Mimesis Law
22 February 2020

A Moment of Silence for the NRA

July 12, 2016 (Fault Lines) — Brian Fung, a reporter for the Washington Post, has a point. In the wake of Philando Castile’s shooting at the hands of a Falcon Heights, MI cop, every interest group under the sun was expressing its outrage. But what about the NRA?

Castile’s background and the circumstances of his killing were of the sort to enrage any Second Amendment advocate. Unlike Alton Sterling, a felonious sex offender who may have been reaching for the illegal gun in his pocket when he was shot, Castile was pristine, a golden boy. He’d never been convicted of or even arrested for a serious offense. His record, such as it was, consisted entirely of minor traffic offenses.

Over the past 14 years, Castile was stopped a remarkable 52 times and handed 86 citations, of which over half were dismissed. That’s strongly reminiscent of Missouri’s for-profit approach to traffic policing, as documented by Radley Balko in the wake of the Ferguson riots. By poor black Midwestern standards, Castile was a saint.

Even worse, he was a law-abiding gun owner with a license to carry concealed. In fact, Castile was so accommodating, so eager to make things easy for the cop who shot him, that he preemptively told him he was carrying a gun even though Minnesota law only required him to declare it if the cop asked. Despite everything, the police officer, Jeronimo Yanez, shot Castile as he was reaching for his license. The kicker? Yanez had just ordered Castile to retrieve his license for him.

Castile’s killing shows that during an encounter with a frightened cop, you can be executed for compliance just as easily as noncompliance. It’s tough to see what Castile could have done to survive his 53rd traffic stop. Even “overcompliance,” Castile’s concern for Yanez’ perception of safety, his deliberately telling the cop about the gun in his car to avoid the possibility, however small, of a miscommunication did nothing to save his life. When a cop is afraid, rational considerations have a way of going out the window. All too often, even the most microscopic and wildly implausible threat suffices to pull the trigger.

But in this case, there’s an extra problem, and the NRA’s silence is telling. Castile was effectively killed for exercising his Second Amendment rights. If he hadn’t had a gun, Yanez would’ve had no even less reason to be afraid. But the U.S. Constitution, in conjunction with the Supreme Court’s rulings in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), guarantee Castile the right to bear that firearm. The implications for law-abiding gun owners, and Constitutionalists, are troubling.

If the Second Amendment’s intrinsic value doesn’t convince you, consider this. In 1989, the Supreme Court decided Graham v. Connor, a ruling that established a test for whether a police officer used excessive force. While the test is based on something called “objective reasonableness,” it’s actually wholly subjective. As Fault Lines contributor Jeff Gamso points out, it turns entirely on what a “reasonable” cop would have done under the same circumstances, and the standard for “reasonable” conduct is supplied by the rest of the police community. This is why Yanez is unlikely to be prosecuted or successfully sued: his actions won’t have violated Castile’s Fourth Amendment rights if a police expert claims that another cop, reasonably fearing for his life as Yanez did, would’ve pulled the trigger too.

But if a cop’s fear can reasonably be premised on someone exercising their constitutional rights, and that fear justifies their killing, we’ve let the government create a massive chilling effect. How many people will be deterred from carrying a gun because they know making use of their Second Amendment rights may get them lawfully executed?

And it’s not just the Second Amendment: a similar rationale applies to cops arresting people for filming them in the performance of their duties. In that the conduct of these police officers premises a seizure* under the Fourth Amendment on actions protected by the First or Second, they accomplish the difficult feat of making a mockery of large swathes of the Constitution at once.

So anyone who thinks rights are important should be furious about this. The First Amendment part of the equation is well represented:  organizations like PINAC speak on behalf of people who record the police, individuals like Fault Lines contributor Ken White write eloquently about their right to do so and in more and more states, the tide is turning in the cop-watchers’ favor. But when gun owners’ Second Amendment rights are at stake, when a cop executes a black man for carrying a gun he was entitled to carry, the NRA is silent. Why?

The WaPo reporter, Fung, implies it’s because of racism. A more nuanced explanation asks us to understand the difference between gun and gun rights organizations.

To be sure, the NRA bills itself as one of the latter. It calls itself “America’s longest-standing civil rights organization,” and its bylaws go on at length about its commitment to the Second Amendment. But as a practical matter, the NRA focuses on the more marketable reason for the Second Amendment (self-defense) and overlooks the other one (defense against a tyrannical government.)

As students of the Federalist or Anti-Federalist Papers and the writings of jurists like St. George Tucker or William Rawle know, early Americans considered it vitally important that the people be able to resist their government, in case the public servants tried to overthrow their masters. For better or worse, that view is largely gone today. The Left scoffs at the notion that a modern state could be tyrannical while marching against its enforcers. Meanwhile, the Right is unwavering in its support of police.

And the NRA is nothing if not a highly disciplined and pragmatic organization. Membership has allegedly swelled to 5 million. It’s been reaching out to women and minorities. And as part of its mission to promote gun safety and familiarity with firearms, it provides opportunities for training and gun education.

