The Shell of a Right that is the Second Amendment

Article by Rob

Technological progress has reduced the Second Amendment to a ceremonial decree. While it affords Americans a right to some arms in practice, they remain neutralized when considering the intent of the amendment—to thwart tyranny. The balance of force has been completely tipped towards the state and large organizations due to the ever-expanding demands of technological progress. Despite this, the United States is considered the palladium for gun rights. Yet a glance at any private arsenal reveals the stark inadequacy of civilian weaponry compared to the state. Even if civilian organizations (the militia) were somehow allowed the state-of-the-art in offensive and defensive gadgets, they would remain unmatched. Standing armies exist solely to refine and apply force—be it kinetic, psychological, or otherwise. Modern governments, with their vast armies, surveillance networks, drones, rapid transportation and communication, propaganda systems, advanced logistics, and sophisticated weaponry, can obliterate dissent before it even arises. Freedom, autonomy, and dignity have been left open to unchecked attack because the right "to bear arms" only remains a paper promise with no bearing on utility. The technological system has forced Americans to engage in a series of compromises that have left them unable to “check” the tyrannical power of the technological system that erodes their freedom.

The Original Meaning

General Gage marched into Boston in 1775 and implored the inhabitants to surrender their arms so that they may leave peacefully. The city leaders complied and many surrendered their arms only to be arrested anyway, revealing the bad faith behind the disarmament.[1] This disarmament, one in a series of attempts, stood to be impactful because just about the only difference between a civilian fowling piece and the corresponding weapon of war (the musket) was a bayonet attachment.[2] French assistance notwithstanding, American rebels were more or less equipped with the same arms as the British forces,[3] though they lacked corresponding organization and experience. The Second Amendment, asserting the right to keep and bear arms, does not specify the types of arms and can reasonably be understood as any and all arms, definitely anything a military might have.

The Founding Fathers sought to maintain a trained and well-armed populace to ensure their ability to serve as an effective check on tyranny. The Second Amendment was put in place to attempt to piece together a somewhat contradictory separation of powers between the federal government and the people. The Anti-Federalists were anxious about the power vested to the federal government in the Constitution and thought it would lead to inevitable infringements of the people’s rights. What emerged as the Second Amendment was meant to serve as a deterrent of such abuses. That the core purpose of the amendment is “tyranny prevention” has been borne out by the Supreme Court[4] and scholars studying the Amendment.[5] But, we only need to consider what the Founding Fathers themselves thought of the matter,[6] [7] [8] especially when the situation between the British and the colonists began to heat up:

The arms we have compelled by our enemies to assume, we will, in defiance of every hazard, with unabating firmness and perseverance employ for the preservation of our liberties; being with one mind resolved to die freemen rather than to live as slaves.[9]

The rebels had at their disposal the latest in military tools: pistols, muskets, rifles, cannons,[10] and even warships.[11] Steeped in this arsenal, how are we to believe that the Founding Fathers—who rejected the idea of keeping peacetime standing armies[12] [13] [14] [15]—would leave the people with a limited set of arms inferior to what the federal government could procure? They could not foresee the developments in weapons technology, but they understood that at least a parity of force between the people and the government was at all times necessary lest the people be bullied into submission.

That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.[16]

Notice that the term "well-regulated" should not be understood as "under the regulation" of the government. As stated by the Supreme Court, "the adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training." In the context of the Second Amendment, this discipline and training is something to be instilled in the "militia", i.e. the young male civilian population, not the National Guard.[17] [18]

Asymmetry of Force

Even if the right to bear arms were fully honored today, it would offer very little hope. The organizational asymmetry between civilians and the modern state is made increasingly insurmountable not by any malicious intent, but by the cold, hard, material facts of technological progress.

Standing Armies are an inevitability in technological society. Never mind the United States and the particular ways it has betrayed its founding ideals as technical necessity constantly reared its head—the whole world must play by these rules. The same worries that the Framers had with regard to the people and their government play out in a grand scale between nations themselves. It should suffice to say that any nation without a military presence is not acting freely or autonomously. Those words that Americans grip tightly as they do their pistols which once seemed like a practical safeguard in the 18th century, have become, in the industrial age, mere (tragic) poetry.

