I’m moving this essay up in the queue, because while walking my dog in the rain—such rote activities like dog-walking, showering and driving often trigger “right brain” activities and inspirations—it all became clear to me for the first time.
One aspect of the argument being offered by anti-gun zealots following this school shooting that is new compared to Sandy Hook is the sudden popularity of the term “weapons of war.” it was used multiple times at the very start of the CNN “town hall,” for example. Rep. Deutch:
But, beyond that, the best way for us to show that is to take action in Washington, in Tallahassee, to get these weapons of war off of our streets.
…and the answer to the question is, do I support weapons that fire-off 150 rounds in seven or eight minutes, weapons that are weapons of war that serve no purpose other than killing the maximum number of people they can, you bet I am.
And that is making sure that we take action to keep our kids and our schools safe and to get dangerous weapons of war off of our streets. That has to be our priority and we’ve got to do it now.
My interest is not whether it is a wise or good thing to ban semi-automatic weapons. The U.S. Court of Appeals for the 4th Circuit ruled last year that Maryland’s ban was constitutional, and the Supreme Court, so far, at least, has not chosen to review it. A national ban, however, would certainly require SCOTUS assent, and my guess is that such a law would fail, and as I will continue to explain, should fail.
“Weapons of war” is nowa pejorative phrase designed to make the most popular rifle in America sound as if owning one is perverse. “Weapons of war” suggests not just self-defense, but active combat, and it certainly doesn’t mean hunting deer and rabbits. Following Sandy Hook, a lot of the anti-gun rhetoric, as from New York Governor Cuomo, involved the deceitful (or ignorant) argument that you don’t need a semi-automatic rifle to shoot a deer. This vigorous false narrative is as old as the Left’s anti-gun, anti-Second Amendment movement itself.
Thus “weapons of war” is now the phrase of choice to persuade moderate, uncommitted citizens considering the gun controversy that it makes no sense to allow citizens to own such weapons. Hunting weapons, sure (at least until there’s a mass shooting in a school using those). A registered handgun to shoot a burglar, a rapist or a home invader? Fine. But “common sense gun controls” can’t possibly allow citizens to have “weapons of war.”
The problem is that allowing private ownership of weapons of war is exactly what the Founders intended. The Second Amendment was devised to ensure that citizens would not be disarmed by a government that needed to be overthrown, or, in the alternative, that some citizens wanted to overthrow, but wrongly.
The Founders were, it should not be necessary to say, revolutionaries. They believed that citizens had the right and even the obligation to bring down abusive governments. Jefferson stated it directly in the Declaration of Independence:
“Prudence … will dictate that Governments long-established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
Jefferson was a brilliant man, and no dreamy-eyed idealist. He could not have assumed, feeling the way he did about governments, government power, and the men who come to possess such power, that governments could always be dissolved peacefully. As a prudent and practical man, he was also saying that it is unwise to seek to change a government every time it fails or disappoints, and that long-standing systems deserve the public’s tolerance, patience and forbearance. Government should be a contract of trust, and that when that trust is irreparably broken by abuses of power, the people must have the right, and must have the ability to activate that right, to demand a new form of government.
This is, of course, exactly what the 13 Colonies did. The Constitution they adopted when they began their experiment in democracy naturally and necessarily included a crucial right without which future generations of Americans would not be able to “throw off” a government whose abuse of power had become odious. That was the right to bear arms, embodied in the Second Amendment. The arms one had the right to bear had to be weapons of war, because fighting—civil war, revolution, wars of resistance—was their explicit purpose.
The militia reference, so confusing to so many for so long, reflects the fact that in 1792, volunteer militias were the means by which such armed citizens would execute Jefferson’s “right…duty.” The argument, which I have read frequently in the last few weeks, that the Second Amendment is archaic because the National Guard is the equivalent of the Second’s “well-regulated militia,” is either willfully or negligently obtuse. The National Guard fights for the government, and is part of the government. It cannot protect the people from the government. Again, that’s why citizens must be able to have “weapons of war.”
