When Did it All Go Wrong?

 

A healthy democracy does not choose Donald Trump as its President. And certainly, once he tries to overturn an election, a healthy democracy recognizes that he is a menace and bars him from office.

Which means that it didn't start with Trump.  America's slide from a healthy democracy has been going on for a long time.  So when did it start?  I have heard various candidates.  Once is the rise of Fox News, which distorted people's viewpoints.  Others point to Rush Limbaugh and talk radio, or Newt Gingrich and the new class of Republicans he brought to Congress.

Others have gone back further, to the passage of the Civil Rights Act.  The US has had at least two illiberal strains for a long time.  Both can be considered right wing, but they did not used to be partisan.  One was the the right wing illiberalism of Joe McCarthy and the John Birch Society, mostly a Republican phenomenon.  The other were Southern segregationists, who were Democrats.  Each party had an illiberal faction, but its chances on a national scale were best if each party held its illiberal wing in check.  With Democrats embracing the Civil Rights movement in the 1960's, southern racists migrated over to the Republicans, allowing the illiberal forces to capture a party.  

But if that is so, it didn't happen over night.  When did the rot begin?

I do not claim to know, but I can say that the first hint I got of it was in the 1988 election.*  Ronald Reagan had won two successive landslides, but he was term limited out and showing signs of mental decline.  Democrats were feeling hopeful that it was their turn. And then Bush, Senior got nasty.  There was an ugliness to the election that I (admittedly quite young at the time) had not seen before, as if the prospect of a Democrat winning were some sort of outrage against the natural order.

Well, Bush Senior won, by a landslide, though not so wide a landslide as either Reagan election. His government was quite reasonable and moderate. And then in 1992, Bill Clinton ran and won. The election had not of the nastiness of 1988.  (Bush's campaign manager, Lee Atwater, author of the 1988 campaign, had died in the interim).  

But no sooner did Clinton take office that Republicans began their freak out that has not ended since.  Led by Gingrich, Republicans won control of Congress during the midterms and made clear that a Democrat in the White House was an outrage that could not be allowed to stand.  The investigated everything from the use of White House personnel to answer letters to the White House cat to rumors of a Clinton body count.  They shut down the government and threatened a default on the national debt.  They appointed a special counsel to find grounds for impeach and ended up with nothing worse than an attempt to cover up an affair.  They impeached anyhow.  And paramilitary groups trained in the woods for violent revolution.

All of this during a time of unprecedented peace and prosperity, with steadily falling crime rate, and even a successful balanced budget.

My conclusion was that somewhere along the time Republicans had developed what all conservatives claim to hate most -- a sense of entitlement.  In this case, entitlement to hold the Presidency.  And maybe other offices as well.  Republican reactions to an Obama or Biden presidency has been part and parcel of the same, except with serious problems on a national scale.

But looking back on it, even that may not be the whole story.  Looking back on it, there were signs of something very wrong in the late Bush, Sr. presidency.  Again, I first noticed in 1989 when a man in Stockton, California aimed an AK-47 semi-automatic, modified to by fully automatic, at a school yard full of children and started gunning them down.  To me, it was obvious that something so lethal had no place on the street.  I soon found that not everyone shared my view.  In fact, it was then that I first started hearing the argument that the whole point of the Second Amendment was to make military firearms widely available so that the people could engage in violent revolution against their government, and that taking military-style firearms off the streets was "idiotic" and the work of "lunatics."  The in 1992, Randy Weaver, a white supremecist in Idaho with a large arsenal, had an armed standoff with the FBI.  An alarming number of people turned out to express their support for Weaver.  The FBI and ATF badly mishandled the situation and ended up killing Weaver's unarmed wife and son.  Dealing with fanatics with military style weaponry who considered armed resistance to government as their constitutional right was unfamiliar at the time. And the rise of Rush Limbaugh and all sorts of paranoia about the United Nations also got started at this time.

This was the reaction to having a moderate Republican in the White House.  So, looking back with the clear light of hindsight, I can only conclude that sometime beneath the surface, not only did Republicans develop a sense of entitlement to the White House, but MAGA Republicans (not that the word existed yet) developed a sense of entitlement to control of their party.

The country has not recovered yet.

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*Though not related, 1988 was also the first time Joe Biden sought the presidential nomination.

One Small Comfort

But her e-mails!

 I suppose I should take one small piece of comfort from the recent insurrection.  At least so far no one has said it was just an exercise of every law-abiding citizen's Second Amendment right to violently overthrow the government.

Maybe if there had been more shooting. . . .

What Should Obama Have Done?

All right, I am a little late to the game, but let me post my thoughts on the Washington Post article  about what Obama knew about the Russian hacking and why he didn't do anything about it.

As for what he knew, the big news is that he received a top secret report in August, 2016 that the Russians were interfering in the election, that they were doing so at Putin's direction, and that they were trying to get Trump elected.  This was at first top secret, known only to the President and three advisers, then to four others, the head of the CIA, the Director of National Intelligence, the Attorney General, and the head of the FBI.  Later Vice President Biden and various Cabinet secretaries were let in on the secret, and eventually the Gang of Eight -- the majority and minority leaders of the Senate and House and the chairs and ranking Democrats from the House and Senate Intelligence Committees.

Obama's conversations with the Eight have been known for some time.  The Republicans in the group resisted going public with the information and Mitch McConnell expressed outright disbelief.  The article relates other details that had not been disclosed before.

Obama contacted state Secretaries of State to warn that Russians were meddling in the election and found none of them convinced.  He also considered and rejected various measures against Russia and rejected them largely for fear of retaliation.  Expelling Russian diplomats was rejected on the grounds that the Russians might retaliate against our diplomats (many of whom, as with the Russians and with all countries, are really spies).  A cyber attack against Russia was rejected because it would expose how and where the US had penetrated the Russian networks.  Releasing embarrassing information on Putin was rejected because it looked too much like doing what we were condemning.  Economic sanctions were rejected on the grounds that they might harm Russia's European trading partners. And, of course, with Republicans refusing to back him, Obama decided not to go public for fear of appearing partisan.

It is this last decision that has been the subject of the most controversy, and that I am prepared to defend, although my response may seem a bit strange and self-contradictory.

Some people have defended Obama's decision not to go public for fear that such an announcement would and played into Trump's narrative that the election was "rigged" against him and might even have sparked an armed rebellion by Trump supporters and led to blood in the streets.  This is just plain nuts. First of all, no, there would not have been an armed rebellion.  Maybe a few terrorist outburst here and there, but certainly nothing large enough to be menacing.

And in any event, as I have discussed many times before, any free and democratic government that allows itself to be intimidated by men with guns is abdicating its duties and will end up abdicating democracy as well.  And no, guns are not the way to uphold the rights of the minority against the tyranny of the majority.  To allow a veto to anyone with a large enough arsenal is to surrender the rule of law in favor of the law of the jungle.  After all, if you don't dare come forward with evidence of Russian interference in the election for fear of an armed response by the alt-right, you might as well just agree to throw the whole election for fear of revolt by the alt-right.  And hell, why not agree never to have another Democratic President at all if certain people might consider it grounds for armed rebellion?

Political violence is a serious threat to a democratic order.  It should be dealt with firmly, whether it comes from the alt-right or from black-clad antifa.

But there were other reasons for Obama not to go public with the information without Republican buy-in.  He had a legitimate fear of appearing partisan.  I realize many people's response to that would be to say, of course he was partisan, the Presidency is a partisan office.  He was out openly campaigning for Hillary.  Why shouldn't he appear partisan?

But this is conflating two different things.  The President of the United States, as an individual, has the same right as anyone to favor a candidate for the office and campaign for her.  As head of his party, he may use the party apparatus for her.  But as head of state, he must not use the power of the state -- the "deep" state, if you will -- to sway the outcome.  Any question of the President using the power of the state to sway an election is a very, very serious matter.  Without bipartisan support, it was reasonable of Obama to want to avoid even the appearance of impropriety.

"What?" you may say.  Are you seriously saying that Obama should not have kept quiet for fear of blood in the street, but should have kept quiet for fear of creating the appearance of impropriety? How does that make any sense?

