The Doomsday Provision

Note: This post is part of our League Symposium on Guns In America. You can read the introductory post for the Symposium here. To see a list of all posts in the Symposium so far, click here.

Why do we have the Second Amendment?  Wait, let’s back up.  Why do we have the First Amendment?  Speech is important to happiness and flourishing, we can all agree.  But that is not the reason that right was expressed, is it?  If it were, we should be puzzled to find in the remaining amendments so few other aids in service of happiness and flourishing.  “Why don’t you specify my right to get up in the morning, my right to walk down the street, my right to wear a hat?” scoffed Theodore Sedgwick of Connecticut at the very proposal of a Bill of Rights.  It is not merely that those rights are, by degrees, less important than the ones enshrined in the First Amendment.  It is not even that a government that abridged rising, walking, and hat-wearing would be less arbitrary and tyrannical in any meaningful way.  It is something else about the rights of speech and of assembly that demands recognition in a free society and that makes their service to happiness and flourishing, though deeply important, yet secondary.

That something else is the expression, in the First Amendment and, I will argue, in the Second, of those rights that reflect the sovereignty of the people.

The Declaration of Independence established a new nation, acting as “one people,” through “thirteen united States of America.”  James Madison insisted that the Constitution be ratified by special conventions to make clear that ratification would be “not through the intervention of the Legislatures, but by the people at large”—a distinction regarded as “very material.”  For these reasons, incidentally, a state has no unilateral right to secede:  the Constitution is not a compact of states but an agreement among the people.  See Timothy Sandefur, How Libertarians Ought to Think About the U.S. Civil War.

If this is so and the people are sovereign, it has important implications, the most important of which for our purposes here is that sovereignty is inalienable.  This, the first lesson of the American experiment, was demonstrated when our Founders asserted the people’s right to declare independence from the crown and to engage in a legitimate act of revolution.  That right, as the Declaration explains, does not arise from light and transient causes but from a long train of abuses and usurpations, which the Founders took care to enumerate in their appeal to the natural law from which sovereignty and sovereign rights derive.  Moreover, the sovereign people’s right to revolution is limited by the natural bounds of reason—had the Founders’ rational appeal to their fellows failed to persuade enough of them to willingly risk life and limb in taking up arms in revolution, the American self-government project would have foundered without a shot fired or a drop of blood spilled.

Self-government thus requires that the sovereign people enjoy meaningful exercise of the people’s right to associate with one another, their right to speak their grievances and invoke their right to self-government, and the right, in the face of an aggressor sovereign, to bear arms against it.  Mere paper barriers like the rights of habeas corpus and due process are without teeth in the face of unchallenged tyranny. The very essence of sovereignty includes a right to revolution, the right to enforce those rights.  It is the ultimate form of self-defense.

In other words, the rights expressed in the First and Second Amendments are the bedrock of the American project in self-government, and the font of our sovereignty.  That we can post on each other’s Facebook walls and experiment with Zoroastrianism and go duck hunting are happy byproducts of that sovereignty.  But it is silly to suggest these activities are why those amendments exist.  As Judge Alex Kozinski put it in his dissent to the Ninth Circuit’s denial of review in Silveira v. Lockyer:

The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed—where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

Even if you are with me thus far, you likely have some practical questions, like:  Are you kidding me?  In the wake of Aurora and Sandy Hook, are you telling me you would propose to the families of the victims that their loss is simply the price of abstract concepts of sovereignty, of a hypothetical “doomsday provision”?

Assuming we ever got past those questions, we’d then have to grapple with policy:  How do we justify contingent restrictions on something like a “doomsday provision” that represents a firewall between the People’s sovereignty and governmental power?  Sovereignty is a principle that can’t be mapped on a chart like the likelihood of another mass shooting incident, or the benefits of limiting magazine sizes.  How do we balance such unlike things?  This seems to be why we set up the conversation in terms of safety rather than sovereignty.  We can measure safety (or, we can attempt to), as the unending stream of charts and figures about lives lost because of guns and lives saved because of guns demonstrate.  It is much easier to consider compromises on the Second Amendment when it can be discussed in terms of measurable effects.  That which can be measured can be regulated.

Though the people’s inalienable sovereignty at the heart of the Second Amendment adds a layer of complexity, it is worth our consideration.  And preserving that sovereignty does not reduce to absurdity as easily as its detractors suggest.  Among other strange arguments, Matt Steinglass contends that “If Americans were in fact interested in privately owning weapons that allow them to contend against the US Army, semi-automatic weapons would be as useless as BB guns against a grizzly,” thus “they would need fully automatic heavy-caliber weapons, rocket launchers, anti-aircraft missiles and tanks.”  And in the comments at Dutch Courage, Patrick Cahalan walks through—much more thoughtfully than Steinglass—the possible scenarios of a people’s revolution against the modern national military.

I think these arguments miss the point.  First, rights do not depend on whether their exercise results in success.  If the right to bear arms is empty of meaning because revolution against the United States would be futile, then the right to speak against the government is empty for precisely the same reason.  The government might still permit its subjects to keep their .22 Remingtons and share cute cat videos—an homage to the byproducts of their former rights.  But if the government truly has reached that stage of Leviathan, rights are at an end and license is all that remains.  But as Patrick and Conor Friedersdorf take care to point out, it is important to consider the size and scope of our standing military if we truly are concerned—as we ought to be—about preserving the sovereign people’s actual (not merely an abstract) check against tyranny.

Second, it is not so clear that a legitimate revolution—one grounded in reason, arising from persuasive speech and the assembly of vast multitudes of engaged and free people—could not pose any meaningful threat to the national military.  Unlike other failed revolutions, Americans are educated, wealthy, and steeped in a history and tradition of the exercise of civil liberties.  Assuming there existed compelling grounds for revolution, the American people would be well suited to stoke and spread the spirit of revolution among themselves.  It is also not clear that the military’s possession of a nuclear arsenal could so easily squelch an uprising.  A revolution is unlikely to be confined to a single region, such that the use of nukes would result in at least as many loyalist as rebel deaths, not to mention a devastating loss of infrastructure.  More importantly, it would have the likely effect of quickly turning loyalists against the government, having brutally declared such unrepentant tyranny.

