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The Right to Keep and Bear Arms as a Check on Tyrants

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Whatever makes kings can unmake them.
— Isabel Paterson, The God of the Machine

Service in the militia, for purposes of national defense, suppression of rebellion, and answering the “hue and cry,” was widely understood as an ancient right and duty of the free citizen. By securing to individual citizens “their private arms,” the Framers of the Constitution were also ensuring the right of Americans, like Englishmen of old and their own colonial forebears, to defend hearth and home against tyrannical elements within their own government.

With the exception of those conscientiously opposed to any form of violence, Americans of the Founding generation would have agreed that arms, in the hands of the people, were a legitimate tool of last resort against tyrants. They had seen that principle borne out in dramatic practice; the American militiamen lining the road back from Concord in April 1775 were firing at their own government’s troops. The fierce fighting that marked that day was relentless, and at times bloodthirsty. Snipers shot soldiers from concealment, and Minutemen ambushed en masse, wreaking havoc on the British ranks.

For more than a year after, a militia army held Boston — a valuable strategic and commercial port in North America — under siege, until British policy moved the war elsewhere. From April 19, 1775, until British ships lifted anchor and sailed out of Boston Harbor on March 17, 1776, the militia of New England, supplemented by a steady stream of militia units pouring in to join the cause from as far away as Virginia, was a band of rebels, acting in defiance of their lawful king and parliament. The Revolution’s leaders were well aware of that fact; at the signing of the Declaration of Independence that summer in Philadelphia, Ben Franklin quipped, “Gentlemen: we must all hang together, or assuredly we shall all hang separately.”

A right to revolt

The Declaration of Independence holds among our “unalienable rights,” the right to “alter or abolish” government, should it become “destructive” to personal liberty. And that was precisely the action taken in the American Revolution. Men (and women) were no less enamored of this spirit of revolution a decade later, when a new Constitution was proposed. Alexander Hamilton and James Madison, possibly the two most influential political theorists of the time, certainly acknowledged the right to revolution. “If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defence,” Hamilton wrote, in Federalist 28. Madison downplayed fears that an American army would be employed against the people, but only because it would face “a militia amounting to near half a million of citizens with arms in their hands.”

Following the Whiskey Rebellion, Thomas Jefferson wrote to Madison from Paris, that revolutions should not only be frequent, but possibly even encouraged:

I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical. Unsuccessful rebellions indeed generally establish the incroachments on the rights of the people which have produced them. An observation of this truth should render honest republican governors so mild in their punishment of rebellions, as not to discourage them too much. It is a medicine necessary for the sound health of government.

This “right to revolt” was also sanctioned in official documents. For example, Article 10 of the New Hampshire Constitution, adopted on June 2, 1784, states,

Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

Joseph Story, the great American jurist and Supreme Court justice, wrote in his influential Commentaries on the Constitution of the United States, first published in 1833,

The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and   arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

Of particular note here is further articulation of the theme, running right back to the beginning of the American Republic, and well before, that resistance to tyranny is not only just, but a moral imperative, and an important responsibility of the free citizen. The idea might cause a shudder among some of the more “refined” members of American society today, but for those who shaped political thought in this new country, the right to keep and bear arms was widely considered as a check on the ambitions of power-mad public officials.

In the 1960s, an ultra-left-wing writer named Edward Abbey drew up a list of eight steps necessary for anyone “planning to impose a dictatorial regime upon the American people,” warning that step three would be restriction of gun-ownership “to the police and the regular military organizations.” Sanford Levinson, another “liberal” of the late twentieth century, was also awake to the Second Amendment’s role as a fail-safe for preserving healthy government. In “The Embarrassing Second Amendment,” he hints at both the need and possibility of armed revolution, even in the present day:

One would, of course, like to believe that the state, whether at the local or national level, presents no threat to important political values, including liberty. But our propensity to believe that this is the case may be little more than a sign of how truly different we are from our radical forebears. I do not want to argue that the state is necessarily tyrannical; I am not an anarchist. But it seems foolhardy to assume that the armed state will necessarily be benevolent. The American political tradition is, for good or ill, based in large measure on a healthy mistrust of the state.

