Sep
22

Troy Davis, Thomas Hobbes and the Second Amendment

Troy Davis is dead. Joan-MacPhail-Harris is happy. And the American criminal justice system is sick. Who do we think we are kidding when we call ourselves the land of the free?

Let me put my cards out on the table straightaway. I am with Thomas Hobbes when it comes to the death penalty. When the state seeks to kill, there is a right to resist, even to revolt. Even Hobbes, whose seventeenth century work Leviathan is still read as a classic statement of absolute state power, recognized that the state’s power has limits. When it seeks to kill its citizens, all bets are off: the hunted can strike back.

I recalled Hobbes as I followed the last tortured hours of Troy Davis’ life. He lay strapped to a gurney in Georgia, his executioners killing time rather than Mr. Davis, as the United States Supreme Court mulled once again whether it is lawful for a state to kill its citizens. Sadly, and to the disgust of virtually the entire civilized world, the Court gave Georgia the green light to kill. Davis was pumped full of poison in the presence of spectators.

I have come to abhor the presence of handguns on our streets. Guns make it too easy for angry kids to kill. What we resolved with firsts when I was a child now too often results in homicide: the life of the victim ended, that of the killer transformed into that of a virtual slave, held for decades in prisons for a rash and impulsive act. Guns are a scourge, transforming city streets into battlefields. They should be taken off the streets.

But I am not prepared to live in a society in which only lawmen have guns. Giving the state a monopoly on lethal force will yield a false sense of security. We do kill the innocent here, and without remorse. Ask the highest Court in the land.

This past summer, I read a book with an arresting title, The Anti-American Manifest, by Ted Rall. I found myself agreeing with him time and again, especially when he pointed out that one reason European governing elites are more responsive to social welfare issues is because the people have from time-to-time risen to lop off the heads of those in power. Europe hasn’t been seduced by the sorcerer’s show tune about a City on a Hill or claims about the genius of founders long since dead. Historically, Europeans have spoken in the only language a sovereign truly understands: violence.

Does Europe avoid the death penalty because it knows a truth we are not prepared to admit? That the sovereign errs? That innocent men are killed for political purposes? That the state is not God’s moral agent on earth, but an imperfect artifice, a tool that is forever in danger of misuse? Sure, we mouth platitudes here about limits on state power. But the Tea Party isn’t exactly a revolutionary vanguard: it swallows the same necromantic swill Federal Society lawyer’s have been serving one another for the past two decades. The Tea Party is but a dumbed down version of a lawyer’s originalism.

I read about the killing of Troy Davis last night and I found myself wishing I owned more firearms, not fewer. When the state kills, all bets are off. Look to kill me and expect a bullet or more in return. It is and always will be that simple. We say that the common law supports a presumption in favor of life. The state seeks to prevent those who want to end their own lives from killing themselves. Yet at the same time we seek to kill those convicted of the worst crimes as though the death penalty deters anything.

The death penalty is a sick and a cruel joke.

The widow of the man Troy Smith was convicted of killing attended his execution, bringing her children. The victim’s family is said to have smiled when Davis died. She told the press: “We are not killing Troy Davis because we want to.”

That is transparent nonsense. We kill because we want to. Giving the state the power to kill ought to terrify. But it feels so good to hate the other we cannot resist. So we kill, and we pretend that it is justice, even when, as in the case of Troy Davis, we kill a man on the flimsiest of evidence.

The execution of Troy Davis may well result in my taking a trip to a gun shop. I don’t want lawmen holding a monopoly on lethal force. I don’t trust its agents to care more for justice than finality or judicial efficiency. The killing of Troy Davis was obscene. Hobbes would have granted the man moral license to strike back to defend himself. So would have I.

Reprinted courtesy of the Connecticut Law Tribune.

Comments (1)
Posted on September 23, 2011 at 6:09 pm by 2trubeenscrewd
Troy Davis
the sovereign errs? we know that for fact, possibly some actual error, definitely some deliberate mistatement of fact ...and that's enough for doubt in most cases.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
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