Saturday, November 23, 2013

The Second Amendment in the 21st Century

A recent facebook post pointed me at an entertaining video in favor of gun control. The point of the video, surely correct, is that mass shootings were a lot less practical with 18th century firearms than with modern firearms. Its conclusion: "Guns have changed. Shouldn't our gun laws?"

There are two problems with the argument. The first is that gun laws have changed quite a lot over the past two hundred plus years. The second is that, while mass shootings get a lot of publicity, they represent only a tiny fraction of all killings.

There is, I think, a better argument to be made for the effect of technological change on the argument for the right to bear arms. As I interpret the Second Amendment, it was intended as a solution to a problem that worried eighteenth century political thinkers, the problem of the professional army. As had been demonstrated in the previous century, a professional army could beat an army of amateurs. As was also demonstrated, a professional army could seize power. Oliver Cromwell and the New Model Army won the first English Civil War for parliament and then won the second English Civil War for itself, with the result that Cromwell spent the rest of his life as the military dictator of England.

The Second Amendment, as I interpret it, was intended to solve that problem by combining a small professional army with an enormous amateur militia. In time of war, the size of the militia would make up for its limited competence. In time of peace, if the military tried to seize power or if the government supported by the military became too oppressive, the professionals would be outnumbered a thousand to one by the amateurs. It was an ingenious kludge.

It depended, however, on a world where the weapons possessed by ordinary people for their own purposes, mostly hunting, were as effective as the weapons possessed by the military. We are no longer in such a world. The gap between military weapons and civilian weapons is very much larger now than then. One result is that the disorganized militia, the population in general, no longer plays any role in military defense. Another is that, if there ever was a military coup in the U.S., ordinary civilians would be much less able to oppose it with force than they would have been two hundred years ago.

Civil conflict in a modern developed society is much more likely to be carried on with information than with guns—a government that wants to oppress its population does it by controlling what people say and know. It follows, in my view, that the modern equivalent of the Second Amendment, the legal rule needed to make it possible for the population to resist the government, has nothing to do with firearms. The 21st century version would be a rule forbidding government regulation of encryption. A government that has no way of knowing what who is saying to whom lacks the most powerful weapons for winning an information war.

There remains a strong argument for the right to bear arms, different from but related to its original function. People who are unable to protect themselves are dependent for protection on the police. The more dependent people are on the police, the more willing they are to tolerate, even support, increased police power. Hence disarming the population makes possible increased levels of government power and the misuse thereof, although for a somewhat different reason than in the 18th century.

Which is an argument against restrictions on the private ownership of firearms.


Tibor said...

I'd say that the Swiss population which might as well be the most armed in the world if you count both the government issued rifles and the private arms (in private arms only it is the second - US is first - in the word) would stand a substantial chance against the Swiss army (which is much less overpowered than the US military). So militia can prevail today as well in some countries, albeit very likely not in the US.

There is also the question wether a professional army really is a good thing. Most countries in Europe and North America (including Czech republic and most recently Germany) have it. And undoubtedly, the prospect of having to leave for 6 months to be commanded by some greendressed idiots is nothing I would fancy. However, the Swiss system seems much more bearable (occasional short-term military trainings and a gun issued by government to every male adult citizen who is obliged to keep it in a working condition) and there are a couple of advantages. First, the professional army is much weaker in this system, so coups are less likely to happen. Also, for the same reasons, there will be probably a much weaker defense industry lobby. Secondly, it becomes politically much much more expensive to invade other countries if most of your forces are ordinary people and not professional soldiers (or politically even cheaper - drones).

So, given that we have a government and probably will for quite a long time, very likely all our lives (unless the seasteading really kicks off :) ), it could be that conscription á la Switzerland is favourable - even from the libertarian perspective - to a professional army run by the government.

Other than that, I agree with the encryption point. It will be very interesting to see how the governments will face bitcoin, which, if you take the time, can be made fairly anonymous (although it is not such by default). So far it looks that, perhaps ironically, China is the country that promotes freedom in this area. And since bitcoin has the support of Chinese government, the US cannot make it outright illegal without undertaking serious risks of losing a lot of money in the case bitcoin actually makes its way into the mainstream. A nice example of the benefits of a multi-power world. There is little competition on this large scale, but still enough to make a difference sometimes.

Eric said...

It is certainly not true that civilian populations are now ineffective against a professional military.

It is true that civilian militias can no longer hope to win set-piece battles against a professional military. However...

...any OCS graduate can tell you that few things erode an army more rapidly than being used in a civil conflict against people on their home ground.

The purpose of the Second Amendment in our time is to ensure that U.S. civilians are physically and psychologically equipped to fight not a conventional war but a successful *insurgency*. A resistance. This changes political calculations.

