The Second Amendment & The Prevention of Tyranny
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The Second Amendment & The Prevention of Tyranny


[CHATTER] DARRELL MILLER: All
right, I understand that people– there’s actually
quite a bit of line out there. But because we
only have an hour, I’m going to go ahead and start. Welcome to this great panel
on the Second Amendment and the Prevention of Tyranny. This is jointly brought to you
by the Duke Center for Firearms Law and the Center on Law
Ethics and National Security. So as many of you know, in 2008
the Supreme Court of the United States in District of
Columbia versus Heller held for the first time that the
Second Amendment protects a right to own a firearm
for personal purposes, like self-defense in the home. Although that opinion
relied heavily on the needs of
individuals for firearms to protect them from
burglars and criminals, there are seeds in
that opinion that speak to the original concern of
the framers, which spoke often of the fear of standing armies
under the control of a despot. So portions of
the Heller opinion seemed to embrace this latter
notion of the Second Amendment speaking of, quote, “the
natural right of resistance and self-preservation”
and, quote, “when the able-bodied men of
a nation are trained in arms and organized, they are better
able to resist tyranny.” And of course, the anti-tyranny
notion of the Second Amendment has quite a bit of purchase in
the political and social realms and is perhaps summed up
in this startling phrase about the Second Amendment
that it’s, quote, “not about hunting ducks. It’s about hunting politicians.” So to get some traction
on these issues, I am very happy
to say that we’ve got a great and
esteemed panel together to discuss these topics. So to my immediate right
is Professor Dave Kopel. He is the research director
at the Independence Institute and an associate policy
analyst at the Cato Institute in Washington and an adjunct
professor of advanced constitutional law at the
University of Denver’s Sturm College of Law. I know Dave from his work. He’s incredibly prolific. In addition to the scores
of law review articles that he’s written as well
as a lively litigation practice on Second
Amendment issues, he’s the author of 17 books,
including The Samurai, the Mountie, and the Cowboy– Should America Adopt
the Gun Controls of Other Democracies?, which
was named the book of the year by the American
Society of Criminology. Before joining the
Independence Institute, Professor Kopel served as an
assistant attorney general for the state of Colorado. And he holds a JD from the
University of Michigan Law School and a BA in
history from Brown. To his right is
professor at George Mocsary, an associate professor
of law at Southern Illinois University. He along with Dave and
others are the authors of the casebook, Firearms Law
and the Second Amendment– Regulation, Rights, and Policy,
which was the first law school casebook on the topic. And it’s now in
its second edition. His scholarship also has been
cited by the US Supreme Court as well as in other federal
courts and state courts. And then to his right is our
own General Charlie Dunlap. He’s a professor of the
practice here at Duke Law as well as executive director
of the Center for Law Ethics and National Security. He joined the faculty in 2010
after retiring as an Air Force Major General following
34 years of Distinguished Service as a military lawyer. He’s a graduate of St. Joseph’s
University and Villanova University School of Law and
also a distinguished graduate of the National War College. He won an award for his essay,
The Origins of the American Military Coup of 2012,
becoming an entree into serving as an advisor on
the film, The Enemy Within. I didn’t know this
about you, Charlie. CHARLES DUNLAP: Yeah, that
essay was written in 1992. So the coup didn’t
actually occur. So if you watch the movie,
I get 1/100 of one cent. [LAUGHTER] DARRELL MILLER: His
current interests involve– CHARLES DUNLAP: Hey,
it could be money. DARRELL MILLER: –a wide variety
of issues that are germane to our panel today,
as is his article, The Revolt of the Masses– Armed Civilians and
the Insurrectionary Theory of the Second
Amendment, which appeared in the University
of Tennessee Law Review. And he has told me to make sure
to check out his blog, Lawfire, which I’m sure many of
you have checked out. Now, I’ve asked these panelists
for very short, three-minute remarks. And then we’ll begin
moderated discussion on the topic of the
prevention of tyranny and the Second
Amendment with some time at the end to open up the floor
to questions from you all. I’m sure you have many of them. So with no further ado, Dave,
you want to start us off? DAVID KOPEL: Sure. As Professor Larry Tribe wrote
in American Constitutional Law, the entire US Constitution is
a tyranny prevention document. That is the fundamental
purpose, both to prevent tyranny of a despotic government with
unchecked centralized power and to prevent the tyranny
that might result, for example, from foreign conquest against
a confederation of states that was too weak and divided
to be able to resist a foreign tyrant. The Second Amendment is part
of that anti-tyranny system. And as the founders
