The Game of Monopoly
With the Bush administration casting aside the Constitution to eavesdrop on telephone conversations and hold suspected terrorists for years without access to lawyers, it's easy to see why civil libertarians on the left are finding a lot to like about the right-wing critique of expansive government power. This distrust and distaste for government authority has even made some liberals receptive to arguments advanced by gun rights groups, who suggest that private ownership of firearms is a healthy check on government run amok.
Before we get carried away with the idea that guns are the ultimate guarantor of our civil liberties, however, we should consider what maintaining the capability to resist the decisions of a democratically accountable government really means. The question of whether armed citizens should be entitled to challenge the government with force is at the heart of the current debate over the Second Amendment in the Supreme Court case of District of Columbia vs. Heller.
On March 19, 2007, the U.S. Court of Appeals for the D.C. Circuit made national headlines when it struck down the District of Columbia's handgun ban and ruled that the Second Amendment protects an individual right to keep and bear arms. This marked the first time that a federal court had overturned a gun control law on Second Amendment grounds. In its decision, the Court of Appeals asserted a broad range of purposes for the Second Amendment, including hunting, self-defense and, most notably, to defend against the "depredations of a tyrannical government." After the ruling was successfully appealed to the Supreme Court by the District of Columbia, the National Rifle Association made a similar argument in their brief to the Court, affirming that the "very existence of an armed citizenry will tend to discourage would-be tyrants from attempting to use paid troops to 'pacify' the populace."
Such "insurrectionist" philosophy is common among a small but vocal group of gun rights supporters. Insurrectionists assert that unrestricted access to guns of every kind is an essential element of freedom. Government is seen as a likely enemy, and gun regulation is viewed as a plot to monitor gun ownership and, ultimately, to confiscate all private firearms.
If this insurrectionist logic were to be embraced by the Supreme Court, however, our democracy would be severely degraded. Such an interpretation of the Second Amendment would make even the most modest gun control legislation unconstitutional. If the purpose of the Second Amendment is to allow individuals to stockpile firearms to protect against government "tyranny," then laws like owner licensing or firearm registration (and maybe even the Brady background check) could be found unconstitutional because they allow the government to monitor and regulate gun ownership. Future Timothy McVeighs could claim constitutional protection for their crimes. If every American armed up to vindicate their private grievances (the Court of Appeals gave absolutely no guidance on how to tell, or who should decide, what constitutes government "tyranny"), the government's monopoly on force would be infringed and our society would gradually slide toward anarchy.
There was actually a time in our history--when America was governed by the weak and decentralizing Articles of Confederation--when private mobs exercised as much power as legislatures. Incidents like Shay's Rebellion triggered great fear among America's leading citizens and led to the framing of a Constitution with enhanced federal power. Since the ratification of that document, our nation has been through much travail, but through some of our biggest challenges (i.e., the Civil War, World War II, and the civil rights movement) it was ultimately America's ability to mobilize both a federal bureaucracy and military power that kept us free. From General Washington to General Grant to General Patton to President Eisenhower, professionalized peacekeepers have safeguarded liberty and freedom in this country (and, in the case of WWII, on the entire planet). Our strong yet democratic state--which maintains a monopoly on force--has allowed us to walk the fine line between anarchy and totalitarianism.
The concept of a "monopoly on force" might sound foreign or even frightening to Americans that take great pride in our revolutionary beginnings, but it is the fundamental organizing principle of any political entity, including the United States. In 1919, German political economist and sociologist Max Weber defined the conditions required for a political entity to be termed a "state." Weber said, "A compulsory political association with a continuous organization...will be called a 'state' if and in so far as its administrative staff successfully upholds its claim to the monopoly of the legitimate use of physical force in the enforcement of its order."
Nonetheless, most Americans today would associate the idea more closely with the struggle for democracy and stability in Iraq than with our own political system. Indeed, the current situation in Iraq should be a cautionary tale for all democracies: If a state cannot guarantee the political and civil rights of its citizens, if it cannot enforce judicial or administrative rulings because it is outgunned by individuals or factions, then it is not functioning as a democratic state.
