Tuesday, May 31, 2022

No, There Is No Nuanced Version of the Second Amendment Insurrectionist View

by Neil H. Buchanan
A week ago today, an eighteen-year-old armed with a weapon that would be nearly impossible to obtain in most countries killed 19 children and 2 adults in Uvalde, Texas.  The Washington Post reports that there were at least fifteen mass shootings in the United States in the six days after that horrific slaughter, with twelve of the shootings taking place over the Memorial Day weekend (a grimly apt name for that holiday this year).  The public's reaction to, and focus on, the Uvalde massacre has lasted longer than expected, with political reaction being more intense than anything we have seen since at least the Parkland killings in Florida four years ago.

With all of that attention, is there anything happening in the public debate that is different this time around?  On some level of generality, of course not.  The mind-numbing sameness of these tragedies is a big part of what makes it possible for cynical politicians to refuse to act, relying on the usual generic arguments about "evil," mental illness, and the rest of their rhetorical arsenal.  (Yes, I chose that word deliberately.)  Even so, each time this happens, there are differences in the ways that those familiar excuses are offered, which can be instructive.

Here, I want to revisit the so-called Insurrectionist View of the Second Amendment, which holds that The People must be allowed to own guns so that they can prevent the government from becoming tyrannical.  That view has gone from fringe joke to sacred precept on the American right in only a few short years.  It never should have been taken seriously in the first place, but given that it has now taken on such importance, I want to ask whether there might at least be a subtler version of that argument that could hold water.
So, just as we know that there are absurd versions of free speech absolutism that do not automatically undermine defensible almost-absolutist views of the First Amendment, and just as we accept that one can be in favor of high tax rates without being in favor of confiscatory taxation, can we find a version of insurrectionism that is anything less than an embarrassment?  No, of course not; but it is interesting to try.

When I teach my tax policy seminar every other year, a key moment inevitably arises in which a student says something like this: "Well, Policy X won't solve the problem, so I'm against it."  For example, the expansion of the Child Tax Credit did not end child poverty, meaning that it is obviously not The Solution to The Problem.  That the most recent expansion of that credit (now expired, sadly) reduced poverty among children by half means both that it was highly effective and that it did not solve the problem.

The lawyerly description of this logical error is typically captured in the maxim: Don't let the perfect be the enemy of the good.  It is a reminder that all-or-nothing reasoning is presumptively erroneous, because there can be many contributing causes of a problem, and it makes no sense to choose not to address some of those causes merely because we cannot address all of them.  In my previous life as an economics professor, my students would immediately recognize that logical error as a failure to engage in "marginal thinking," which is the process of asking what will change (and by how much) in response to a small change in some independent variable (policy change or otherwise).

The American right invariably trots out several versions of this unreasonable reasoning in the gun debate.  One version is that people who want to kill will always figure out a way to kill, so taking guns away from people will not Solve the Problem.  In its extreme form, the argument becomes the hoary "you can't legislate against evil" trope.  Texas's still-indicted Attorney General recently offered another common variation on that argument, which is that it supposedly does no good to pass laws against gun violence, because people are already breaking the law when they commit murder.

Other than the motivated thinking that causes nutcases to say such things when the topic is guns, no one actually thinks that way.  The American right is perfectly willing to legislate away women's legal right to control their own bodies, even though everyone knows that many women will find ways (often very dangerous ways) to get abortions in a post-Roe world.  Their argument is that every zygote, blastula, morula, and fetus is a child, so each one saved -- every marginal improvement, as it were -- is important in its own right.  Notably, however, pro-choice people do not respond by saying that "you can't stop every abortion, so you shouldn't try at all," but rather that trying to stop every abortion is unacceptable for other reasons, even when prohibitions are not completely effective.
And given that I am spending the next few weeks in Canada, I will offer a hockey-related example.  In the 1980's, the National Hockey League was trying to decide how -- or even if -- it should try to crack down on on-ice fighting.  The argument from some people who tried to justify that gladiatorial spectacle was that hockey is a tough sport, tempers will flare, and there is nothing that can be done.  Unfortunately for that argument, there were plenty of examples of hockey leagues -- the pros in Europe, American college hockey, even (as I understand it) the elite Canadian Juniors -- where fights were extremely rare.  Why?  Strict anti-fighting rules, firmly enforced.  Did those rules end all fighting?  No, but they came close.  And those of us who would rather watch speed and finesse than gooning and gratuitous violence appreciated the difference, imperfect though the solution was.

