Politics & Policy

Regulating the Militia

The Second Amendment is about protecting ourselves from the state.

My friend Brett Joshpe has published an uncharacteristically soft-headed piece in the San Francisco Chronicle arguing that in the wake of the massacre at Sandy Hook, conservatives and Republicans should support what he calls “sensible” gun-control laws. It begins with a subtext of self-congratulation (“As a conservative and a Republican, I can no longer remain silent . . . Some will consider it heresy,” etc.), casts aspersions of intellectual dishonesty (arguments for preserving our traditional rights are “disingenuous”), advances into ex homine (noting he has family in Sandy Hook, as though that confers special status on his preferences), fundamentally misunderstands the argument for the right to keep and bear arms, deputizes the electorate, and cites the presence of teddy bears as evidence for his case.

Brett, like practically every other person seeking to diminish our constitutional rights, either does not understand the purpose of the Second Amendment or refuses to address it, writing, “Gun advocates will be hard-pressed to explain why the average American citizen needs an assault weapon with a high-capacity magazine other than for recreational purposes.” The answer to this question is straightforward: The purpose of having citizens armed with paramilitary weapons is to allow them to engage in paramilitary actions. The Second Amendment is not about Bambi and burglars — whatever a well-regulated militia is, it is not a hunting party or a sport-clays club. It is remarkable to me that any educated person — let alone a Harvard Law graduate — believes that the second item on the Bill of Rights is a constitutional guarantee of enjoying a recreational activity.

There is no legitimate exception to the Second Amendment for military-style weapons, because military-style weapons are precisely what the Second Amendment guarantees our right to keep and bear. The purpose of the Second Amendment is to secure our ability to oppose enemies foreign and domestic, a guarantee against disorder and tyranny. Consider the words of Supreme Court justice Joseph Story — who was, it bears noting, appointed to the Court by the guy who wrote the Constitution:

The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. 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.

“Usurpation and arbitrary power of the rulers” — not Bambi, not burglars. While your granddad’s .30-06 is a good deal more powerful than the .223 rifles that give blue-state types the howling fantods, that is not what we have a constitutional provision to protect. Liberals are forever asking: “Why would anybody need a gun like that?” And the answer is: because we are not serfs. We are a free people living under a republic of our own construction. We may consent to be governed, but we will not be ruled.

The right to keep and bear arms is a civil right. If you doubt that, consider the history of arms control in England, where members of the Catholic minority (and non-Protestants generally) were prohibited from bearing arms as part of the campaign of general political oppression against them. The Act of Disenfranchisement was still in effect when our Constitution was being written, a fact that surely was on the mind of such Founding Fathers as Daniel Carroll, to say nothing of his brother, Archbishop John Carroll.

#page#The Second Amendment speaks to the nature of the relationship between citizen and state. Brett may think that such a notion is an antiquated relic of the 18th century, but then he should be arguing for wholesale repeal of the Second Amendment rather than presenting — what’s the word? — disingenuous arguments about what it means and the purpose behind it.

If we want to reduce the level of criminal violence in our society, we should start by demanding that the police and criminal-justice bureaucracies do their job. Massacres such as Sandy Hook catch our attention because they are so unusual. But a great deal of the commonplace violence in our society is preventable. Brett here might look to his hometown: There were 1,662 murders in New York City from 2003 to 2005, and a New York Times analysis of the data found that in 90 percent of the cases, the killer had a prior criminal record. (About half the victims did, too.) Events such as Sandy Hook may come out of nowhere, but the great majority of murders do not. The police function in essence as a janitorial service, cleaning up the mess created in part by our dysfunctional criminal-justice system.

We probably would get more out of our criminal-justice system if it were not so heavily populated by criminals. As I note in my upcoming book, The End Is Near and It’s Going to Be Awesome, it can be hard to tell the good guys from the bad guys:

For more than twenty years, NYPD detectives worked as enforcers and assassins for the Gambino crime family; in 2006 two detectives were convicted not only of murder and conspiracy to commit murder but also on charges related to such traditional mob activity as labor racketeering, running illegal gambling rings, extortion, narcotics trafficking, obstruction of justice, and the like. This was hardly an isolated incident; only a few years prior to the NYPD convictions more than 70 LAPD officers associated with the city’s anti-gang unit were found to have been deeply involved in gang-affiliated criminal enterprises connected to the Bloods street gang. Their crimes ranged from the familiar police transgressions of falsifying evidence, obstructing justice, and selling drugs seized in arrests to such traditional outlaw fare as bank robbery — they were cops and robbers. More than 100 criminal convictions were overturned because of evidence planted or falsified by officers of the LAPD. One scholarly account of the scandal concluded that such activity is not atypical but rather systemic — and largely immune to attempts at reform: “The current institution of law enforcement in America does appear to reproduce itself according [to] counter-legal norms . . . attempts to counteract this reproduction via the training one receives in police academies, the imposition of citizen review boards, departments of Internal Affairs, etc. do not appear to mitigate against this structural continuity between law enforcement and crime.”

The Department of Homeland Security has existed for only a few years but it already has been partly transformed into an organized-crime syndicate. According to a federal report, in 2011 alone more than 300 DHS employees and contractors were charged with crimes ranging from smuggling drugs and child pornography to selling sensitive intelligence to drug cartels. That’s not a few bad apples — that’s an arrest every weekday and many weekends. Given the usual low ratio of arrests to crimes committed, it is probable that DHS employees are responsible for not hundreds but thousands of crimes. And these are not minor infractions: Agents in the department’s immigration division were caught selling forged immigrant documents, and DHS vehicles have been used to transport hundreds (and possibly thousands) of pounds of illegal drugs. A “standover” crew — that is, a criminal enterprise that specializes in robbing other criminals — was found being run by a DHS agent in Arizona, who was apprehended while hijacking a truckload of cocaine.

Power corrupts. Madison knew that, and the other Founders did, too, which is why we have a Second Amendment.

— Kevin D. Williamson is roving correspondent for National Review.

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