The Doomsday Provision

Note: This post is part of our League Symposium on Guns In America. You can read the introductory post for the Symposium here. To see a list of all posts in the Symposium so far, click here.

Why do we have the Second Amendment?  Wait, let’s back up.  Why do we have the First Amendment?  Speech is important to happiness and flourishing, we can all agree.  But that is not the reason that right was expressed, is it?  If it were, we should be puzzled to find in the remaining amendments so few other aids in service of happiness and flourishing.  “Why don’t you specify my right to get up in the morning, my right to walk down the street, my right to wear a hat?” scoffed Theodore Sedgwick of Connecticut at the very proposal of a Bill of Rights.  It is not merely that those rights are, by degrees, less important than the ones enshrined in the First Amendment.  It is not even that a government that abridged rising, walking, and hat-wearing would be less arbitrary and tyrannical in any meaningful way.  It is something else about the rights of speech and of assembly that demands recognition in a free society and that makes their service to happiness and flourishing, though deeply important, yet secondary.

That something else is the expression, in the First Amendment and, I will argue, in the Second, of those rights that reflect the sovereignty of the people.

The Declaration of Independence established a new nation, acting as “one people,” through “thirteen united States of America.”  James Madison insisted that the Constitution be ratified by special conventions to make clear that ratification would be “not through the intervention of the Legislatures, but by the people at large”—a distinction regarded as “very material.”  For these reasons, incidentally, a state has no unilateral right to secede:  the Constitution is not a compact of states but an agreement among the people.  See Timothy Sandefur, How Libertarians Ought to Think About the U.S. Civil War.

If this is so and the people are sovereign, it has important implications, the most important of which for our purposes here is that sovereignty is inalienable.  This, the first lesson of the American experiment, was demonstrated when our Founders asserted the people’s right to declare independence from the crown and to engage in a legitimate act of revolution.  That right, as the Declaration explains, does not arise from light and transient causes but from a long train of abuses and usurpations, which the Founders took care to enumerate in their appeal to the natural law from which sovereignty and sovereign rights derive.  Moreover, the sovereign people’s right to revolution is limited by the natural bounds of reason—had the Founders’ rational appeal to their fellows failed to persuade enough of them to willingly risk life and limb in taking up arms in revolution, the American self-government project would have foundered without a shot fired or a drop of blood spilled.

Self-government thus requires that the sovereign people enjoy meaningful exercise of the people’s right to associate with one another, their right to speak their grievances and invoke their right to self-government, and the right, in the face of an aggressor sovereign, to bear arms against it.  Mere paper barriers like the rights of habeas corpus and due process are without teeth in the face of unchallenged tyranny. The very essence of sovereignty includes a right to revolution, the right to enforce those rights.  It is the ultimate form of self-defense.

In other words, the rights expressed in the First and Second Amendments are the bedrock of the American project in self-government, and the font of our sovereignty.  That we can post on each other’s Facebook walls and experiment with Zoroastrianism and go duck hunting are happy byproducts of that sovereignty.  But it is silly to suggest these activities are why those amendments exist.  As Judge Alex Kozinski put it in his dissent to the Ninth Circuit’s denial of review in Silveira v. Lockyer:

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.

Even if you are with me thus far, you likely have some practical questions, like:  Are you kidding me?  In the wake of Aurora and Sandy Hook, are you telling me you would propose to the families of the victims that their loss is simply the price of abstract concepts of sovereignty, of a hypothetical “doomsday provision”?

Assuming we ever got past those questions, we’d then have to grapple with policy:  How do we justify contingent restrictions on something like a “doomsday provision” that represents a firewall between the People’s sovereignty and governmental power?  Sovereignty is a principle that can’t be mapped on a chart like the likelihood of another mass shooting incident, or the benefits of limiting magazine sizes.  How do we balance such unlike things?  This seems to be why we set up the conversation in terms of safety rather than sovereignty.  We can measure safety (or, we can attempt to), as the unending stream of charts and figures about lives lost because of guns and lives saved because of guns demonstrate.  It is much easier to consider compromises on the Second Amendment when it can be discussed in terms of measurable effects.  That which can be measured can be regulated.