understood it and their intellectual
forebears, the whole thing is anti-tyranny. And there’s– yes, King George
could be a tyrant, for example. A tyrant is someone who
illegitimately exercises power for his own benefit
over someone else rather than being
a proper ruler who governs for the benefit
of the governed. But tyranny can also
be at a micro level. A boss or a bishop or
lots of other people can be tyrants to people
over whom they illegitimately exercise power. Slavery, obviously,
is subjecting someone to a form of tyranny. And likewise, in the
founders’ understanding, a criminal government is
just a larger scale thing than an individual criminal. If you are attacked by
four highwaymen on the road and raped and robbed, that is
tyranny in just the same sense as if the standing army
comes to pillage your town and do the same thing. It’s only a difference of scale. The differences of scale
have practical implications in that the individual can
resist the home invader in the classic Heller scenario,
what the case was mainly about. You can’t really and shouldn’t
do that as an individual. Resistance to
governmental tyranny needs to be on a more collective
scale and in a different– and has lots of prudential
concerns about it. But it’s all one
and the same thing. There’s not tyranny
resistance over here and keeping the burglar out
of your house over there. They’re all on a
single continuum. And the founders believed that
the historical record strongly showed that when the government
has a monopoly of force, it doesn’t always
lead to tyranny. But tyranny is
inevitably accompanied by a monopoly of force and
disarmament of the victims. GEORGE MOCSARY: So
I have much to– I guess I have many
of the same views. And I’ll add just a
few things onto that. I think that the Second
Amendment in particular was concerned with four
types of potential tyranny– one, federal on state tyranny,
federal on individual tyranny– that’s two, actually–
state on individual, and then this individual
on individual tyranny. And they did see a popular
militia as protection from foreign enemies. But the founders saw a
much smaller distinction, as Dave said, between
self-defense against crime and other individuals
and self-defense against an
overbearing government than we might see today. The notion that
somehow we can’t– the American notion,
I should say, that somehow the
government is supreme and we should submit
was something that– Robert Churchill describes
it fairly well– developed after the Civil
War and really went through the end of the
Cold War and now is starting to wane and
perhaps fall apart a little. I think the notion that
it can’t happen here is historically defective. I’m biased, because my
family lived under tyranny, lived under communism. My father was a
political prisoner for 16 years for helping
student leaders speak. So if you wanted to go out and
demonstrate in one of the quads here at school and you
were saying something against the government,
where my parents grew up, you might be arrested. And so my father
was someone who was trying to help people
who were doing that and help them escape from
the Iron Curtain and so on. And he was found out and jailed. My mother had to flee
from behind the Iron Curtain in the middle of
the night over a minefield after she got a
special permit even to be near the border
between Hungary and Austria. They both had property
confiscated and so on. And so I came to
realize at some point, there are some things
that it’s a lot harder to do to an armed population. So as Dave said,
an armed population is not a guarantee of protection
from an overbearing government, just like being armed is not
a guarantee of protection from a would-be
individual attacker. But being a disarmed population
is a prerequisite for tyranny, for ongoing tyranny. I think all 10 of
the justices who decided Heller and McDonald
recognized the tyranny control purpose of the Second Amendment. And I would add, I think
it’s important to recognize that there are two places
to look for this purpose. One is what happened
at the founding, the so-called founding fathers. And the other is what happened
when the 14th Amendment was adopted and the Reconstruction
Amendments, the Civil Rights Act, and the Freedmen’s
Bureau Acts and so on around the time of the 14th Amendment. And if you look
at both of those, you can really see the dichotomy
or you can see the two aspects overlapping. At the founding,
the great concern was this large-scale
terrible tyranny from the federal government. The founders didn’t
really foresee state tyranny of the kind that
happened after the Civil War. The founding sons–
those who adopted– who wrote, anyway,
the 14th Amendment were really concerned
about the latter. They were concerned
about the second kind. They constantly spoke of
state militias and armed mobs attacking the freed
slaves, who were disarmed by the black
codes and similar laws. I think a picture
of those two things really gives a sense
of what tyranny can look like even here. CHARLES DUNLAP: I take
a little different view than my learned colleagues. GEORGE MOCSARY: Learned? Can you imagine? CHARLES DUNLAP:
Yeah, but if you’d been to English court, when
they start calling each other learned colleagues, it’s
