You vs Uncontrollable Gov Authority, Who Wins? Tyranny Prevention is a Core Purpose of the 2nd Amendment. People Must Be Able to Obtain Assault Weapons for this "Pre-Existing Right" to be Meaningful
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TYRANNY PREVENTION: A “CORE” PURPOSE OF THE SECOND AMENDMENT
Skylar Petitt. J.D. Candidate 2020, Southern Illinois University School of Law and former Army Infantry Officer, having served a combat tour in Afghanistan as part of Operation Enduring Freedom from 2011- 2012.
From [HERE] This Note argues that “tyranny prevention” is a core purpose of the Second Amendment which therefore necessitates protection for some quantum of military-style weaponry. It does so by examining the Second Amendment through the lens of the most commonly accepted modes of constitutional interpretation. This analysis is especially relevant today as courts struggle to decide what kinds of weapons are protected by the Second Amendment—and why. Although courts are understandably reluctant to engage with the topic of tyranny prevention and military weaponry, courts will not be able to properly define the scope of the right without engaging in a serious examination of the right’s core purposes. This Note seeks to do just that.
I. INTRODUCTION
“Hell yes, we’re coming for your AR-15, your AK-47!”
Former Democratic Presidential Candidate Beto O’Rourke1
The Second Amendment protects “the right of the people to keep and bear arms,” but the meaning and scope of this right is hotly debated today. One of the most contentious issues is whether the Second Amendment protects so-called “assault weapons,” including some rifles, shotguns, and other military-style weaponry such as the infamous AR-15. Before courts are able to resolve this question, a thorough examination of the Amendment’s purposes is warranted in order to ensure that the outcome is consistent with constitutional design.
This Note argues that “tyranny prevention” is a “core purpose” of the Second Amendment. To support this argument, this Note examines the tyranny-prevention purpose through the lens of the most commonly accepted methods of constitutional interpretation: textualism, historical, precedential, structural, pragmatic, national identity, and moral. Under any method of interpretation, tyranny prevention emerges as a core purpose of the Amendment which in turn necessitates the protection of some quantum of military-style weaponry.
Part II lays the groundwork by offering background information on the current state of the Supreme Court’s Second Amendment jurisprudence, the lower-court framework that has emerged from it, and an explanation of terms. For those who are more familiar with Second Amendment jurisprudence, Sections D and E—in which I define how I will use key terms throughout, as well as how I have broken down my understanding of the modes of constitutional interpretation—will be most useful.
Part III includes an analysis under each method of constitutional interpretation. Each section is presented (and intended) to stand on its own. Those more familiar with Second Amendment jurisprudence may find the Structural, Pragmatic, and National Identity sections most useful, as they put forth more novel arguments that have not been treated as extensively in other works.
Part IV concludes that some quantum of military weaponry is protected by the Second Amendment and then invites more discussion on the topic. As this question affects every American regardless of which “side” one comes out on, it is vitally important that this question is treated more extensively than is possible in a single student work. . . . .[MORE]
[skipping ahead, footnotes omitted can be found here]
2. Balancing Tyranny Prevention and Gun Violence
The pragmatic arguments against interpreting the Second Amendment to include a principle of tyranny prevention largely center around (1) the harm caused by so-called “assault weapons”; (2) the improbability of the United States ever becoming tyrannical; and (3) the impossibility of repelling the United States’ full federal might, including its host of tanks, missiles, and nuclear weapons. The next sections will address each of these in turn.
a. Tyranny Does More Harm than “Assault Weapons” i. Harm Caused by Tyranny
Strikingly, perhaps the most pragmatic argument in favor of the tyranny-prevention purpose is collective, rather than individual: tyranny prevention should not be excised from the Second Amendment because tyrannical government is likely the single greatest murderer of mankind in history. Tyranny—whether by the majority, minority, or government itself— is arguably the ultimate evil to be prevented when designing a system of government. And if absolute power corrupts absolutely,179 then it is only a matter of time before a government with power abuses that power. The 20th Century provides ample examples of this, showing the reach of tyrannical government and its incredible potential for wholesale slaughter of populations.
