The Lost Amendment

"A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed."

That's the Second Amendment to the Constitution; and to be honest with you, the clause about a "well regulated militia" used to bother me. I wondered why the authors of the Bill of Rights would tie strings to such an important right. I thought the first clause might be some sort of political concession that I didn't understand. In LAWS OF THE JUNGLE, I wrote, "The Latinate construction of the Second Amendment is vague enough for gun controllers to argue about, but it is fairly clear what the Revolutionary War veterans understood by the right to bear arms. They had just defeated the world's greatest military power and as long as they remained armed, no government, British or American, could tyrannize them again. The right to bear arms, from their point of view, was the right to overthrow governments. The weapons of the twentieth century include jet fighters, automatic weapons, nerve gas and nuclear bombs. If the government has them, the people have a right to own them too. Anything less is tyranny."

Nevertheless, the conditional wording of the Second Amendment is troublesome. It isn't in line with the spirit of American democracy. The Declaration of Independence states that governments derive their "just powers from the consent of the governed." It follows that the government cannot rightly exercise a power unless the people can rightly exercise that power. Let's say that it's wrong for you to put me in jail for my religious beliefs or to kill me for my political writings. Then it follows that the state cannot derive these powers from you.

The First Amendment explicitly guarantees religious liberty and freedom of speech in recognition of this fact; but when we turn to the Second Amendment, we seem to find conditions. Perhaps it's wrong for me to own biological weapons. But if it is wrong, then the government cannot derive the just power to own biological weapons from me. The government cannot derive a right from me that I don't have. Let's say that I have a right to own an H-bomb. The government may have the right to own one too. But perhaps the people do not consent to surrendering this right to the state. Then the people may still rightly own H-bombs but the state may not. Under this theory of government, one possibility is forbidden. The state does not have the right to own a weapon that the individual does not have the right to own. If we are serious about our democracy, the only gun control debate should concern which weapons the citizens will permit the government to use.

No matter what I say, that "well-regulated militia" keeps coming into the argument. Worse yet, "militia" conjures up images of amateurism in an area where amateurs don't belong. I can't help but think of a band of stereotypically comic Southerners led by Barney Fife. Those who favor gun control always play up this militia idea. You'd think that the people, who are supposed to be sovereign, are the Barney Fifes and the state is Sheriff Andy. Remember how he'd only let Barney have one bullet and how he had to keep it in his pocket so he wouldn't hurt anyone? That's the modern vision of the citizens' right to keep and bear arms: A benevolent government paternalistically stops a bunch of laughable boobs from shooting anyone.

When you read the Bill of Rights you have to notice something strange. The First Amendment guarantees the freedoms of religion, the press, free speech, and assembly. The Second Amendment deals with only one right. Obviously, that right must be fairly important. You also have to notice that the Second Amendment is in the second position. That also indicates that it must have great significance. Why didn't the writers just slip it in between bills of attainders and quartering soldiers in homes during peace-time? I think the answer to this question lies in the concept of "militia."

I define government as those people who hold the generally accepted monopoly on the use of force in some geographical area. At the beginning of this country, the actual instruments of violence consisted of federal armed forces and militias. There were no policemen. The militia was the only tool of the state that most Americans ever saw. There were a couple of important rebellions in the eighteenth century that were put down by federal troops, but, with these exceptions, a citizen militia or some sort of posse was the only instrument of governmental power. The users of government force were the citizens themselves, and, in theory, these citizens could serve as a brake on an overly ambitious government. Perhaps the Second Amendment is far more radical than I had imagined.

The decisions of politicians are now enforced by police and a host of professional agents, many of whom are armed. In theory, these people work for the citizens. In practice, they work directly for the politicians and only indirectly for us. If we merely wish to maintain democracy, the reinstatement of something like a citizens' militia would be desirable. Unfortunately, there are a number of problems. The first one is time. The veterans of the Revolutionary War had a lot more free time than we do today. The second one involves the nature of the population. In post-Revolutionary times, America was much more homogeneous racially, religiously, and philosophically than it is today. An actual citizens' militia seems out of the question. However, there are certainly ways to break up the sovereignty of the state without actually forming paramilitary groups.

