Peaceful protest is a constitutional right that must not be squelched

Events now hap­pen­ing all across the coun­try should be a wake-up call to the American pub­lic.  Protests are erupt­ing in numer­ous cities, towns and vil­lages, many of which had nev­er seen pub­lic protests of any kind before.

Most notice has been giv­en to the protests in Los Angeles, which appar­ent­ly start­ed out peace­ful­ly and erupt­ed into vio­lent con­fronta­tions, result­ing in a sel­dom-uti­lized nation­al­iza­tion of the state mili­tia to aid in con­trol­ling the protests.

This nation­al­iza­tion took place despite a require­ment that a governor’s request ini­ti­ates such action.  In fact, Governor Newsom has for­mal­ly request­ed that the deploy­ment of the National Guard be rescind­ed, with­out result.  Even the may­or and local law enforce­ment have deter­mined that the protests can be con­tained by local law enforce­ment despite some vio­lence and prop­er­ty damage.

The last time that a President deployed National Guard troops with­out a clear request from a state’s gov­er­nor was in 1965.  And that was a case of pro­tect­ing peace­ful marchers rather than property.

President Trump’s exec­u­tive order also autho­rizes deploy­ment of National Guard troops “at loca­tions where protests against ICE func­tions are occur­ring or are like­ly to occur.”  The Brennan Center for Justice notes that “No pres­i­dent has ever fed­er­al­ized the National Guard for pur­pos­es of respond­ing to poten­tial future unrest any­where in the coun­try.” [empha­sis added]

A bill is being pro­posed in Congress to clar­i­fy exact­ly what an insur­rec­tion is since the President has used the term so freely in describ­ing these protests. 

Notice has also been made of the dis­crep­an­cy of the President’s quick mobi­liza­tion of the Guard in these recent instances of (report­ed­ly) peace­ful protests when he refused to make any sim­i­lar move—even at the behest of sequestered Senators—in 2021 when armed mobs were attack­ing the Capitol, threat­en­ing to lynch the Vice-President, destroy­ing pub­lic prop­er­ty, defil­ing the seat of gov­ern­ment and injur­ing numer­ous police officers.

Here in Kentucky, Ky Resist has host­ed protests and assem­blies across the width and breadth of the state, appar­ent­ly with no vio­lence, no prop­er­ty loss, and very lit­tle inter­dic­tion of local law enforcement.

Make no mis­take, any vio­lence con­nect­ed with these protests is unac­cept­able and must be dealt with accord­ing­ly.  Nor can pri­vate or pub­lic prop­er­ty dam­age be con­doned.  On Saturday, June 14^th, it was esti­mat­ed that up to 13 mil­lion peo­ple protest­ed cur­rent poli­cies of the Trump admin­is­tra­tion, includ­ing whole­sale raids that result­ed in round­ing up indi­vid­u­als who were legal­ly here.  Even the President has called for the raids to be more focused because of the dele­te­ri­ous effect they are hav­ing on farm­ing and the hos­pi­tal­i­ty industry.

As I watched news cov­er­age of so many of the nation­wide protests, it appeared that the vast major­i­ty of them were indeed peace­ful, and I could not help but think back to the his­to­ry of Ghandi, who led a nation in peace­ful protests that even­tu­al­ly removed the yoke of impe­ri­al­ism over an entire coun­try. Similarly, the protests led by Martin Luther King, Jr. remained peace­ful, even when local law enforce­ment ran amok against them with batons, guard dogs, high-pres­sure water hoses, and incar­cer­a­tion.  Hopefully the lessons of past peace­ful protests will prevail.

But per­haps the most uncom­fort­able cir­cum­stance of these protests, at least for me, is the unnec­es­sary mobi­liza­tion of mil­i­tary forces.  I can eas­i­ly recall the unfor­tu­nate use of National Guard troops at Kent State University in 1970 when unarmed stu­dents were shot down, with four killed and nine wound­ed by troops inad­e­quate­ly trained in civil­ian crowd control.

I also think back to my time in the Marine Corps and won­der how I would react to being called up to act as a police force against civil­ians.  Regretfully, I have to admit that I would most like­ly have respond­ed to orders, regard­less of what they were, and that is what is like­ly to hap­pen now.  I sim­ply can­not con­ceive of myself ques­tion­ing an order giv­en to me by a supe­ri­or dur­ing those days.

Military per­son­nel are ingrained with the need to fol­low orders—all law­ful orders.  Failure to fol­low those orders can result in quick and severe pun­ish­ment, and the low­est ech­e­lons of mil­i­tary per­son­nel are nev­er giv­en any guid­ance on what con­sti­tutes a “law­ful” order, nor is he or she pre­pared to resist an order when giv­en by a supe­ri­or, no mat­ter at what lev­el.  Even the most senior offi­cers real­ize that the “Commander-in-Chief” of the mil­i­tary is the President so any order ema­nat­ing from his office is usu­al­ly assumed to be legal.

All mil­i­tary per­son­nel take an oath to “defend the United States against all ene­mies, both for­eign and domes­tic,” but peace­ful pro­test­ers, even in the midst of acts of vio­lence, are not “domes­tic enemies.”

They are peo­ple exer­cis­ing their First Amendment right to “peace­ably assem­ble” and while those amongst them who com­mit acts of vio­lence (pos­si­bly even insert­ed provo­ca­teurs) must be removed and dealt with accord­ing to law, the rights of all oth­ers must not be abridged under the guise of main­tain­ing law and order or the “threat” of violence.

We are wit­ness­ing the abro­ga­tion of numer­ous laws and court orders now, not by peo­ple protest­ing the actions of gov­ern­ment, but by that gov­ern­ment itself and it is only by the con­tin­u­ance of protests that the true law­less­ness can be revealed, and hope­ful­ly ended.