Charlottesville, The Constitution, & The Challenges Of Armed Free Speech

Armed militia members in Charlottesville, Virginia (photo credit: New York Times) 

                                   

August 11th and 12th, 2017. Charlottesville, Virginia.

In the preceding months, Jason Kessler, a prominent white nationalist, and his ideological compatriots, vocally opposed plans by the city’s leaders, to remove a statue of Confederate military leader Robert E. Lee, located in Charlottesville’s Emancipation Park. Kessler’s fellow white nationalist Richard Spencer, as well as members of the Ku Klux Klan, held events in support of the Lee statue, in May and July 2017.

Kessler, Spencer and others decided to host a larger rally, known as the Unite the Right rally, in in August. This gathering brought together hundreds of white nationalists, chanting slogans such as “Jews will not replace us”, and numerous racial slurs, while holding Nazi and Confederate flags.

Kessler and his were countered by protesters, both community members, as well as members of Antifa, a self described anti-fascist movement, which physically disrupts demonstrations and clashes with opponents. Fights between Antifa and white nationalists broke out during the event.

The brutal beating of counterprotestor DeAndre Harris, by white nationalists, gained widespread attention, as did a video of Richard Preston, a white nationalist, firing a gun at opponents. Heather Heyer, a 32 year old counterprotestor, was killed, and several others injured, when James Fields Jr., a known white supremacist, drove a car into a crowd of counterdemonstrators. Two Virginia police officers who were conducting helicopter surveillance on demonstrations also died, when their aircraft crashed.

Members of various militias also appeared at the rally, dressed in camouflage, and armed with rifles. Members of these groups lean conservative, and strongly oppose any perceived encroachment on constitutional freedoms. Militia members in Charlottesville stated they were present to protect the free speech rights of all, rather than to support any side. One of the militia leaders, Christian Yingling, condemned white nationalism, although some militia members displayed Confederate flags on their clothing. Members of Redneck Revolt, a group of mostly anti-capitalist white individuals, who advocate solidarity with people of color, also appeared, armed with rifles. Additionally, based on gunfire from Mr. Preston, as well as photos from Charlottesville, amongst those who openly carried firearms, were white nationalists, participants in Unite The Right.

The First Amendment states that “Congress shall make no law respecting....the right of the people peaceably to assemble...”. This clearly protects the rights of citizens to gather in a non violent fashion.

With public demonstrations, courts balance the rights of citizens to gather and express opinions, with the need for governments and law enforcement to maintain order. While governments can impose restrictions on the “time, place and manner” of protected speech, they cannot restrict speech based on content. Thus, a governmental body is allowed to require a permit for a public assembly, be obtained in advance, as long as such rules are not crafted to hamper a particular type of speech (i.e. what is being said).

Such restrictions must be “narrowly tailored to serve significant governmental interests”, like the preservation of order. Requiring demonstrators to obtain a permit, prior to assembling, is permissible (as long as permits are not issued based on content). Additionally, localities can restrict noise levels and marching routes of a demonstration (as long as “narrowly tailored.”)

In May 2017, Kessler applied for a permit with Charlottesville city officials, to hold a rally in Emancipation Park (at that time named Lee Park), to protest plans to remove the statue of Robert E. Lee. Kessler’s permit was granted on June 13. Then, on August 7, the city government revoked Kessler’s permit, ordering Kessler to move Unite The Right to another park, more than a mile from Emancipation Park.

Kessler countered by applying for an emergency injunction in federal court, to allow Unite The Right to proceed. Kessler, who was represented by attorneys from the ACLU’s Virginia chapter, as well as the Rutherford Institute, prevailed in court. Judge Glen Conrad found that the withdrawal of Kessler’s permit was motivated by “the content of his speech, rather than other neutral factors that would be equally applicable to Kessler, and those protesting against him.” Unite The Right went forward.

