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16 December 2012

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Vigilante

I see many ironies. (Two at least.)

Madison and his contemporary peers never imagined in their wildest nightmares that a U.S. president would usurp state militias (known today as state National Guard) and assign them to invading and occupying a state in Arabia which never threatened any or all of our United States.

Furthermore, when you write,

...that the possession of firearms by the citizens and the potential for resistance to tyranny implicit in that possession is necessary as part of the system of checks and balances that holds tyranny at bay.

By this test, the possession of firearms by citizens in Iraq currently, attests that country is safe from tyranny, and there is no further need for our occupation.

kao-hsien-chih

I've always thought that the business about militia was deliberately thrown in to muddy the meaning, to leave open possibilities of future compromise on a topic that they couldn't agree among themselves. Founding Fathers, after all, were themselves politicians. However radical the ideas behind the American Revolution might have been, the idea of an armed mass rising up against the constituted government (a la the Whiskey Rebellion, or Shays' Rebellion before the ratification) could not have been uniformly accepted among the Founders.

Regardless, the 2nd Amendment made it into the Bill of Rights for a reason. Many Americans sincerely believed (and the basic idea precedes the Constitution by centuries) that the citizenry has the fundamental right to oppose a despotic government, by force of arms if necessary. To pretend otherwise--and that gun rights are merely a right to engage in recreation--is to buy into the cult of all-powerful, all-righteous state...an utterly dangerous and un-American notion.

condfusedponderer
As one of the three authors of the Federalist Papers Madison is engaged in trying to persuade the states to ratify the present constitution. Without such assurances as this one, it is quite possible that the constitution might never have been ratified.
With that in mind, I wonder how many people have such a hard time to comprehend why militias like Hezbollah might want to retain their arms.
wcw

We tend to disagree here, but not in the traditional manner. I tend to look at Switzerland, then at Japan, then at Iraq (not the headlines here, but the gun laws), and then dismiss both of the traditional sides of this debate.

Weaponry isn't the issue.

Rick

America is too vast and varied a land, with too many divergent ways and needs of living, to have any one-size-fits-all legislation of firearms. Here, in rural Alaska, guns are a wise and useful tool.

For some years, I outfitted and guided eco-dogmushing tours into ANWR. All of our client groups, without fail, would ask, before embarking on their trip, if we had firearms to protect them. We assured them we did, although we never made a display of them. While unloading my sled after one trip, I took my compact 12 gauge M870 Remington shotgun from its sled bag scabbard, opened its folding stock to full length and stuck the butt stock in the snow, to get it out of the way. The cheechako clients were outraged. It was black, short and had a "military" style pistol grip. The most belligerent of the group, a fertility specialist from Boston, lectured me that, "You don't need an Uzi to shoot a bear or a moose!" He had no knowledge or skills for living, let alone staying alive in this place, but he knew, with certainty, what firearms/tools I should be allowed. We did not have a meeting of the minds.

I'm convinced that the anti-firearms fervor that afflicts some in America can, in part, be traced to the end of the draft, and the demise of the citizen-soldier ideal. Once, most men were trained in the use of firearms in military basic training. Today, most get their lessons in firearms use from "Lethal Weapon 4." Further, the conversion of the National Rifle Association into a right-wing, wholly owned subsidiary of the Republican Party, has tainted responsible gun owners of any political stripe as suspect.

With the arrival of Jim Webb and Jon Tester in the Senate, perhaps the time is coming for firearms to recede as issue in national politics.

Grimgrin

One line in the quoted passage caught my eye "And it is not certain, that with this aid alone they would not be able to shake off their yokes.". Madison seems to be suggesting an armed citizenry as a necessary but not sufficient guarantee against despotism.

The argument that guns are necessary to prevent a totalitarian government from coming to power has always struck me as being somewhat disingenuous. If preventing tyranny is your concern it seems like your energies would be better spent trying to improve the quality of civics education and journalism or campaigning for greater openness and transparency in government than in ensuring easy access to firearms. An educated, prosperous and engaged citizenry are going to be a far better bulwark against some future dictatorship than an armed mob.

