by John J. Otrompke, JD
The Reverend Martin Luther King, commemorated every year on the third Monday in January, should be honored even more than he is. Works are more beneficial than faith, which sometimes is even counterproductive. Activists with universal ideals are inheritors of Rev. King’s legacy, and there are a number of ways we could better honor his memory.
One thing judges could do to honor Rev. King is to abolish the collateral bar rule in First Amendment cases, which contradicted almost 30 years of Supreme Court decisions when it was devised specifically for Dr. King following his ‘Letter from a Birmingham Jail.’
The collateral bar rule lingers with us even today, and continues to systematize the perpetration of injustice; today, it figures prominently in many cases where an individual’s speech is restricted by a court-issued injunction.(1) (It comes into play perhaps most commonly in ‘order of protection’ cases).
While orders of protection restrict speech, they also restrict another important right, the right to possess arms. Debaters on both sides of the arm issues often base their contentions solely on policy and its results, but both sides miss an important point. Since King’s death, a new problem with violence has emerged in our society: massacres of schoolchildren have become commonplace, and we as a society can’t know for sure how to solve that problem, because we have never before confronted it.
As a second way to honor Rev. King, both sides of the debate about guns might humbly admit that their contentions as to the likely policy effects of their views can only be theoretical, because we as a society have never experimented with gun abolition and gun freedom in a systematic way.
We should continue to experiment with gun freedom, to learn whether that policy is capable of solving our problem with atrocities. At the same time, however, we should recognize that a trial-and-error method may be necessary.
Although I believe gun freedom is a part of the Constitution, I subscribe to a position I call “meta-Pacifism”; that is, I believe it is possible that human beings may one day abolish violence, and I believe in working toward that.
Out of respect for Rev. King, I elaborate on these ideas below, and conclude that if the reader appropriately him, you should act on his principles, rather than commemorate him passively.
The First Amendment and the Collateral Bar Rule
Rev. King made immense contributions not only to civil rights and peace, but to a more generalizable strategic philosophy of idealistic personal activism in the face of injustice.
As has been told elsewhere, in early 1963, a group of civil rights activists (including Dr.. King, Rev. Fred Shuttlesworth and Wyatt Tee Walker) began a campaign to end racial discrimination in Birmingham, Alabama.
In April of that year, the Birmingham chief of police obtained an ex parte injunction against the marches. Some of the protesters, notably Dr. King and Walker,
reasoned that if they were to permit the forces of segregation to tie them up in court for years at a time, there may never be a civil rights movement. They stated: "We are now confronted with recalcitrant forces in the Deep South that will use the courts to perpetuate the unjust and illegal systems of racial separation." Therefore, the activists decided to defy the injunction.
Rev. King and Walker were arrested, charged with contempt, and imprisoned. While he was in jail, King wrote ‘Letter from a Birmingham Jail’ (1963), a classic work of American political philosophy, to which the entire country pays homage on Rev. King’s holiday.
The Supreme Court upheld the contempt convictions of the protesters, including King. (2). (Among those voting to uphold the imprisonment of Rev. King was Justice Hugo Black, a former enthusiastic Klansman who today enjoys an undeserved reputation as an absolutist civil libertarian).
In Walker v Birmingham (3), the U.S. Supreme Court concluded that Dr. King and Walker were barred from raising the First Amendment as a defense to the contempt charge on which they were imprisoned, because they did not litigate and appeal the ex parte injunction. In so doing, the Supreme Court adopted a principle which contradicted almost 30 years of First Amendment opinions.(3)
In Cantwell v Connecticut, (4) for example, the Court said, “[T]he availability of a judicial remedy...in the system of licensing still leaves that system one of previous restraint [and] inadmissible...[P]revious restraint...by judicial decision after trial is as obnoxious to the Constitution as one providing for like restraint by administrative action.” And in Lovell v Griffin (5), the Supreme Court said, “[I]t was not necessary for [the speaker]
to seek a permit under [the statute]. She was entitled to contest its validity in answer to the charge against her.”
Prior to the contempt charges against Rev. King and Walker, the guiding free speech principle in injunction cases went hand-in-hand with the overbreadth doctrine, which was just being developed in those years. Up until Walker, overbreadth was supposed to be like kryptonite: nothing, absolutely nothing, gets through it.
Prior to Dr. King, the Supreme Court of the era presumed that a law that explicitly restricts speech because of its content has a chilling effect. Free expression was deemed so important, prior to the Walker case, that the Court would prioritize judgment against an unconstitutional law. The court would be unwilling to allow it to fester for very long on the statute books for the lack of a plaintiff willing to assume the risk and trouble of having it declared unconstitutional.
After Walker, the First Amendment does not protect speech engaged in in violation of a court order.
