Co-authored by Kelly Sampson
"The guys with the guns make the rules." - Wayne LaPierre
"The ballot is stronger than the bullet." - Abraham Lincoln
Much has been written about Election 2016's unprecedented aspects, but one menacing storyline that has emerged is the tension between "gun rights" and voting rights. Voting officials reportedly fear a clash between gun-wielding poll-watchers and voters on November 8th, or that some voters could actually stay away from the polls because of that danger. Although the right to vote is sacrosanct, the potential interplay between voting rights and gun rights will test the country's commitment to fostering democracy.
Take Ohio, which is an open-carry state, for example. The Boston Globe quoted one Ohioan describing his poll-watching operandi: "'I'll look for... well, it's called racial profiling. Mexicans. Syrians. People who can't speak American, I'm going to go right up behind them. I'll do everything legally. I want to see if they are accountable. I'm not going to do anything illegal. I'm going to make them a little bit nervous." While the man did not specify how, exactly, he intended to make fellow citizens "a little bit nervous," Ohio law gives him one ominous option.
Ohio's open-carry law allows citizens to openly carry loaded firearms in public, with certain exceptions. Some of these exceptions apply to locations, such as courthouses and schools, which often double as polling places. But there is no exception for polling places themselves, which means it's possible that someone could openly carry a firearm to a voting site. Then there's the enforcement problem: over-worked poll workers focused on their primary duty of helping people vote have little time, or training, to deal with gun-wielding intruders. If voters get "nervous" when confronted by someone holding strongly expressed opposing views -- and a gun -- it is unclear what redress, if any, voters have.
Militias and anti-government groups have also vowed to make their presence noted on Election Day. There is a grave risk that they could influence the election through shows of force.
After all, gun rights advocates have long claimed that the Second Amendment provides some right to rebellion, to use guns for political ends. But does the Second Amendment effectively supersedes all other rights?
No. In reality, the Second Amendment is much narrower than rhetoric suggests. Even after the Supreme Court held for the first time that the Second Amendment provides some right to firearms in District of Columbia v. Heller, Justice Scalia noted that, "Like most rights, the right secured by the Second Amendment is not unlimited," and recognized "that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."
More broadly, as we explain in a forthcoming law review article, "The Right Not To Be Shot: Public Safety, Private Guns, and the Constellation of Constitutional Liberties", no Constitutional right can be allowed to run roughshod on public safety or other fundamental rights, and the Second Amendment, similarly, cannot infringe on other rights. The right to keep and bear arms certainly cannot be allowed to infringe on the right to vote. As President Lyndon B. Johnson once said, the "right to vote is the basic right without which all others are meaningless. It gives people, people as individuals, control over their own destinies." That's why federal law makes it unlawful for anyone to "intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose . . . ." 52 U.S.C.S. § 10101.
This election has generated extreme passions and tensions because people, on all sides of the debate, care so deeply the nation's future. That can be a good thing, especially once the vitriol dies down. But, on November 8th, it is critical that American democracy uphold its two-century-old tradition of choosing our leaders by the ballot, not the bullet.