But I guess my answer has to be that in the end, Obama had no control over how the alt-right might react to his actions.  He could only control what he did, and if what he did created the appearance that he was using the power of the state to sway an election, it would have been a serious matter.

So what options did that leave?  I can only suggest, that he take action against Russia whose purpose would be clear to Putin and others who were interfering, but not go public with the reasons, except perhaps to say that it was retaliation for cyber action without saying what sort of cyber action.  Of course, in that case Republicans would have dismissed such action as mere posturing, trying to look tough ahead of the election to win votes for Hillary, but so what?  Tough posturing ahead of an election to win votes, and accusations of such posturing, are politics as usual.  Our democracy would have survived it, as it has survived many such instances.  And, after all, the Republicans could hardly have come forward and say that Obama was only taking such actions against the Russians because they were trying to help Republicans win the election.

The main danger I would see was that sooner or later the truth comes out on this sort of thing.  Right now, as any number of people have commented, the truth is coming out at unprecedented speed as the intelligence community leaks like never before.  But sooner or later it would have become known that the reason for Obama's mysterious actions against the Russians was that they were attempting to sway the election against Hillary.  Would that have delegitimized her her victory?  Would it have led to endless Republican investigations into the Obama Administration's true motives in taking anti-Russian action and major scandals?

Quite possibly so.  But attempts to expose the Obama Administration's true motives would also have led to revealing what the Russians were really up to all the while.  I can only hope that such knowledge would have vindicated Obama's actions in the eyes of loyal Americans everywhere.

In Which I Shamelessly Use the Shooting of Scalise to Score Political Points

First of call, kudos to our nation's leaders for their statesmanlike reaction to the baseball park shooting of Congressman Steve Scalise and others.  All have behaved commendably. Democrats condemned violence absolutely and without reservation and expressing support for their Republican colleagues.  Republicans made clear that they blamed the shooter only and not their opponents.  The shooter was a Bernie Sanders volunteers, so Sanders made clear:

I am sickened by this despicable act. Let me be as clear as I can be: Violence of any kind is unacceptable in our society and I condemn this action in the strongest possible terms. Real change can only come about through nonviolent action, and anything else runs against our most deeply held American values.

Paul Ryan made as lofty and statesmanlike speech as anyone ask for:

[B]efore this House returns to its business, I want us to slow down and reflect, to think about how we are being tested right now. Because we are. I ask each of you to join me in resolving to come together...to lift each other up...and to show the country—show the world—that we are one House. The people's House—united in our humanity.

Even Donald Trump made a fine, statesmanlike speech that expressed solidarity and refrained from finger-pointing.

Of course, plenty of people who were not our nation's leaders started finger-pointing right away, and it didn't take long for plenty of people at the top to follow.  And, although it may be in bad taste, I can't resist doing a little finger pointing of my own -- in both directions.

Plenty of people on my side have gloated at the prospect of Rand Paul, a strong advocate of the Second Amendment as giving people the right to own guns to shoot at oppressive government hiding behind a pole from someone who took this advice a little too literally.  Bet you never thought that you'd be the target!

But in all seriousness yes, this is one of the reasons what is wrong with the whole insurrectionary theory of the Second Amendment.  The argument is that gun ownership is protected as an individual right so as to protect the collective right of revolution against unjust government.  There is an obvious mismatch here.  Insurrectionists insist that we have the Second Amendment to ensure that We, the People can engage in violent revolution against the government but give very little thought to when that right vests.  Well, they say, it is extremely remote and mostly hypothetical.  And yet plenty of people keep insinuating that it just might vest if Democrats win the next election.

And they never bother to figure out the mechanism of (1) how we will know the time for violent revolution is at and and (2) when that time comes, how it will be planned and coordinated.  The assumption appears to be that We, the People will all magically agree when the time is at hand and will all spontaneously turn out at the same time, just like we did in the battle of Lexington-Concord.  Here I think insurrectionists seriously underestimate the role of existing colonial government in directing the American Revolution or the role the Founding Fathers believed state governments  would play in any hypothetical revolution against the U.S. government.  It also assumes that We, the People are much more unanimous in our views than the evidence shows, and will not (1) have isolated individuals and small groups deciding it is time for violent revolution at unpredictable intervals, or (2) end up shooting at each other if a critical mass ever does decide that the time for revolution is at hand.

I am not suggesting that people like Rand Paul condone terrorism when it is directed at the other side. But I do think they tend to downplay the threat of the militia movement, or the Bundy Ranch standoff because they have some sympathy with the members' complaints, though not their methods.  So yes, I will admit to a certain satisfaction in seeing people who defend the Second Amendment as promoting political violence maybe having second thoughts when they are the targets.

At the same time, I think it is time for our side to acknowledge that we have a serious problem here. Yes, the shooter is an extreme and aberrant example and in no way typical.  But our side really does have a violent fringe that needs to be acknowledged and dealt with.  First of all are the mask-wearing black-clad "antifascist" ("antifa") anarchists looking for any opportunity to riot, smash things, and beat people.

Well, you may say, they aren't very numerous.  No, indeed they aren't.  But the rioting anarchists are the tip of the iceberg.  The iceberg are the people who condone their goals, if not their methods.  And by their "goals," I mean shutting down opposing viewpoints.  I mean the people who try to block entrance to Trump rallies, speeches by Alt-Right speakers etc., and forcibly prevent others from attending.  So you don't like their views.  Deal with it.  They have the complete constitutional right to express them, to hold rallies and speeches, and to attend.  But what about our rights?  We have exactly the same rights.  That means the right to hold our own events, or to hold counter-demonstrations and protests.  But not to shut down theirs.

I think the leadership of our side has been reasonably clear in condemning political violence.  Bernie Sanders condemned the shooting.  Hillary Clinton and LaRaza condemned anti-Trump riots.  But we haven't been clear enough in emphasizing that the place to draw the line in political action is not just with the use of violence.  It is with the attempt to shut down opposing viewpoints.  It means making absolutely clear to our side that blocking entrances and trying to physically prevent people from attending events by speakers they don't like, even if not done "violently," is resorting to force and therefore out of line.  It means making clear that opposing viewpoints, no matter how odious, are constitutionally protected, and that that protesting a safe distance away, not forcible attempts to shut them down, are the proper response.  We need to make clear to the hard core that extreme measures just make enemies.  This should belong to the department of "Duh!" but apparently it needs to be said.

And frankly, we need to move beyond mere exhortation to the more extreme elements on our side and start to support any Republicans, conservatives, police and prosecutors who throw the book and violent rioters (without condoning the prosecution of peaceful protesters who just happen to be there). Given the threat that violent riots pose who our whole system of government, I think a ten-year sentence is entirely appropriate.  My guess is, it would also give a lot of these black-clad, mask-wearing anarchists second thoughts.  I personally also favor increasing penalties for demonstrators who do not follow reasonable "time, place and manner" restrictions on demonstrations and do things like blocking traffic.  It is perfectly possible to draw attention to your cause while keeping to the terms of your permit.  (It certainly worked for the Tea Party).

So here is what I propose.  To the other side: Stop emphasizing stockpiling guns, showing up armed at rallies, and the threat of political violence and the best safeguards of liberty.  Don't forget that you, too, can be targets.  To our side: Make clear that going too far includes a lot more than outright violence and includes any attempt to shut down opposing viewpoints.  And stop blocking traffic.

Political violence is not simply liberty at its most exuberant.  It is a mortal threat to liberty.  Let's all start dialing back on anything that might be taken as condoning it.

Just What We Need! [Sarcasm]

Great!  Just what we need!  As if it wasn't enough to have white, right-wing paramilitaries and open carry advocates, now we have black, left-wing paramilitaries and open carry advocates.  It appears that the New Black Panther Party will be showing up openly armed at Trump protests.  This after black open carry advocates showed up at the Dallas Black Lives Matter rally and added to the confusion as a sniper fired on the crowd and the police (understandably) got confused and assumed the armed men present were in league with the sniper.  (And, it should be added, these good guys with guns were completely useless against the bad guy with the gun).

