Harry Binswanger on the Collective Premise of Gun Control

Posted by Diana Hsieh on 8 January 2013 at 10:00 am Firearms, Objectivism, Rights

Jan 082013

Some Objectivists are squishy on gun rights, so whenever the topic is raised, I prepare myself for the worst. In this case, however, I was pleasantly surprised. This Forbes op-ed by Harry Binswanger is far better than anything I’ve seen from him on this topic. Plus, his analysis of gun control as a kind of collectivism is a fresh perspective too. Here’s a bit:

In particular, the government may not descend to the evil of preventive law. The government cannot treat men as guilty until they have proven themselves to be, for the moment, innocent. No law can require the individual to prove that he won’t violate another’s rights, in the absence of evidence that he is going to.

But this is precisely what gun control laws do. Gun control laws use force against the individual in the absence of any specific evidence that he is about to commit a crime. They say to the rational, responsible gun owner: you may not have or carry a gun because others have used them irrationally or irresponsibly. Thus, preventive law sacrifices the rational and responsible to the irrational and irresponsible. This is unjust and intolerable.

Nice! Now go read the whole thing. (If you like it, share it on Facebook, email it to your friends, post it to gun forums, etc! It has already gotten tons of hits on Forbes… and more is better!)

Also, don’t miss this further comment from Dr. Binswanger:

There has been a lot of discussion here about extreme weapons, from machine guns to tanks to nukes. I didn’t want to get into those in the article, because they don’t affect the principle. The principle is that only objective threats constitute force, and thus the government can use its force properly only in regard to such threats.

Given that, either mere possession of a certain weapon (e.g., a nuclear weapon) is a threat or it isn’t. If it is (and you can easily make a case that nuclear weapons are), then it can be banned. If it isn’t, it can’t be-and why would you want to?

If you ask me, an armed nuclear bomb inside a neighbor’s house is the equivalent of a pistol put up against my head. On the other hand, suppose it is an equally destructive device but it is in a state that would take 3 weeks of very publicly visible activity to make it ready to use. Further assume that a) there’s a good, peaceful use for this device, and b) there’s no evidence that the owner is taking even the first step along that 3-week path. In that case, I don’t see how it could be illegalized, *at this stage*.

I hope you can see that it doesn’t make any difference to the argument in the article how we come down on these extreme cases. Nothing decided about nukes is going to make an objective threat out of hunting rifles in the attic or concealed carry by some members of a school staff.

A further side-issue is that there is no right to assemble a private army or milita. The government can and should take forcible action to prevent that, because it has to maintain its legal monopoly on the use of force, even retaliatory force, within its jurisdiction. It cannot and should not allow the formation of a “competing government”-i.e., force on whim.

Finally, let me state that I wasn’t kidding when I said that until recently I was on the fence regarding gun control. In fact, for most of my 50 years in Objectivism, I leaned in favor of mild gun control. It was the thinking I did after Sandy Hook at Newtown that led me to my present position. So, to those worried about guns, yeah, I know very well how you feel.

Again, that’s excellent.

My own discussion of “extreme” weapons can be found here: Philosophy in Action Radio: The Legal Status of Automatic Weapons. Like Binswanger, my basic view is that the critical question to ask with any potentially dangerous property is whether mere ownership constitutes a threat to others. That’s not true of firearms, including fully automatic weapons.

Duration: 12:48
Download: MP3 Segment

My other discussions of firearms-related topics from Philosophy in Action Radio are gathered here.

http://www.facebook.com/kyle.haight Kyle Haight

A point on “mere ownership” constituting a threat to others: context always matters. If mere possession of some weapon, in itself, with no other context required, constitutes an objective threat to others sufficient to warrant banning such possession then the threat holds even when the weapon is possessed by agents of the government itself.
Anthony

I don’t think any Objectivist is going to disagree that, in order to ban the mere possession of something, mere possession must constitute a threat to others.

Where you’ll get disagreement is on the latter point, whether or not the mere possession of fully automatic weapons constitutes a threat to others.

Kyle: Do you disagree with Binswanger about the mere possession of an armed nuclear bomb?
- http://www.facebook.com/kyle.haight Kyle Haight
  
  Absent context it is simply not possible to determine whether ‘mere possession’ is an objective threat or not. An armed nuclear bomb in the possession of the Soviet Union posed an objective threat to me that an armed nuclear weapon in the hands of the UK did not. An armed nuclear weapon in a city is threatening in a way that an armed nuclear weapon in, say, an Orion-drive starship heading out of the solar system is not. And so on.
  - Anthony
    
    Ah, I see what you’re saying. Yes, this is true. Though really, none of these weapons are absolutely banned. Rather, they are regulated – banned within certain contexts.
Anthony

By the way, the question of whether or not mere possession of something constitutes a threat to others is only applicable if the law bans the mere possession of something. Most gun laws do not ban the mere possession of weapons.
- http://www.facebook.com/elielevin Elisheva Hannah Levin
  
  But the gun laws unjustly put barriers to gun ownership in the way of American citizens. There were no gun laws until states in the south during Jim Crow made laws against free blacks owning guns. I think the intent was clear here–to stop them from defending their rights. The Feds did not form BATF until the Prohibition,nd then forbade certain guns and regulated others to try to stop the mayhem that occurs when a government illegitimately criminalizes most of the population. In any case, the right to keep and bear arms is stated in the Bill of Rights. In Article Section 8, the clearly delineated powers of the federal government do not include the ability to regulate such rights. If there is a proper sphere for regulation of the possession of firearms, it would be the purview of the states not the Fed, by virtue of the 9th and 10th Amendments. The Feds have no power to even create BATF, let alone register or regulate a citizen’s ability to purchase one. Death of firearm ownership by regulation is still a violation of a right so important that the Founders saw fit to make it separate amendment.
  - Anthony
    
    My comment wasn’t really about Constitutional law. The Second Amendment does refer to a “right to keep and bear arms”, but it also refers to a “well-regulated militia”, and to my knowledge it has never been interpreted by the courts as implying an unregulated right to, for example, automatic weapons. In the past few years the court has adopted the most expansive view ever of the amendment, and they still haven’t come anywhere near saying that it means the government can restrict the sale of an uzi to a complete stranger with no questions asked.
    
    As for Article I, Section 8, it does of course provide for the regulation of interstate commerce, for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress, and for making all laws which are necessary and proper for carrying into execution these powers, as well as the powers granted by other sections of the Constitution and its amendments.
    
    And as for the 9th and 10th Amendment, I wouldn’t say that much of anything is “by virtue of” those Amendments. Even were it not for the 9th and 10th Amendments, the federal government would *still* be limited in its powers to those enumerated.
    
    But really, I don’t see this article as being about Constitutional law. If you want to convince me that a right is being violated by a particular gun law, then it is not enough to point to the US Constitution. Rather, you would need to explain what that right is, how it is a derivative of the one fundamental right – the right to life, and how that right is being violated by that particular law. Just saying that “the gun laws unjustly put barriers to gun ownership in the way of American citizens”. Which laws? What barriers? Why are the barriers unjust?
    - c_andrew
      
      Rather, you would need to explain what that right is, how it is a derivative of the one fundamental right – the right to life, and how that right is being violated by that particular law.
      
      All self-defense issues would derive from the right to life. But what I find most troubling about your assertion here is that you give the government the primacy in this action, rather than the individual. Essentially you are telling the individual that he has to go, hat in hand, to the government and explain to them why they are violating his rights.
      
