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Ferguson and the Second Amendment

Today, a surprising coalition is emerging in Ferguson to breathe new life into the Second Amendment, uniting Oathkeepers and Black Lives Matter activists.

The contemporary gun rights debate misses the point of the Second Amendment. A crucial piece of our constitutional design, it is neither the relic dismissed by liberals nor the panacea praised by conservatives. Understood correctly, the Second Amendment is most threatened not by gun control, but rather by the militarization of domestic police.

The discrimination pervading the Second Amendment’s recognition, and how militarized police threaten its promise, appear evident in Ferguson, where a politically and demographically diverse coalition is emerging to defend it.

Sidestepping partisan battle-lines in an ideological debate, this analysis exposes how liberals and libertarians alike can find common ground on Second Amendment principles. It also exposes constitutional arguments supporting the Black Lives Matter movement that few observers have recognized. All US citizens share an interest in restoring the Second Amendment’s limits on the militarization of the police.

Missing the Point of the Second Amendment

Gun-control advocates responding to urban violence, mass shootings at schools and theaters, and fatal household accidents routinely lock horns with gun rights advocates committed to the role of an armed populace in securing liberty.

Both sides usually ignore the other’s arguments. Urban gun-control advocates are motivated by safety and liberty concerns, while noting that many shooting deaths are household accidents involving children. To them, the Second Amendment sounds like a death pact – precisely what conservatives say the Constitution does not require when discussing civil liberties in the context of national security.

Meanwhile, rural gun rights activists, relatively immune from urban violence, fixate on the historical importance of local militias in our country’s revolution from tyrannical colonial government. To them, a populace with no means of resisting the state’s monopoly on the use of armed force essentially invites authoritarianism.

Neither side, however, critically examines how the relationship between weapons and liberty has changed over time, as technology and institutions have evolved. Put simply: the right to bear arms no longer secures liberty, because paramilitarized police preclude effective resistance even by an armed populace.

How to Interpret the Constitution: Scalia vs. Breyer

Constitutional law inspires raging controversies over every social debate: the role of the state in securing freedom versus inhibiting it; the role of the states vis-à-vis each other and the central government; and the balance between individual freedom and collective security.

Beyond these substantive controversies are parallel debates about method that transcend specific issues: whether the Constitution should be strictly interpreted according to its text, for instance, or whether instead it elucidates a set of principles that apply to changing social circumstances differently over time.

This debate, between strict textual constructionism and a purpose-driven inquiry, is personified in a recurring tension between Justices Antonin Scalia and Stephen Breyer.

Justice Scalia is known for at least claiming to strictly follow the text of the Constitution. Whether he follows his own jurisprudential rhetoric is a subject for another time.

Justice Breyer wrote a book explaining why constitutional purpose – distinct from text – matters so much. The gist is straightforward: the founders of the United States, acting on limited information, attempted to secure certain principles that would bind their successors, but could not envision how the future would enable novel assaults on those principles.

For example, the Bill of Rights represents their attempt to enshrine specific freedoms by binding them (constitutionally) into the fabric of the country, immune from incursion by subsequent Congresses and presidents, with the courts as our guardians.

But they couldn’t anticipate the future, which is one reason why we need courts. When specifically protecting “persons, places, and things” from unreasonable government searches and seizures, could the founders have imagined that one day the government could peer into everyone’s communications and predict our very thoughts better than we can ourselves?

Examining the purpose of the Second Amendment, beyond its text, illuminates that its principles face a threat greater than any gun control regulation, one increasingly embedded in the fabric of our contemporary society.

A Constitutional Right to Resistance

According to NYU law professor Burt Neuborne, the several rights protected by the First Amendment together reflect a theory of democratic participation. Rights to belief, speech, assembly, the press, and access to government redress protect a set of escalating opportunities to engage in the political process.

Before reaching the Fourth Amendment’s protections against government searches and seizures, most contemporary observers overlook the Third Amendment’s freedom from housing and feeding soldiers. But only through the lens of the Third Amendment does the Second Amendment’s purpose appear clear.

Rights to bear arms reach beyond hunting, recreation, or the pursuit of happiness. In the context of rights to political participation (the First Amendment), and freedom from unwarranted government scrutiny (the Fourth Amendment), and the historically real burden of housing & feeding government soldiers (the Third Amendment), the Second Amendment guarantees nothing less than a right to resistance against the state.

Two-hundred and fifty years before Neuborne helped reveal Madison’s Music, Thomas Jefferson envisioned our Republic reconstituting itself every generation through a revolution, enabled by the right to bear arms:

God forbid we should ever be 20 years without such a rebellion….What country ever existed a century and a half without a rebellion? And what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms….The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.

From Jefferson’s standpoint, the Second Amendment is a constitutional escape hatch, a freedom through which the citizenry can reject the potential tyranny of the federal government even if the political process fails.

Libertarians and conservatives who support the Second Amendment often seize on the vulnerability of an unarmed populace to outright authoritarianism. Inspired by Jefferson, they – and even socialists wielding competing views on economic issues – often suggest that access to weapons ensures liberty.

