The crisis of gun violence in America has exposed big cracks in the country’s system of checks and balances, which may no longer be fit for purpose in the 21st century
“The AR-15 [rifle] is for the protection of our rights from anybody who might want to take our liberties away from us.” – BBC interview with an American 33-year-old who has been a gun owner since he was 18, following the mass killing of children at an elementary school in Texas
Whether or not the gun owner quoted above and his many fellow American advocates of gun rights know it, they are repeating, at least in the form of a slogan, the much more nuanced arguments of James Madison, their fourth president and one of the key constitutional framers who tied gun ownership to liberty and the very foundations of the American republic.
No doubt they would be more than happy to know that their almost totemic belief in their constitutionally protected right of gun ownership has such a distinguished political and historical pedigree. Another way to look at the problem is that it makes the gun violence crisis almost impossible to resolve within the existing political system of the country, because it is rooted in the very constitutional set-up and the intellectual edifice that has been built around it.
It’s the bread and butter of intellectuals, especially those steeped in politics, to track influential ideas or ideologies in their relations to the crises of modernity. Thus, Jean-Jacques Rousseau has been blamed for Robespierre’s reign of terror and other excesses of the French Revolution; Nietzsche and Wagner for Hitler and Nazism; Marx for Stalin’s famines and purges; Carl von Clausewitz for the industrial mass slaughters of World War I trench warfare; and the May Fourth Movement’s and Mao’s destruction of millennial Confucianism for the famine, purges and the Cultural Revolution of the 1950s and 1960s.
This has been the premise of Albert Camus’ classic L’Homme révolté, according to which every major European philosophical and literary movement had been used to justify mass murder and crimes against humanity in the last century. European liberals such as Camus, Hannah Arendt, Raymond Aron and those of their generation who weren’t Marxists usually pointed to American constitutional democracy as the best way out of the European horrors. Now, in the 21st century, maybe it’s time we add the US Constitution and its Bill of Rights to Camus’ list of terrorist ideologies.
American gun rights and the tyranny of the minority
One of the great achievements of modern liberal democracy, as opposed to ancient democracy such as that of Athens, is that it has resolved, both philosophically and institutionally, the problem of “the tyranny of the majority”; well, OK, at least until recently, as with the problematic rise of illiberal democracy and populism across the West.
That age-old problem had always given “democracy”, or what Aristotle calls “the rule of the many”, a bad name among the major Western thinkers up to the early modern era. A key text to the resolution of this problem has been the much celebrated Federalist Papers No. 10, by Madison, first published in 1787.
Given their diverse interests and passions, people living together will inevitably gravitate towards those who are like-minded, and form groups or parties which Madison calls “factions”. Factions are a great source of conflicts in any political community, but rooted in human nature, they cannot be avoided. And suppression of them defeats the very purpose of democracy based on republicanism, which is liberty.
A faction or grouping may represent a lot of people or only a few, that is, it can represent a majority or a minority within the body politic. But, whether of one or the other, they all try to impose their agendas against rival groups; hence social and political conflicts, even civil wars. Madison disposes of the problem of those involving a minority in two sentences: “If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution.”
In a well-run republic, he argues, regular voting by the majority will nullify the minority, however “sinister”. In other words, Madison doesn’t think “the tyranny of the minority” is a problem under US republicanism, at least not a serious one. He is so wrong to assume that, when it comes to the gun rights movement.
Madison will spend the second half of Paper No. 10 explaining how the federal arrangement with state government is best to address what he considers the real challenge of modern republican democracy, “the tyranny of the majority”. An entire political science literature has been built on this, but it really doesn’t concern us here.
Madison enumerates various types of faction – of both majority and minority – which he argues can all be addressed by federalism. Let’s name all of them in his text because it’s important in the following: exporters and importers; debtors and creditors; “the landed and the manufacturing classes”; and most generally, those who own properties and those who don’t.
Obviously, all these factional classes existed well before the US Constitution, one of whose main purposes, Madison argues, is to moderate and resolve their conflicts. But here, he suffers a serious and fundamental blind spot: What if there was a faction, whether of a minority or a majority, which was created, maintained and sanctioned by the very constitution whose ratification he was seeking and whose validity he was defending – more specifically, by the subsequent Bill of Rights that contained the constitutional amendments? That faction, I argue, is the gun “faction”.
