Gun Rights & Tyranny: A Coda

I’d like to present a quick little philosophical coda to Mike’s latest post on gun rights and tyranny by outlining a difficult puzzle.

Consider the following propositions:

1. A state is any organization that successfully upholds the possession of a monopoly on the legitimate use of force.

2. It is legitimate to defend against tyranny by the use of force.

Both premises look to be pretty plausible. The first is Max Weber’s definition of the state, which is widely influential. The second is a commonsense construal of the Second Amendment, once you formulate it in a way that is consistent with the Constitution [and other founding documents].

But what follows from these two premises? Well, anyone who makes a legitimate claim to the use of force, and who is not a part of the government or acting as a party to its laws, cannot help but be seeking to disrupt the state’s monopoly on the use of force. Hence, those who recognize the validity of this commonsense reading of second amendment are de facto advocates of vigilantism. Even if you are a centrist or left-libertarian who advocates gun control, so long as you recognize (2) is a plausible reading of the constitution, you are stuck moonlighting as an advocate for vigilantism. This is remarkable.

Obviously, many of us do not want to come to that conclusion. So there must be something wrong with one or both of these premises. Perhaps (1) is a vulgar statist formulation which pretends that ‘legitimacy’ equals morally rightness. So you might think that the difference between (1) and (2) trades on an ambiguity in the meaning of the term ‘legitimate’. But this critique does not seem destined for success. ‘Legitimacy’ seems to be a non-moral normative phrase, meaning something like, ‘is commonly recognized to hold a certain status’.

It’s a distressing and difficult puzzle, made all the more frustrating by the fact that it is so easy to formulate. Needless to say, quite a bit rides on the answer to the question. But whatever the answer is, the first step in a good conversation is for everybody to recognize a problem as a problem.

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  1. Your “puzzle” requires two assumptions – 1) states must be assumed to be legitimate and 2) tyranny is equated with crime. Is it still a puzzle when states don’t have any inherent legitimacy and tyranny is an abuse of power by an authority?

  2. Certainly, the puzzle disappears if you dismiss either of the premises, as you have:

    S1) States are not necessarily legitimate.
    S2) Tyranny is the abuse of power, not (just) the unlawful use of force.

    Suppose (S1) is true. In that case, you have to define the state another way. “A successful monopoly on force” won’t do it, because there are some things that fit that definition that are not states (e.g., a cartel, a street gang). That definition seems to miss out on something important about the state, which is the idea of legal governance (corrupt or otherwise). You have to say more.

    Suppose instead (S2) is true. Your definition of ‘tyranny’ is interesting. Many (e.g., Plato) have thought that expressions like ‘tyranny’ are just ways of speaking of forms of governance that one does not like, while you offer something that sounds more substantial.

    Let’s assume (S2) is right. In which case, you respond to the puzzle just by accepting that vigilantism is just fine after all when dealing with abuses of power. But I think that the low levels of confidence that Americans have in their Congress might indicate that people suspect that the American political system is rife with abuses of power. So if you’re on board with that inference, you’re an advocate of vigilantism. And that is indeed one way of getting out of the puzzle, but it won’t be any solace to those of us who find something disturbing about the American vigilantist culture.

  3. BLS Nelson,

    It makes a difference to what you understand “the monopoly of force” to mean.

    It can mean that within the state individuals and groups do not have the right to resolve their difference through the use of force. As the state alone has this monopoly. It does not mean they will not use force, but by breeching this monopoly they may find themselves in jail.

    Under a monopoly of force. Private individuals do not have the right to imprison other private individuals. Or execute them – as the state has monopoly on capital punishment. Individuals and groups do not have the right to wage wars on foreign powers – again, this is a monopoly of the state.

    The 2nd Amendment empowers individuals to bear arms, in defense of the state. There is a distinction between the use and the bearing of arms. In the instance the state is invaded by a foreign power – the state may then grant its’ citizenry the right to use force against the foreign invader.

  4. JM, presumably you mean to be offering an analysis of “the legitimate use of force” there, not of the “use of force”. I accept all your illustrations.