Another issue I have with this particular line of reasoning is that people making it seem to assume that the collapse of democracy into dictatorship is either inevitable or in some extreme cases, has already occurred.

All that said, I don't have any strong objection to the private ownership of firearms. I have an objection to the unregulated private ownership of firearms, in the same way I have an objection to the unregulated manufacture and use of cars, the unregulated disposal of industrial waste or the unregulated handling and preparation of my food.

sbj

I have no difficulty acknowledging the absolute right for the citizenry to bear arms, and indeed I've always felt the most important big picture reason for this right was so that we might defend ourselves against the transgressions of our own government when and if it is controlled by people bent on accumulating unfettered power for themselves at the expense of our democracy and the constitution.

My question though, is not whether firearm ownership and possession is an absolute right for we citizens, but rather for which citizens is this right granted and who is delegated to make those decisions.

Small children, psychotics, drunk drivers and drug addicts, wife beaters, convicted felons? It would seem reasonable to suggest that even 'absolute rights' can have caveats.

Dave of Maryland

Dear Col. Lang,

Can you explain why we should not read "militia" as "police force"?

Can you explain where an armed police force fits in the Second Amendment?

Is the development of the modern police force in the 19th century the logical outgrowth of the 18th century militia of the Second Amendment?

Patrick Lang

Lesly

"Slave holders?" My God! Is that all you can think of?

Dave of Maryland

I think you know the difference. If not, then someone here will explain it to you. pl

Yohan

Gun ownership is only useful against obvious, sudden, and foreign tyranny. Guns have proven completely useless against the covert, creeping, and homegrown tyranny of today's America. We didn't see a rising of gun owners against the Patriot Act, we didn't see armed militias moving to oppose the illegal wiretapping of American citizens.

If gun ownership were actually worth a damn against the real-life tyranny of our present society(instead of against the cartoonish "Red Dawn" tyranny of NRA wet dreams) then we might have seen some sort of roll back of recent erosions of our liberty. Yet, we've seen nothing of the sort. All those gun-toting loons who opposed the federal government during the Clinton years have been completely AWOL during the last 8 years.

Civic education and vigilance are far more powerful in defending freedom than physical weapons. It is thus ironic that Madison's and Hamilton's victorious vision, by its very constitutional structure, stifles civic participation by seeking to mediate and dilute the force of popular will on government at almost every turn. Without a direct say in their own governance, it is no wonder the American people do not take individual or collective responsibility for their rights, but rather exist in a childlike state of passivity and dependence, despite their gleeful gun ownership. This consequence should not come as a surprise to us as it was clearly predicted by the anti-Federalist opponents of the Constitution even before ratification.

Rick

GrimGrin....

I wonder how free to terrorize his own people Robert Mugabe would be if the citizens of Zimbabwe were well armed.

Most militas, in the era of the founders, weren't issued firearms, but provided their own rifles and muskets. Powder and lead/ball was usually provided. In crisis, the militia was generally the bulk of the armed, male population.

William R. Cumming

One of many dynamics preserving the rights of the people as a collective and individually was the Bill of Rights, becoming the first 10 amendments to the Constitution and without which NO ratification by the number of states necessary. Interesting to reflect on this amending process and the relationship to underlying text of Constitution. Agree fully that the 2nd is part of the Check and Balance System so skillfully wrought by the founders. My question has always been exactly what was checked (I believe the impulses and emotions of humans) and balanced was the operative Branches and organizations of government. But I could be wrong. Ownership and possession of guns fits into this scheme nicely so it will be interesting to see how the SCOTUS handles its appeal of the DC government ban on citizen gun ownership. Looking for this revisit of earlier opinions to try and forge responsible guidance, but even I am not sure what that is in the long, long run or even the short run. Hope they are smarter than me.

David Habakkuk

Grimgrim,

"Another issue I have with this particular line of reasoning is that people making it seem to assume that the collapse of democracy into dictatorship is either inevitable or in some extreme cases, has already occurred."

It is not necessary to assume that the collapse of democracy into dictatorship is inevitable -- only that something of the kind has already occurred, and gives grounds for fearing it could occur again.