Perhaps the most well-known example of a 20th Century tyrannical government is Nazi Germany. Prior to the Nazi takeover of Germany, the Weimar Republic adopted a number of gun control laws, culminating in the required registration of all firearms and allowing confiscation of arms at the discretion of authorities.180 After Adolf Hitler seized power and transformed the government into a tyrannical dictatorship, he used those laws to forcefully and brutally disarm “enemies of the state,” as defined by him and the Nazi Party.181 He then began to exterminate these now-disarmed enemies. By the end of his dictatorship, Hitler had systematically killed an estimated 6 million Jews, 1.8 million Polish civilians, 312,000 Serb civilians, 250,000 people with disabilities living in institutions, roughly around 200,000 Romas (Gypsies), around 1,900 Jehovah’s Witnesses, at least 70,000 “repeat criminal offenders and so-called asocials,” and an undetermined amount of German political opponents, as well as “hundreds, possibly thousands” of homosexuals.182 These staggering numbers include only those that could be considered Germany’s own people at the time of their extermination; the total number of deaths caused by the tyranny of Nazi Germany increases when combined with the roughly 7 million Soviet civilians and 3 million Soviet prisoners of war under the regime’s direct control, or with the roughly 70 million total attributed to World War II itself.183
But there is real debate as to whether Joseph Stalin or Adolf Hitler holds the title for most murders. After coming to power in the communist Soviet Union, Stalin forcefully collectivized the land-working peasants, using previously established firearm registrations to disarm them in the process.184 As the head of a previously tyrannized system, Stalin was free to imprison millions in political prisons, collectively called the Gulag, where an uncountable number of souls were starved, executed, or literally worked to death.185 During the Great Terror, also called the Great Purge, Stalin executed at least 750,000 people thought to be dissenting members of his party (and anyone else considered a threat).186 While “revolutionizing” the economic system of the Soviet Union, Stalin initiated a deliberate killing policy related to nationality, wherein certain nationalities were deemed undesirable and shipped to the Ukraine in forced labor camps; somewhere between 1.5 to 3.3 million were deliberately starved to death in this way.187 The total number of deaths under Stalin’s tyranny are nearly impossible to pin down exactly and estimates vary greatly, from around 6 million to well into the tens of millions.188 This account is an extremely basic summary and is still difficult to comprehend.
Unfortunately, there is more. One of Stalin’s admirers, Chairman Mao Zedong, would not be outdone. He appears to hold the title for “greatest mass murderer,” and like both Hitler and Stalin, Mao inherited his gun control regime which he expanded to outlaw the purchase or possession of any firearm or ammunition “in contravention of safety provisions.”189 Once in control, Chairman Mao killed millions in the first decade of the “People’s” Republic of China,190 upwards of 45 million during the Great Leap Forward,191 and up to 1.5 million during the Cultural Revolution in which Mao purged the country of dissidents.192 The numbers are staggering, and the abuses are largely beyond comprehension.
Tyranny on this scale is not a relic of the past century. The realities of life in North Korea, which may fairly be described as a country-sized Gulag, are so abysmal as to lead the United Nations to declare: “The gravity, scale and nature of these [human rights] violations reveal a state that does not have any parallel in the contemporary world."193
North Korea is a well-known example of modern tyranny, but it should not be considered an anomaly. Tyranny is alive and well in the world today. Another egregious modern tyranny is China, a one-party, communist state whose President, Xi Jinping, is now president for life.194 The nine-member Politburo Standing Committee ultimately controls all aspects of governance.195
China’s abuses are well documented: somewhere between 1-3 million Muslims are kept in concentration camps where they are “re-educated” into healthy citizens.196 The Chinese government is forcefully harvesting organs from both living and deceased inmates from practitioners of Falun Gong, a spiritual discipline banned in China, for sale on the open market.197 Under the Communist Party’s regime, you can schedule a heart transplant weeks and months in advance—no need to worry, a heart will be ready for you one way or another.198 The Communist Party of China is an equal-opportunity tyrant: Christians are also routinely routed, detained, and driven underground.199 The list of abuses goes on and extends beyond religious persecution, but the point is made: tyranny is not a relic of the past.
