Guns, Democracy, and the Insurrectionist Idea

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CHAPTER 3. What Is the Insurrectionist Idea?

What Is the Insurrectionist Agenda?

Who Are the Insurrectionists?

The NRA 35 Allied Gun Groups 46 The Gun Show Circuit 50 The Gun Rights Grassroots and the Blogosphere 55 Liberal Law Professors and D.C. v. Heller 64 Dissenters and Enforcement of the Insurrectionist Orthodoxy 71

Chapter 9. Chapter Io

CHAPTER II.

German Gun Laws and the Holocaust 137 Gun Control and the Nazis 139

A Dangerously Weak State 142 Overwhelming Private Violence 148 Democracies and Genocide 155

The Meaning of Freedom One Gun, One Vote?

Democracy and the Monopoly on Force

Property Rights and Guns at Work 186

The Right of Redress and Immunity for the Firearm Industry 195

Due Process and “Shoot First” Laws 208

Effective Democratic Institutions

Conclusion Notes Bibliography Index

2.21 229 251 261

INTRODUCTION

The National Rifle Association (NRA) sells everything from its political agenda to its merchandise with a simple equation: more guns equals more freedom. The NRA steadfastly maintains that thirty thousand gun-related deaths and three hundred thousand assaults with firearms in the United States every year are a small price to pay to guarantee freedom. As former NRA president Charlton Heston put it, “Freedom isn’t free.” When Heston told fellow NRA members that anyone who wanted to take his guns would have to pry them out of his “cold dead hands,” he was advancing a theory of the relationship between freedom and firearms that has become a powerful political and social force in America.

When gun enthusiasts talk about the importance of an expansive reading of the Second Amendment to the defense of freedom, they are referring to freedom in a general sense, but they also have something more specific in mind—freedom from government oppression. In their view, unfettered access to firearms is the key ingredient in protecting individual rights from overreaching by government. They argue that the best way—in fact, the only way—to keep centralized authority in check is to ensure that individual citizens retain the capability to confront the government with force of arms.

This idea, which we call Insurrectionism, is part of a broader ideological perspective that opposes a strong, activist government in nearly all of its forms. For Insurrectionists, guns are both symbols and tools of freedom. The idea that individuals must be prepared for a violent confrontation with the state is only one tenet, albeit crucial, of a worldview that is hostile toward—or at least highly suspicious of—public education, immigration, international institutions, and almost any type of social program, especially when run by the federal government. Antigovernment sentiment is, of course, not confined to gun rights enthusiasts, but the Insurrectionist idea adds an emotionally charged element to the standard conservative critique: big government is not just inefficient or even corrupt but is an alien force that threatens to annihilate us if we fail to exercise constant vigilance against its natural tendency toward tyranny.

On occasion, the Insurrectionist idea spurs a lost soul or desperate tax delinquent or publicity-seeking paramilitarist to violent action. Timothy McVeigh was the poster child for the deadly consequences of taking the Insurrectionist idea to heart, but smaller armed confrontations between “citizen” and government are sufficiently common that they usually warrant only a brief mention in the local newspaper unless they escalate into full-scale shootouts. Rather than attempting to resolve their grievances through the courts or the political process, selfdeclared “patriots” challenge government authority through force of arms, often with bloody results. It is not surprising that Insurrectionist rhetoric eventually leads some people to take violent action, but the blithe acceptance of these outbursts of violence as a natural and perhaps inevitable reaction to government overreaching is remarkable.

After a disgruntled business owner who felt—apparently with some justification—that he was treated unfairly by municipal officials in the town of Kirkwood, Missouri, went on a shooting spree at a town council meeting in the spring of 2008 and killed five people, members of the public responded with outrage at the violence but not at the motives: some observers seem to see armed confrontation with the government as a prerogative of citizenship. Speaking at a community meeting a day after the massacre, one man said that the shooter was “a soldier who paid the price for liberty.”!

