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.]