ii. Harm Caused by “Assault Weapons”
With an overview of the harms caused by government-scale tyranny, we now turn to the harms caused by military-style weapons. The harms examined below include mass shootings and rifle-related homicide. The purpose of this analysis to compare the harms caused by tyranny with the harms caused by gun violence (particularly military-style weapons) in America and then ask an uncomfortable question: Which is more harmful, tyranny or gun violence? Using a pragmatic interpretation, this sort of weighing takes center stage. It is an awful calculus, but one necessary to confront.
Pinning down the number of mass shooting deaths is a complicated task because of reporting and recording issues across multiple organizations that are tracking the data.200 Nevertheless, we have some data to pull from, and even the most liberal estimates reveal a surprisingly low body count (especially in relation to tyranny-related deaths). For instance, the Washington Post reports of a running total of 1211 persons killed in 168 mass shootings since 1966.201
That number is shockingly low when compared to the millions of deaths attributable to tyrannical government in the same time frame. Let’s widen the scope by looking at all rifle-related deaths. The FBI reports 1437 homicides by rifle from 2014-2018, for a yearly average of 288 (rounding up).202 Even if we multiplied that number by 100 in order to simulate how many deaths have occurred by rifle over the past 100 years (just for the sake of argument), we would be looking at 28,800 deaths in 100 years—a paltry amount compared to the 6 million Jews slaughtered by the tyranny of Nazi Germany in less than a tenth of the time.
The numbers start to appear absurdly low when compared with other types of homicides. The FBI reports 297 deaths by rifles in 2018—which, to be fair, could be underreported given that it characterizes 900 incidents as “other weapons or weapons not stated.”203 Even still, in the same year the FBI reports 672 homicides by hands, fists, and feet; 443 by blunt objects such as clubs and hammers; and 1515 by knives or cutting instruments.204 Even if all 900 “other weapons or weapons not stated” incidents were attributed to rifles, there would be 1197 deaths by rifles and 1515 by knives.
This analysis is not intended to minimize the horrific loss of life suffered in mass shootings and firearm homicides—every life lost in violence is a tragedy, especially when it could have been avoided. However, a truly pragmatic approach to the present question must consider the bigger picture and coldly evaluate the numbers. The question is: which is worse for society, tyranny or military weapon-related gun violence?
iii. Balancing Tyranny and Rifle-Related Gun Violence
The numbers are hard to refute. Even the low estimates of tyranny- related deaths dwarf the deaths caused by “assault weapon” violence. There simply is no comparison, in the grand scheme of history, between these two evils.
Not only is tyranny destructive (to put it mildly), it is axiomatic that disarming the population is a preferred method of accumulating all powers into the hands of a single body. As Justice Story put it: “One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia.”205 The Second Amendment, as he saw it, was a “powerful check upon the designs of ambitious men.”206 As has already been quoted here, he considered the right to keep and bear arms the palladium—as in, the protection—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.”207 This resistance to tyranny was precisely “the protection intended by this clause of our national bill of rights.”208
Justice Story was right then, and he is right today. His assessment—that one of the ordinary (but not exclusive or even necessary) modes of imposing tyranny is to disarm the people, thereby accumulating a monopoly of force— has been repeated throughout modern history. This, of course, happened in Nazi Germany, Soviet Russia, and Maoist China.209 For the Second Amendment to remain the ultimate protection of our republic’s liberties, then, it must necessarily protect military-style weaponry of some sort in order to effectively prevent or repel tyranny.
