Beware a lawmaker with a disarming smile

So much has been said late­ly on the top­ic of firearms reg­u­la­tion that I’m not sure that there is much to add. As the peo­ple of the Unit­ed States engage in this debate I hope that we can remem­ber what the word «rights» means in the con­text of gov­er­nance. A «right» is not nec­es­sar­i­ly the right thing to do, but sim­ply some­thing which a gov­ern­ment can­not restrict. The ques­tion is not so much whether more peo­ple should own firearms as much as whether it’s OK for the gov­ern­ment to tell us whether we may own firearms.

One of the tru­ly great things about the Unit­ed States of Amer­i­ca is that it was found­ed on the idea that the gov­ern­ment ought do what the peo­ple tell it to rather than tell the peo­ple what to do. As firearms are a tool of pow­er, restrict­ing firearms is an act which takes pow­er away from the peo­ple and gives it to the gov­ern­ment. This is why Gand­hi — as peace­ful a guy as you’re like­ly to find in his­to­ry — wrote that «Among the many mis­deeds of the British rule in India, his­to­ry will look upon the act of depriv­ing a whole nation of arms, as the black­est.»

The idea that restrict­ing guns affects only the law-abid­ing cit­i­zens — that when guns are out­lawed, only the out­laws will have guns and the hon­est cit­i­zens will be out­gunned and run­ning scared — is the less­er of the fright­en­ing aspects of our nation’s cur­rent fren­zy to lim­it guns. The more fright­en­ing aspect is the increas­ing imbal­ance of pow­er between the peo­ple and the police. If we don’t trust crim­i­nals we can always hire more law enforce­ment. Who do we hire when we can’t trust politi­cians? It’s rea­son­able to assume the police can be trust­ed, but trust­ed to do what? To do what the politi­cians want them to.

In the Unit­ed States of Amer­i­ca, the police are civil­ians. There is a very real and impor­tant dis­tinc­tion between the police and the mil­i­tary. With the excep­tion of nat­ur­al dis­as­ters and for­eign attacks, the mil­i­tary is pro­hib­it­ed from oper­at­ing on domes­tic soil. This is because the mil­i­tary must be fur­nished with the kinds of weapon­ry that it takes to wage war.

Oth­er than the mil­i­tary oper­at­ing out­side our bor­ders, an impor­tant part of the Amer­i­can ethos is the idea that all men are cre­at­ed equal. There are no for­mal class­es in Amer­i­can soci­ety: no nobles or lords, no upper and low­er castes. As much as these dis­tinc­tions may sur­vive in our social struc­tures, they have no place in our legal structures.

There are some duties that are giv­en to cer­tain pro­fes­sions, and those duties and respon­si­bil­i­ties are very impor­tant. Police, jurists, and politi­cians are not above the law. This is less true for politi­cians, but that is due to a per­ver­sion of our Con­sti­tu­tion and is a top­ic for a sep­a­rate post.

It is there­fore against the very prin­ci­ples of our nations that the police, who do such impor­tant work and deserve high respect, should have rights reserved only for law enforce­ment and sep­a­rate sets of laws to which they must answer dis­tinct from these to which we do. If the police can pos­sess weapons which can­not be pos­sessed by ordi­nary cit­i­zens, then we no longer have a cit­i­zen police force, but rather a mil­i­tary force which occu­pies our soil.

It is too late to pre­vent such a sit­u­a­tion. Police forces across the coun­try have had Spe­cial Weapons and Tac­tics units for some time, with mil­i­tary weapon­ry not allowed to the cit­i­zen­ry. In Cal­i­for­nia where hand­guns with mag­a­zines greater than ten rounds are ille­gal, the police in every depart­ment are issued hand­guns with fif­teen, eigh­teen, and even twen­ty round mag­a­zines. But this imbal­ance is gen­er­al­ly an aber­ra­tion. Most peo­ple under­stand that the police are — or should be — sub­ject to the same laws we are.

Remem­ber that the priv­i­lege of arrest over any­one com­mit­ting a crime or who has com­mit­ted a crime is not exclu­sive to law enforce­ment.¹ Arrest­ing crim­i­nals is law enforce­men­t’s job and we ought be grate­ful that they do it, but they are not grant­ed this right because they were hired by their depart­ment. They have the right of arrest because they are cit­i­zens. They had that right before they joined their depart­ment and they will have that right after they retire.

