Second Thoughts on the Second Amendment

Advocates of the right to bear arms often insist that the Second Amendment is rooted in both collective and individual rights of self-defense--against political oppression and crime--without recognizing how those rights conflict. The republican right to resist oppression is the right of the majority, or the people, not the right of a small religious cult in Waco, Texas, or of a few survivalist tax protesters in Idaho. The members of these groups have individual rights against the government, state and federal. (Both the American Civil Liberties Union and the NRA protested the government's actions in Waco and its attack on the survivalist Randy Weaver and his family.) But refuseniks and refugees from society are not republicans. They do not constitute the citizen militia envisioned by the framers, any more than they stand for the American community; indeed, they stand against it--withdrawing from the body politic, asserting their rights to alienation and anomie or membership in exclusionary alternative communities of their own. Republicanism can't logically be invoked in the service of libertarianism. It elevates civic virtue over individualism, consensus over dissent.

Nor can social-contract theory be readily invoked in support of a right to arm yourself in a war against street crime, despite the claims of some gun-ownership advocates. The right or power to engage in punishment or retribution is precisely what is given up when you enter an ordered civil society. The loss of self-help remedies is the price of the social contract. "God hath certainly appointed Government to restrain the partiality and violence of Men," John Locke wrote. A person may always defend his or her life when threatened, but only when there is no chance to appeal to the law. If a man points his sword at me and demands my purse, Locke explained, I may kill him. But if he steals my purse by stealth and then raises a sword to defend it, I may not use force to get it back. "My Life not being in danger, I may have the benefit of appealing to the Law, and have Reparation for my 100 l. that way."

Locke was drawing a line between self-defense and vigilantism which many gun owners would no doubt respect. Others would point to the inability of the criminal-justice system to avenge crimes and provide reparation to victims, and thus they would assert a right to engage in self-help. Social-contract theory, however, might suggest that if the government is no longer able to provide order, or justice, the remedy is not vigilantism but revolution; the utter failure of law enforcement is a fundamental breach of trust. And, in fact, there are large pockets of disaffected citizens who do not trust the government to protect them or to provide impartial justice, and who might be persuaded to rise up against it, as evidenced by the disorder that followed the 1992 acquittal of police officers who assaulted Rodney King. Was Los Angeles the scene of a riot or of an uprising?

Injustice, and the sense of oppression it spawns, are often matters of perspective--particularly today, when claims of political victimization abound and there is little consensus on the demands of public welfare. We use the term "oppression" promiscuously, to describe any instance of discrimination. In this climate of grievance and hyperbole, many acts of violence are politicized. How do we decide whether an insurrection is just? Don Kates observes that the Second Amendment doesn't exactly confer the right to resist. He says, "It gives you a right to win."

The prospect of armed resistance, however, is probably irrelevant to much public support for gun ownership, which reflects a fear of crime more than a fear or loathing of government. People don't buy guns in order to overthrow or even to thwart the government; in the belief that the police can't protect them, people buy guns to protect themselves and their families. Recognizing this, the NRA appeals to fear of crime, particularly crime against women. ("Choose to refuse to be a victim," NRA ads proclaim, showing a woman and her daughter alone in a desolate parking lot at night.) And it has countered demands for tougher gun controls not with radical individualist appeals for insurrection but with statist appeals for tougher anti-crime laws, notably stringent mandatory-minimum sentences and parole reform. There is considerable precedent for the NRA's appeal to state authority: founded after the Civil War, with the mission of teaching soldiers to shoot straight, in its early years the NRA was closely tied to the military and dependent on government largesse; until recently it drew considerable moral support from the police. Today, however, statist anti-crime campaigns are mainly matters of politics for the NRA and for gun advocates in general; laws mandating tough sentences for the criminal use of firearms defuse demands for firearm controls. Personal liberty--meaning the liberty to own guns and use them against the government if necessary--is these people's passion.

Gun advocates are apt to be extravagantly libertarian when the right to own guns is at stake. At heart many are insurrectionists--at least, they need to feel prepared. Nothing arouses their anger more, I've found, than challenges to the belief that private gun ownership is an essential check on political oppression.

DURING the two-day seminar held by Academics for the Second Amendment, we argue equanimously about nearly everything--crime control, constitutional rights, and the fairness and feasibility of gun controls--until I question whether, 200 years after the Revolution, citizens armed with rifles and handguns can effectively resist the federal government. I ask, If Nixon had staged a military coup in 1974--assuming he had military support--instead of resigning the presidency, could the NRA and the nation's unaffiliated gun owners have stopped him? For the first time in two days Don Kates flares up in anger, and the room is incandescent.

"Give me one example from history of a successful government oppression of an armed populace," he demands. The FBI raid on David Koresh's compound in Waco, Texas, doesn't count, he says, because Koresh's group was a small, isolated minority. The Civil War doesn't count either. (I can't remember why.) Neither do uprisings in Malaysia and the Philippines.

People like me think it is possible to oppose the government only with nuclear weapons, Kates rages, because we're stupid; we don't understand military strategy and the effectiveness of guerrilla warfare, and we underestimate the hesitancy of troops to engage their fellow citizens in armed conflict. Millions of Americans armed only with pistols and long guns could turn a bloodless coup into a prolonged civil war.

Perhaps. I am almost persuaded that Kates might have a point, until he brings up the Holocaust.

Gun advocates sometimes point out that the Holocaust was preceded by gun-control laws that disarmed the Jews and made it easy to round them up. (In a 1994 article in Guns and Ammo, Jay Simkin, the president of Jews for the Preservation of Firearms Ownership, argued that gun control causes genocide. Simkin wrote that today "genocides can be prevented if civilians worldwide own military-type rifles and plenty of ammunition.") Kates doesn't go nearly this far, but he does point out that genocides are difficult to predict. At the turn of the century, he says, I would not have predicted the Holocaust, and today I can't predict what holocausts may occur in the next fifteen or fifty years. I give up. "If millions are slaughtered in the next fifty years because of gun-control laws," I declare, "let their deaths be on my head."

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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