The fact, scope, and destruction of tyranny must be balanced as part of the pragmatic equation. On the one hand we have the harm caused by tyranny; on the other, we have the harm caused by “assault weapons.”210 A cursory review of history and of gun violence statistics is sufficient to conclude that the harm caused by tyranny is by far the greater evil. Avoiding this evil must feature prominently in any balancing conducted on the right to keep and bear military-style arms.
b. The Probability that the United States Federal Government Will Become Tyrannical
But, some naively say, the United States could never become tyrannical. This is a patently absurd claim that nevertheless requires a brief rebuttable.
First, although the social, political, and economic nature of American governance is unique in world history, the people are not fundamentally different from any other people in history. Americans are just as human as anyone else. Have we as a people somehow evolved beyond the human frailties of envy, greed, and hate? When did we make this transition? At what point in our history did this transfiguration take place? Perhaps we became a nation of angels when we enslaved millions of people based on their skin color.211 Maybe we transformed into benevolent democrats when we interned 120,000 Japanese Americans on account of their ethnicity and our fear,212 or when we destroyed people’s lives on the barest whiff of communist sympathies.213 Or perhaps our enlightened nature is evidenced by our esteemed political leaders, an incredible body of saints whose natures have been elevated beyond the common deplorables of other countries.
Second, democracy is just as capable of atrocity as any other form of government. Athens, the birthplace of democracy, routinely voted for the wholesale massacre of friends and enemies alike. 214 This beacon of democracy held a mock trial and democratically voted to execute one of its most favored sons, Socrates, in an event “usually recalled as one of the worst moments in the history of Athenian democracy.”215
Likewise, republics are not somehow immune to tyranny. It only takes a cursory review of Roman history to see how the government routinely vacillated between democracy, republicanism, and tyranny. Nevermind that the Roman Republic was as brutal a government as has ever existed, by any standard. Slavery, forced gladiatorial executions, huge income inequality, tyranny on a grand scale—the blueprint for the American Experiment was not a perfect system. Why would we think our system immune from tyranny?
Then, of course, there was the insidious practice of American slavery which pervaded our society for centuries. This tyranny was perpetrated by the majority against a minority, and is evidence of the fallibility of the United States government and her people, consistent with all people from all countries in all of history. Pile on the abuses of Jim Crow and the monumental efforts required by the Civil Rights movement to counter our history, it is evident that our people, and our democratic-republican form of government, are just as prone to prejudice, bias, mistake, and evil as any other.
Third, there is no guarantee that the American government will continue indefinitely. In fact, no government has endured forever. The Founders knew this, and they recognized that the American Experiment could fail. The Federalist Papers went to great lengths to convince the people that the Constitution was setting up a government with the best man-made bulwarks against tyranny ever devised. As already discussed in the Structural section of the paper, debate about the right to keep and bear arms, as well as the proper roles of the militia and the standing army, were directly related to the fear of the American government becoming tyrannical.216
Fourth, anyone familiar with the criminal justice system will immediately see the constant need for vigilance in protecting our freedoms from tyranny. Many of the criminal justice reforms that we take for granted today are recent developments and are constantly being challenged by over- reaching governmental authority.
Fifth, for those who see the United States’ military campaigns as a problem, there is more evidence of tyrannical possibilities. The United States has been engaged in war for large portion of its history. Anyone younger than sixteen has lived their entire life with the U.S. at war.217 Today the United States has troops all around the world.218
Finally, news outlets and pundits accuse President Trump of tyranny. CNN published an opinion piece entitled “Trump is taking US down the Path to Tyranny.”219 Time Magazine ran a piece, “Donald Trump and the New Dawn of Tyranny” by a Yale University history professor.220 If one actually believes the President of the United States to be presently engaged in a program of tyranny, then that person should welcome the protections afforded by the Second Amendment to prevent its fulfilment or else put it back in check.