      Given that the powers of government derive from the individual rights of the citizenry – specifically in this case, the right to associate for self-defense – it is the government which must meet the proof, not the citizen.
      
      So for a legislative or regulatory act to be legitimate, the government must first demonstrate that the act does not violate the individual rights of the citizenry and secondly, that the legislative act being contemplated is the least instrusive means of the government fulfilling its obligation of protecting the life, liberty, property and actions of the citizenry.
      
      To argue otherwise – to give government the primacy – is to say that the government has the right to dictate to a citizen in the absence of an initiation of force – which is a direct inversion of the principle upon which a legitimate government is founded.
      
      So, as a concrete example, the Brady Bill prohibited the manufacture and possession of any magazines manufactured after the effective date if they exceeded 10 rounds. This is typically excused by the question, “Why do you need more than 10 rounds?” If that were a valid question, one might refer to the Korean shopkeepers in the Rodney King riots for an answer. But it isn’t a valid question.
      
      The question that needs to be asked in this case is of the government. Is this limitation on the action of the citizenry a violation of their individual rights? If so, is it the least egregious means of protecting the life, liberty, property and action of the citizenry?
      
      Another historical example comes to us from NYC and the Sullivan Act. Big Tim Sullivan was a corrupt Tammany Hall politician who oversaw the Irish gang activity in New York. Ostensibly because of a high-profile murder suicide in Gramercy Park, Sullivan sponsored a law making the unlicensed carry of a handgun a felony. Licensing was available on a “May Issue” basis; that is, the powers that be would decide who and who would not get a license. The actual motivation appeared to be that Italian gangs were making headway against the Irish and certain of his underlings were complaining to Big Tim that some of their victims had the temerity to actually defend themselves against criminal aggression. What resulted was the effective disarmament of the honest citizen whereas the criminal element continued to arm themselves as Prohibition was about to prove in spades.
      
      This is the same thing that went on in the Jim Crow South. It also went on in Weimar Germany and was codified in the Nuremberg Laws under Hitler.
      
      Interesting side note: The Gun Control Act of 1968, sponsored by Senator Christopher Dodd has amazing similarities to the Nuremberg Laws and Jews for the Preservation of Firearms Ownership have uncovered a request from Senator Dodd to the Library of Congress for an English translation of the Nuremberg Laws salient gun control passages prior to his submission of that Bill; the note from the LOC indicates that Dodd provided his own German copy of the Nuremberg Laws, most likely acquired when he served at the Nuremberg Tribunals after WWII.
      
      Now there may be a principled means of determining, in context, what an appropriate means for self-defense would be, but it is essential that the onus establishing the legitimacy of any such measures be placed upon the government – not on the citizen. This requirement follows from the fact that the rights of the citizen have primacy and the powers of the government are derivative of those rights.
      
      This is why I find your standard, quoted at the top of this post, to be an inversion of hierarchy.
      - Anthony
        
        There is certainly a right to self-defense. So if that’s where you want to start, we are starting from a point of agreement.
        
        You say I “give the government the primacy in this action, rather than the individual”. I’m not sure what action you’re referring to, but I do agree with Ayn Rand that the government holds a legal monopoly on the use of retaliatory force. That is, after all, exactly what government is all about. “If a society provided no organized protection against force, it would compel every citizen to go about armed, to turn his home into a fortress, to shoot any strangers approaching his door—or to join a protective gang of citizens who would fight other gangs, formed for the same purpose, and thus bring about the degeneration of that society into the chaos of gang-rule, i.e., rule by brute force, into perpetual tribal warfare of prehistorical savages.” That degenerated society of rule by brute force, where everyone goes around armed and turns his home into a fortress, seems to be exactly what the advocates of unlimited civilian control of weaponry are advocating.
        
        You further say I am “telling the individual that he has to go, hat in hand, to the government and explain to them why they are violating his rights.” I’m not sure where you’re getting this from, but maybe you are taking me out of context? My comment about explaining the supposed right was about what needs to happen “if you want to convince me that a right is being violated”. It has nothing to do with the government. That said, if you disagree with the government about an issue of rights, I would suggest that the proper course of action, at least barring exceptional circumstances, would be to go to the proper venue (probably the legislature or the courts) and explain to them your case.
        
        In a perfect world I would always get every issue of rights correct every time. But in actuality I make mistakes. Fortunately, I am willing to correct those mistakes if I’m shown the error of my ways.
        
        “So for a legislative or regulatory act to be legitimate, the government must first demonstrate that the act does not violate the individual rights of the citizenry”
        
        How would that work? Even just going through the list of every single right enumerated in the Constitution and demonstrating that any particular act does not violate it would take a figurative “forever”, and not all rights are even enumerated in the Constitution (as the Constitution explicitly states).
        
        Anyway, metaphysically, an act is legitimate if it is legitimate, regardless of whether or not anyone demonstrated anything.
        
        Legally, the fact that a legislature decided that an act is legitimate, and the executive signed that act, is prima facie evidence that the act is in fact legitimate. If the act violates rights, the legislature shouldn’t pass it, or the executive shouldn’t sign it. Such an act might still be overturned by the judiciary, but the burden of proof to do so is on the person who wishes to overturn the act. Even then you might not be able to get the judiciary to overturn the act, unless the right the court believes is being violated is a particular one, and is being violated in a particular way.
        
        Now I think we go back to epistemology rather than legality. You dismiss the question “Why do you need more than 10 rounds?” This is a perfectly legitimate question to someone who asserts that they have a right to more than 10 rounds. Presumably your answer is that this is based on the right to self-defense, which is based on the right to life. And this is a legitimate answer. But it’s also a legitimate question. “I have the right to more than 10 rounds just because” is not a legitimate answer.
        
        Maybe we need to step back and look at the word “right”. A “right” is a moral principle defining and sanctioning a man’s freedom of action in a social context. A right is a moral principle. It is always legitimate to ask why, when someone asserts a principal. Again, we’re talking here about epistemology, not legality, and not metaphysics. Metaphysically, a right is a right regardless of whether or not you explain it. Legally, a right is recognized under particular situations briefly outlined above. But epistemologically, a right is properly recognized when that right can be derived from an axiom of knowledge. And I’m with you through the part where you say we have a right to self-defense. I’m even with you through the part where you say we have a right to more than 10 rounds (though this one is off-the-cuff and I haven’t given it a whole lot of thought). Where some people, including Dr. Hseih, lose me, is where they assert a right to stockpile automatic weapons and grenade launchers.
      - c_andrew
        
        but I do agree with Ayn Rand that the government holds a legal monopoly on the use of retaliatory force. That is, after all, exactly what government is all about.
        
        And here we have another point of agreement. Where I differ from your interpretation of this, though, is in this;
        
        While the government does have a monopoly on the use of retaliatory force, they do not have such a monopoly on defensive force. Including defensive force against government encroachment.
        
        I think that that is where our differences lie. I believe that they are two different things; defensive force being utilized against immediate or imminent aggression and retaliatory force being utilized against the perpetrators of that aggression after the fact. I think that it is possible that you may be conflating the two. At least, that is how I’m reading your position.
        
        Now in regard to the question of primacy; I think that there are two fundamental positions vis a vis government and the citizenry. In the first, citizen action is directly constrained by government power. That is, the government rules and the citizen obeys. Whether the metaphysical justification is Divine Right of Kings or vox populi, vox dei or something else is immaterial.
        