This is not to say that I, being not so much as even an amateur military strategist, have much of an idea what kinds of arms a legitimate revolution would require.  But given that a legitimate revolution would first be required to draw large numbers to its cause, we need not presume that “fully automatic heavy-caliber weapons, rocket launchers, anti-aircraft missiles and tanks” would be required in the first event.  All that would be required, it seems, are arms enough to successfully carry out the first stage of a revolution and thereby meaningfully assert the people’s sovereign right to self-government and self-defense.  Neither the Second Amendment nor the notion of sovereignty affords any single individual the right to stockpile a private arsenal sufficient to vanquish the entire United States military on his own.

So are flash suppressors and bayonet mounts so obviously “pointless”?  Is this really a “pretty simple conversation”?  Is it really so difficult to understand why anyone is “even making this argument”?  Given all this, it doesn’t seem that way at all to me.

Each time a new tragedy occurs, we lament not “Doing Something” after the last tragedy.  This symposium, in fact, was timed specifically to keep the conversation going even after the initial shock of Sandy Hook faded.  But why should we suspect that we reached the wrong conclusion the last time—that repose is preferable when the alternatives are dubious at best?  The wake of a tragedy is fertile breeding ground for bad policy.  While I would not suggest any impure motives, crisis tends to squelch democratic deliberation and to legitimize otherwise illegitimate exercises of power—particularly exercises of power that offer amelioration of present exigencies in exchange for rights that, though bound up with the people’s inalienable sovereignty, seem unfashionable to modern eyes.  We ought to distrust our judgments about the constitutional right to keep and bear arms while still suffering the grief of a horrible, deadly tragedy involving guns.

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182 thoughts on “The Doomsday Provision

  1. I think these arguments miss the point. First, rights do not depend on whether their exercise results in success.

    Allow me to clarify the comment to which you link (thanks for the compliment about the thoughtfulness, btw).

    I agree with you, strongly, right here.

    If the right to bear arms is empty of meaning because revolution against the United States would be futile, then the right to speak against the government is empty for precisely the same reason.

    That’s absolutely true. And the post you have here, for a guy like me who otherwise more or less sits on the fence when it comes to the practical implications of gun ownership (generally, I think owning them for the purposes many Americans profess to own them is bad tradeoff analysis)… this is enough to have me consistently come down on the side of supporting the populace’s right to arm itself.

    My comment about the Second was more tied into the dynamics I see of people who are strong supporters of the Second Amendment. They tend to be strong supporters of a standing Army, particularly a well-trained, well-equipped, always-at-the-ready standing army. There is also a very strong correlation between these people and a distrust of the government on many, many fronts.

    I find this confluence of beliefs weird to the point of being nearly irrational, that’s all.

    The symposium is hard on me because I generally see most arguments in this problem space to be very weak. Most pro-gun arguments are weak. Most anti-gun arguments are weak. Most pro-gun-control arguments assume a lot of efficacy that simply isn’t justified, and make trade-offs that don’t affect the supporters negatively at all. Most anti-gun-control arguments assume a lot of loss of liberty that I don’t see.

    This is a pro-gun argument – or to be precise, a pro-gun rights argument – that is fairly strong. Yay, Tim.

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    • Patrick — This was Conor’s point as well. It’s worth making, for sure, but it seems more like a conversation about the inconsistency of political parties/movements. A meta-argument–an argument about the argument. Not a critique of the argument itself.

      I’ve also always been pro-gun-rights more or less by default, because of my philosophical presumptions, not because of the pragmatic arguments.

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    • This is a pro-gun argument – or to be precise, a pro-gun rights argument – that is fairly strong. Yay, Tim.

      Well, I’ll give credit to Tim for that as well. But at the end of the day I think the argument is incoherent. If the right to bear arms is justified by a practical purpose – the ability to overthrow the government in times of tyranny – then the right isn’t a natural right. If it’s merely a political right, then it can’t be justified as a right to overthrow the government. That’s incoherent, since acting on that right (the right to overthrow the government) entails the the rules of government granting the right no longer apply.

      I’ve read that the right to bear arms is a limitation of federal power against the states, which makes some sense, but again, isn’t a natural right (but rather a political right, the right of citizens of states to defend state sovereignty against federal incursion).

      If the right to bear arms is grounded in natural law, than it can only be justified (it seems to me!) by the right to self-defense. Is it possible to defend oneself from governmental tyranny? Not really, since governmental tyranny is an abstract property. But it is possible to defend oneself from individuals who are acting in a tyrannical way and who attempt to justify their otherwise unjust actions under the umbrella of “governmental authority”.

      But this just reduces the only plausible interpretation of the Second Amendment on natural law terms to a right to self defense. And frankly, there is no other way – by my lights – to understand it. (Unless we accept an incoherent justification.)

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      • I touched on some of this in my response to your other comment. But I disagree that just because a right, such as the right of self-defense, has a “practical purpose” it renders is a merely political and not a natural right. All rights have some practical purposes, but that is not dispositive of whether they are natural or political. The Second Amendment is not the Alpha and Omega of the people’s rights in this regard. None of the amendments are. The natural right to self defense, as are all our other rights, are presupposed in the Declaration and the Constitution (unless one takes the view, incoherent in my view, that the Constitution is a positive law document). The opposition to the Bill of Rights was that enumerating rights might define their limits. The 9th was supposed to negate that notion, but as we know the 9th is in disuse and disrepair.

        One could argue that Justice Thomas touches on this in Printz, that “This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment.” The “substantive right” would be that of self defense, of which the right to keep and bear arms (including its “practical purposes”) is just one subsidiary.

        So in that sense, I agree with you when you say “the only plausible interpretation of the Second Amendment on natural law terms to a right to self defense.” But more specifically, the right to self defense is just one of the rights presupposed by the Constitution as indicated by the Ninth Amendment. That includes the natural right to keep and bear arms, which also just so happens to be expressed in the Second Amendment.