I've heard many people argue for a voucher system in education. Every child would be given credit toward his education, public or private. The schools would then compete for these educational vouchers. In this way education would be subject to the pressures of the marketplace. If this seems like a good idea to you, you might consider a voucher system for the police. Every citizen would be given a voucher with which to buy polices services. I can see how some people might think that this idea is only a scheme to get rid of government, but what are they to make of the Second Amendment? It declares that a well-regulated militia (implicitly non-governmental) is necessary for the security of a free state.

We don't have such a militia now.

We have nothing but professional agents who owe their allegiance to government officials. The Declaration of Independence complains that George III "has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance." Similar complaints could be made about our present government. Until the average citizen regains some control over the instruments of government force, we can't even call America a democracy, at least not in the original sense.

I won't even try to list the arguments against such a system. You've heard the people who defend the postal monopoly and the ones who attack the school voucher idea. Add dire warnings of criminal police forces running amok and you have an idea of the opposition to a police voucher system. I've covered a few of these objections before: "Under the government, you have no freedom of choice, but curiously enough, you still have complexity. American police forces are decentralized and their jurisdictions are overlapping. As a citizen, you may be protected by (or subject to) local, county, state, and federal law enforcers. Furthermore, you can be imprisoned by thousands of other agents who enforce only certain laws like drug or tax regulations. You have the confusion in law enforcement now; all you lack is the freedom of choice."

Doesn't it make sense to get rid of all these gun-toting agents just from a utilitarian point of view? Why not have only one job position that requires the use of actual violence? They could enforce local, state, and federal laws; these people would be a last resort when other means of law enforcement fail; but it would be dangerous to grant them a monopoly. I don't want to paint a detailed picture of a particular police voucher system. There are any number of ways it could work and I'll let you figure out the best way. You can certainly come up with details that I can't imagine.

I can think of four major problems with government law enforcement off the top of my head: excessive crime, police brutality, police corruption, and police racism. The causes of crime are not clearly known and if they were, they are too complex for simple solutions. A free market in police forces might ultimately develop some useful tools in combating crime, but I can't give any glib assurances that this will happen. It is interesting to note that there are more free market guards than policemen. When you throw in the cost of locks, burglar alarms, and all the other security devices, the free market probably spends at least ten times more money on protection than the government.

Police subject to voucher pressure would obviously give people a check on racism and corruption. In today's big cities, free market police forces might be split up along racial and economic lines. The government now throws blacks and Hispanics a bone by demanding preferential hiring of these minorities. Why should they care about the race of their policemen? Police officers are more interested in pleasing their direct superiors than in pleasing members of their race. Racial minorities and poorer people could achieve real power by controlling their police forces with vouchers.

Police brutality is another complicated issue. Since minorities are disproportionately the victims of crime, they might not be so offended by police brutality if the police were under their direct control. A voucher system for the police could evolve in strange ways. Perhaps, it could decrease the need for lawyers or bring some sanity to the war on drugs; I leave the possibilities to your imagination. My point is that it would restore some of the power granted to the people in the Second Amendment. There are probably other means for achieving this end and I hope to read some of them. But for now, a police voucher system could be a tool in restoring democracy.

We live in an age where consumers are becoming increasingly demanding. They want a smaller and more efficient government. But as long as government maintains its monopolistic practices, they are not likely to see much improvement. The consumers of government are going to have to give up something to achieve what they want. They are going to have to give up their mental dictatorship over their neighbors in order to receive the benefits of the marketplace.

I honestly believe that the time is coming when the people will begin to understand this principle. I believe this because I think that people prefer material well-being and safety to the intangible benefits of believing they are in control of everything when they are actually powerless pawns in a political chess game.