The right to revolt deserves at all times our most thoughtful consideration. The idea was more than academic to those who established this republic. It occupies the pages of historical texts precisely because they wanted future generations to understand the proper relationship between citizen and government, and the role of government itself. The cancerous nature of tyranny, once firmly rooted, will weaken the character of a people, and by extension their ultimate means of rebuke.

As we attempt to understand the morality of defensive violence, the possibility of removing and replacing government by force is problematic at best. Important questions demand to be addressed: To whom, and under what circumstances exactly, does this right pertain? If government is established on a popular foundation, with regular elections, separation of powers, and judicial review, what “right” can exist to overturn lawfully constituted government? Isn’t the “right of revolution” just a prescription for civil discord, lawlessness, and ruin?

What about the minority?

Addressing a crowded Senate chamber in the nation’s new capitol, President Thomas Jefferson called on his fellow citizens to “bear in mind this sacred principle,”

that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate which would be oppression.

The American constitutional order rests in part on widespread firearm ownership, and an attachment to personal freedom over democracy. Democracy unbridled can run counter to individual rights and threaten the stability of a society. Levinson writes, “The development of widespread suffrage and greater majoritarianism in our polity is itself no sure protection” against a tyrannical state. Majorities can be as oppressive as a single dictator. Yet, if the right of revolution is enjoyed only by a majority, what recourse is available to an oppressed minority?

Here again we may turn to Carson, though briefly. First, he says, a minority has access to the podium and the printing press, to persuade their fellow citizens, and possibly “become the majority.” Failing that, “the ultimate recourse of an oppressed minority is migration. The right to migrate for a minority is the corollary of the right to revolution for a majority.” The Framers had created the largest free-movement zone since the Roman Empire, and those unhappy in their present circumstances could, in theory, “vote with their feet.” An example of that is the Great Migration, when more than six million people of African descent left the South in the twentieth century, moving north and west.

But the reality for those who stayed was untenable. Anyone in immediate or imminent physical danger cannot simply pack up his family and moveable property and go elsewhere, and government officials most assuredly can (and have) acted against citizens before they might avail themselves of that option, or even contemplate its possibility. Moreover, there is no guarantee that even a change of one’s location will mean an end to legal (and lethal) persecution. Finally, regardless of the option to leave, some indignities should never be tolerated, by anyone.

Guidance may be sought in the contributions of John Locke, the seventeenth-century political philosopher whose ideas profoundly influenced the Founding generation, particularly Thomas Jefferson. Locke saw government as an instrument created by men, those who do not trust the uncertainty of a “state of nature,” and seek instead protection for their lives and property in a common set of laws, to be obeyed by all who wish to benefit from this mutual respect and community. However, in his Second Treatise of Civil Government, Locke argued that, even under a government, justice still remains with those who use force to repel force:

[The] law, which was made for my preservation, where it cannot interpose to secure my life from present force, which, if lost, is capable of no reparation, permits me my own defence, and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge, nor the decision of the law, for remedy in a case where the mischief may be irreparable.

A minority, even a minority of one, facing a dangerous aggressor, may have no moral claim to the Right of Revolution … but the “ultimate recourse” in this scenario is not petition, persuasion, or even flight. It is resistance. In his “Essay on the Trial by Jury,” first published in 1852, Lysander Spooner argued that “the only security against the tyranny of the government lies in forcible resistance to the execution of the injustice,” noting that if men have the right to defend their “lives and liberties,” then naturally “they have a right to defend them against” government.

Being a right that is inherent to all people, this Right of Resistance, as we can fairly call it, precedes the Second Amendment, and is also anticipated by that guarantee, which prohibits government from disarming individual citizens. A state or local force, acting under the auspices of a governing body, is, according to those who celebrate democracy over individualism, a tool of the majority — and it may in fact be the very means by which an individual’s life is threatened. By protecting each member of society’s right to maintain the personal firepower to defend his life, liberty, and property, it logically follows that this remedy is also available to a minority, to check the dangerous pretensions of belligerent government officers.