Also, civilian weapons can have a decisive role at moments when the state has undergone a legitimacy collapse, as happened in the Soviet Union in 1992. But an even more relevant case, because it was domestic in the U.S., was the Battle of Athens in 1996. Look it up.

Military and police with all the material advantages required to prevail in a confrontation sometimes do fold, psychologically, when faced with civilian weapons. It's not that the tanks couldn't roll, it's that the civilians' willingness to fight and die destroys the assumptions within which the commanders would give that order.

Tom Bri said...

Another kludge that the US has developed to make military coups less likely is the separation of powers into three competing branches. If the army, say, was to attempt a coup, it could find itself in confrontation with both the navy and air force. Any coup planner would have to factor this into his calculations.
Setting up the US Air Force as separate from the army probably reduced its military usefulness, but the contribution that made to political stability makes up for it.
The militia, as a sort of fourth branch, would likely only be fighting a single branch in the event that a coup needed to be resisted, and might have one or two branches fighting on its side.

jimbino said...

Folks who spell "kluge" as "kludge" must never have heard, or tried to say, the word.

Clue: it rhymes with luge, huge, stooge, or even rouge, not with judge, budge, trudge, or fudge.

The word was probably first use in print by an engineer, one of the ilk notoriously incapable of writing good English.

Anonymous said...

Actually, the Constitution limits appropriations for the army to no more than two years, so our original defense plan was militia all the time and srmy when needed.

The gap in small arms isn't that large. Our seem-auto rifles are just as good if not better than what the US Army has. Machineguns are a huge advantage, but private persons can own them. However, they aren't effective unless they are well employed. Grenades and grenade launchers are a big deal, but those can be improvised.

The real power of our professional army comes from tanks, aircraft, and artillery. These are things that even most gun rights advocates don't want immediately available. They are also too expensive to buy and maintain even if they were legal.

At some point we learned we needed a permanent army. But rather than amend the constitution, congress just decided to renew the army every two years - an insult to liberty.

Anonymous said...

yeah the Taliban are SOOOO incapable of fighting and beating the soviet army and then ALL the armies of the west.

no mr. friedman, partisan tactics can still beat any army, especially if the whole population is in on it

Anonymous said...

@David Friedman, have you seen this? is this not what you are predicting in your books?

Anonymous said...

The foundation of democracy in Greece and in Medieval Sweden was not the right to bear arms, it was the obligation to own the weapons of war, purchased by your own means, and knowing how to use them.

The very definition of a free-rider would be to not participate. To a European, the libertarian idea that one can sign up as a soldier if and when the country is threatened is a very peculiar American-British one. For those of us without an ocean between ourselves and potential enemies, it doesn't work. The time for the Soviets to cross Finland to reach the Swedish border from Murmansk was about 24 hours.

The laws of medieval Sweden required an able-bodied man between the ages of 15 and 60 to own a bow with arrows, a spear, a sword, an axe, a shield, a haubert (a chainmail shirt), an aventail (chainmail over the head, neck, throat and shoulders), an iron helmet and an overcoat that covered the torso with iron plates. In the late Middle Ages, the weapons were modified, for example the crossbow replaced the bow.

If you did not, you paid a fine. Free men did not pay taxes, neither in Athens, nor in Rome. In Sweden, taxes were introduced in 1246.

Translated to the modern world, every sane and able-bodied man and woman would be required to possess, purchased through his or her own means, without any government contribution, the weapons of war, and keep them readily available in their homes. They would also be properly trained in how to use them as part of a military unit. Today, when we do not regularly hunt, farm or even walk to school, this might of course pose some problems. For people that have reached the required physical standard, we would be looking at the equivalent of a year’s effort with regular month-long repeats every few years until retirement. Since people own their own equipment, much of the skills could be acquired during evenings and over weekends.

A citizen would possess an assault rifle, a pistol, ammunition, body armour, uniforms, various other pieces of equipment and basic provisions, maybe a machine gun or an antitank rifle. If you fulfill these conditions, you are not a free-rider and you have the right to vote. If you do not, for any reason (including disability, pacifism, poor physical health, mental health issues, obesity, etc.) you cannot vote, and following the traditions of old, you may have to pay a fine or an extra tax as well.

bruce said...

Twenty years from now, if everyone mows their lawn with a Roomba, security cameras move around and squirt tear gas, farmers harvest with remotely-operated harvesters, all underground mining is by drone, so forth- maybe military drones will be much more dangerous than what civilians have. Maybe not.

David Friedman said...


Can you point me at a source, preferably webbed, for the Swedish law you describe? The required equipment seems surprisingly elaborate, given medieval costs and incomes, to expect every free man to own.

