Allow Me to Retort: A Black Guy’s Guide to the Constitution

by Elie Mystal

Of course, Black people being able and willing to defend themselves from racist Americans was a very serious problem for racist Americans. In a direct response to African Americans patrolling Oakland, California, and “copwatching,” Republicans in California passed the Mulford Act, which banned open carry of loaded firearms in California. Who signed that law? Republican patron saint and then governor of California Ronald Reagan.

So, for those playing along at home, Franklin Delano Roosevelt’s entirely rational response to gang violence was to liberalize drug laws and restrict gun access. And it worked! The inability of modern Republicans to figure out how to stop street violence is truly beyond me.)

At an NRA annual meeting in Cincinnati in 1977, Second Amendment “absolutists” took control of the NRA from previous leaders who thought the organization was really there to protect marksmen. Gun nuts call this event the Revolt at Cincinnati. Our modern epidemic of mass shootings can, more or less, be traced to these yahoos winning control of that organization.

The Federalist Society and the Heritage Foundation, the two outside interest groups most responsible for telling Republican judges how to rule, have fully adopted an absolutist, blood-soaked interpretation of the Second Amendment.

There was an original purpose to the Second Amendment, but it wasn’t to keep people safe. It was to preserve white supremacy and slavery.

The principal way of quelling slave revolts was (wait for it): armed militias of white people. Gangs of white people roving around, imposing white supremacy, is nothing new.

If they accept that the Second Amendment has evolved to protect a different right than was originally intended, then they’d have to admit that gun restrictions can also evolve to better protect our modern society.

The Founders didn’t know that guns would be used in over half of the nation’s suicides. We know. The Founders didn’t know that guns would be used in over half of domestic partner homicides. We know. If the Second Amendment has evolved to incorporate the right to self-defense, surely it’s evolved to allow us to make it harder for people to kill themselves or their spouses.

Gun rights are not about self-defense. They literally never have been. Gun rights are about menacing, intimidating, and killing racial minorities, if necessary. That’s why Reagan and company had no problem restricting gun rights when the Black Panthers started to use them; that’s why the NRA never speaks up when a “law-abiding gun owner” who happens to be Black is executed in the streets by a cop.

People think that the continued mass murder of innocent civilians will, one day, shake Republicans loose from the thrall of the NRA. That will not happen. Republicans will not make the killing stop, because they still think that near-unfettered access to guns is the only thing keeping them safe from Black people.

As I said, the entire Republican argument on guns reduces down to the desire to shoot something that pisses them off.

Racial profiling is the inevitable result of the degradation of Fourth Amendment protections. Understand, it is unconstitutional to stop somebody because of their race. (That protection doesn’t come from the Fourth Amendment—which was part of the initial Bill of Rights written by the collection of colonizers and slavers who wrote the Constitution—but the Fourteenth Amendment’s guarantees of equal protection and substantive due process. We’ll fight about that later in this book. Despite what you may have heard on Fox News, being Black is not a constitutionally valid reason to suspect a person of crime.)

Technically, cops are supposed to have a “reasonable suspicion” before stopping a person under Terry. That’s an easier standard to meet than the “probable cause” standard for an actual arrest, but it’s still supposed to be some kind of objective standard.

Instead of reasonable suspicion, cops act on their unreasonable implicit (and often explicit) biases. That’s why arguably constitutional stop and frisks became nothing more than a Trojan horse for the unconstitutional scheme of racial profiling.

Terry v. Ohio should be overruled because the “minor inconvenience and petty indignity” of stop and frisk will always disproportionately fall on Black and brown citizens. There is no regime of “reasonable suspicion” that can be divorced from the implicit or explicit biases of police officers.

In a civilized country, an officer’s inability to tell the difference between an eighteen-year-old Black kid and a demonic giant on steroids would be grounds for immediate dismissal from the force. In a just world, an officer who shot and killed an eighteen-year-old unarmed kid and then admitted in sworn testimony that he briefly thought he was fighting Hellboy would be tried and convicted of manslaughter.

Police are the only people whose own cowardice and hysteria can be used to justify an objective misreading of the facts. When and how much force a police officer is entitled to use is left almost entirely to the discretion of the police officer, which means my constitutional rights and physical safety hinge on whether a guy like Darren Wilson is afraid I’ll use my big lips to suck in his soul from ten yards away.

By converting Graham’s claim into a Fourth Amendment question, Rehnquist nullified the racial discrimination at the heart of his case.

Once you give cops an inch of daylight under the Fourth Amendment, they will brutalize Black people for miles.

Police officers are agents of the state. They are authorized to have a monopoly of force: they can hit you but you can’t hit them back. They can execute on the street—I mean they can literally impose the death penalty upon you without a fair trial or a right to appeal—if they feel you’re a danger to others. Holding them to a standard somewhat beyond what they themselves think is reasonable is not too much to ask.

