As the unprecedented sit-in in the House of Representatives unfolded on Wednesday, there were tremors of a world about to shift, in ways that it was impossible to imagine. When Civil Rights legend John Lewis initiated the sit-in, he called attention not just to the horrific levels of American gun violence, but also to the dysfunction, intransigence and inaction which had become normalized. Law-making had become so broken, he essentially argued, that simply getting government to work again now required breaking the law. But if that were so, was there any guarantee of where it would lead, especially given such a cynical and skilled opposition in power? That is what worried me as I watched the drama unfold.
“Those who work on bipartisan solutions are pushed aside. Those who pursue commonsense improvement are beaten down. Reason is criticized. Obstruction is praised,” Lewis said. “We were elected to lead, Mr. Speaker. We must be headlights and not taillights. We cannot continue to stick our heads in the sand and ignore the reality of mass gun violence in our nation.... The time for silence and patience is long gone.... Give us a vote! Let us vote! We came here to do our job! We came here to work!”
All of that was an eminently reasonable, if impassioned indictment of the status quo, and a plea for restoring functional democratic government. Lewis then turned distinctively in the direction of his activist roots. “Sometimes you have to do something out of the ordinary. Sometimes you have to make a way out of no way,” he said. “We have been too quiet for too long. There comes a time when you have to say something, we have to make a little noise, when you have to move your feet. This is the time. Now is the time to get in the way.”
It was particularly inspiring for someone like me, who grew up with John Lewis as one of my teenage heroes. But I knew all too well how decades of work had prepared the ground before he emerged as a young leader of SNCC, creating the preconditions in which a spontaneous freedom struggle could flourish, and I knew that no such extensive preparation had been done in this case. And that was a cause for profound concern.
The next day, after the sit-in was over, Minority Leader Nancy Pelosi gave a hopeful gloss on what had happened. “When Republicans turned off the microphones, we raised our voices. They turned off the cameras, we turned to Periscope,” she said. “They tried to shut down the discussion, and what resulted was a discussion heard round the world,” and that sent a chill down my spine, reminding me powerfully of the Arab Spring. But then, I could not help but think of how all that hope had been crushed, even as Pelosi continued, “All this trouble just because Republicans refused to give us a vote on common sense gun violence legislation, overwhelmingly supported by the American people. In the case of one bill, 85%, the other 90% of the American people.”
The figures Pelosi cited were sound. The reality is blindingly clear: Republicans may control both houses of Congress, but they're far out of touch with the majority of Americans—even with a majority of their own voters. Yet, there's nothing new in this. What is new is the willingness to fight back.
Watching the sit-in unfold, I was both inspired and concerned about what the GOP might do in the future, taking this as precedent. Billmon—owner of the legendary Whiskey Bar blog—laid out an argument about the dangers involved on Twitter the morning after, questioning use of a high moral claim without thinking through where it might lead and how the logic might differ from that involved in 1960s sit-ins. Specifically, he pointed out, “Consciously imitating civil rights movement stakes an extremely high moral claim.” Their sit-ins violated local segregation and trespassing laws, based on high law—the 14th Amendment, Supreme Court rulings, even “natural law.” Activists willingly broke lower laws, and accepted the price for it, because a higher law, a compelling moral principle was at stake. But how does that measure up to this specific example?
Not well, Billmon thinks: “It attacks—directly—legislative principle that majority has right to rule,” by demanding “votes on background checks & misnamed 'no fly no buy'” but, he asks, “What higher law justifies that action?” And he points out, “The Constitution (2nd Amendment this time, not 14th) & related SCOTUS rulings are not on protesters side this time,” nor are they “claiming any civil right that is denied to them or to the people they represent by color of law (no pun intended).” In fact, he points out, “if u take 'no fly no buy' at face value, they're staking high moral claim for bill that denies a right based on government fiat.”
But none of this diminishes the underlying moral argument for a vote on doing something to protect people's lives, I would claim. Rather, it underscores how ill-prepared the groundwork is for making that argument in a universally compelling manner, or for illuminating exactly what stands in the way—and why. The Constitution and Supreme Court rulings aren't on the Democratic protesters' side because conservatives/Republicans have spent the last half century prioritizing an increasingly coordinated political attack to take over the courts and rewrite the Constitution—a long-game strategy of constitutional hardball—while liberals and Democrats have usually only fought disjointed battles in response. The Second Amendment's meaning has been completely reinvented as one small, but significant part of that attack.
This is almost exactly the opposite of what happened with American law in decades from the 1930s to the 1960s with respect to civil rights, though the precise mechanisms of how the changes took place were dissimilar. A small band of civil rights advocates—most notably Thurgood Marshall—built a solid, intellectually sound edifice of law to justify recovering the lost promise of the Civil War Amendments. In sharp contrast, conservatives have waged a sweeping war to take over the judiciary grounded on a variety of myths, key among them the notion that “judicial activism” is only practiced by liberals. Nothing could be further from the truth, as the wholesale reinvention of the Second Amendment so richly proves. The conservatives' creation of an individual “right to bear arms” in the 2008 Heller decision, with no connection to a well-regulated militia, has no traditional legal foundation worth speaking of; it is the result of a sustained propaganda campaign by the NRA, as explained in a 2014 Politico article by Michael Waldman, author of The Second Amendment: A Biography. In 1990, conservative former Chief Justice Warren Burger described the notion of an individual right as “A fraud on the American public.” Waldman noted:
There is not a single word about an individual’s right to a gun for self-defense or recreation in Madison’s notes from the Constitutional Convention. Nor was it mentioned, with a few scattered exceptions, in the records of the ratification debates in the states. Nor did the U.S. House of Representatives discuss the topic as it marked up the Bill of Rights. In fact, the original version passed by the House included a conscientious objector provision....