(What remains of the overbreadth doctrine today? Maybe nothing, if a lawyer doesn’t file a motion to reconsider).
About two years later, the Supreme Court held the same Birmingham ordinance unconstitutional in the case of King’s fellow activist, Rev. Shuttlesworth.(6) (See also Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965), another case from the Supreme Court which set aside a conviction of Rev. Shuttlesworth from a demonstration which took place a year earlier than the march which led to the Walker case).
In a moment, I’m going to talk about the collateral bar rule as it sometimes applied today. But first, let’s take another look at the Walker-Shuttlesworth-Shuttlesworth trio of cases again, this time in slow-motion.
One reason the Warren Court may have felt less guilty about affirming King’s contempt conviction was that the Birmingham statute was about to be declared unconstitutional anyway, in Shuttlesworth.(7).
But if the reason that Rev. Shuttlesworth still had the power to challenge the constitutionality of the Birmingham ordinance was because he chose to litigate the injunction, instead of marching in violation of it with King, Walker and the others (8), then how did Rev. Shuttlesworth get arrested?
Indeed, the Supreme Court opinion itself tells us that during the Good Friday march on April 12, 1963, the demonstrators “were led out of a Birmingham church” by three ministers, including Rev. Shuttlesworth, who “was with the group for at least part of this time, walking alongside the others, and once moving from the front to the rear.” Shuttlesworth 394 US at 148-149.
And in the Supreme Court’s earlier Shuttlesworth case from the demonstration a year before, on April 4, 1962, the opinion notes that Rev. Shuttlesworth was arrested when he was “standing on a sidewalk with 10 or 12 companions outside a department store.” Shuttlesworth, 382 US at 89.
Clearly, then, Rev. Shuttlesworth was at the Good Friday demonstration in 1963. Some scholars try to distinguish Shuttlesworth from Walker by finding an exception to the collateral bar rule for activity which is closer akin to “pure speech,” uncombined with some other physical activity, such as marching.(9)
Indeed, the Supreme Court seemed to partially embrace this view in Walker itself: “"We emphatically reject the notion . . . that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways as these amendments afford to those who communicate ideas by pure speech." Walker at 316 (citing Cox v. Louisiana, 379 U.S. 536, 555 (1965)).
But what’s really going on here? Is the Supreme Court really trying to tell us that although Rev. Shuttlesworth was arrested at the site of the march, he was not actually marching? Or is the discrepancy in this trio of cases just a distinction without a difference, another Supreme slight-of-hand? If so, that’s all the more proof that the collateral bar rule should be abolished.
Gun Rights and Gun Policy
The Birmingham ordinance was eventually declared unconstitutional by the U.S. Supreme Court, but the effects of the ‘collateral bar rule,’ the special procedural rule created for Rev. King, linger with us today. The rule is generally applied in First Amendment cases involving injunctions, but perhaps most commonly in order of protection cases in domestic violence court.
Respondents in order of protection cases are not guaranteed the right to counsel until after they have accidentally waived all of their rights. The right to counsel does not attach until the criminal phase of the bilateral order of protection proceedings, that is, after the respondent has violated the protective injunction, at which point counsel is worthless, because Walker establishes that they have already lost the opportunity to raise most constitutional defenses, including the First Amendment.
The Supreme Court allowed the Birmingham ordinance to remain in force for only a few years following Dr. King’s arrest, But for how many years have defendants been imprisoned in order of protection cases in violation of the First Amendment?
Today, the trap created by the collateral bar rule adopted for King allows savvy legislators to avoid inconvenient constitutional protections merely by crafting laws that lend themselves to bilateral proceedings. But to countenance a law that systematically deprives untold numbers of individuals of their constitutional rights is deplorable.
Another right affected by order of protection laws and their injunctions is the right to keep and bear arms.(10) Since this essay is intended to make a contribution to the project described by Dr. King, a reflection on issues related to arms seems appropriate.
Note that while order of protection laws claim to have a legal effect on the arms right, the question of whether they can do so without violating the Constitution is still up for grabs. Voisine v US (2016), a recent opinion from the Supreme Court that is related to the issue of arms in the context of domestic violence, was widely misinterpreted in the press.
In fact, the Court’s decision in Voisine concerned only the proper interpretation of a federal law; the Court neither considered nor decided whether the law violates the Second Amendment. (The Supreme Court granted certiorari only as to the issue of statutory interpretation, not the constitutional issues). The opinion in Voisine concluded that the law in question, 18 USC §922(g)(9), should be interpreted to mean that an individual convicted of certain reckless domestic violence misdemeanors would be permanently deprived of their right to own a firearm.