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        • But I disagree that just because a right, such as the right of self-defense, has a “practical purpose” it renders is a merely political and not a natural right.

          I agree with that, Tim. I was understanding your argument a little differently (and perhaps incorrectly): that the justification of the second amendment is to accord people the right to oppose governmental tyranny. That, it seems to me, is incoherent (and not a natural right).

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    • Because that confluence is weird. You are correct on that.

      If one truly distrusts government, the *absolute LAST* condition they should want it told hold is that of having as many weapons and enforcers as possible. There’s a strain of gun enthusiast out there bitten by the militarism bug, imagining themselves as warriors with a clearly illogical romanticism of that which should never be romanticized. Add some other unsavory views into that stew pot known as their brain, & what I picture in the doomsday scenario is them not on my side, but the other, blaming people with my views and/or skin color for shit having finally hit the fan.

      At that point, I’d rather be armed too.

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  2. Nice post Tim.

    If the right to bear arms is empty of meaning because revolution against the United States would be futile

    I am not convinced that, in the event of this “Doomsday Scenario”, that armed civilian resistance would be as utterly futile as some people think.

    I mean, ask the North Vietnamese and the Afghans, amongst others, whether it is possible to resist, harass, and ultimately compel the exit of a much larger, better-equipped (and even nuclear-armed) occupier.

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  3. No doubt the Declaration is steeped in natural law. But the original, unamended Constitution is an exercise in positive law. It is mainly about the structure of the national government, the division of its powers between its branches and between the states. There is little, if any, reference to the idea of the people as a whole being sovereign or the ringing call for recognition of the inherent rights of humanity and all humans.

    It’s worth recalling that the Bill of Rights was adopted in no small part as a mollification to the Anti-Federalists, who were concerned about (among other things) overreach on the exercise of the national government’s power. That, I think, dovetails support into your contention that these amendments are creatures of natural law — explicated penumbrae of the rights painted more broadly in the Declaration.

    If that is the case, then the Ninth Amendment in particular seems like it ought to figure prominently in your thesis — it is not merely a guide to interpreting the other terms of the Constitution but a commitment by its Framers to the notion that the people, not the government and not even the Constitution, are the sovereign. That identification is something that both positivists and natural lawyers can agree is of critical importance.

    And now the twist: in 1791, direct democracy on a national scale was not logisitically possible. But in 2013, it is. Given the people-as-sovereign interpretation of the Constitution, ought we not to adopt some sort of national referendum process? And assign at least a degree of super-Constitutionality to the results of those referenda?

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    • “And now the twist: in 1791, direct democracy on a national scale was not logisitically possible. But in 2013, it is. Given the people-as-sovereign interpretation of the Constitution, ought we not to adopt some sort of national referendum process? And assign at least a degree of super-Constitutionality to the results of those referenda?”

      Not sure if this is a rhetorical question or not but no because it worked out oh-so well for California especially with Prop 13.

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    • It depends on what you mean by natural law. The Constitution as a positive law document would permit no deviation from “Congress shall make no law.” But of course we do not read it as a positive document but as a natural law document, employing our common sense and judgment to discern the purpose of the injunction and thus what its true contours are. The natural law tradition has always assumed that “neither the law nor its practitioners would be witless,” as Hadley Arkes says. (More on this subject in my review of Prof. Arkes’ latest book here: https://ordinary-times.com/timkowal/2012/12/book-report-2012/)

      Randy Barnett deals with the question of whether limitations on a sovereign people (i.e., limitations on direct democracy in the Constitution) are legitimate. The question is not easily brushed aside, but ultimately he concludes they are.

      http://www.amazon.com/Restoring-Lost-Constitution-Presumption-Liberty/dp/0691123764/ref=sr_1_1?ie=UTF8&s=books&qid=1293520041&sr=1-1

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  4. Great stuff. An tangential question, though, since you brought it up at the beginning and it directly relates to what I’m writing now for my own post.

    You compare the first amend. rights to the second, which seems right and proper. However, we all collectively agree that the first rights are not absolute; they only extend so far. Why then does it infringe upon our sovereignty to apply the same non-absolutist standards to the second?

    (I may quote your response in my post, WYP.)

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    • I don’t think that it does, from what Tim is laying out here, I suspect that he’s cautiously willing to accept certain restrictions on the Second, but in practice may find the particulars of any one proposal to be not worth the tradeoff.

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    • Variations of this question have prompted an enormous amount of scholarship, but here’s my very brief take:

      I find it helpful to think of constitutional rights as serving a “government limiting” function as well as a “rights protecting” function. Yes, the freedom of speech is a sacred an inalienable right. But what exactly is the freedom of speech? Does it have any limits? There are many perspectives on this, but mine is that there is no right to do a wrong. There is no moral right to shout “fire” in a crowded theater to satisfy an malign desire to wreak havoc. So when the government passes a law prohibiting this conduct, are we “compromising” or “striking a balance” between liberty and order? I don’t think so. Instead, I’d say the government is just preventing conduct that no one has a right to do in the first place. This applies to child pornography, probably to many (but not all) instances of “fighting words,” defamation, and so on.

      But this approach doesn’t always apply. Often we can’t make a clear judgment that speech is morally unjustified. And the First Amendment seems to require that we put our thumb on the scale of allowing speech when we can’t make that justification. That’s where we get into the “government limiting” aspect of rights: Because we presume a broad sphere of protected activity when it comes to speech, for example, the First Amendment has a prophylactic effect, requiring that government give it a wide berth, what the Court calls “strict scrutiny.”

      I think the same approach would apply to the Second Amendment. There is no right to do a wrong. How do we know whether the keeping and bearing of certain arms is rightful? That’s why I think it’s important to look at the primary purpose of the Second Amendment, which is to preserve sovereignty. Safety is important too, and the Heller decision guarantees an individual right (not just the right of a militia or in the context of revolution) to keep and bear arms. My point here, I guess, is that maybe I really am an absolutist about rights, it’s just that I see rights as somewhat narrower than are commonly understood. We don’t protect evil conduct because there’s a right to do evil. It’s just that, to protect rightful conduct, we have to honor limits on government especially as it relates to activity closely bound up with sovereignty, like speech and arms.