And why shouldn’t shooting public officials be a legitimate response by citizens who are aggrieved by the government? After all, at the time

INTRODUCTION 3 of the Missouri shooting, briefs were being filed and arguments being prepared for the Supreme Court arguing explicitly that our constitution guarantees every American the right to prepare for armed confrontation with the government. In Heller v. D.C., a challenge to the District of Columbia’s gun laws, the NRA, appearing as an amicus curiae, contended that one purpose of the Second Amendment is to protect an individual right to arm against the “depredations of a tyrannical government.” The vice president of the United States and 305 members of Congress asked the Court to support that view. And in fact, in a landmark decision striking down parts of the District’s gun laws, the Court found that the Second Amendment includes an individual right to insurrection. Justice Antonin Scalia wrote that citizens acting on their own are entitled to arm themselves and connect with others in a “citizens’ militia” to counter government tyranny.”

This book asks readers to consider just how damaging this idea is to democratic values. When we began work on the book in 2004, we had no idea that the U.S. Supreme Court would endorse Insurrectionism, but it was already clear that the idea was gaining intellectual traction beyond the radical fringe. Right-wing populists are attracted to the idea that Insurrection through force of arms is a morally and legally legitimate instrument of political expression in a democracy largely because it fits neatly with their core ideological premises—that is, that the government should be kept in a condition of weakness because collective approaches to social problems are wasteful at best and more often constitute an insidious threat to individual liberty.

The NRA and its allies have been among the leading vehicles for popularizing the claim that a strong government is antithetical to freedom. The gun rights movement has become an integral part of the broader conservative coalition because the Insurrectionist idea advances the larger cause of demonizing government in virtually all of its forms. After all, if individual citizens have a right to decide when government taxation or regulation or infrastructure development amounts to tyranny, all government action is easily viewed as suspect.

This book argues that the Insurrectionist idea poses a serious threat to democratic values and institutions. In outlining how Insurrectionism made the transition from a radical set of claims about the centrality of firearms in the preservation of freedom to a mainstream legal theory that enjoys widespread political support (and why it poses such a danger to our democracy), we make three main arguments.

First, the Insurrectionist movement must be taken seriously because it has political and social consequences beyond firearms policy, and these consequences make it a major threat to much of the progressive agenda. The leading gun rights groups preach Insurrectionism as a core concept, teaching members and nonmembers alike that they should not trust the government and should be prepared to resist it with force. Recent public opinion research shows that many gun owners have accepted the Insurrectionist message and see resistance to government as at least one good reason for owning a gun.’

The core of the Insurrectionist dogma is its insistence that unrestricted access to guns of every kind is an essential element of freedom. Insurrectionists see the government as the enemy and condemn any and all gun regulation as a government plot to monitor gun ownership (presumably to lay the groundwork for confiscation of privately owned firearms in the event of a political crisis). By constantly hammering home the idea that the gun rights movement is essentially about the defense of liberty, advocates of the Insurrectionist myth have effectively turned freedom into a code word understood by the initiated to imply a quite remarkable conception of the role of private violence in our political system, eliminating the need to spell out the idea in detail or confront its logical implications.

The gun rights groups, with the NRA in the forefront, have created a communications network that reaches down into the grass roots and delivers messages, talking points, and voting advice to millions of Americans. Through various forms of mass media, such as television, radio, and billboards, they reach sympathetic fellow travelers who may not actually be group members or even gun owners. These efforts are usually invisible to anyone who lives in or near a large city, but every two years (and especially in presidential election years), the roads and airwaves of rural and small-town America are filled with pleas to “Vote Freedom First” by supporting candidates backed by gun rights groups.

The NRA’s communications and grassroots capabilities allow it to swing a small but often critical group of voters in tightly contested cam-

INTRODUCTION 5 paigns. In an era when presidential elections are often decided by a handful of votes in a single state, this organizational capability is immensely valuable, even though most gun owners disagree with the NRA on many issues. By embracing the NRA, the right wing of the Republican Party gets access to a message machine that churns out antiprogressive propaganda not just during the election season but year in and year out. It is no wonder, then, that some of the leading lights of the “conservative” movement, such as Grover Norquist and David Keene, sit on the NRA’s board of directors and embrace the Insurrectionist message.

More troubling from our perspective is this message’s effect on the political prospects of progressive candidates. Pitifully few politicians have been confident enough to stand up to Insurrectionist rhetoric, and many have embraced it as a legitimate perspective on the role of guns in a democracy. Progressives (particularly those concerned about civil liberties) sometimes spout Insurrectionist rhetoric without thinking through what it means. Progressive political leaders should think carefully about the long-term costs and benefits of embracing an idea that is fundamentally antagonistic toward any form of government that is capable of undertaking ambitious efforts to solve difficult social problems.

