding traffic laws. Many of the officers are polite and respectful; some are brusque and nasty. It is not an experience anyone looks forward to. I was once stopped twice within a few minutes; my car must have fit a description because the second officer, minutes after the first stop, asked me to open the trunk. The first officer was exceedingly polite; the second equally impolite. Unlike the rarity of my experience, some people are stopped frequently. For them, it’s more than just annoying—the officer never asks if you’re in a hurry (unless you were speeding and he is being sarcastic). And a patdown involves other indignities.
When the authorities are watching a particular group of people, they do not just look for direct evidence of a specific crime; they look for any transgressions. They find things they otherwise might not bother with because even minor charges act as “warnings” or push people to squeal about others. All of a sudden people are more likely to do jail time just because the police are there, looking.
The authorities also run stings to test and see if someone is inclined to evil behavior. Stings often use someone who is facing jail time because officials can offer the individual a valuable incentive to cooperate. A panel of the Tenth Circuit of the U.S. Court of Appeals once called those favors “bribes,” but courts continue to allow prosecutors and law enforcement officers to offer “favors” such as not bringing charges, or reduced jail time.61 I helped out in a minor way in defense of a Muslim cleric, who was caught in a sting by a real felon. The felon was asking the Imam to be a witness so that a financial transaction would be enforceable within the Muslim community. The transaction was supposed to involve the sale of a powerful weapon to be used against an embassy. But on the single crucial occasion where this felon was laying out the nature of the financial transaction, he forgot the recording machine in the car so there was no recording. Forgive me if as a lawyer I am very skeptical of what felons forget. In the atmosphere of terror in which that trial took place, the religious leader of that Mosque was convicted and sent to prison. I still believe he got the shaft.
What I am trying to convey is how vulnerable we are if the police want to get you. From time to time there is discussion about whether to let law enforcement officers spend time in our places of worship, looking for terrorists. Once officers or federal agents walk in, they are looking for weaknesses, for people they can arrest and turn into informers, accusing others. And with a witness who now has reasons to lie, innocent people are at risk, particularly when the witness has reasons to understand how dangerous authorities can be.
That has several consequences. Arrest rates in different communities correlate with official stereotypes, and those stereotypes cannot be validated because former arrests were based on the same stereotypes and become a circular and self-fulfilling prophecy. Moreover groups change over time, including our own ancestors. Even if they were originally accurate, stereotypes quickly become misleading. The inefficiency of profiling has been demonstrated in large-scale statistical studies.62 Allowing police to act on their suspicions does not contribute to making communities safer.
Racial profiling, however, does a great deal of harm. If you are neither poor, an immigrant, nor a person of color, you have probably not experienced the problem. Perhaps you have assumed that the outcries about abusive policing in the black and Hispanic communities are all nonsense. In fact, those problems are well documented by generations of scholars.
For young African American men and other minorities, disrespectful stops are a constant fact of life that has corroded their relationships with the authorities. They are likely to be treated just as badly by the courts. A couple of weeks after representing a pair of African American men, a judge stopped me in the courthouse to tell me he believed the testimony of one of my clients. So I asked, “Why didn’t you acquit him?” He responded, “I couldn’t do that to the police.”
Police chiefs will tell you there is as much drug crime in the white suburbs as there is in the black ghettos, but they focus on the crime in the ghettos. At every stage in the process—from the initial charge to the decision to send a kid back to his parents or off to jail, the likelihood of conviction, and the length of sentences—the numbers always turn harshly against African Americans, so they constitute a vastly disproportionate percent of inmates in American prisons. That different outcome reverberates in the community. In the white community, errant young white men and children are taken in hand and steered by law-abiding families. In the prisons, young black men are taken in hand and steered by other prisoners. They come out hardened for a life of crime, and leave behind many single-parent families coping without them. After they are released, their records keep them from the jobs that could eventually guarantee a decent livelihood. Our society nurtures white children and casts aside black lives. In the end, we all pay a price for the mistreatment of the African American and other minority communities.63
One price we pay is political. Inmates often cannot vote. Or they count as part of the population where the jails are, often exaggerating the electoral power of rural counties. Ex-convicts are often barred from voting which, in turn, permanently changes the politics of their communities, making sure that the resources that might help alleviate the conditions that lead too many into lives of crime never go to the communities where they are needed most to repair the damage.
This fraught relationship between the police and the black community means that police shootings and abuse can never be treated as isolated, accidental, or innocent instances; for minority communities it is a pattern that the police departments refuse to break. This fraught relationship means that police shootings and abuse always convey the message that blacks should live in continual fear of the police, and therefore reinforce the mutual hostility that facilitates abuse.
We all have a stake in these problems; they anger and miseducate young men in prison, waste police time, coarsen the police in the process, and waste tax dollars. We also have a stake in exercising the moral responsibility to stop it.
Guns add to the problem and the danger for both citizens and the police. Asked to address a class of policemen at a local college, I drew them out about one of my cases. But they wanted to explain to me that the officers enforced nonexistent gun control laws. In that state, laws prohibited concealed carriage of firearms but not open carry of hunting rifles. Never mind. Find a rifle, especially on a black man or a white “punk,” and they would be arrested for violation of the rule against concealed carriage of weapons. They knew it was illegal but they lied to make the convictions stick. Weapons were a concern and the officers intended to control them.
