Monday, October 13, 2014

Comments on Halbrook

So, having given an overview of Stephen Halbrook's article on Presser v. Illinois, what do I think of it?  The article addresses two issues I intend to address in this continuing series, in particular, the rights of left-wing radicals and, if the Second Amendment protects the right to form private armies, who has that right.  It also addresses an issue I have addressed in the past -- the nature of the militia.

Halbrook's article more-or-less acknowledges that not all private paramilitaries have been as nice as insurrectionist theorists of the Second Amendment tend to assume.  He talks at length, for instance, about the violence and brutality of the Pinkerton detectives, a point well taken.  The conservative of the day denounced the union forces by comparing them to the Ku Klux Klan, many people's main point of reference for a private paramilitary at the time.*  Halbrook is indignant at the comparison. The Pinkertons and the Illinois National Guard were a closer parallel to the Klan, he says, while the union's paramilitaries were more like hapless black militias organized in self-defense.  He also goes out of his way to emphasize the peaceful nature of the union's forces -- unlike the Pinkertons and the National Guard, they never engaged in actual violence.

In fact, Halbrook makes his analogies quite clear.  In the post-bellum South, the select (i.e., all-white) militia oppressed black freedmen.  When the Federal Government disallowed that arrangement, the Klan took over the role of the all-white militia.  Freedmen used armed force and formed militias only in self-defense.  Likewise, in Illinois the Pinkertons terrorized unions and the Governor replaced the general militia with a select militia -- the National Guard -- that joined them.  The union paramilitary was intended for self-defense only and never engaged in actual violence.

Thus so far as I can tell, Halbrook's position is as follows:

  1. The true militia is and must be all able-bodies men of fighting age.  A select militia of anything less will become an instrument of oppression.
  2. Entrenched interests sometimes form private paramilitaries to terrorize anyone who would challenge their wealth and power.
  3. The targets of such terror must therefore be allowed to form their own paramilitaries as a matter of self-defense.
To put it more crudely, today's "Patriot" militias take the Second Amendment as a broad authorization of right-wing paramilitaries and have generally not addressed whether left-wing paramilitaries are also allowed.  Halbrook, by contrast, seems to see right-wing paramilitaries like the Pinkertons or the Klan as illegitimate and believe that the Second Amendment mostly authorizes left-wing paramilitaries in self-defense.**

Halbrook certainly does a good job of pointing up the establishment's hysterical overreaction to a rather minor challenge to its hegemony -- just as Southern whites hysterically overreacted to challenges to their racial dominance.  What he does not acknowledge is that this sort of hysterical overreaction is not an outlier.  It is, sadly, the norm.  Furthermore, when violence breaks out between right-wing and left-wing armed groups, the state's normal reaction is to overreact to the threat from the left and to underplay the threat from the right until it becomes overwhelming.  

Even if the state stays neutral, Halbrook falls into the same trap as many romanticizers of left-wing revolutionism; he ignores just how nasty violent strife between armed factions can be, and the tendency of nice guys to lose out in such strife, and the participants to be brutalized.  It also ignores what the outcome of taking up arms about the people who control the levers of power is likely to be.

Finally, I think that Halbrook is a bit naive (and occasionally outright mendacious) about the whole idea of a universal militia.  Halbrook is a great admirer of Switzerland, the only country in this day and age to maintain anything like the universal militia he advocates.  I do not know enough to be able to explain what accounts for Switzerland's outlier status in this regard, but it most certainly is an outlier.  Aside from Switzerland, people don't seem willing to maintain the significant burden of training and drill necessary to maintain a universal militia in the absence of some real threat, external or internal. This has been the general experience of countries other than Switzerland that have attempted to maintain a universal militia in the absence of a threat -- the practice atrophies because it is so unpopular.

Such was the experience of the antebellum U.S. -- militia discipline was always hard to maintain, and after the War of 1812, when their ceased to be an external threat, militias atrophied outside of frontier communities and the South.  In frontier communities the threat could be considered external -- it came from the Indians.***  In the South, well, this is where the mendacity comes in.  Halbrook treats a select militia in the 1880's as something new, but of course, it was not. The militias of the antebellum South were clearly "select" in the sense of being all white.  Their role was mostly to act as a slave patrol and guard against the internal threat of a slave rebellion.

Much the same can be said of Israel, the other great example of something approaching a universal militia in the present day.  Israel's universal draft and reserve force were never truly universal; non-Jews were not allowed to serve.  The system stayed in place for a long time because Israel was facing an external threat from hostile neighbors.  That threat has receded over time, but Israel's system of "universal" military service stays in place to deal with an internal threat from Arabs in the occupied territories -- and as the Arabs become a larger and larger minority, the system looks less and less universal.

In short, outside of Switzerland, citizen's militias function under one of two circumstances.  One is when the country is threatened by invasion, in which case the militia really can work as Halbrook envisions.  The other is in case of an internal threat, in which case the militia is not, in fact, universal and does become an instrument of oppression.  Such was the role of an all-white militia in the South, antebellum or post-bellum.  Such was the role of the National Guard in the North during the Gilded Age.

I will finally add that, although Halbrook ends his article with a plea to the courts to declare the Second Amendment to apply against the states, he does not address whether he favors a universal militia in this day and age.  Does Halbrook see the National Guard as an unconstitutional source of oppression?  Does he favor a return to a universal militia?  How does he intend to persuade a reluctant public to submit itself to military discipline and drill?  And what does he intend to do with such a militia?

I now propose to move on to how left-wing revolutionary or semi-revolutionary groups won recognition for their First Amendment rights.  This does not directly address the Second Amendment, but, as I have touched on before, if the right even to address certain opinions was controversial, what are the chances that the right to form private armies on behalf of those opinions was widely accepted?

*It is significant, by the way, that comparison to the Klan was used as an unequivocal term of condemnation in the North in the 1880's.  That may seem obvious to us, but in the contemporary South, the Klan was widely seen as heroic.  Indeed, in the early 20th Century, that view actually became quite widespread.

**I suppose that Halbrook would disagree and say that the real difference is whether the militia is acting as aggressor or in self-defense, not its ideology.  But is writing here seems to show a clear bias in favor of left-wing paramilitaries.

***And, it should be noted, the regular army tended to show more restraint in dealing with the Indians than the militia, and much greater willingness to force settlers to abide by U.S. treaties.

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