Tuesday, 18 October 2016

Guns, Race and Corruption: three US Supreme Court cases that made today's America

1. A look at 3 live issues in the USA, in which controversial cases at the Supreme Court have arguably sent the country down bad paths.

2. US Constitution: separation of powers; role of Supreme Court as head of judicial branch.

3. Bill of Rights: interpretation of First and Second Amendments involved in 'Corruption' and 'Guns' cases.

4. District of Columbia v. Heller, 2008

Interpretation of this amendment is controversial because it is unclear whether the Militia Clause limits the Right of the People Clause: does the right to keep and bear arms extend to all the people, or only to those involved in the militia (then, local community citizen units; today, the State National Guards)?  Prior to Heller, the federal appeals courts were split on this question.

Another controversy is over whether to read the Constitution in light of its Original Intent, covering all firearms in general, or as a Living Constitution, to be understood according to contemporary ideas and circumstances, and not necessarily covering firearms unknown at the time of writing.

5. US gun homicide rate compared.

6. Conversely, millions of Americans believe gun-ownership is a sacred right, for hunting, for self-defence, and potentially for defence of freedom against a tyrannical government: this last is foremost in conspiracy theories about the government trying to take away guns as a prelude to the installation of a dictatorship.

4. Washington, D.C. statute, Firearms Control Regulations Act (1975): banned handguns, automatic, high-capacity semi-automatic firearms; required permissible firearms (e.g. rifles, shotguns) to be kept unloaded, disassembled, or locked by a trigger-lock device.  Dick Heller sued D.C. for the right to register and kep a handgun in his home for self-defence.

The Supreme Court decided by 5-4 that the Second Amendment guarantees an individual's right to keep firearms for self-defence, regardless of service in a militia.

The majority decided that the prefatory Militia Clause announced the purpose of the operative Right Of The People Clause, without completely limiting it;

--- the drafting history showed the amendment was meant to prevent Congress from banning firearms, in order to protect the existence of armed State militias, which were necessary to maintain the freedom of the self-governing States;

--- but did accept that the Second Amendment only protected those kinds of firearms in common use in State militias.

Majority arguments:

--- 'the People' includes more than the military-age men liable for militia service;

--- State laws and constitutions protected the right to keep and bear arms for self-defence;

--- political events of the early-modern period confirmed a fear of tyrants disarming citizens generally: the English Bill of Rights (1689) established that Protestants "may have Arms for their Defence suitable to their Conditions, and as allowed by Law", reflecting Charles II's effort to disarm his opponents, and widespread fear of standing armies - as opposed to citizen militias;

--- and George III's government's efforts to disarm colonists in rebellious colonies in the run-up to the American Revolution were at the forefront of the Founders' minds.

The minority argued:

--- the amendment said nothing about Congress' right to legislate to limit non-military uses of firearms;

--- other State statutes and constitutions explicitly protected individual rights keep guns for self-defence, but not the Second Amendment;

--- that such explicit protections were in drafts submitted but rejected;

--- 'the People' in the Second Amendment refers to a collective, community right to be exercised through their State governments.

The case shows that the Second Amendment is ambiguous: by not explicitly refering to firearms outside of a militia context, either to limit or protect them, did it mean to enshrine a right to use them for all lawful activities, or to permit Congress to regulate them?  The legal arguments being inconclusive, it is likely that the justices voted more on their feeling for what was more important: the greatest personal freedom, or the government's interest in making policy to promote law and order.

Heller ensures that Americans will not be banned from keeping and bearing arms for personal uses, and therefore that governments and police will not be able to respond to a gun-crime epidemic by simply ridding the country of guns --- however, laws restricting criminals' gun rights and licensing requirements were not addressed.

7. Milliken v. Bradley, 1974

The 14th Amendment was passed after the Civil War in an effort to prevent States and cities from discriminating against African Americans.  In the South under 'Jim Crow', schools were racially segregated, as well as housing, restaurants, public transport, marriage, etc..  Segregation was protected by the Supreme Court's 'separate but equal' doctrine.

8. In 1954, the Civil Rights Movement for African Americans won its first famous victory in Brown v. Topeka Board of Education, ruling racial school segregation unconstitutional: "Separate educational facilities are inherently unequal."  Although white Southern racists resisted, continued protest and federal civil rights laws and enforcement by the late 1960s pushed schools to desegregate on the ground.  Desegregation is the most effective way known for decreasing the educational achievement gap between white and black students.

A large part of desegregation was achieved by busing, but this was fiercely resisted in many white communities.  In the 1980s, desegregation slowed, then reversed.

9. Resistance to busing was especially fierce in Boston.  The Soiling of Old Glory is a famous photo from a 1976 anti-busing riot in downtown Boston: the black lawyer was walking across a square, and was attacked by a mob.

10. Boston as an example: white Boston families tended to either send their children to private schools, or to move in the 'White Flight' process to suburbs outside the city.

11. Often African Americans were effectively excluded from suburbs by owners and estate agents' refusal to offer properties to them, and by relative poverty; and importantly, before the Civil Rights Act, by 'redlining', whereby federal and State governments refused to guarantee mortgages to black homebuyers, partly because of their impact on house prices where they bought.

Milliken was a case about whether predominantly white suburban schools should have to integrate their students with predominantly black Detroit city schools: Milliken was the governor of the State of Michigan, sued by Detroit parents the NAACP to make him implement a desegregation plan encompassing the city and surrounding county suburbs.