Obviously, Americans had owned guns long before the Constitution and the revolution. But the Constitution – or rather the Bill of Rights that came a few years later with the Second Amendment on the right to bear arms – codifies the right of gun ownership and links it directly to the notion of liberty and its defence and preservation thereof. In other words, the gun faction is really a unique creation of the US Constitution and the Bill of Rights. Please note that I am not arguing Americans didn’t associate the need to fight for their freedom by resorting to violence before the revolution and the Constitution; that was rooted in the mythology of the revolution itself. I am claiming, though, that the constitutional codification of this association with gun ownership ended up profoundly shaping subsequent American history, culture and society, and not just its republican system of government.
This linkage of gun ownership with a citizen’s essential liberty is unique to the United States and makes it an outlier to other Western democracies, not to say the rest of the world. Just think of the German sociologist Max Weber’s famous claim that the state is the monopoly of all the legitimate or legal means of violence; well, not in the US!
From Federalist Paper No. 46 to the Second Amendment
Obviously, the Second Amendment and the Bill of Rights came after the Federalist Papers, but Madison had pre-emptively offered a defence of the amendment avant la lettre, in Federalist Paper No. 46, which was first published in 1788, the same year the Constitution was ratified.
“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.” This is the Second Amendment in the Bill of Rights, which with its key vocabulary, can be read as a one-sentence summary of Madison’s main arguments in No. 46.
Instead of examining the inherent conflicts between factions or political groupings as in Paper No. 10, here Madison considers the potential conflicts between state and federal governments, and how their rivalry is more apparent than real under the constitutional republicanism he recommends.
To prove his point, he considers the extreme example – which will reverberate to this day among right-wing extremists and their militias – of a tyrannical federal government: “The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition …
“Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger.”
How? Well, the people must be able to form militias and to bear arms, as Madison argues in No. 46 and as it is spelled out in the Second Amendment. And by his own calculations, the troop numbers of local militias will already outnumber and overwhelm federal troops: “To these [federal government troops] would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by [state] governments possessing their affections and confidence.
“It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops … by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.”
That constant fear and suspicion of the federal government – and therefore the need to bear arms – was not just a “visionary [read fanciful] supposition”. It was especially reinforced by the losing side after the civil war. The rest, as they say, is history.
How the gun “faction” terrorises the US today
Let us step back a little to take in the big picture: The constitutionalism of checks and balances and why it can’t handle the minority of gun rights advocates.
The filibuster, freely used by the minority, renders the US Senate impotent especially when it comes to introducing gun control legislation. Under President Joe Biden, the Democrats tried but failed to get rid of the filibuster, which enables even a Republican minority to always retain a veto, no matter who sits in the White House. But the constitutional issue goes deeper.
As Jamelle Bouie of The New York Times has pointed out in his latest column, “the American political system was not designed to directly represent national majorities. To the extent that it does, it’s via the House of Representatives.
“The Senate, of course, represents the states. And in the Senate (much to the chagrin of many of the framers), population doesn’t matter – each state gets equal say. Fifty-one lawmakers representing a minority of voters can block 49 lawmakers representing a majority of them.”
Repeat polls over many years have shown the vast majority of Americans favour tougher gun controls – but not a total ban. In other words, what we have here is a classic case of the “tyranny of the minority” determined not to give an inch over gun control, a phenomenon that Madison dismisses in just two sentences as trivial.
But within the existing constitutional set-up and in the current political climate, there is virtually no practical political or constitutional solution to the crisis of gun violence and mass killings.
But constitutionalism aside, what do you call a country that can’t or won’t protect its own children? In the US, gun violence is the No 1 cause of child deaths. Actually, it’s that very constitutionalism that enables the disregard for children’s lives in the name of republican liberty and provides the ideological justification for it.
No US exceptionalism
In modern history, terrorism almost always comes with an ideology. Even so, it’s always difficult to trace cause and effect. Was Rousseau’s notion of the general will responsible for the execution of Louis XVI? Did the Koran create Osama bin Laden, al-Qaeda and Islamic State? Probably not, but the former does provide the essential context for understanding the latter.
Did the US Constitution and the Bill of Rights cause a teenage gunman to kill 19 children and two teachers in Texas? Probably not. But they provide the context for understanding how he managed to do what he did, and why there won’t be any legal or constitutional changes to prevent similar killings in future.
The statistics on gun violence and related murders in the US are grim. You can easily google them so I won’t repeat them here. Western intellectuals are always quick to point out how other people’s ideologies and religions cause them to do terrible things. In truth, any institutionalised beliefs can turn pathological via some fanatical interpretations; the Bible and Christianity are prime examples.
US constitutional republicanism or democracy is usually cited as the cure-all to escape such terrorism or violent extremism. By contemporary empirical evidence, the opposite is true.