In Iraq, the state's lack of a monopoly on force has produced obvious negative consequences. Let's face it--isn't that really what "the surge" is all about? George Will has written that, "A defining attribute of a government is that it has a monopoly on the legitimate exercise of violence. That attribute is incompatible with the existence of private militias of the sort that maraud in Iraq." Researcher Herbert Wulf, commenting on the U.S. occupation of Iraq, stated, "[t]he present situation in Iraq illustrates that even the most powerful military nation of the world runs into difficulties in trying to re-establish the monopoly of violence."
This doesn't mean that Saddam Hussein's regime, or other totalitarian states, should be accepted. These regimes lack legitimacy, which is the key to Weber's definition of the monopoly on force. Nor does it mean that a democratic government must disarm every citizen or prevent armed self-defense. However, it does mean that a democratic state must be able to prevent the accumulation of military arms for insurrectionary purposes, and it must have enough strength to enforce its own laws. Without this monopoly of force, rights are only abstractions, because they cannot be enforced. This is not to say that government is the source of all rights, but rather that the only hope of vindicating individual rights over the long term is through democratic government that has both the will and the means to protect them.
The bottom line is that our Constitution is not a suicide pact. It can be amended and modified, but it does not sanction its own violent demise. As the eminent jurist Roscoe Pound concluded, a "legal right of the citizen to wage war on the government is something that cannot be admitted [because it] would defeat the whole Bill of Rights." If we value our democracy, we should hope the Supreme Court agrees and explicitly quashes the D.C. Circuit's assertion that there is an insurrectionary purpose to the Second Amendment.
[This editorial was co-authored by Josh Horwitz and Casey Anderson.]
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The right to bear arms to defend the Constitution from a tyrannical Gov't.
http://www.jpfo.org/filegen-a-m/athens.htm
On August 1-2, 1946, some Americans, brutalized by their county government, used armed force as a last resort to overturn it. These Americans wanted honest open elections. For years they had asked for state or federal election monitors to prevent vote fraud (forged ballots, secret ballot counts and intimidation by armed sheriff's deputies) by the local political boss. They got no help.
These Americans' absolute refusal to knuckle under had been hardened by service in World War II. Having fought to free other countries from murderous regimes, they rejected vicious abuse by their county government.
These Americans had a choice. Their state's Constitution -- Article 1, Section 26 -- recorded their right to keep and bear arms for the common defense. Few "gun control" laws had been enacted.
These Americans were residents of McMinn County, which is located between Chattanooga and Knoxville in Eastern Tennessee. The two main towns were Athens and Etowah. McMinn County residents had long been independent political thinkers. For a long time they also had: accepted bribe-taking by politicians and/or the sheriff to overlook illicit whiskey-making and gambling; financed the sheriff's department from fines-usually for speeding or public drunkenness which promoted false arrests; and put up with voting fraud by both Democrats and Republicans.
You mean like the Black Panthers and the Weather Underground? They also thought they were fighting a tyrannical government. No, wait, let me guess, only right-wing groups are allowed to take on the government.
Such a nice Ad hominem. Maybe you'ld like to source why you assume such a stereotype? What "right-wing groups" do you see me supporting revolutionary activity? Did the Black Panthers or Weather Underground follow the legal process as established in the COTUS to air their grievances?
I'll wait.
"successfully upholds its claim to the monopoly of the legitimate use of physical force in the enforcement of its order."
The key her is "legitimate" use of force. When that becomes "illegitimate" Mr Horowitz, what then?
Who gets to decide what is illegitimate? My definition of illegitimate might differ by a very large amount from your definition!
The states and Federal government.
Exactly.
The insurrectionist argument for the 2nd Amendment is absurd. Do you really think George Washington bought into it when suppressing the Whiskey Rebellion,?I don't hink so.
The 2nd Amendment is so poorly written it doesn't make sense. HOWEVER the language was taken directly from the Virginia Bill of Rights. Which does make sense. The Virginia Bill of Rights clearly defines what a "Well Regulated Militia" is.
As it turns out the 2nd Amendment is not designed to arm people against their government. But to protect that government from a standing army. In modern terms: The 'Military Industrial Complex."
Which the Founding Fathers saw is the greatest threat to our liberty and treasure known to man.
They wanted the Militia to be the substitutute for the standing army. An idea that was good in theory but failed in practice.
Americans, it turned out, would make excellent soldiers. But only under the command of the professional officers. The Militia was an experiment that did not simply fail, it failed miserably.
And America has relied on its professional Army, Navy, Air Force ever since.