Modern American police forces have become de facto standing armies. This is not by accident. It's born out of technical necessity. In a densely populated, hyper-connected, and technologically advanced society, even small disruptions can potentially lead to systemic breakdowns. The system is far more advanced now, but also far more insecure. As complexity grows, and modern society grows more interconnected and interdependent, the acceptable margin for disruption necessarily narrows. An armed individual with access to modern military equipment poses systemic risks far greater than in previous centuries. Regulation is therefore not optional; it's a structural necessity. Since the stakes of disruption are too high, the system requires a domestic force capable of rapid, organized, and overwhelming response. For example, as tools used by criminals and gangs become more advanced—from digital sabotage to automatic weapons and bulletproof vests—police are pressured to keep pace.

Even setting security aside: military efficiency is system efficiency. A militarized police force is more capable under present technological conditions, and thus more efficient. Natural selection thus presupposes it, and any talk of withholding military capacity from police is easily and obviously countered with the loss of safety and security of the system at large—which most people have been gradually conditioned to believe unreasonable. Innovations in system-wide policing and control are evaluated on their clear and measurable benefits such as the reduction of response times or overall crime, while the loss of freedom they cause is abstract and easily papered over with quixotic statistics and propaganda—leaving the offended sounding paranoid and unreasonably nostalgic. The notion that civilians could ever form an effective counterforce under these conditions becomes delusional, not because of any legal mandates but because the system has evolved past the point where traditional armed opposition can have a dent, let alone form.

Under the National Firearms Act of 1934 a blanket restriction of arms went into effect across the United States. The law requires registration and payment for a tax stamp for certain arms such as short-barreled rifles/shotguns as well as anything deemed a "destructive device" which includes grenades and artillery.[19] Additionally, there are outright bans on automatic weapons manufactured after 1986 and armor-piercing rounds fired from handguns. This does not even get into the individual restrictions placed on the people by their own State. Add on that the lack of: tanks, attack helicopters, jets, jamming equipment, military drones/satellites, superior night vision, etc. Taken together, the average American can't even hold up a shield to the local police force.[20] How are they to "check" those in power? These restrictions were not imposed in a vacuum, nor purely the result of power-hungry officials or misguided ideologues. They were democratically sanctioned by most of the public who saw them as entirely reasonable compromises to the problems imposed by maintaining domestic peace and security in a modern context, where advanced firepower, if unregulated, would pose unacceptable systemic risks. In that sense, the laws are not only inevitable, but rational—within the technological system's own logic.

If we merely focus on the types of arms that have been banned or placed behind bureaucratic red tape, we'll miss the decisive factors of control in American, or any, modern society. The tools of rapid communication and long-distance transportation go further than any other implement in exerting control over the population. Violence, even the organized kind seen in war, is a last resort for governments. More conveniently, modern governments, and the vast and powerful organizations they serve, opt for surveillance and techniques of behavioral control that make rebellion logistically and psychologically far more difficult than it once was in the 18th century. For example, "fusion centers"[21] coordinate intelligence sharing between law enforcement agencies to preemptively monitor dissent. License plate readers, facial recognition cameras, and predictive policing cameras allow the system to track and intervene on dissident efforts before they become true threats. More insidiously, propaganda through mass media and algorithmic manipulation shape public opinion, confuse and pacify the public, and redirect frustration into performative outrage. Even financial institutions, acting under government or social pressure, can easily freeze or terminate accounts, cutting dissidents off from economic resources. Americans' Second Amendment assurances have left them merely wielding the proverbial knife in the "gun fight" against tyranny.

Setting aside the preexisting tyranny of the technological system, there is a common argument that Americans being armed at all is, in itself, all the tyranny prevention they need. It certainly demands some respect from law enforcement. But, as long as society remains stable, there is no incentive for people to suddenly make demands for lost freedoms of the past. When the laws overstep and cause a popular uproar, the system retreats to lie in wait and try again when the time is right. There's no shortage of fighting-age American men grabbing all the arms the law will allow. But, at this point, it seems these tools can only serve to defend against non-state actors i.e. other civilians. This is an ugly prospect to be preparing for and a consequence of the techno-industrial ideal of “progress” we've let ourselves hold above all else.

None of the foregoing should be read as a concession of defeat. Some might find a contradiction here: if organized resistance is so futile, then why speak of resistance at all? The answer is in understanding the difference between a revolution against a government and a coordinated disruption of a system. The former is far more dependent on parity of arms and mass mobilization; the latter is not. An anti-technological revolutionary movement bypasses the problem of asymmetry entirely; it doesn't need to face standing armies or seize state power. It only needs to destabilize the industrial and logistical infrastructure that props them up. In such a context, a small number of determined actors can exert disproportionate pressure on a vast, brittle, and tightly coupled system (where a localized failure can trigger cascading breakdowns), even if it is vastly disproportionately armed.[1]  Nor should it be construed as a deprecation of the modest advantages that have been conferred by the Second Amendment to the U.S. Constitution: the abundance of civilian owned arms in the U.S. may prove a uniquely critical role in organized revolution against the industrial system. Instead, this piece should be a call to refocus. It's time to stop quibbling over private gun ownership, and consider the vastly greater threat of the technological system and its ongoing experiment as a whole. Look past the gun and at the gleaming sword pressed against you.