not always a compliment. [LAUGHTER] GEORGE MOCSARY: I’m writing
that down, by the way. CHARLES DUNLAP:
No, actually I do take a different perspective. And in my original article that
I wrote for the Tennessee Law Review, I had a
different assessment of what the Supreme
Court eventually found and the origins
of the Second Amendment and what its purpose was. I reread it recently. And I’d forgotten how
brilliant I really was, because I was right and
the Supreme Court is wrong. I think that the Second
Amendment very much was aimed at furnishing
people for the militia. It was related to the militia. And it wasn’t just the whole
concept, the military concept that the founders had. It wasn’t just about
opposing tyranny. I see the Constitution, by the
way, as not an anti-anything, but a pro life, liberty, and the
pursuit of happiness document and pro-democracy document. The concept had much
to do with they didn’t want to pay for a
standing army, because you might remember one of the
causes of the Revolution was the Stamp Act. What was the Stamp Act for? To pay for the British army
and the French and Indian War and so forth. So it had a lot to
do with economics. The other thing is
that we just heard about how the Iron Curtain fell
and how the oppressed nations of communism threw off that– became free, at least in
the eastern part of Europe. That was not only a
population that had no guns. That was a population
that was held down by pervasive and
extremely powerful internal security services. So the idea that you have to
have an armed populace in order to resist tyranny, I
think, is a false one. And I’m sure we’re going to
get into more of the detail. But I would just
suggest that the idea that the standing
army of today– it is not in the culture
of the armed force even to think about not
obeying the Constitution. And in militaries,
culture matters a lot. And there was only one instance
where the US military ever thought about a coup. And that was in 1783 at Newburgh
when the continental soldiers had been unpaid for years. There– excuse me. There was a bunch of
officers got together. And they were going to march
on Washington until George Washington spoke to them. And he so emotionally
affected them, there was an
article not too long The New York Times where
a historian pointed out, ever since– and they became so
embarrassed that they even thought about a coup. It crushed the concept in
the US military ever since. And recently,
there’s an article, as I mentioned, in The New York
Times where [INAUDIBLE] made that point that his tear-jerking
speech so changed things that we’ve never really had
that even thought about. And let me tell you, you
serve 35 years in the military as I did, you go through a lot
of different administrations. And people are like, oh,
it must have been better with this party or that party. It doesn’t work that way. You’re just
responsive to whatever our democracy puts
in front of you in terms of your leadership. And I really disagree with
those who suggest otherwise and that that force is suspect
in terms of its loyalty and adherence to
the Constitution. Remember what happened when
we had to desegregate schools. Well, you wouldn’t
remember, because– George and I remember
in the 1950s. They sent troops,
airborne troops. Guess where most of those
airborne troops were from? The deep south, yet
they were the ones– when the police
wouldn’t do anything, they’re the ones who
stood up against tyranny. So I just have a
different perspective. DARRELL MILLER: So you
spoke a little bit already about the framers conception,
when we talk about Newburgh, as you say the one opportunity
there was or one [INAUDIBLE] was for a military coup. And it’s come up about the
Civil War and Reconstruction. And as Dave has
said, we can sort of think of anti-tyranny
perspective along a continuum. But I don’t know if that
continuum necessarily answers concrete
cases, which is sort of the hard issue after
Heller, which is now it’s an enforceable right. So in that sort
of mix, how do you think of the phenomena of, for
example, the Civil War itself? So the Civil War is very
much the southern states in support of slavery, claiming
that they are taking up a natural right to resist
a tyrannical government, that tyrannical government
being Lincoln’s administration, and expressly take on
the sort of rhetoric and sort of natural law goals of
the Declaration of Independence in support of secession
and rebellion. So when you think about the
anti-tyranny rationale, how, if any way, does
that phenomena play into your sort of thinking? Anybody on the panel. DAVID KOPEL: Many
of the confederates were, as Professor Miller
said, sincere in feeling that. And of course, many
people in the union were equally sincere in
thinking the other way, I think. I would agree that– I would say the union was right. But you can’t convince
somebody of that when you’re in the moment, necessarily. And that is what John Locke
and Patrick Henry called, it’s left to the appeal to
heaven, that God at least sometimes grants victory to
the righteous and the just. And that’s ultimately one of the
reasons the Confederacy finally collapsed was if they’d wanted
to carry on a guerrilla war and keep on going
for a long time, they absolutely had
the capacity to do so. But partly southern