There are, of course, situations in which a law might have absolutely no effect.  For example, if everyone who builds a new house facing true North were subject to a 100 percent income tax rate, and everyone who built a house even a fraction of an angle off of true North paid nothing, we would surely collect no tax revenue, given how easy it is to avoid that law.  But short of that, most laws are all about marginal effects.  People who say that "guns will still be easy to find" or that "bad guys will resort to arson or vehicular homicide" are not categorically wrong, but they are acting as if there is no way at all to make marginal improvements in the world.  It is a grim -- but thankfully completely baseless -- kind of resigned pessimism.

All of which brings me back to the insurrectionist view of the Second Amendment.  I recently re-read a column in which Professor Dorf described the insurrectionist justification for gun ownership as "not just crazy, it's Ted Cruz crazy."  That piece was published just a bit over nine years ago, when Cruz's misbegotten Senate career was only a few months along, and the junior senator from Texas was busily figuring out how to troll his way onto the news every night.  How far we have come in less than a decade, where his view is now the norm among Republicans!

Professor Dorf's column is a very good read, and I recommend it to everyone.  One of the most important points that he made is that the historical record surprisingly offers a stronger case for the insurrectionist view than for the self-defense view of the Second Amendment.  Noting that (for a very good reason) Scalia and Thomas in Heller had rejected the insurrectionist view in favor of a weaker but less embarrassing alternative based on self-defense, Dorf described the two right-wing jurists as the "reasonable not-at-all crazy moderates among the people who think the Second Amendment protects an individual right" (emphasis in original).
What was the very good reason that the insurrectionist view was too embarrassing even for those two can't-be-embarrassed hardliners?  James Madison's view of insurrectionism pictured organized state militias fighting against federal troops, which was not only made impossible by the Militia Act of 1903 (which brought state militias under federal control) but is not at all what current insurrectionists are talking about.
The neo-insurrectionists do not advocate having each state organize a well-regulated militia, with an arsenal under lock and key, that can be called to arms to fight King Joe.  They think that everyone has to be able to possess as many guns as each person individually deems necessary, so that they can collectively stop the government from taking away their rights.  (As I described with some exasperation in an earlier iteration of this debate, the most important -- perhaps the only -- right that they seem to care to defend is the right to have guns, leading to the circular idea that they need to have guns to prevent the government from taking away their guns.)  The insurrectionist view thus holds that the citizens can rise up and prevent a would-be totalitarian federal government from oppressing the people.
I do have to give credit to one adherent of the insurrectionist view, who pointed out in a recent video (which I cannot find right now) that people who claim to be "law-abiding gun owners" cannot coherently take an insurrectionist position.  After all, he noted, the point of an insurrection is that The People will have decided that the government that creates and enforces the laws must be overthrown, because we can no longer abide their laws.  He also noted archly that such a response will involve "killing government employees," because the very reason for an insurrection is to defy the government's laws and those who would enforce them.  Those gun owners are not very law-abiding, one might say.
Such clarity is at least refreshingly honest, but it does not get to the major point, which is that (in Professor Dorf's words) "private citizens stand no chance of defeating the federal armed forces in a real conflict."  Scalia's (historically ignorant) Heller opinion included the sensible observation that "it may be true that no amount of small arms could be useful against modern-day bombers and tanks," along with his statement that "our standing army is the pride of our Nation."  (That assertion seems tendentious, at best, but we can set that aside.)
Now, however, we return to marginal reasoning, or not letting the perfect be the enemy of the good.  Although it is awkward to equate "perfect" with overthrowing the government and "good" with violently bringing a not-quite-overthrown government to heel, it is worth thinking about the analogy.  Just as one cannot stop every fight in hockey with better rules, maybe we should view an armed citizenry as the marginal difference -- the standing threat -- that will keep the government from sliding into tyrannical rule.

