Shall Not Be Questioned

Let’s say that a future government has decided to incarcerate wrong thinking people into “reeducation camps,” to try to get people thinking right, and to quietly “take care” of all those who can’t be rehabilitated.  Free speech is suppressed, the media made an arm of the state, and the government refuses to stand for free and fair elections.  In that situation, most people would recognize the government has forfeited any claim to legitimacy.  We fought a World War, and a risky, expensive, and protracted cold war against such governments.  Most people, I would wager, would agree such a government ought to be resisted, and violently if necessary.  But I have to question how some view the form that would take on.

Do folks really believe that if the proverbial shit were to hit the fan, that the people will prevail by the people bringing out their privately owned tanks, RPGs, anti-tank missiles, artillery, mortars, F-16s, helicopter gunships, surface-to-air missiles, to fight and defeat a modern army, or even part of one, on its own terms in conventional military operations?  I would posit that warfare has changed a great deal since 1776, and even if the courts agreed the Second Amendment protected all of these things, it would be entirely symbolic and meaningless.  Very few people could afford them, or even if they could afford them, they wouldn’t own such things in large enough numbers to make any real difference.

This is not to say that I think the Second Amendment’s purpose of enabling people to resist a criminal government is completely obsolete, just that it’s not going to happen the same way it did in 1776, only with modern weapons.  Any resistance to a criminal government in the modern age will take conventional small arms, explosives, information, intelligence, and will.  Small arms we have to ensure are protected under the Second Amendment.  Explosives are impossible to control in such a situation, and will be available no matter what laws regulate them under a legitimate government.  Intelligence and will are organizational qualities that are unrelated to arms.  Hell, I would argue that the ability to tinker with model airplanes is more important to the modern concept of “militia” than knowing the principles of artillery, and knowing RF communication principles far more important than knowing logistics.

In the history of 20th century warfare, this has played out more than a few times.  The Vietcong engaged in an extensive and largely successful guerrilla campaign, with only what their fighters could carry on their backs.  In fact, the fatal mistake of the Vietcong was to come out of the jungle, and fight an offensive against the U.S. military on conventional terms.  Militarily, Tet was a defeat for the VC, and it destroyed them as a fighting force.  But Tet broke the American will, and in that sense was not a failure.  It is, however, a harsh lesson what happens when a guerrilla force tries to fight a conventional army on its own terms.

What I advocate here is not an extinction of the original purpose of the Second Amendment, but to emphasise that the priority has to be on protecting conventional small arms.  I don’t think whether destructive devices are protected or not really makes all that much difference in the overall scheme of things.  The nature of modern warfare has not made the Second Amendment’s “defense against tyrannical government” obsolete, but it has changed the equation enough that appeals to how things were in 1776 aren’t much use in figuring out how it would be applied in a modern context.

It is important, I think, to come up with legal distinctions between certain types arms, protected by the Second Amendment, and other types of arms, which are unprotected.  Even most people who believe in a very broad reading of the Second Amendment would generally agree the Second Amendment protects no right for someone to have a nuclear, chemical or biological weapon of mass destruction.  Even if there is not agreement among Second Amendment activists about where the boundary ought to be, we can at least agree that there is a boundary, and distinctions must be made between arms that are protected, and those that are not.

The Second Amendment constructed by Heller protects the right of self-preservation, or more precisely, the tools necessary to exercise the right of self-preservation.  Under that kind of interpretation, the courts would examine the device’s utility for that purpose, when seeking to discover whether it is an “arm” in the scope of the Second Amendment.  It would seem unlikely that destructive devices of an explosive nature would be possessed for such a purpose.  But as I’ve said before, I don’t think the courts can just consider self-preservation under normal circumstances, but must also consider extraordinary circumstances, to determine whether a particular arm is useful for self-defense, and should fall under Second Amendment protection.  In the case of a .50 BMG vs. a pipe bomb or grenade, I think a distinction can be made.

The first distinction is that a .50BMG most definitely is useful for personal self-defense, in that it is a discriminate weapon, that can be aimed at a threat, and can disable that threat.  A grenade is not so discriminate.  It has to be lobbed a certain distance in order not to injure the thrower, and is only very generally discriminative, in that the shrapnel it sends in all directions does not distinguish between friend and foe, and can cause considerable collateral damage to property.

But I think there’s another distinction between the two.  One can imagine a .50BMG being useful in a period of temporary civil disorder, such as a hurricane or an earthquake, where an ability to disable a vehicle, or shoot through cover, could mean the difference between self-preservation and being dead. One can also imagine a grenade, for instance, being useful for fending off multiple attackers.  In either temporary, or a more lasting civil disorder, both could be useful.  But obtaining a precision rifle, such as a .50BMG rifle, is probably going to be very difficult during civil unrest.  Obtaining explosives is easy, as the ingredients to create them would be readily available even in the event of civil breakdown.  In that instance, I think it’s not unreasonable to suggest that banning the manufacture or possession of pipe bombs does not run afoul of the Second Amendment, because under ordinary circumstances, they aren’t useful for self-defense, and under extraordinary circumstances, in the absence of law and order, they would be available.  I think that likely strengthens the government’s case that the burden on self-defense is minimal.

Of course, this very fact makes the effectiveness of the law suspect, at best, since it wouldn’t be hard for those with criminal intent to make them under normal circumstances, but this isn’t an argument about what makes for good public policy, but about what is constitutional.  When it comes to that, I’m willing to accept a Second Amendment that doesn’t cover destructive devices, if their exclusion makes the federal courts more likely to offer stronger protections to other small arms.  The burden created on my ability to defend myself is minimal, and even for those who argue that the Second Amendment is meant to guard against tyrannical government, let’s face it, under those kinds of circumstances, pipe bombs aren’t going to be hard to come by.