    But why do you think that the Second Amendment is only meant to protect against external invaders? There is a peculiarity to the wording of the Amendment — to wit, it is “necessary to the security of a free State”. (emphasis mine) At least for the purposes of that amendment, the state alone is not the subject of protection.

  5. “Suppose (S1) is true. In that case, you have to define the state another way.”

    Why? Legitimacy is a value judgment. It doesn’t have anything to do with whether or not an organization is a ‘state’.

    As for tyranny, I used the dictionary definition: “arbitrary or unrestrained exercise of power; despotic abuse of authority.”

    To me, equating tyranny with simple crime diminishes true tyranny.

  6. Regarding (S1):

    Whether or not a thing is an evaluative judgment is irrelevant to most matters we can think of. As a matter of fact, everything is value-laden. The proper question to ask is whether our judgments properly track evidence and can be discussed rationally.

    Here’s an important difference. When we are speaking about our favorite films, and what counts as ‘the best movie’, etc., it is instructive to sometimes step back and say, “Oh, it’s just relative to your values”. This is a subjective judgment, and it implies a relatively loose or non-existent commitments to evidence.

    In contrast, when two climatologists disagree over the relative weight in which tree core samples ought to play in the calculation of the mean global temperature of the Earth, they too are making evaluative judgments. So, e.g., perhaps Dr. Smith likes to err on the side of (what she considers) the best evidence, while Dr. Jones likes to use as many sources of evidence as possible. They are making evaluative judgments, but their value-judgments are objective ones — tied to evidence by hook or by crook. That’s all that matters.

    Sometimes, social scientists use the word ‘legitimation’ in an unusual non-moral way which involves an objective judgment, not a subjective one. The kind of legitimacy that social scientists are interested in can, in principle, be resolved by appealing to evidence. They just ask us whether or not it is commonly recognized by a public that a certain party or faction is an authority in some region, or whether they stand as successors to a set of commonly recognized laws. If the answer is ‘yes’, then that authority is legitimated, and legitimate in the social or political sense. e.g., Nixon was a legitimate President of the United States even though he was moral slime.

    So legitimacy (in the political sense) looks as though it has everything to do with whether or not an organization is a state.

    Regarding (S2):

    That’s a fine definition, and I am all on board. Unfortunately, the use of arbitrary and unrestrained state power is par for the course these days. My favorite example is that of the G20 in Toronto, 2010. In Ontario, we have legislation that goes by the name of the “Public Works Protection Act”. The purpose of this legislation is to allow for increased police presence in areas designated as public works, like courthouses and other key public infrastructure. The G20 is an international conference which is billed as a forum, not an institution. It strains credulity to call it a “public work”. Yet, curiously, the “Public Works Act” was used to cordon off a solid chunk of the downtown core, temporarily rewriting the law within its jurisdiction, and the result was widely seen to be a massive breach of Canadian legal rights. Now, if the G20 were in fact a public institution, then it might warrant this extravagant cost. But it is not. And under any non-fabulous interpretation of the legislation, a G20 style of event does not fall under the code.

    So here we have an arbitrary exercise of power, in the sense that the use of power had no basis in law. And it is an unrestrained exercise of power, in the sense that no government bodies can stop it from happening again. For our developed economies are now so intertwined that events like the G20 must go forward.

    Is it tyranny, then? Most Canadians say, not at all. They say to protestors, “You should have stayed home.” They say, “Yes, it was a bad thing, but it was only a month or two.” That kind of thing. Perhaps they’re right. Or perhaps Canada is an utterly delusional bag of twits.

  7. I agree with you on states’ actions often being arbitrary and unrestrained. Though I’m not sure I agree that’s a recent issue.

    Regarding political legitimacy, does simple power provide it? Take a successful coup – are they “legitimate”? I’d argue the organization they took over is still a state. I’m not convinced it would be legitimate.

    Perhaps I’m too tied to the moral definition. Going back to your original proposition, if we remove “legitimate” and any associated moral judgements, the conflict is obvious. The state has simply failed to maintain its monopoly once the second premise is effected. At that point it doesn’t meet the definition and is no longer a state.