        In the second, government power is constrained by the individual rights of the citizenry. Now, secondary to that, once government action has been found to be in accord with those rights, then the government directs and the citizen follows. But the legitimacy of the government action is predicated upon its respect for individual rights, not its own fiat actions. And thus, a government action that is contrary to individual rights is illegitimate on its face. So while we should use the mechanisms of government to oppose rights-violating government actions, we are not doing that because of an assumption of government “rightness” but toward the end of preserving civil order in the hopes that the government aggression can be resolved without further violence. But under no circumstances should a government action in violation of individual rights be construed as legitimate as is often asserted by law and order conservatives who think that “The Law is The Law” is a conclusive argument. (I am not saying that this is your position.)
        
        So that’s why I think that the question of fully automatic arms or grenade launchers or the like should be addressed in the context of defensive use of force. And that William Stoddard and Kyle Haight, with their points about selectivity of effect and context (And Binswanger with his 3 week thought experiment, for that matter) are on the right track as to what constitutes a defensive armament in an objective sense.
      - Anthony
        
        What are you quoting from? The quote from Rand is “a government holds a legal monopoly on the use of physical force”.
        
        I don’t think “defensive force” is a good term for force “being utilized against immediate or imminent aggression”. A threat need not be imminent in order to justify government action. But I do agree that the government shouldn’t, and indeed can’t, exercise its monopoly on the use of force in situations where it is not present.
        
        I find it interesting that you say “that the question of fully automatic arms or grenade launchers or the like should be addressed in the context of defensive use of force”. This is exactly what people are trying to do when they ask the question of “Why do you need [fully automatic arms, or grenade launchers, or the like; or more than 10 rounds, or a hand-gun, or an AR-15, or a lock-picking set, or a nuclear weapon, or anthrax, or plutonium, or a tank, etc.].”
        
        I also agree with the points about selectivity of effect and context. This too is the purpose of the question of “Why do you need…”
        
        Where I suspect we disagree is when the answer to that question is “to protect myself against the government”. But you seem to refuse to even address the issue.
      - c_andrew
        
        I don’t think “defensive force” is a good term for force “being utilized against immediate or imminent aggression”. A threat need not be imminent in order to justify government action. But I do agree that the government shouldn’t, and indeed can’t, exercise its monopoly on the use of force in situations where it is not present.
        
        And in fact, the government has no duty to protect the individual as has been ruled on in this instance and in this one. So, in fact, even if the government is “present” they have no responsibility to protect. By denying the right of defensive force and agglomerating it under retaliatory force, one essentially denies the legitimacy of self-defense on the individual level.
        
        And while a threat need not be imminent or immediate for the government to take action, the standard of imminent or immediate threat has been considered the de facto standard for justification of violence in self-defense. It is for this reason that it is reasonable to make a distinction between retaliatory force and defensive force and not to conflate the two as mere aspects of “physical force” without essential differences.
        
        This is exactly what people are trying to do when they ask the question of “Why do you need [fully automatic arms, or grenade launchers, or the like; or more than 10 rounds, or a hand-gun, or an AR-15, or a lock-picking set, or a nuclear weapon, or anthrax, or plutonium, or a tank, etc.].”
        
        I know that is what they are trying to do. But they are asking the question from the assumption that the government has the right to dictate to the citizenry, absent compelling evidence that these things do, in fact, constitute a threat to the life, liberty, property and action of other citizens. If you want to ask this question, turn it around. “Does the possession of an extended magazine constitute a threat to the life, liberty, property and action of other citizens.” This puts the burden on the government to make their case for restriction, not upon the citizen to make the case to protect his right of property and action. This is an appropriate burden for the government to bear given that their powers derive from the citizens’ right of self-defense and as such, that power cannot be used to obviate that same right. To do so would be to commit a fallacy akin to the stolen concept fallacy – to deny the validity of the rights upon which the government’s delegated powers rest.
        
        So any policy that renders the citizen incapable of resisting illegitimate government action, whether that is rogue elements of a government acting under color of law, or a wholesale police state enacted by legislation or military coup, is itself illegitimate. And while one may be forced to capitulate to a superior physical force, one should never admit that that force, so used, is legitimate no matter how clean its institutional pedigree might be. One should never grant moral sanction to rights-violating government actors.
      - Anthony
        
        I’m not sure what sense it makes to consider whether or not the government has a legal duty to do something, since it’s the government itself which would enforce any breach of that duty.
        
        I was talking, in the sentence you bolded, about the proper thing to do. Here, the government can’t possibly protect all individuals from all harms. So its exercise of the monopoly over on the use of force is necessarily limited, at least if it wants to be honest. But saying that it is limited, is not the same as saying it is nonexistent.
        
        You point to a Wikipedia article that talks about “self-defense”. Indeed, the law generally limits the affirmative defense of self-defense to situations where there is an “imminent or immediate threat”. That was actually my point. I don’t think the term “defensive force” applies to everything that qualifies as self-defense under the law. A use of force may very well be defensive, but not be in response to an imminent threat. In these cases the government properly exercises its monopoly on the use of force. If you find out your neighbor is plotting to murder you and your family, but you are in no imminent danger, your right to use defensive force is properly exercised through the government, by calling the police. So while there is a distinction between defensive force and retaliatory force, it isn’t the distinction you’re making it out to be. In some situations, defensive force is reserved to the government (e.g. the example I just gave), and in some situations, the retaliatory use of force is allowed by the citizen (for example, a citizen’s arrest).
        
        “But they are asking the question from the assumption that the government has the right to dictate to the citizenry, absent compelling evidence that these things do, in fact, constitute a threat to the life, liberty, property and action of other citizens.” I can’t speak for anyone else, but I’m not making this assumption. In fact, I have said on more than one occasion, including right here on this page, that “in order to ban the mere possession of something, mere possession must constitute a threat to others”.
        
        “Does the possession of an extended magazine constitute a threat to the life, liberty, property and action of other citizens?” That’s also an important question. But since we’re talking about weapons here, items which are designed for the purpose of killing, and in many instances items which are designed for the purpose of killing other citizens, the answer is generally going to be “yes”.
        
        “So any policy that renders the citizen incapable of resisting illegitimate government action, whether that is rogue elements of a government acting under color of law, or a wholesale police state enacted by legislation or military coup, is itself illegitimate.” Wait a second. Are you claiming there’s something else that you’ve said which leads to that conclusion?
        
        The government necessarily must make it difficult for citizens to resist government action. Jails makes it difficult for citizens to resist government action. Police make it difficult for citizens to resist government action. The military makes it difficult to resist government action.
        
        And unless a government’s laws are completely perfect in any way, some of those actions are bound to be illegitimate. So it sounds to me like you’re advocating anarchy.
      - c_andrew
        
        And unless a government’s laws are completely perfect in any way, some of those actions are bound to be illegitimate. So it sounds to me like you’re advocating anarchy.
        
        Hardly. The quote below will give you a rough idea of what to do if “some” of those actions are illegitimate.
        
        …That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
        
        What I am advocating is that the means to resist tyranny remain in the hands of the people. To let the government know that, ultimately, they are accountable to the people who, in the final analysis, have the means to bring them to book.
        
        Your advocacy, as demonstrated by arguing that a supra-10 round magazine is an objective threat to the rights of other citizens, is that the government has the right, if it so determines, to utterly disarm the individual. It may, in fact, have the power to do so, but it does not have the right just as any mob may have the power to abduct and lynch a person, but does not have the right to do so.
        