I suppose at least this will be a good test of my earlier question: Is the Second Amendment content neutral?  Do people who believe that the Second Amendment authorizes all law-abiding citizens to for private paramilitaries for the possible violent overthrow of government extend this right to everyone, regardless of religion or ideology, so long as they promise not to start shooting until their apocalypse-of-choice actually comes about?  It is true that a few Oath Keepers offered assistance to Black Lives Matter, but BLM turned them down, so the question remained moot.  With the New Black Panther Party, it is fast becoming relevant.

A quick glance at the right-wing press for their reactions showed them to be mostly neutral; they generally stuck to reporting the item without comment.  One did complain:

The news media has wall-to-wall coverage when conservatives carry firearms at protests, yet there has been no media coverage of this armed anti-Trump protest even with the Chicago riot Friday night over Trump and the arrest of a leftist agitator who stormed the stage during Trump’s Dayton rally.

So, mostly complaints about being unfairly singled out, but no opinions expressed on whether open carry by Trump protesters is appropriate.  Well, I trust they will grant the ideological consistency of the New York Times, which has condemned such displays.

I suppose general gun advocates have two possible responses here.  One is to say that when protesters and counter-protesters show up, the more heavily armed they are the better because it assures no violence because of the danger of retaliation.  To this I can only answer that anyone saying such a thing is living in a fantasy world.  Showing up armed at demonstrations is a form of escalation.  For both sides to show up armed is further escalation positively asking for trouble.  So radical an anti-government commentator as Justin Raimondo explained:

The whole point of even attending such a gathering, or, indeed, any sort of rational discussion about anything, is that we leave our guns—embodying the possibility of coercion—outside the door. We forsake force, and rely solely on our persuasive powers to get our point across.*

Two sides gearing up for possible armed showdown makes an actual showdown more likely, not less.

The other is to say that the New Black Panther Party are obvious bad guys (witness the Dallas shooting), and thus the very sort of people good guys have to arm themselves against.  Now while I fully agree that the New Black Panthers are bad guys, it also remains true that Micah Johnson (the Dallas shooter) was not a member of any of their organizations, just as Timothy McVeigh, though he regularly swam in the same ideological waters as the militia movement, did not belong to any of their organizations either.  I still regard both groups as bad guys for promoting paranoia and militarism, but YMMV, I guess.  But is it too much to hope that the New Black Panthers might bring at least an acknowledgement in some circles that the mere act of openly carrying guns and forming a private paramilitary does not automatically qualify you as a good guy?

I was fascinated by David Frum's column saying that the whole idea of  a law-abiding private paramilitary originated in the 1960's with the Black Panthers.  The Black Panthers scared the hell out of white people, led to tougher gun control laws, and eventually degenerated into criminality and were forcibly suppressed, but their ideas of the law-abiding paramilitary formed to resist state tyranny migrated over onto the right and gave rise to the anti-government militia movement.  Thus far, the paramilitary movement has been a white, rural, right-wing phenomenon, made up of general allies, though with the potential for hostile factions never far below the surface.  Well now, it appears, we have come full circle and black, urban, left-wing paramilitaries, calling themselves Black Panthers, no less, are with us again.

God help us all!

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*Admittedly, it is less clear whether he still believes that. 

Hitler and Guns

All right, I may be a little late to the game commenting on Ben Carson's notorious remarks that Hitler came to power because Germans lacked the guns to stop them, or that the Holocaust succeeded because the Nazis took away the Jews' guns.  The action usually cited was a 1938 law requiring guns to be registered.  It is alleged that the Nazis, having a list of who owned guns, then confiscated them and proceeds to subjugate the now-helpless population and exterminate the now-helpless Jews. Many refutations have rained in, but a lot of them miss important underlying assumptions and simply reinforce the gun culture's conviction that firearms are necessary to resist tyranny.  Others comments, however, are significant, as are some that the refuters have missed altogether.

In particular, it is not useful to point out that strict gun control began under Weimar, with a ban on all private guns in 1919 as part of the disarmament under the Treaty of Versailles, or that firearms registration began under Weimar in 1928 when the complete ban on guns was relaxed.*  Gun advocates would simply see this as supporting their point.  They see a democratically elected government as simply the Nazis waiting to happen.  Many incorporate this into their narrative.  The innocent and well-meaning Weimar government registered all firearms.  Then the Nazis were elected and confiscated the guns, as a prelude to imposing a total dictatorship.  We must therefore keep guns legal and free from registration, because you never know when the Nazis might be elected here, seize them, and institute dictatorship, if no genocide.

Gun advocates may also point out, with some justification, that Weimar's anti-gun laws were not very effective.  The Weimar ban on guns did not prevent Freikorps (private paramilitaries) from flourishing, or Freikorps from doing battle with Communist revolutionaries, attempting a coup, or from terrorizing their opponents in Bavaria.  Clearly there is some truth to statement that when guns are outlawed, only outlaws carry guns.

But there are other ways in which events in Germany clearly go against the NRA's preferred narrative.  These should be stressed.  First of all, the alleged confiscation of guns did not happen -- except for Jews.  The 1938 statute relaxed firearms restrictions for others, but barred Jews from owning guns.  This is significant, but I will get to it later.

In the NRA outlook, it is assumed not only that democratically elective government is simply tyranny waiting to happen (Hitler came to power by election!), but that private paramilitaries outside the control of government are the natural defenders of liberty.  The whole history of Weimar calls this assumption into doubt.  Because if there was one problem the Weimar Republic did not have, it was a shortage of private paramilitaries.  There were paramilitaries everywhere, the Freikorps, the Communists, and other extremists.  But they were not champions of liberty against an oppressive government.  They were the threats to liberty, terrorizing and killing whoever opposed them.  I suppose today's militia types might acknowledge that not all private paramilitaries are necessarily good guys but that simply shows that good guys need guns so they can defend themselves against the bad guys.

That runs into a definite problem.  The good guys in Weimar did, in fact, form their own paramilitary in an attempt to counter the bad guys.  The "Weimar coalition" of parties that supported the Republic formed the Reichsbanner following the Beer Hall Putsch in an attempt to counter the paramilitaries that were attacking the Republic.  Its initial years were ones of relative quiet, but with the onset of the Great Depression and the growing power of the Nazis, its role in fighting their violence and intimidation grew.  More hard line members broke off and formed the Iron Front to fight the Nazis. But these groups ultimately did not prove and effective counter-force, and when the Nazis came to power, the "good guy" paramilitaries were easily suppressed.

And no, this is not because Weimar gun control measures disarmed the good guy militias while leaving the bad guys untouched.  It was for two main reasons, both rather embarrassing to hardcore Second Amendment fans.

First off, people who genuinely respect democratic norms and the rights of others don't want to contest power through paramilitaries.  They want to contest power through the orderly democratic process.  Militias shooting it out on the streets are an immistakable rejection of the democratic process.  (And it is a sad commentary on the state of our political discourse that anyone even needs to point out this obvious fact).  Well, so what, NRA types may say.  When the bad guys have guns and start shooting, do good guys want to be helpless before them?  Bad guy paramilitaries can't be wished away, after all; they must be confronted by force.  But this misses the point.  When the state of a country's politics reach the point of good guy paramilitaries and bad guy paramilitaries shooting it out in the streets, liberty is already lost.  What is left is not liberty at all, but the law of the jungle, which is freedom only for people at the top of the food chain.