Second, Insurrectionism derives from a view of the American experience and more generally of the modern history of the world that is wildly at odds with the historical record. The Insurrectionist myth that government is the enemy of freedom and that armed citizens have proven the best check on government power has been concocted from twisting the facts of historical events, with revisionist accounts of three episodes from the past playing an especially important part in the Insurrectionist delusion: the American Revolution and the founding of the American republic, the denial of civil rights to African Americans after the Civil War, and the rise of the Third Reich under Adolf Hitler. The touchstone of the Insurrectionist take on these events is that strong government is always the primary threat to human freedom and that private ownership of firearms is the only force that can keep this threat in check.

Insurrectionists teach that the lesson of the founding of the United States is that guns were so important to American freedom that the framers enshrined in our Constitution the right of every individual to own guns to ward off government tyranny.* From the Civil War, the Insurrectionists draw the conclusion that the government’s disarming of the former slaves led to the subjugation of African Americans for one hundred years.’ From the rise of the Nazis, Insurrectionists glean the insight that if the Weimar Republic had dispensed with gun control, Hitler would not have exterminated six million Jews and millions of other people.® In the Insurrectionist version of history, these three examples offer cautionary tales that illustrate the immense danger posed by gun control schemes.

This book offers a detailed examination of these arguments about the lessons of history. We show that the Constitution was specifically framed to prevent individuals from using mob power as a fourth branch of government and that protection for Insurrectionism, as advocated by a small group of radical Antifederalists, was the losing argument in the ratification debates. As for the Reconstruction and Nazi arguments, we show that the key factor in the horrors carried out by the Klan and its allies (and then eighty years later by the Nazis) was the disintegration of government power in the face of organized private violence. The problem with arming the oppressed to give them an opportunity to defend themselves is not that the freed slaves or the Jews of Europe did not have an adequate moral claim to use whatever means they could find to fight back. The victims of genocide are fully justified in taking up arms to defend themselves. The difficulty with the argument against gun control in World War II-era Germany or the Reconstruction South is that guns would not have helped to hold off the Nazis or the Klansmen for long. Without a commitment by legitimate democratic government to enforce the rule of law and its monopoly on force, a few more guns for former slaves would have provided little long-term help. In fact, a strong government that has the means and the will to enforce individual rights—the kind of government opposed by Insurrectionists—would have been a source of far greater protection. We argue, then, that historical experience counsels against the weak government favored by Insurrectionist thought and in support of democratic government empowered with the tools to protect itself and its citizens from the mob.

Third, the Insurrectionists cannot secure their substantive, proce-

INTRODUCTION 7 dural, or symbolic demands except at the expense of many other vital freedoms, most of which have no direct relationship at all to firearms. Despite their oft-expressed enthusiasm for the uncompromising defense of freedom, the Insurrectionists who lead the gun rights movement do not seem to mind trampling the democratic rights of others. The most obvious—but not the most important—example is the gun rights movement’s willingness to compromise public safety. The insistence on gun rights absolutism ignores the practical impact of gun violence on the freedom of individuals to walk down the streets of their own neighborhoods. When crime data began to show that gun violence was increasing in the late 1980s and early 1990s, gun control groups developed proposals to address what they saw as a public health threat. The Insurrectionists, conversely, saw rising crime rates—and the political pressure to address them—as a threat to their ideological goals. While gun control advocates worked to marshal statistics in support of their legislative agenda, their counterparts in the gun rights movement moved to deflect any initiative that would allow the government to identify gun owners, even for purposes of investigating and prosecuting violent crimes committed with their guns.

The more fundamental danger, however, is not that the erosion of public safety imposes a cost on individual freedom. The more serious problem is that by inculcating gun owners with a paranoid, obsessively antigovernment political ideology, the Insurrectionist movement has helped to stoke hostility toward government power (e.g., international treaties and environmental regulation) and pluralism (e.g., by attacking immigration and affirmative action). By promoting the idea that no person can or should rely on anyone else for anything important, the Insurrectionists’ warped worldview shapes negative attitudes about government, mutual obligation, and community.

