Patches, Paint Cans, and How the Constitution Cannot Help You

On June 2 a federal judge will decide whether or not the 600-strong Mongols Motorcycle Club can continue to use their logo. Uncle Sam considers biker gangs to be criminal enterprises and wants to be able to go after them like they would any other. Patches are a big deal to clubs, and a win for the government would be a major blow to the Mongols. What’s more, a nasty precedent would be set. One the feds could use against other clubs in the future.

The Mongols are mounting a First Amendment defense, claiming a ruling against them would violate their right to free speech. They’re correct, of course, and in a world of absolute adherence to the Constitution the case would never go before a judge in the first place. But that’s not how the game is played. As we’ve seen time and time again, the nobility are more than willing to change the rules as they see fit.

If fact, in the realm of the government’s war on gangs, the tactic being employed against the Mongols isn’t even the most egregious, Constitutionally speaking. Take a look at what’s happening in Southeast Texas. Last week a Port Arthur teen—and alleged member of a street gang called Surenos 13—was sentenced to nearly a year in jail for violating something called a “gang injunction.” This is the first time the region has utilized this particular law enforcement tool and the teen is the first to be prosecuted under it.

Gang injunctions got their start in California in the 1980s. They were used to create so-called “safe zones” where gang members were forbidden from associating. The legal justification behind them is that gang activity constitutes a public nuisance and therefore violates the law. But these injunctions aren’t just about association. They can also prevent members from wearing certain colors or owning certain items or any number of other wholly arbitrary actions. Whatever law enforcement considers gang activity, essentially.

In the case of the Port Arthur teen, there was a grand total of 37 restrictions placed on him and eight other members of Surenos 13. Among them are bans on things such as staying out after 9:00 PM, possessing aerosol paint cans, and committing crimes. Yes, they actually made it illegal to commit crimes. The kid now in a cage was popped, in part, for the villainous offense of possessing a cell phone while operating a motor vehicle.

And therein lies the rub. Because it’s not illegal to have a phone in your pocket while driving down the road or to have a couple of cans of spray paint in your backpack or to do any of the other myriad activities these gang injunctions might happen to restrict. Well, crimes are illegal, I suppose. But that’s ridiculous on its face. Point is, under the Constitution we as free individuals are supposed to be left alone to do as we will, so long as we don’t harm others. Them’s the rules. Or so we were brought up to believe.

Actually, them’s more than the rules. The Constitution is supposed to tell us who we are. We’re supposed to tear up and grow warm with pride upon reading the words. We’re a great people, after all, born of a great yearning for freedom, and the words are the proof of it. And so on and so forth. Never mind the fact that no one alive today signed the thing and so the obligation to adhere to it doesn’t actually exist. If you choose to prescribe to the fabricated idea of what America is—and there are a great many of us who don’t—then everything, by necessity, hinges upon the Constitution.

So what does it say about us as a country when our political class continuously reinterprets its own founding document to suit the needs of the moment? More importantly, what does it say about us as a people who stand idly by as it happens? None of it…the wars of conquest abroad, the rising police state at home, the torture going on just about everywhere…technically, none of it is allowed to be happening. And yet here we find ourselves, caught between a Constitution-free zone and a free speech cage.

The First Amendment says we have the right to peacefully assemble. The Privileges and Immunities Clause of Article IV says we have the right to travel. They might as well tell us to go piss up a rope. Ask those nine members of Surenos 13 about it. Ask them about safe zones and curfews and restrictions on association. Or go ask the Mongols about patches and the meaning of symbols. While you’re at it, whip out the flag and see if you get any laughs. Because America as it stands today is a bad joke. And the Constitution is the punchline.

James Holbrooks is a professional writer and editor. You can find his work at HolbrooksWordsmithing.com where this article first appeared. Follow James on Twitter.