Monday, February 18, 2013

Why the "Overthow a Tyrannical Regime" Justification Doesn't Hold Water

Over the past months and years, I've been encountering the following premise as to why we have a Second Amendment and why we need a Second Amendment, expressed most recently (and publicly) by the NRA's Wayne LaPierre:
Our Founding Fathers wrote the Second Amendment so Americans would never have to live in tyranny.

For any foreign entity to attempt to encroach on that great freedom is offensive to every American who has ever breathed our free air, or who has ever used a firearm to fend off an evil attacker – whether a criminal breaking into their home, or in defense of their family against a tyrant halfway around the world.

Our Second Amendment is freedom’s most valuable, most cherished, most irreplaceable idea.  History proves it.  When you ignore the right of good people to own firearms to protect their freedom, you become the enablers of future tyrants whose regimes will destroy millions and millions of defenseless lives.
A brief search for "second amendment tyrannical regime" throws up a number of websites that - to a large degree - parrot this premise, what I call the "overthrow of a tyrannical regime" premise. There are many reasons why I find the arguments that use this premise to be disturbing, and one of them is that it's just indefensible on so many fronts, especially Constitutional, historical, and definitional ones. (I'm not even going to cover the completely laughable logic-fail that even a quick assessment of the tactical lopsidedness of civilian armament versus military armament, which the DailyKos did a good job of covering from a historical context as well.)

Not a Valid Equal Protections Defense
The US extends all the protections of the Bill of Rights to all citizens in addition to all residents of and visitors to the nation. A Kyrgyz tourist has the same Bill of Rights protections as a Spanish work visa holder, a Vietnamese holder of a green card, a naturalized Pakistani, and a "native born" US citizen. (And the point that the Bill of Rights extends to everyone in the US, including non-US citizens, ought not to be a controversial position.) As David Cole wrote:
In particular, foreign nationals are generally entitled to the equal protection of the laws, to political freedoms of speech and association, and to due process requirements of fair procedure where their lives, liberty, or property are at stake.
Indeed, Cole points to Founding Father James Madison as to the rationale behind this position that many xenophobic citizens and lawmakers in the past and present (conveniently) fail to fully recognize:
[I]t does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that whilst they actually conform to it, they have no right to its protection. Aliens are not more parties to the laws, than they are parties to the Constitution; yet it will not be disputed, that as they owe, on one hand, a temporary obedience, they are entitled, in return, to their protection and advantage
In short, if you have to follow the rules of the Constitution, then you should be protected by those rules and enjoy those right, just like every US citizen that has those protections and enjoyments. That's just fair. Indeed, the Founding Fathers only limited the following two things to US citizens:
  1. the right to vote
  2. the right to run for federal office
Nothing else was written into the US Constitution as specific rights and liberties that only US citizens could have.

All of this is important, because you have to recognize that the entirety of the Constitution is effectively a protection for all people who follow the laws of the United States, citizen and non-citizen alike. (You do something illegal, especially a felony, and then your rights become curtailed, and if you're not a citizen, they can get curtailed significantly more than for citizens, since citizens don't get deported or held for deportation.)

What this preamble means, though, is that "Arab-looking" male non-US citizens have the same right to purchase and carry firearms as the average US-citizen gun owner (i.e., a White man). If you find this problematic, then you don't actually believe in the Bill of Rights and the Constitution. Your position on the gun regulation debate is therefore invalid.

Let's move further, though, and use the logic behind many gun-rights proponents who say that the PURPOSE of the Second Amendment is so that people can overthrow a tyrannical regime. If you believe that this is true, and you believe that the Bill of Rights covers all people in the US, then you must also believe that foreign nationals should be allowed to purchase weapons for the purpose of overthrowing a tyrannical regime (and since no definition is ever really given for what a "tyrannical regime" is, other than a hint that it's what the speaker says it is, we will have to also allow foreign nationals to use their own definitions). If you find this problematic, then you either don't actually believe in the universality of the Second Amendment, or you can start to see the problem of the "logic" used by anti-gun-regulation groups.

In short, you can't both say (A) that the Bill of Rights protects citizen and foreigners alike while they are in the US and (B) foreign nationals cannot take up arms against what they perceive to be a tyrannical regime, but US nationals can. If you believe (A) to be true, you must believe (B) to be true if you do believe in the "overthrow of a tyrannical regime" premise. If you don't believe them both to be true, then there is a fault in either (A) or (B).

