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

by Elie Mystal

Henry and Mason wanted the Second Amendment in there to guard against slave revolts.

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.

conservatives don’t want the Second Amendment to evolve, because they don’t actually have a problem with the original slavers’ purpose of the thing.

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;

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.

Racial profiling is the inevitable result of the degradation of Fourth Amendment protections.

Police are the only people whose own cowardice and hysteria can be used to justify an objective misreading of the facts.

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

the Court’s decision in Graham v. Connor has had the effect of choking off any meaningful solution to police brutality at the national level.

Whether you have the right to, say, know the disciplinary history of the officer who attacked you depends on which municipality you happened to be in when the beating started.

the idea that a cop who kills or attacks somebody should walk away without punishment because other cops are just as violent and depraved is not a constitutional principle I accept.

Bringing the police to heel will require us to stop letting them substitute their judgment for our constitutional protections.

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

Leviathan by Thomas Hobbes

1651,

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.

And yet even Hobbes called the right to self-defense “inalienable.”

The right to self-defense used to include a duty to retreat.

But I guess retreat isn’t performatively masculine enough

the most deadly form of that rejection has been codified in “stand your ground”

stand your ground just makes those racial disparities worse.

“Self-defense” is how white people get away with murder.

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.

But that is the universe the Supreme Court wants.

Courts have turned qualified immunity into a license for cops to act on their racial prejudices with impunity.

The Supreme Court’s jurisprudence around qualified immunity is so broken that progressive congresspeople are trying to fix it legislatively.

The government is allowed to use violence to accomplish certain agreed-upon goals, and nobody is allowed to violently object. But the state is not allowed to do just anything.

But the Supreme Court has functionally eviscerated my right to go to court

I’m not allowed to resist the cops, I’m not allowed to sue the cops, all I’m legally allowed to do is beg the cops to not kill me

we could stop police brutality in five seconds, if we wanted to.

The Fourth Amendment does all the work.

The way to fix the police was written into our Constitution before there were even police in need of fixing.

Black lives can only matter if there is punishment for the people who take them. There. I’ve solved police brutality in America.

Of course, we won’t be implementing the Fourth Amendment as I suggest,

because white people want the police to act this way.

while police brutality and violence only gets talked about as a “Black” issue, make no mistake: it’s a problem entirely created by and for the benefit of white people.

the Fifth Amendment says: No person … shall be compelled in any criminal case to be a witness against himself,

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.

there’s no good reason to try to parse legitimate ways to force a person into confessing.

Your constitutional rights aren’t supposed to change depending on whether you know they exist.

Once the police recite the Miranda warnings, they are free to go back to lying, intimidating, and coercing confessions.

Most people think what happened to the Central Park Five was wrong but have not thought critically about how to prevent it from ever happening again.

when police and prosecutors hone in on the wrong people, when they coerce false confessions, they allow actual criminals to go free

Prosecutors have qualified immunity too.

There are too many people in law enforcement who treat the right against self-incrimination like a technical obstacle to overcome, instead of an ancient right that is not to be violated.

the doctrine of eminent domain that is enshrined in the Fifth Amendment

nor shall private property be taken for public use, without just compensation.

if you start from first principles, all land is “public.”

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