The Right to Bear Arms

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” (Second Amendment – U.S. Bill of Rights)

In my backpacking days through Europe, I would pick up travelling companions, usually of European descent themselves. In many ways, one uncovered more about the Continent and its attitudes through these fellow pilgrims than through the sights and sounds, we would share. But, I often had to forebear the residue of Old World arrogance towards us rubes from the colonies. On one such occasion, a German university graduate decided to lampoon the Americans to me. As he knew very little about Canada, I suspected that he figured me to be a lamentable victim of a vast vassal territory of that great power to the south. And though citizen of that vassal state; the European disdain aroused in me, an unnecessary compulsion to defend my Masters.

In this game of petty nationalist one-upmanship, to which I found the Europeans well-practiced and adept, the rub against the U.S. took the stereotypical path; Native Indians, black civil rights and of course U.S. crime and murder rates, including gun control. European perplexity at the Second Amendment, as a pathological innovation of uncivilized rednecks also made the rounds. I neither enjoyed playing apologist nor at the time performed well. It really isn’t worthwhile when one’s interlocutor is speaking in pontiff mode.

I didn’t know that even then, the most liberal of Europeans states, Sweden, had worse per capita crime rates (excluding murder) than the U.S. I have witnessed the phenomena of rapidly rising crime throughout all of Europe in the next 30 years since this conversation, while the U.S. crime rate, having topped out in the early 1990s, has retreated to early 1960s levels. Indeed, except for murder, most of Western, Northern and Eastern Europe have crime rates comparable or well exceeding (i.e. Sweden, U.K.) the U.S. The Muslim influx, upon close inspection, cannot reasonably explain the larger part of this development

Whenever one views comparable international homicide rates in relation to levels of gun ownership, one is struck by the lack of strong correlation. There are too many confounding factors which cripple the effort to scrupulously isolate the relationship. Israel and Switzerland have comparable gun ownership to the United States. However, their homicide rates can coincide with countries of low gun ownership. Israel compares to Scotland, who only has a 5% ownership rate (1994). Switzerland compares to England/Wales with a 5% ownership rate (1994). Italy has a 16% rate (1992) and 74% of all homicides are gun related. New Zealand has a 22% rate (1993) and yet only 12% of all homicides are gun related.1These examples are not meant to entirely disabuse the gun control argument. However, what is worthy of disabuse is the simplism that reduces life to singularities.

The one argument, I made then, however lamely, and which is pivotal to the discourse here, is that when looking at criminality over any given point of time, one must include the more organized and efficient forms, conducted by states and their officials. State sponsored crime rarely figures in this type of debate; probably because there is naïve belief that state crime cannot occur locally to any great degree. But when the state becomes itself the agent of criminality, it becomes virtually impossible to statistically enumerate the pandemic or bring to justice all those who participated. A general amnesty, except for worse offenders, is often granted after the ordeal to arrest the continuance of social unrest, going forward.

The irritation that I have with this fruitless debate is the lack of intelligibility in the discourse. For, even if the issue remains an idle occupation of the mind in this land of my birth, the ideas behind the Second Amendment remain a stroke of political wisdom. Perhaps, in its present incarnation, the Second Amendment fails. But that failure is due to the particulars; not in the theoretical understandings and principles of the American Founding Fathers.

Unfortunately, the discourse has debased into infantile political squabbling about self-defense and gun-related murder rates. But although these social aims have merit in themselves and figure in the larger scheme of things, the Second Amendment was not instituted for these reasons. The Constitution largely sought to avoid social policy aims. Its intent was to practicably manipulate the existing sociopolitical structures, with an adult appreciation for the realities of human nature, in order to construct a durable, peaceable, cohesive and free society. However, as exhibited by the experience of German Kaiser Wilhelm II after Bismarck, constructing complex political structures, devices and machinations might prove imprudent if people of similar caliber as the originators are required to maintain them.

