On the Second Amendment

"A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." So reads the Second Amendment to the United States Constitution. In the wake of the Arizona massacre, and the debate about "violent rhetoric" that really ought to be focusing on the right wing's idea of using "Second Amendment remedies" in the near future, I think this is a good time to discuss the history and philosophy of the Amendment itself. As I see it, there are two fundamental interpretations of the Second Amendment, one in which it protects a personal right to self-defense using "arms" and one in which it protects citizen militias with an eye toward overthrowing a tyrannical government. The problem with the former interpretation is that it is incorrect, while the problem with the latter is that it is, while correct, also deeply wrong.
In District of Columbia v. Heller (2008), the Supreme Court held that the Second Amendment is not, in fact, about militias, but rather about individual rights to own handguns and use them for "traditionally lawful purposes," such as self-defense and shooting innocent animals who never did you any harm. Looking at the Wikipedia article on the ratification debates (and yes, I know it's Wikipedia; if I were writing a scholarly work I'd check their sources to make sure it checks, but I'm pretty certain that it does), this strikes me as plainly wrong. The point is that the Constitution took the major step of giving the central government power over the military. The Anti-Federalists were gravely worried that the central government, which as yet didn't exist and which many feared would become tyrannical, would disarm state militias and reserve to itself all of the military might in the country, so that it would be impossible for the states to throw it off. That is the Second Amendment, in philosophy at least. Maybe that does imply some sort of individual right to possess guns as being necessary to keeping the populace armed, but that certainly wasn't the point of putting it in the Bill of Rights. Similarly, the point of the free speech provisions of the First Amendment is political speech, a political right, but it includes just as thoroughly apolitical speech, a non-political right.

Wait, did I just agree with people like Sharron Angle that the Second Amendment is about the right to overthrow a tyrannical central government? Well, yeah. But I also don't like the Second Amendment. Specifically, I think the idea of having the people overthrow the central United States government is both outdated and illegitimate from a philosophical standpoint and, quite frankly, naive. In 1791, when this Amendment was ratified, the world had not yet seen two-hundred years of rule by a legitimate democratic government. It had not yet seen one political party ousting another peaceably in an election. It had only seen rulers who ruled by force, and whose power was checked by force alone. The idea that the party in power would leave office when it lost an election, and that the government might even include an organ that would tell the government itself when it had crossed the line and overstepped its legitimate bounds, and that the government would listen to it, compelled by nothing except the general consensus of legitimacy and authority attached to that organ, was something akin to unthinkable. But that is now the norm in countries governing much of the world, and has been for decades or centuries.

And I continue to hold that in a functioning democracy, indeed in a nation where there is any hope of genuine redress of wrongs through the electoral processes, there is no right of violent rebellion. Part of this is for purely moral reasons: if you can have a hope of accomplishing an end by non-violent means, violence is a bad thing. But part of it is about the political philosophy: if you have a genuine democracy, that means the government is supported by the majority of the people. Only those who are losing at the game of democracy would have an incentive to overthrow the government, and the government which they would establish, using force, would presumably be one that they would like. Which would be one that the majority of the country would not like. Which would be an undemocratic government. If you are in a democracy, you cannot possibly set up a new democracy by overthrowing the existing government using violence.

Is it possible that the United States government could become tyrannical? Well, yeah, but we're a long way from that. Show me the political party refusing to leave office after losing an election, or show me the government passing unconstitutional laws, seeing them struck down by the Court, and refusing to heed the Court's word, and I'll begin to listen to the idea that our government has become illegitimate. And hey, I myself breathed a sigh of relief when they actually did let Barack Obama take the oath of office; I know the feeling of being worried that maybe the people in power this time won't actually let themselves go out of power. Now, I may say that we're a long way from tyranny right now, but even if we are, a Second Amendment advocate might say that allowing the people to be unarmed against the threat of tyranny until the tyranny becomes real is a recipe for disaster. You need the people armed against tyranny before the tyrant comes along, because otherwise they have no power to resist him (and let's be honest, it would be a him).

Well, okay. But here's where the second part of my argument comes in. What were the authors of this Amendment worried about in 1791? Well, they didn't want the central government to give itself a monopoly on force. (Note: all legitimate, that is to say democratic, governments have a monopoly on legitimate use of force; that's different.) But you'll note that the government did not actually have the power to obtain a monopoly on force. It is force when one person swings their fist in such a way that it connects with another's jaw. Last time I checked, it would be pretty difficult to prevent the common citizenry from possessing this force. That's an absurd point, you say; fists are of no use if the government has all the guns. Absolutely true, I say. And that is the point.