Gun control advocates—and the progressive movement—have failed to appreciate the danger posed by this ideological blaze and the grassroots network fanning its flames. Without an organized and sustained effort to show how the NRA and other gun groups have become instruments of a broader reactionary movement, these groups will continue manipulating gun owners into joining a coalition of libertarians, right-wing populists, and religious “conservatives” who want to make war on public education, progressive taxation, civil rights, and virtually every other significant social and political advance of the past century.

In fact, the unchecked spread of Insurrectionism threatens the shared values and institutions that comprise our democratic system by undercutting support for a strong and effective government capable of protecting individual rights (including equal protection of the laws and the freedom to walk the streets in safety). The antidemocratic effects of Insurrectionism are more than simply an indirect consequence of the gun rights movement’s alliance with the “conservative” movement. Antidemocratic values such as hostility to pluralism lie at the core of the Insurrectionist idea.

The authors are acutely aware of the strange illusion, so real and so compelling to some people, that the Insurrectionists are entitled to subsume their doctrines under the rubric of “conservative” political thought. So as a gentle reminder to readers, we have placed the term “conservative” and its derivatives in quotation marks wherever the text requires disavowal of a conceit suggesting that this misbegotten form of radicalism owes its ancestry to venerable traditions. More than a half century ago, conservative scholar Peter Viereck described the Insurrectionists of his day, the McCarthyites, as “rootless doctrinaires.”’ According to Viereck, “Conservatism is the art of listening to the way history grows,” and he quoted August Heckscher as saying,

Conservatism is rarely a program and certainly never a dogma. It is not an ideology. At its best conservatism is a way of thinking and acting in the midst of a social order which is too overlaid with history and too steeped in values, too complex and diverse, to lend itself to simple reforms. It is a way of thought which not only recognizes different classes, orders, and interests in the social order but actually values these differences and is not afraid to cultivate them.®

In short, Insurrectionism is a radical doctrine, and its use as a political tool is fraught with danger. Unlike the Insurrectionists, however, we do not favor undercutting other individual rights to check the growth of this noxious idea. No American can or should be punished by the government for expressing ideas, even when these ideas include the

INTRODUCTION 9 proposition that armed citizens should use force against the government as a form of political dissent. But what means are available to confront and discredit the Insurrectionist idea and the political organization that has been built around it? We have a few suggestions for ways to advance a progressive strategic alternative to the gun rights fantasy of Insurrectionism:

I. Recognize Insurrectionism as a threat to the entire progressive movement. Too many political progressives assume that the gun rights movement can be co-opted or simply ignored. Progressives fail to understand that the Insurrectionist idea is part and parcel of a broader reactionary worldview. Unless progressives recognize that the Insurrectionist premise of the modern gun rights movement is fundamentally hostile to the progressive project and its values, the “conservative” movement will use gun rights as a building block for organizing and propagandizing.

2. Isolate the Insurrectionists by embracing the self-defenders and the sporting gun owners. The fact remains that most gun owners are not Insurrectionists. The majority of gun owners keep guns primarily for self-protection or recreation, not to prepare for some future Armageddon. Insurrectionists do not deserve the cover provided them by self-defenders and sporting gun owners.

More than two hundred million firearms are in private hands in the United States, and almost 40 percent of homes contain at least one gun. Legislation to ban handguns has been extremely difficult to pass, and even if new handgun sales were outlawed—an unlikely scenario for the foreseeable future—the effect would be entirely prospective, albeit significant over time. Education about the dangers of guns in the home, coupled with rigorous regulatory and enforcement efforts to close the channels of illegal gun distribution, may now be the best way to convince Americans that their families and communities will be better off without unfettered access to firearms.

3. Reclaim the values and reframe the question. | Gun control advocates have spent the past three decades trying to persuade the public

Io GUNS, DEMOCRACY, AND THE INSURRECTIONIST IDEA that guns are dangerous, while gun rights groups have argued that guns are essential to our freedom. We need to challenge the idea that guns protect freedom and democracy. The most important threat posed by unfettered access to firearms comes from those who would use it as an Insurrectionist shibboleth. This ideology should have been completely discredited with the Civil War, and its ascendance represents a return to the days when our society was less free and less democratic. Progressives must be willing to stand up and say, “I believe in strong gun laws because I am a patriot, and I believe that accountability and personal responsibility are not only consistent with freedom and democracy but are essential to both.”

