First and Second Amendment Intertwined in Michigan Case

Calvin Congden posted the above picture on facebook during December of 2015. It was taken in front of the Christmas tree in his home. He is a military veteran who has had extensive firearms training. Notice the correct trigger finger placement. Notice the military medals and the American flag. He routinely volunteered as a Santa Clause for Hillsdale Foster Care Children. He had recently transferred from Michigan Department of Corrections to the Michigan Department of Health and Human Services.  His picture was used to denigrate him to fellow employees, his lawsuit contends. He was later "constructively terminated". From freep.com:

DETROIT — A man who says his career suffered after he posted a photo of himself wearing a Santa Claus costume and holding a semi-automatic rifle has cleared a key hurdle in a lawsuit against the state of Michigan.

Calvin Congden's lawsuit can proceed on his First Amendment claim and other arguments. Federal Judge Mark Goldsmith released a decision Tuesday.

One of the defendants in Calvin Congden's lawsuit is a manager in Michigan Health and Human Services, Allison Zinn. The lawsuit contends that Zinn discriminated against Congden after she viewed his facebook picture. She is said to have told Congden's co-workers to beware of him because he was a veteran, owned firearms, and "looked crazy".  From the lawsuit: 

24. After learning of Defendant Zinn’s statements, on January 10, 2016 Plaintiff contacted his State Representative and informed her of the potential discrimination against him as a State employee.

25. The next day, January 11, 2016, Plaintiff met with Defendant HUDSON. Plaintiff told Defendant HUDSON about Defendant ZINN’s comments. Plaintiff strongly opposed Defendant ZINN’s discriminatory behavior and informed Defendant HUDSON that he was a disabled veteran.

26. Later that same day, Plaintiff also met with Defendant LYONS in her office. Plaintiff again opposed Defendant ZINN’s comments.

In spite of the timely complaints to his management, Congden was subject to a series of disciplinary actions, stating his performance was "unsatisfactory" and that he would be terminated.

It is hard to know precisely the details of the he-said/she-said issues in the case. The part that strikes me as interesting is the intertwining of First and Second Amendment issues.

The First and Second Amendment have been intertwined precisely because those who want a disarmed public seek to de-legitimize the idea of being armed. If there are legitimate reasons to be armed, the Second Amendment has legitimate purposes to exist. Pictures of armed people are a strong defense of the Second Amendment. They are strong, protected, political speech. They make the point: I am armed, I am here, and I am not going away.

Congden states that he was and is a strong proponent of the Second Amendment. Using a picture of a person who is legitimately holding a Constitutionally protected item, in his own home, to remove him from a public position, is a clear violation of First Amendment rights in order to attack Second Amendment rights.

At least one judge, Mark Goldsmith, in the United States District Court in Michigan, understands this to be true. It is a reason the lawsuit has been allowed to go forward. Other issues in the lawsuit include protections under the Americans with Disabilities Act, and other statutes.

Even a writer for the NYTs has recognized the symbolic potency of carrying arms as protected, political speech. From the NYTs blog:

The paradoxical upshot: if you and I get into a heated dispute at the local watering hole, and I say something ambiguous about how you’d best be quiet while casually pulling back my jacket to reveal that I’m packing heat, there’s a solid chance I’ve just committed felony brandishing — but if I stand outside an event featuring the president of the United States with a loaded handgun and a sign invoking Thomas Jefferson’s injunction that the “the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants,” I’m in the clear.

The population cannot be effectively disarmed without destroying the First Amendment. Guns are too easily made, if information on how to make them is allowed to be freely distributed under First Amendment rights. That right has been under attack by the U.S. government. The case may be going to the Supreme Court.

Guns are too popular and too useful to be demonized effectively, if people are allowed to show their support for being armed,  to speak freely, to publish their views and argue the merits of their case.

It is not just the Second Amendment that has protected the right to keep and bear arms in the United States. It is the First Amendment as well.

Using government power to discriminate against an employee because he supports the Second Amendment is an abuse of power. Congden's lawsuit may set a precedent.

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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