Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Wednesday, September 19, 2007

The Taser, 9/11, the 2d Amendment, and Posse Comitatus

Last year, we saw UCLA police officers use a taser to punish a student who was not obeying their orders - not as an emergency nonlethal measure to subdue a dangerous person. Now it has happened again at another college campus. Here

My first reflection was to remark (again) about the militarization of police forces in this country. I think that many police departments think of themselves as paramilitary groups whose job is to keep order - rather than to "protect and serve" as their badges say. It's sort of a military envy, reinforced by giving themselves military-style titles, having parades, 21-gun salutes for the dead, and so forth. The police do not celebrate their civilian-ness.

My second reflection is to comment on the Second Amendment. At the beginning of the republic there were no police forces. The "posse comitatus" was the phrase used to describe the force that can be used to enforce law (sort of means "county power"). The posse comitatus consisted of a sheriff and/or a justice of the peace, and a governor with the power to call out the militia. The first police departments were in NY and Boston set up to "deal with" Irish immigrants in the 1830s or so. The army could not to be used as the posse comitatus.

The British government after 1764 used a standing army instead of local militias as the posse comitatus, which was hated by the colonials. They even ordered local militias disbanded. Hence the 2nd amendment. So they insisted that "well-regulated" state militias be permitted. The constitution puts the militias under the control of state authorities but also makes them subject to being federalized. The constitution was designed by people who hated standing armies as law enforcement. The constitution forbids multi-year appropriations for the army (Check it out, Article I, Sec. 8), although not for the navy (Hamilton wrote in the Federalist Papers to counter those who complained about the mulit-year naval budgets that "there has never been such a thing as a naval dictatorship"). Note that the 2d amendment was not about individual self-defense. That is a modern interpretation popular not only with the gun lobby, but also by those who no longer understand the inherently civilian nature of American law enforcement.

The first major change afte the introduction of police was during the civil war. During the civil war, the army was brought north to quell draft riots. After the Civil War, the US Army was installed as law enforcement in the South. The posse comitatus act ended reconstruction and forbade the standing army from being used in this way again. The standing army was quickly dissolved to a token force to deal with Indians.

The Militia Act of 1903 reorganized state militias into the "national guard." There were fewer than 60,000 soldiers in the US army right before WWI. And there was no large standing army in this country until after WWII, when we did not demobilize them, for the first time ever, and kept a draft in peacetime.

After 9/11, you know, Republicans have called for repeals of the posse comitatus act, permitting the army to be used as the posse comitatus, i.e., as law enforcement. They have created the "Central Command" in the army, directed to governing US soil. And in 2006, HR 5122 expanded the President's power to use the national guard and the army without the consent of state governors. Senator Leahy has introduced legislation to repeal the law.

To sum up, we are in a time where the traditional constraints on military power and the relationship of state and federal law enforcement is under great strain. We have lost much of our history in this process. The Second Amendment, which stands for this history, has been trampled. The Second Amendment should be properly viewed as a constitutional protection against the military being used as law enforcement, a constitutional right of civilian control of law enforcement, i.e., of civilian rule itself, concomitant with the guarantee of a republican form of government to each state.

Here again is the text (as written): "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

It means that congress shall not disarm state militias, substituting a federal standing army for local law enforcement. Notice how it slides directly into the third amendment, prohibiting quartering of troops in private homes. I can go on about the use of the phrase "the people" and so forth. The fact that state militias are no longer used for law enforcement does not change the principle. It is terrible that this has been lost.


Dr. Strangelove said...

LTG is right about the increasing militarization of the police. When soldiers are worshiped as heroes and criticism of "the troops" is considered sacrilege, other groups in uniform with guns will seek the same validation. Especially groups that have lost much public esteem in the past few years. I remember the Rampart scandal in Los Angeles...

Interesting take on the 2nd Amendment. How widespread is that interpretation in constitutional scholarship? Is it one of those well-understood but difficult-to-explain principles (rather like, say, evolution) that conservatives dismiss?

The Law Talking Guy said...

It's not widely understood, but it is the subject of some scholarship.

USWest said...

Great post, LTG. Thank you for making me aware of the second Amendment in a new light.

This dovetails on my comments in the past about police interrogations- their militaristic style- guilty until proven innocent way of dealing with people.

Take note: many police officers are former military men. I am not sure if there is a "hiring preference" in civilian forces for veterans, but federal law enforcement (the type that hangs out on militiary bases and National Parks handing out parking tickets) does have a hiring preference in place for veterans.