Anonymous said...

David, I discuss this in §9.5 of my manuscript. I don't have a webbed source in English. Here is one in Swedish:

There is a table for four separate laws of the old regions (landskap).
Pilbåge = bow
Spjut = spear
Svärd = sword
Yxa = axe
Sköld = shield
Järnhatt = iron helmet
Muza = aventail
brynja = chain mail shirt
platta = overcoat with iron plates

There are some drawings from the time showing that they meant business. Defeating the Danes at Brunkeberg in 1471 was a major, late battle they won. They charged a ridge in Stockholm two or three times, then withdrew and let the Danes believe they were retreating and then beat them.

You find my source on pages 92-93 of volume 2 out of 10 of Carlson and Rosén, Den svenska historien (1966-68), swedish only...

008klm said...

So the people should have legal access to every weapon which the military does, including nuclear.

Siddharth said...

As always,xkcd has said it before:

Anonymous said...

One of the things that worried eighteenth century thinkers about professional armies was their use (and abuse) in law enforcement. As I see it, one of the purposes of the Second Amendment, and of the various militia and army clauses in the Constitution was to solve this problem by giving the responsibility for law enforcement to the militia, instead. Thus, the President can call out the militia not only to repel invasions and suppress insurrections, but also to enforce the laws of the union. Similarly, the States are forbidden "troops, or ships of war" without special congressional permission, with the implication that they use militia forces to enforce State laws instead.

I see the Second Amendment as being a part of this solution. The "security of a free state" covers not only fighting against invasions and insurrections, but also covers enforcing the law. The right to keep and bear arms is there (among other things) to prevent better-than-militia forces from being used to enforce the law, under the excuse that militia forces were not well-armed enough to do so.

The idea behind the Second Amendment and its militia clause, as I see it, was not to ensure that the militia was armed, but rather to ensure that the armed were a militia. Militias are armed with weapons available to ordinary people, and the idea was that State and Federal agents tasked with law enforcement would be well-armed enough to do their jobs - while at the same time qualifying as "militia" (and not "armies" or "troops") by virtue of being no better armed than ordinary private citizens.

This original purpose of the Second Amendment is still important in the 21st century. Militarization of law enforcement is a serious problem today. One solution would be a combination of restricting the weapons available to civilian government agents and expanding the weapons available to private persons until the two sets match.

JdL said...

It is certainly true that citizens must be undefeated in the information war (which in my mind just means not to be prohibited from participating freely, or to be able to overcome such prohibitions), but you're mistaken to discount the effect of small arms against a well-equipped army. Consider the Warsaw Uprising, carried out by people with only pistols and rifles, and who were also desperately short of ammunition. They held off the well-armed German criminals for months, and executed many of them.

In the U.S., an equivalent set of citizens is by comparison very well armed, with a huge amount of ammunition.

Government thugs in America today rightly fear the small arms held by private citizens; that's why they're so eager to confiscate them.

Tibor said...

JdL: I would say that the gap between military and civilian weapons has widened many times since the WW2. You stand a chance with pistols against rifles and a few machine guns, especially in a territory you know and the enemy does not know so well. But it wont help you against gunships, killing and surveillance drones and such equipment that the military now has. Even a few tanks would be a big problem, because there is pretty much no way to destroy them with civilian weapons.

I seems the only strategy that works against the modern military if your technology is not on par with it is suicide bombing.

Anonymous said...

I assume Eric meant the Battle of Athens, Tennessee in 1946, not 1996.

Jonathan said...

Jimbino, I've checked the American Heritage Dictionary and the Oxford English Dictionary, and they both give the primary spelling of 'kludge' with a d, although they agree with you about pronunciation and add that it comes from the German word Kluge.

Myself, I've always heard it rhymed with judge and budge, and I'll probably continue to pronounce it that way myself; not that I use it very often. The pronunciation of words is something that varies from place to place anyway.

Jonathan said...

The problem with civilians defending themselves against the army is not just the better weaponry and training of the army, but the fact that a civil war generally involves soldiers and civilians on both sides. It's not as simple as the army versus the people. You can see this clearly in the American Civil War, in which millions of mostly-armed Americans tried to defend themselves against their (former?) government, and failed.

Even in the case of a military coup, some percentage of civilians can be expected to support it, unless the coup leaders are so stupid as to make such an attempt with no support.

Anonymous said...

@bruce - law enforcement is, by definition, always gonna be playing catch up to the private sector. If the rate of technological progress continues to increase the gap is just going to keep getting wider. Im not too worried.

js290 said...

Justice Dept. Revives Push to Mandate a Way to Unlock Phones