For example, on February 28, 1993, a force of approximately seventy-five heavily armed agents from the Bureau of Alcohol, Tobacco, and Firearms (ATF) attacked a group of 120 religious eccentrics, mostly women and children, outside of Waco, Texas. Storming their church, the ATF agents began firing, first shooting a dog and her puppies, then, turning their attention on two unarmed cult members at the front door. The agents mortally wounded one cult member and sent the other, wounded in the arm, scrambling back inside. A number of Branch Davidians, as they were called, returned fire. After a two-hour gun battle, during which ATF agents fired indiscriminately into the building and possibly through the roof from helicopters, five Davidians and four ATF agents lay dead, with another sixteen agents wounded.

The Davidians considered their actions to be purely defensive. When the ATF agents began firing, Wayne Martin, a lawyer educated at Harvard, immediately called 911, yelling at the police dispatcher, “There are about seventy-five men around our building shooting at us…. Tell them there are children and women in here and to call it off! Call it off!”

Following this botched raid, the FBI took charge. After a fifty-one day siege, an FBI assault on the Davidian property ended in the deaths of seventy-six people. Despite this tragic outcome, the Davidians’ actions may have had a profound impact on federal police policy. As libertarian activist and author Peter McWilliams put it,

If the Branch Davidian compound at Waco had been your ordinary, unarmed weirdo cult, do you think any of us would have heard about what would have been a very uneventful raid? Although it would have made the front page in Waco, the swift round-up and eventual release of a band of odd believers would have been buried in the second section of the Dallas papers and probably never mentioned by Time, Newsweek, the Los Angeles Times, or the New York Times. And although the Branch Davidians died in a mystery inferno, they certainly made their point; I doubt very much if a branch of the federal government will be attacking an armed cult again in the near future.

Within a few years, No More Wacos: What’s Wrong with Federal Law Enforcement and How to Fix It, by David Kopel and Paul Blackman, was published. In 1996, an armed standoff with the Montana Freemen, a Christian patriot group who had declared sovereignty from the federal government in a small town in Montana, ended peacefully, after eighty-one days. The attorney general had made it abundantly clear there would be no repeat of Waco. In 2007, two convicted tax protesters, Edward and Elaine Brown, refused to leave their home for almost four months, and supporters were allowed to deliver supplies to the couple. Rather than force a gun battle, U.S. Marshals posed as sympathizers, arresting the couple without incident, peacefully ending the standoff. When Cliven Bundy, a Nevada rancher, refused to comply with federal grazing laws in April 2014, 200 heavily armed federal agents moved in to arrest him. They found themselves opposed by perhaps 1,000 armed citizens. Wisely, the agents chose to de-escalate the crisis.

Conclusion

Under Adolf Hitler’s Nazi regime, Jews and other “enemies of the state” were disarmed years before adoption of the Final Solution; state forces knew exactly whom to visit because they had ready access to lists of gun-owners made after “crime control” measures required registration of all weapons in the 1930s. Any Jew found with a gun faced twenty years in prison. The American political tradition in general, and the Second Amendment in particular, not only allow for revolution and resistance, but effectively guarantee a certain level of tension between citizens and government, by ensuring that each and every individual has the right to purchase, own, and carry weapons for his own defense. While the right to revolt may pertain only to a majority that finds itself compelled to obey the oppressive edicts of a government grown “alien to the generality of the people,” the minority, including a minority of one, still retains the moral authority to resist injustice, even that inflicted by government, and by force of arms if necessary.

This is an excerpt from Scott McPherson’s ebook, Freedom and Security: The Second Amendment and the Right to Keep and Bear Arms, published in 2015 by FFF. This excerpt was published in the February 2015 edition of Future of Freedom.

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