Though the people’s inalienable sovereignty at the heart of the Second Amendment adds a layer of complexity, it is worth our consideration.  And preserving that sovereignty does not reduce to absurdity as easily as its detractors suggest.  Among other strange arguments, Matt Steinglass contends that “If Americans were in fact interested in privately owning weapons that allow them to contend against the US Army, semi-automatic weapons would be as useless as BB guns against a grizzly,” thus “they would need fully automatic heavy-caliber weapons, rocket launchers, anti-aircraft missiles and tanks.”  And in the comments at Dutch Courage, Patrick Cahalan walks through—much more thoughtfully than Steinglass—the possible scenarios of a people’s revolution against the modern national military.

I think these arguments miss the point.  First, rights do not depend on whether their exercise results in success.  If the right to bear arms is empty of meaning because revolution against the United States would be futile, then the right to speak against the government is empty for precisely the same reason.  The government might still permit its subjects to keep their .22 Remingtons and share cute cat videos—an homage to the byproducts of their former rights.  But if the government truly has reached that stage of Leviathan, rights are at an end and license is all that remains.  But as Patrick and Conor Friedersdorf take care to point out, it is important to consider the size and scope of our standing military if we truly are concerned—as we ought to be—about preserving the sovereign people’s actual (not merely an abstract) check against tyranny.

Second, it is not so clear that a legitimate revolution—one grounded in reason, arising from persuasive speech and the assembly of vast multitudes of engaged and free people—could not pose any meaningful threat to the national military.  Unlike other failed revolutions, Americans are educated, wealthy, and steeped in a history and tradition of the exercise of civil liberties.  Assuming there existed compelling grounds for revolution, the American people would be well suited to stoke and spread the spirit of revolution among themselves.  It is also not clear that the military’s possession of a nuclear arsenal could so easily squelch an uprising.  A revolution is unlikely to be confined to a single region, such that the use of nukes would result in at least as many loyalist as rebel deaths, not to mention a devastating loss of infrastructure.  More importantly, it would have the likely effect of quickly turning loyalists against the government, having brutally declared such unrepentant tyranny.

This is not to say that I, being not so much as even an amateur military strategist, have much of an idea what kinds of arms a legitimate revolution would require.  But given that a legitimate revolution would first be required to draw large numbers to its cause, we need not presume that “fully automatic heavy-caliber weapons, rocket launchers, anti-aircraft missiles and tanks” would be required in the first event.  All that would be required, it seems, are arms enough to successfully carry out the first stage of a revolution and thereby meaningfully assert the people’s sovereign right to self-government and self-defense.  Neither the Second Amendment nor the notion of sovereignty affords any single individual the right to stockpile a private arsenal sufficient to vanquish the entire United States military on his own.

So are flash suppressors and bayonet mounts so obviously “pointless”?  Is this really a “pretty simple conversation”?  Is it really so difficult to understand why anyone is “even making this argument”?  Given all this, it doesn’t seem that way at all to me.

Each time a new tragedy occurs, we lament not “Doing Something” after the last tragedy.  This symposium, in fact, was timed specifically to keep the conversation going even after the initial shock of Sandy Hook faded.  But why should we suspect that we reached the wrong conclusion the last time—that repose is preferable when the alternatives are dubious at best?  The wake of a tragedy is fertile breeding ground for bad policy.  While I would not suggest any impure motives, crisis tends to squelch democratic deliberation and to legitimize otherwise illegitimate exercises of power—particularly exercises of power that offer amelioration of present exigencies in exchange for rights that, though bound up with the people’s inalienable sovereignty, seem unfashionable to modern eyes.  We ought to distrust our judgments about the constitutional right to keep and bear arms while still suffering the grief of a horrible, deadly tragedy involving guns.