morale collapsed because their series
of military reverses was, to the southern
population, an indication that God was actually, in
fact, not on their side. But the answer is there
is no way to answer that, because some people think
they were insurrectionists. And other people say they were
restoring constitutional order. And the beliefs may be equally
sincere on both sides, which is why the prudential
concerns amount to don’t just go off and lead a rebellion
because you had a bad day and the voices in your head
are telling you to do it. The preference under
the American and Western civilization system is that
something would be at least led by intermediate magistrates– local governors,
state governments in the American system. Obviously, the Civil
War was as well. So it met that test. But they still turned
out to be incorrect. DARRELL MILLER: George. GEORGE MOCSARY: So it’s
an interesting question. And I think there are two
questions there, really. One is whether it was OK
for the north, for the Union to stop the secession of
the Confederacy and one whether it was OK to go to
war to stop slavery, which was the blight on our history, a
blatant human rights violation. And no one disagrees
on that, right? I think the answer to the
first is a lot more difficult. I think there’s a
fairly strong case to be made that the Union
was wrong in keeping the southern states
from seceding. The individual states
withdrew from the Articles of Confederation as well. That was supposed to be a
perpetual union according to one of its terms. The notion of secession is
inherent in the philosophy of the Declaration
of Independence. And the Constitution
doesn’t forbid it. And the Constitution
is supposed to be a document that leaves
all un-enumerated powers to the States. The Supreme Court held
otherwise in Texas versus White, said secession is OK. I happen to know– DAVID KOPEL: Not OK, right? GEORGE MOCSARY: What’s that? DAVID KOPEL: Texas v. White
said secession is not OK. GEORGE MOCSARY: What
did I say, the opposite? DAVID KOPEL: Yeah, yeah. You left out the– GEORGE MOCSARY: Oh, terrible,
terrible, terrible faux pas, right? DAVID KOPEL: You left
out that it’s not. GEORGE MOCSARY: Yes,
it said it’s not OK. No, what did I say? It’s not OK, yes. You’re all confusing me now. Stop it. CHARLES DUNLAP: Yes,
my learned colleague. GEORGE MOCSARY: Yeah,
learned colleague. That’s right. That’s right. That’s one point for Charlie. That’s a different question
from going to war for the just cause, from the just
war of ending slavery. That, in my mind,
is an easy question. And a southern claim
that– or Confederate claim, I should say, that
somehow the North was infringing on its
right to have slaves is just abjectly nonsense. And I say that despite
the point made earlier in class today, the
good point that, look, some of the founders
owned slaves. And yes, they were blatant
hypocrites in doing that. So I think those are
two separate questions. And I think they can
be answered separately with different answers. CHARLES DUNLAP: Oh, I have
two quick observations. Number one, I disagree with
my other learned colleague that the South had the capacity
to wage a guerrilla war. If you look at– Lee actually had that
discussion at Appomattox. And he pointed out that he only
had 18,000 muskets in reserve. And he didn’t have the
capacity to wage war, because we forget how
insurgencies are conducted. And the South was laid
waste at that point. There was no supply chain. They were already stripping
the mountains of everything that lived practically. If you came across a squirrel,
you were a lucky person. So I don’t think that
there was that capacity. And if you look at why Congress
restored Lee’s citizenship in 1973, it talks
a lot about that. The second thing is– second thing is people say
wars never settle anything. Yeah, they do. This is one of the issues. There is a lot of– you can find all kinds
of historical stuff about the right to natural
law and all kinds of stuff. But after the Civil War,
that ends that discussion. It ends the discussion about
slavery and everything else. So sometimes wars– you
definitively end things. You can try to
launch a revolution. But don’t pretend that
somehow the Constitution is going to support you
or provide some kind of intellectual backing for it. That’s not to say that
the form of government can’t be changed peacefully. But if you choose to
violate the Constitution, then there’s consequences to
that, in my humble opinion. DARRELL MILLER: So is– DAVID KOPEL: A Second
Amendment revolution, to be legitimate within
the Constitution, is for the restoration of
constitutional order and not its overthrow. CHARLES DUNLAP: Well, OK. I don’t think that’s
within the Constitution. But that would not be
a constitutional act in that construct,
I would suggest. DARRELL MILLER: So
we’ve mentioned, again, sort of reconstruction and the
need of the newly emancipated to defend themselves
against violence perhaps on the spectrum
that David has mentioned. And I’ve written a
piece on this and wanted to ask the question, because
I have an opportunity to sort of take the temperature
of this panel on this issue. So the Black Panthers in
the 1960s and some members of Black Lives Matter