Attentive readers will recall that the issue of criminal liability in unintentional domestic violence-related circumstances was also at the heart of the Court’s recent opinion in Elonis v US (2014). In that case, the Court noted that the Constitution disfavors a law that criminally punishes an individual for unintentional acts which were merely negligent, but left open the question of whether criminal punishment could lie for unintentional acts which were reckless.
Today, the right to bear arms described in the Second Amendment is authoritatively considered to belong to individuals (not merely government militias), and it is likely to remain so for the foreseeable future. I believe that as a matter of constitutional interpretation, that view is correct for two reasons.
First, much of the entire Constitution is founded on a revolutionary vision of a society in which the people defend themselves, without misguided reliance on a standing army operated by the government. (The vision of an enlightened society without a standing army vanished from American constitutional history almost as quickly as it appeared. I believe that its absence has been at the root of much mischief in American foreign policy, and of much of what I find objectionable about American society).
The second reason I believe the Constitution makes the right to bear arms personal is that the Second Amendment descends from the English Bill of Rights (1689), which was informed by historic violence between Catholics and Protestants in England. The Second Amendment is designed to allow people to defend themselves from the government, their neighbors, and others.
But when, in contemplating questions of arms, our attention shifts from the constitutional point-of-view to a policy perspective, different conclusions may emerge.
Young children were killed in the U.S. before King’s assassination, but the problem seems to have gotten worse. Massacres, usually unmotivated by any recognizable ideology, sometimes occur on a weekly basis. It is unjustifiable that this situation could continue in an educated and developed society.
I believe that we don’t yet know whether gun freedom or gun prohibition represents the ideal policy choice to abolish the atrocities that have become a recurrent feature of modern life in the U.S.
We don’t yet know exactly how to solve this problem, because we have never solved it before. Some commentators may speculate that we can take a lesson from Britain or Australia, which are said to enjoy reduced violence because they have abolished firearms. But we have never before solved the current problem, because the U.S. has never before experienced the spate of recurrent massacres and atrocities that has characterized the decades following Columbine.
Because we have never faced this problem, we have never before solved it. Therefore, the U.S. will most likely have to experiment with more than one solution to the ongoing massacres, before the right remedy is hit upon.
The remedy we are trying out now is an individual right to handgun ownership; that’s the remedy that is currently thought was included in the federal constitution. As a policy matter, then, I say, let’s try the individual rights view, and see if it helps to address our problem with atrocities. If it doesn’t, we may have to try something else, and thereby eventually succeed by a process of trial and error.
Speaking of which, what if individual gun ownership doesn’t solve the problem of frequent massacres? That raises thorny questions indeed. For if prevalent atrocities persist notwithstanding gun freedom, then it seems reasonable to think that we as a society should at least consider gun prohibition, and see if that eliminates massacres.
But how? Even if the Constitution were amended, we would have a hard time figuring out how to implement gun prohibition as a policy measure, even if we had to and wanted to. Therefore, while we give gun freedom its fair chance to eliminate atrocities, I propose that we should roll out a pilot project of gun prohibition somewhere, to see if we can learn something about how we would implement it, perhaps in some locality that has historically disfavored the personal rights view, perhaps such as a Quaker community in Pennsylvania.
What is Meta-Pacifism?
I say that Dr. King should be revered much more than he is, because he was an idealist and an activist, and far too many people are neither. King was not exactly a revolutionary, perhaps, but he was a pacifist, and in that sense he envisioned changes far more profound than any transition of state power or constitutional policy.
Having just concluded a section about firearms, then, in what sense do I praise pacifism? When I think of pacifism, I might not mean what most people think of, so I will use the word ‘meta-pacifism.’
One basis for meta-pacifism proceeds from the assumption that human beings may ultimately learn to live without violence; at least, that we can’t rule out the possibility. (The assumption could also be described as an appropriate suspension of belief in the inevitability and universality of human violence, based on a historical record).
Meta-pacifism, then, is a belief in the principle that human beings should try to abolish violence. (I myself don’t mean that human beings shouldn’t use violence to defend themselves, although with enough foresight, perhaps that day would never come).
I reach this conclusion by observing that human beings have always succeeded in accomplishing those things that we’ve always yearned for, such as the ability to fly. Human beings have always expressed the dream of living without violence. Some day, therefore, we may learn to do so.
Furthermore, I assume that that accomplishment would be a good thing- and that’s a big assumption. I can imagine several circumstances under which, arguably, a nonviolent human future might not be a good thing. What if, for example, human beings live nonviolently in a permanent, docile state of servitude?
Another conceivable way that a nonviolent humankind might not be a good prospect is that human beings, although nonviolent toward one another, conceivably could nonetheless exploit other living things more ruthlessly, efficiently, and destructively.