The concern that an egalitarian society would lack counterweights to state power, and so be vulnerable to tyranny, was a commonplace of the eighteenth century European traditions of thinking on which the Founders drew.

Explaining Montesquieu's political philosophy in his Main Currents of Sociological Thought, Raymond Aron writes:

'the goal of the political order is to insure the moderation of power by the balance of powers, by the equilibrium of people, nobility and king in the French or the English monarchy, or the equilibrium of the people and privileged, plebs and patriciate, in the Roman republic. These are different examples of the same fundamental conception of a heterogeneous and hierarchical society in which the moderation of political power requires the balance of powers.'

The point Aron was making was that the doctrine of the balance of powers in Montesquieu is not simply an argument about constitutional checks and balances, but about social heterogeneity. And this of course can come in many forms, of which a traditional aristocracy is only one.

If Aron, writing in the Sixties, was concerned to draw attention to this aspect of Montesqieu, it was because populist authoritarianism had not been a matter of a few 'extreme cases' in the world in which he had lived -- it had been the dominant pattern in inter-war Europe.

Patrick Lang

Lesly

OK. Your meaning escaped me. Try again. pl

Clifford Kiracofe

Debate on this issue was not limited to the late 18th century. The Founding Fathers, as close students of history and law, had earlier debates in mind.

The roots of the issue of "militias" and "standing armies" in the Anglo-American context reach back into the late 17th century (and earlier).

On the one side, those concerned about the abuse of power by the Crown/monarch argued for militias. Standing armies held by the Crown were seen as potential instruments of tyranny. Broadly speaking, with respect to the politics of the day, those in the "Country Party" (pro-Parliament) supported militias as against those in the "Court Party" (royalists) who favored standing armies.

For one example of late 17th century thought on on the matter from a Country Party perspective see Andrew Fletcher's (1653-1716) "A Discourse on Government With Relation to Militias" conveniently at
http://www.constitution.org/fletchr/fletchr.htm

On Fletcher, http://en.wikipedia.org/wiki/Andrew_Fletcher

As a Country Party man here in Virginia, I appreciate Col. Lang's point. By the way, the folks at Madison's Montpelier have done a really fine job in its restoration.http://www.montpelier.org/

jon

An armed populace is a last refuge against tyranny. However, the notion that large numbers of personal firearms are sufficient to preserve liberty is a fallacy.

As Grimgrin noted above, democracy and liberty are better (more fully and efficiently) preserved by an educated and engaged populace and electorate. The American Revolution became possible in large part because an affluent and educated mercantile class emerged: shipping, shopkeeping, manufacturing, trades and professions, and processed agricultural surpluses, largely independent of the state or nobility. Not to mention Britain needing to forestall French competition elsewhere in the world. Since the revolution, democracy has been sustained in the US through civil processes and the disinclination of the military to seize power.

We also see, from innumerable other examples, that widespread possession of arms among the populace does not inevitably lead to democracy or personal freedoms. Afghans could harry the Soviets sufficiently to impose steep losses and provoke their eventual retreat, particularly after they received Stinger missiles. But thereafter, the Afghans were unable to create a stable, civil government until the success of the Taliban. Even then, warlords continued to act from the margins and the government was far from democratic.

We can also see how India gained its independence, and more recently the countries of eastern Europe, largely without violence, and in the face of immense governmental armories. Here, the populace was able to assume control because the government was no longer willing to exert force to maintain its position. Indeed the Americans won their liberty not because of their defeat of the British in battle, but because the British became unwilling to expend additional resources to continue the contest. Yorktown was a tremendous victory for the Americans, but the British persevered against greater losses elsewhere to gain and keep their dominion.

The French overthrew their monarchy with a populace that was unarmed, armed provisionally, and what arms they had were vastly inferior to the Royal army and local police. They prevailed because the people could take no more and they gained sufficient sympathy from components of the military and other estates to rapidly rise up and seize power.