Though state militias eventually dissolved, for two centuries we had guns (plenty!) and we had gun laws in towns and states, governing everything from where gunpowder could be stored to who could carry a weapon—and courts overwhelmingly upheld these restrictions. Gun rights and gun control were seen as going hand in hand. Four times between 1876 and 1939, the U.S. Supreme Court declined to rule that the Second Amendment protected individual gun ownership outside the context of a militia.
Furthermore, when Antonin Scalia co-wrote a book, Reading Law, trying to defend his judicial approach in Heller, another conservative legal giant, Appeals Court Judge Richard Posner, wrote a devastating attack, titled, tellingly, “The Incoherence of Antonin Scalia.” In it, he wrote:
[T]he book’s defense of the Heller decision fails to mention that most professional historians reject the historical analysis in Scalia’s opinion. Reading Law quotes approvingly Joseph Story’s analysis of preambles—“the preamble of a statute is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute”—but fails to apply the analysis to the preamble of the Second Amendment.
The false arguments on which today's “gun rights” depend are but one strand within the broader conservative assault on our judiciary—an assault that's shifted the entire Supreme Court farther to the right than ever before. But the judiciary is just one branch of our government. Conservatives have spent decades waging a war to control all three, and the House sit-in is about all of them, in different ways.
In his initial tweets, Billmon brought up the “legislative principle that majority has right to rule.” He later pointed out that Democrats had run the House on similar assumptions. But there was a difference. And indeed, his own late 2012 analysis of how the House had come to the brink of collapse highlighted both continuities and differences between Democratic and Republican House governance over time. It drew, in part, from political scientist Barbara Sinclair's 2006 book, Party Wars: Polarization and the Politics of National Policy Making. “Her book helped me understand that the breakdown of the House is as much an internal institutional failure as a product of external polarization – although obviously the two are related,” he wrote, going on to say:
The post-Watergate reforms greatly strengthened the partisan majority and diminished the minority....
But while the Democrats generally didn’t run their system along strict ideological lines (the party was too diverse at the time for that), the Republicans who overthrew them in 1994 intended to do exactly that.
Even more telling was the role of the Hastert Rule. In one section, "Lenin and the Hastert Rule," Billmon explains how the Hastert Rule mirrors Lenin's parliamentary doctrine, "a bit of Orwellian jargon called 'democratic centralism,'" that was "extremely heavy on the centralism, but light on the democratic – 100% democracy free, as a matter of fact. It required Communist Party members to obey all party decisions once made, without question or dissent." As Billmon explained, it allowed Lenin to leverage tight discipline over a minority faction into complete legislative control. And in the next section, he explained:
[L]ike the Lenin Rule, the Hastert Rule made it possible for a relatively small group of GOP loyalists to control a much larger legislative body. To wit: The GOP Steering Committee controlled a majority in the Republican Conference, which controlled the conference, which controlled the House.
The problem was, "Leninist party control requires Leninist party discipline," which was always difficult to maintain under stress—Billmon cites the example of the Medicare Part D debate. After 2010, with an organized Tea Party faction refusing to be disciplined, it was now the intransigent extreme minority that was positioned to block the majority of the majority, and even, at times “muster their own majority of the majority -- turning the Hastert Rule into a tool that can be used against the party leadership, not just by it.” Which explains the situation that eventually lead Speaker Boehner to resign.
Speaker Paul Ryan is now trying to pretend that he's an old-fashioned speaker, the kind who can actually get things done. He needs this desperately, if he's ever going to run for president, which is clearly what he has in mind. He needs this sit-in like he needs a hole in the head. But maybe if he can shut it down swiftly, totally, and absolutely, that can provide at least the appearance of being in control that he so desperately needs. This is Ryan's hope, and much of the D.C. establishment and the national media shares it to some extent. After all, Ryan is the “sane,” “responsible” “adult” alternative to Donald Trump.
But actually, Ryan is trapped—and the sit-in showed it. Pelosi is right—the measures that Ryan is blocking votes on are overwhelmingly popular. The majority that Ryan pretends to represent is cobbled together—"rigged," as Trump would call it. In 2012, Democrats won 1.4 million more House votes than Republicans, but ended up with 33 fewer seats, due to systemic gerrymandering, which I wrote about recently, but almost never draws more than fleeting attention. (Even when Republicans considered building on gerrymandered House seats to effectively steal a presidential election, it barely registered in the national media.) And that's just one facet of how our democracy has been perverted.
The sit-in backers' weakness is that they lack a well-developed, well-articulated explanation of how and why the whole system has been rigged—not just on behalf of the gun lobby. Indeed, some are tangled up in it themselves. If the House sit-in is to ultimately succeed, it must connect itself intimately with a sustained systemic critique that brings all the rigging of the system into focus, critiques it thoroughly, and subjects it to relentless attacks, until it eventually gives way. The Moral Mondays movement—which I also wrote about recently—provides an excellent model for this on the state-wide level. Before the House convenes again, let us hope the Lewis and his allies think long and hard, not just about the next steps they are about to take, but about how to start mapping out a much longer, years-long journey in the days ahead, and how to start raising signs to point the way.