Does the Constitution Say You Can Shoot Socialists?

It's gotta be in there somewhere


No. It does not.

In this 2018 profile, Montana state Rep. Rodney Garcia described himself as “a doer, not a weak follower.” But one thing he hasn’t done is read the Constitution, which does not in fact say that anyone “found guilty of being a socialist” must be either sent to prison or shot, as he claimed on January 31 (and again the next day, just to make clear it wasn’t a mistake).

The January 31 comment came at a state GOP gathering, following a speech by former Interior Secretary Ryan Zinke. According to the Gazette, Garcia was asking Zinke some sort of question when he said that he was concerned about socialists “entering our government” and that they were “everywhere” in Billings, before giving his opinion on constitutional law.

The next day, a reporter asked Garcia to “clarify” his remarks, and he did. “So actually in the Constitution of the United States, [if] they are found guilty of being a socialist member you either go to prison or are shot,” Garcia clarified.

“Garcia could not point to where in the Constitution it says socialists could be shot or jailed,” the Gazette reported.

I just scanned my copy, and I, too, cannot point to any provision that says socialists, or members of any other party affiliation or political viewpoint, could be convicted for that and then shot or jailed. The Constitution says Congress has the power to declare war, but doesn’t say on whom, so maybe that’s what he’s thinking of? It also mentions treason (as we’ve discussed before), but only to limit what “treason” can be and what punishment Congress can prescribe. I don’t really see anything else in here that might have given Garcia this idea.

There is also an amendment, I think the very first one, in fact, that says Congress cannot make any laws abridging freedom of speech, or assembly, or petition, and that might be a little tricky for anyone wanting to interpret the document to allow the hunting of socialists. But we don’t need to go that far to conclude that Garcia is wrong about what the Constitution actually says. It does not say that if you “are found guilty of being a socialist member, you either go to prison or are shot.”

What about the U.S. Code? The word “socialist” appears in 68 provisions, but none of them seem to make it okay to shoot anybody. Mostly they refer to treaties with some “Socialist Republic” that no longer exists. Garcia might be thinking of “Communist,” and that word appears in 88 provisions, some of which do refer to membership in the Communist Party. In fact, the Code says that “[w]hoever knowingly and willfully becomes or remains a member of the Communist Party” (as opposed to doing it by mistake, apparently) “shall be subject to … the Internal Security Act of 1950, as amended….” 50 U.S.C. § 843. Well, that sounds promising! Can we shoot somebody yet?

Sadly, no, because that part of the Internal Security Act was repealed in 1993, and was unconstitutional anyway. And even so, it only provided for a fine and imprisonment, not shooting (for that you need actual treason). But again, the Constitution is the problem, not the solution, for Garcia’s theory.

Still, he told the reporter he thought it would be “fair” to shoot or jail a socialist, evidently just for being one. “They’re enemies of the free state,” he told the Gazette. “What do we do with our enemies in war?” he continued. “In Vietnam, Afghanistan, all those. What did we do?” Bombed them, mostly, though there was some shooting too. There are some other major problems with his analogy, of course, but a big one seems to be that the socialists he’s talking about now are U.S. citizens.

In any event, it is almost certainly an exaggeration to say that socialists are “everywhere” in Billings, and in fact Garcia probably only knows about two. One is Amelia Marquez, his unsuccessful opponent in the 2018 election. She is a Democrat, but describes herself as a “democratic socialist” along the lines of Bernie Sanders. Garcia is also likely aghast that there is an actual member of the Democratic Socialists of America on the Billings city council. But according to that report, she is the only DSA member who holds a public office in Billings—or anywhere in Montana, for that matter—so the state is not exactly overrun with socialists, it seems fair to conclude.

To Garcia’s credit, he did not try to shoot either of those socialists, although I guess “credit” is not really the word I’m looking for. To its credit, the state GOP immediately distanced itself from his comments. “The Montana Republican Party wholeheartedly condemns the comment that was made,” the party’s executive director said, “and under no circumstance is violence against someone with opposing political views acceptable.” House leaders also wrote Garcia a letter saying he should resign, but he refused. Well, he said he would “if God asked me to,” but it appears that God has not yet done that.

Short of divine intervention, there doesn’t seem to be any way to force Garcia out, according to Greg Hertz, Speaker of the Montana House. The legislature isn’t currently in session, and calling a special session to sanction him would cost at least $50,000, Hertz said. He could be recalled, or might lose in the primary (he’s running for the state Senate this time). So, we shall see.

In the meantime, Garcia does not seem to have abandoned his legal theory, but he has backed off slightly from the shoot-a-socialist idea. Although he still thinks it’s legal, “more than likely [socialists] would never be shot because we just don’t do that in today’s society,” he said recently. “We’re supposed to be civilized.” And that is disappointing, but on the other hand, things are changing pretty fast around here.