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NOTES:

[1] Richard Frothingham, History of the Siege of Boston, (1851), pp. 93–95

[2] Tom Grinslade, "Eighteenth Century American Fowlers—The First Guns Made In America," (American Society of Arms Collectors Bulletin 89, 2004) p. 2

[3] Jac Weller, "Revolutionary War Artillery in the South," (The Georgia Historical Quarterly Vol. 46, No. 3, 1962), pp. 250-273

[4] District of Columbia v. Heller, 554 U.S. 570, (2008)

[5] Skylar Petit, "Tyranny Prevention: A 'Core' Purpose of the Second Amendment," (The Southern Illinois University Law Journal Vol. 44 No. 3, 2020)

[6] "…if circumstances should at any time oblige the government to form 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 at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens." Alexander Hamilton, The Federalist No. 29, (1788)

[7] "As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms." Tench Coxe under the Pseudonym ‘A Pennsylvanian', "Remarks on the First Part of the Amendments to the Federal Constitution," (Philadelphia Federal Gazette, 1789)

[8] “When the resolution of enslaving America was formed in Great Britain, the British Parliament was advised to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia.” George Mason, "Elliot's Debates," Virginia’s Ratifying Convention Vol. 3, (1788) p. 380

[9] Thomas Jefferson & John Dickinson, "The Causes and Necessity of Taking Up Arms", (1775)

[10] Frothingham, Siege of Boston, (1841), passim

[11] John Frayler, "Privateers in the American Revolution", (2023), https://www.nps.gov/articles/privateers-in-the-american-revolution.htm

[12] “Overgrown military establishments are under any form of government inauspicious to liberty, and are to be regarded as particularly hostile to republican liberty.” George Washington, "Farewell Address", (1796)

[13] "I abominate and detest the idea of a government, where there is a standing army." Mason, "Elliot's Debates," (1788) p. 379

[14] "…to keep within the requisite limits a standing military force, always remembering that an armed and trained militia is the firmest bulwark of republics—that without standing armies their liberty can never be in danger, nor with large ones safe." James Madison, "First Inaugural Address," (1809)

[15] The English Bill of Rights of 1689 conferred certain rights and assurances to British Protestants. Among these were a rejection of keeping standing armies in times of peace and a precursor to the Second Amendment that stated protestants had a right to arms for their defense. These ideas did not materialize the moment the British began their disarmament attempts. The thread can probably be followed all the way to the Magna Carta and its 61st article, setting the terms between the Crown and the barons of the time.

[16] Virginia Constitution, Sec. 13, (1776)

[17] District of Columbia v. Heller, 554 U.S. 570, (2008) p. 597

[18] United States v. Miller, 307 U.S. 174, (1939) p. 179

[19] While the act does not constitute a ban on these arms, it does tend to act as a significant deterrent in acquiring these items in addition to being completely "on the books".

[20] What an American reasonably has at their disposal, without ties to a formal military body, has largely been tailored for small engagements. The focus of the Second Amendment has been "broadened" to include personal self-defense, especially with the ruling of the 2008 case, District of Columbia v. Heller. In actuality, what this landmark case has done, in effect, is shift the focus. Outside of the United States v. Miller case of 1939, the Second Amendment was never really the subject of intense scrutiny for the Supreme Court. What came out of Heller may seem to have improved the prospects for Americans to check tyranny—leading to a surge in gun ownership and laws in granting civilians concealed/constitutional carry—but, personal self-defense is a sliver of what the Second Amendment was intended for, if that. The whole affair reeks of the "System's Neatest Trick"—appeasing dissent and placating anxieties with sops of superficial liberties to deflect and distract from and therefore preserve the deeper structure of control. When there was some pent up frustration related to "gun rights", Americans got thrown a morsel so that they could gain a mere sense of control and a shifted Overton window. Heller wasn't a victory...it was a palliative.

[21] Department of Homeland Security, "Fusion Centers", https://www.dhs.gov/fusion-centers (2022)

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