today have openly supported the idea of especially
African-American men taking up arms to defend themselves
from police violence. And some have actually
resorted to violence. Are these Second Amendment
anti-tyranny claims? Are these constitutional
claims, in your opinion? DAVID KOPEL: I will
distinguish– go ahead. GEORGE MOCSARY: Me? DAVID KOPEL: Go for it. GEORGE MOCSARY: So
I love this article by the Retail Rebellion. And I don’t remember
the rest of the title. But that’s all you need to know. Look up Miller, Retail
Rebellion, you’ll find it. I think it’s a great piece. And somehow we talk
about it every time we see each other, too, right? So it categorizes resistance
to government violence into three silos, which I
think are a great framework. One is at the one end, if you’re
attacked by– and it says– and I think everyone agrees,
including Professor Miller– if you’re attacked by a
government agent improperly, you have a right to
resist then and there. There was a video going around
on Facebook maybe a year ago or so about a
police officer who pulled a woman over and started
raping her next to his patrol car. And it was all caught
on the dash cam. I think everyone agrees
that that woman had a right to resist then and
there, or someone had a right to help her. There was a case in Indiana
where someone resisted illegitimate police violence. The Indiana Supreme
Court said that– changed the common law
of the state and said, no, you can never
resist police violence. So in the first bill in the
next session of the Indiana legislature, that
was immediately overturned within
a couple of hours. Then at the other end,
there’s this situation of what happened in
either Dallas or Houston a few years ago. I don’t remember. I don’t quite recall. Now, someone was
claiming some connection with Black Lives Matter,
shot five police officers who were helping keep order at
a parade or demonstration or something, saying
that this was retribution for law enforcement violence
against African-Americans. And we agree, and I
think most people do, that that’s also
completely illegitimate. And then there’s this middle
category where the question is, can someone be armed in case
the government comes to attack? And the government can
be police officers. It can be an army. It can be whoever, right? And in fact, make
it even broader. Make it private individuals with
or without government sanction. And I think that’s where
the disagreement is. I would say that the explicit
goal of the Second Amendment was to allow the population
to be armed exactly for that kind of
confrontation, right? Exactly to be prepared in
case some kind of government force, if we’re going to speak
about tyranny, comes to attack. DAVID KOPEL: I mean, well– DARRELL MILLER: Charlie, you? CHARLES DUNLAP: Well,
I think, yes, people have the right to
defend themselves if they’re unjustly attacked. But that’s a
criminal law concept. You don’t draw that from
the Second Amendment. We could have no Second
Amendment, I believe, and you would still have
the right to defend yourself under criminal law. That’s different. And if we are saying that
the Second Amendment is the linchpin for that, then
we’re asking for an arms race in this country,
because the police are going to keep
getting heavier weapons. Why do you think police have
assault weapons right now? Google the 1997 or
1995 bank robbery in LA when they were going up against
guys who had automatic weapons. They had their little pistols. They had to break into a
gun store to steal rifles. That led to this
whole militarization. So now you have Ohio
State University with armored vehicles because
of football game problems. I mean, this is where
we go with this. This is why I think we
need to take a hard look and not extrapolate
the use of guns that are essential to
defending yourself. You can defend yourself. And you have to depend– we have to depend on the courts
and lawful law enforcement to help defend us. But in last resort, of course
you can defend yourself. But that’s not related
to the Second Amendment, in my judgment, not that we
have any disagreement here. DAVID KOPEL: Two
practical examples here. When Terry Sanford was
governor of North Carolina in the early days of the
Civil Rights Movement, some civil rights
activists wanted to have a big parade
down a highway. And the governor says, well,
I guess I can’t technically stop you from doing that. But there’s not going
to be any police protection and with the
subtext that– yeah, and then the Klan and
similar groups are out there. And so you’re going
to be attacked. And the protesters
said, well, OK governor, but we are going to be armed
if that’s the situation. And then the governor
changed his mind and provided police
protection for the parade. And it went off peaceably. I would urge you all to learn
about the deacons for defense and justice founded in the heart
of Klan country in Louisiana, I believe, in late 1964. They provided armed protection
for civil rights workers in the rural South and sometimes
in the towns pervasively and were part of
a general practice in the rural South of
nonviolent, pacifist civil rights workers coming
into the community and finding that the
community was quite well armed and was absolutely
insistent that it was going to protect them. And both that informal thing
