On Flag Burning

36 USC 176(d): The flag should never be used as wearing apparel, bedding, or drapery.

36 USC 176(k): The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.

It always amazes me to hear people rant against burning the American flag.  From a philosophical perspective, they completely miss the point.  The flag is merely a symbol (albeit a vivid and important one) that represents the country.  Though to some it represents things and events that we should not be proud of, much of what it represents are the things that make this country great.  The United States introduced modern democracy to the world, has fought tyranny and oppression over and over, and is a beacon of freedom.  One of the most essential of the freedoms that the flag represents is the freedom of expression.  One of the things that makes this country great is that its citizens and those who come from abroad can express their beliefs, right or wrong, positive about the government or negative, without fear of persecution or repercussions.  This freedom is fundamental.  The idea that we should preserve a symbol of that freedom at the expense of that freedom boggles the mind.  I usually don't agree with those who would burn the flag, but granting the freedom of expression solely for the viewpoints with which we agree isn't granting that freedom at all.

The second aspect of this debate is the hypocrisy that it fosters.  I guarantee there have been many people shouting at the tops of their voices that burning the flag is disrespectful and should be banned while wearing a flag shirt or flag shorts or flag underwear (pictured above).  Though these articles of clothing probably don't technically violate the law (cited above), they certainly violate the spirit of it.  Is burning a flag as an exercise of one's freedom of speech more disrespectful than rubbing one's sweaty armpits or balls on the colors?  Furthermore, the law specifically contemplates the burning of the American flag and, in fact, calls the act dignified.  That people miss the obvious contradictions in their behavior and opinions will never cease to baffle me.

Voter ID laws

I feel compelled to write this post after seeing a facebook status update of a facebook "friend" who i knew very briefly a very long time ago.  She takes issue with the claim that laws requiring identification are racist.  She lists a number of other activities that require a person to show identification (driving, buying alcohol, flying, etc) and questions whether they are racist, too.  I didn't want to jump in on someone's post uninvited, especially when I am not close to her, but I still want to get my thoughts on the issue down somewhere. 

Voter ID laws aren't inherently racist, and I'm sure that many, of not most, of those in support of them aren't racist either.  As I'm learning during my con law review for the bar, there is a difference between discriminatory effect and discrimatory intent.  Further, there are plenty of white people who will prevented from voting because of these laws.  They're really more classist than racist.  However, that does not negate the fact that these laws are racially charged.  Voter ID laws will have a larger impact on minority voters than they will on white voters and, when put into a historical context, it is easy to see why many think these efforts are racist.  The U.S. has more than a century of experience in trying to prevent people of color from voting without explicitly denying them the vote.  From literacy tests to poll taxes, minorities' voting rights have often been threatened.  As an aside, voter ID laws actually are poll taxes, indirectly, because government identification isn't free and efforts to obtain one without paying for it due to indigence are often cumbersome and unreliable.  Given our nation's history of coming up with ways to legally deny minorities the right to vote, how can you blame someone for thinking that this law, which disproportionately prevents otherwise eligible minority voters from voting, is racist?  This is the reason, in addition to the fact that driving, buying alcohol and flying aren't fundamental rights essential to the functioning of our republican form of government, that requiring identification for other activities isn't racist. 

Another reason way to distinguish between requiring identification for activities such as driving, buying alcohol or flying is the necessity for identification for those activities and the lack there of for voting.  Underage drinking and driving without a license are big problems that requiring identification actually helps solve.  Voter fraud, on the other hand, is virtually nonexistent.  Proponents of voter ID laws have been given ample opportunity to provide evidence that rampant voter fraud is occuring and have as of yet been able to do so.  Of course, this makes sense.  The penalties for committing voter fraud are enormous and severe.  When you weigh those penalties against the potential gain, one vote that likely will not swing an election either way, it is not clear why someone would take that risk.  Additionally, preventing an eligible voter from voting diminishes the legitimacy of an election exactly as much as allowing an ineligible voter to vote.  Yet these voter ID laws will (actually, not speculatively) prevent tens of thousands of people from voting in the next election.  If you have someone willing to trade the actual disenfranchisement of thousands of people in order to prevent the possible votes of a small number of ineligible voters, people are bound to wonder why.  When the people being disenfranchised are disproportionately minorities, it's not out of the realm of possibility that racism is the reason.