The Supreme Court accepted by 5-4 that the school systems were de facto segregated--racially divided as a matter of fact--but decided they were not de jure segregated--racially divided across district lines as a matter of any school board's policy--and therefore that the school systems were under no duty to desegregate across district lines.

Majority arguments:

--- local control of schooling is a deeply rooted tradition and right;

--- a school district should not have a desegregation plan imposed on it without a finding that its educational policies were discriminatory;

--- to justify inter-district integration, the plaintiffs would have to show that the suburban school boards' policies played a role in segregation across district lines.

Minority arguments:

--- limiting integration to the city would make each school city school predominantly black in attendance, and thus result in White Flight which would soon increase segregation: only a plan encompassing city and suburbs would accomplish desegregation;

--- the right to equal protection of the laws does not end at the school district boundary: rather, school districting was one of the means whereby the State of Michigan could design a school system that protected students' rights;

--- the Detroit public school system, found guilty of de jure segregation policies within the city (such as only building schools in the hearts of black or white areas), was an arm of the Michigan State government, and therefore the State at large was responsible for desegregation, not the city alone;

--- school segregation was such a serious violation of equal rights that the strongest measures were to be considered in order to root it out.

Milliken ensured that school segregation could be effectively re-established under colour of the law, by permitting White Flight from inner cities to remove white children from integrated city public school systems.  The consequence is that many Americans continue to live lives of social segregation, denying children the experience of racial integration in their formative years, and marooning many black and minority children in under-funded, under-cared for inner city schools.  It allowed one of the greatest achievements of the Civil Rights Movement to be effectively lost, and perpetuated an America of sharp racial inequality in education, and thus also in later achievement and income.  It granted white suburban citizens the right to divest themselves of any responsibility for making America a more equal and fair society.

12. Citizens United v. Federal Election Commission, 2010

13. Political science study shows: ordinary citizens' level of support for a policy is uncorrelated with its likelihood of adoption; but there is high correlation for wealthy elites and interest groups such as corporations and pressure groups.

Citizens United was a pressure group that wanted to pay for the broadcast of a TV film criticising Hillary Clinton, in the weeks before Democratic primary elections.  Federal law prohibited election spending by corporations, trade unions and pressure groups on election broadcasts in the weeks before elections and primaries.  It also prohibits corporations and unions from contributing funds directly to candidates for federal office.

In a decision by 5-4, the majority decided that paying for election broadcasts constituted political speech, which ought to be free from government interference.

Majority arguments:

--- Corporations and other organisations are only collective associations of individuals, and as such have the same free speech rights as any individual;

--- "There is no such thing as too much speech": the heavy spending of large organisations may allow them to make their speech heard more loudly than that of individuals, but the First Amendment did not authorise the government to restrict anybody's speech to allow others to be better heard: it is up to citizens to critically consider all the information and opinions they hear, not up to the government to filter them for citizens;

--- the prevention of corruption of candidates by big money would justify government regulation of election spending in the interests of preserving democratic control of the government by ordinary citizens: but it defined corruption as a definite quid pro quo - e.g. the exchange of a certain vote for the spending of certain funds.

Minority arguments:

--- "A democracy cannot function effectively when its constituent members believe laws are being bought and sold."  They argued the decision gave a greater incentive than ever for politicians to cosy up to wealthy and powerful corporations and pressure groups, to see things their way, and to vote in accord with their interests, in order to have them fund election broadcasts for them - and not for their rivals;

--- corruption was much wider than quid pro quo votes for money: it involved access to decision-makers, and influence over them;

--- the government had a duty to preserve the democratic principle of control of government by ordinary citizens, and to prevent the appearance that politicians were swayed by big money;

--- corporations and organisations are not like individuals: they often had little purpose beyond making money, had no votes, and could amass huge wealth and power that lasted for centuries: corporate election spending should be regarded as a profit-making strategy, rather than a contribution to democratic debate;

--- expensive election broadcast campaigns distorted democratic debate by using money to dominate the marketplace of ideas, drowning out views and opinions that were not backed by big money.

This is another difficult case like Heller, in which the minority wanted to restrict freedom for the good of the community at large: in Heller, to protect public safety; in Citizens United, to protect the democratic system of government.  Just because freedom is a good thing in general, does not necessarily mean it should overwhelm all other values and principles.  In this case, it is certainly contributing to an elitist political system in which wealth and power have more influence than votes, in which corporations speak to voters much more loudly than citizens, and in which elites and interest groups therefore have great control over policy-making.


What these 3 cases show is that the Supreme Court is not really interpreting the Constitution, as in, reading it and determining the meaning of the words.  The Constitution is much too brief and ambiguous to do that.  As we have seen, the legal arguments are not decisive on either side in any of the cases.

What the Supreme Court is really doing in each case is weighing the relative importance of principles that have come into conflict.  In Heller, freedom versus public security; in Milliken, local control of schools versus educational equality; in Citizens United, freedom of speech versus democratic control of government.  These are really not legal, but political, questions: which value has priority, which principle should bow before the other.  It is a naive idea that such critical political questions can be settled in a neutral, legal way.

The Supreme Court has stepped into politics and in these three cases, I would submit, made the wrong choices.  The USA is a more dangerous, unequal and corrupt country today that it might have been, if these decisions had gone the other way.