Stanley Fish on education, law and society.

The more militant members of the N.R.A. and most of its leaders may be un-American.

By “militant” I don’t mean those who wish to protect recreational shooting and hunting; nor do I mean those who, like Justice Antonin Scalia, believe that there is a constitutional right to defend one’s home and family with firearms. These are respectable positions (although I am deeply unpersuaded by the second). I mean those who read the Second Amendment as proclaiming the right of citizens to resist the tyranny of their own government, that is, of the government that issued and ratified the Constitution in the first place.

The reason this view may be un-American is that it sets itself against one of the cornerstones of democracy — the orderly transfer of power. A transfer of power is orderly when it is effected by procedural rules that are indifferent to the partisan, ideological affiliations of either the party exiting power or the party taking power. A transfer is disorderly when it is effected by rebellion, invasion, military coup or any other use of force.

Those who are engaged in a disorderly transfer believe that their actions are inspired by the highest of motives — the desire to set right what has gone terribly wrong. Somehow the forces of evil have gained the levers of power, and unless they are dislodged, the values necessary to the sustaining of everything we cherish will be overwhelmed. Violence is ugly, but if tyranny is to be defeated, it may be necessary. Given tyranny’s resilience and its tendency to fill any available political space, we must always be ready; the price of liberty is eternal vigilance.



This is a familiar story; indeed it is the story — or at least one story — of the American Revolution, and that is why it is the story Wayne LaPierre, the executive vice president of the N.R.A., told to a Senate committee in January: “Senator, I think without any doubt, if you look at why our Founding Fathers put [the Second Amendment] there, they had lived under the tyranny of King George and they wanted to make sure that these free people in this new country would never be subjugated again and have to live under tyranny.”

In 1990, Fred Romero, an N.R.A. field representative, put the case as clearly as possible: “The Second Amendment is not there to protect the interests of hunters, sport shooters and casual plinkers.” Rather, the “Second Amendment is … literally a loaded gun in the hands of the people held to the heads of government.” In response to statements like this (and there are many of them), President Obama recently said in a speech in Denver: “The government’s us. These officials are elected by you.” Or, in other words, how can the people’s enemy be the representatives elected by the people?

The N.R.A. militants have an answer. The purpose of the American Revolution was to secure the freedom of individuals and that means a minimally intrusive government. Representatives elected to safeguard that freedom may become intoxicated by their power and act in ways that restrict rather than enhance individual choice. At that point it is the people’s right and duty to rise against them. Measures limiting gun ownership are a sure sign that government is moving in the direction of central control and tyranny.

But who gets to decide that tyranny is imminent, and by what measure is the imminence of tyranny determined? That question was debated on patch.com by posters responding to a story about Baltimore County Police Chief James Johnson, who had called the tyranny argument of LaPierre and others “creepy” and “scary.” A commenter posting under the name Sanchez explained that “Tyranny consists of many things we have experienced the last 4 years, the firearm issue the latest in the line of them.” The point was echoed and amplified by another commenter, William Gill: “The second amendment is the only one that can assure the protection of your other rights which are being attacked almost daily by the current administration.” (In short, the Obama administration = tyranny.) A commenter posting as Steve responded, “It’s not ‘Tyranny’ just because you were outvoted. That’s Democracy.”

Steve is standing up for the orderly transfer of power and saying that we don’t call it tyranny when the other guy’s ideas have carried the political day. But he is met immediately by two responses from other commenters. First, “Steve, you’re assuming that the voting process was above board! Let’s face it, this election in November was by no means above board.” That is, the election results did not reflect majority will but some form of corrupt manipulation. (Those conspiring to overthrow government cite a conspiracy theory as their justification.)

The second response cuts deeper: “We live in a Republic Steve … majority rules is a problem indeed” (Buck Harmon). Harmon is invoking the familiar distinction between a democracy and a republic. In a democracy the majority determines what the law is and could, at least theoretically, take away the rights of individuals for the sake of the “public good.” In a republic, majority will is held in check by constitutional guarantees that forbid legislation encroaching on individual rights even if 51 percent or 95 percent of the population favors it. (For example, Congress shall pass no law abridging the freedom of expression.)

It follows from this distinction that a government elected by the majority can begin to think it can do anything it wants to, can begin to act as if we lived in a democracy rather than in a republic, and when that happens, or is in danger of happening, there is what the former Senate candidate Sharron Angle called a “Second Amendment remedy.” Asked, in 2010, “Do we have enemies of the country in the halls of Congress?”, Angle replied, “Certainly people who pass these kinds of policies — Obamacare, cap and trade, stimulus, bailout.” Off with their heads, either metaphorically, or in sufficiently dire circumstances, literally.

So for Angle and others, that’s the shape of tyranny — legislation that, in their judgment, abridges constitutionally protected rights. Sanchez explains: “We are all to decide what tyranny is. Just as we decide what law we obey or not.” This antinomian declaration — our inner light will tell us when and when not to obey — flies in the face of another commonplace of democracy: ours is a government of laws not men (a declaration found in the 1780 Constitution of Massachusetts). A government of men is one in which laws issue from the will and desires of those who happen to be in authority. In a government of laws the preferences of men (and women), even those holding high office, are checked by the impersonal requirements of an impersonal law.

Another version of the commonplace is, no man is above the law. The opposite view was famously declared by Richard Nixon when he said, “When the president does it, that means it is not illegal.” N.R.A. militants like Sanchez and Angle are, in effect, an army of little Richard Nixons, deciding what laws to obey, and deciding too when lawmakers have failed to obey the law as they see it. Unlike Nixon, they don’t have an F.B.I., a Treasury Department and a standing army; but they do have the Second Amendment and the right, or so they claim, to take arms against a government they have judged to be wayward.

In the same thread quoted earlier, C. P. takes the logic to its conclusion: “Secession is near. Can’t wait. Which by the way is Constitutional.” It’s constitutional, in this view, because a government in the act of eroding constitutional values is itself unconstitutional and has become a tyranny. Therefore to oppose it by whatever means available, including force, is not to undermine constitutionality, but to affirm it. It is in this spirit that John Wilkes Booth cried “Sic semper tyrannis” (“thus always to tyrants”) just after he shot Abraham Lincoln. Lincoln famously said, “A house divided against itself cannot stand.” Booth’s modern successors are saying that a house in the hands of tyrants does not deserve to stand and they are ready to bring it down with their constitutionally protected guns.

As Police Chief Johnson said, this is creepy and scary, but is it — to return to my original musings — un-American? Yes and no. On the one hand, nothing can be more American than throwing off the shackles of a government that has overstepped its bounds and disregarded the rights of its citizens. That’s how it all began. (“No taxation without representation.”) But on the other hand, the American tradition of accepting the results of elections — even when they bring with them policies you believe to be misguided at best and disastrous at worst — is in danger of being undermined when groups of armed people decide that the present leadership is infected by unpatriotic, socialist ideas and must be resisted at all costs.

A government founded in a revolutionary moment is always vulnerable to a determination by a zealous minority that its revolutionary ideals have been compromised by itself. When that happens, each side will engage in its favored rhetoric, one proclaiming, watch out, they’re coming for our guns, the other warning that militant right-wing nuts are preparing themselves for armed insurrection. One side will cry “tyranny”; the other will reply, “You guys are crazy.” And both will claim the title of true American. That’s where we are.