        The legitimate power of government derives from the consent of the governed – a delegation of the right to self-defense which has its genetic roots in the right to life. But this is a delegation on the part of the citizen, not a forfeiture. And that delegation can be rescinded when;
        
        1) the government is absent in its role as rights-protector
        
        2) the government is present, but in default in its role as rights-protector
        
        3) the government is present and complicit in or is the primary rights-violator itself.
        
        To argue otherwise is to make the claim that the citizen has no legitimate recourse in the face of government absence, default or corruption and that, in fact, the citizen has to forfeit the moral authority of his individual rights in the face of any claim by the state, for the convenience of the state. To put that in concrete terms, the lynchings that took place under Jim Crow in the south, (which, at a minimum were an absence or default of the government role of rights-protector, and in many cases were actually a corruption of that role with government actors complicit or leading the lynch-mob) must be considered legitimate exercises of state power akin to Socrates acquiescence to the state’s demand for his death. In other words, the self-sacrifice of individual rights – not procedurally toward an eventual end commensurate with upholding those rights, but an outright destruction of them. This makes a fiction of the idea that governments serve the people as the delegate of their right to self-defense and undercuts the genetic roots of government legitimacy. And as Kyle pointed out;
        
        If mere possession of some weapon, in itself, with no other context required, constitutes an objective threat to others sufficient to warrant banning such possession then the threat holds even when the weapon is possessed by agents of the government itself.
        
        The Founders had reasons for advocating an armed citizenry. They had studied History; some of them had a Classical Education with its emphasis on the Greek and Roman writers; they had read Montesquieu, Machiavelli, Locke, Cato’s Letters, etc. They were versed in the Common Law, among which it has long been established that the citizen (or subject, in British terms) had a right to resist, with force, the illegitimate actions of even Crown officers, particularly when it involved trespass on their property and defense of their persons.1
        
        This is not an argument from Tradition, such as the Conservatives make, but an argument from Induction. We know today that Individual Rights are not self-evident; they are the result of a long chain of reasoning from specific instances to first principles. That is, in fact, what the Founders did. And having garnered such vast information, they integrated it and found it so eminently reasonable that they considered it “Self-Evident.” (I’ve had math instructors do much the same thing – “And from this, it is obvious that…” after skipping a dozen intermediate steps, because it is obvious to them.)
        
        And for your own purposes, there are plenty of instances out there from the 20th Century alone where you can exercise your own inductive approach. Start with the Lynching Map compiled by the Tuskegee Institute from 1900-1931. Reference the various democides of the 20th century as detailed in R.J. Rummel in “Death by Government” or the JPFO’s “Genocide Chart.”
        
        You have a good grasp of the Objectivist canon in regard to the abstract questions of government; monopoly of force, protection of rights, how its power is derived, etc. I think you need to balance that with some concretes – as Peikoff rightly points out, to avoid the twin traps of Rationalism and Empiricism, you need equal facility with both concepts and concretes. And using the historical record as a resource for inductive material, I think you’ll find that in practical application – which does not denigrate the abstract but provides the context in which it applies – that Hamilton was correct when he wrote;
        
        “…if the government form[ed] an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little if any inferior to them in discipline and use of arms, who stand ready to defend their own rights and those of their fellow citizens.”
        
        ?
        
        And whether that army is a “standing army” in a military sense, or …a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance, is immaterial.
        
        ?
        
        ?
        
        1
        
        The American interpretation of this doctrine is largely derived from the English Common Law as it stood in the 18th century. In Book 4, Chapter 16 of William Blackstone’s Commentaries on the Laws of England, he states that the laws “leave him (the inhabitant) the natural right of killing the aggressor (the burglar)” and goes on to generalize in the following words:
        
        And the law of England has so particular and tender a regard to the immunity of a man’s house, that it stiles it his castle, and will never suffer it to be violated with immunity: agreeing herein with the sentiments of ancient Rome, as expressed in the works of Tully; quid enim sanctius, quid omni religione munitius, quam domus unusquisque civium? For this reason no doors can in general be broken open to execute any civil process; though, in criminal causes, the public safety supersedes the private. Hence also in part arises the animadversion of the law upon eaves-droppers, nusancers, and incendiaries: and to this principle it must be assigned, that a man may assemble people together lawfully without danger of raising a riot, rout, or unlawful assembly, in order to protect and defend his house; which he is not permitted to do in any other case.
        
        Not only was the doctrine considered to justify defense against neighbors and criminals, but any of the crown’s agents who attempted to enter without a proper warrant as well. It should be noted that prohibitions of the Fourth Amendment to the United States Constitution share a common background with current castle doctrine laws.
      - c_andrew
        
        I probably won’t post again on this topic because I have spent an enormous amount of time on it and have other things to do; however, in addtion to the instances I mentioned in the post, above, I’d like to add another historical event that, while not fraught with the possibilities of mass death that those previous instances relay, still makes the point of citizen armament more clear.
        
        Specifically, I’m going to give some excerpts of the account of the Battle of Athens, Tennessee, and how the actions of armed citizens dealt with a problem of active corruption of the government at the local level while state and federal levels were either absent or in default.
        
        JPFO gives the best account, but I’m going to provide a couple of links that you can peruse at your leisure.
        
        http://jpfo.org/filegen-a-m/athens.htm
        
        http://en.wikipedia.org/wiki/Battle_of_Athens_(1946)
        
        http://constitution.org/mil/tn/batathen.htm
        
        On August 1-2, 1946, some Americans, brutalized by their county government, used armed force as a last resort to overturn it. These Americans wanted honest open elections. For years they had asked for state or federal election monitors to prevent vote fraud (forged ballots, secret ballot counts and intimidation by armed sheriff’s deputies) by the local political boss. They got no help.
        
        At a rally, a GI speaker said, “The principles that we fought for in this past war do not exist in McMinn County. We fought for democracy because we believe in democracy but not the form we live under in this county” (Daily Post-Athenian, 17 June 1946, p.1 ). At the end of July 1946, 159 McMinn County GIs petitioned the FBI to send election monitors. There was no response. The Department of Justice had not responded to McMinn County residents’ complaints of election fraud in 1940, 1942 and 1944.
        
        FROM BALLOTS TO BULLETS
        
        The primary election was held on August 1. To intimidate voters, Mansfield brought in some 200 armed “deputies.” GI poll-watchers were beaten almost at once. At about 3 p.m., Tom Gillespie, an African- American voter was told by a sheriff’s deputy that he could not vote. Despite being beaten, Gillespie persisted. The enraged deputy shot him. The gunshot drew a crowd. Rumors spread that Gillespie had been shot in the back; he later recovered (C. Stephen Byrum, The Battle of Athens, Paidia Productions, Chattanooga, TN, 1987; pp. 155-57).
        
        Other deputies detained ex-GI poll-watchers in a polling place, as that made the ballot counting “Public” A crowd gathered. Sheriff Mansfield told his deputies to disperse the crowd. When the two ex-GIs smashed a big window and escaped, the crowd surged forward. The deputies, with guns drawn, formed a tight half-circle around the front of the polling place. One deputy, “his gun raised high…shouted: ‘If you sons of bitches cross this street I’ll kill you!’” (Byrum, p.165).
        
        Mansfield took the ballot boxes to the jail for counting. The deputies seemed to fear immediate attack by the “people who had just liberated Europe and the South Pacific from two of the most powerful war machines in human history” (Byrum, pp. 168-69).
        