Liberals support police calls for gun control. Conservatives object to the enforcement of firearms as well as tax and environmental laws by federal and state agents and inspectors. Yet they want an unregulated police force, free to act on hunches. Unregulated police tend to go after people who “look” dangerous: teenagers, especially in groups, and people of color. Conservatives want “respectable” people around and they support the police. Political scientists describe local government as largely involved with the question of exclusion—who can live where, on what acreage; who can have what zoning variances to work there; and who can walk or drive there without being harassed by the local police.64 Liberals support the diversity that irritates conservatives, and they are not comfortable with arbitrary power. So the liberal angst is the opposite of the conservative angst—about arbitrariness more than the specific rules the police enforce.
In effect liberals and conservatives attack the police from both sides. Conservatives defend the guns. Liberals insist on standards. Politics decrees that police face guns, and citizens face largely unregulated police whose main object is to stay in control and to command obedience. The result is greater power not only to apprehend criminals, but also to act on stereotypes or prejudice. The result also escalates conflict which may be putting the police in more rather than less danger.
The Warren Court designed rules to deal with repeated coercion of confessions and other serious abuses that had been coming to the Court for decades. Nevertheless, misbehavior often goes without effective remedy. As James Madison put it in 1788: “If men were angels, no government would be necessary. . . . In framing a government which is to be administered by men over men . . . you must first enable the government to control the governed; and in the next place oblige it to control itself.”65 Support for the police should be support for good police work or it puts us all in danger. In simple language the founders would have applauded, power needs to be accountable, monitored, and controlled.
Steven Pinker, in THE BETTER ANGELS OF OUR NATURE, demonstrates that the likelihood of suffering a violent death from all causes has been decreasing over the centuries to a small fraction of what it used to be—depending on where we start, to as little as one-tenth or one-hundredth of earlier rates. He explains that the largest single factor reducing violent deaths has been the monopolization of force by government over the last several centuries. As Pinker puts it, “a referee hovering over” our personal struggles “can ramp down the cycle of belligerence.”66 America is running contrary to that trend. George Zimmerman’s disregard of police instructions not to follow Trayvon Martin, resulting in a confrontation in which Zimmerman shot and killed Martin, illustrates the growing impotence of authorities in some parts of the country to resolve confrontations without violence.67 Arming the public is a dangerous strategy; tolerance for powerful weapons threatens democratic institutions.
In the language of loyalty oaths that many Americans have signed, guns are crucial to any effort to “overturn” the government “by force, violence or any unlawful means.”68 That is true for firearms put in the hands of armies, paramilitaries, secret police, or, in some contexts, local authorities. It is also true in the case of revolutions or coups d’état which terrify or intimidate populations into submission. Guns also allow dominant groups to destroy democracy from the bottom up by excluding portions of the population from democratic processes. Guns are dangerous—to individuals and to democracy. To the extent that we do not live in a peaceful world, guns are also sometimes necessary. That leaves us with the problem of controlling their use and abuse.69
In this context, the military needs to be considered. Coups that disrupt the democratic process generally involve the army, sometimes joining the executive or the legislature to oust the other, and sometimes standing aside and blessing a takeover.70 Provisions for civilian control of the military do not explain why they work. The fundamental democratic ideology behind those provisions may be a stronger explanation. Shared ideology makes plotting a coup dangerous and defending the existing order safer. Military leaders in modern liberal democracies tend to reflect and respect strong, clear, and consistent public views about self-government and civilian control, and find it hard to unite in opposition.71 At vulnerable moments, we rely on our shared democratic culture and a shared sense of community, and their spread throughout the military, to protect democracy, although as we have noted above, public opinion polls do not accurately predict democratic government.
Nevertheless, we know that private and government-supported paramilitary organizations maintain ties with the armed forces; they are often composed of former soldiers and they recruit among them. We also have to expect that ideological divisions in society will be reflected in the service, albeit not necessarily in proportion to population, because soldiers are not a representative sample of the U.S. population.
The draft had built-in protections. Draftees were temporary, although draftees did not represent a cross section of America either, as their numbers were skewed by educational deferments. Nevertheless, they were more representative than a volunteer army where membership is connected to local traditions of military service. Beginning in World War I, the military integrated people from all over the country, ending the era of locally recruited commands, like Theodore Roosevelt’s Rough Riders. Controversy over the war in Vietnam ended the draft, professionalized the military, and separated the internal culture of the professionalized military from civilian culture. That has new risks. Groups within the military claim they are prepared to attack civilian government.72 In many parts of the world, armies have been poisoned by ethnic, religious, and class divisions, much like slavery divided the army into loyal and disloyal, Union and Confederate, in the run-up to the Civil War.73 Armies become more dangerous when we look at each other with suspicion and contempt.
Part of the military ethic, and by extension the American ethic as well, has to be e pluribus unum. Part of dealing with guns is nation-building, or nation-repairing, among ourselves.