The Constitution further discusses the training and arming of the militia. And makes it clear that the right to bear arms is subject to state and federal regulation.
To think that the Constitution embodied the means of overthrowing it is absurd. As some wise man once pointed out pointed out; The Constitution is not a suicide pact.
"To think that the Constitution embodied the means of overthrowing it is absurd. As some wise man once pointed out pointed out; The Constitution is not a suicide pact."
That is an absurd statement. Especially due to the fact that it is false. It embodies the means to defend it.
Now can you define "Regulation"? Does it include outright bans on firearms? Howabout measures used defacto to ban them? Were the New Orleans confiscations legitimate since they were claiming a "monopoly on force" yet leaving people to the predations of criminals?
Last I checked on the New Orleans "confiscations," the NRA was having such a difficult time finding people that had had their guns "confiscated" that they had literally hired private investigators to try to track these people down http://www.wtopnews.com/?nid=104&sid=13168277). I think they were up to 75 folks, after much time, money and effort.
Not surprising though, when you consider that the NRA has been using the confiscation myth as a pre-text to raise funds for years. It's great for business - doesn't have a heck of a lot of bearing in reality, however.
Another side note on New Orleans is that the city NOW has the highest homicide rate of any American city, despite the presence of an overwhelming number of guns and totally lax gun laws http://blog.nola.com/times-picayune/2007/06/2006_murder_rate_tops_in_natio.htmll). I guess those "free" gun owners down there aren't doing too well with the "predations of criminals."
But none of this has anything to do with the fact that our Founders put down armed mobs that became unruly with very firm force, whether these individual gun owners felt they were being "oppressed" or not (George Washington and the Whiskey Rebellion being the most obvious example of several).
"The 2nd Amendment is so poorly written it doesn't make sense."
Really?
The text of the Second Amendment does not imply that the right to arms is confined in any way to militia-related purposes. The most significant grammatical feature of the Second Amendment is that its preamble ("A well regulated Militia, being necessary to the security of a free State...") is an absolute phrase. Such constructions are grammatically independent of the rest of the sentence and do not qualify any word in the operative clause to which they are appended. The usual function of absolute constructions is to convey some information about the circumstances surrounding the statement in the main clause.
Another very significant grammatical feature of the Second Amendment is that the operative clause ("...the right of the people to keep and bear Arms, shall not be infringed") is a command. Because nothing in that command is grammatically qualified by the prefatory assertion, the operative clause has the same meaning that it would have had if the preamble had been omitted or even if the preamble were demonstrably false.
Consider a simple example. Suppose that a college dean announces: "The teacher being ill, class is cancelled." Nothing about the dean's prefatory statement, including its truth or falsity, can qualify or modify the operative command. If the teacher called in sick to watch a ball game, the cancellation of the class remains unaffected...
http://www.heritage.org/research/LegalIssues/wm1851.cfm
The "People" bear arms through the militia. That is abundantly clear from any understanding of American history.
The militia was designed to prevent the wasteful expenditure of money so destructive to liberty and treasure that a standing army needed.
The Standing Army was what the Founders feared. And the militia, comprised of all WHITE males in a community was the institution that was supposed to defend us from it.
Do you think the Founders envisioned each individual farmer defending their farms from attack from Indians or French or British troops? Of course not. They had just gone through 40 or more years of war. They knew full well the efficiency of individuals attempting to protect themselves. IT DIDN"T WORK.
They had plenty of slaughtered settlers in Pennsylvania, Virginia, the Carolinas etc etc as evidence. Every man at the Constitutional Convention suffered to one degree or another from these wars. Defense was a collective responsibility of the community, the state and the Federal government.
But answer the original question posed: Do you think George Washington, who was President of the Constitutional Convention as well as President of the USA when the 2nd Amendment was adopted, believed the Whiskey Rebellion perpetrators were using a Constitutionally recognized method of securing their rights? By taking up arms against the government?
If that was the case why did he raise the militia to put it down? Why didn't he just rely on the individuals in Pennsylvania to do it for him?
HELL NO!
Excuse me. If the wording of the 2nd Amendment made sense, why would we be arguing about it here?
Are they expressing an individuals right to own guns? Why are they talking about a "well regulated militia?' Why didn't they just come out and say it?
The Constitution is a remarkably clever document. But they got too clever by half in the wording of this monstrosity.
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