As gunmen mass in Michigan State Capitol - Is it Sedition?

Riflemen on the balcony of the Michigan legislature as it is in session

Is it Sedition?

We watched with alarm in April as armed men – many with semi-automatic military-style weapons – lawfully entered the historic State Capitol in Lansing, Michigan.  Some riflemen actually entered the legislative chamber while it met.  When armed hundreds marched on Richmond, Virginia, once the capital of the Confederate States of America rebellion, Donald Trump tweeted LIBERATE Michigan and LIBERATE Virginia. 

If we saw such behaviour in other countries we would see it as the crumbling of civic order.  But here, sanctioned by the President, it receded quickly from view.  Now we have learned that on May 13 the Michigan legislature canceled a session for fear of return of armed militia members.  On May 11 the State’s Attorney General Dana Nessel  opined that the Michigan State Capitol Commission has the right to bar possession of firearms on the grounds and in the buildings under its control.  

Though one Republican member of the Capitol Commission suggested he may support a measure, no action has been taken by the Commission or the GOP- led legislature.

In 1967 thirty armed Black Panthers  in a theatrical and provocative display carried rifles to the steps of the Capitol in Sacramento.  The legislature promptly repealed the measure allowing people to carry loaded weapons in public.  The Panthers were relentlessly tracked by police across the country.  Remarkably the screaming armed crowd in Michigan was not driven from the State House.  We cannot but surmise that it is evidence of  deeply embedded racist expectations that armed white gunmen/women can parade without being met by determined police or legislative action.   

We are alarmed.  The culture of mistrust of government itself has yielded a legal structure that permits what would be recognized as sedition elsewhere is routine here.  We confront a Supreme Court that more than two centuries after the founding decided that an individual right to be armed is embedded in the Constitution of the United States.  What room, then is left for law?  One difficulty is the narrow conception of federal power - the view that there is no general national police power.  The Supreme Court in McDonald v. Chicago declared that the Constitution compels the states to recognize the personal right to possess lethal weapons.   We must ask not what is ideal - but what will be upheld by a Supreme Court which has itself contributed substantially to the problem.  

Yet the Court has declared there remains power to regulate the possession of arms.  The First Amendment is said to permit the regulation of the time, place and manner of speech.  The Second Amendment right to bear arms - even in public - is surely subject to similar limitation.  There are many possibilities - such as a one mile gun-free zone around legislative chambers, public schools, and government offices.  The United States Supreme Court - which held drug free zones around schools to be beyond federal power, and barred compulsion of local police chiefs to enforce the Brady Handgun Control Act - is an obstacle not an ally.

The concept of state sovereignty - despite the oft lamentable history of failure to act against racist violence - nonetheless leaves room now for states to take effective steps to assure the general welfare.  As we see civility disintegrate, and order threatened during a time of crisis we hope others will join us and call upon state governments to act boldly to protect the public.

- George Conk

May 22, 2020