And second in a direct confrontation between paramilitary and regular military, the paramilitary doesn't have a chance.  Because this didn't just apply to "good guy" paramilitaries.  It applied to bad guy paramilitaries as well.  Most famously, consider the Beer Hall Putsch.  Hitler's paramilitary marched.  The army fired.  The paramilitary scattered, and the revolt was over.  A crackdown ensued. It persuaded Hitler not to attempt violent revolution again, but to seek power through the electoral process.  And, as with the Ku Klux Klan, the only successful paramilitary revolt in our own history, the point is not moral, but tactical.  Our own militia movement need not have anything morally in common with the Nazis to learn some tactical lessons from them.  Or consider Hitler's Stormtroopers or SA.  They were his paramilitary that terrorized opponents.  They numbered three million, versus the small 100,000 man army.  They were armed.  Many were WWI veterans.  Yet when Hitler allowed the army to crack down on the SA, they went down without a fight.  Others have commented that many people in occupied countries did offer armed resistance, to little avail.  As for Jews, they made up about 1% of the German population.  Armed resistance would certainly have been easily defeated.  The much-admired Warsaw Ghetto Uprising did not even slow down the Holocaust.

And all of this raises yet a third point.  The Jews were so few as to make armed resistance hopeless. Some people move this question to the German people in general and say that the German people were not able to resist the Nazis because they were disarmed.  But the real reason the Nazis did not meet with resistance was that they were generally popular.  Insurrectionist types tend to assume that their fantasied armed rebellion will the by The People (good guys) against The Government (bad guys), and that the people will all agree when the time for revolution is ripe and be able to act with unity.  But the simple fact is that no domestic government can endure without the support of at least a significant minority of the population.  The glorious uprising will invariably take the form, not of the People against the Government, but of the people against each other.

And this means some uncomfortable things.  Given that (1) paramilitaries are no match for regular militaries and (2) a significant sub-section of the population will support the government, this means that armed rebellion by a private paramilitary will have to start out hitting soft targets, i.e. terrorizing government supporters.  That is precisely what Hitler's paramilitary did, and quite successfully.  It was only when they took on the armed forces directly (and prematurely) that they were crushed.  This is the pattern any revolt by irregular forces will have to take.  It ain't pretty.

Note that I qualify this statement by saying that it refers to domestic governments.  A foreign occupation is a different matter.**  A foreign occupation may very well rest on brute force alone and not have the support of even a significant minority of the population.  But even the worst occupation will have collaborators, and an irregular resistance will have to start out by targeting them. Furthermore, there is the tendency of revolutions to devour their children.  People who fully agree in hating the government in power my bitterly disagree on what is to replace it.  And once people get in the habit of resolving disputes by violence, it can be hard to break.  The same applies even to resistance movements fighting a foreign occupier.  Certainly in WWII, resistance movements were severely divided between pro- and anti-Communist forces.  In Yugoslavia and Greece, where resistance forces managed an effective guerrilla warfare, the forces of the resistance fought each other as much as they fought the Germans, and civil war co-existed with resistance.  The opposite side won in these respective countries, but neither were nice guys or champions of liberty.

All of which is a way of saying that the theory that private paramilitaries are the natural champions of justice and the final defense against oppressive government falls apart as soon as one learns anything about actual, real-world paramilitaries.  So it often is when beautiful theories are brought face-to-face with ugly facts.

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*The 1938 registration law actually relaxed firearms restrictions for non-Jews even further.
**A government of collaborators installed and supported by an occupying force is an intermediate category.

Reflections on the Latest Mass Shooting

Maybe it is just because I have Facebook now, but this latest mass shooting seems to have inspired a stronger reaction from gun control advocates than anything up till now.  Of course, it is futile as ever. So far as I can tell, some hard core gun advocates have reached the point of regarding guns as a sort of law-free zone.  Or perhaps they would take the "neutral law of general applicability" rule that gets applied in First Amendment cases.  In other words, murder is still equally serious whether committed with a gun or not.  But until you actually attack someone or at least threaten to, guns are exempt from the law and any law regulating them as such is unconstitutional.  After the previous mass shooting before this one David Frum wrote:

Many gun makers, gun sellers, and gun owners seek a unique legal status for themselves, exempt from the norms and rules that apply elsewhere in American society. It’s this quest for special privilege, not Second Amendment rights as they have been understand for almost all the history of the republic, that enables slaughters like that in Charleston [the mas shooting de jeur]—and the miserable toll of massacres and accidents still to come.

Indeed, although I cannot find the link, there was some time back a quote from one Congressman seeming to suggest that anything specifically designed for killing people was exempt from all regulation.  Try to wrap your head around that.  To put it in concrete terms, dynamite can be quite lethal, but its primary purpose is blasting, so it can be regulated.  The government is allowed to put restrictions on public access to dynamite.  Hand grenades, by contrast, are designed specifically for killing people.  If this Congressman is to be taken at his word, the Second Amendment therefore bans all regulation whatever of hand grenades.

While the gun lobby was once open to narrowly targeted restrictions that at least interfered with gun sales to felons, they are now opposed to even that.  And certainly, they do not acknowledge that anything can be so lethal that there would be legitimate reason to keep it off the street.  According to the gun lobby, all gun owners fit into to neat, binary categories: good guys and bad guys.  Good guys would never criminally misuse any weapon.  Thus they can be trusted with all weapons, no matter how lethal. Lethality is simply a non-issue when the weapon is in the hands of a good guy.  Bad guys, by contrast, will not obey any gun laws.  They will always have unlimited access to weapons of all kinds through the black market.  The black market is simply a given that nothing can change. Therefore, since bad guys will always have unlimited access to unlimited firepower, the best we can hope for is to make unlimited legal firepower available on the streets so that good guys will have parity.  And of course, there are no gray areas, no overlaps, and no good guys involved in the black market.

Again, taking the hypothetical of hand grenades, I do not see how the overall logic would be any different.  Hand grenades are inanimate objects.  No hand grenade ever pulled its own pin and threw itself.  Since they are made for the high-stress, high-error atmosphere of combat, presumably they are reasonably "safe" in the sense of being designed not to go off by accident.  So why shouldn't hand grenades be legal?  No good guy would ever criminally misuse a hand grenade; good guys would use them only for lawful purposes.  Bad guys will simply ignore all laws against hand grenades and buy them black market and not a thing can be done about it.  Therefore, we should remove all restrictions on hand grenades so good guys will at least have parity.

What is wrong with this logic?  Well, for one thing, it ignores the awkward fact that a ban on hand grenades actually appears to have been quite effective at keeping them out of the hands of bad guys. For another it fails to explain what lawful purpose good guys have for hand grenades.  (Stockpiling them for armed confrontation with the federal government, I suppose).  It ignores the fact that all use of hand grenades outside of war is misuse.  And, of course, there is the lethality if they are used.

Besides, people do not divide so neatly into good guys and bad guys as gun enthusiasts think.  There are good guys who always exercise proper self-restraint no matter what the circumstances.  And then there are good guys who have had too much to drink on any particular occasion.  And there are people with no evil intent who nonetheless have poor impulse control and might impulsively do something foolish.  And there are tragic mistakes when good guys think they are using their guns in self-defense or defense of another and turn out to be mistaken.  And there are good guys who have bad guys for teenage sons.  Nancy Lanza (mother of the Sandy Hook shooter) was undoubtedly a good person who volunteered for the school and did all she could for her troubled son under extraordinarily difficult circumstances.  So was Laurel Harper, nurse and mother of the latest shooter. But their being good people did not keep their large gun collections out of the hands of their mentally disturbed sons.  Nor, for that matter, do bad guys run around in T-shirts labeled "bad guy" or otherwise identify themselves as such.  Open Carry advocates would no doubt assure you that they allow only good people in their organization, but that did not stop one of them from killing her husband and step-daughter.

Nor is the black market in guns an immutable fact of life that nothing can change.  Most black market guns can ultimately be traced back to a legal source.  One research found 57% of all guns found at crime scenes could be traced to 1% of all licensed dealers.  The ATF responded with close scrutiny of these dealers, established tougher regulations, imposed sanctions, and revoked licenses of some of the worst offenders.  If allowed to go through, this might have made a serious dent in the immutable black market.  So naturally Congress moved to stop them.  When Smith & Wesson entered into an agreement to reduce selling the more lethal types of firearms and cut off sales to dealers who seemed to be feeding into the black market, irate gun owners called for a boycott.  And the whole anger against Operation Fast and Furious does not appear to have been driven so much by anger that the ATF let guns get into the hands of bad guys as that it made any attempt to crack down on the black market at all.  No one exactly said that the Second Amendment guarantees every law-abiding citizen the right to buy guns in bulk and sell them to Mexico drug cartels, but a lot of the outrage seems to imply as much.

