Is there a need for a Right To Keep And Bear Arms?

Okay, what about that whole line.  You know, the one Justice Stevens brought up.  Assuming that the US military isn't going to attempt a coup, as after all it hasn't for over 200 years, and assuming that the government isn't going to misuse the military in a dictatorial way, which it hasn't ever done, can't we assume at this point that the government. . .well it'd have to be governments given the incorporation of the Second Amendment by the Fourteenth, can protect everyone well enough that we don't really need a right to keep and bear arms anymore?

 Police in a SWAT team, in this case actually Air Force APs in a SWAT team.  Ironically, these USAF APs are donning less in the way of combat gear and apparel than a lot of modern police forces do.  This police force is militarized by default, but do we really want a country with a huge amount of police, and militarized police at that?

In other words, was John Paul Stevens correct, historically?  Basically what he was saying, was, well sure, when there was a legitimate fear that Congress would do away with state militias and co-opt 100% of the armed forces in the United States there was a real risk that there'd be a dictatorship that would come in, but that's not a risk now.  The military isn't going to  be used by the government to depose state sovereignty and the military itself isn't going to engage in a coup.  There isn't going to be a Seven Days In May, Dr. Strangelove, Manchurian Candidate or Fail Safe event, in other words*

Well, starting with those assumptions and Stevens statement, let's assume something else.  If there was no Second Amendment, state and Federal governments would in fact restrict the right to keep and bear arms.

No, they likely wouldn't take all the firearms away.  Even nations with heavy restrictions don't do that.  Contrary to the purveyor of Facebook memes, for example, people can and do own guns in Japan.  You can own military style semi automatics in quite a few countries (most notably those with strong democratic habits).  You can own handguns in quite a few more.  So it wouldn't be the case that everything would be taken away.**

But there would certainly be a lot more restrictions than there currently are, no doubt.   And a lot of those restrictive provisions would be drafted by people who are completely clueless about firearms at that.  

And with history being our guide, we can presume that once the restrictions starts they just keep rolling. The UK didn't have any meaningful firearms restrictions until after World War One and they were very mild until after World War Two.  Now their restrictions are severe and have gone far beyond any rational relationship to any threat of violence the nation's citizens actually faced.  That's the typical pattern. As regulations are drafted by those who seek to restrict, rather than those who seek to use, that's the natural trend line.   That's why no racing fan, for example, would want me to draft up regulations for stock car racing and why no football fan would turn over football regulation to me.

But setting aside the points I raised in my other posts of John Paul Steven's comments, what about the underlying point he raised.  The whole worry is now past us and so we no longer need a Second Amendment.

Well, to do that, we need to grasp why we had one in the first place, and Stevens got part of that right.  The states were worried about a coup and by preventing the Federal disbandment of their militias, their concern was partially alleviated.

That fear isn't quite correctly expressed, as that dimension of it was only partial.  The framers didn't want a standing army as standing armies were a threat to democracy.  A militia isn't a standing army, so the defense establishment of the United States was originally based on militias.  Indeed, to a significant degree it remains so, in the form of the National Guard, which is a type of militia.*-* No standing army, was the thought, no threat of a coup.

But the thought was actually much more than that.  No standing army meant that a future Congress or President couldn't wipe out the sovereignty of the states.  No standing army, no ability to occupy Connecticut.  You get the point.***

But even broader than that, a militia based defense based on armed citizens let people take care of their own immediate security problems.

That had been the nation's history up until then, and it would be for quite some time after, and in recent years with the draw down of the Cold War military, it's become very much the case again.  We'll address if it still is below.  But colonial militias had been 99% of the people's protection against any threat, internal, external, native, etc., from Plymouth Colony on.  Not just in the case of big wars, mind you, but also in the case of small local matters of importance.  Local wars, local violence, all manners of things that required an armed defense.  

And a lot of times that armed defense was exceedingly local.  One Indian band that rose up. . . or one band of highwaymen that terrorized a route.  Things of that type.*-*-*

But that's all gone now, right?  Because you can depend on the government to handle all of this.  Right?