The premise behind the ‘right to bear arms’ amendment was that political structures, dependent only upon legal paper, were not worth the price of the script they were scribbled on, unless backed by force of arms and a militant consent of the governed. The American Constitution is unique in constructing political dynamics within its constitution in order to achieve a goal; rather than proposing a set of ideals to which the body aspires to attain and maintain.

A tyrant with a standing army or a person/oligarchy/faction with a private army can circumvent all the fashioned and forged political and legal devices that maintain liberty and security. If an autocratically-inclined general, with either Napoleonic-like zealots or well-funded soldiers, takes it into his head to cross the ‘Rubicon’, the wide distribution of private arms might give him pause and deterrence.

Might does not make right. Nor can right guarantee might or even its own survival. There is no strict correlation between the Good and the power to implement the Good. God must be both Good and Omnipotent in order for a virtuous cosmos to exist. Good is a pipe dream without Power. Power is a horror without Good. In ‘normative’ times, virtue might produce that elusive moral authority and consent of the governed which gives military weight to virtue. However, scrupulous rendering of history finds ‘normative’ times less than the norm.

Thus, the Second Amendment’s purpose was primarily to exploit Realpolitick realities in order to secure and maintain a society with free civic institutions. These arguments might appear esoteric and become lost upon the vast majority of citizenry within America; and certainly with foreigners abroad. There is astonishing lack of historical literacy and a pollyannish perspective on human nature. But in considering long-term consequences instead of next-quarter bottom-line results, the prudence of these underlying ideas have been validated by the atrocities of state-sponsored crime in Europe’s 20th Century. Almost six times as many Jewish civilians were killed in central Europe during a six year World War than all homicides committed in America during the whole of the 20th Century.2 And that is just a blip in Europe’s long 20th Century civil discord (Niall Ferguson).

All other considerations being equal; a political culture more skeptical of authority and with wide distribution of armaments ought to, in normal times, produce more crime and tilt toward anarchy. However, the probabilities for widespread tyranny, oppression, persecution, state-sponsored atrocity and genocide are greatly diminished. The cost/benefit seems far more favorable to the American experiment; both theoretically and empirically.

A secondary premise, also (small-r) republican in nature, historically validated by the Roman Republic/Empire experience, is that the health of a society/civilization requires the continued active and responsible participation of its individual citizens for its maintenance. When the citizenry abdicate their civic duties, the state feels it incumbent to fill the void. As this process of abdication proceeds, the ensuing, increased burden on state resources eventually overwhelms the state. Society will become overtaxed and over-regulated in order to maintain this state-provided civil liberty, peace, stability and welfare. Eventually the state begins to eat society’s seed money, which is required for future prosperity and state revenues. A spiral of diminished wealth produced by the society, which is further predated by the state out of necessity, ensues. The ancient Roman experience matches this dynamic faithfully, as has the modern American. The well-regulated citizen-soldier militia gives way to professional standing armies (more compulsory at first) and then to private mercenaries. The abdication of military duty by the wealthy in the 19th Century extends to the middle class by the mid-1960s, leaving only the poor and the blacks to maintain the ranks.

Specific to 2nd Amendment considerations, self-defense offloads the burden on state resources by providing Realpolitick deterrence to criminality. Granted that households that self-arm might invite criminal invasions with greater arms and intent to use, there is a law of diminishing returns to that upward armament spiral for the criminal. Calculations of risk to life and limb still factor if the household arms even with minimal effectual weaponry. Of course, this only relates to premeditated and semi-premeditated offenses. Upfront, widespread gun ownership invites more violent confrontations between home owner and invader. Hidden is the value of deterrence. (How does one honestly and accurately measure opportunity cost?)

The alternative is the wide-scale ramping up of policing forces in order to accomplish the same effect. Otherwise, being swamped like medical emergency staff, certain categories of crimes get attended while offenses, deemed of lesser import, become ineffectually or never enforced. There will be lack of timely response. As seen in corporations and governments (i.e. Hurricane Katrina and New Orleans), the further away the problem is from the decision-makers, the more layers of approvals required, the less intimate knowledge of and stake in the situation, the longer and costlier the resolution.