In short, there is a black market in guns.  No doubt it is impossible to shut it down altogether.  But it is certainly possible to shrink it a great deal if it were politically feasible.  The reason it is not politically feasible is that the gun lobby sees any attempt, even to crack down on illegal gun sales, as ultimately a threat to legal gun ownership.  And I suppose there is something to it.  If their goal is to exempt guns from all laws whatever until someone actually gets shot, then all laws on guns are necessarily a threat.

Or, put differently, the gun lobby assumes that criminal access to guns is a thing beyond all hope of remedy, so we should assure as many guns on the streets as possible to counter criminals who will always have infinite access no matter what.  Common sense says that, in fact, the more guns are on the street, the more of them are likely to fall into the wrong hands.  We cannot create 100% assurance that no bad guy will ever get his hands on guns.  But reducing the number of guns on the street will make it a whole lot harder.  Other, more targeted measures can make it harder, too.  But until this generation passes away and a new one takes its place, such measures will be politically impossible.

A Few Reflections on the Coup and its Failure

I do want to make a few more comments here.  (The last post was getting too long to include any more).

One is that, although Thucydides can be fleshed out with some supplemental sources, he is far and away our best source on the coup and its defeat.  I have cited Aristotle and Diodorus Siculus on the coup.  Here is Diodorus on the coup failure:

At this time the Athenians dissolved the oligarchy of the Four Hundred and formed the constitution of the government from the citizens at large. The author of all these changes was Theramenes, a man who was orderly in his manner of life and was reputed to surpass all others in judgement; for he was the only person to advise the recall from exile of Alcibiades, through whom the Athenians recovered themselves, and since he was the author of many other measures for the benefit of his country, he was the recipient of no small approbation.

While it is certainly true that Theramenes paid no penalty for his role in the oligarchy of the 400 and went on to be an admiral in the fleet, it also seems a reasonable bet that he role as a member of the 400 caused many to look upon him with suspicion.

 Aristotle gives only slightly more detail:

The constitution of the Four Hundred lasted perhaps four months, for two of which Mnesilochus was archon, in the year of the archonship of Theopompus, who received the office for the remaining ten months. But when they had been worsted in the naval battle off Eretria and the whole of Euboea except Oreum had revolted, they were more distressed at the misfortune than by any previous disaster (for they were actually getting more support from Euboea than from Attica), and they dissolved the Four Hundred and handed over affairs to the Five Thousand that were on the armed roll, having passed by vote a resolution that no office should receive pay. The persons chiefly responsible for the dissolution were Aristocrates and Theramenes, who disapproved of the proceedings of the Four Hundred; for they did everything on their own responsibility and referred nothing to the Five Thousand. But Athens seems to have been well governed during this critical period, although a war was going on and the government was confined to the armed roll.

Another is a general comment on the 5,000.  Aristotle regards them as part of the real plan, which the 400 nonetheless failed to live up to.  Thucydides, by contrast, regards them as so much window dressing.  He sees this as a clever ploy, something that everyone felt compelled to give lip service to, even if no one actually wanted.  He believed that the conspirators who called for instituting the 5,000 were simply speaking for public consumption and really were acting out of thwarted ambition.  The hoplites who mutinied called for instituting the 5.000 instead of full democracy for fear of offending a neighbor who might secretly be one of the 5,000.  Even Alcibiades, safe in Samos, told the representatives of the 400 that he could accept the 5,000.

Thucydides believed that the real purpose of the purported list of 5,000 eligible participants was to create the impression of a much larger conspiracy than actually existed, while at the same time preventing any conspiracies against the oligarchy, for fear that one of the co-conspirators might be one of the 5,000.  Still, the plan had obvious drawbacks.  A deception on that scale can only be concealed so long.  Sooner or later, if the 400 never came out with the larger list, people would begin to suspect that it would never happen.  Another drawback was that promising the enfranchise a non-existent list of 5,000 ultimately served to guarantee that all hoplites would ultimately prefer the democracy, since each would know that he personally was not on the list.

Even government of the hoplites, excluding the poor, had its problems.  The most obvious one was the link between democracy and naval power.  If Athens wanted to keep its overseas empire (and at the beginning, even the 400 hoped to preserve it), then it needed the goodwill of its sailors.  Navies, it is true, cannot stage coups, but they can mutiny or desert, as the fleet at Samos made clear.  It is interesting question whether the hoplites, given the choice, would have preferred a broad oligarchy based on the hoplites over full democracy.  On domestic matters, no doubt they would have recognized that excluding the poor guaranteed they would swamp the rich in numbers and be the true rulers.  But it would also have meant losing the goodwill of the navy and thereby losing their empire, or at least weakening it.  Which would be more important to the hoplites?  I suppose we will never know because it was not seriously tried.

Finally, it had to be addressed sooner or later, but what would the NRA and our general militia movement think of the whole thing?  On the one hand, it emphasizes that a tyrant disarms the citizenry.  Pesistratus disarmed the citizenry.  So did the Thirty Tyrants, who we will see later. But that was not really an option for the 400, since there were hostile armies roving the countryside, and the city had to be closely guarded.  And it is true that ultimately the army mutinied, marched on the city, and overthrew the oligarchy.  It is also true that the navy deserted and made victory impossible without a return to the democracy.

But the NRA/insurrectionist/militia view has its shortcomings, too.  For one thing, an armed populace most signally failed to stop the coup, even if it did later overthrow it.  For another, both sides were very much opposed to an actual trial of force at a time when a hostile army was camped a few miles away, eager to take advantage of the city's weakness.  For another, in Ancient Greece the logic of treating liberty as a thing for every man to defend with his gun (well, spear and shield) was not democracy, but oligarchy.  A majority of citizens could not afford a spear, shield, or other such gear. They were, of course, the ones who served in the navy and won real political power by their military importance.  But in the sort of armed showdown our insurrectionists envision, unarmed sailors would have been no match for armed hoplites.

But finally, and most significantly this, like most instances of paramilitaries, seriously undermines the basic insurrectionist paradigm.  To the insurrectionist, the bad guys are basically government and the good guys are basically anyone outside of government.  That dichotomy itself does not work so well in any government as diffuse as Athens.*  But more to the point, the insurrectionist viewpoint assumes that the main threat to freedom is government overstepping its bounds, while private paramilitaries were necessarily champions of liberty.  But in this case, if government had simply maintained its monopoly on force, liberty would have been safe.  It was the political clubs and the "Hellenic youth" who served as their paramilitary that was the real threat to liberty.

And anyone who seriously examines the history of paramilitaries and private armies knows that that has been the usual rule throughout history.

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*Granted, that leaves slaves, metics and women -- anyone who is not an eligible participant -- as being "outside of government."

Black Lives Matter and Groups Outside the Mainstream

Black Lives Matter has been met with conservative outrage from the start, and often with unfounded accusations.  They have been called a hate group and accused of inciting violence against police. And a number have protested that chaos would reign if we abolished police departments altogether.  But Black Lives Matter is not proposing to eliminate police forces, but merely to hold them accountable with a platform well within the mainstream of civil libertarianism.  More realistically, many police would probably complain that one reason for their rough behavior in minority neighborhoods is that crime rates there are genuinely high, that a lot of firepower is aimed against them, and that they feel genuinely threatened and besieged.  They would propose that the community has an obligation to reach out to them, to stop treating them with such hostility, to cooperate better, and to cut back on the firepower.  Black Lives Matter might respond with a "you go first," but I assume that they would basically agree that there is too much firepower in their neighborhoods.