Well. . . not so much.

 Imperial Chinese walled city.  In modern times, quite a few wealthier communities in the US have begun to take on this visage.

A really comfortable aspect of this argument, for people who make it, is that's what the police are for and the police can protect you.  It's highly ironic that this argument comes in an era in which every substantial city I've been to in recent years has walled in communities and some have private security.  People in Steven's class make this argument but then (and I don't know about him personally) they drive through security gates and go into what are little walled compounds, much like Medieval cities.  Most of the rest of everyone lives outside the walls, where presumably the barbarians are.

This alone would suggest that if the police can really handle everything then the same class of people who so frequently argue that must be paranoid.  No threat, no need for walls.



Or maybe there is.

Assuming that you are like most people, and you have no need of "new walls", or of your own private samurai, you might at least have something to consider.

Let's stop and talk about Samurai for a second?

Really?

Yes, really.  The analogy might be more useful than it might at first appear.

In Medieval Japan, samurai were basically self employed.  That is, they attached themselves to an employer, and were fiercely loyal to that employer.

They were also the only class that was allowed to own military arms.

Now, that should be disturbing.

In Steven's future United States I'm quite confident that the folks who guard gated communities would fit into some exception where they'd get to carry arms.  Private security, I'm sure, would get a pass, employed by the rich as they would be.  The rich and industry for that matter.

Are you disturbed yet?  Well if not, you are a trusting soul indeed.

Shades of 1688 there.

Indeed, not only did that not work well in Japan, it didn't work well in the United States, and we have plenty of evidence of that.

Some of that evidence is from my very own backyard.  The Wyoming Stock Growers Association, in the late 19th Century, employed range detectives who were indeed armed.  Of course everyone was armed, but they, even as privately employed men, were given the power of arrest, which was perfectly legal (railroad detectives, also privately employed, retain that right today).  And it is pretty clear that right was abused in Wyoming.

Indeed the Stock Growers Association came so comfortable with the use of force it used it on a massive scale, the Johnson County War, which was halted by private citizens somewhat under the leadership of the Johnson County Sheriff's Office.  Armed on their own, they intervened to stop a private army.

And this isn't the only example of this in the United States.  If you don't like 19th Century examples, take 20th Century ones.  The armed police of coal companies back in Pennsylvania. . . the armed police of mining entities in Ludlow Colorado (augmented by the Colorado National Guard, as luck would have it). . . the armed employees of mining companies in New Mexico that expelled IWW strikers. . . examples aren't hard to find.  And you can find them at least up until the mid 20th Century.

Not so much since then, to be sure, but since then we haven't exactly had an industry and private monopoly on force and we've had a really open and quick press.  Do you trust the rich, well connected and powerful so much that you figure that era is truly past us if there's a monopoly on force.

 Tom Horn. . . an armed industry assassin of the 20th Century.

But let's go the next step, having explored that, how much of a danger in everyday life, leaving aside a nightmarish private police force future, in the current real life world of today?

This is where I'll be frankly I've tended to dismiss many on the most extreme pro gun part of this argument.  Indeed, I've done it just recently where I argued that Americans shouldn't really go around pretending that the Battle of Stalingrad is going to break out in their neighborhoods.  And they shouldn't. But that doesn't mean that all Americans lead a threat free life by any means.  And it also doesn't mean that the police can really protect everyone either.

 German lieutenants in Stalingrad. . . these guys probably aren't coming to your neighborhood.

So let's be frank about the police.  The long time motto, often unofficial, of police forces in the US used to be "To protect and serve". And while I've criticized the police here a lot, that's what they try to do.  But to really believe that the police can protect 100% of all people all the time is frankly just flat out absurd.  Plain resort to the news will show that as often police's role starts after a crime is committed.  

Now, crime is going down in the US, dramatically, particularly violent crime, and I've already addressed that more than once.  But is that because we have a lot more policemen in the country than we used to?

I don't think so.