Because the guns that Second Amendment advocates insist are so essential to the security of a free state now are as mere fists before the might of our current government. Seriously, you think that a group of citizens with guns can overthrow the United States government? Have you seen our military? It kind of kicks ass. We don't talk of giving our citizens a right to own tanks. Or bazookas (I think). Or nuclear weapons. The government has all of these things. In particular, it has a whole frickin' lot of nukes. Enough to destroy the world many times over. You could not overthrow the United States government if all you had was an army holding guns. It would be simply insufficient. We have allowed our government to get its monopoly on force, in the sense of a monopoly on force that it orders of magnitude stronger than what the common people possess. The puny, paltry Second Amendment does nothing to protect the right it claims to protect, the right of the citizenry to overthrow the government. The best a group of rebels armed with guns could hope for in this country, I think, is a situation like that in Iraq: the central government would still be there, there would just be a climate of general violence and insurgency all around. You couldn't set up an alternative government and make any headway in having it actually rule: the current, tyrannical government could, uh, nuke you. Or just bomb the living daylights out of you with "ordinary" military weapons that are still pretty painful. You could make life in this country miserable, but you couldn't actually overthrow the government and set up a new one in its place, if it was dedicated to tyranny.

As it happens, there are some people who do object to the massive amount of force our government has acquired for itself. Those people are called liberals. When we call for defense cuts, it is the same conservatives who currently are more than twice as likely as the rest of us to favor violence against our government who object, loudly. Funny how this idea that we continue to have a right of violent rebellion against the United States government is pushed by the same people who insist that the United States of America is the Greatest Country Ever, and that our military is the Greatest Thing Ever, and that we can never for a moment think of weakening our obscenely large military force or deviate from perfect displays of patriotism for a moment.

As it happens, there are other ways in which one could hope to overthrow this government if it did become tyrannical, and none of them requires stockpiling force of any kind. A tax revolt. Mass strikes. Protests in the streets, designed to garner the sympathy of the international community. One of the points of non-violent resistance is that you are a whole lot more likely to get sympathy from outside observers using it than using violence; that is, indeed, why Nelson Mandela initially favored non-violent protests in South Africa, as tyrannical a government as there has ever been. These would all have some chance of actually doing damage to the central government, should it become tyrannical, or of convincing the rest of the world to intervene. A violent rebellion armed only with what amount to sticks would not.

In his dissent in DC v. Heller, Justice Stephen Breyer argued for a "balancing test" weighing the protections of the Second Amendment against the state's compelling interest in preventing violent crime. But as I believe I have just shown, the Second Amendment is at this point wholly incompetent to protect the power of the citizenry to overthrow the United States government. (As I pointed out in another post a while ago, I think, the Constitution cannot reasonably be expected to provide a right to rebel against it, or the government it establishes, because if it comes to the point where that is legitimate we can be pretty sure the Constitution is rather irrelevant and in any case, you're rebelling against it, do you really care if it gives you that right? All it can do is provide for the power to rebel against it.) Sticks and stones will never break our government. Until we are willing to arm our citizenry with tanks, missiles, and perhaps nukes, we will not have a citizenry capable of overthrowing its government by violent force. So if we continue to push and push and push on the Second Amendment, and grant broader and broader and broader rights to guns, without giving our citizens serious military equipment, we accomplish... nothing. Nothing, that is, in furtherance of the actual ends the Second Amendment claims to be furthering. What we do accomplish is to increase the violence, and the death, and the destruction; we accomplish the transformation of our country into a powder-keg.

Unfortunately, this piece of antiquated political philosophy, which is now both illegitimate for the foreseeable future and utterly useless in the crisis it claims to protect us for, is in our Constitution. As a matter of positive law, I doubt you could uphold an attempt to, say, destroy all firearms in the country. The ideal solution, from my point of view, is to repeal the bloody thing. But we all know that's never going to happen. But one nice thing would be if we stopped talking about this supposed right of rebellion. Yes, that's the point of the Amendment, but a lot of things in the original Constitution were kind of wrong, or have become outdated, and that just happens to be one of them.