However, I am more inclined to believe that the reason behind these voter ID laws is political expediency/fraud rather than racism (though undoubtedly for some the racism angle is an added bonus).  The majority of people who would be disenfranchised by these laws are likely to vote for Democrats and the vast majority of proponents of these laws are Republicans.  I've always wondered why, if a party believes in democracy and letting every citizen's voice be heard, that party would work so hard to prevent people from using that voice.

On Marion Hammer, or First Resort

The controversy surrounding the Trayvon Martin tragedy has been rehashed over and over, but I want to address an angle that I haven't seen before. As I've read the coverage, I've been wondering when the right to own a gun merged into the right to kill. The essence of the stand your ground law, which is that a person, when they reasonably believe they are or are about to be the victim of deadly force, does not have to retreat before using deadly force himself. If you believe George Zimmerman's account of the tragedy, that's exactly what he did. He was attacked and, regardless of whether he was able to safely defuse or extract himself from the situation, he was justified in killing Martin.

Another name that has popped up in the press lately is that of Marion Hammer, the force behind Florida's stand your ground law. Hammer is an important NRA lobbyist whose message is more persuasive to some because she is 71 and stands 4'11". A lifelong gun owner and NRA member, Hammer's self-righteousness was magnified based on her own harrowing experience. According to her depiction, she was followed by a car full of young men who appeared to be under the influence and who made threatening remarks and gestures toward her. She pulled out her loaded handgun and pointed it at the car, scaring the men away. I assume this story is true, and if so, it sounds like her gun saved her from a horrible fate.

However, that situation does not adequately justify the stand your ground law. Clearly I wasn't there, but because the men were younger than her and in a car, it sounds like trying to escape would be futile. If escape was futile and the men had, in fact, attacked her, she would have been protected by standard self-defense laws and would not have needed a stand your ground law. Stand your ground comes into play in two alternate scenarios. First, say she had opened fire instead of just brandishing the gun at the car. She may have unnecessarily killed one or more people and would have been protected under stand your ground. Second, say the men had been on foot and she had been in her car or able to get into it before they reached her. Even though she was in the position to safely escape the situation, she would not be required to under stand your ground. She could open fire on the men and not face criminal liability.

To allow this outcome is to completely bypass the criminal justice system. Battery is not a capital crime, much less threatening someone, but the stand your ground sanctions a penalty of great bodily harm and possibly death for the infractions. Second, even if such offenses were capital crimes and society had determined that committing them made someone deserving of death, the stand your ground law sanctions the imposition of that penalty without any due process. Instead of a prosecutor, defense attorney, judge and jury making the decision to impose the penalty, we have a citizen acting on his or her own volition.

Certainly this evil is outweighed by the tragedy of an innocent person suffering great bodily harm or death if those are the only two choices, which is the case if the potential victim has no chance to escape the attacker. But when there are three choices: suffering the attack, escaping or defusing the situation, or taking the law into one's own hands, the second alternative is by far the best outcome. In response to the argument that the stand your ground law prevents the potential attacker from striking someone else, I respond that such an argument flies in the face of the foundations of our criminal justice system and due process. The penalty is too harsh, the decision maker is not reliable, and society has decided that it is not just to punish someone for a crime that they may but have not committed.

Which brings me back to the shift in the NRA's platform. Instead of championing the right to own a weapon, the NRA advocates the right to use that weapon as a first resort, not a last. When the outcome is something as final and irreversible as death, that is unacceptable.