    I am wondering whether you’re using the same definition of legitimate in both premises…the second is difficult to read as anything other than a moral judgement.

  8. Usually we think the leaders of a coup are not commonly recognized as authorities because there’s no confidence that they can occupy and retain a position of power. Coups are shocking and tumultuous, which gives a public reason to doubt that there is any specific set of people who are in command and who ought to be obeyed. If that sense of confusion is pervasive enough, then it seems fair to say that there is no state.

    That’s not to suggest that the state must necessarily wither just because there is a coup. If the members of the vanguard can entrench themselves into a position, they can take on a sheen of political legitimacy. Ultimately, a claim to legitimacy only needs to provide subjects with reasons to trust their governors. Those reasons might be based in ideals, or they might be based in fear. The point is just that legitimacy is harder to establish when you haven’t got an orderly chain of succession.

    The idea behind the second premise is troubling only because of where it comes from: the Bill of Rights. Supposedly, this document (and the other ratified founding documents) give expression to the norms that constitute the American republic. It’s safe to say that the contents of these documents are commonly recognized as having the right kind of authority. So the declarations and permissions set out in the documents are legitimate in the same way that Nixon’s presidency is legitimate. And one of those permissions is the right to defend the free state.

    It’s not, I think, just a moralistic claim, that we morally ought to have this right. Perhaps we don’t at all. Perhaps citizens don’t have any right to bear arms whatsoever. Indeed, for the sake of argument, we might even say that perhaps we are morally obligated to give up all arms. (Or perhaps the reverse: perhaps we all have a moral obligation to sleep on a mattress made of guns.)

    Regardless, the right to bear arms is legitimate in the political sense because that right is commonly recognized as authoritative, and because there are institutions which keep it alive (and citizens who guard that right).

  9. P1. ” We the people of the United States, in order to form a more perfect Union, establish Justice, insure Tranquility, provide for the common defense , promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America”
    P2. Article1 section 8 “The Congress shall have Power… To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions..To provide for organizing,arming,and disciplining , the Militia…”
    C1. My government shall act for me to suppress your private insurrection whether it is active or potential.

  10. BLS Nelson,

    “But why do you think that the Second Amendment is only meant to protect against external invaders? ”

    I don’t. I was just too tired to explicitly state it’s intention would also be to defend against an internal coup.

    The 2nd Amendment is clearly to mandate the preparation of francs-tireurs (free shooters). Civilian irregulars. They’re hated by regular military leaders, who like to move toy soldiers around on a map, but they are effective. They’re already deployed, and they can hold back a larger force for hours, sometimes days. They are the reason it took the Germans in WWI weeks to cross Belgium instead of just a few days. There was an incident in during the Russian invasion of Hungary in 1956, where children held off Russia tanks for over a day, by overturning barrels of waste oil on a hill – the tanks couldn’t get traction. Again, military planners really hate these wildcats as they’re so unsporting.

    During the second world war, The British assembled the Home Guard – these were unpaid volunteers – they were mandated to arm themselves in defense of the country. Also Churchill formed the Auxiliaries (which he based on the IRA). In the early stages of the war the British leadership believed they were about to be invaded and occupied – the Germans would have installed their own British government. It’s at this stage the Auxiliaries and Home Guard would fight a guerrilla war for independence. And I believe this was the intention of the 2nd Amendment, not that citizen could become Charles Bronsons, and shoot young people who accidentally pulled into their driveway (as happened in Georgia the other night.)

    There is context to the 2nd Amendment too. The US was not a heavily militarised state until the WWI. Even in the lead up to WWII Hitler did not consider the US to be a major threat, as the US only had a very small standing army – I can’t remember the precise figures but the numbers were in the tens of thousands not millions as it stands today. The jingoistic militaristic culture of the US was a product of the cold war – and that the US after WWII became the defacto world power.

    “There is a peculiarity to the wording of the Amendment — to wit, it is “necessary to the security of a free State”. (emphasis mine) At least for the purposes of that amendment, the state alone is not the subject of protection.”

    The free is to explicitly distinguish the democratic state, for say a dictatorial state established through a coup.