There is a romantic American fascination with firearms that imbues guns with nearly supernatural powers to correct injustices and secure personal safety. This has obviously been true, but not all outcomes have been positive and there are many other instances where the use of weapons has been a crime or created a tragedy.

While we immediately think of Bunker Hill, the Alamo, or John Wayne on the prairie, when we think of guns and liberty, we tend to downplay or ignore the role of civil society in identifying and settling disputes without violence or firearms over the centuries before and after the Revolution.

Today, our romantic fixation on guns generally leads to people being shot by police during domestic disputes, Ruby Ridge and Waco firefights, shootings of unarmed strangers, slaughters at schools, and failed holdups. You can go out in a blaze of glory, but you won't alter the balance of power in the country or expand personal liberty. Your (and your friends) armories will be overmatched by those of the police and military, who have the personnel, budget and resources. People will remember the fusillade, not the purpose.

Further, violence is what the police and military are specifically trained and tasked to combat. Especially armed violence. Your weaponry will be met by disproportionate force. It is tactically inappropriate to face an enemy on their favored terrain. In the cause of liberty, violence is a losing game until other options have been exhausted, and the uprising is societal.

I have no objections to people owning firearms or other weapons. I don't even understand the NRA's acceptance of registration or training requirements for gun ownership. I'm not sure I agree that broad classes of persons should automatically be denied the right to bear arms. I might also like to have my own howitzer or fully armed F-16 some day.

I do have problems with people (including the government) using weapons to intimidate others, or resorting to violence and weapons first. With gun crime in England essentially non-existent, the English are now worrying about knife violence. Crime, threats and violence will always be with us. It is the unwarranted threat and misuse of violence (by civilians and the government) that needs to be aggressively policed and punished, not ownership. The problem comes when people prove, after the fact and after others have suffered or died, that they cannot be trusted with their weapons.

Mike

Most Iraqis seem to have guns. This armed citizenry did not prevent the dictatorship of Saddam Hussein terrorising the nation of Iraq. The argument that an armed cizenry is a guarantee against dictatorship seems fatuous. As far as I know, the right to bear arms has not been written into the constitution of the new state of Iraq - in their eagerness to give Iraq democracy and freedom, the US seem to have overlooked granting to Iraqis that freedom that Anericans insist is a sine qua non of democratic government.

In Britain, there is no constitutional right to bear arms. Individuals may have guns on licence fro hunting etc. But nobody, ansolutely nobeody, argues that the possession of arms by the citizenry is essential to the defence of the nation against an autocratic government.

Kieran

Yohan

I do not think that the somewhat plutocratic governing structure outlined in the Constitution created in the citizenry 'a childlike state of passivity and dependence'. The whole idea was that if the government was limited enough in its role, then no matter who ran the government (in practice, as anywhere, a narrow elite) its scope for tyrannizing the citizenry would be negligible.

I think the development you refer to is a result of the concurrent and deeply unconstitutional growth of the national security and welfare states from the 1930s onwards.

I wonder whether the present situation could in part be attributed to the push for 'people power' since the late 19th century. The mushrooming of state apparatuses being as much the plutocracy's response to and management of increased pressure from below as the implementation of 'popular will'.

I agree with you that Madison's failsafe is not applicable during the early twilight phase of tyranny. It is a matter of when worst comes to worst, or shall we say, 'keeping all options on the table'.

J

Colonel,

gore vidal is interviewed and he views that 'because of' bush & co's behavior, we are no longer a republic. that bush & co have shredded the bill of rights, and used our Constitution as their personal toilet paper. vidal goes on to castigate the congress for being cowardly and corrupt. bush has become a 'mafioso' president.

Press TV: How can it just be one person among so many hundreds of Congressmen who wants the impeachment of George W. Bush in these circumstances?

Gore Vidal: Well it's because we no longer have a country. We don't have a republic any more. During the last 7 or 8 years of the Bush regime, they've got rid of the Bill of Rights, they've got rid of habeas corpus. They have got rid of one of the nicest gifts that England ever left us when they went away and we ceased to be colonies - the Magna Carta - from the 12th century. All of our law and due process of law is based on that. And the Bush people got rid of it. The president and little Mr. Gonzales who for a few minutes was his Attorney General. They managed to get rid of all of the constitutional links that made us literally a republic.

http://www.presstv.ir/Detail.aspx?id=61813&sectionid=3510302

Paul

The sponsor of this blog, Col. Lang, and many providing comment have pointed out the importance of history in the shaping of current and future events.