The point is that the United States—while unique in its culture, governance, and history—is not immune from the pressures of human nature and tyranny. The notion that any government is immune from turning tyrannical is simply naïve.
c. Defeating a Tyrannical United States Federal Government
There is a real, pragmatic argument promulgated that the armed citizenry of the United States could not stand up to the federal government in an armed conflict and that the tyranny-prevention purpose of the Second Amendment is moot. Our elected officials seem to think this way. Consider this Twitter exchange between a citizen (Joe Biggs @Rambobiggs) and Representative Eric Swalwell (D-CA). Representative Swalwell wrote an opinion column in which he called for banning “military-style semi- automatic assault weapons” as well as criminally prosecuting those who did not turn in those types of weapons.221 In the Twitter exchange surrounding that piece, a man named Joe Biggs tweeted,
So basically @RepSwalwell wants a war. Because that’s what you would get. You’re outta your fucking mind if you think I’ll give up my rights and give the gov all the power.”222
Rep. Swalwell replied:
“And it would be a short war my friend. The government has nukes. Too many of them. But they’re legit. I’m sure if we talked we could find common ground to protect our families and communities.”223
Of course, Rep. Swalwell clarified that he had been joking:
Read the thread. That guy said he was going to go to war with America if someone banned assault weapons. I joked that he may not win that war. A joke Tom, can we not use sarcasm anymore? ***i don’t think the guy was joking about going to war, tho.
Rep. Swalwell also explained:
Don’t be so dramatic. No one is nuking anyone or threatening that. I’m telling you this is not the 18th Century. The argument that you would go to war with your government if an assault weapons ban was in place is ludicrous and inflames the gun debate. Which is what you want.224
This is not to suggest that an elected Congressman was threatening a citizen with nuclear force; the point is in the argumentation. Rep. Swalwell appears to believe that there is simply no chance of an armed population defeating the U.S. government, “because nukes.” This point has been briefly discussed above,225 but it is worth repeating that it is not obvious in any way that nukes would be used in such a conflict when they have not been used in any conflict since World War II.
It isn’t just juvenile Twitter exchanges involving our elected officials which suggest the futility of resisting a tyrannical U.S. government. Scholars,226 commentators,227 judges,228 and even and Supreme Court Justices229 have express doubt that an armed population could resist a 21st Century federal government. The Heller court itself said, “Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks.”230
The ACLU’s official position prior to Heller parroted this view:
If indeed the Second Amendment provides an absolute, constitutional protection for the right to bear arms in order to preserve the power of the people to resist government tyranny, then it must allow individuals to possess bazookas, torpedoes, SCUD missiles, and even nuclear warheads, for they, like handguns, rifles and M-16s, are arms. Moreover, it is hard to imagine any serious resistance to the military without such arms.231
The New York Times published an Opinion piece in the same vein:
Gun-rights advocates also make the grandiose claim that gun ownership is a deterrent against tyrannical governments. Indeed, the wording of the Second Amendment makes this point explicitly: “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.” That may have made sense in the 1770s, when breech-loading flintlock muskets were the primary weapons tyrants used to conquer other peoples and subdue their own citizens who could, in turn, equalize the power equation by arming themselves with equivalent firepower. But that is no longer true.
If you think stock piling firearms from the local Guns and Guitars store, where the Las Vegas shooter purchased some of his many weapons, and dressing up in camouflage and body armor is going to protect you from an American military capable of delivering tanks and armored vehicles full of Navy SEALs to your door, you’re delusional.232
Of course, if this is true, then we are already at the mercy of our government and cannot hope to resist it should the President actually turn tyrant.
Thankfully, this defeatist view of the current state of the power balance between the people and the government is wrong, based on ignorance of military principle and history. It is far from certain that an armed population would never be able to resist a tyrannical U.S. government.233 Proving this argument wrong is beyond the scope of this Note, but it certainly bears some exploration here. [MORE]