    There is nothing really peculiar in the wording of the constitution. It should have been drier, less purple, and legalistically explicit. You’re asking for trouble otherwise. Never put anything in a law just because it sounds good or clever.

    Where the peculiarity is, they might be morons but it doesn’t mean they’re not devious which they are, the NRA, Teabillies, and other assorted creeps and loons, have been able to frame the debate – not so much in reinterpreting the wording of the constitution but in subtly twisting the perception of what the constitution, the state, tyranny, freedom, etc is.

    Teabillies are anti-government – taxes are a tyranny, warshington is a tyranny. They hold the 2nd Amendment to be something separate from government, separate from the American state – a holy revelation from the holy founding fathers. They interpret the constitution as a religious document above the state (even in opposition to the state) – and they interestingly also interpret “freedom” and self-governance in the same religious terms. To them democracy is not the democratically elected government or state, it’s a kind of l’etat et moi.

    They believe the constitution mandates that they, as individuals, are little governments in themselves – and the land mass of the US is their territory, which of course they govern with other independent cowboy hat wearing rugged individualists. Their enemies of course, are the people who believe in the sane and generally conventionally accepted concept of a constitutional democratic state.

    The reality is, the constitution is document of the state. The state has not only a monopoly of force, it has a monopoly on all mandates. A democratic state derives its’ mandate from the people, through elections and free discourse.

    So it’s not the NRA/Teabilly interpretation of the 2nd Amendment that should be challenged and debated. It’s their fundamental concept of the constitution of democracy itself – which in reality is anti-democratic and hostile.

  11. Vigilantism is exactly why the second amendment is there. Not only was there no/limited standing army, as JMRC pointed out, there was no police force. Local, citizen militias were suppose to keep the peace, defend again slave uprisings and Native Americans. And, it was was also a helpful defense against foreign invaders and government overreach (the whole Federalist/Anti-Federalist debate was still fresh). It was vigilanty justice. If someone commited a crime, the local townspeople would gather the milita and go get the guy. The two premises don’t lead to a conflict. The fact that they make us uncomfortable now (coupled with the fact that we have a standing army and police force) just shows that the 2nd amendment is an outdated relic.

  12. Gene,

    You are correct. You need both a lawyer and a historian to see the context of the Amendment.

    Regularised police forces are only really a product of the late 19th century. But it wasn’t complete gun law – in Europe, as well as the US, you would have sheriffs, who could round up some deputies and head out and catch some varmints – then you would have courts. You still have elected sheriffs in the US – that’s kind of anachronistic in Europe.

    Once you stand back, and look at it in its’ correct historical context, there is nothing peculiar or extraordinary about the Amendment. It’s fine with hindsight to say it’s probably not a mandate that should have been put in the constitution. But at the time the US was the first real modern democracy and the paint wasn’t really that dry yet.

    The American government drafted the Japanese constitution. I haven’t read it, I can barely order sushi. But I bet it does not give every loon the right to bear arms.

  13. Duncan makes an important point. Article 1 S8 is an example of one place where the state says that it has the right to stamp out vigilantism. This effectively bolsters premise (1).

    Does it also undermine premise (2)? Not necessarily. You can endorse both premises in a kind of underhanded way, by effectively reading the relationship between state and public as an adversarial one. Suppose the state has a constant vested interest in successfully retaining a monopoly on legitimate use of force. This does not mean that others (e.g., everybody) might not have a proper claim to the legitimate use of force when it comes down to the purpose of eliminating a tyrant. It just means that, regardless of that claim, the state shall also have the right to crush those vigilantes in due course in order to retain its monopoly.

  14. Gene, that’s fair, and maybe at the time it was not a problem at all. Perhaps it only seems puzzling to modern eyes. But wherever the puzzle comes from, here it is now.

    I said at the outset that any rejection or alteration of either premise would resolve the puzzle. e.g, Gene seems to recommend doing something with the Second Amendment. If you took a red pen to it, along with some of the other canons of Americana which have similar vigilantist overtones, it would alter (2). But the ‘puzzling’ quality only relates to the sense that some sacred cow or other has to go on the chopping block.