        Short of firearms and ammunition, the GIs scoured the county to find them. By borrowing keys to the National Guard and State Guard armories, they got three M-1 rifles, five .45 semi-automatic pistols and 24 British Enfield rifles. The armories were nearly empty after the war’s end. By 8 p.m. a group of GIs and “local boys” headed for the jail but left the back door unguarded to give the jail’s defenders an easy way out.
        
        At about 2 a.m. on August 2, the GIs forced the issue. Men from Meigs County threw dynamite sticks and damaged the jail’s porch. The panicked deputies surrendered. GIs quickly secured the building. Paul Cantrell faded into the night, having almost been shot by a GI who knew him, but whose .45 pistol had jammed. Mansfield’s deputies were kept overnight in jail for their own safety. Calm soon returned. The GIs posted guards. The rifles borrowed from the armory were cleaned and returned before sunup.
        
        THE AFTERMATH: RESTORING DEMOCRACY
        
        In five precincts free of vote fraud, the GI candidate for sheriff, Knox Henry, won 1,168 votes to Cantrell’s 789. Other GI candidates won by similar margins.
        
        The GI’s did not hate Cantrell. They only wanted honest government. On August 2, a town meeting set up a three-man governing committee. The regular police having fled, six men were chosen to police Etowah. In addition, “Individual citizens were called upon to form patrols or guard groups, often led by a GI… To their credit, however, there is not a single mention of an abuse of power on their behalf” (Byrum, p. 220).
        
        Once the GI candidates’ victory had been certified, they cleaned up county government, the jail was fixed, newly elected officials accepted a $5,000 pay limit and Mansfield supporters who resigned were replaced.
        
        The general election on November 5 passed quietly. McMinn County residents, having restored the rule of law, returned to their daily lives. Pat Mansfield moved back to Georgia. Paul Cantrell set up an auto dealership in Etowah. “Almost everyone who knew Cantrell in the years after the Battle’ agree that he was not bitter about what had happened” (Byrum pp. 232-33; see also New York Times, 9 August 1946, p. 8).
        
        The 79th Congress adjourned on August 2, 1946, when the Battle of Athens ended. However, Representative John Jennings Jr. from Tennessee decried McMinn County’s sorry situation under Cantrell and Mansfield and the Justice Department’s repeated failures to help the McMinn County residents. Jennings was delighted that “…at long last, decency and honesty, liberty and law have returned to the fine county of McMinn.. ” (Congressional Record, House; U.S. Government Printing Office, Washington, D.C., 1946; Appendix, Volume 92, Part 13, p. A4870).
        
        THE LESSONS OF ATHENS
        
        Those who took up arms in Athens, Tennessee, wanted honest elections, a cornerstone of our constitutional order. They had repeatedly tried to get federal or state election monitors and had used armed force so as to minimize harm to the law-breakers, showing little malice to the defeated law-breakers. They restored lawful government.
        
        The Battle of Athens clearly shows how Americans can and should lawfully use armed force and also shows why the rule of law requires unrestricted access to firearms and how civilians with military-type firearms can beat the forces of government gone bad.
        
        Dictators believe that public order is more important than the rule of law. However, Americans reject this idea. Brutal political repression is lethal to many. An individual criminal can harm a handful of people. Governments alone can brutalize thousands, or millions.
        
        Law-abiding McMinn County residents won the Battle of Athens because they were not hamstrung by “gun control ” They showed us when citizens can and should use armed force to support the rule of law.
        
        I think that this episode in history demonstrates exactly why the citizenry should retain the right to keep and bear arms and it shows examples of the 3 instances where citizens are right to take up arms in their defense, all in the same event; The local government was corrupt, the State government was absent and the Federal government in default of their responsibilities.
        
        Contemporary news coverage is available below the JPFO article and as a link at the Constitution Society page.
      - Anthony
        
        I don’t agree with you at all regarding this example. The response should have been made through the courts, not through riots and anarchy.
      - Anthony
        
        “What I am advocating is that the means to resist tyranny remain in the hands of the people.”
        
        And what are those means? You think you’re going to be able to fight the government’s tanks and bomber jets with some machine guns?
        
        “Your advocacy, as demonstrated by arguing that a supra-10 round magazine is an objective threat to the rights of other citizens, is that the government has the right, if it so determines, to utterly disarm the individual.”
        
        First of all, I didn’t say anything about whether or not a supra-10 round magazine was an objective threat.
        
        Second of all, see above. You are confusing the concept “threat” and the concept “right”.
        
        “But this is a delegation on the part of the citizen, not a forfeiture. And that delegation can be rescinded”
        
        Of course it can. But at the point where you decide to recind the delegation, rational arguments as to how that government ought to behave become meaningless.”
        
        “The Founders had reasons for advocating an armed citizenry.”
        
        And those reasons are, for the most part, obsolete. The Founders had a vision of every non-slave able-bodied adult male being armed by the US government and trained in the use of their weapons by the states, under rules set forth by the federal government. These males were subject to being called upon by the federal government for mandatory military service during times of war.
        
        Since then we’ve absolished slavery, given women equal rights, and moved to an all-volunteer military force. We’ve kept a backup conscription plan in the form of the selective service registration, but hopefully (and rightfully) that too will go away. Most able-bodied adult males don’t want to go through unpaid mandatory military training to guide them on how to use their weapons in the extremely unlikely event of a ground invasion of the US. Those who do want to be part of what’s left of the militia can join the national guard.
        
        If you are proposing a federal law which orders the states to set up a system whereby any mentally and physically competent individual can volunteer to go through boot camp and upon graduation bring home an M16, to be used when called on by the government, I don’t have a problem with that. I’m not sure many people are going to go for it, though. It’d be tantamount to joining the national guard but not getting paid for it.
        
        “You have a good grasp of the Objectivist canon in regard to the abstract questions of government; monopoly of force, protection of rights, how its power is derived, etc. I think you need to balance that with some concretes”
        
        Concretes from the 1700s? Or concretes from today?
      - Jim May
        
        Little late to the party here…
        
        “Does the possession of an extended magazine constitute a threat to the life, liberty, property and action of other citizens?” That’s also an important question. But since we’re talking about weapons here, items which are designed for the purpose of killing, and in many instances items which are designed for the purpose of killing other citizens, the answer is generally going to be “yes”.
        
        The principle of property rights says “no”.
        
        Property rights contain no contingency of “need”. “Need” simply doesn’t enter into it. The proper answer to “why do you need X” is “none of your business”.
        
        Property rights do not need to be justified; rather, it is the apparent exception that needs justification. That possessing a certain object might be an “objective threat” is one such apparent exception.
        
        When assessing objective threat, the “design” of an object cannot enter into the discussion, because “design” exists only as the intention of the builder or manufacturer of the item. Design is not intrinsic to the object itself; only *shape* is. The proof of this is that things can be repurposed — weapons can be improvised from nearly any “peaceful” implement, and conversely, swords can be beaten into plowshares. Shape is but one of the things that go into assessing whether possessing any given object is an objective threat. Other things, such as the manner of its wielding and the behavior of its possessor, also factor into it.
        
