The Asterisk* in the Bill of Rights

*except when black

The big debate in the Keith Lamont Scott shooting — the one that started the protests that have been going on in Charlotte since Tuesday — is whether or not Scott had a gun, and if so, whether it was in his hand. The police said he did and it was, though for days they refused to release video of the incident. [1]

The Scott shooting came a few days after police in Tulsa shot and killed another black man, Terrence Crutcher. But the Tulsa case was manslaughter, and a police officer has been charged, largely because Crutcher was unarmed. Even there, though, weaponry is an issue. (The officer claims Crutcher was reaching into his vehicle, and she feared he was reaching for a gun. But the video doesn’t corroborate that story.) Apparently she believed that if he might have been armed, shooting him dead would be an appropriate outcome.

Back in July another black man, Philandro Castile, was shot dead by a police officer during a traffic stop. Castile told the officer there was a gun in the car, which he had a permit to carry. His girlfriend and her 4-year-old daughter were also in the car. The girlfriend claims Castile was reaching for his wallet when the officer shot him four times. So far, there have been no charges.

The NRA, an organization that exists to defend the rights of gun-owners, decided not to comment on the Castile shooting “while the investigation is ongoing”. My Google search for “NRA statement on Keith Lamont Scott” turned up nothing relevant, even though for days the only reason police gave for initiating the encounter was their belief that Scott was armed. (More recently, they elaborated that they also observed him rolling a cigarette which they believed to be marijuana.) North Carolina is an open-carry state, so having a firearm is not in itself a violation. [2]

So if you’re an organization working to make sure the government doesn’t hassle gun-owners exercising their Second Amendment rights, the initially available information in the Scott case would seem to be right up your alley.

Except that Scott is black. The NRA doesn’t do black. I mean, they will gladly let you join and accept your membership fees if you’re black, but don’t count on them to defend your Second Amendment rights. Because, well, what Second Amendment rights? There’s an asterisk on the Second Amendment. The Washington Post‘s Eugene Robinson reviews the facts of the Scott and Castile cases [3] and draws the obvious conclusion: “laws permitting people to carry handguns apparently do not apply to African Americans.”

If all they saw was a man with a gun who got out of a car and back in, what illegal activity did they observe? Why did they “approach the subject” instead of going about their business? Did they have any reason to suspect it was an illegal gun? Are all men carrying guns believed to be carrying guns illegally, or just black men? [4]

Cenk Uygar of The Young Turks noticed something similar, and brings up two other cases: Tamir Rice in Cleveland, the 12-year-old who was killed within seconds of police arriving despite the fact that his “gun” was a toy, and John Crawford III, who police killed in a Walmart near Dayton, because he also was carrying a toy gun which he apparently planned to buy. Like Rice, Crawford was shot within seconds after police arrived. Apparently, blacks with guns are so dangerous that police can’t be bothered to see whether they will drop them, or even to discover whether the guns are real at all.

That police behavior may be questionable, but it’s not obviously racist; maybe they’d be just as trigger-happy towards whites. But Uygar then shows three videos of cops patiently having conversations with uncooperative armed white men, none of whom wind up dead. In the last one, the man verbally abuses three policemen until they back away and leave him with his weapon. Uygar comments:

Yeah, that happens to black guys all the time in this country. Where they laugh at cops in their face and say, “See ya, tough guy. Walk away.” And the cops go, “OK, yes sir. You’re right, sir. You have constitutional rights, sir. Of course I’ll walk away.” … That happens all the time. No one, no one, I don’t care how right-wing you are, you don’t believe that. You know what they would have done if he was black.

Not that those uncooperative armed white men should be dead, but it shows that when white lives are at stake, police can be patient, carefully establish what is going on, and attempt to deescalate the confrontation. In one of Uygar’s examples, a clearly irrational white man goes to his car, gets his gun, and begins waving it in all directions, including pointing it at police. They attempt to talk to him, and when that doesn’t work, they fire one shot into his leg to drop him, rather than the 16 shots fired into Laquan McDonald in 15 seconds. He lives.

That’s why the movement is called Black Lives Matter. That guy’s life mattered to those cops. They didn’t want to end his life. They were careful with it. So we’re asking you to also be careful with black lives just as much.

The Second Amendment isn’t the only one with an asterisk: The Fourth Amendment has one too. [5] Without the asterisk, it reads like this:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

So when they talk about “probable cause” on NCIS, that’s not just some criminal-coddling nonsense made up by an activist liberal judge; it’s right there in the effing Constitution. The Constitution guarantees your right to be secure in your person, unless police have probable cause to believe you are involved in a crime.

Or unless you’re black.

Politico reports:

In a pre-taped interview on Fox News scheduled to air Wednesday night, Trump was asked by an audience member what he would do to address “violence in the black community” and “black-on-black crime.” Trump responded by proposing that “stop-and-frisk” policing, in which an officer is empowered to stop an individual and frisk them for weapons or any other illegal contraband, be adopted nationwide.

If a weapon is found, it is confiscated. The next day Trump clarified, saying that he only meant Chicago.

I think Chicago needs stop-and-frisk,” Trump said. “Now, people can criticize me for that or people can say whatever they want, but they asked me about Chicago, and I think stop-and-frisk, with good, strong, you know, good, strong law and order. But you have to do something. It can’t continue the way it’s going.”