What would the face of tyranny look like?

A com­mon rebut­tal to the argu­ment (or rather plain fact) that the intent of the Sec­ond Amend­ment of the Con­sti­tu­tion is to keep the peo­ple armed against a tyran­ni­cal gov­ern­ment is that this is plain­ly impos­si­ble when the Fed­er­al Gov­ern­ment has tanks, mis­siles, drones, and fight­er jets. It’s true that hand­guns and semi­au­to­mat­ic long arms make a poor match against the mil­i­tary might of our armed forces. How­ev­er, our mil­i­tary does not gen­er­al­ly pose a tyran­ni­cal threat against the peo­ple. Even in the case of insur­rec­tion, it is unlike­ly that the mil­i­tary would have the will and morale for a sus­tained occu­pa­tion of the home­land against the peo­ple. Those sworn to pro­tect the Con­sti­tu­tion could­n’t stand more than a few iso­lat­ed inci­dents of vio­lence against the pop­u­la­tion of their own nation.

The greater threats to per­son­al lib­er­ty — and let us be clear that it is by and large a poten­tial rather than actu­al threat — are the domes­tic law enforce­ment depart­ments and bureaus. Police are trained for and accus­tomed to com­bat with cit­i­zens. As pro­fes­sion­al as are most indi­vid­u­als with­in law enforce­ment, it is sad­ly not uncom­mon to find inci­dents where indi­vid­u­als, small groups, and even large groups of police have unleashed their lethal force on civil­ians for polit­i­cal, cor­rupt, or just plain sense­less reasons.

Were there to be a tyran­ni­cal regime in Amer­i­ca or any of her States, its strong arm would be that of the var­i­ous law enforce­ment agen­cies here. In extreme cas­es, the pop­u­la­tion ought to be capa­ble of ris­ing up against those forces and by virtue of equal arms and greater num­bers cause their advance to cease.

Let there be no mis­take. This is not to advo­cate insur­rec­tion. It is a reminder that the capa­bil­i­ty of the peo­ple to armed resis­tance is one of the facts of Amer­i­can life that makes the prac­tice of armed resis­tance unnec­es­sary.

One should not have to be a lover of firearms or even a gun own­er to real­ize that increas­ing the imbal­ance of pow­er between the gov­ern­ments and the cit­i­zens is to be avoid­ed, just as impris­on­ment with­out legal charges is.

This presents a sim­ple and obvi­ous rule for the appli­ca­tion of gun con­trol in Amer­i­ca whether at the fed­er­al or states’ lev­els: any bans or restric­tions on gun or ammu­ni­tion own­er­ship ought to apply to the mem­bers of law enforce­ment as well.

While such a rule may feel for­eign to those of us accus­tomed to see­ing images of police car­ry­ing auto­mat­ic weapons and rid­ing in armored vehi­cles it ought take only a bit of reflec­tion to under­stand that if the laws that apply to cit­i­zens aren’t applied to law enforce­ment that there are seri­ous con­se­quences to the lib­er­ty of our society.

If such a rule were enshrined with­in the Con­sti­tu­tion, com­mu­ni­ties could con­sid­er them­selves free to enact laws which reg­u­late the pos­ses­sion of weapon­ry, tem­pered by the knowl­edge that their police depart­ments might come under fire by crim­i­nals with ille­gal supe­ri­or fire­pow­er, just as ordi­nary cit­i­zens might face those same crim­i­nals with an imbal­ance of pow­er. The debate about gun con­trol could pro­ceed some­what more sane­ly, with a clear appraisal of the risks that come with unreg­u­lat­ed firearms against the risks that come with those who abide by and uphold the laws being out­gunned by criminals.

Any pro­pos­al for the restric­tion of arma­ment allowed to the cit­i­zens that does not apply to the domes­tic agents of the gov­ern­ment ought to be treat­ed with the great­est of suspicion.

We ought to trust the mem­bers of law enforce­ment, but we also ought nev­er for­get that we entrust law enforce­ment with their duties, that in the Unit­ed States of Amer­i­ca gov­ern­ment — which means the draft­ing and enforce­ment of laws — is of, for, and by the people.