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.
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