The Real Threat to Second Amendment Values Isn't the Assault Weapon Ban:
It's Rumsfeld's Standing Army

By MICHAEL C. DORF
Wednesday, May. 14, 2003

Last week, it was announced that President Bush would support extending the federal ban on semi-automatic assault weapons.

Conservative activist and National Rifle Association board member Grover Norquist was flummoxed. According to a front page New York Times story, Norquist remarked: "This is a president who has been so good on the Second Amendment that it's just unbelievable to gun owners that he would really sign the ban."

Norquist apparently shares the NRA's longstanding but controversial view that the Second Amendment protects the right of individuals to possess nearly all manner of firearms for personal use. And those who, like Norquist, take inspiration from the Second Amendment are right to be concerned about the policies of the Bush Administration. However, they misdirect their ire at the assault weapons ban.

The real danger comes from Defense Secretary Rumsfeld's efforts to build a military that is largely disconnected from the ordinary citizenry. For whether or not the Second Amendment protects an individual's right to possess firearms, there is little doubt that its main original purpose was to counter the rise of just such a "standing army"--armed forces that would operate largely on their own, independent of the American public's will.

The Assault Weapons Ban and the Second Amendment

Historians and legal scholars disagree about the meaning and scope of the Second Amendment, which provides: "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."

In a prior column, I discussed the two main, contrasting views of the Amendment at length. But briefly, the views can be summarized this way:

According to the "collective right" view, the Amendment protects "the people," in their collective capacity, by forbidding the federal government from disarming state militias. Under this view, there is no right to firearm possession outside the context of "a well regulated Militia."

By contrast, the "individual right" view holds that "the people" as individuals have a right to possess private firearms. To be sure, they might use their firearms for the public good if called up for service in the militia, but when they are not on active duty, they may use their weapons for self-defense and other private purposes.

Which position does the Supreme Court hold? Lawyers and lower court judges frequently cite the 1939 Supreme Court decision in United States v. Miller for the proposition that the Second Amendment only protects a collective right. But in recent years, individual Justices have suggested a receptivity to the individual right position, which Attorney General Ashcroft has promoted and the Fifth Circuit Court of Appeals has accepted.

Regardless of how this debate is resolved, however, the assault weapons ban does not appear to be vulnerable to a Second Amendment challenge. Clearly, the collective right view would reject such a challenge. But even under the individual right view as advanced by Ashcroft and the Fifth Circuit, the individual right to private possession of firearms is subject to reasonable restrictions on especially dangerous weapons. The banned assault guns are especially dangerous because they can be readily converted to automatic weapons that fire rapidly and indiscriminately.

Furthermore, even if one thinks that semi-automatic assault guns are not especially dangerous, and that therefore the ban violates the individual right view of the Second Amendment, it is difficult to see that much is at stake. The ban as enacted by Congress is riddled with loopholes that have made it largely ineffective.

The Framers' Worry About Standing Armies: A Second Amendment Consensus

Bush Administration policy--in particular, defense policy--nonetheless implicates Second Amendment values. Individualists and collectivists disagree over whether the Second Amendment grants individuals a right to firearm possession. However, both groups accept that one of its main original purposes was to limit the power of standing armies.

A "standing" army, as the term suggests, consists of full-time soldiers--whether volunteers, conscripts or foreign mercenaries. Late eighteenth century Americans feared standing armies because they thought such bodies corrosive of republican government. A ruler backed by a standing army, they feared, could act tyrannically, as his power would not depend on the consent of the governed.

Militias drawn from the ordinary citizenry at a moment's notice--think of the Minutemen summoned by Paul Revere--were different. Unlike standing armies, militias did not owe their livelihood to the central government, and they typically fought at or near their homes. Militias, it was believed, would defend rather than oppress the people.

That, at any rate, was the mythology to which a great many influential eighteenth century Americans subscribed. And myth it was, for despite isolated successes such as the battles at Lexington and Concord, during the course of the Revolutionary War, the Continental Army--a standing army--won the major victories. Indeed, George Washington frequently complained that the militia members who occasionally came under his command were poorly trained and unreliable fighters.

The Revolutionary War taught, in other words, that a standing army is necessary to effective military action. Accordingly, when it came time to write the Constitution in 1787, in addition to empowering Congress "to provide for calling forth the militia," the framers also gave Congress the power "to raise and support armies" and "to provide and maintain a navy." These latter forces were to be--and have been--independent of state militias.

But if late eighteenth century Americans viewed a standing army as necessary to national defense, they also saw it as, at best, a necessary evil. Anti-Federalists and others who originally opposed ratification of the Constitution worried, among other things, that Congress would create a standing army that the President could use oppressively.