I would also point out that in Europe, there is a decided difference between the "police" and the regular law enforcement- the gendarme or Bobby. The police are connected to the army, and they carry guns. But they don't do daily street patrolling. In France, the daily street patrolling is done by Gendarmes who do not carry firearms or wear Kevlar. They do carry mace and batons. But they aren't intimidating looking like our police, who patrol in Kevlar vests as if they were on the streets of Iraq. Germany, for obvious reasons, is similar. In fact, I don't recall seeing this type of thing in Italy or the UK either. Maybe RBR can offer more insight into this.

I think what really drove this shift into the paramilitary was the drug war. Police departments were emboldened and give extensive powers. That is why you started seeing scandals such as Ramparts. I find it ironic that the big move in the 1990s was go back to "Neighborhood" patrols. I sort of thought that is what the police were supposed to do. Since WWII, we have been told that we are waging one type of war after another. Cold war, drug war, WOT. It provides an excellent excuse to frighten people, to control people, to tap down dissent,and to feed an huge security industry.

This also reminds me that if you treat the citizenry like criminals, they will act like it. Where the authorities act violently, the citizens will do likewise- to counter police efforts or to protect themselves from the police. This also leads then to generalized violence, usually against women, children, and the elderly. Feminist political scientists point to this often in their writings. It is my gender that pays.

This problem goes beyond the paramilitarization of police, it is a commentary on where the military-industrial complex has lead us as a society. It is a sign of the militarization of society as a whole. I have discussed this before.

I think Americans should watch closely what happens to Blackwater. They are being kicked out of Iraq for perceived abuse of their authority. And the company is defending its actions as necessary. That should worry us. Baghdad today, New Orleans tomorrow.

I was watching HBO's series ROME. I am struck by how militarized and violent Rome was and how that affected Roman civil society. We aren't far from repeating that folly.

The Law Talking Guy said...

Re: Rome: The ban against taking the army across the Rubicon was a form of the modern posse comitatus rule. I view Shakespeare's Julius Caesar as, in part, a discussion of that rule in times of crisis. What followed was the collapse of the Republic that had lasted 500 years - so long Caesar did not think it was going to really end no matter what he did.

Raised By Republicans said...

As I recall, Danish police can carry guns but don't always do so. I am unaware of the kind of seperate agencies that US West alludes to. They typically wear less military-looking equipment and clothes though.

I would be careful about extending observations in Germany or France to the rest of Europe though.

What I noticed most about Danish police was that they drove compact cars. I always thought it gave a different impression of the police when they pull up in a small, comuter type car as opposed to the standard US "Crown Victoria" or "Impalla" with improved power plants etc.

The Law Talking Guy said...

It does give a different impression - less intimidating. What today's police do not want.

USwest said...

I have been poking around Wikipedia about police forces in Europe. It looks like the organization of European forces are much more complex than I realized.

From Wikipedia: Italian Police: "The Carabinieri is the common name for the Arma dei Carabinieri, a Gendarmerie-like military corps with police duties.

France: I had it backwards, the Gendarmes are part of the Ministry of the Interior and are part of the military. However, they usually patrol in the rural areas and are not armed. I know for a fact because I lived in those villages and they had a Gendarmerie in every village, who usually hassled you with speeding tickets. But they can arm up when need be.

The National Police (Police Nationale)is one of two national police forces and the main civil law enforcement agency of France, with primary jurisdiction in cities and large towns.

When I was in France during the garbage can bombings in the mid 1990s, it was typical to see a fully loaded French military man walking on duty along side a lesser armed civilian police officer in the metros. that was an interesting statement on the part of the French government.

For kicks I am going to post photos of police vehicles. I agree, European cars are not intimidating. That is the whole point.

Raised By Republicans said...

A lot of countries have really complex police forces. Many constitutions are designed to prevent the concentration of police power in too few offices.

So in Germany you have local police, state police (I believe) and at least one federal force - including paramilitary border defense units.

US West will remember this as well as I do or better. In Washington, D.C. you can see several police forces patrolling on the street. There are the usual DCPD cars but you also see uniformed Secret Service cars patrolling around the Embassies. The Capitol Hill police patrol around the Capitol. US Park Service Police patrol around The National Mall. When US West and I were living in D.C. there was something of a budget crunch and you actually had FBI and DEA agents acting like "advisors" (ala Vietnam) for the homocide and vice detective units of the DCPD. So on any given day in the District you could see as many as six different law enforcement agencies operating within the same jurisdiction. And that doesn't count the Military Police who patrol the many military facilities in the area.

USWest said...

You see this in my current hometown. We have campus cops, federal cops for the military base, CA highway patrol, sheriff departments, city police. And since the cities are so close, you see multiple city cops floating around.

The federal police told me that nearly everyone here respects jurisdictional lines. But every so often . . .