The Doomsday Weapon
by Jacob G. Hornberger
Gun-rights advocates sometimes defend the Second Amendment in terms of
the right to defend themselves from criminals and the right to hunt.
Those things are, of course, important but they miss the real purpose of
the right to keep and bear arms, which is to protect against tyranny
imposed by federal officials. As Ninth Circuit Judge Alex Kozinski
pointedly observed in the case of Silveira v. Lockyer,
"The prospect of tyranny may not grab the headlines the way vivid
stories of gun crime routinely do. But few saw the Third Reich coming
until it was too late. The Second Amendment is a doomsday provision, one
designed for those exceptionally rare circumstances where all other
rights have failed -- where the government refuses to stand for
reelection and silences those who protest; where courts have lost the
courage to oppose, or can find no one to enforce their decrees. However
improbable these contingencies may seem today, facing them unprepared is
a mistake a free people get to make only once."
In other words, the Second Amendment is an insurance policy -- it
ensures that if all peaceful means to end tyranny fail, the American
people still have one last option to regain their freedom -- through
armed resistance against their tyrants. Most people hope that, like any
other insurance policy, it will never have to be called upon, but at
least it's there in case it's ever needed.
No one can be absolutely certain that, given the right circumstances,
U.S. officials, especially those in the Pentagon, would not go the way
of other tyrannical regimes in history. They would undoubtedly consider
what they were doing to be in the "national interest" or for "national
security," but isn't that the mindset that has guided all tyrants?
Keep in mind the primary purpose of the Constitution: to protect us --
the American people -- from federal officials.
Ask yourself: If federal officials inevitably exercised power in a nice
and benign way, thereby never posing a serious threat to the freedom and
well-being of the American people, why would we need constitutional
barriers to protect us from their exercise of power?
The answer is: The Framers clearly understood that people could never be
safe from political power exercised by anyone. That's why they provided
for the express enumeration of powers and express restrictions on power
in the Constitution and in the Bill of Rights.
I repeat: The primary purpose of the Constitution is to protect us from
federal officials.
Omnipotent power in Iraq
How would U.S. government officials behave in the absence of any
constitutional restraint? We have an almost perfect model in answer to
that
question: Iraq, where U.S. officials have omnipotent power to do
whatever they want. No Constitution or constitutional barriers. No
elected officials. No congress, parliament, or legislature. Just a
top-down, command-and-control system in which the ruling authorities
have more power than any Soviet dictator ever had.
The result? Curfews, warrantless searches of homes, arbitrary seizures
of people, indefinite detaining of suspects without charging them,
concentration camps, shooting of criminal suspects, suppression of free
speech, ban on elections, destruction of personal and real property, and
many other things that reasonable people would consider to be tyrannical
in nature.
Rule in Iraq is by order and decree, rather than by legislative action,
and the orders and edicts are enforced by U.S. military forces.
Perhaps most important, with their free hand in Iraq, U.S. officials
have imposed strict gun controls on the Iraqi people. Why? One simple
reason: to ensure that violent resistance to orders is eliminated as an
option.
"But all this is entirely justifiable," U.S. officials would argue. "How
else can we establish freedom in Iraq if we don't first prevent the
people from disobeying us by taking away their means of resistance? If
people don't like occupational rule, they can work within the system to
get appointed to the Iraqi ruling council."
But that both hits the point and misses it. The point is that the Iraq
model shows that U.S. officials are fully capable of doing the things
that the Constitution was designed to prevent them from doing.
In the past, U.S. officials could argue that they would never do such
things, but no longer. If federal officials honestly believe that
tyranny is necessary for the survival or well-being of a country, they
are as fully capable of imposing such tyranny as other tyrannical
regimes throughout history.
And like all other dictatorial regimes in history, they call their
tyranny "freedom."
Crises and tyranny
"But while we would do these things to Iraqis, we would never do them to
the American people," U.S. officials would cry.
But of course they would, if they believed that they were necessary for
the safety and well-being of the nation ("national security") -- and if
they thought they could get away with it.
It all would depend on the nature and extent of a crisis or emergency.
The bigger the crisis or emergency was, the bigger the grasp for power
would be.
Didn't we see that after the September 11 attacks? Don't forget that
terrorists were attacking U.S. targets because of U.S. foreign policy
long before September 11. What made September 11 different was the large
number of people killed and the large amount of property destroyed.
That difference enabled federal officials to do what they've wanted to
do for years, especially as part of their war on drugs -- impose much
more severe infringements on the civil liberties of the people.
The September 11 "crisis" or "emergency" and the "war on terrorism"
(which has been going on since the Reagan administration) are now being
used to justify indefinite detentions, secret searches, military
tribunals, spying on Americans, and ever-increasing requests for more
assaults on our freedoms.
