An old friend of mine posted the Tom Toles comic above deriding the Second Amendment on Facebook, apparently in reference to the Umpqua Community College attack. I wrote a response to him that became a bit TL,DR for Facebook, but I thought I’d submit it for consideration by the TTAG readership. Here goes:
A similar scoreboard could be totaled up for almost all of our bill of rights. (Let’s forget, for the moment, the fact that the cartoonist is apparently ignorant of, among others, the Battle of Athens, Tennessee apparently doesn’t consider slaveholders to be tyrants or the fact that even passionate gun control advocate David Hemenway endorsed the suggestion that there are around 100,000 defensive gun uses in the country each year . . .
How many people have caused deaths and injuries because of encouragement received from others with ill intent (mob violence, lynchings, or even mass shootings like this one?
How many murderers have gone free because we insisted on maintaining the rights to a trial by jury, because we insist that the police have probable cause before a search or arrest, because we insist that the accused has a right against self-incrimination, or because we insist that police and proescutors follow the right procedures in their investigations?
It’s easy to post facile cartoons–even easier than drawing them. It’s almost as easy to reach for a utilitarian argument for restricting any of our civil rights, since by their very nature, they do enable some of the worst elements in our society. It’s amazingly easy to stand athwart history at a moment of tragedy shouting: “There ought to be a law!” It’s easy because, emotionally, we want to do *something*, and we like to think that doing *something* is better than nothing. That is, after all, how we ended up saddled with the USA PATRIOT Act and numerous other intrusions on our civil liberties over the past fourteen years. That is how we ended up expended countless lives and treasure in a string of inconclusive and destructive wars from Libya to Afghanistan; from Iraq to Syria.
It’s much harder to argue against the danger to our society from eviscerating the constitutional protections we enjoy for our civil rights. It’s hard to argue that police ought to have to respect the civil rights of a suspected murderer. It’s hard to argue for civil rights when the evidence is clear that a lot of people out there are stupid, sociopathic, irresponsible, and criminal.
And yet, however inconvenient it is to do so, it is IMPORTANT that we stand up for those rights, even when it is unpopular, even when it enables elements of the worst in our society, because at the same time, those rights far more powerfully protect and enable the best in our society. They are a bulwark that the weak, the unpopular, the poor, and other marginalized elements in our society can rely on. Indeed, to remove them would be to fundamentally change the kind of country and people that we are.
Perhaps there are times and places when we do need to change the fundamental nature of our government, perhaps even the fundamental assumptions of our society. It would not have been the first time. Still, this is something deserving of serious examination and discussion, hardly something to jump into lightly, and not something to dismiss with a sneering cartoon that is, intellectually, on the same footing as the typical YouTube cat video.
Since you’re a teacher, treat this as an assignment. Give us an essay on what legal changes you’d make. Tell me why you think these changes will be effective. Explain how any restrictions you propose on civil liberties that are currently guaranteed in the Constitution will impact society. If you’re offering a utilitarian calculus, tell us how many people you’re willing to see die because they cannot engage in defensive gun uses to ensure that the number of mass shootings of the kind we saw this week won’t take place anymore.
This way, we have the basis for a dialogue and aren’t just engaging in cat video one-upmanship, or engaging in the sort of vitriolic debate which assumes the worst of anyone who disagrees with us about policy (and which is what is tearing our country apart at this moment in history far more than all the violent criminals in the world.)
It’s okay, this assignment won’t be timed.
Use both sides of the paper if necessary.
DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my firm or clients.