Not a Valid Historical Defense
One might argue that a foreign national who tries to overthrow the US government is committing an act of war. Well, but a US citizen who tries to overthrow the US government is committing an act of treason (and possibly an act of war, too). The reason why these would be acts of war and treason is simply because there is no Constitutional protection for taking up arms against the US government, even if you are a US citizen. This ought to be pretty clear when you look at the history surrounding the Civil War and every assassination attempt (whether successful or not). If it were legal to try and overthrow the US government, then the Union's entering into a Civil War would not have happened for the reasons that it did. Furthermore, if it were legal for individual citizens to try to overthrow the US government by getting rid of a tyrant, then that should have been a justifiable line of defense during trials of assassins, would-be assassins, and conspirators. The fact that overthrowing a tyrannical government was never used (let alone used successfully) as a defense for the actions taken to try to topple or overthrow the government should (in a sane world) imply that it's not a valid defense of this line of argumentation.

Furthermore, we can look at the reason why the Second Amendment was written: Shay's Rebellion. It was also first tested in the Whiskey Rebellion. As Pierre Atlas wrote over at IndyStar:
One reason the framers replaced the Articles of Confederation with the Constitution in 1787 was the inability of that older system to aid Massachusetts in putting down Shays' Rebellion -- an armed insurrection by men who believed their government had become tyrannical. Shays' Rebellion was on everyone's minds at the Philadelphia convention, and the Constitution they crafted empowers the national government to suppress any armed resistance to its authority.

A few years after Shays' Rebellion, another group of men used their guns to resist what they believed was a tyrannical government. Only this time the country was operating under the Constitution, not the weaker Articles of Confederation. In 1794, proclaiming that the federal government had no right to tax whiskey, hundreds of armed men in western Pennsylvania went on a rampage, terrorizing local tax inspectors and a U.S. Marshal. President George Washington called up an army of 13,000 men from four states and, leading the force himself on horseback, put down the Whiskey Rebellion.
Indeed, the arguments used for gun ownership at the time of the writing of the Constitution and the subsequent Bill of Rights was not that of overthrowing a tyrannical regime. Pierre Atlas describes the prevailing anti-regulation sentiments of the time:
Here is how those constitutional skeptics understood gun rights in 1787: "That the people have a right to bear arms for the defense of themselves and their own state and the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals." Significantly, these original pro-gun activists did not suggest a right to own weaponry in order to defy the government.
In short, there is no historical evidence to point to the rights of gun ownership stemming from a need for the citizens to overthrow a tyrannical regime. Not at the founding. Not at the time of the Whiskey Rebellion. Not at the time of the Civil War. Not at the various times when assassination was attempted.

Not a Valid Definitional Defense
People who use the "overthrow of a tyrannical regime" logic seem to fail to recognize that there appears to be no actual legal definition of how to determine exactly what constitutes a tyrannical regime; one which would be Constitutionally legal to overthrow. Indeed, many people who use this rationale appear to be implying that their definition is the correct one; that they know best, and that if your definition doesn't match with theirs then your definition is wrong, and you're a criminal. This is one of the major problems that comes about when a Constitutional, legislative, regulatory, or judicial definition doesn't exist (or isn't widely promulgated): the public tend make up their own (or adopt the arbitrary definition held by a group). And many in the public believe themselves to be reasonable (and - by extension - their personal definitions are reasonable), which makes positions opposite to theirs unreasonable. Therefore, even while citizen A and citizen B might both agree with the "logic" behind the "overthrow of a tyrannical regime," if they don't agree on whether this government (or any successive government) is sufficiently tyrannical, then each will consider the other to be a criminal for even proposing its overthrow. In short: definitions are important, but we don't have a working definition of "tyrannical regime", which means that the public are making up their own individual definitions.

Part of the reason why such a definition doesn't exist is that it would either need to already be defined by the US government (which is the very body that would not relish defining the terms of its violent-yet-legal overthrow) or be defined after a successful coup d'etat. Since there doesn't exist any definition, then we have to presume that "tyrannical regime" would be defined after a successful coup d'etat (which is usually how coup d'etats work).