        Once it is determined that an objective threat is present, then it *is* the same as having a gun brandished at you. In such a case, property rights no longer apply to such situations (which is why you cannot defend yourself against a charge of assault with a baseball bat by saying “But officer, it was MY bat!”); the deeper fundamental, the right to life, does. It’s a classic self-defense situation, one that sanctions the use of force in self-defense against the threat until it is no longer such.
      - Anthony
        
        What does property rights have to do with whether or not something is a threat? Just because something is a threat, that doesn’t mean you don’t have a right to do it.
        
        “Get out of my house or I will shoot” is a threat. It’s also within one’s rights to issue such a threat.
      - Anthony
        
        “Now there may be a principled means of determining, in context, what an appropriate means for self-defense would be, but it is essential that the onus establishing the legitimacy of any such measures be placed upon the government – not on the citizen.”
        
        I’m not sure what you mean by this. The legislature should certainly justify every law that it passes. That would, incidentally, include any law which purports to recognize a right.
        
        On the other hand, judges shouldn’t second-guess those determinations unless they are in contradiction with other laws (most relevantly, when the statutes are in contradiction with the state or federal constitution).
        
        On the other, other hand, I’m not going to judge a law to be illegitimate simply because the government didn’t establish its legitimacy. I’ll think about it myself. I’ll read what others have written about it. I’ll seek out different opinions.
        
        “This requirement follows from the fact that the rights of the citizen have primacy and the powers of the government are derivative of those rights.”
        
        Can you explain a little better what the requirement is? If Congress passes a bill, but they don’t establish its legitimacy to the liking of a judge, should the judge ignore the law? If that’s not what you’re saying, what is it that you’re saying? Congress must establish the legitimacy of an act to whom, in what way? And most importantly, what happens if they don’t? (If they don’t establish the legitimacy to the President, it doesn’t become law, unless they override the veto. But aside from that, what happens if they don’t?)
      - c_andrew
        
        Perhaps it would be helpful to give a concrete example of an illegitimate law that passed through all of the formalities of government and what was the historical, and, in my mind, the appropriate response to the law on the part of the citizenry.
        
        http://en.wikipedia.org/wiki/Fugitive_Slave_Act_of_1850
      - Anthony
        
        You won’t get any disagreement from me that it is sometimes (but not always) morally proper to violate an unjust law.
        
        But doing so, by definition, involves going outside the law, so I’m not sure how this is relevant. As far as the law is concerned, everyone should always follow the law. A law which says that you sometimes don’t have to follow the law makes no sense.
      - William H. Stoddard
        
        How would the federal income tax do? That was passed by actual amendment of the Constitution. You can’t get more of the “formalities of government” than that.
    - c_andrew
      
      The Second Amendment does refer to a “right to keep and bear arms”, but it also refers to a “well-regulated militia”, and to my knowledge it has never been interpreted by the courts as implying an unregulated right to, for example, automatic weapons.
      
      Arguably, Miller v United States argues exactly this. And the only reason that the anti-gun National Firearms Act was preserved is that the US Solicitor General did not enlighten the Justices as the the military use of sawed of shotguns, as below.
      
      3. The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.
      
      4. The “double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230″ was never used in any militia organization.
      
      On May 15, 1939 the Supreme Court, in a unanimous opinion by Justice McReynolds, reversed and remanded the District Court decision. The Supreme Court declared no conflict between the NFA and the Second Amendment had been established, writing:
      
      “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”
      
      Describing the constitutional authority under which Congress could call forth state militia, the Court stated, “With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”
      
      In dicta, the Court also looked to historical sources to explain the meaning of “militia” as set down by the authors of the Constitution:
      
      “The significance attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”
      
      Gun rights advocates claim this case as a victory because they interpret it to state that ownership of weapons for efficiency or preservation of a well-regulated militia unit of the present day is specifically protected. Furthermore, they frequently point out that short-barreled shotguns have been commonly used in warfare, and the statement made by the judges indicates that they were not made aware of this. Because the defense did not appear, there was arguably no way for the judges to know otherwise. Two of the justices involved in the decision had prior military experience, Justice Black as a Captain in the field artillery during WWI and Justice Frankfurter as a Major in the Army legal service; however, there is no way to know if they were personally aware of the use of shotguns by American troops. During WWI, between 30,000 and 40,000 short-barreled pump-action shotguns were purchased by the US Ordnance Department and saw service in the trenches and for guarding German prisoners.
      
      Some argue that fundamental issues related to the case were never truly decided because the Supreme Court remanded the case to the federal district court “for further proceedings”, which never took place — by the time of the Supreme Court decision, Miller had been killed, and Layton made a plea bargain after the decision was handed down, so there were no claimants left to continue legal proceedings.
      
      [emphasis added]
      - Anthony
        
        For those following at home, the correct cite United States v. Miller, 307 U.S. 174 (1939), and not “Miller v United States”. Anyway, I can’t accept that the court (as in, at least a majority of its members) in that case interpreted the Second Amendment as “implying an unregulated right to, for example, automatic weapons” while at the same time upholding the National Firearms Act of 1934 which heavily regulated automatic weapons, regarding a case which was not about automatic weapons.
        
        Maybe a minority of the court wanted to adopt such an interpretation, but I have to believe that if it were a majority that the court would have done a better job of it. There’s also an interesting theory at http://www.volokh.com/2010/02/27/united-states-v-miller/ and (linked from it) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=981831
        
        Of course, none of this has anything to do with the more interesting question, which is whether or not there actually is such a right.
      - c_andrew
        
        The Supreme Court concurred with the US Gov’t position as enumerated in (3) above that the 2nd Amendment only protected military type weapons appropriate for use in the militia. Automatic weapons and sawed off shotguns were used militarily in WWI. The Solicitor General tried to finesse this by pointing out (4) that the specific firearm in question – not the type, but the specific firearm – had never seen military service. He did not point out that this class of weapons had seen military service in the late war as that would have been fatal to his case.
        
        If we take a straight reading of the Solicitor General’s assertion and ignore his falsification or omission of the history of arms use, particularly in the Great War, we would be left with the conclusion that only military surplus arms would be allowable as being protected by the 2nd Amendment. But that is not how Miller is being read.
        
        From a comment at your volokh link, above;
        
        US V. Miller does not uphold the NFA. The USSC says it cannot say the Second Amendment protects such a weapon as a short barreled shotgun because there is no evidence in the trial record. The case was remanded for further evidentiary action since the USSC is not an evidentiary body. The surviving defendant, Frank Layton, after seeing the fate of his codefendant Jack Miller, chose not to introduce any evidence such as the purchase of short barreled shotguns by the US Army in the World War to show that such a weapon is part of the ordinary military equipment, but instead pled guilty in exchange for a sentence of probation, a plea he and Miller tried to entered when first indicted. Read the file of all the extant court documents on this case compiled by Patrick Aultice. Scalia in Heller is reduced to lying about Miller, a lie the Sixth Circuit perpetuates. Scalia cannot even get the facts of the case correct, for it was the government appealing the dismissal of the charges against the pair, not the other way around. Scalia is supposed to be one of the best legal minds in the country. He has battalions of law clerks. Do you honestly think not one of them brought this error to his attention? And if he gets the basic facts wrong, what does this say about his analysis?
        