It's probably simply going down for demographic reasons.  Gun advocates will say that the reduction of gun control has played a role in that, and there's at least some evidence that is in fact true.  What clearly isn't the case is that more gun control reduces crime nor does anyone ever seem to think that if they pass gun control laws they need to dramatically increase the number of police.

And dramatically increasing the number of policemen in the country would be what would really be necessary to make any kind of impact in this area. The increase would have to be enormous. It'd have to reach the point where every public building had an armed police force and every building generally open to the public.  Can we imagine a country in which there's be two or three policemen at every popular bar and restaurant?  I doubt it.

And we wouldn't want that because at some point that very sort of police protection becomes part of the very thing that the framers were in fact worried about.  You'd have a police state by default, and with that, there'd be a definite decrease in liberty and even simply a decrease in the quality of life.  So that's really a non starter.

None of which means that some increase in police presence in some areas isn't warranted.  It clearly is. 

But by the same token some increase in private security may be warranted too, and that's actually what the denizens of those walled compounds have done, which leaves them with little room to argue.  If you live in a walled development and it has private security that's armed, you in fact are living with a type of private militia, like it or not.  And if you argue for significantly removing privately held firearms, you are really arguing those guys ought to go and ought to be replaced by city police. But the city isn't going to do that for you.

For the rest of us, we have to judge our exposure to risk, ourselves.  Most people are never going to carry a gun and most feel they have no need to.

But is that a universal?

Now I often see what I'd regard as amusing and over dramatic, indeed paranoid, references to people who talk as if they're under constant threat.  But that doesn't necessarily mean that there are no threats in the world at all. There are.

 The advertisement of handguns for personal protection isn't a new phenomenon, but it did take a big break in the mid 20th Century before returning in the late 20 Century

Indeed, in my own life I've experienced things in which I needed some element of protection directly at least five times, and I don't lead a really dangerous life.  Two of those times I was in fact coincidentally armed and that may have made a real difference.  And this doesn't count the odd occasions in which I took up some protection for myself due to threats that related to one of my occupations, even though nothing developed.

And I'm just a regular guy.

Thinking on it, I can think of at least three other instances in which various folks I know were confronted with situations, out of the blue, in which they had to protect themselves and were armed.  At least two of them were extremely severe occasions that arrived without expectation.  There's no telling what would have occurred if they hadn't been armed.  In two out of the three, they might have been killed on the spot.

In not one of these instances could the police have possibly been any help.  The only thing they would have been able to do would have been to investigate a shooting after the fact.  Not much protection, just investigation.

Stuff like this happens more than we might imagine, and in more places than we might imagine.  Most of it simply goes unreported, everywhere.  In none of the instances I'm personally aware of were the police ever called.

So, frankly, even in the 21st Century there are plenty of instances in which an individual resorts to arms and a crisis passes.  Most of those go completely unnoticed. They wouldn't if the individual who made resort ended up badly injured or dead, but those statistics don't exist because they don't exist.

And like it or not, these things happen in Canada, Australia, the UK and France.  The difference is that there, when they happen, the person who protected themselves just shuts up and moves on so as to not risk any attention at all.

Okay, that's one sort of area where Justice Stevens is probably flat out wrong in his probable assumptions, or he assumes that in a post Second Amendment United States licensure will still let this occur (although I doubt he thinks that). What about the second area?  What we've talked about so far is the threat from individual actors.  It's pretty clear that the police would have to be enormous to take this on. But what about that more militia like area referenced by the Second Amendment?

Well, that presupposes that what we have talked about wasn't part of the what the militia in earlier times did, which I'd argue is in error.  Walled compound denizens, as I already noted, are fielding a type of mercenary militia.  But let's go away from that and talk about military type threats.  That is, armed bodies or single actors who are acting for an organized cause.

If you are a rancher on the southern border of the US you don't really need to get much further than this, I suspect.  It's easy to dismiss this threat but if you are running cattle outside of Eagle Pass, Texas, drug and human cargo smuggling gangs are just as much of an organized armed body threatening you as ISIL ever will be.  Indeed, while there's nobody who pretends these groups live an area where its legal to acquire them, they are armed with military weapons.  If you are going out to check your cattle in that area, you'd be nuts not to take along a firearm.