All of which leads to another movement, well outside the mainstream, that would disagree, that does see police as altogether unnecessary, and that believes that more firepower is always the answer to any social problem.  I refer, of course, to the militia/patriot movement.  I have a certain tap-in to groups somewhere along the fringe between radical libertarian and anarchist from a Facebook friend who does not belong to any militias herself, but is a clear sympathizer with them.  She regularly posts accounts of police brutality, accompanied with appropriate denunciation, but not accompanied by any acknowledgment that police do anything other than brutalize.  And these libertarian/anarchists make no secret of their viewpoint -- they do not consider the police to have any legitimate function, and they want to eliminate the office altogether.  They definitely favor decriminalizing not only drugs, but all minor "broken windows" or "quality of life" issues.  Urinating in public, disturbing neighbors with loud noises, and the like are appropriate expressions of individual liberty and nobody else's business.  As for what to replace police with, proposals have ranged from talking things over with your neighbors (great if it works, what if it doesn't) to a neighborhood watch (though with the acknowledgement after the Trayvon Martin shooting that a neighborhood watch can degenerate into vigilantes).  Most recently they have proposed replacing the police with a private security firm citing an alleged instance in which this was highly successful.  Cited advantages -- they lack the authority of the state behind them and therefore have no power beyond the power to make a citizen's arrest, they cannot arrest for misdemeanors, they are paid less than regular police, do not have a union or lobby, and have much less employee protection.

This story is overblown, but it is a rather mild example of the libertarian/anarchist perspective.  More significantly libertarian/anarchists are great champions of the militia movement, even if they do not belong themselves.  They strenuously deny that there is anything racist about the militia movement and assume that so long as it is not racist, what could possibly be wrong with it?  Certainly it is assumed that the more firepower police have, the more dangerous they are, while the more firepower private citizens have, the more virtuous and liberty-loving they are.  For police to look like an army is an outrage.  For private citizens to look like an army is very much a thing to be desired.  And as for the suggestion that private armies might not respect the liberty of outsiders -- now that's just crazy talk!

All of this reached an interesting culture clash when heavily armed members of the Oath Keepers militia showed up in Ferguson for the anniversary protests.  Their presence was not welcome.  Black Ferguson residents resented the fact that white men could get away with being so menacing looking while the police automatically reacted hostilely to any armed black person.  The police described their presence as "inflammatory."  The Oath Keepers apparently originally showed up as bodyguards for a like-minded radio reporter, but they joined the protests and proposed to arm the protesters, saying that their only safety from police brutality was to be as heavily gunned as the police.  They did not receive a friendly reception.  Most Ferguson residents considered armed confrontation with the police to be suicidal.  Certainly my libertarian/anarchist Facebook friend is a big fan of heavily armed guards marching alongside protesters to protect them from the police.

There are, however, any number of good reasons why black people might not like the idea of teaming up with the militia movement.

The militia government focuses heavily on the Federal Government as the enemy:  Some more mainstream member of the states' rights wing of libertarianism acknowledged that this approach has limited appeal with black people.  Clive Bundy, for instance, apparently belongs to a group that believes that the federal government has no legitimate law enforcement powers, and that the highest authority is the local sheriff.  The federal government is presumed always to be oppressive and local sheriffs are presumed never to be oppressive.  But black people have historically looked to the federal government as protector from the oppressive county sheriff.  Nor is this just historical.  Most black people's complaints about police brutality to this day are about their local police and not the federal government.  Bundy and his friends do not appear ever to have considered this.

Alternately, the militia movement may assume that government at all levels is oppressive, but private paramilitaries are always virtuous.  This has not been most black people's experience, to put it mildly. Nor is this concern altogether historical, either.  Even if we dismiss armed racists and vigilantes as ancient history, the main "paramilitaries" in most black neighborhoods have been street gangs, not notably respectful of other people's liberty.

The militia makes an overly binary distinction between "good guys" (us) and "bad guys" (government).  My guess is, that solidarity in the face of police abuse notwithstanding, most black people do not have any illusion that everyone in their neighborhood is a "good guy" who should automatically be trusted with a gun, or that ever-escalating arms races offer any sort of security.  See also the above point.

Finally, black people are probably more realistic that the Oath Keepers about what will be tolerated from black versus white people, and in urban versus rural areas.  The reaction of the more mainstream right is instructive here.  Clive Bundy, after all, had plenty of champions in the mainstream right, including a Nevada Governor and Senator, five members of the Arizona Legislature, and Sean Hannity on Fox, even though Bundy held radical views on the illegitimacy of the federal government these mainstream figures presumably did not share.  When confronted with Bundy's radical and racial views, his more mainstream champions pointed out that you do not have to agree with his politics to champion his rights against a rather heavy-handed federal government.  As for a large, heavily armed paramilitary pointing guns at law enforcement and making them back off -- well that could still be seen as regular citizens standing up to oppression.  Less emphasized -- that the paramilitaries were not so saintly as they liked to think -- that many locals found them intimidating, and that they soon began quarreling among themselves and threatening each other with violence (though stopping short of anything but fists).

Mainstream right wing reaction to Black Lives Matter has been something different altogether.  Even before riots broke out, merely marching and chanting slogan was enough to make the mainstream right freak out and proclaim the police to be under siege.  Can you imagine what they would have done if the protesters had been heavily armed, formed a paramilitary company, and backed the police out of their neighborhoods?  Libertarian/anarchists might have applauded.  Fox News and Republican politicians, not so much.  Furthermore, Ferguson might have found out that being ruled by a black militia might not be all that great, either.  (Many white rural residents have not liked a militia presence all that much).  All-in-all, it seems safe to assume that most Americans would have viewed the development with alarm.  Most black people would expect as much.

Nor would any of this be new.  It would simply be a recycling of the story of the Black Panthers.  At least according to David Frum, it was the Black Panthers who originated the whole idea of a law-abiding paramilitary.  As Frum puts it:

There had been previous cases where Americans organized themselves into anti-governmental paramilitary forces. But in the past, these forces recognized themselves as illegal: that's why the Ku Klux Klan of the late 1860s wore hoods. . . . What was different about the Black Panthers, at least at the start, was the pains they took to organize their militia movement within the law.

They scrupulously followed California's firearms laws, which allowed openly carrying long guns so long as they were not pointed at anyone.  Heavily armed, they trailed the police, observing arrests and making sure there was no police brutality.  Heavily armed, they marched onto the floor of the California Legislature and expressed indignation that anyone would see them as a threat or an attempt to intimidate.

Two things happened.  One was that the white power establishment freaked out.  Willing to cooperate with the peaceful Civil Rights movement, it regarded heavily armed black men forming their own private army -- even a law-abiding private army -- as a different matter altogether and cracked down. The other was that the Black Panthers were not able to maintain their status as a law-abiding private army.  Lots of guns, swaggering machismo, and an ideology that basically glorified violence while stopping short of actually committing it proved to be too great a temptation. They ended up degenerating into police shootouts, terrorism, and in-fighting.

The younger generation may or may not know all the details of this history.  But they have a realistic grasp of what the reaction to a black urban militia would be.  

Initial Hunch on Another Shooting

Wow!  I note that so far the Dallas police have not disclosed the man's picture or given any real details on him.  That means, among other things, that we don't know the man's race, religion, or political background.  (Although we can be sure that he is mentally unstable).

My gut reaction, though, is that this doesn't look like a guy from the black community angry over some police shooting or lesser incident.  Those usually just aren't this premeditated.  Nor does it look like Islamic terrorists.  The motives are just too personal.

To me, this has very much the look and feel of someone close to the "Patriot" movement.  Who else would own a semi-military van or be so eager to attack the core symbols of the state?

I guess we will find out soon enough if my hunch is right.

Is the Second Amendment Content-Neutral?

Of course, one might respond to all these posts on the First Amendment by asking what it has to do with the Second Amendment.  These rulings are about speech, not guns.  But my point is the same one I made before.  How likely is it that there was great controversy over the idea that the First Amendment protected the right to advocate the violent overthrow of the government, but that it was generally accepted that the Second Amendment gave the right to stockpile arms and train private armies for that very purpose?  Or put differently, would the Supreme Court be more favorably disposed toward the Anarchists, Radical Socials, or Communists if they had large arsenals were were engaged in paramilitary drill?  Or that they would shrug off the arsenals and drill as permissible so long as these parties refrained from actually mentioning what they were for?  It seems most unlikely.