      This is not very coherent. Sorry, my mind is elsewhere.

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      • Let me just try to clarify along the lines of your question, and if you need more, I’ll be happy to try. Most importantly, I would not apply an “absolutist” standard to one amendment and a “non-absolutist” standard to another. Different rights and amendments have different purposes, and may be treated differently accordingly. But at a very high level of abstraction, my approach (as in, this is not necessarily the way courts would approach it) would be to determine the moral basis of the right at stake, and thus its scope and how wide a berth government should give it. I suppose that’s really how I’d characterize what is commonly called “balancing” rights against government interests: If rights just don’t seem that important—not “fundamental to an ordered society,” “rooted in history and tradition,” or whatever other rubric you like—then we still call them rights, and the government still must honor them to some degree, but we take our thumb off the scale and give government just as much weight (more, in cases of economic liberty, for instance) as rights.

        So maybe that’s what the arguments in my post speak to: the as yet unanswered question of what standard of review/level of scrutiny the Second Amendment deserves. As much as speech? As little as economic liberty? I’ve tried to tie the First and Second Amendments tightly together here, so you can guess my answer.

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      • This line of thinking seems to parallel my own paradigm about governmental powers and individual rights: powers end where rights begin.

        I get a little bit wonky about phrases like “there is no right to do a wrong” because what is wrong to you might be right (or less dramatically, neutral) to me. But I think we’re moving down parallel, if not converging, tracks of thought here: Where there is no right to individual autonomy, the government may legitimately regulate as it chooses, exercising “power.” Else, we are in the realm of “liberty,” and the government must keep its hands off.

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      • Ok, here’s another thought for you, Tod. Something Stillwater said made me think of this. If the right to self-defense/self-government/keep and bear arms is not contingent but based on the principle of sovereignty, then it shouldn’t matter what the minimum amount of firepower it would take to mount a successful revolution. If that were so, that same principle would lead us to conclude that the government could restrict us to reading two newspapers a day, or viewing just three blogs a day, etc., because that’s the minimum amount of speech you’d need to exercise your sovereignty. But we know that’s not how the First Amendment works: you get unlimited speech, even if it’s overkill and we spend our entire day commenting at the League of Ordinary Gentlemen. So wouldn’t that mean we have a right to unlimited arms, even if it’s overkill, such that we can privately own tanks and fighter jets and the rest?

        I admit I don’t have a fully satisfactory answer to this, but consider: We do not allow anyone to have a monopoly of speech, which is why we have the FCC that apportions frequencies to a variety of content providers. Conceivably, were there no regulation of the airwaves, a single company could monopolize it and effectively control the majority of information most Americans consume. That would be bad because it would undermine the very principles of free speech and association.

        I think that could be analogized to the idea of a single private individual amassing an entire military unto himself, including nukes. Once he had done so, he could, for no reason than his personal whim, conquer a chunk of the U.S. and claim it for himself, and the U.S. would have no recourse but to risk a nuclear conflict. Likewise, that would undermine the very notion of a sovereign people deciding their own destiny according to principles of liberty and consent.

        I’m not sure where the line ought to be drawn, but seems to me it’s somewhere between those two points of a minimum allotment and an effective monopoly that would enable one person or group of persons to usurp the people’s sovereignty.

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        • I have to say, much of this feels like you’re trying to force the analogy into odd keyholes to win the day.

          I suspect, at the risk of *under* thinking the matter, that the reason we draw the lines where we do with free speech has nothing to do with the reasons you propose. I suspect, instead, that at some point we collectively agree that the freedom given to the individual becomes detrimental to society without providing an adequate benefit to said individual. Part of the logic of the apocryphal Fire/Movie House example isn’t just that it can maybe, possibly, under the right circumstances cause harm to the community; it’s also that it does so without providing a tangible benefit to the individual.

          Likewise, we don’t allow Occupy Movement camps to station themselves indefinitely in public places. We agree on the right to assembly, but we take into account both the cost to society (including access to nearby businesses and crime increases) *and* the increasing diminishing value to the protesters over time, and eventually we bring in law enforcement. I can sign an affidavit that I worship Risk Management as a God, but if I try to exempt my consulting fees from taxes then we have no problem with looking at the cost to society of my not chipping in my fair share over the small value we perceive I lose by paying taxes the way other people in RM do.

          I can’t think of a single right where we don’t *all* say – at the point that a right provides little enough value to the individual AND it is detrimental enough to the people around that individual – “Well, that isn’t really what we had in mind with this particular right. Sorry.” Excepting, of course, for gun rights.

          What makes guns different to today’s run-of-the-mill, absolutist, fight-every-suggested-restriction 2nd amendment defenders?

          Because I’m having a hard time shaking the notion that it’s basically (and quite understandably) tribal, and that all the arguments are just being backed into.

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          • If that were so, Tod, then we should expect to find a limited constitutional right to free speech to criticize the government and perhaps some other activities, with the rest of speech subject to local regulation. But we don’t have that. The First Amendment expresses a very broad protection, which is not surprising given the understanding at the time that none of the enumerated powers granted to Congress threatened such rights anyway (which was initially disabused beginning with the Alien and Sedition Act).

            I wonder whether you’ve misunderstood me (which would be my fault; my comments were muddled). I don’t take an “absolutist” position on either speech or guns. In both cases, we employ common sense (natural law reasoning) to determine the purpose of the rights. With speech, it is promotion of democratic vitality, search for truth, and the good life. With guns, it’s self-defense and self-government, as well as other secondary benefits (recreation, etc.). We allow time place and manner limitations on speech, and I don’t see why the same shouldn’t go for guns (putting efficacy questions aside): neither subverts their ultimate purpose. We even allow content restrictions on speech, analogous to banning certain types of arms.

            None of this is drastically altered by my arguments. All my argument purports to do is refocus the first part of the analysis: to the purpose of the right, which informs the second part of the analysis: what kinds of restrictions will be permitted.

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  5. I enjoyed this post a lot, and agreed with much of it.