Madison knew home-grown tyranny and it is at the base of his argument. I have no quarrel with the Second Amendment and traditional gun ownership rights, but it is my view that the Supreme Court went too far. It said things that were unnecessary. If it is a “conservative” court, its declaration (and the NRA’s orgasm) may come back to haunt both.

Before the invasion of Iraq, Tariq Azziz correctly predicted that the Americans were making a mistake invading and moving on to Baghdad because its citizens had guns and “... knew how to use them...”. The same phenomenon would happen in our country since it is awash with guns.

That we live in a “near-tyrannical” state was exhibited by Addington and Yoo at the House hearings last week. Has everyone noticed how that testimony hardly drew a yawn whereas the gun stuff was all over the media? Two factors contribute to this: the indifference of the public and, the media’s support of the government are strengthening tyranny. Weak-minded politicians in Congress and elsewhere are no help since they do not represent the people they are supposed to serve.

We could learn a few lessons from some of our creatures. Witness the South Korean population’s response to the beef importation decision taken by the government. That population knows life under military rule, and they are not afraid to publicly show their distaste. Taking to the street is second nature to South Koreans. Imagine what would happen if guns were available there as they are here?

When the general public in America finally gets the idea that the government has been screwing them, they will take to the street (with guns in their waistbands) and the result will be truly ugly or wonderful, depending on your perspective. What will John Roberts and Wayne LaPierre think of that?


Cold War Zoomie

It would seem reasonable to suggest that even 'absolute rights' can have caveats.

Falsely shouting fire in a crowded theater and pornography are two very common free speech issues showing that the courts recognize limits to an 'absolute right.'

What I find interesting about the Washington DC ruling from the SC is that the law had been in place for around 30 years. What a great reminder that the courts will not consider the constitutionality of a law until someone brings a case against it. Plus, I think someone needs to have been aggrieved before the courts get involved but I'm not sure.

This dovetails into other folks arguing that well educated, engaged voters are a much better deterrent to tyranny. I agree. Maybe an unconstitutional law wouldn't have been on the books for 30 years otherwise. How many citizens were aggrieved but didn't have the knowledge or the resources to bring a case against it?

I'm also a firm believer in fall back plans for when something goes Tango Uniform. Having an armed citizenry is A-OK with me.

But I would prefer to see a licensing system akin to our driving requirements - you must show proper handling and care before being allowed to have a firearm. I recognize that that can lead to infringement, though, so it will probably never go that far. We forget that driving is a privilege, not a right.

The NRA has an excellent firearms safety training course that I wish every "gun toting loon" would be required to take.

TomB

Dave wrote:

"Dear Col. Lang,

Can you explain why we should not read "militia" as "police force"?

Can you explain where an armed police force fits in the Second Amendment?...."

Dave, I think the prefatory language of the Second alone should answer your question in that it speaks of "[a] well regulated militia[] being necessary to the security of a free *State*...." [Emphasis supplied.]

That is, the wording is clearly concerned not with an individual or person's *personal* security, but instead the security of a "State." And I don't think there's any question but that back then they had police/constabularies or etc. so that they well recognized the difference between police functions providing personal security, and others.

That said I'd also refer you to the S. Ct. decision itself (as well as the Appellate Court decision it sprung from) for some further history as regards the prefatory clause.

And as regards something Lesly wrote, just remember that but for that prefatory clause there wouldn't be much to argue about, would there? I.e., all's it would say then would be "the right of the people to keep and bear Arms shall not be infringed."

So that prefatory clause has really been THE source of all the lower and state court decisions (of which there have been a good number) saying that the Amendment provides absolutely *no* individual right at all and instead just guarantees a *collective* right of those in formal, official militias to have guns. I.e., as they have said, given the modern National Guard the Second is therefore now simply a dead letter.