“Oops” is not a good enough answer from agents of the state who shoot Black people armed with cell phones.

Police unions somehow think that having to make decisions quickly is an excuse for shooting the wrong people.

Bringing the police to heel will require us to stop letting them substitute their judgment for our constitutional protections. It’s time to stop asking the foxes for their opinions on the security of the henhouse.

If the law will not protect me from the police, why can’t I protect myself?

If I may reduce one of the greatest works of political thought down to a sentence: If we let people kill each other, literally everybody would do it, so the only way we can have nice things is to let only one man kill people and hope he’s not a complete asshole.

The area a government controls through a monopoly of violence is, according to German sociologist Max Weber, the very definition of a state’s territory.

One well-respected study by the Urban Institute’s Justice Policy Center found that white people who kill Black people are 250 percent more likely to have their homicides ruled as “justified” than when white people kill other white people. In stand your ground states, that number jumps to 354 percent—it is 354 percent more likely that white people will be ruled as justified in their killings of Black people.

“Self-defense” is how white people get away with murder. It is a textbook example of a “race-neutral” concept that has been applied with deep prejudice against Black people.

The universe in which the cops can break into a woman’s apartment and shoot her dead, but her boyfriend cannot fire back at the armed, unknown assailants who killed her, is deeply fucked.

Courts have turned qualified immunity into a license for cops to act on their racial prejudices with impunity. Qualified immunity cases come down to whether state agents “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” That trash language comes from the 1982 Supreme Court case Harlow v. Fitzgerald

What kind of white nonsense system leaves cops free to racially discriminate if a “reasonable” cop didn’t know their particular method of discrimination was unconstitutional?

Our Constitution, like that of nearly every other modern nation-state, waves away this inherent conflict between the state’s necessary rights to violence, and the citizen’s inalienable right to self-defense, by making a distinction between legitimate and illegitimate uses of state power.

Who is supposed to stop the state from using its power illegitimately? Well, “the law” is supposed to stop it. I’m not allowed to violently resist illegitimate state action, because the law is supposed to prohibit and punish such illegitimate uses of state power.

Black lives can only matter if there is punishment for the people who take them.

Think about why the right against self-incrimination is included in the Fifth Amendment at all. It’s there, entirely obviously, to stop the government from beating confessions out of people.

Put me in a DeLorean and take me to any time before the Enlightenment, and I’ll find you a guy who is getting his ass kicked until he admits to a crime.

The people who wrote the Constitution wouldn’t understand the word coercion if you wrote the definition on parchment and shoved it up their ass.

If we believe that a person should not be compelled to incriminate himself, then there’s no good reason to try to parse legitimate ways to force a person into confessing.

The Fifth Amendment is a litmus test of whether you have enough education (from the books or from the streets) to know it exists. And that’s not how it’s supposed to be. Your constitutional rights aren’t supposed to change depending on whether you know they exist.

The people who continue to answer police questions without a lawyer present are behaving irrationally, mostly because they don’t know any better. As a result, they’re being taken advantage of by law enforcement in a way that sidesteps their constitutional rights.

Private property is not the natural or inevitable result of settled society.

What I can tell you is that when white people want your shit, they will take it, and Black people will rarely be justly compensated for the destruction of their wealth.

Conservatives complain about this case more than Pharaoh complained about Yahweh.

Black people were brought to these lands in 1619, and Janet Jackson released Nasty before randomly excluding Black people from the jury process—an institution that’s been around since Athens—was ruled unconstitutional in any meaningful way.

At the dark heart of making the Sixth Amendment meaningful in any way for Black people lies an argument that white people, even white liberals, are reluctant to make: white jurors cannot sit in impartial judgment of Black people. Nobody really wants to say that, so we run ourselves through a bunch of equal protection analysis about the fairness of the objections to Black jurors, to make the conversation more palatable. But the real argument is that a Black person cannot get an impartial jury if that jury is all white.

If I could have one white superpower, it would be the fucking nerve of these people.

White people don’t bat an eye when they see a gang of whites sitting in judgment of a Black person’s actions: in the courtroom, in the boardroom, or even just on a stupid Facebook post.

I usually try to resist using this archaic jargon, but some of the cases I want to talk about use these terms, so I have to explain them and, well, that’s why William is conquering my keyboard right now.

To oppose the death penalty on moral grounds is to deny two of the most fundamental human emotions: fear and revenge. We kill criminals as punishment for all the harm they’ve caused to society, or out of fear that they will escape and cause additional harm in the future. Those are entirely natural human concerns.

If the people who were wronged by a condemned man want to see that man put to death, who am I to say, “Actually, that’s morally wrong, you should let him live.” Who died and made me Jiminy freaking Cricket?