and the more organized groups– like Deacons for
Defense and Justice, which provided the armed
protection in the Meredith March for voting
rights from Mississippi to Tennessee, protecting
Dr. King himself as a personal bodyguard–
they made a big difference. And their possession of arms,
many of which they obtained– M1 rifles, carbines with 10
or 15 or 30-round magazines, and .38 Special revolvers– were provided by the National
Rifle Association in a program called the civilian
marksmanship program where NRA gun clubs could
buy federal military surplus at quite discounted prices. And so the NRA was the arsenal
of the civil rights movement. And because it was,
that movement– there was a lot less violence
against civil rights workers than there would
have been otherwise, according to what the
civil rights workers who were there and
experienced it themselves say in their memoirs. Charles Cobb– C-O-B-B–
is author of a great book on the subject called This
Nonviolent Stuff’ll Get You Killed, about his own
experience and how like so many of the Northerners
who came south, they changed their mind on
the gun issue and the pacifism issue in general because
of their experience. Don Kates, who is one of the– the late Don Kates,
one of the founders of the modern scholarly
rediscovery of the Second Amendment, had exactly
that experience. He came down from Yale to
do voting rights in ’65 and was surrounded
by arms, which was quite protective of
the people at the time. CHARLES DUNLAP: Well,
I can hardly keep my– I’m no pacifist, as– DAVID KOPEL: Yeah. CHARLES DUNLAP:
Surprise, surprise. DAVID KOPEL: Glad to hear that. CHARLES DUNLAP:
Secondly, I’m not against the Second Amendment. The Supreme Court’s rule– I’m saluting smartly
and marching on. But let’s not
pretend that people ought to be getting arms
to protect themselves against rogue police
forces or a rogue military or even a rogue whatever band. If that’s what you’re
going to depend on, you’re in for some trouble,
because guess what? An M1 and a .38 is not going to
stop any serious group that’s trying to oppress people. We have to depend on
our collective wisdom and the collective wisdom of
the people of the United States who will insist
on the protections that everybody has
the right to observe. And I would also– I’m reminded of this
discussion about when there was the march from
Selma to Montgomery. And the Alabama
National Guard commander said, oh, I can’t defend
Martin Luther King. There are too many
people, blah, blah, blah. And Bobby Kennedy
said, I’m going to hand the phone to the
President of United States who’s going to fire you. And then it’s, oh
yeah, well, maybe I can get them together
and defend this march. So I think we ought to have
a little faith in our people, in our institutions. I know that’s hard
to do right now. But over time and when you
start really digging in some, it means something. And I think that
this idea that people can gather in their basement
with an antique rifle and resist, quote, “tyranny”– that’s how people get
killed in big numbers. DARRELL MILLER: Charlie,
that’s a good segue to the next question,
which I’m really curious as to how the
panelists sort of– you might reject the premise. So if, in fact, the anti– CHARLES DUNLAP: Maybe. DARRELL MILLER: If, in fact,
the anti-tyranny notion is either incipient or actual
with respect to the Second Amendment, what does that mean
for firearm technology that has to be protected in
private civilian hands? And how does one
adjudicate that? Do you bring in
military experts and ask how to figure out
what would effectively deter a despotic government? Or how would you
adjudicate those questions? DAVID KOPEL: I would say,
taking an idea that I got from a seminar in Montana
was held with the great William Van Alstyne, one
of the absolute stars of constitutional law over
the past half century, that the modern best
interpretation of what arms are protected by the Second
Amendment, or at least what are at the core, is the
arms of an ordinary police officer. And I’ve represented police a
great deal in Second Amendment litigation– the National
Sheriffs Association, many other organizations,
both in the Supreme Court and in Colorado. Peace officers are
not the military. They are peace keepers. They are a peace officer. They don’t own guns
to go on offense. The only reason a
police officer has a gun is for lawful defense
of self and others. So those are precisely
the arms that the experts who are correctly imitated
by many American gun owners– what the police choose for
the lawful defense of self and others, not
SWAT teams, things like that– the ordinary
police officer are absolutely, in my view, at the core of what
the Second Amendment right is. And no, it’s not
the same as what the army has today with nuclear
weapons and chemical weapons and that kind of stuff. But I think the record of
history from the dawn of time up to the present shows
that sometimes people who are resisting tyranny,
even when sometimes under-armed and outnumbered, can succeed
in some degree at the long run. The Warsaw ghetto uprising
started with six handguns and not very good ones at that. And it took the Nazis longer
to suppress the Warsaw ghetto than it did for them to