    I think the right to bear arms as a check against tyranny is a little bit less compelling in terms of outright revolution. Given the ponderous mass of our military, I think even heavily-armed civilians would be seriously outmatched. No, I think an armed citizenry is a more genuine check against establishing a secret police state. It’s much harder to make inconvenient citizens disappear in the middle of the night when it’s quite reasonable and within their rights to be armed against that possibility. And I think that’s a wholly legitimate argument for allowing citizens to bear arms, numbering among the reasons I personally support doing so.

    I do wonder if your argument does not seem to sweep away any reasonable restriction against private gun ownership. If an armed citizenry is the “doomsday provision,” how can a government ever legitimately circumscribe it?

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    • One thing I was wondering about myself:
      This whole line of thought tends to support the notion of private militias; a la Pinkerton.

      I don’t really feel comfortable with that.

      Or the idea that Ken Lay (or name you villain here) could have a private military backing him up.

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    • Russell — Some here have suggested we’d need much more firepower than current law allows, and others much less. And maybe we already have the right amount. I don’t know the answer, though I’d guess we may already have plenty, and I tend to agree that a revolution would just require successfully storming a few supply depos.

      Point being, I don’t think my arguments would drastically change gun laws, just how we talk about them and maybe how we arrive at them.

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        • Something like that. But here’s one example of how a policy outcome might be different, though it makes me nervous: Based on the arguments I’ve presented, there may be less justification than previously thought to ban armor-piercing bullets since, in a revolution against a tyrannical government, it’s precisely the “cops” that the revolutionaries will be engaged in a legitimate contest.

          As for the rhetorical frame, I’ll again cite to Patrick’s comment:

          The weird dichotomy to me is that most of the very strong gun rights advocates, who cite this – defense from tyranny – as a reason for standing against gun control measures as a foundational principle, are also huge fans of having an extremely large, well funded, astronomically well outfitted military.

          Who do they think is going to be shooting at them in the event of tyranny?

          Exactly. Assume that my arguments led to the conclusion that private individuals need enormous arsenals of ghastly firepower if they’re going to stand a chance against the standing military we have today. Mightn’t we ask whether we can avoid such a terrifying standoff by reducing the size of the standing army a bit? Ok, some on the hard right might say “Bring it on!” But overall, it might underscore the precarious standoff that these two right-of-center policies lead to when taken to their logical conclusions.

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            • I dunno. Coast Guard?

              More seriously, it is a broad question, and the one liberal democracies are doomed to endlessly grapple with: What price liberty? And what price security? “Ensure the safety” to what degree? We could make crossing the street illegal, require maximum speed limits of 3 mph, and otherwise make Michael Bloomberg blush with all the safety-enhancing policies we could think up. Yes, to the extent we have a strong principle of liberty and respect for the sovereignty of the people, the government loses authority to use coercive measures even for good things like making people safe. To some degree, that’s a zero-sum game.

              But it might be argued that more liberty leads to more security in some respects. I have only a passing familiarity with it, but there’s the “more guns less crime” argument, for example. And hell, I’m slowly (not there yet, but who knows) moving towards at least decriminalizing drugs. This is a good example of the interaction of the “right to do wrong” principle and the “presumption of liberty” principle. I happen to believe drugs are wrong, and there is no right to do wrong, so there. Ah, but then you’ll ask me which drugs are wrong, and why. And I’ll give you some reasons, that some drugs cause people to do dangerous and unpredictable things, though not all. For those drugs that don’t pose any significant risk of harming others, and because of our presumption in favor of liberty, you could argue that we should give the benefit of the doubt in favor of letting people use those drugs as they see fit.

              I think the presumption of liberty factors in the gun debate. There is just not much strong evidence that a deferring to liberty on this issue leads to much more harm, and maybe just as much evidence that it prevents harm. I’ve been citing a lot to the contributions at Volokh Conspiracy the past few weeks to this effect. Given the state of the evidence, shouldn’t we fall on the side of not regulating guns more than we already are? And that seems to be the right conclusion even if you only put gun rights on par with economic rights (which have already been much maligned in our justice system, in my opinion).

              But the short answer is, again, I don’t know. I think it would take an analysis regarding military strategy to help devise an answer.

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      • That’s not what I get from reading him.

        What I get is that the cops use overwhelming force if there is suspicion of no guns and they come in and shoot the dogs and set the curtains on fire with flash bangs… unless they think that the person is armed. At that point, they get behind their cars and yell things through megaphones.

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  6. The idea that “violent rebellion is only wrong if you fail to actually overthrow the government” seems depressingly circular. Isn’t this basically just embracing the fact that winners write the history books?

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      • Well, no, but what I’m getting at is that if there’s a right of violent rebellion as a last resort against tyranny, there needs to be some method of deciding when to use that right. And “when the gun owner thinks so” is deeply unreliable as a method–after all, the Ruby Ridge people surely thought they were justified.

        When Tim says that ” the sovereign people’s right to revolution is limited by the natural bounds of reason—had the Founders’ rational appeal to their fellows failed to persuade enough of them to willingly risk life and limb in taking up arms in revolution, the American self-government project would have foundered without a shot fired or a drop of blood spilled.”

        I take him to be saying that any successful revolution will be morally justified. I certainly don’t think this is the case. After all, you could argue that the failure of Reconstruction was an example of an armed populace successfully resisting what they saw as a tyrannical government.

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        • The Ruby Ridge people weren’t trying to overthrow the government.
          The gov’t had received a number of tips from a neighbor with an axe to grind, and acted on false information, without bothering to even attempt to verify it.
          Once the ATF surrounded the place, they shot the man’s wife dead. She opened the front door holding the baby in her arms, and they were so jumpy they didn’t even really bother to look before they fired; and they put a slug right through the middle of her forehead.
          From there, the situation went downhill quickly.

          And the first thing he did after the multi-million dollar settlement was to buy a corvette. He had always wanted one since he was in high school.

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        • I’m not saying that “any successful revolution will be morally justified.” I don’t think that’s implied in what I’ve said, unless I’m not seeing it. At any rate, successful crackpot revolutions are certainly a possibility. Success is not a sufficient condition for a morally justified revolution. It’s not even a necessary condition.