What about the Second Amendment? The Second Amendment states that “A well regulated militia, being neccessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Despite the “militia” language, this provision has been interpreted by the Supreme Court to allow for an individual right to own guns, as stated by the Supreme Court, in DC v. Heller (2008) and further articulated in McDonald v. Chicago (2010).  

The vast majority of states allow individuals to carry concealed firearms, either without permits, or upon meeting basic requirements, such as completing gun safety courses, or passing background checks. Of course, locations where one may carry a firearm vary considerably, with many states restricting schools, bars, workplaces and government buildings.

Open carry of firearms (as seen in Charlottesville), is allowed in some form in 45 states, with variations in terms of permit rules. In Virginia, no permit is mandated for open carry of guns, including rifles. Also, few restrictions are placed on gun owners from outside the state (hence, militias from outside Virginia carried firearms without interference). What’s more, under Virginia law, cities like Charlottesville are forbidden from enacting gun restrictions of their own; similar rules exist in many states,

Charlottesville is hardly the first public gathering where observers or demonstrators carried guns. In 1967, members of the Black Panthers visited the California State Capitol (where California’s legislature and governor work) with pistols and shotguns, in protest of proposed gun restrictions. In recent years, members of the Oath Keepers militia patrolled with semiautomatic rifles, at demonstrations in Ferguson, Missouri, organized in response to the shooting death of Michael Brown, at the hands of local police. Last year, supporters and opponents of a mosque in Dallas faced off with loaded rifles. Around the same time, an Arizona campaign rally for Donald Trump attracted armed members of an anti-Trump organization, who indicated they were present to protect those demonstrating against Trump.

This raises the question: What should be done when the boundaries of the First Amendment and Second Amendment conflict? How do we balance the right to free speech, as guaranteed under the First Amendment, with Second Amendment protections for the right to bear arms?

I am a longstanding supporter of the Second Amendment. I support the rights of individuals to own a range of firearms, including rifles like the AR-15. I believe that states should issue concealed carry permits to those who complete gun safety courses, and pass background checks. Some restrictions on where one can carry guns  (such as bars, schools, or government buildings), seem reasonable. I am also not opposed to restrictions on “bump stock” modifications to rifles, to prevent them from being turned into automatic weapons.

Yet, it is clear to me that openly carrying firearms, particularly shotguns and rifles, at a  demonstration or political rally, poses intolerable risks.  Enforcing order and ensuring public safety at a demonstration, becomes far tougher. First Amendment rights are weakened through intimidation, while the roles of law enforcement and private citizens become increasingly blurred.  

As mentioned earlier, during the anti-mosque demonstration in Dallas, demonstrators from each side carried shotguns and rifles. Police officers stood between the two groups, as well as on nearby rooftops. Although violence was averted, it isn’t hard to imagine how quickly this situation could have escalated. The only spark needed is for a single individual, in a fit of anger or bravado, to fire a weapon, (or shout an insult, which leads to someone else opening fire), and a wave of bloodshed could be unleashed, putting demonstrators, law enforcement, and bystanders in grave danger.

Heavily armed demonstrators can have a negative impact on free speech. As a piece by David Frum in The Atlantic noted, the presence of openly armed individuals in places like Charlottesville “sent a chilling message of warning to lawful protestors.”  This dynamic was vividly illustrated in Arlington, Texas, when heavily armed open carry advocates walked by a meeting of anti-gun advocates (mainly mothers, some of whom were were with their children), generating considerable fear and intimidation.

The presence of someone carrying large firearms at a gathering or demonstration, understandably conjures up fears of violence (especially when individuals on the other side are unarmed). While public displays of weapons have become more common, as open carry laws have spread, those exercising their right to speak, gather, and protest, could reasonably feel intimidated, and decide to steer clear of such events. By their very presence, openly carried firearms can dampen the exercise of First Amendment freedoms.