Does that make sense?  Only if the would-be tyrants are not in fact would-be tyrants.  After all, the marginal-improvement argument in favor of gun control is that taking the most lethal weapons away from people might not prevent them from killing some number of people, but it will reduce the death toll when people have to stab rather than shoot their victims.  A would-be tyrant, however, has not been militarily neutered by a heavily armed populace.  If anything, the existence of all those guns makes it more important for the evildoers who have seized the government's powers to use even more lethal force.  Tyranny is not like a crime of passion, or a time-limited killing spree that can be mitigated by keeping down the deaths-per-minute rate.  Would-be tyrants have the motive and means to achieve their ends.

But might the would-be tyrants still stop short, even if they could in theory go all in and crush the people?  Will they say that the cost is not worth it?  There are a lot of brave Ukrainians who hope so, but they have the advantage of access to equivalent weaponry -- and it still might ultimately turn out that the would-be tyrant will refuse to stop, no matter the cost.

To take a somewhat less extreme example (or at least one that is extreme in a different way), recall the insane scenes from 2020 in the Michigan statehouse, in which insurrectionists took advantage of open-carry laws to menace their lawmakers by standing in the gallery above the legislative floor, holding military-style long guns.  It eerily looked like a shooting gallery.  The threat was clear: We know that there are laws against murder, but if you do not change your minds about COVID-19 mitigation measures, we might decide that there is something more important than obeying the law.

Now imagine that Michigan's legislators, shocked by what they had just endured, decided to take up gun control legislation.  Is this not a perfect example of how the already-armed citizenry -- unencumbered by the gun laws in Washington, DC, that prevented the January 6th insurrectionists from arriving fully armed -- could prevent lawmakers from changing the laws by threatening to kill them?  Tyranny averted!

This, however, again assumes that the state's legislators had no recourse, that they would have been forced to stand unguarded on the floor of their chambers and cast votes, knowing that shots could ring out at any moment.  Fans of the sometimes-campy historical drama "Vikings" will recognize the term "shield wall," in which groups of warriors crouched behind their shields, arrayed to stop arrows and crossbow bolts from killing them.  State legislators can create the equivalent of shield walls in any number of ways, from wearing military gear to protect themselves to having guards violate the law by disarming people coming into the Capitol ("So sue us!") to holding sessions on Zoom.

That Michigan's legislators did not do any of that is due to two things.  First, there probably were not enough yea votes to pass laws to keep guns out of government buildings, so there was no point.  Second, they decided that it was not worth the trouble or risk to try.

Is that the marginal effect?  Did the armed pseudo-militiamen of Michigan prevent tyranny by making it too much bother to be tyrannical?  If so, they succeeded in pressuring their state's lawmakers to allow more Michiganders to die needlessly during a pandemic, in the name of barefaced freedom.  So yes, it is true that lawmakers might alter some decisions on the margin when living in the shadow of potential violence.

That, however, is not limited to government action that is freedom-related.  A group of weapon-toting goons could show up and hover over the legislature to try to change decisions about any number of things.  Changing the state animal, given that wolverines have not been seen in the state for over a century?  Cutting the capital gains tax rate?  Re-invading Toledo?  All of those decisions, and more, could be changed by threats of violence against legislators.

That is not insurrection; that is mob rule.  The insurrectionist view of the Second Amendment says that there might come a time when the rulers become uncontrolled by the existing rules, and the only way to fight back is to start killing people.  Unless one takes a particularly odd (and amusing) view of the slippery slope to tyranny, in which literally everything that a government does (or does not do) might accelerate the end of self-government, then successfully intimidating lawmakers with threatened illegal violence is not an insurrection.  Any would-be tyrant worth her salt knows what an insurrection looks like, and she will have the means to stop it.