Muskets were weapons of war in 1792. Repeating rifles and revolvers were weapons of war in 1860, when the Confederate states decided to execute Jefferson’s option and seek to overthrow what they felt was a government overstepping its legal and constitutional bounds. Could Lincoln, if the Civil War had not begun before he had mastered how to find all the rooms in the White House, have legally announced that citizens could no longer own “weapons of war” and confiscate them, claiming that shotguns and hunting rifles were all any citizen “needed”? He could not. The public’s understanding of the Civil War, like so much in the country’s culture today, has become warped by an obsession with race and slavery since the civil rights era, helped along by historical revisionism and, again, poor education. The South’s action in attempting to secede was squarely within Jefferson’s principles as established by the Declaration of Independence, and thus consistent with the core ethical values of the Republic. The Declaration does not proclaim that the reasons why the people may determine that a government has broken its contract must meet certain ethical standards, but only that the public reaches that conclusion. There can be no argument that this was the position of the slave-holding states in 1860, and had been for many years. The Confederacy chose to exercise its right, established by the Declaration, to to “throw off such Government, and to provide new Guards for their future security.”
They were able to do this, or at least make the effort, because citizens had “weapons of war,” as the Second Amendment guaranteed. And sure enough, the national government that in their view was abusing power–whether or not we agree today that Lincolnwas morally and ethically right is irrelevant—sought to block their effort to throw off the government using force. That the South was ultimately defeated, and that in its defeat the evil of slavery was erased from the land and the evil of racism slowly receded, does not alter the fact that the citizens of the Southern states were following the principles of the Declaration of Independence, and without the right to own “weapons of war,” they could not have done so.
Had the positions of the North and the South been reversed, had the North taken up arms to form a new government when the national government protected and embraced the practice of selling human beings as chattel, and successfully formed a better government and culture, the negative connotations of citizens owning “weapons of war” might be very different today.
While generally avoiding the morass of Second Amendment controversies after the Civil War, the Supreme Court did impose some limits on how far private ownership of “weapons of war” could go. After the landmark Heller decision, upholding the individual right to bear arms, the Court ruled in Caetano v. Massachusetts (2016) that the Second Amendment extended to all forms of bearable arms:
“The Court has held that the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding, and that this Second Amendment right is fully applicable to the States.”
The cases and legislation broadening or limiting what weapons could be constitutionally restricted is still a mess, with court rulings that any weapon that would not be normally employed in a militia (Which militia? 18th Century militias? 21st Century?) could be forbidden, another holding that weapons that are widely owned (like semi-automatic rifles) cannot be banned, badly written legislation lumping disparate weapons together, and “barn door” legislation passed in haste and panic, like the Gun Control Act of 1968, which was drafted following the assassinations of Bobby Kennedy and Martin Luther King. Among other provisions, that bill banned importing guns that have “no sporting purpose,” further confusing the public and warping debate to this day. For the Second Amendment was not created to preserve the right to engage in sport. It is a serious Amendment—deadly serious.
The Second Amendment exists as a fail-safe, an insurance policy, consistent with the Founders’ wariness of entrenched power and the human tendency of those achieving power to abuse it. Stipulated, some kind of balance must be struck. A government must be able to enforce its laws, or the state will descend into chaos. It cannot permit narrow interest private armies and wealthy individuals to challenge the will of the people and republic using force. Yet citizens alos must not be defenseless and without recourse in the event of government abuse, or when faced by other threats to the public good. It cannot be restated enough times that the Declaration of Independence, which is the mission statement for the United States of America that the Constitution enables, proclaims this principle expressly, making it an underlying ethical value of the nation and its culture.
This doesn’t mean that one has to agree with that principle, but to disagree with it one must understand and acknowledge it exists. I assume that most Second Amendment opponents do not understand the principle. They certainly don’t sound like they do. Those who use “weapons of war” as a term to disqualify certain weapons from Second Amendment guarantees either don’t acknowledge that the core principle exists, or are deliberately misleading those who don’t understand its historical and philosophical context.