The American debate over guns should be framed as a discussion about America’s civic health. The questions should be, How can a commitment to democratic values be squared with the idea of violence against a democratic government? What role does respect for political equality and pluralism play in our system of government, and what is the relationship between the ideology of the gun rights movement and these values? Do we want to live in a society where people who want nothing more than to move about their communities without fear need to bring a firearm to protect themselves from violence? How have we allowed the debate over democratic values to become so cheapened and degraded? By answering these questions, we can begin a new debate about guns in America that can open the door to more effective approaches to violent crime as well as to a heightened respect for the values and institutions that make our country great.

Chapter One What Is The Insurrectionist Idea?

Insurrectionist is not a synonym for gun owner. Most gun owners do not belong to organizations that support—or whose leaders support—Insurrectionism. The 4.3 million members claimed by the National Rifle Association (NRA)! make it one of the nation’s largest membership organizations, but the United States is home to an estimated 80 million gun owners. Even within the NRA, many members perceive it as a service provider—that is, they sign up to take advantage of discounted insurance or hunting gear and ignore its political views. Some other gun groups, such as Gun Owners of America (GOA), position themselves to the right of the NRA, claiming that they are more uncompromising in their opposition to regulation of firearms. The members of these groups join because of the politics. Gun Owners of America would never be confused with a member-services organization. In fact, GOA offers its members little beyond repeated exhortations to send in another check to beat back the threat of gun control.

Americans have different reasons for—and attach different meanings to—gun ownership. Some people use guns for hunting and other recreational activities such as target shooting or collecting. Others (who might best be called the “self-defenders”) acquire guns to protect themselves or their families from crime. Nobody can say with certainty how many people own guns to protect themselves from the government. Of course, many if not most gun owners buy firearms for more than one purpose. The major gun groups preach Insurrectionism, teaching members and nonmembers alike that they should not trust the government and should get ready to resist it with guns. Recent public opinion research shows that many gun owners have accepted the Insurrectionist message and see resistance to government as at least one good reason for owning a gun.”

The core of the Insurrectionist idea is its shibboleth that unrestricted access to guns of every kind is an essential element of political freedom. Insurrectionists see the government as the enemy and condemn any and all gun regulation as a government plot to monitor gun ownership (and presumably to lay the groundwork for confiscation in the event of a political crisis). One of the leading Insurrectionist theorists, David Kopel, vividly sums up the Insurrectionist animus toward gun registration:

It is improper to require that people possessing constitutionally protected objects register themselves with the government, especially when the benefits of registration are so trivial. The Supreme Court has ruled that the First Amendment prohibits the government from registering purchasers of newspapers and magazines, even of foreign Communist propaganda. The same principle should apply to the Second Amendment: the tools of political dissent should be privately owned and unregistered.’

Nelson Lund, one of the leading Insurrectionists in academia, posits that the Constitution establishes an individual right to bear arms to protect against federal tyranny: “An armed populace—even if it could not serve to deter tyranny as effectively as a legal prohibition against federal standing armies—would still constitute a highly significant obstacle to the most serious kinds of governmental oppression.’”* So Lund believes that the government, state or federal, is prohibited from limiting civilian access to almost any kind of weapons, including “grenades and bazookas,” and that laws banning assault weapons or the carrying of concealed weapons are unconstitutional.®

The late Bill Bridgewater, former executive director of the Alliance

WHAT IS THE INSURRECTIONIST IDEA? IS of Stocking Gun Dealers, described in a widely circulated essay how American citizens could wage a guerrilla war against the U.S. government:

One of these days a truly charismatic individual is going to walk out of the heartland of America and point out that the Declaration of Independence has never been repealed and that it “requires” all citizens to rise up against an oppressive government. With the current attitude toward our government and the people who populate it, a massive groundswell of support for throwing the current crop to the dogs and starting over again might not be so difficult.®

Bridgewater noted that the North Vietnamese, using as their model the tactics of America’s war for independence, humbled the greatest military in the world. If the North Vietnamese could do it, the argument goes, American citizens—large numbers of whom already own sophisticated firearms—could succeed. Bridgewater did not live to see it, but the effort to pacify Iraq is a good reminder that even the most capable military forces face serious difficulties when confronted with the tactics of guerrilla warfare.