The cost to such ramping up of policing forces; besides material cost to state and society, is an increased sense and reality of oppression; decreased sense of individual control over one’s fate. The political balance between public power and private power becomes tilted and skewered toward the former; lending to increased peril of tyranny and autocracy. The upside is theoretically there are fewer technologically effective weapons floating about, available and accessible, particularly dangerous in unpremeditated situations. However, lack of individual household ‘fortifications’ simply invites the unscrupulous to greater frequency of house invasions.

Esoteric arguments for the overall, long-term common good of a society to which all benefit, will be lost on a mother, with dead son lying across arms; a bystander casualty of crossfire between rival gangs. The immediacy of a protracted period of unpredictable randomness of violence and ensuing climate of fear and anxiety will weigh more heavily on the psyche of civilians than theoretical and obscure considerations of potential mass and state-sponsored violence. A bird in hand… Besides, in up-and-coming generations of illiterates of history, civics, culture and critical thinking, along with the superficial and simple-minded arrogance of the moderns, the worldly wisdom and nuanced subtleties of 18th Century sages are easily dismissed.

However, the Second Amendment, even if prudent in its underlying philosophy, is deeply flawed in its design implementation. Part of the reason was the understandable inability for the Founding Fathers to foresee such unprecedented, rapid technological advancements in weaponry, which would disturb and disrupt the balances they were attempting to achieve. It exposed the folly of formulating a somewhat impregnable and static legal statute at the mercy of technological change.

A clean rendering of the Amendment, without impartiality, without an agenda, without concern about the potential horrible ramifications of faithful interpretation; must lead to the prospect that a citizen ought to have the Constitutional right to own a nuclear missile or other weapons of mass destruction. A faithful, literal definition of the term Arms must include anything by which a person defends oneself and attacks another.

Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American… The unlimited power of the sword is not in the hands of either the federal or state government, but, where I trust in God it will ever remain, in the hands of the people.”3

In the face of repeater rifles (20 rounds per minute) and Gatling guns (de facto 400 rounds per minute – 1976), the awful ramifications of a literal rendition of the Amendment engendered dishonest rendering of the Constitutional Amendment by consequent Supreme Court jurists. Early court decisions reserved the right to individual state militias, not individuals. Or alternatively, the right could not be infringed by Federal Law. But state laws were permitted to restrict, although the 14th Amendment (incorporation) had been passed by the time of these first court decisions.4 The National Firearms Act (1934) was passed, in response to the St. Valentine’s Day Massacre, attempting to regulate and restrict allowable firearms in the name of revenue-collecting measures. The ensuing Supreme Court decision5 sought, through sophistry, to limit the arms publicly available by tying it to those currently used in militias. An honest application of that understanding would see that that which is publicly available would advance in lockstep with whatever essentially non-existent state militias (now National Guards) were using.

The Second Amendment is simply bad constitutional law which Supreme Courts, in genuine and honourable regard for the public good, attempted to mitigate through various disingenuous interpretations. Indeed, there really doesn’t exist any intellectually honest relationship between current jurisprudence over the issue and the Constitution. The current state of affairs is really a political compromise between opposing factions, under the cover and guise of Constitutional niceties.

Perhaps, a constitutional revamping has never been politically feasible. But, if the courts had faithfully rendered the Constitutional Amendment as written; in light of the horrible practicable ramifications that it presently poses; would the nature of the debate be as idiotic as it is today? Would not necessity have forced a change in public attitudes towards the Amendment? (In union circles, it is called work-to-rule; showing the stupidity and unworkability of existing company rules and regulations by following them.)