        Heller is dicta as far as the NFA is concerned. In an exchange with Justice Scalia in the oral arguments, Solicitor General Paul Clement states the following: “***GENERAL CLEMENT: Well, Justice Scalia, I think our principal concern based on the parts of the court of appeals’ opinion that seemed to adopt a very categorical rule were with respect to machine guns, because I do think that it is difficult — I don’t want to foreclose the possibility of the government, Federal Government making the argument some day — but I think it is more than a little difficult to say that the one arm that’s not protected by the Second Amendment is that which is the standard issue armament for the National Guard, and that’s what the machine gun is. CHIEF JUSTICE ROBERTS: But this law didn’t involve a restriction on machine guns.***” [emphasis added] Chief Justice Roberts cuts him off, because Heller has nothing to do legally with the NFA because the NFA was not under consideration. Scalia’s remarks about Miller and the NFA in Heller are the very definition of a gratuitous remark.
      - Anthony
        
        “The Supreme Court concurred with the US Gov’t position as enumerated in (3) above that the 2nd Amendment only protected military type weapons appropriate for use in the militia.”
        
        I wouldn’t say that is accurate. Rather, the ruling is that the Second Amendment *does not* recognize a right to keep and bear weapons “in absence of showing of any reasonable relationship between such weapons and a well-regulated militia” (Headnote 2). The ruling does not address the scope of the right to keep and bear arms which do have a reasonable relationship to a well-regulated militia. And neither that court nor any later one has held that such a right includes an unrestricted/unregulated right to buy, sell, and/or manufacture machine guns.
        
        As for your quote, I guess it’s true that it is misleading to say that Miller “upheld” the NFA.
      - c_andrew
        
        The ruling does not address the scope of the right to keep and bear arms which do have a reasonable relationship to a well-regulated militia. And neither that court nor any later one has held that such a right includes an unrestricted/unregulated right to buy, sell, and/or manufacture machine guns.
        
        From Miller:
        
        “The significance attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”
        
        From the Oral Arguments in Heller:
        
        …but I think it is more than a little difficult to say that the one arm that’s not protected by the Second Amendment is that which is the standard issue armament for the National Guard, and that’s what the machine gun is.
        
        The first bolding, under Miller shows who the Justices were referring to. The second bolding, under Miller shows what they were expected to provide on their own. The third bolding, under Heller, provides a factual example of what would qualify as “being in common use at the time,” that is, our present time.
        
        So given that Miller did hold that 2nd Amendment protection was extended to useful military arms, and that the militia described in dicta were all males physically capable of acting in concert for the common defense, and that these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time and that the oral arguments in Heller make it clear – as a matter of fact, not legality – what is at present in “common use” I think that it is a reasonable conclusion that select-fire weapons, or machine guns, as it was phrased, are legitimate weapons for the unorganized militia – that is, the citizen.
William H. Stoddard

I used to puzzle over the question of privately owned nuclear weapons (for example). One thing I think needs to be taken into account is that they are inherently weapons of mass destruction. If I have a knife, or a rifle, or even (under the proper conditions) an automatic rifle, it’s possible for me to target an individual or a small group, and thus to use it only against people who have initiated force. But an atomic bomb cannot be target in this way; it affects everyone in a large radius, guilty or innocent. Such a use of force may be necessary in a war, but it can’t reasonably be taken as a means of law enforcement, and still less of private self-defense. Possession of such a weapon indicates a willingness to initiate force, and I think could be taken as constructively equivalent to initiating force.

I’ll stipulate that under special circumstances there might be legitimate private uses for atomic bombs, such as Orion drive spacecraft (outside the atmosphere!) or perhaps some civil engineering functions.
- http://www.facebook.com/kyle.haight Kyle Haight
  
  One could arguably make the same argument about many conventional explosives — they can affect everyone in a significant radius and thus aren’t individually or small-group targeted. Yet it seems clear that the possession of explosives by private citizens or organizations can be legitimate (e.g. in cases of mining, building demolition or movie-making).
  - William H. Stoddard
    
    The principles are the same, but the weights are different. The range of legitimate civilian uses of nuclear devices that don’t infringe anyone’s rights is smaller, especially on Earth, where the atmosphere will carry fallout a long, long way. And the severity of the threat is much larger with nuclear devices.
    
    I’d also suggest that while civilian ownership of dynamite is fine, civilian ownership of artillery shells may be questionable, precisely because artillery shells (a) are weapons and (b) are not individually targetable and not easily applied to personal self-defense.
Elisheva Hannah Levin

Interesting take on forming militias by Binswanger. It concerns me. Does this mean that Mr. Binswanger would have disapproved of the militias formed by the colonists in Massachusetts and other New England States for the purpose of self-defense against the British Powder Alarms? After all, the Brits were the “government.” I think this is one weakness of thought that I see in many Objectivists. They will continue to allow their rights to be violated until such point that they will have no power and no voice left to defend them against an illegitimate government. Galt’s Gulch is a wonderful device for a novel, but for most of us, the more prosaic response at some point must be to meet the illegitimate force of the government violating our rights with defensive force of our own. Certainly, taking up arms against one’s own government ought to be a last resort, but as my holocaust survivor grandparents found out, it needs to be on the table, and action must be taken or one’s liberty, property and very life will be forfeit to the vermin of the human race.

The federal government of the United States is no longer “federal,” it is national. It is quickly moving to shut down the individual rights of the citizens in all the states. The states have surrendered their powers to the national government, selling our birthright for the mess of pottage that is highway funds and welfare payments, leaving the productive citizens as no citizens at all, neither of a state nor of the federal United States. I believe that individual citizens must determine what is the line at which they will choose to defend their rights against a tyrannous government. To choose not to decide is to become a slave. I recognize that the Objectivist dogma is that one waits until free speech is removed to rebel. But history in the 20th century shows that collectivist governments confiscate weapons prior to the loss of free speech, or simultaneously with it, so that by the time that free speech is removed, people are powerless to defend themselves and their rights.

The United States is approaching the point of no return. When the federal government attempts to disarm law-abiding citizens, it has crossed that point. When a government is illegitimately violating the rights of the people that formed it, they have, according to the Declaration, the right and the moral obligation to resist: “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

The Founders knew that the confiscation of weapons was the turning point. It was the Powder Alarms–the responses to the Martial Law governor of Massachusetts raiding New England town militias for their weapons and food storage–that started the Revolutionary War. Most Americans are not familiar with the amount of resistance there was before Lexington and Concord. The battles of April 19, 1775 were the culmination of that resistance and the beginning of organized resistance by the whole colony, and then by the Continental Congress, certainly a rebel organization in the eyes of the “legitimate” government in England. Those battles would have been lost but for the better training of the colonists over the British regulars. That training occurred within the local militias, which had been outlawed under the martial law imposed after the Boston Tea Party. Whether Mr. Binswanger considers such organizations illegitimate or not is immaterial. They understood themselves to be an arm of legitimate power, backed by the people of their town meetings and regions and colony. They took up arms to protect their property and liberty and, in the final analysis, lives, against a tyrannous government.

I don’t know about your state, but my state’s constitution recognizes the presence and legitimacy of local militias and county posses that acknowledge the executive of the state and the power of the county sheriff who is the supreme constitutional office in any county (Printz vs. United States, 1997), and allows for the training thereof. This is different from the National Guard, which is no longer a militia, but is an arm of the federal government. This resulted as another usurpation of power by the Feds in the 20th century.

Governor Gary Johnson recognized the legitimacy of the local militias and posses in New Mexico, although no money was afforded for training. In my county, every adult citizen is armed as a matter of course–we are too rural to count on an effective police force–and every male citizen over 17 and under 50 years of age is by the constitution, a member of the militia. (An aside: we have very little crime here. Everyone knows we are all armed. We all respect private property). Every armed, adult citizen can be summoned by the sheriff as a member of a posse. Such legitimate militias and posses can and do pay for their own equipment and training in some areas, for example in Southern New Mexico. Others are more ephemeral and count on the fact that in order to be proficient with out rifles, we all practice regularly as a matter of personal safety and protection of our property.