But I assume that a humankind which has been made more secure by means of reduced human violence would be more rational (also a big assumption; after all, it is sometimes said that ‘necessity is the mother of invention’). Furthermore, I assume
that a more rational humankind would be more benevolent.
Prof. Steven Pinker, PhD, arrives at similar conclusions via a different logical path in his great book, ‘The Better Angels of Our Nature.’(11). Pinker makes varied and elaborate efforts to prove his hypothesis, which is that human violence is declining.
Reflection reveals how startling this hypothesis is, ands how profound its implications. Could it really be that humankind was less violent in the 20th century than in the prehistoric times? The fact that he makes a diligent effort to lay the groundwork for a scientific proof of this ultimate question makes his work all the more remarkable.
I’m an unabashed fan of Pinker’s book (although I don’t necessarily like what he says about ‘The Who’ or what he calls the anti-civilization movements of the 1960s).
I should add that I’m not entirely certain Pinker’s efforts to prove his hypothesis by historical data are altogether successful. At one point he points to an excavation of prehistoric human remains, and attempts to reach a historical conclusion as to the level of violence prevalent in prehistoric societies by analyzing markings on their bones; but this method is cast in doubt by the relatively small sample size in comparison to the scope of the question. (He does much better, on the other hand, when he is analyzing data from counties in England which systematically tracked homicides for several centuries).
I have a hard time fathoming what kind of scientific proof would suffice to answer the question Pinker poses. The difficulties in proving Dr. Pinker’s hypothesis may be inevitable, because one end of the equation is lost in the sands of time, while the other end may be on a cosmic scale.
Nonetheless, Prof. Pinker certainly poses one of the most important questions of our time: have all of our human efforts been to any benefit, or has the human project been in vain, or even counter-productive? For merely posing the question and for laying out some groundwork for an attempted historical proof of its answer, I applaud Pinker’s work.
In commemoration of King, we should learn about the meta-pacifist position, and we should consider adopting it.
Conclusion
Martin Luther King made essential contributions to the human project in the 20th century. He should be honored more than he is.
Judges and scholars who want to honor King can make arguments in their opinions as to why the collateral bar rule should be abolished in First Amendment cases. Thoughtful people can be meta-pacifists (which doesn’t require engaging in a complex and dubious debate about self-defense). The civic-minded can recognize that our society contains contradictions rooted in the founders’ intention to create a society without the very large standing army that we have today, and they can discourage their friends and relatives from participating in it. Americans can be internationalists, and thereby participate in a human project which transcends national boundaries.
A pacifist, Rev. King was among the most radical of humanists. To authentically commemorate him, we should do something radical every day.
References:
1 Grose, Carolyn, Put Your Body on the Line: Civil Disobedience and Injunctions (1994). Brooklyn Law Review , Vol. 59, 1994. Available at SSRN: https://ssrn.com/abstract=1679903
2 Walker v Birmingham, 388 US 307 (1967)
3 See, for example, Saia v New York, 334 U.S. 558 (1948); Kunz v New York, 340 U.S. 290 (1951); Niemotko v State of Maryland, 71 S. Ct. 325 (1951)
4 Cantwell v Connecticut, 310 US 296, 306 (1939)
5 Lovell v Griffin, 82 L.Ed. 949 (1938)
6 Shuttlesworth v. Birmingham, 394 US 147 (1969).
7 See Walker at 319, n. 13.
8 See, for example, ‘Critical Legal Readings of Walker v. Birmingham’ (Harvard University website), https://cyber.harvard.edu/bridge/CriticalTheory/walker.txt.htm. (accessed February 18, 2017): the Shuttlesworth case pertaining to the Good Friday march “was framed by members of the same civil rights group who had refrained from marching and thus were not barred from raising substantive challenges.”
9 “The ‘Collateral Bar’ Rule and the First Amendment: The Constitutionality of Enforcing Unconstitutional Orders,’ R. Labunski, 37 Am. U. Law Rev. 323 (1988).
10 According to many scholars, there are at least four interests protected by the Second Amendment: the right to revolution; the right to defend oneself against the government; the right to defend oneself against one’s neighbors (in other words, other persons in the U.S.); and the right to defend oneself against other persons not in the U.S. (See, for example, “Civic Republicanism and the Citizen Militia: the Terrifying Second Amendment,” D. Williams, 101 Yale L.J. 551 (1991), which discusses without adopting this position). In discussing arms issues, this essay simplifies the analysis by considering only the third value, the right to defend oneself against other persons in the U.S. This essay omits consideration of the other Second Amendment values, as well as certain “truther” issues. These issues may indeed complicate the analysis as far as the discussion of arms is concerned; but my ultimate conclusions as to preventing massacres should remain the same were these other analyses included.
11 Pinker, S. (2011). The Better Angels of Our Nature. New York, NY: Viking.