Another issue, seen in Charlottesville, was that militia members wore military-style uniforms, and carried rifles, rendering them almost indistinguishable from members of the National Guard, who were called to Charlottesville. In the event of any disturbance, people might be uncertain as to who they should seek help from.

Confusion could erupt between members of the National Guard, or other law enforcement agencies, and militias, potentially leading to tragedy. This became an issue in the July 2016 murders of five police officers in Dallas, at a demonstration against the killings of black men by police. Some marchers were armed with AR-15 rifles. Since the shooter wasn’t visible, until he was caught, police viewed armed demonstrators as potential suspects.

Yet another issue, is how armed observers (i.e. militia members), or demonstrators, react to provocations. What if an (unarmed) demonstrator throws objects or shouts insults at a short-tempered, armed militia member? What if unarmed protestors yell insults or threats, at armed demonstrators who hold an opposing viewpoint? Things could get very bad, very fast.

Finally, a private citizen’s role isn’t to ensure order at public demonstrations. That’s the job of local and state police, and, if needed, the National Guard. Militia members, whether Christian Yingling’s colleagues, members of Redneck Revolt, or any other group, should not play any role in defending the rights of demonstrators. By allowing members of these groups to effectively deputize themselves as members of law enforcement, the primacy of the police and National Guard in maintaining order, is effectively undermined.

Here’s a compromise: No matter what open carry laws a state may have, no one, outside of law enforcement officers, may openly carry or display a firearm, within 1,000 feet of a public gathering or demonstration, for which a permit was issued. Such restrictions would not, however, apply to concealed firearms, whether carried by demonstrators or observers (i.e. militias), assuming those carrying such weapons, are in compliance with state law.

This rule would pass constitutional muster. As Justice Scalia noted in Heller, “the right secured by the Second Amendment is not unlimited....not a right to keep and carry any weapon whatsoever in any manner whatsoever, and for whatever purpose....” Restrictions on what types of guns can be carried in certain public settings, is likely to be found constitutional.  

While I prefer that no one at a demonstration (outside of law enforcement) be armed with any kind of weapon, such laws are logistically difficult to enforce. Thus, restricting open carry (easily enforceable) makes sense. Since guns won’t be visible, it reduces many risks mentioned earlier, including intimidation of peaceful protestors, confusion between police and armed demonstrators, as well as private armed groups playing a role in law enforcement. The potential for carnage, posed by high-caliber weapons in public, will also decrease.

The First Amendment and Second Amendment are vital components of our framework of rights. For me, it is hard to imagine our nation without the right to speak our minds, or the right to bear arms. Yet, balancing these rights will require some compromises. At the next Charlottesville, individuals must still have the right to say things that I believe are incredibly hateful and patently wrong. But this time, guns should not be visible.

 

    

Deaths Of Despair, And The Service Project That Could Save American Lives

                                          Anne Case & Angus Deaton (Credit: Princeton University)

In 2015, Princeton University economists Anne Case and Angus Deaton(winner of the Nobel Prize in Economics) published a paper that made waves nationally. Case and Deaton reviewed mortality figures and causes of death, amongst Americans of various ages and genders as well as ethnic, racial, educational and income backgrounds. What they found was rather shocking.

Between 1970 to 2013, mortality rates for Americans aged 45 to 54 dropped by 44%. Similar decreases were found in other wealthy nations, such as the UK, Canada, France and Germany, thanks to improved medical treatment, disease prevention and behavioral change. More narrowly, from 1978 to 1998, mortality rates amongst white Americans aged 45 to 54 decreased at an average rate of 2% per year, which matched the average rate of decline across other developed nations.

From 1999 to 2013, other affluent nations saw their mortality rates continue to decline by 2% per year. The same was true for African-Americans and Latinos aged 45 to 54, whose mortality rates decreased by 2.6% per year and 1.8% per year respectively.