The intelligibility of the public discourse is just too dumbed down and degenerate; too beholden to extremist factional dogmatism and mantra-like mottos. ‘Guns don’t kill, people do.’ Absolutely true! That is; until some robotics technician fabricates machines that start shooting on a randomizer algorithm. The truth of that slogan might become less evident. Even so; the critical issue becomes less motive and intent, than the extent of potential damage possible, through greater technological efficiency, in the hands of those so motivated. The greater concern for gun control opponents ought to be the consent of the governed; the continued support in future generations for principles which are less apparent in the face of immediate and emotional tragedies.

Likewise, those, who simple-mindedly assume a close correlation between availability of firearms and homicide, without giving due considerations to the potential and inclusion of state-sponsored crimes or all the other legitimate political and empirically substantiated concerns; deny their own cause of credibility. No doubt, the relationship between firearms and homicides exist; even if loose. It is simply intuitive and rational. Power-potential multiplied by intent roughly equals effectual-outcome. Increase the power potential, effectual outcome increases accordingly. It might not be scientific law. And certainly those major elements should be drilled down to get at basic roots of the problems. Nevertheless, sophomoric arguments that gun bans/control = safer society flies in the face of international comparisons. Other factors, without even giving consideration to unreported state-sponsored crime, often impose greater influences.

Those lobbies, which rely on constitutional scripts of paper, without addressing legitimate considerations of their adversaries, while protecting the spirit of their own concerns, are, in the light of the current technological environment, merely biding their time before some domestic atrocity of Twin Tower dimensions, jeopardizes the moral authority of their position.

What might a Solomaic or Solonic solution look like? If the concern is a last resort protection against tyranny in government; to what extent nowadays could a people with private arms deter a potential autocrat or oligarchy, who has the full hyper-power of a military-industrial complex at their disposal? This poses a complex and difficult calculation; since any potential tyrant would also have to factor in military opposition. Considering how sheepishly the Americans acquiesced on the TSA scans, it is credible to doubt whether the citizenry have the stomach for private insurrection against tyrannical government. (Besides, civil discord due to extreme sociopolitical polarization might be the greater peril to the U.S. body politic at this moment in time.)

However, the equation should theoretically be roughly determined by the minimum amount of potential military power that is required by the people to deter a would-be tyrannical autocrat/oligarchy/faction; if not from grabbing power, at least from sitting comfortably on the throne with relative peace and peace of mind. That equation should roughly determine the level of firepower the citizenry should be legally able to retain. Anything above that doesn’t really add much to the political deterrence. Increased firepower in the hands of private citizenship also poses the opposite threat of anarchic atrocity, which tends to engender desires for strong men to keep the peace (i.e. French Revolution –> Napoleon, Roman Republic civil wars –> Caesar Augustus). Also for consideration, is it preferable, in view of the current ‘moral’ state of the people, for individuals to provide their own deterrence to criminals or to have a strong, and potentially dangerous, policing force? To these considerations must be included the important, but not only effect on public safety, of firearm availability. To address a political and socioeconomic system which serves only a subset of the population, resulting in loss of faith, consent and participation by the alienated, might provide better public safety than gun control. To this, because of technological change, forced revisitation of the issue every quarter or half century would be prudent.

Because of the decline in crime rates since the early 1990s in the U.S., the gun control controversy has become somnolent. This essay has little immediate practicability or resonance. The exercise hopes to demonstrate a more intelligible and balanced, less partisan approach to these types of conundrums than the puerile level of thought that can be encapsulated on placards.

Footnotes:

  1. Gun City, “International Homicide Comparisons”, Updated 5/20/2006,http://www.guncite.com/gun_control_gcgvinco.html
  2. Between 1900-59 – 390,136 murders (Watenburg, The Statistical History of the United States, 1976) Between 1960-96 – 666,160 murders and non-negligent manslaughters (Statistical Abstract of the United States, http://www.census.gov/statab/freq/98s0335.txt
  3. Tench Coxe, Pennsylvania Gazette, Feb. 20, 1788. (Delegate for Pennsylvania to the Continental Congress.)
  4. United States v Cruikshank (1875), Presser v. Illinois (1886)
  5. United States v. Miller, 307 U.S. 174 (1939)
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