Trump says nothing specific about race, but does anyone really believe that he wants police to stand outside of Water Tower Place and frisk upscale white shoppers for weapons? Will they cruise the Magnificent Mile during lunch hour, stopping white lawyers and bankers at random to see if they have any cocaine? (Sometimes they do.) Of course not. What will substitute for “probable cause” is that you are a young black man [6] wandering around in a poor, majority-black neighborhood.

You still might claim that the bias here is related to class, not race. But seriously, can you picture police cruising the trailer parks of Louisiana, frisking white good old boys and confiscating guns from Duck Dynasty types? Could that ever happen?

Of course not. The NRA would throw a fit.

[1] Saturday they finally did. The New York Times assessment: “It appeared from the two angles that he had nothing in his right hand. It was unclear what, if anything, Mr. Scott, who was right-handed, had in his left hand.” In the video, you can hear police repeatedly telling Scott to drop the gun. But in another video, you can hear Scott’s wife protesting that he didn’t have a weapon.

[2] It turns out that Scott didn’t have a right to carry a firearm, since he had a gun-related prior offense. But it’s almost certain police didn’t know that when they approached him.

[3] As they were known on Thursday, before the marijuana claim about Scott.

[4] Robinson’s conclusion is less compelling if the marijuana claim is true. But even then, we’re left with the question: What public danger required escalating the encounter to the point of death?

[5] If I wanted to expand the scope of this article, we could also talk about the “except when Muslim” asterisk on the First Amendment. Americans have a right to practice their religion, except when they want to build a mosque somewhere and Christians object. And the whole gay-marriage issue revolved around the “except when gay” asterisk on the equal-protection clause of the Fourteenth Amendment.

[6] In the New York City example Trump cited, Latinos were also disproportionately targeted.

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  • Roger Green  On September 26, 2016 at 10:03 am

    Stop and frisk is great, as long as YOU are not the one they stop and frisk, over and over and over and over again.

    • weeklysift  On September 26, 2016 at 12:11 pm

      I sometimes try to imagine what it would be like, to have to build extra time into all my plans in case the police decide to stop me.

  • geriatrichorse  On September 26, 2016 at 10:45 am

    While there is absolutely an unequal application of all of our Bill of Rights for people of color, the asterisk also applies elsewhere. The Fourth Amendment no longer applies at airports, some movie theaters, shopping malls, or any other large public gathering where “security guards” can search your person, your property at any time, regardless of your gender, your skin color, etc. This is all in the name of “preventing acts of terrorism” or whatever we’re choosing to call it this week. And yet, this is all ok, according to the Supreme Court. So there you have it. I’d say that, while the erosion of civil rights is much more apparent for people of color, we are rapidly handing them over for all of us.

    • weeklysift  On September 26, 2016 at 12:09 pm

      The loophole they usually use is that certain activities are privileges rather than rights, so people can make you surrender certain rights when you do them. I think that’s especially suspect in regard to airports, because there are some jobs you just can’t hold unless you’re able to fly. Flying is less and less a privilege and more and more a requirement for fully participating in American life.

      When we let shopping malls replace a downtown shopping district, we’ve essentially privatized a part of public life. The whole mall is part of a private establishment, including the part that mimics Main Street.

      • Larry Benjamin  On September 27, 2016 at 9:20 pm

        I learned that recently when a security guard at the mall stopped me as I was about to photograph something.

      • geriatrichorse  On October 9, 2016 at 8:54 pm

        Yes, I agree completely!! Thank you for responding, and apologies for my belated reply….

  • 1mime  On September 26, 2016 at 12:54 pm

    “What will substitute for “probable cause” is that you are a young black man [6] wandering around in a poor, majority-black neighborhood.”

    Or, god help them, being a young black man (or woman) wandering around in a wealthy, majority white neighborhood…….

  • Luke Swartz  On September 26, 2016 at 1:26 pm

    Great article! You might also include Fifth Amendment rights to due process (since many of those killed by police are allegedly guilty of some crime, and are effectively executed for it…)

  • Loren F. File  On September 27, 2016 at 12:46 pm

    Since the “stop and frisk” suggestion was in relation to “black on black” crime, where is the mystery about who will be stopped and frisked? ( I’ve always been in favor of “stop and audit” on Wall Street but don’t see that happening anytime soon.)


  • Kelly Schoenhofen  On September 28, 2016 at 4:20 pm

    Doug, you seem to be getting a little spicier the closer we get in this election/through 2016 😦

    We all pick up that you’re passionate about the topics you write on, and obviously 😉 you can say things however you want to say them.

    I’ve put your weekly blog on a pedestal because the one thing I have grown to rely on is no matter how hot people get about the week’s events, no matter how much it seems like the world is ending, the Weekly Sift and the calm, moderating words of Doug Muder are there to straighten things out, and you help me think about recent events in a way that had escaped me, or put my vague feelings into concise language, which in turn helps me communicate to my peers the concepts you so artfully illuminate and lay out!
    When your passion comes through with salty language, it comes across as aggressive and alters the perceived moral and educational strata your words normally live at. I’m torn between saying something (obviously not that torn, as I’m writing this) and letting it go, akin to recognizing the disruption to my commute as a result of a BLM demonstration is precisely the point.

    What do you think? Do you see this change yourself? Is my thin skin reaction telling me I need to pay closer attention to your emphasis?


    • weeklysift  On September 29, 2016 at 8:08 am

      Kelly: I will keep your comment in mind. There is always a line to walk between being rational and being outraged by things that are genuinely outrageous.


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