  15. BLS Nelson,

    The territory you’re in here is jurisprudence. That is a specific area of philosophy that is materially binding in the real world. Lawyers don’t like to think of themselves in dealing in philosophy but this is what they do.

    There is a hierarchy in law. An article in a constitution may be absurd – but all other criminal and civil law must be logically in agreement with it. There is a body of law, and body of interpretation. Experts on jurisprudence are experts on something that is very hard for people outside that field to know. You can never take laws at face value.

    If you look at law these days. Say an act of the British parliament – the meaning of words are explicitly define. The word tyranny is not defined in the US constitution. Where in the preamble of legislation nowdays, any word like that is very explicitly defined (not sure about American law, British acts of parliament, yes). Poetic license is good for poems – but makes very bad law.

  16. JM, I’m struck by the fact that I agree with you in large chunks, and then disagree with a few sentences that get thrown in at the margins. @6:09, I found your first eight paragraphs edifying, up until you wrote:

    There is nothing really peculiar in the wording of the constitution. It should have been drier, less purple, and legalistically explicit.

    In these two sentences it seems to me that you are at odds with yourself. The wet rhetoric of the founding documents, their purple prose, is entirely peculiar from a jurisprudential point of view. Or at least, that is how it seems you would have it. This seems to be important, since much of force of (2) seems to issue from the purpleness of the prose.

    It’s true, of course, that this coda is laid up against a certain political and historical backdrop of mass discontent with the American political system. However, I do not frame this problem as a special one for the Tea Party types. I think it has force over left-wing vigilantist movements (e.g., presumably one does not wait for a state permit before occupying Oakland). And, presumably, even sheepish centrists can worry about it.

    It’s equally true that this all eventually comes down to federalist and anti-federalist interpretations of what’s going on. But before readers drown in that literature, it helps to always pull back to the basics: the methods of thought and inference, in their most basic form, which are responsible for the most heartache. I do not put my finger on this ‘puzzle’ because I think it is irresoluble; e.g., just reject your least favorite premise and problem solved. I talk about it because I think it’s a source of substantial political stress.

  17. BLS Nelson,

    “In these two sentences it seems to me that you are at odds with yourself. The wet rhetoric of the founding documents, their purple prose, is entirely peculiar from a jurisprudential point of view.”

    Yes – meant should with hindsight. This is a lesson hard learned in drafting law. The law may be very clear to people at the point of drafting. The emotive prose in its’ own way makes in clearer. But this can also make it fall down when it comes to the point of interpreting the law in court. You’ve heard the term “in the word of the law, not the spirit of the law”. This is where some implicit unintended consequence of wording has been found – or could even been an unintended interpretation is explicitly in the wording that had just been missed by the original drafters – something glaringly obvious that just was not obvious to them.

    On drafting law nowdays, lawyers throughly test the law, looking for possible unintended interpretations. Logic is easier to determine than intentions of emotive language, which is very subjective. So, drier non emotive language is preferable.

    “I do not put my finger on this ‘puzzle’ because I think it is irresoluble; e.g., just reject your least favorite premise and problem solved. I talk about it because I think it’s a source of substantial political stress.”

    People like NRA want it look like an irresolvable puzzle but it isn’t. If the majority of public opinion was for changing, removing or qualifying the 2nd amendment – then there would be a referendum and it would be changed.

    Conservatives who do not wish to see change, muddy the water and frame change as impossible. They say universal health care is impossible, that it would bankrupt America. But they have it in every other developed country, a significant portion of the American public believe it’s impossible when obviously it isn’t. Most Americans are completely unaware that the “market mechanism” of their health care system has failed. They get less health care for a lot more money. The insurance companies are just there to maximise their profits while minimising the care they provide. The solution is simple, but the lobbyists and their right wing supporters make it look impossible.

    The gun lobbyists want you get tied up in how they frame the question. Every time you think you have the answer, they can subtly change the question – until you come back in a full circle.

    Soyez réaliste demandez l’impossible

  18. I don’t really have anything substantive to add that I haven’t already said, so I’ll just treat myself to a non-substantive remark.

    “Be realistic, demand the impossible” is on at least one of my t-shirts. An artifact from my union days.

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