Since there is no valid definition of "tyrannical regime", any military action taken against any regime could easily be argued to be criminal, and it wouldn't be surprising that the justice system of that regime would be inclined to agree that the action was criminal and rule accordingly. Therefore, the lack of a definition of "tyrannical regime" makes for a very dangerous (and irresponsible) justification for armed revolt.

However, let's presume that an armed revolt against the government was successful (even though there was no prior definition that outlined how that government actually was tyrannical). After the successful armed revolt, there effectively is no US government and no US Constitution. To the victors go the spoils, and - much like the founding of the country, one gets to re-conceive and re-write the rules. In short, the justifications of the entire US Constitution as they currently stand are null and void, and this also negates the entire "overthrow of a tyrannical regime" premise.

Not a Valid Constitutional Defense
Finally, the "overthrow of a tyrannical regime" premise is not a good Constitutional argument against governmental gun regulation. The Second Amendment actually calls for a well regulated condition for the bearing of arms. Indeed, the premise of not wanting to maintain a large standing army in the new (and heavily indebted) nation of the early 1780s meant that Congress wanted each of the states to maintain well-regulated militias for the purpose of secondment to the US Army, if the US were ever to go to war again. These regulations were executed staring with the 1792 Militia Acts and culminated in the 1903 Militia Act that effectively disbanded the structure of the militias and reformed them as the national guard. The Founding Fathers did want regulation in the ownership and bearing of arms that they wrote the words "well-regulated" directly into the Second Amendment.

Also, let's not forget that the last SCOTUS decision actually said that there could be Constitutional regulations placed on gun ownership. As Justice Scalia stated in a recent interview:
What the opinion Heller said is that it will have to be decided in future cases. What limitations upon the right to bear arms are permissible. Some undoubtedly are, because there were some that were acknowledged at the time. For example, there was a tort called affrighting, which if you carried around a really horrible weapon just to scare people, like a head ax or something, that was I believe a misdemeanor. So yes, there are some limitations that can be imposed. What they are will depend on what the society understood was reasonable limitation.
In short, the presence of government regulation is written into the Second Amendment. Government regulation is Constitutional, even if you might argue about the interpretation of the SCOTUS decision under Heller.

I presented four lines of argumentation that show how the whole "overthrow a tyrannical regime" line of argumentation is just plain false. It's false on so many fronts that it's still amazing to hear people using it. (And knowing why it's just so plainly wrong makes it really annoying that it continues to be used as if it were a real, justifiable, and defensible position.) To summarize the above arguments against the logic of "overthrow a tyrannical regime" as a valid reason to halt any gun regulation:
  1. If you don't relish the idea of foreign nationals being allowed to purchase guns to overthrow what they believe to be a tyrannical regime, then you really shouldn't be swallowing this brand of anti-gun-regulation rhetoric.
  2. If you recognize that the US Civil War and the myriad assassinations and assassination attempts have not been justified upon the "overthrow of a tyrannical regime" logic, then you really shouldn't be swallowing this brand of anti-gun-regulation rhetoric.
  3. If you recognize that there is no valid definition of what is a "tyrannical regime," and that a successful overthrow of the government means that you don't need a definition, which throws the whole premise of the justification out the window, then you really shouldn't be swallowing this brand of anti-gun-regulation rhetoric.
    • Furthermore, since there is no definition, the operational definitions that people use are the ones they make up by themselves (or adopt as a member of a group), which means that there is no consistent social definition, either, which is why you really shouldn't be swallowing this brand of anti-gun-regulation rhetoric.
  4. If you recognize that the Constitution actually stipulates that the bearing of arms is to be well-regulated and that one of the most conservative members of the current SCOTUS openly states that certain regulations on gun ownership are Constitutional, then you really shouldn't be swallowing this brand of anti-gun-regulation rhetoric.
To put it more elegantly (and with more historic and military perspective):
No, the Second Amendment has never guaranteed individuals a right to use their arms to resist the government or its laws. As I learned myself when I enlisted in the Army more than 25 years ago, all personnel joining the Armed Forces swear to "support and defend the Constitution of the United States against all enemies, foreign and domestic." Domestic enemies are those who would attempt to overthrow, or resist with violence, the government of the United States.

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