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    • I would suggest that it’s hardly self-evident that armed revolution, even against a clearly tyrannical state, is morally justified. At least in the context of an irregular, insurgency-type conflict, there’s ample historical evidence that such wars tend to lead to horrifying body counts and a substantial risk of inflaming ethnic or religious tensions. I’m not going to argue that it’s better to live in a tyranny to live free amid rubble and death, but it seems that that argument needs to be made before we consider access to the tools of armed revolt to be a necessary aspect of popular sovereignty.

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      • If you mean it’s not enough to just sit around as a disconnected bystander, uninvolved in the political process until, suddenly, you discover you don’t like what’s going on and where’s ma’ gun? then, yes, perhaps. But I hope it’s not plausible that could happen on a wide enough scale to mount a legitimate (e.g., sufficiently numerous, and based in moral arguments for liberty and self-government) revolution.

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        • First off, I’d like to make it clear that this is largely, but not entirely, a devil’s advocate argument. But I think that, if we’re talking about relatively (emphasis on “relatively”) benign tyrannies, then the costs of a protracted civil war/insurgency start to look very high. Is it worth it to inflict an experience on your country like that of Algeria, Vietnam, if the alternative is to live in an unfree, but not absolutely horrific society? Certainly if you’re on the receiving end of a genocide, or simply living under an absolutely horrible government like China during the Cultural revolution, armed resistance is justified. But if we’re talking about tyranny like that experienced in China today? Russia today? I’m not so sure “liberty or death” is actually a reasonable or morally justified approach – particularly when the death involved will be suffered by far more than the active revolutionaries.

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          • Yeah, if someone put up the call to arms against the “gummint” today, it would be absurd. Sure, a lot of what the government does falls in the category of tyranny, carried out not by brownshirts or blackshirts but by shirts with smiley faces on them, in Jonah Goldberg’s imagery. But there still are many, many political rights at our disposal to effect self-correction. Until those self-correcting tools are removed or made utterly futile, I don’t see a viable argument that doomsday has arrived.

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            • You’re being too kind to my argument. I’m suggesting that even if our tools of self-correction are taken away, violent revolution might still not be morally justified if the government is tyranical but not engaging in really, really horrible stuff, i.e. genocide, cultural revolution-esque levels of repression, or the like.

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      • This is true but it is also very hard.

        Should the Spanish civil government have let Franco and his fascists take over the government? They were legitmately elected left-government and the right-wing immediately revolted.

        How do you get rid of dictators then if no armed-revolution is morally justified? Are the people of Syria just doomed to life under dictators?

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  7. Very thoughtful post Tim. Very philosophical. And lots to digest. I’ll jump in here:

    First, rights do not depend on whether their exercise results in success. If the right to bear arms is empty of meaning because revolution against the United States would be futile, then the right to speak against the government is empty for precisely the same reason.

    A couple of things. The first is that I agree with you in that “rights do not depend on whether their exercise results in success”. A right isn’t an action, so considerations of consequences are irrelevant wrt the concept of a right. The way I’d say it is that acting on a right is it’s own success. That is, the ability to act on a right is what constitutes having that right. So I’m unclear what you mean when you say “If the right to bear arms is empty of meaning because revolution against the United States would be futile, then the right to speak against the government is empty for precisely the same reason. . Acting on the right to bear arms means being (legally) permitted to actually posses arms (guns and stuff). Owning guns is an expression of that right. Likewise, acting on the right to free speech means being (legally) permitted to say whatever you want.

    And here’s where I get confused. It seems to me that if the justification of the right to bear arms requires that armed rebellion against tyranny be actually possible, then that right is contingent (not necessary, since it requires a state of affairs to be the case). And that means, to me, that it’s not a natural right.

    Rather, it seems to me that the right to bear arms – if it’s a legitimate right on a natural law account – is justified as the right to self-defense against both civilians as well as agents (read: individuals) of government. But that it cannot be justified as a right to act against government full stop.

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    • Stillwater — I didn’t say, or didn’t mean to say, this: “…the justification of the right to bear arms requires that armed rebellion against tyranny be actually possible….” I thought I was saying the opposite when I said “rights do not depend on whether their exercise results in success.” I did go on to say that we ought to “consider the size and scope of our standing military if we truly are concerned—as we ought to be—about preserving the sovereign people’s actual (not merely an abstract) check against tyranny.” But I did not mean to suggest by this that the check has to be “actual” or “actually possible” for the moral justification of the right to exist.

      Because, yes, if I had said that, your conclusion would follow: the right would be contingent, thus not based on principle, and thus not a right at all.

      I also agree with your last paragraph.

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  8. Here are my questions about the tyranny argument:

    How do we decide whether armed rebellion against a “tyrannical” government is legitimate or not? Isn’t this an exercise that is going to be largely in the eye of the beholder?

    This is not to say that there are not legitimate revolutions or acts of resistance against a government. The American and French Revolutions were legitimate. Acts of resistance against Fascists and Nazis were commendable of course.

    But more often than not one person’s heroic resistance is another person’s unlawful act of insurrection and treason. This is true for almost every Civil War in the history of mankind: We still argue it about the American Civil War, Spain is still haunted by those who supported and opposed Franco, etc.

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    • “How do we decide whether armed rebellion against a “tyrannical” government is legitimate or not?”

      In a way, it would be decided in the most democratic way imaginable: You could agree the rebellion is legitimate, and thus risk your life, fortune, and sacred honor to support it, or not (and possibly risk the same depending on the circumstances). No men in black robes. No legislators. No electoral colleges. No casual, eenie-meenie chad-punching.

      If you’re asking how we judge revolutions after the fact, then such things are always eye-of-the-beholder. Sandefur (linked in the OP) does a nice job examining why the American Revolution was legitimate where the Confederacy was not, as an example.