Of course, insurrectionist types might argue some variant of the creation and fall view of our history so popular on the right.  Granted, the right of violent revolution was not recognized in the twentieth century, but only because somewhere along the way the U.S. had become corrupted and fallen away from the pure vision of the Founding Fathers that did recognize that right.  This whole series has been dedicated to disproving that contention and showing that from the very start "insurrection," "rebellion" and "sedition" were seen as evils to be suppressed, not goods to be promoted.

Furthermore, the Anarchists, Radical Socialists and Communists raise another question.  A common question I see raised on blog threads is when the right of insurrection begins, and how we know whether a rebellion is a lawful exercise of Second Amendment rights or not.  The best answer anyone has come up with is the very pragmatic and rather cynical concept that if a rebellion succeeds, it was authorized by the Second Amendment, and if it fails it was not.  But another concept that really needs addressing is, if the Second Amendment grants the right to form private armies dedicated to the possible violent overthrow of the U.S. Government, who has that right?

It has taken some time to develop, but the ultimate rule on the First Amendment is that government may place "time, place, and manner" restrictions on free speech (i.e., to prevent it from being disruptive), but it may not regulate by content.  If the Second Amendment authorizes the right to form private armies dedicated to the possible violent overthrow of the U.S. government, does that right belong to all organizations, regardless of religion or ideology, so long as (1) their purpose is possible violent revolution against government* and (2) they promise to refrain from actually shooting until their apocalypse of choice comes about?  Well, plenty of insurrectionist types championed the Branch Davidians and their weird apocalyptic interpretations of the Book of Revelations in which the Federal Government plays the part of Satan. After all, they argued, if you don't expect that to happen, you have nothing to worry about.  The apocalypse will not come, so there won't have to use their arsenal.  And if you don't think the Federal Government is going to do all the terrible things the militia movement expects, then you have no need to fear the militias because they will never have to start shooting.

Well, what about other religions and ideologies that might make militia members uneasy.  Does a Twelfther Shiite Muslim have the right to form a private army to fight Great Satan upon the coming of the Twelfth Imam?  After all, if you don't expect the Twelfth Imam to show up, what is there to be afraid of?  Do Communists have the right to form private armies to fight the feds in the glorious workers' revolution?  Do white supremacists and black supremacists have the right to form private armies for the race war they respectively anticipate?  After all, if you don't expect any of these apocalypses to come about, there is nothing to fear.  The First Amendment is content-neutral.  All opinions, however, odious, are equally protected by it.  Is the Second Amendment equally content-neutral, allowing people of all opinions, however odious, the right to their own army?

Or, if not, then who does have the right to a private army?  "Constitutionalist" militias claim to be defending the Constitution and may claim that, since the purpose of the Second Amendment is to hold the government to the Constitution, only people who believe in the Constitution are allowed private armies.  But that only raises the vexing question of what interpretation of the Constitution. Are all interpretations equally valid, or do only people with the "right" interpretation have the right to their own army to defend it.

My guess is that most "constitutionalists" have not considered these questions because up till now they have simply assumed that anyone who trains a private army for possible war on the federal government must necessarily agree with them.  But if the opportunity ever comes up, I would love to ask about it.

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*Not necessarily the federal government, it would appear.  A National Review link I no longer have and do not care to look for defended violent revolution against local government as well.

The First Amendment Acquires its Present Meaning

When we last left the First Amendment to visit Rome, the Supreme Court had just decided that the First Amendment did not protect the right of the Communist Party -- tightly organized, disciplined, and directed by Moscow -- to advocate in favor of violent revolution, even if it refrained from any actual violence, with the words:

Whatever theoretical merit there may be to the argument that there is a "right" to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change. We reject any principle of governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy.

Justices Douglas and Black dissented, saying that mere words were not a sufficient danger to justify being outlawed.

The Supreme Court finally endorsed the First Amendment right to engage in revolutionary speech in the 1969 case of Brandenburg v. Ohio.  This case differed from its predecessors in that it involved right-wing revolutionaries, specifically, a Ku Klux Klan rally, but this does not appear to be a significant difference.  The Ku Klux Klan was as reviled and outside the mainstream in 1969 as Anarchists or Radical Socialists during WWI or the Communists in the 1950's.  Perhaps significantly, several members of the rally had guns.  No guns were mentioned in any of the earlier cases.  Though armed, but rally appears to have been quite small, perhaps with as few as a dozen participants, but they invited the press and one of them said, "We are marching on Congress July the Fourth, four hundred thousand strong."  The participants were charged and convicted under Ohio's "criminal syndicalism" statute against advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform."

This time the Court expressly overruled its decision in Whitney v. California that upheld criminal syndicalism statutes and held that advocacy of political violence is constitutionally protected free speech.  Even then, however, the Supreme Court distinguished between "mere advocacy" (constitutionally protected) and "incitement to imminent lawless conduct" (not protected).  And it favorably cited its prior case of Noto v. U.S.* that "the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action."

Justices Douglas and Black wrote a concurrence, going over the general history of First Amendment jurisprudence, and then rejected the entire "clear and present danger" test altogether:

When one reads the opinions closely and sees when and how the "clear and present danger" test has been applied, great misgivings are aroused. First, the threats were often loud, but always puny, and made serious only by judges so wedded to the status quo that critical analysis made them nervous. Second, the test was so twisted and perverted in Dennis as to make the trial of those teachers of Marxism an all-out political trial which was part and parcel of the cold war that has eroded substantial parts of the First Amendment.

He argued, instead, that only immediate, actual incitement of violence should be prosecuted.

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*Noto held that membership in the Communist Party could not be punished because the Communist Party advocated violent revolution only as an abstract doctrine and not by "the use of language reasonably and ordinarily calculated to incite persons to action, immediately or in the future."

The First Amendment as Applied to Communists

The issue of whether radical groups could advocate violent revolution was raised again after WWII in the case of Dennis v. U.S.  In this case, the defendants clearly belonged to the Communist party -- tightly centralized, disciplined, and under the direction of the Soviet Union -- but not engaged in any violent activity because their Soviet overlords believed (correctly) that the time for revolution was not at hand in the US, and that any revolutionary behavior would just lead to crackdown.  Furthermore, while the anarchists and radical socialist had opposed US involvement in WWI, Communists supported US involvement in WWII and suspended any revolutionary or other activity that might interfere with the war effort.  They were charged with seeking the violent overthrow of the U.S. government.

The majority held that:

The obvious purpose of the statute is to protect existing Government, not from change by peaceable, lawful and constitutional means, but from change by violence, revolution and terrorism. That it is within the power of the Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion. Whatever theoretical merit there may be to the argument that there is a "right" to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change. We reject any principle of governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy. No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the Government by force and violence. The question with which we are concerned here is not whether Congress has such power, but whether the means which it has employed conflict with the First and Fifth Amendments to the Constitution.

The majority held that the statute did not violate the First or Fifth Amendments because it was directed as "advocacy, not discussion."  The Court commented that although Gitlow and Whitney had not been expressly overruled, the view of the dissent had ultimately prevailed -- speech could be forbidden only if it posed a "clear and present danger" of imminent lawless conduct.  But it then defined "imminent" extremely broadly where the issue was violent revolution:

Obviously, the words cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required. The argument that there is no need for Government to concern itself, for Government is strong, it possesses ample powers to put down a rebellion, it may defeat the revolution with ease needs no answer. For that is not the question. Certainly an attempt to overthrow the Government by force, even though doomed from the outset because of inadequate numbers of power of the revolutionists, is a sufficient evil for Congress to prevent. The damage which such attempts create both physically and politically to a nation makes it impossible to measure the validity in terms of the probability of success, or the immediacy of a successful attempt.

 It held that the "gravity of the evil, discounted by its improbability" was the formula to apply.  Since violent revolution was so great an evil, speech in its favor could be legislated against even if the danger was extremely remote.