conquer the nation of France. So sometimes determined
defenders can beat the odds and do well. CHARLES DUNLAP: Well,
doing well is not winning. I mean, that’s not what
we’re about in this country, just to have a big
heap of bodies. We’re about preserving liberty. And if the idea that what the
level of tyranny that you’re trying to resist
is that which the, quote, “ordinary police
officer” would have, that’s a pretty low level. And believe me, that, to
me, unravels the whole idea that the Second
Amendment has something to do with resistance to
tyranny, because if that’s all you’re talking about–
and oh, by the way, I’m from Philadelphia. And they have more than their
little pistol in their police car. So– DAVID KOPEL: No,
they have an AR. And they have
high-quality shotguns. CHARLES DUNLAP: I know. And so what are you
talking about there? Because if that is– because believe me,
if as heavier weapons, if they were available and as
they become more available, the police are going to arm up. So what is the ordinary
policeman today is going to be the
Terminator tomorrow. I mean, where do you
draw the line with this? DARRELL MILLER: George, you
wanted to weigh in, I think. GEORGE MOCSARY: Yeah. So I’m hearing two things
from my learned colleague to my right here. CHARLES DUNLAP: Touché. Touché. GEORGE MOCSARY:
Yeah, there you go. There you go. One is an absolute faith that
our government will protect us, even from itself. And by that, I mean that all the
internal non-violent mechanisms that are built into
our constitution and our government, which are
absolutely very good ones, will protect us; and two, that
an armed population couldn’t possibly resist an
armed government. And I think both
of those notions are historically defective. If it’s absolutely true that
an armed population could never resist a vastly better
armed government, we shouldn’t be an
independent nation. We should be British subjects. Vietnam would have
turned out differently, Afghanistan, all of these
places where our military had so much trouble. And I think historically, as
Dave said and the founders saw, governments turn
on their people. What’s interesting
to me is that when I teach my Second Amendment
seminar in Southern Illinois, we have lots of military folks. The most vehement defenders
of the anti-tyranny conception of the Second Amendment are
the former military people, or all former military folks or
current National Guard folks. And each year that
I teach the course, there’s a sort of different
theme in the course. But this one comes up a lot. And the sense is, well,
would the military actually tyrannize the population, right? And what comes out
of it is that, look, military organizations are
set up to follow orders. We don’t know what
information they have. They’ll follow orders. And I think the 1957 Little
Rock example with Central High School, if I remember
the name correctly, is fascinating to me. So the governor of Arkansas
had the National Guard blocking the school,
preventing the seven or nine African-American students from
going into the school, right? Sounds like a states’
rights argument, right? I’m using my militia to
prevent the federal government from coming to protect me. And the National
Guard is following the governor’s orders. So what does President
Eisenhower do? He says, you now work for me. He federalizes the
National Guard, sends it home, and it listens. It actually listened. Those National Guard
troops went home. And then he sent in the troops. And the troops escorted
the children into school. Who knows where those National
Guardsmen loyalties lied? I mean, I don’t know. I think it lied with
following orders. So I don’t believe
the notion that we can put complete and absolute
trust in our government to be good to us. And I don’t believe the notion
that an armed population can’t increase the costs and make
things difficult enough for the government
perhaps until it gives up, until the military does change
its mind and act differently, perhaps until outside
help comes and so on. Nothing’s a
guarantee, obviously. But I don’t buy the notion
that an armed population is as easily subdued as an armed one. DAVID KOPEL: Just very quickly. Happily, none of you have
ever headed a genocidal regime or any other tyranny. But in terms of thinking about
the hypotheticals and this and the army and
that, all you can do is look at history
and say, every regime which has perpetrated genocide
has attempted to first disarm the intended victims. And to the extent they
have succeeded incompletely as in Turkey against
the Armenians, the armed resistance has
saved many, many lives. And that is, likewise, true. As Aristotle said, tyrants
always mistrust and disarm their people. And every tyranny considers
disarmament an important thing to do. So when you look at it from
the tyrant’s perspective, there seem to be quite
substantial risks and dangers of an armed population. CHARLES DUNLAP: OK. DARRELL MILLER: Quick,
Charlie, because I want to get to the audience. CHARLES DUNLAP: OK, two things. One is that whether a
genocide happens or not is a way oversimplification
to talk about whether or not the population’s armed. And guess what? Armed populations