The Second Amendment partly addressed this concern by prohibiting Congressional abolition of the state militias. Continued existence of state militias would mean both that Congress would have less need to rely upon the standing army and that, should the standing army be used as an agent of domestic oppression, the people could resist militarily through their state militias.

Adapting the Second Amendment to Modern Times

Today, of course, the idea that an American President would attempt to use the military directly as a means of domestic oppression seems fantastical. Fortunately for all, President Bush does not threaten to use the Army's 101st Airborne Division to invade New York or California.

And if a President were to try to use military power in that way, it is also fantastical to suppose that the state militias--now organized as units of the National Guard, and subject to federal oversight--could provide effective military resistance.

Thus, the core scenario that worried the Second Amendment's framers--the threat of military action by a standing army against the people--no longer poses a realistic risk. Nevertheless, their broader concern about standing armies remains relevant today.

One relatively minor but nonetheless disturbing development is President Bush's penchant for donning military garb for photo opportunities against military backdrops. The Constitution makes the President Commander in Chief of the armed forces precisely because the President is a civilian. That line should not be blurred.

More substantively, it's worth looking at the implications for core Second Amendment values of both the USA PATRIOT Act and the Justice Department's proposed "Domestic Security Enhancement Act" (commonly called "Patriot Act II," it was leaked to the press earlier this year and analyzed in a Writ column by Anita Ramasastry). Both substantially increase the role of national security-related surveillance that may be undertaken within the United States without being subject to ordinary criminal procedure safeguards.

There are signs that Congress is at least somewhat alert to these dangers. Last week, even as the Senate voted overwhelmingly to authorize greater surveillance of foreign terrorism suspects who have not been linked to known terrorist groups, the same body tabled a plan to make permanent those provisions of the Patriot Act that are set to expire in 2005.

The Impact of Rumsfeld's Military Strategy on Second Amendment Values

Perhaps the greatest threat to Second Amendment values emerges out of Defense Secretary Rumsfeld's apparent recent victory in a debate over military strategy. During the roughly one-week period when U.S. and British forces were encountering stiffer-than-expected resistance from Iraqi forces loyal to Saddam Hussein, questions were raised about whether the U.S. had committed sufficient troops to ensure victory.

Those questions came from current and former military officers--mostly in the Army--who took issue with Secretary Rumsfeld's vision of the twenty-first century military. Traditionalists believe that conquering a foreign country requires overwhelming force. In contrast, Rumsfeld advocates smaller, lighter and faster troop deployments with a relatively high proportion of special forces.

Rumsfeld seems to have won this argument decisively. Despite public assertions that Tommy Franks and other army brass had devised the battle plan for Iraq, numerous press accounts from named and unnamed sources have disclosed that Rumsfeld essentially imposed his approach on a skeptical military. And many observers have commented that the course of the war in Iraq vindicated Rumsfeld's lean and mean vision.

If so, then America's ability to utilize military force around the world would appear to have been enhanced. Relative to traditional heavy battalions, smaller lighter forces take less time to mobilize and deploy. Furthermore, they incur fewer casualties. And, when backed by high-tech precise weaponry, they inflict relatively few civilian casualties. All of these factors make the use of military force less difficult than in the recent past.

Certainly there are circumstances in which the ability to use or credibly threaten to use military power will aid the United States in its pursuit of strategic aims. For example, does anybody doubt that Syrian leader Bashar Assad's new willingness to (at least appear to) shut down terrorist organizations, as a concession to "good cop" Colin Powell, was motivated by fear of action from "bad cop" Donald Rumsfeld sitting next door in Iraq?

Yet, viewed from another perspective, Rumsfeld's victory in the debate over military strategy poses serious dangers for American democracy. The danger is not that troops will be deployed in our cities. Rather, it is that American military power, untethered from the views of the mass of the American people, will be used recklessly. That danger is not unrelated to the evils at which the Second Amendment aims.

The Foreign Policy Implications of the Second Amendment

The American framers' wariness of a federal standing army was rooted primarily in the fear that such a body would oppress them directly. However, they also had reason to think that a federal standing army would have a harmful influence on foreign policy.

After all, the people who wrote and ratified the Second Amendment saw it as of a piece with other provisions of the Constitution and the Bill of Rights, both of which were much influenced by the prior two centuries of English history. English experience in turn taught of the dangers of standing armies' acting externally.

Consider, in this context, the 1628 Petition of Right to Charles I. The Petition was motivated in no small part by opposition to Charles' military adventures in Europe, greatly assisted by his ability to rely upon a standing army independent of parliamentary supervision. The founding generation of Americans studied and admired the Petition of Right: It contained both the principle of no taxation without representation and a model for what would become the American Constitution's Third Amendment. No doubt, when eighteenth century Americans warned of the danger of standing armies they were thinking in part about Charles I.