The same interests within the country that would reduce the Second Amendment to a guarantee of nothing more vital than a right to confront a sneak thief or shoot a duck appear to many—I am neither endorsing nor rebutting this view here—to be on the verge of an effort to achieve Jefferson’s “throwing off” at this very moment, making their intense efforts to disarm citizens either ironic or sinister. Understandably, they would like to accomplish this as easily as possible, and certainly without armed conflict. “The resistance,” with which a large segment of the Democratic Party has allied itself, has asserted that it does not recognize the elected President of the United States as legitimate. Its allies in the judiciary have attempted to block the execution of lawful measures; cities and states are openly defying Federal authority. “Resistance”-allied academics and elected officials are arguing for removal of the elected President using justifications that have never before been recognized as grounds for impeachment. Progressives have belligerently supported policies that appear to directly contradict core American values, such as race and gender-based distribution of opportunities and jobs; government confiscation of private property for redistribution to favored classes and groups, suspension of due process, restrictions on free speech, reduction of the freedom of religion, and allowing foreign interests, in the form of world government, to make laws affecting the activities of American citizens
Many conservative commentators have suggested that if it appeared that this government was about to be “thrown off” by what a significant portion of the public regarded as a contrived and unjust use of the impeachment process, armed conflict could be a real possibility. It does not matter whether this is true; what matters is the warning. The warning is important, and the ability to warn—that is, threaten—is one of the main purposes and functions of “weapons of war.” This is why the United States has a nuclear arsenal (the opponents of the Second Amendment tend not to support that, either), and why the Founders believed that citizens needed to be able to let a despotic government, or rogue factors seeking to undermine the will of the people, know that they would not submit without a fight. They might lose, but they would not submit quietly. This is an essential, vigorous and admirable component of the American character.
In a recent article, The Federalist’s John Daniel Davidson recalled that the late novelist David Foster Wallace had written a short essay on “The American Idea” that included this passage…
Are some things still worth dying for? Is the American idea one such thing? Are you up for a thought experiment? What if we chose to regard the 2,973 innocents killed in the atrocities of 9/11 not as victims but as democratic martyrs, ‘sacrifices on the altar of freedom’? In other words, what if we decided that a certain baseline vulnerability to terrorism is part of the price of the American idea? And, thus, that ours is a generation of Americans called to make great sacrifices in order to preserve our democratic way of life—sacrifices not just of our soldiers and money but of our personal safety and comfort? In still other words, what if we chose to accept the fact that every few years, despite all reasonable precautions, some hundreds or thousands of us may die in the sort of ghastly terrorist attack that a democratic republic cannot 100-percent protect itself from without subverting the very principles that make it worth protecting?
Wallace asked if the American people had arrived at a point after 9/11 where safety, security and avoidance of the risk of physical pain and misfortune were now more important than our other traditional values, notably individual liberty. Now Davidson asks,
More than a decade later, we are still incapable of serious discussion of the trade-offs between safety and freedom. For the most part, we’re not even able to admit that such trade-offs exist.Are you ready for another monstrous thought experiment? What if we decided that a certain baseline vulnerability to mass shootings is part of the price of the American idea? In some ways, mass shootings are a more apt example of what Wallace was talking about than terrorism. After all, we can arguably do something about a worldwide ideological and religious movement that uses violence as a political weapon—and we have. Whether the aggregate cost in American blood and treasure has been worth it is another question, but it suffices to say that we can do much less about a random madman intent on killing innocents than we can about ISIS and al-Qaeda.
Davidson demands that we accept the historical and philosophical reality that I believe the “weapons of war” talking point tries to obscure. The right to revolution is crucial to the American idea:
“In this, America is unlike the European nations that gun control advocates like to compare it with. Germany can restrict the right to bear arms as easily as it can—and does—restrict free speech. Not so in America. If we want to change that, it will involve a substantial diminishment of our constitutional rights as we have known them up until now. After last week’s school shooting, some Americans are okay with that, especially those families who are grieving. But I suspect most Americans are not willing to make that trade-off, and might never be—unless they suffer the same of kind personal loss.”
I don’t share his optimism on that point, exactly because the popular argument that owning “weapons of war” should not be regarded as a core right has been allowed to infect the public debates without immediate and effective rebuttal.
The American idea is worth fighting for, and the contention that one can fight for it without effective weapons is ludicrous except to those who would exchange liberty for safety, and those who have never committed serious thought to why the Bill of Rights exists. Insisting that being an American citizen means that one has the right to own such weapons is an indispensable assertion: We do not want to fight, we will try to avoid a fight, we shouldn’t have to fight, we probably won’t fight an should never have to–but if we have to, we will. That we have that ability is essential to protecting that right, which the Declaration of Independence used 250 years ago to explain why the United States was being created.