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  9. More pointedly:

    Suppose that Christian Dominionists sweep into power at all levels of government and begin a campaign against non-Christians. Homosexuals, and other enemies. They also begin passing laws to nullify legislation and court decisions meant to protect minorities. Would you say that those minorities now have a second Amendment right to protect themselves? Does it matter on how those groups came into power? What if the Christian Dominionists rise to power was through gerrymandering and legislative chicanery but otherwise a corruption free election?

    Can someone be in lawful resistance to an act of emenient domain even if the Government is willing to pay the person well above the market value for their property and it is a legitimate project for the public good?

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    • +1. If Republican’s suddenly somehow managed to get 67 seats in the Senate, 300-odd (whatever 2/3) is in the House), and put 4 clones of Thomas on the court and proceded to flay the welfare state, ban abortion, gay marriage, and hand the National Parks over to Exxon, and eliminate what little civil liberties we still had, and made guns mandatory for teachers to carry, I still wouldn’t think that was cause for rebellion.

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      • At the very least it might get me to move up north to Canada or across the pond to the UK or Ireland, across the other bigger pond to Australia or New Zealand or exercise my right of return to Israel.

        I am not completely against the idea that people have a right to civil resistance against tyrannical government or fascist overtakers. I have a soft spot for those who defended the Spanish Republic and the resistance movements against the Nazis. However, I do note that one person’s heroic resistance is another person’s unlawful insurrection. Since it is the right-wing that normally thinks the 2nd Amendment protects us from tyranny, I want to see if they would support armed resistance from some very non-right wing groups.

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        • I can’t speak for the right wing, but this libertarian absolutely feels that minorities in the US would be well-served to exercise their Second Amendment rights; the KKK might’ve had a much harder time lynching well-armed men.

          Now, when it comes to “at what point should any minority group take up arms against a tyrannical government”, as you note, that is a sticky question, and it’s going to depend on the group and the situation. I don’t have a real answer. Look at something like Wounded Knee for a semi-recent example of how messy these kinds of things can get. Not necessarily a lot of clear “good guys” there; yet there’s no question that both the Fed govt., and the internal Indian government, were failing those people.

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  10. Why does everyone assume “the government” means the federal gov’t and army? To a young black man living in the deep south in the 30’s the gov’t was that sheriff and his deputies who dressed in white hoods and sheets on weekends and invariably voted Democrat, likewise keeping him from voting at all. Politics is local and insurrection is also. We wouldn’t have a “Red Dawn” event against the Federal gov’t nor is it even remotely likely that army troops would fire on civilians unless things have well and truly gone into the crapper.

    Now should for example Obama drive the ship of state into a shoal and then declare a national emergency and refuse to step down as President after 2016, there would certainly be some complaints. One thing keeping presidents in this country from doing exactly that is the thought of hundreds of millions of guns in the hands of citizens of various stripes including ex-military. The President of Honduras attempted a kind of coup flouting their Constitution that only allowed one term in office and only the braindead folks in our state department supported him. Ever wonder why? Precedent see: Venezuela, Ecuador and Nicaragua.

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    • Wow. So much here.

      1. What would you have had that young black man do about his disenfranchisement?

      2. Why does it matter that the Klansman sherrif was a Democrat?

      3. There is nothing but vaporous paranoia behind a fantasy that President Obama would hang on to power beyond his lawful term. Similar fantasies were aired, with similar foundations in reality, about President Bush. Similar odds exist of those fantasies becoming manifest in 2017 or any other point in the reasonably foreseeable future.

      4. A would-be modern-day Caesar would need at a minimum the support of the active military, from the brass all the way down to the buck privates, to even attempt a coup like what you describe. If he had that, chances are pretty good he’d also have the political support of a large number of those gun-toting civilians. It doesn’t make any sense at all that if the military had lost all of its respect for the rule of law and our governmental institutions, other parts of society would have kept it.

      5. What does any of this have to do with Honduras? Neither side came out particularly clean in the 2009 coup and couter-coup; both President Zelaya and the Micheletti faction in the Honduran Congress violated the Honduran Constitution in their own ways and the choices for places where the U.S. might deposit its diplomatic support are between Bad and Less Bad.

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    • ward,
      “the government” means the coal company, some places. Or the natural gas company. And they kill, too.

      Not that I see anything being done about ’em.

      So forgive me if I think that the assassinations that occur on American soil are not likely to be prevented, as they aren’t being prevented now.

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    • This for sure isn’t the 30’s. Troops have and will draw blood from civilians, thats what the first few peaceful waves have shown. Local problem sheriffs are easy to deter, as they can be easily “disappeared” and typically are in the first rounds of revolution. The vast military complex becomes an issue, you can’t disappear that one. The complex is good at funding itself so to kill it at the ballot box hasn’t worked. It becomes a hit and run scenario backed into a Red Dawn situation. Long guns/overwatch are valuable in those schemes.

      Refineries, oil rigs, and fuel sources are hit first, aviation fuels depleted by attrition. Tanks and humvees, drones without fuel, there wont be much use for IEDs. Much better to set off several rounds of improvised high yield thermobarics within the industrial military complex to let them know their playhouse can catch fire, as can Washington if need be.

      The trick is to not present any soft or hard targets. Alot of second guessing on what is and isn’t a target. Our military and police have no idea what to do without defined targets. It would be the ugliest game of whack-a-mole our military has ever seen, as the moles are well armed and technically apt.

      Thats one estimate of what it would look like.

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          • Let’s change that to peaceful civilians. I agree with you on Kent State and Wounded Knee (lawful protest) but not Ruby Ridge and Waco. Those were people resisting investigation and/or arrest and were willing to let their family members and innocents be human shields to make the government look bad.

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            • This is not to defend Koresh (the Davidians were pretty much the prototypical skeevy cult mess); but in the case of Ruby Ridge, my limited reading indicates it is likely that the gov’t was largely to blame for how things ultimately went down.

              And even in the Waco case, I can’t say that the gov’t really needed much help in making itself look bad – again, this is not to absolve Koresh or the Davidian leadership for their actions; but man, I have to wonder if there was a way to get those kids out without burning them to death. Seems like they could have nabbed Koresh when he was on a trip to the 7-11 or something, but they wanted to make it a media event.

              They sure got one.