Indeed, many of the Anti-Federalists, who insisted on a Bill of Rights as a condition of ratification of the Constitution, tended to favor isolationist foreign policy to protect the new and virtuous nation from the incessant conflict in Europe. (I say "tended" because many Anti-Federalists favored intervention on the side of France in the wars that followed the French Revolution.)

Most Anti-Federalists conceded that a standing army was necessary to protect the United States from foreign aggression. Yet they saw that, if it became too powerful and independent, it might entangle the nation in enervating foreign disputes.

Moreover, that fear was hardly confined to Anti-Federalists. For example, in his Farewell Address, George Washington cautioned the nation to avoid entangling alliances that would lead to involvement in foreign wars. Washington thought that "overgrown military establishments" were to be "regarded as particularly hostile to republican liberty."

To the extent that Secretary Rumsfeld plans a smaller military, it might be thought that his vision is consistent with Washington's. But that line of analysis misses two basic points.

First, Rumsfeld does not plan to shrink the size of the military as a budgetary matter; he hopes merely to reduce the number of troops needed to carry out various missions, even while pouring resources into spending on equipment. The result will inevitably be to strengthen the baleful influence on our domestic politics of what another ex-General who became President, Dwight Eisenhower, called the "military industrial complex"--that is, the symbiosis between the military, defense contractors and the lawmakers who receive campaign contributions from, and allocate money that ends up going to, those contractors.

Second, Washington warned that an "overgrown military," one that is more powerful than necessary for national defense, would find a use for itself, often to the detriment of the national interest. That fear fully applies to the lightning forces that Rumsfeld envisions.

Ironically, the very effectiveness of the military that Secretary Rumsfeld would employ is what creates, or rather enhances, the danger of the United States' fighting a series of wars that succeed in their immediate military objectives, but ultimately divert attention from needed diplomatic and other political needs.

Recent history provides several stark examples of U.S. military know-how and weaponry being applied in ways that have come back to haunt us. The U.S. backed the mujahedin who fought Soviet forces in Afghanistan only to find that when the Soviets left, many of the fighters we had trained turned their weapons against us. Similarly, the U.S. backed Saddam Hussein's regime when it fought against Iran, only to find that once that war ended, Saddam turned his forces loose on U.S. ally Kuwait.

Nor are such boomerangs confined to the recipients of U.S. aid. U.S. military action in Afghanistan and Iraq successfully dislodged the Taliban and Saddam Hussein respectively, but in neither country have we yet succeeded in establishing an effective civilian government, and many critics note that the Bush Administration has not committed the resources to do the job. Further, critics have argued that these military adventures cause serious political harm, radicalizing opinion against the U.S. in the Middle East and elsewhere.

The point is not that military action is never justified. The point is simply that with a very effective military at their disposal, American leaders are tempted to view the world as a series of military challenges they can readily surmount, rather than as the set of much more thorny political challenges it really presents.

With Checks Against War Powers Eroded, A Standing Army's Dangers Increase

The antidotes to excessive reliance on military force consist of democratic checks on military power. Yet those safeguards no longer function very well.

The Constitution gave Congress the power to declare war so that we would not enter wars except after full democratic deliberation. However, with no formal declaration of war having been issued since World War II, that check has been eroded.

Conscription into a citizen army formerly played a checking function as well; people who did not want to sacrifice their own lives or the lives of their loved ones in wars they considered unjust or unnecessary would exert political pressure to prevent or stop such wars. But after something like that in fact happened during the Vietnam War, the draft was abolished in 1973. The people who volunteer for the armed forces today are, on average, more willing to support whatever military goals the President sets than the conscripts of earlier generations were.

Still, even an all-volunteer service will lead to considerable political pressure when substantial numbers of casualties occur. But the shift to lighter forces that inflict and incur relatively few casualties--while clearly a blessing if war does occur--reduces the political pressure to avoid wars in the first place. In that respect, Rumsfeld's strategic transition simply continues the trend of insulating military policy from civilian political control.

None of this, of course, is to say that we should stick with a military policy of overwhelming force if the evidence shows that our forces are most effective when they are lean and mean. Military effectiveness should be the litmus test of a military strategy.

But just as the framers concluded that a standing army was a necessary evil, so we should be aware of the dangers posed by the modern equivalent of a standing army. Even if the President who has been "so good on the Second Amendment" doesn't take that danger seriously, we the people ought to.


Michael C. Dorf is Professor of Law at Columbia University.

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