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The Ultimate Check


Many believe resistance by citizens with nothing but small arms against a tyrannical government in possession of high-tech helicopters, fighter planes, tanks, and nuclear weapons would be futile. Recent history suggests otherwise.


The following is excerpted from Rabkin, Jeremy, "Constitutional Firepower" The Journal of Criminal Law & Criminology, Northwestern, University, School of Law, Fall 1995, p. 245.

The arguments of earlier times may seem most remote in their insistence that private gun ownership is a necessary check on government opponents. Certainly, the "imagination recoils" at the thought of armed struggle by American citizens against their own government at the end of the twentieth century or decades into the next century. But even on this point, the wisdom of the past should not be dismissed too quickly. The truth is that Parliament triumphed in the English Civil War not with citizen militias but with a drilled "new model army" of professional soldiers. James II was not induced to abandon his throne by citizen militias but by a professional army under William of Orange. Even the American colonists could not have secured their decisive victory over the British at Yorktown without extensive assistance from the professional army and the sizable navy of France. Enthusiasm for armed citizens was not, even in the seventeenth and eighteenth centuries, based on the notion that such citizens could defeat professional armies on their own. The serious argument was always that armed citizens could raise the cost of tyrannical abuse--enough, at least, to give second thought to would-be tyrants.

Clearly, armed citizens continue to give pause to far better armed governments even in the age of nuclear weapons and intercontinental missiles. The most advanced and powerful arsenal in the worlds was insufficient to provide the United States government with confidence to keep its troops in the field against armed civilians in Somalia. Britain was forced to the negotiating table with terrorists in Northern Ireland and the government of Israel felt obliged to enter the negotiations with the terrorist P.L.O., not because these governments could not win an all out war against armed civilians but because they did not wish to continue paying the costs of containing their violence.

Is is unthinkable that these facts might have relevance to American circumstances? One hopes so. But as the deadly assault on the Branch Dividian compound in Waco, Texas illustrates, even American governments can be tragically reckless in resorting to force when the costs are not carefully calculated. Earlier generations would have taken it for granted that giving government officials more reason to take caution is not a bad thing. It is hard to prove that this reasoning has become entirely anachronistic.

The following comments are excepted from:

Bursor, Scott, Toward a Functional Framework for Interpreting the Second Amendment.
Is the view of an armed populace embodied in the Second Amendment still valid in a society with professional military and police forces? Is an armed populace still capable of performing the functions detailed above? Many have argued that it cannot and thus, that the private ownership of arms is an anachronism inapplicable to our current circumstances. These arguments rest on empirical assertions that are highly debatable to say the least.

Commentators often attack the vitality of the military and political functions of the militia concept with the argument that they can no longer be performed by a militia. Simply stated, the argument is that an armed citizenry cannot restrain a domestic tyrant or deter a foreign conqueror backed by a modern army. This empirical assertion is frequently made by lawyers, politicians, or other advocates who offer neither argument nor authority for the proposition. And while this assertion may be true in some limited number of circumstances, as a categorical assertion it is demonstrably false.

Consider some recent examples. The Vietnam War demonstrated that a modern military power can be resisted by guerilla fighters bearing only small arms. This lesson has not been forgotten. In 1992, the United States declined to intervene in the conflict in Bosnia-Hercegovina after an aide to General Colin Powell, then Chairman of the Joint Chiefs of Staff, advised the Senate Armed Services Committee that the widespread ownership of arms in the former Yugoslav republic made even limited intervention "perilous and deadly." The deterrent effect of an armed populace was emphasized by Canadian Major General Lewis Mackenzie, who led United Nations peace keeping troops in Sarajevo for five months. Despite the tremendous capabilities of the United States Armed Forces, he explained, the prevalence of arms ownership in the area caused him to believe that if American forces were to be sent to Bosnia, "Americans [would be] killed.... You can't isolate it, make it nice and sanitary."

The validity of these concerns has also been demonstrated in the current conflict in Chechnya where "[m]ore than 40,000 soldiers from the Russian army ... have quickly been humbled by a few thousand urban guerrillas who mostly live at home, wear jeans, use castoff weapons and have almost no coherent battle plans or organization." The Russian army's nuclear capability apparently has not translated into a tactical advantage in the streets of Chechnya.

In addition to these anecdotal examples, there is further evidence of the military practicality of an armed citizenry. The 1966 Arthur D. Little, Inc. Report ("the Little Report"), commissioned by the United States Department of the Army, concluded that in spite of recent technological developments in the modes of waging war, a modern war will almost certainly be a "shooting war" in which the basic individual weapon of combat will be the rifle. The Little Report does more than refute the notion that riflemen are militarily obsolete in the nuclear era. It offers an additional insight into the military value of armed citizens: they make better soldiers when they enter the service. They are significantly better marksmen than those who did not own arms prior to enlistment (even when marksmanship is measured after military training) and are more confident in their ability to perform effectively in combat. Furthermore, gun owners are more likely to enlist, to prefer combat outfits, and to become marksmanship instructors.


Nevertheless, the question of whether armed citizens can serve as an effective check on the state in our nuclear age is an important one. The belief that an armed citizenry would subdue aggressive rulers and keep them sensitive to the rights of the people was perhaps the most important motivation for the inclusion of the right to keep and bear arms in the Constitution. Thus, the continued vitality of an armed populace as a check on the modern state should have important implications on our interpretation of the Second Amendment. As I have noted above, there is little reason to dismiss the effectiveness of a modern militia. Much to the contrary, the Little Report and the conflicts in Vietnam, Bosnia, and Chechnya offer compelling evidence that armed citizens can restrain, deter, or repel a modern army.

Some, while acknowledging the effectiveness of an armed citizenry as a check on government, have questioned the prudence of such a scheme. Certainly, we ought not encourage or facilitate armed uprisings whenever a particular group feels shorted by the political process. Moreover, it is entirely legitimate for the government to punish insurrection. Can such punishment be consistent with a proper respect for the political function of the right to arms?

Of course it can. The Second Amendment does not guarantee immunity from punishment for insurrection; it merely guarantees the capacity for resistance. And that capacity, as a check on government, does not go unchecked itself. The Constitution explicitly affirms the validity of punishing insurrection, and the potential of punishment is a check on the armed populace. It strongly discourages armed resistance except in the cases of the most severe encroachments by the government. This idea is best expressed in the Declaration of Independence: "Prudence, indeed, will dictate that Governments long established should not be changed [or challenged] 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."

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