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              • From what I have read Koresh had a reasonably good relationship with the local law enforcement. If the Feds would have had the locals pick him up it probably would have been a much different ending.

                The local enforcement has been very reasonable and not adopting the para-military garbs where I am, and I have offered them harbor if SHTF. At first they kinda laughed it off, they aren’t laughing so much anymore. Best I can tell, their out gunned 400:1 in this area.

                The blood I mentioned earlier was in reference to the blood letting at what should be peaceful rallies that have went on over the last couple of years. We shouldn’t be seeing that much blood out of peaceful protests. It gives an indication of what the military will be willing to do. When peace fails, things get ugly.

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  11. A simple question: If we created arms depots or armories (with not only rifles but also other weapons needed to fight a merely logically possible insurrection) around the country that local mayors, town councilors, National Guardsmen, or some kind of trained citizen-experts not working for the feds had access to, which they could help distribute to citizens in an emergency, would that obviate the right to small arms ownership by individuals?

    I mean the second amendment pretty clearly states that each state has the right to form a militia, comprised of citizen volunteers, and these groups could resist the federal government somewhat plausibly. In olden times, the state militias were comprised of people who brought their own weapons. But having the citizens bring their own weapons is neither necessary nor sufficient for the existence of such a militia that could fight the federal government.

    If we’re going to take the second amendment seriously as a right to fight for a state against the federal government (disturbing and awful, IMO, given that the feds were right to use coercion and the threat of force in southern states during the civil rights era) then private ownership of small arms is neither necessary nor sufficient to securing that right. The guns a state “anti-fed” militia could use could be stored outside of homes and should include weapons that we wouldn’t want individuals to own (anti-materiel rockets, fully automatic weapons, mines, etc.)

    We would need safety features to make sure those arms depots weren’t raided by nuts or murderers and that the locals who did have access to them were responsible for them. But that seems more achievable than trying to lower the murder and suicide rates without reducing gun ownership.

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    • Also, we don’t think that the second amendment gives an individual person (not an individual state, but a person) the right to use force or to be prepared to use force against the federal (or local state) government when that person believes that she must do so, right? Maybe you do.

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    • Not a bad idea, but then you have to have the ability to allow your militia to train with said weapons, and you need to ability to prevent the local government from deciding to hide the keys to the armory (there is no tyranny like the tyranny of local politicians).

      Keeping arms distributed amongst the population prevents any one person from holding all the cards.

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      • If I were setting up such a system today, I would assume a structure that would start with the individual citizen-soldiers owning and keeping their own basic arms (e.g., rifle, side-arm, and bayonet as well as non-weapon equipment) and being organized at the lowest, local, level possible with some larger weapons stored in community armories. These would then be organized through the county, regional, and state levels with ever larger, more potent, weaponry at each level. Important caveat would be that you might have really big stuff like tanks and planes at the state/regional level but anti-tank and anti-aircraft weaponry would be at a lower (county/local) level.

        If we’re going to take the 2nd seriously then we really need to take the 2nd seriously. Yahoos playing with military grade rifles in the woods isn’t taking the 2nd seriously. How can you expect me to take you seriously if you aren’t taking yourself seriously?

        Cutting the Pentagon down to size and limiting the ability of the Executive to engage in military adventurism while providing a structure for training and discipline among gun-0wners (who would be practically everybody) is the kind of trade-off that would make this liberal much more respectful of the right to keep and bear.

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  12. I really think the “well-regulate militia” part actually, you know, means something.

    Of late, however, it seems like the aforementioned appendix of the Second Amendment. Apparently just there to round out the paragraph, you know — filler.

    Me? Well, I tend towards the historical — the second amendment was designed entirely to ensure a milita/army could be raised quickly, preferrably with their own guns. Also, probably a bit of paranoia about on the Federal/State level.

    I don’t really think “individuals” mattered, insofar as a state raising a militia would be composed of them. (After all, the Constitution at the time used words like “individuals” or “persons” but really meant “white males”).

    I realize it’s mutated into a purely individual right, but honestly the whole thing — in context — seems entirely designed to ensure the federal government doesn’t deprive STATE governments of the ability to raise militia. Since we have a National Guard, which is under state control (unless called up), and they stockpile their own weapons and equipment (civilian stuff doesn’t meet their standards), frankly I don’t think an individual right to bear arms would probably make it into the Constitution if it was written today.

    But again, it appears those words have become pure filler. Especially, strangest of all, in the hands of strict constructionists. Who you’d THINK would find many, many tea leaves to read in both the bold words of “well-regulated militia” and, you know, the facts on the ground in 1776 regarding armies, militias, and the federal and state governments.

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  13. I am former soldier, disabled by Combat but still will never surrender my Flag, Country, Constitution, Religion, Family to any enemy Foreign and domestic. I will never willingly surrender my guns, some going back to the Civil war. I have my Grandpa Taylors 44/40 Henry, and it holds 15 rounds. Its antique and it came down through my mothers family to me. I took an oath at 17 and I live that oath!

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  14. I’m pretty sure Morat20 and Shazbot3 have it right. Now this doesn’t obviate Tim’s basic thesis, that the purpose of the 2nd is wrapped around the concept of the people as sovereign. But when we say that “the people” are sovereign we normally don’t take that to mean that “each person” is sovereign. Rather, it means that, contrary to the then extant concept of an special individual or group sitting on top of the pyramid and being in charge, the sovereignty wraps around and devolves back to the people being governed through democratic mechanisms.

    I don’t believe the framers would have recognized this notion of a the 2nd as a Doomsday Provision. Their idea was that the populace at large would constitute the standing army, thus making it practically impossible for a would-be usurper of the people’s sovereignty to use the military to advance his aims.

    Now it hasn’t worked out that way for various reasons (War of 1812, Indian Wars incident to westward expansion, etc.) and we have a substantial, extremely well-armed, and technologically sophisticated standing army. Perhaps the Doomsday Scenario is the best we can do under the circumstances, but it’s a decidedly second-best solution compared to the original concept, seeing as how exercising it would entail significant bloodshed that the original, distributed, citizen militia concept would have avoided.

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