Bridgewater's essay, originally published in the Bullet Trap in 1994, is still making its way around the Internet. In 2006, it was posted on LizMichael.com, a site with the somewhat immodest motto “Political activism for the liberation of the world” that includes a series of articles citing Lund’s work. By itself, the site is not particularly significant, but the ideas it promotes are staples of the strain of right-wing populism that has become a core element of contemporary “conservative” politics. It often marries antigovernment ideology to gun rights absolutism: Widespread private ownership of firearms is the ultimate guarantor of liberty. All gun control is an infringement of rights reserved for the people by virtue of our history. Government is the enemy. Our founding fathers believed that the individual’s personal right to armaments as a check on overbearing government was essential to the protection of freedom and democracy. This idea was true then, and it is true today.

Unsurprisingly, the NRA and its ideological fellow travelers have tried to legitimize Insurrectionism to rationalize their opposition to even the most trivial gun regulations. Wayne LaPierre, the NRA’s top executive, says, “The people have the right, must have the right, to take whatever measures necessary, including force, to abolish oppressive government.”’ In 1998, U.S. senator (and later attorney general) John Ashcroft somewhat awkwardly argued, “A citizenry armed with the right both to possess firearms and to speak freely is less likely to fall victim to a tyrannical central government than a citizenry that is disarmed from criticizing government or defending themselves.’”®

The Insurrectionist objection to the regulation of firearms may extend to state government, even though the reservation of authority to state-level officials in principle provides another check on overreaching centralized power. The Insurrectionist mind-set took on comic effect when one of the authors witnessed the spectacle of an aide to a Virginia state legislator objecting to restrictions on firearms on the grounds that he might need a gun to resist oppression by his employer. Asked by a lobbyist whether the aide’s boss might vote for closing the loophole that allows people to buy guns without background checks at gun shows, the aide responded that he would not even pose the question to the legislator. The aide explained that because a background check would alert the government when a gun is purchased, he was uncomfortable with the process. “I need my gun to protect against the government,” he said. The lobbyist reminded the aide that as a legislative assistant, he is an agent of the government he professed to fear. His response, relying perhaps on advice from his accountant, “I am not the government because Iam a contractor.” Leaving aside the absurdity of the objection that requiring background checks on firearm sales at gun shows would prevent law-abiding citizens from buying guns (when three of the five states with the largest number of gun shows require background checks and all sales at gun stores already require the checks), the notion that an employee of one of the oldest, most conservative legislative chambers in the world thinks that he personally needs a gun to protect himself from that legislature is a testament to how tightly some gun rights advocates have embraced Insurrectionist theory.

Until recently, few Americans not involved in private militias or other right-wing fringe groups that make up the “patriot” movement took seriously the Insurrectionist idea.? Despite some backpedaling in

WHAT IS THE INSURRECTIONIST IDEA? I7 the wake of Timothy McVeigh’s use of Insurrectionist justifications for the bombing of the Oklahoma City federal building, the major gun rights organizations have become more aggressive in advancing an Insurrectionist rationale for an expansive view of gun rights. The propaganda used by these outfits exploits the habitual American distrust of government, but the extent of uncritical acceptance of Insurrectionist interpretations of the Second Amendment is nevertheless striking. For example, Libertarian luminary Ron Paul, who raised $34.5 million in his bid for the 2008 Republican presidential nomination (which was more than fellow Republican Fred Thompson and only slightly less than Democrat John Edwards, both thought to be in the top tier of candidates at the outset of the race),!° stated on his campaign Web site that a “gun in the hand of a law-abiding citizen serves as a very real, very important deterrent to an arrogant and aggressive government. Guns in the hands of the bureaucrats do the opposite. The founders of this country fully understood this fact, it’s a shame our generation has ignored it.”!! Mike Huckabee, who won 257 delegates in the 2008 Republican primaries,’ responded to a question at a town hall meeting in New Hampshire with the answer that the Second Amendment “gives me that last line of defense against tyranny, even the tyranny of my own government.” 13