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Friday, October 06, 2017

A Second Amendment Problem

As regular readers of this blog know, I have no issue with private citizens owning weapons. Both the Second Amendment and the body of the Constitution itself, by dint of the Letters of Marque, arguably allow private citizens to own any weapon they can lay their hands on, up to and including nuclear weapons.

So, if you want to carry guns to go hunting, for self defense, or just because you really, really like guns, I have no issue with that. The problem arises with the people who insist that they have the right to own guns in order to protect themselves from the government. That particular reading of the Constitution is essentially impossible to make.

The first problem in such a reading resides in the Constitutional text itself: both the "Letters of Marque" in Article 1, and the "well-ordered militia" of the Second Amendment imply that citizens may own weapons in order to defend their local group/community or the country at large. There is no hint in the Constitution that widespread gun ownership by citizens should be allowed in order to facilitate the government's overthrow.

The reason is quite obvious: if that meaning were contained within the Constitution, then every patriotic American should always be fully prepared to shoot Americans in the head. Specifically, we have the right to shoot American politicians, American soldiers and American police officers in the head. But the Constitution says no such thing: indeed, Article I, Section 8 specifically says the militia exists to put down insurrection, not to start one. Now, you might argue that any government official who violates the letter or the spirit of the Constitution is himself engaged in insurrection. But who gets to determine how that works?

If this reading were accurate, then we should see quite a bit of commentary from the Founding Fathers encouraging the killing of American politicians, law officers and soldiers. And, while we see lovely sentiments about the Tree of Liberty being refreshed from time to time with the blood of patriots, the Founding Fathers were silent about the specifics of when and how that was supposed to happen.

In fact, George Washington himself seems to have been something of a hypocrite on the point. After all, when private citizens treated American whiskey taxation as an illegal government intrusion into their lives, President Washington refused to advocate that these poor, overtaxed Americans go out and kill American government forces and officials. Instead, Washington personally led an army of American soldiers into the hill country to put down the "Whiskey Rebellion". This was the first (and last) time an American President led American troops into battle, and he did it against American citizens, no less.

Now, notice what Washington did not do. He did not, he never, argued that American citizens should be disarmed. But, neither did he expect American citizens to shoot him out of his saddle for trampling their rights. Nor did they. They melted away before Washington and his army ever encountered the armed opposition.

But therein lies the nub of the real problem with the popular revolutionary reading of the Second Amendment. Many today argue: "If government officials are violating their own oaths to uphold the Constitution, then shoot them. They won't be 'American soldiers' then, they will be just another gang of thugs. The first and foremost duty both of American government and American military is to uphold, preserve and protect the Constitution of the U.S. Consequently, an American soldier who refuses to do so or who accepts orders contrary to the Constitution ceases being an American soldier at that point and becomes a war criminal."

If that theory is correct, if the armed Americans opposing Washington's whiskey tax were correct, then those American citizens had a Constitutional right, nay, a Constitutional duty, to shoot Washington out of his saddle and kill every man-jack he led into battle along with him. Now, anyone who insists the Constitution implies an American right to engage in armed conflict against America's government officials can have no serious problem with the Battle of Athens. The tale of young American soldiers taking up arms against a corrupt local Tennessee government after World War II is well-known, or should be. But, can they have any philosophical problem with the shooting of Gabby Gifford or Steven Scalise? For, if the Constitution enshrines a right to violently overthrow a rapacious government, then the Second Amendment not only gives me the right to bear arms, it also gives me the right to be judge, jury and executioner of government officials. After all, I have to have the right to determine exactly when the government has become so rapacious that I must need take up arms.

As I said, I have no problem at all with the right to own weapons. But, at what point do I have a right to open fire on American government representatives? We can invoke the problem faced by the Jews in the Warsaw Ghetto, but that is precisely the point. If the government is harassing a lone individual, does he have a right to open fire? How are we to distinguish such a lone individual from a lone psychopath?

He will be shooting a police officer or soldier or politician who has a family, a spouse, children, a cute little dog. Sure, the man was being harassed, but he should have gone through the proper channels. And what if he had done? Now does he have the right? Or do we have to wait until the government oppresses groups of people? How large a group must be oppressed before the individuals in that group have a right to open fire? What rights need to be trampled before we break out our private arsenals: our handguns, rifles, tanks, fighter jets, aircraft carriers and nukes? Can I start shooting if I believe the rumors of the gas chambers? Or do I have to personally see the shower rooms and the bodies? And what if there turns out to be no gas chambers at the internment camps where FDR sent the Japanese? Was I still right to start shooting?

Invoking Constitutional rights becomes even more problematic when we remember that, technically speaking, the Constitution is an illegal document. According to the Articles of Confederation, the Articles could not be replaced except by unanimous consent. So, technically, by September 13, 1788, eleven states had illegally seceded from the Articles. If North Carolina and Rhode Island had had the military capacity, they could legally have declared the Constitution a rebellion and forced the eleven ratifying states back into the Articles in exactly the same way Lincoln forced the Southern States back into the Constitution eighty years later. In fact, the states arguably had more legal support to treat the Constitution as a rebellion than Lincoln had to treat the Confederacy as one.

Legal is not the same as moral, of course. The national socialists in Germany were always very careful to pass an enabling law before they inflicted any harm on anyone. As more than one commentator pointed out, the camps and their processes were all legal. Everything was perfectly in order in that respect. But this was also true of the American interment camps. Both Hitler and FDR took care to satisfy the legal niceties, but gave little thought to the moral niceties.

There is no legal support for the idea that the Second Amendment empowers American citizens to take up arms against the government for either perceived or real grievances. While the Constitution empowers Americans to own and use weapons, it does not empower a typical American citizen to be judge, jury and executioner. There are some who would argue that we may not have the legal right, but we do have the moral right. Fine. But that is also the argument of the Unabomber, a man now considered an eco-terrorist.

Stand by your right to keep and use arms. But, if you want to base your right in full or in part on your right to overthrow the government, do not be surprised if many people on the left find it difficult to distinguish you from James T. Hodgkinson, Jared Loefler, or Ted Kaczynski. The left produced these men, so they can be forgiven for seeing echoes of their rhetoric in yours.

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