Justice Felix Frankfurter issued a concurrence that was effectively a call for judicial restraint, urging the Supreme Court to leave such matters to the legislature.  Justice Jackson also concurred, saying that the "clear and present danger" test was fine and good for anarchists and radical socialists who generally engaged in spontaneous and individualistic violence, but that Communists, as a tightly disciplined conspiracy, were too dangerous for the formula to apply, and that stronger measures were needed.  He argued that the Communists were guilty of a criminal conspiracy (to overthrow the U.S. government), and that the First Amendment did not protect criminal conspiracies.

Justices Douglas and Black dissented.  Black argued that the defendants had not conspired to overthrow the U.S. government or even circulated publications advocating the overthrow of the U.S. government, and that banning organizations that believed in violent revolution was a form of prior restraint.  Douglas began:

If this were a case where those who claimed protection under the First Amendment were teaching the techniques of sabotage, the assassination of the President, the filching of documents from public files, the planting of bombs, the art of street warfare, and the like, I would have no doubts. The freedom to speak is not absolute; the teaching of methods of terror and other seditious conduct should be beyond the pale along with obscenity and immorality.

But he argued that nothing of the kind had been done, and that the courts were acting as if it had.  He went on to argue that the danger posed by the Communist Party was negligible, and that the law could not legitimately treat it as a serious threat.

First Amendment Jurisprudence, Continued

When we last left the First Amendment, the Supreme Court had upheld the conviction of a group of anarchists and radical Socialists for printing inflammatory pamphlets denouncing the US and calling for strikes.  For the first time, Holmes and Brandeis dissented, saying that the First Amendment protected inflammatory speech only if it posed a "clear and present danger" of imminent lawless conduct.

The next major First Amendment case was Gitlow v. New York, another 7-2 decision.  This one upheld the conviction of a group of radical Socialists (for all intents and purposes, Communists) for publishing a Manifesto calling for violent revolution, although it did not incite any actual violence. This time the defendants were prosecuted, not under the federal Espionage and Sedition Acts, but under a New York statute against "criminal anarchy," which banned calling for the violent overthrow of the government or other calls for political violence.  The opinion made quite clear that advocating a socialist program through elections or other peaceful means was lawful; the only question was advocacy of political violence.  The defendants appealed on the grounds that the state statute violated the Fourteenth Amendment guaranty that no one could be "deprived of liberty . . . without due process of law," and argued that "liberty" under the Fourteenth Amendment included freedom of the press.  In other words, the Fourteenth Amendment incorporated the First.  The Supreme Court said that:

For present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States.  

Significantly, they did not actually decide but merely "assumed" that the Fourteenth Amendment incorporated the First.  But they did expressly repudiate an earlier opinion denying that the Fourteenth Amendment protected freedom of speech and the press from the states.  This was an important piece of jurisprudence -- the First Amendment had never before been held to apply against the states.  It went on to say, however, that freedom of speech did not protect "utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace," and therefore upheld the conviction, saying that the state had even stronger authority to punish calls for violent revolution.  This point was emphasized several times over.  It further held that so long as the statute is constitutional and the publication violates it, it does not matter whether any actual violence was incited or not.  Holmes and Brandeis once again dissented, again citing the "clear and present danger" doctrine and applying it to the states as well as the federal government.  Holmes also suggested that if the manifesto had been written to induce an immediate uprising, even if it did not incite any violence, his decision might have been otherwise.  The Wikipedia, incidentally, says that Gitlow is also significant as the first major First Amendment case that the ACLU argued before the Supreme Court, and that (a sign of changing times), the Governor of New York pardoned the defendant shortly after the Supreme Court made its decision.

Two years later came the case of Whitney v. California.  This time, the defendant was a Communist prosecuted under California's "criminal syndicalism" statute banning advocacy of violent revolution or membership in an organization advocating violent revolution.  Once again, the Court held that California's "criminal syndicalism" statute did not violate First Amendment guarantees of freedom of speech, the press, and association, although this time they appear to have taken for granted that the First Amendment applied to state as well as federal governments:

The essence of the offense denounced by the Act is the combining with others in an association for the accomplishment of the desired ends through the advocacy and use of criminal and unlawful methods. It partakes of the nature of a criminal conspiracy. [Cite]. That such united and joint action involves even greater danger to the public peace and security than the isolated utterances and acts of individuals is clear.

Brandeis and Holmes wrote a "concurrence" that sounded very much like a dissent:

There is guilt although the society may not contemplate immediate promulgation of the doctrine. Thus the accused is to be punished, not for attempt, incitement or conspiracy, but for a step in preparation, which, if it threatens the public order at all, does so only remotely. The novelty in the prohibition introduced is that the statute aims, not at the practice of criminal syndicalism, nor even directly at the preaching of it, but at association with those who propose to preach it.

Brandeis once again argued the "clear and imminent danger" and,while he said that a state could ban speech that caused a "clear and present danger" of imminent lawlessness, the actual danger had to be established to allow a conviction.  Since "clear and present danger" had not been defined, he attempted to define it; 

In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.

He nonetheless agreed with the conviction because, although forming a political party dedicated to revolution at some remote date in the future was not a crime, he believed there was sufficient evidence of actual criminal conspiracy that conviction might be justified.

A Short Digression on "Second Amendment Solutions"

It is getting to be a schtick on the right wing of the Republican Party.  A hardline candidate shows just how hardline he/she is by saying the s/he really hopes that we don't have to resort to Second Amendment solutions, but you should always keep your gun just in case.  Invariably the candidate talks about the need to be prepared to engage in violent revolution, assuring everyone that this is a very remote and completely hypothetical possibility, while hinting that this extremely remote and purely hypothetical possibility just might come about if the Democrats win the next election. Presumably candidates hoping to hold office do not seriously intend to engage in violent revolution. So why do they keep hinting at it?

Suggestion 1.  It expresses tribal membership:  Kevin Drum is fond of this one in other things.  In order to win the primary, Republican candidates have to pledge themselves to all sorts of nutty, far-out ideas that would be wildly unpopular (including with most of the Tea Party).  The press gives them a free pass on this (Drum complains) because it accepts that they don't actually mean any of that but are just saying it to show proper tribal affiliation and let their fellow Republicans know just how outraged they are that the Democrats are in power.

Suggestion 2.  Plausible deniability:  I have discussed the distinction between a dog whistle and plausible deniability before.  A true dog whistle has one meaning that is open and apparent to the general public and a hidden, covert meaning to insiders.  The whole point is for outsiders not to be aware of it.  A plausibly deniable remark, on the other hand, is susceptible to two possible meanings, one innocent and one offensive.  The offensive meaning is at least as apparent as the innocent one and often more so.  The goal is to be called out on the offensive meaning and then become indignant at how the "lamestream media" is persecuting you.  In the case of "Second Amendment solutions," the goal is to hint as broadly as possible that you consider armed rebellion a proper response to losing the next election and, if confronted, assure the press that really you consider the need rebellion to be extremely remote and purely hypothetical and that you just keep stressing it as a matter of principle.

Suggestion 3.  It pisses off the liberals: Here is the article I recently read that inspired this post by proposing that explanation:

Now this [talk of armed rebellion] is a guaranteed applause line among Con Con audiences, for reasons that have relatively little to do with gun regulation. The idea here is to intimidate liberals, and “looters” and secular socialists, and those people, that there are limits to what the good virtuous folk of the country will put up with in the way of interference with their property rights and their religious convictions and their sense of how the world ought to work. If push comes to shove, they’re heavily armed, and bullets outweigh ballots. It’s a reminder that if politics fails in protecting their very broad notion of their “rights,” then revolutionary violence—which after all, made this great country possible in the first place—is always an option. And if that sounds “anti-democratic,” well, as the John Birch Society has always maintained, this is a Republic, not a democracy.

In other words, liberals tend to resent being told that armed rebellion might be justified if they win the next election.  Right wing politicians have noticed this and therefore trot out the threat of armed rebellion as an applause line, not actually meaning it, because it pisses off liberals.  It is, after all, part of a longstanding tradition on the right to spew a lot of outrageous talk with the clear but unspoken understanding between speaker and audience that such talk is pure theater and not to be taken seriously. The main purpose is to give offense.