Most Americans, of course, will never be confronted by such a threat.  But we have have had a host of violence of that type spill over the border (since about 1910 actually) and we have been subject to terrorist attacks on our own soil since the 1993 Twin Towers bombing attempt.  We're so disinclined to recognize these things for what they are that we forget some and discount others.  They are, however, what they are.  We've endured several of them within the last couple years and there's no way to believe that individuals motivated by, for example, Islam, or by sheer greed in another example, are capable of being deterred by the mere existence of a set of laws.

It'd be nice to believe that domestic intelligence sources will catch all them all before they act, but they simply will not.  They probably catch more than we know. But they won't catch them all.

Now, no doubt, you are thinking that you really don't need to arm yourself against ISIL.  And you likely do not.  But on occasion, there are those will probably will need to, and perhaps should have done so, or just accidentally happened to be.  Pretending that we can build a police state sufficient to catch every Tamerlane Tsarnaev is really engaging in a fantasy.  But imagining that the response by the city of Boston was "brave" is equally  fanciful.  It wasn't.  It was a disarmed response however.

But it was also probably a response you are comfortable with if you live in West Roxbury.  If you live in the Southside. . . well not so much.

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*Of interest, while such an event seems so extraordinarily far fetched, even in modern times, let's say post World War Two, democracies have been occasionally pronto to such risks or even actual events. Both the Greek and Turkish states have fallen repeatedly to coups, although Greece seems to have gotten past it.  Turkey hasn't, in that its' undergoing a massive reversal of its democratic fortunes through its chief executive right now.

Russia has certainly seen its democratic fortunes reversed and is now ruled by a strong man, by way of another example.  But even the United Kingdom was subject to some serious thought of a coup attempt in the 1970s, oddly enough, by some members of its establishment.  The moment came and went without action, but it did in fact occur. 

**And contrary to what  some seem to think, there are some countries in the world with strong "gun cultures" other than the United States. Switzerland being a prime example.

*-*State Guards units are also organized militia forces in some states, but not all.  Like the National Guard, they receive Federal funding, but only some.

State Guard units have an interesting history as they were in some ways a protest over the Dick Act, which some states opposed on the basis that they didn't want the state militias so closely aligned with the U.S. Army following that 1903 act.  It was also part of a slow boiling New England movement that dated back to the Mexican War in which those states were really unhappy with their militia units being called up for unpopular foreign wars.  The Philippine Insurrection may have been the boiling point on that and so by World War One some states were maintaining two militia establishments.  Most states only did this during wartime as the National Guard needed to be replaced while mobilized.  Its come back into popularity, particularly along the Mexican border, in recent years.

Quite a few states by law regarded every male over sixteen years of age and under some older age, typically sixty, as members of their states militia.  The power to mobilize this group of men is exceedingly rarely exercised.

***And they had real experience with just such a thing. The right to keep and bear arms wasn't something that had been simply thought up by Congress. As is sometimes noted, the same right appeared in some state constitutions.  More than that, however, it had been a feature of the English Bill of Rights, which the English seem to have now forgotten, as had a provision limiting standing armies. Those provisions provided that the King had violated the rights of Protestant Englishmen (Catholic Englishmen didn't get the same rights) in the following ways:

Standing Army.

By raising and keeping a Standing Army within this Kingdome in time of Peace without Consent of Parlyament and Quartering Soldiers contrary to Law.

Disarming Protestants, &c.

By causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law.

So the following was provided:

Standing Army.

That the raising or keeping a standing Army within the Kingdome in time of Peace unlesse it be with Consent of Parlyament is against Law.

Subjects’ Arms.

That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.

This was passed in 1688, just a little under a century prior to the American Revolution.

*-*-*In recent years its been really popular for critics of the Second Amendment to point out that in Southern states militias also were used, it's claimed, to chase runaway slaves.

I don't know how often that really happened,  not often I suspect, but Southern states did worry about slave rebellions.  But that wasn't the only reason they had militias by any means and this point is grossly exaggerated in that context.