Yet, something very strange happened. During that same time period, mortality rates for whites of this age group rose by an average of 0.5% per year. Such a reversal in mortality rates is unprecedented amongst developed nations. Case and Deaton broke down the numbers by educational level, and found that for whites aged 45 to 54, with at least some college education, mortality rates continued to decline. However, for individuals with a high school education or less, mortality rates increased precipitously, which lead to a spike in overall death rates amongst whites of this age as a whole.

What caused this trend? Primarily, a precipitous rise in “deaths of despair” or drug and alcohol overdoses, poisoning and disease, and suicide. The self-assessed health of this group has also declined, with fewer people reporting excellent physical health, and more indicating challenges. Reports of chronic pain have increased rapidly, while indicators of poor mental health have spiked.

A large number of those Case & Deaton surveyed within this demographic, report increased difficulties in simple activities like walking and climbing, while an ever-larger portion indicate that they are consuming heavy amounts of alcohol. The author’s looked to obesity as a major cause of increased mortality rates, but found that life expectancy had deteriorated for both obese and non-obese whites aged 45–54.

Digging deeper into the data, Case and Deaton suggest that the opioid epidemic, which first began in the late 1990’s, when opioids gained increasing popularity as a pain treatment, and is linked with eventual heroin addiction, might be a partial cause of increased mortality rates. However, Case and Deaton are uncertain as to whether increased levels of pain came first, or opioid usage spiked prior to a pain epidemic (a sort of “chicken and egg” problem).

The authors also look to economic insecurity, in the form of minimal growth in wages, and the reality that Americans are increasingly unlikely to outearn their parents, particularly without a college education. Combined with the economic shocks of the 2008–09 Great Recession, this could play a role in increasing physical pain, suicide, and drug abuse. Yet, Case and Deaton note that other rich nations have seen similar or even worse slowdowns in wage growth, without accompanying increases in mortality.

Case and Deaton compare the reversal in mortality rates discussed here, to the AIDS epidemic, which costed around 650,000 American lives.* Increased death rates amongst middle aged whites were a major contributor to a drop in American life expectancy, first observed in 2015.

Case & Deaton published a 2017 followup, seeking to better understand this problem. They express skepticism towards the theory that stagnant incomes are the sole cause of the trends observed, noting that for middle-aged African Americans and Latinos, income growth wasn’t much better than for whites, yet mortality rate continued to drop.

Case & Deaton instead gravitate towards a hypothesis of “cumulative deprivation”, whereby employment opportunities for those with less education have steadily deteriorated, driven in part by globalization, technical change, and de-industrialization. As noted, whites with a high school education or less, are economically worse off than their parents. At the same time, marriage rates amongst those with lower incomes have declined (with more children being born out of wedlock), and fewer nuclear families.

This often leads to loneliness, particularly amongst men. Participation in traditional religious institutions has weakened, and with it, the social ties offered by these these organizations. As Deaton put it in an interview with NPR: “There’s a lot of social dysfunction building up over time. There’s a sense that people have lost this sense of status and belonging.”

As with any complex problem, there isn’t one simple solution. Improved educational outcomes, particularly vocational training, and teaching workers new skills (something Case has advocated), could have a positive impact. Education, unemployment, and income are, after all, closely linked. In recent years, programs have focused on teaching former coal miners to code, or become wind farm technicians; another proposal argues for training displaced workers in the solar industry.

Increased rates of economic growth, over an extended period of time, leading to decreased unemployment, and a broad-based rise in wages, would help. After all, economic insecurity is associated with greater physical pain, anxietyand depression, while unemployment is linked to opioid abuses, and other pathologies.

Yet, the gains from economic growth are unevenly distributed. Since 1980, GDP in the United States has grown by 154%. During that time, the median income of the American worker rose by just 16%, while the average income of someone in the top 1% of earners increased by 190%. Even with strong growth, it is unclear how much those with less education and skills would benefit. Also, there are serious questions as to how a mature economy, such as the United States, can grow more quickly.