If another major terrorist attack takes place on American soil, you can
rest assured that the administration will seize on the opportunity to
immediately cram through Congress another massive USA PATRIOT or VICTORY
act that removes even more of our freedoms.
In many other countries that operate under a constitution, the president
has the power to suspend restrictions on his power in an emergency, but
only as long as the emergency lasts. The problem, of course, is that the
emergency inevitably lasts indefinitely, along with the president's
suspension of the restrictions on his powers.
That's pretty much what happened in Germany leading up to the
dictatorial regime of Adolf Hitler. When Hitler assumed office in 1933,
he was actually facing a much bigger crisis than Franklin Roosevelt
faced in the United States at the same time. Both of them, of course,
faced the economic emergency of the Great Depression, which they
confronted in much the same
way: with massive economic regulation, government spending and taxation,
and public works.
But Hitler also faced the threat of communism from the Soviet Union, the
same threat that U.S. officials would later use to create a permanent
air of crisis and emergency for several decades after the defeat of
Hitler and the Nazis.
Moreover, Hitler faced the threat of terrorism, which was exemplified by
the firebombing of the Reichstag. Immediately after that terrorist
attack, the German parliament granted Hitler's request for temporary
emergency powers to wage war against terrorism.
The problem is that the crises became deeper and deeper, which meant
that the "temporary" powers being exercised became more entrenched,
until the possibility of restoring the rights of the German people
became almost impossible.
The German citizenry discovered too late the difficulty of regaining
freedoms that had been temporarily surrendered to someone who then
wields the power to prevent his temporary powers from being
relinquished, especially someone who truly believes that such powers are
needed to preserve the nation in the midst of crisis.
The Framers chose not the provide an "emergencies exception" in the U.S.
Constitution precisely because they understood that it is during
"crises" or "emergencies" that the danger of tyranny and the loss of
freedom are the greatest.
They knew that throughout history, government officials had used
"crises" or "emergencies" to take away the rights and freedoms of the
people. That's why under our system of government, the constitutional
restrictions on power remain in full force and effect during "crises"
and "emergencies."
Imagine that terrorists fly a bomb-filled plane into the Capitol, that
there is a 6,000-point drop in the stock market followed by widespread
runs on the banks, and that the Chinese communists are threatening South
Korea and Japan.
Can anyone honestly suggest that U.S. officials would not seize upon
these three big "crises" or "emergencies" to seize "temporary emergency"
powers? How many Americans would stand up and say, "No"?
"But there would be elections. There have always been elections in
America." But what if the elections produce candidates who favor the
same policies?
What if the crisis or emergency is extremely big -- like car bombs
exploding in various Americans cities, killing thousands of people?
Can we be sure that the Pentagon would permit elections to be called in
that event, especially if it suspects that the results might not be
favorable to the interests of the ruling regime? Are U.S. military
officials permitting elections in Iraq, knowing that such elections
would possibly result in a regime antagonistic to the U.S. government?
And let's not forget that U.S. officials prevented elections in Vietnam
in 1954, precisely because they knew that Ho Chi Minh would win.
Now, it's true that all this is unlikely. But that's why Justice
Kozinski calls the Second Amendment a doomsday device. While it's
unlikely to ever be employed, at least it's there if the day ever comes
when federal tyranny has become intolerably oppressive.
In other words, in the absence of gun ownership there is one -- and only
one -- realistic response to tyranny: obedience and subservience to the
rulers. That's why U.S. officials are disarming the people of Iraq. With
gun ownership, there is one final "doomsday" option -- violent
resistance to tyranny, even revolution.
That's, in fact, one of the major points that Jefferson made in the
Declaration of Independence -- that history had shown that people will
tolerate a lot of tyranny before they finally revolt, but that when
their own government becomes destructive of their rights they do have
the right to revolt and to overthrow it. Without weapons, that becomes
an extremely difficult thing to do.
Moreover, the fact that tyrants and would-be tyrants know that the
people are armed operates as a check or deterrence to tyranny. If
tyrants know that people lack the means to resist orders and decrees, it
would be reasonable to assume that they're going to operate more boldly
against the people and their rights and freedoms. If they know that
people might ultimately say, "No more, and if you do we will meet force
with force," they might just think twice.
Thus, what gun-control advocates and even many gun-rights advocates fail
to recognize is that the right to keep and bear arms has less to do with
self-defense from criminals and the right to hunt and more to do with
the protection of our rights and freedoms. The cartridge box is
ultimately a much more potent protection against tyranny than the ballot
box, soap box, or jury box.
Mr. Hornberger is founder and president of The Future of Freedom
Foundation.
Mike