Support for this traditional, narrow view of the Second Amendment relies on the presumption that weapons provide an opportunity to mount resistance. But while an armed populace in the 18th century could resist a federal government run amok, an armed populace in the 21st century can not.

Even with advanced military training and sophisticated weapons, military veterans are routinely killed by law enforcement officials, often while executing search warrants for drug contraband. And even when police militarization was just beginning, federal officials demonstrated the futility of any organized attempt at armed resistance during the FBI’s 1993 siege of the Branch Davidians in Waco, Texas.

The right to bear arms, against the inexorable force of over a million paramilitary law enforcement officers across the United States, is a chimera.

Put simply: militarized police prevent arms from serving their constitutional purpose. They render the text of the Second amendment – a right to bear arms – inadequate to meet its purpose: ensuring a right to resistance.

We the People vs. the Military-Industrial Complex

Militarized police also offend Second Amendment principles indirectly.

President Eisenhower warned us, in no uncertain terms, that our military would grow to strangle democracy in the US. His last speech as president was a dramatic warning about an emerging (and now fully entrenched) collusion between the Pentagon, industry and a Congress beholden to corporations.

Eisenhower recognized the need for a standing military during and after World War II. He also, however, recognized the dangers that one presents.

First, the military industrial complex siphons resources otherwise needed to address domestic social needs. As the world’s largest military spender, we spend more on weapons and military personnel than the next 13 countries combined. Meanwhile, millions of American children sleep in the streets for lack of housing.

Our military also targets Americans, whether for mass warrantless surveillance supposedly justified by wars abroad, “signature” drone strikes that leave Americans dead; or humanitarian aid workers and journalists (like Daniel Pearl or Kayla Mueller) who bear the brunt of predictable international opprobrium for military and CIA human rights violations.

Local police wielding military training, equipment and tactics represent the zenith of the military industrial complex, the realization of a nightmare envisioned by the president and war hero who oversaw its creation.

In other words, our military industrial complex is both the source of police militarization, and also the emergent threat to liberty against which the framers of the Constitution attempted to ensure the right to resistance that they now foreclose.

Why We Can’t Have Nice Things, Like Our Rights: The CIA

The historical origin of police millitarization reveals a further corruption. Police in the US were not widely militarized until the 1990s, particularly after police, first in Miami and Los Angeles, found themselves outgunned by better equipped narcotraffickers.

At the time, however, the full history remained secret.

Gary Webb was a trailblazing San Jose Mercury News journalist who first revealed the CIA’s complicity in drug trafficking. After being smeared, blacklisted, repudiated by his own publishers, and then dying under mysterious circumstances, Webb was ultimately vindicated when the CIA admitted that Webb’s findings were substantially accurate.

Webb’s findings suggest that not only are militarized police the primary threat to Second Amendment principles, and the most visible part of the military industrial complex against which President Eisenhower presciently warned us, but also that their historical origin lies in a corrupt CIA scheme to flood the US with illegal drugs.

Has anyone at the CIA faced any penalty for undermining the constitutional rights of hundreds of millions of Americans?

While communities battle a culture of impunity for police murders around the country, how many are pinning the tail on the historical donkey, demanding accountability from intelligence agencies?

The Second Amendment in Ferguson

Whether viewed as a narrow right to guns, or a broader right to resistance, the Second Amendment’s application has reflected racial injustice.

When Black Panthers armed themselves in the 1970s and promoted resistance against government tyranny, our government responded by assassinating leaders in their homes. Today, Black communities confront vicious and violent oppression by authorities even when unarmed.

In sharp contrast, when libertarian Oathkeepers appeared in Ferguson, armed while promoting resistance against government tyranny, their presence helped de-escalate potential conflict. Despite prevailing confusion as to their intentions, their own words are revealing:

Oath Keepers is a non-partisan association of current and formerly serving military, police, and first responders, who pledge to fulfill the oath all military and police take to “defend the Constitution against all enemies, foreign and domestic.”…Oath Keepers declare that they will not obey unconstitutional orders, such as orders to disarm the American people, to conduct warrantless searches, or to detain Americans as “enemy combatants”….

As a group noticeably comprised mostly of whites, the Oathkeepers have been allowed unusual latitude to exercise their right to bear arms.

Their recent appearance in Ferguson may breathe new life into debates about Second Amendment rights.

Local authorities have described the presence of Oathkeepers in Ferguson as “both unnecessary and inflammatory.” Meanwhile, Ferguson residents are wondering whether the protection of armed white civilians will actually make law enforcement more careful before choosing to escalate conflict. And while some Oathkeepers have been true to their rhetoric in offering their support to Black communities, splits have also emerged within the group over this issue.

Policymakers and courts might never accept the gun rights of Black communities. And a proper conception of the Second Amendment, one that recognizes armed occupation by domestic paramilitaries as constitutionally offensive, could continue to elude jurists.

But whatever our institutions choose to do, everyday Americans on the ground in Ferguson have already shifted the landscape. Having prompted a long overdue national debate about police militarization, the Black Lives Matter movement is now provoking crucial, nuanced constitutional debates.

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