As Case & Deaton’ suggest, along with commentators from the left and right, what we are seeing is not a purely economic phenomenon. For that reason, we must look deeper, and address issues of alienation, dispossession, and a lack of meaning, amongst Case & Deaton’s target group.

Social isolation is closely associated with a range of health risks, and is linked with increased risk of mortality, often being as large of a risk factor as obesity or smoking. Alienation can be similar to social isolation, although some people who are not completely isolated might be alienated, in that they feeldisconnected from the world around them, from social or cultural norms, or suffer from a feeling that life lacks meaning or purpose. Alienation also carries serious consequences, in terms of mental and physical health. Much of what Case & Deaton observed seems to fall into the categories of social isolation or alienation, with dire consequences.

By contrast, volunteering, and being of service to others, has a tremendous positive impact on our lives. Individuals who volunteer enjoy a greater senseof self esteem and overall well being, including physical health, and feel more empowered, while lowering their stress levels. Brain research has found that giving helps trigger parts of our brain associated with pleasure and rewards. Older adults who offer social support to others, enjoy lower rates of mortality than those who don’t, even after controlling for socioeconomic and marital status, age, gender and ethnicity. Volunteering provides a sense of purpose, particularly amongst adults who (due to age), lost their roles as wage earners, or active parents. Volunteering also helps foster a greater sense of belonging and social inclusion, in part because it “focuses on what people have to offer, as opposed to what they may need.” It’s clear that volunteering can be very good for us.

For these reasons, I advocate creating a series of privately funded volunteer projects, where those who have are most vulnerable to the trends Case & Deaton studied, use their abilities to make a positive difference. What might this involve? For those who enjoy interacting with young people, this could mean mentoring interested youths in their communities, or other areas of need, on a monthly basis, in some sort of supervised setting. Volunteers and mentees could engage in team-building activities, sharing advice and guidance, based on life experiences, or assisting with schoolwork and teaching, where they feel sufficiently competent (or are interested in developing such a skill set). The iMentor program offers an interesting template for how such an initiative might be structured.

For other folks, who enjoy working with their hands, they might help to build and rebuild homes and infrastructure, in their own communities, and perhaps even throughout the country and the world. Habitat For Humanity offers an excellent model of the sort of program that could deliver great results. Expenses like transportation and lodging, would be covered by those who fund these projects.

These programs ought to be funded on a private basis, just like so many other wonderful nonprofits across the world. Given the range of philanthropic activity in the nation today, I believe it will be possible to pay for these projects, independent of any governmental support. Relying on the government to fund such initiatives, make it vulnerable to budget cuts and political rancor, which if at all possible, ought to be avoided.

When we look at the work done by the Gates Foundation, Project Literacy, Disabled Veterans (DAV), and so many other organizations large and small, we are reminded of the power of every individual, to make a positive difference in the lives of others. While doing so, if a volunteer experiences a sense of happiness and upliftment, and greater self worth, the effects of those new beliefs can carry over, into other areas of life. This individual might be more motivated to improve his or her economic, educational family or health situations, or simply to persevere through challenging times, and avoid destructive behaviors like excessive drinking or drugs. Volunteering may well be what Charles Duhigg, author of The Power Of Habit, described as a “keystone habit”, which leads to positive changes in many areas of life.

To be clear, I am not suggesting that volunteer programs take the place of public policy efforts, such as improving worker skills, or helping create jobs for those who face the sorts of risks Case & Deaton studied. Those approaches will be crucial to facilitating long-term change, at a large scale.

However, what ails so many of Americans today, seems to be a deeper crisis of self-worth and confidence, which has led to devaluation of their lives, and a range of destructive behavior. Changing those underlying beliefs is crucial to long-term upliftment. Volunteering is a highly effective way of ensuring this happens.

*It is worth noting that Case & Deaton’s findings have been contested by statistician Andrew Gelman of Columbia University, who argues that white death rates remained flat, rather than increasing, though Gelman acknowledges this is still an important finding.