(To be fair to the other side however and give their response to this line of argument it is that firstly *whatever* the prefatory clause says you still are bound by the literal words of the later line. And, secondly, they then say that it wasn't at all unusual back then for framers of legislation to first state their most pressing specific concern before going on to pen the much broader and more general language of the law they were establishing.)

So that I think shows why when it comes to the Second, the prefatory clause has been where damn near *all* the action has been. (Even before today in fact. For instance, in the last big Supreme Court Second Amendment case way back in the 1920's, it was the prefatory clause that was used as justification for upholding the ban on machine guns, with the logic being that such a weapon wasn't protected because it wasn't the kind used by militias way back when.)

I also think it's important to note (which I think both sides concede) that regardless of its effect the prefatory clause doesn't necessarily have to be read solely as a concern/hope on the part of the drafters of the Bill of Rights that people have guns so as to fight the government.

Remember how small, fragile and wild the young country was back then. Easy to imagine a concern about this or that outbreak of lawlessness taking place where the political authorities of this or that State call on all able-bodied men with arms to come help. And indeed I believe that there were some laws back then in some of the States calling on all able-bodied men to own arms. So I think that's where you see the genesis of the idea that what is meant by "militia" in the Second is indeed just your average Joe citizen.

(But to be fair to opponents of holding this view today I think they essentially say that "regardless, the idea of a modern governor or etc. calling out the mob for help is just as antiquated as the old militias are and so the Second is still a dead letter.")

In any event sorry for the long response, but just for entertainment value I'd also note something that might surprise some people. And that is that many of the original Framers of the original Constitution (such as Madison too I believe) were very much *opposed* to adding the Bill of Rights when they were later proposed for a very interesting reason:

I.e., by *enumerating* some rights that were going to be protected they were wildly concerned with the logic this naturally implied that there were no *other* rights safe from government. And thus you see the language in the Ninth and Tenth Amendments trying to placate this view and signal that this wasn't the case—which however, as Madison and others feared, has proven to be pretty damned useless.

Cheers,

Patrick Lang

Mike

The ugly truth is that most Iraqis never tried to overthrow Saddam. He armed the general public with the intention that they should be useful against a foreign invader. pl

Sidney O. Smith III

Glad to see that the USSC in the Heller opinion found controlling the work of the Virginian St. George Tucker. 'Tis a pity not many know about the St. George Tucker tradition. The legacy that he and his descendents left weaves itself throughout Virginia history, from William and Mary to Washington and Lee.

Heck, a law review type may want to pen an article referring to the Heller case as an "Ode to St. George Tucker". Depending on the law review editor who doubtless would act as law school superego, censor and ombudsman, perhaps even take a dare and include a footnote that St. George Tucker's grandson was an officer of the 15th Virginia regiment during that conflict Virginians called "The Second Revolution". Such a footnote is a bit risky though.

I could not help but note that the court relied heavily on the 1846 Georgia case, Nunn v. State. To quote -- "Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right."

Hey, maybe include as a subtitle to the law review article, "And Nunn too late". So it goes something like this: "An Ode to St. George Tucker -- and Nunn too late" .

Not sure that the Heller opinion is quite as sweeping as the mainstream media tells us. That said, due to the tone of Justice Scalia's writing, I rather doubt that he and Justice Stevens will find themselves chatting amiably at the water cooler anytime soon. But I bet if Scalia is at the water cooler, Justice Thomas will soon show up. Best I can tell, wherever Scalia goes, Thomas is sure to follow.

And for those who oppose an imperial government, I would not grow over-confident with Justice Scalia. I don't think he is your man, but maybe I am wrong.

rc thweatt

I've long suspected that those arming themselves to fight off the black helicopters were right-on the Constitution, that is. And,given the behavior of this Administration- the doctrine of unitary executive,"enemy combatants", the corruption of the Justice Department- I suspect I'm not the only liberal with a whole new appreciation of the Michigan Militia's position. It is ironical, of course, that it is the traditional 'gun rights' party which is the source of the threat to liberty.

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