We believe that we are legitimate, and that the federal government has long since exceeded its power and violated the founding principle of federalism. We have been willing to tolerate a whole lot of its usurpation of our rights, but to think we will all stand still if by executive order (the act of a tyrant), this president attempts to confiscate our arms is naive. There is a line, and the feds–who have not protected our borders nor done much of anything for the money they take from us–the feds are perilously close to it. I cannot say what we will do if they come for our arms. But our lives and livelihoods here in flyover country depend on them. Some counties and states will likely demand the arrest and detention of federal officers who come to confiscate our arms. (As I said, many of our sheriffs take their roles as constitutional authority in the county seriously). Some states are already nearly in open rebellion against the federal government, and have been so disrespected by it, that they in turn disrespect it. (Arizona–11 miles west of our ranch–is one). Finally, should the feds come to confiscate our arms, it is likely that they will have to pry them “from our cold, dead hands.” And a few such confrontations resulting in federal officers firing on civilians will create a national backlash. And that may indeed mean open rebellion. And whatever happens, the United States will never be the same again. It would be best if it never comes to this, but Mr. Obama seems hell bent on destroying the civil society that formed the American federal system.

If the force of law does not suffice to turn tyranny away from us, the force of arms may eventually be our only recourse. We do not want this, and we did not ask for this war by the statists on our way of life. We would like to be left alone. We may well lose, if it comes to that level of force. I, for one, most certainly hope it doesn’t come to it. But there is a point where we must stand as human beings rather than kiss the butts of those who would enslave us. (Butts that have owners who have never earned an honest dollar in their lives, I might add! They are more useless than what comes out of them).

This is the American Heritage. It was not made by governments or politicians. It was made by the likes of us. We are the legitimate governors of our lives, and we are each the sovereign owner of our governments. They serve us, not we, them. We have let them forget this fact for too long.
Anthony

Binswanger’s take on militias is only scary if you take it out of context. I’m sure he would agree that people have a right to overthrow a government “when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism”.
- http://www.facebook.com/elielevin Elisheva Hannah Levin
  
  It does not appear that Binswanger recognizes that many state Constitutions legitimate militias. His comments on militias, and indeed about the federal government in general, does not recognize that the United States does not have one government, and that American citizens are also citizens of their states. Federalism was the constitutional principle intended to keep both the feds and states jealous of their own privileges and thus more likely to oppose the other if it evinced “a design to reduce them (citizens) under absolute despotism.”
  
  I very much admire Ayn Rand’s essay on government, but it was general, and I have never seen anything she wrote that acknowledged the unique system of federalism that our founders created as the charter of our governments. I have not seen much said or argued by Objectivists that brings detail to Rand’s general essay.
  
  For these reasons, I think Binswanger’s take on militias–likely off the cuff–needs more study.
  - Anthony
    
    I’m pretty sure Binswanger’s comment about militias had nothing to do with state constitutions, or any constitutions. As for his comments about the federal government, I don’t see any. It seems to me that his comments were about [natural] rights and [proper] governments.
    
    As for Ayn Rand and the US system of federalism, that’s an interesting point. I was able to find a brief response in “Objectively Speaking: Ayn Rand Interviewed” on pages 53-55. To quote one sentence, she says: “If your purpose is to protect individual rights, you need a series of semi-sovereign states and localities, each governed by its local population and united into a wider entity, which is the United States.” But it’s not really clear what she meant by “semi-sovereign”, especially when combined with what she has said about there only being one government in any given geographical area.
    
    I’m not sure what else Rand has said about federalism. It’d be interesting to read more of it, if there is any, though.
  - c_andrew
    
    Elisheva,
    
    From the newgroups back in prehistoric times of HPO…
    
    The Random House Unabridged Dict., army – def 3 – A large body of persons trained and armed for war.
    
    In Federalist 29, Hamilton makes 3 distinctions in regard to armed groups:
    
    (1) He refers to the difficulty of “disciplining all the militia of the United States” and compares this to the desirability of a (2) “select corp of moderate size” which he then contrasts to calls for a (3) “standing [national] army.”
    
    Thus, “all the militia of the United States” refers to private citizens capable of bearing arms, from which he would extract a select corp that would function as a State incorporated militia whose duty would include opposition to a national army if such were raised, maintained and got out of control. “…if the government form[ed] an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little if any inferior to them in discipline and use of arms, who stand ready to defend their own rights and those of their fellow citizens.”
    
    Although one could conceivably read this as an endorsement of the constituted (state) militia alone, Madison, in Federalist 46 makes it clear that it is the armed citizen at large who is the bulwark of liberty against usurpation. Madison begins by establishing a standing army whose numbers are 1/25th of those able to bear arms in the nation as a whole. He estimates this to be not more than 25 or 30 thousand men. This indicates that between 625,000 and 750,000 men at large in the nation are able to bear arms. The subsequent passage is illuminating in regard to this question: “To these [30,000 men] would be opposed a *militia* amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence.”
    
    In light of Hamilton’s observation of the difficulty of “disciplining all the militia of the U.S.” while positing a large group of citizens equal in discipline and armament to the standing army and Madison’s projection of a nearly universal militia made up of two-thirds of all able-bodied men, is it reasonable to suppose that the training of this universal militia would take place under government supervision? Hamilton’s first point illustrates that a significant portion of the citizenry would, perforce, have to undertake this training on their own initiative. This would qualify as “a large body of persons armed and trained for war.” They would not be doing so under government direction. Thus, they would qualify as a private army. And merely practicing martial arts in a private manner does not qualify them as renegade or “vigilante”. Only if they act in insurrection without the appropriate sanction would the Founders have considered them a threat.
    
    One possible objection to the above argument is the that the citizens would be “…united and conducted by governments…” However, this would apply only in time of actual conflict with regular troops.
    
    As Madison, Jefferson, and the anti-Federalist Patrick Henry made clear, (see quote below) outright insurrection is not always necessary to bring a renegade govt back into line. Sometimes, the possibility alone is enough. As in self-defense against individual marauders, the capacity of defending oneself is often a sufficient deterrent.
    
    As Jefferson wrote;
    
    “…and what country can preserve its liberties if its rulers are not warned from time to time that this people preserve the spirit of resistance. Let them take arms.” Thomas Jefferson.
    
    And Patrick Henry;
    
    Are we at last brought to such a humiliating and debasing degradation, that we cannot be trusted with arms for our own defence? Where is the difference between having our arms in our own possession and under our own direction, and having them under the management of Congress? If our defence be the_real_object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?
- shemsky
  
  Anthony, who has the right to decide when a long train of abuses have occured? Do you, as an individual, have the right to decide for yourself that a long train of abuses has occured and determine for yourself what to do about it, or should you be required to wait for your neighbors, who may be profitting from you being abused, to agree with you? Binswanger never addresses this.
Elisheva Hannah Levin

I realized that in honing in on Binswanger’s objection to militias, I forgot the say how excellent the Forbes article is. Truly top notch! I posted it to my Facebook with this comment: ” Excellent discussion on why we should not argue the statistics, but rather, the principles. We are not a collective. Resistance is not futile, but must start by refusing to engage the collectivist argument.”

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