As it happens, there is one group in American society that’s widely respected, has a reputation (however deserved) for competence with guns and isn’t at all gun-shy. That group is police. So it’s unsurprising that the NRA’s been partnering up with cops for decades. And since NRA membership skews conservative, it works out pretty well for the most part.

A few NRA members did complain when the organization remained silent after the Castile killing. And committed 2A advocacy groups like the Second Amendment Foundation were swift to condemn it. But all in all, it’s not surprising that the NRA chose not to say anything. If the alternative was pissing off its partners in law enforcement or highlighting the uncomfortable truth that if an agent of the state feels upset by a citizen with a gun, it’s a feature, not a bug, staying silent was the best worst option.

Which makes it a good gun organization. Not so much gun rights.

*A term that includes everything from a traffic stop to an arrest to a killing.

11 Comments on this post.

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  • Richard C.
    12 July 2016 at 11:08 am - Reply

    The WaPo article was updated to include the NRA statement made on July 8th:

    “As the nation’s largest and oldest civil rights organization, the NRA proudly supports the right of law-abiding Americans to carry firearms for defense of themselves and others regardless of race, religion or sexual orientation.

    The reports from Minnesota are troubling and must be thoroughly investigated. In the meantime, it is important for the NRA not to comment while the investigation is ongoing.

    Rest assured, the NRA will have more to say once all the facts are known.”

    You can certainly criticize this statement for being vague, etc., but from what you’ve written, a reader would conclude that the NRA has said nothing at all.

    • David Meyer Lindenberg
      12 July 2016 at 11:44 am - Reply

      Yeah, it’s a typical nonstatement: one part feel-good boilerplate, one part saying the NRA won’t be saying anything. Like you said, it’s in the WaPo article; I considered excerpting it for the post, but it’s so utterly devoid of content that I decided not to. Now it’s here and people can decide for themselves. To my knowledge, it’s been universally understood as a refusal to comment.

  • Moctavius
    12 July 2016 at 11:25 am - Reply

    “But as a practical matter, the NRA focuses on the more marketable reason for the Second Amendment (self-defense) and overlooks the other one (defense against a tyrannical government.)”

    I don’t think so. Remember NRA President Charlton Heston back in 2000? “So as we set out this year to defeat the divisive forces that would take freedom away, I want to say those words again for everyone within the sound of my voice to hear and to heed, and especially for you, Mr. Gore: From my cold dead hands!” That’s a solidly anti-tyranny massage. Currently, their homepage features the We Don’t Need You Campaign. An excerpt: “This nation is run by elites—media figures, Hollywood celebrities and politicians—who decide on where the country is headed by making deals in back rooms without consulting the voting public. It’s time for ordinary Americans to reclaim our future, to stand up and take our country back. We are the NRA, and we are Freedom’s Safest Place.”

    • David Meyer Lindenberg
      12 July 2016 at 11:40 am - Reply

      Nah. that’s grandstanding. These days, the NRA’s pretty good at bombast when politicians threaten to take away people’s guns. It’s a lot less good at acknowledging the less PR-worthy reason for the right to bear them. Self-defense is a huge part of its message. Protecting against the state? Not so much.

      • Moctavius
        12 July 2016 at 12:06 pm - Reply

        Especially when said bombast has the desired effect of driving up gun sales? Like you said, the difference between a gun organization and a gun rights organization.

  • Mike
    12 July 2016 at 2:32 pm - Reply

    “As it happens, there is one group in American society that’s widely respected, has a reputation (however deserved) for competence with guns and isn’t at all gun-shy. That group is police. So it’s unsurprising that the NRA’s been partnering up with cops for decades.”

    No doubt true, but the NRA also advocates against some issues supported by police, most prominently armor piercing bullet bans. I’m not sure what this means for your thesis, but I thought I’d put it out there.

  • Richard G. Kopf
    12 July 2016 at 8:13 pm - Reply

    Dear David,

    Young Grasshopper, your post, as well as your replies to comments, show without any doubt that you have learned from the Master, and I don’t mean your distinguished father!

    All the best.

    Rich Kopf

  • Eva
    12 July 2016 at 8:38 pm - Reply

    The impression I get from the NRA is their corporate affiliates probably also have a significant say in how they present themselves to the general public.

    Follow the money would probably be the easier path to finding out why apparently a (significant?)portion of this organization’s members made the decision to apparently to remain silent on this issue.

    For the organizations (such as 2nd Amendment Foundation) and people who actually did voice concern within the NRA perhaps a coalition of interested organizations and people could pay tribute to those people publicly would be in the best interests of all concerned. It would be good to show the NRA a better path than silence.

  • Fault Lines Friday Fail
    15 July 2016 at 10:12 pm - Reply

    […] NRA was too busy courting cops to condemn the death of Philando […]

  • Fault Lines Friday Fail
    15 July 2016 at 10:12 pm - Reply

    […] NRA was too busy courting cops to condemn the death of Philando […]

  • What Happened To The ACLU?
    23 August 2016 at 10:08 am - Reply

    […] was then. But these are strange times. The NRA is now more of a gun than gun rights organization, a group that says nothing when a police officer executes a man for exercising his Second Amendment […]