conduct genocides. Take a look at Kosovo. DARRELL MILLER: All right– CHARLES DUNLAP: Secondly– DARRELL MILLER: Sorry. [LAUGHTER] DAVID KOPEL: I can
tell you about my– GEORGE MOCSARY: Third. Thirdly as well. DAVID KOPEL: I can tell
you about my intern who was a Bosniak who now
lives in the United States. And the Bosnians were disarmed
before they were mass murdered by the Serbian military. And the Dutch
peacekeepers failed to provide the protection
they had promised. CHARLES DUNLAP: So armed people
didn’t provide protection. Thank you. DARRELL MILLER: So everybody
has been holding their peace. I’m assuming that there is just
a wellspring of questions to be asked by this lively panel. So who wants to ask one? There. AUDIENCE: Yeah, we talked
about turning from the state. You mentioned in
your opening remarks that also the Second
Amendment would apply to much more of
the individual side of the continuum. And I was wondering where
you draw this inference from. And isn’t that even more
dangerous to society? Because if you assume that
you can defend yourself against your boss with your
weapon, what does that imply? DAVID KOPEL: No,
not all tyranny– this goes back to
the best-selling book of the 1100s, Policraticus
by John of Salisbury, who was the one who said, like
a bishop could be a tyrant. As he explains, violent
resistance, deadly force is not appropriate against
every kind of tyrant. Your bishop may be
a complete jerk. But that doesn’t mean
you can kill him. So to clarify for
that– and our laws for self-defense in this
country in general appropriately reflect that. Your third grade teacher
can be a tyrant, too. But you can’t engage in armed
resistance in that situation. You can engage in armed
resistance against types of violent attacks. GEORGE MOCSARY: So a
couple of examples with– suddenly quiet. A couple of examples of
constitutional import in the US– the best one go from roughly
the end of the Civil War through the 1960s where
armed mobs would attack African-Americans in
the south and nobody would do anything about it. The state police would
not come to their aid. Sometimes it was the state
militias doing the attacking. And in the debates over
the 14th Amendment, that came up over
and over again. We have to allow
these individuals– we have to use
the 14th Amendment to incorporate the Second– they didn’t use that
word, obviously, but to make the Second
applicable to the States, because these white mobs
were terrorizing and killing really African-Americans
with impunity. And the black codes
were prevent– [SNEEZE] –bless you– were preventing
the African-Americans from being armed. And the idea is that
if they were armed, that would be a substantial
deterrent against home invasions that came out of
nowhere by either anyone from the KKK to the
state militias when they were off duty or
something like that. An interesting example
are the gangs nowadays in bad parts of Chicago,
someone raised earlier today. Is that one of
constitutional import? Think so. I think you have a
right to be in your home and not be attacked by a gang
that wants to shake you down or what have you. DAVID KOPEL: That’s what
Otis McDonald wanted. GEORGE MOCSARY: That’s true. DARRELL MILLER: There’s
a gentleman here in the Texas T-shirt. I want to hear from him. AUDIENCE: Well, first of
all, you touched quickly on the idea of an arms
race between the people and the police,
although, to me, it doesn’t seem to be as
much of an arms race, because that would imply both
parties are building up arms. But it seems that the police
are largely building up arms without really you seeing that
on the side of the citizenry, right? Even in the bank robberies
that you mention, those rifles, those
automatic weapons had been illegally converted
to automatic weapons. So I mean, is it really an
arms race insofar as the police just seem to be building
up arms and technology, without any response really from
the populace or justification? CHARLES DUNLAP:
Well, I think that in the age of terrorism
and gang violence, that we just heard about, that
the police feel that they need this kind of heavy weaponry. But there was a
study fairly recently that the militarization
of police doesn’t necessarily
protect them and doesn’t protect the population. So what you’re raising, we
do need to rethink that. I’m all in favor of protecting
law enforcement personnel. And we do need appropriate
weaponry and so forth. But that’s not the
same thing as saying that we want to put a
gun in everybody’s house, because on the off chance
that somebody is going to have a home break-in,
because I can tell you right now from living decades in
an environment where you have a lot of weapons, you’re going
to have accidents and people shooting each other
that will be extremely egregious to our population. But let me make
clear, I’m a supporter of the Second Amendment. It’s in the Constitution. It’s been interpret– I don’t
agree with the interpretation. But it’s there. So we have that. But let’s not pretend that it’s
doing more work than it really does. That’s my point. [PHONE RINGING] DARRELL MILLER: I
have no idea where that cell phone’s coming from. CHARLES DUNLAP: It’s not mine. Mine doesn’t even
work like that. You’d be hearing Big
Ben if it was mine. GEORGE MOCSARY:
Just to be thorough, I’m going to check mine. No, it’s not me either. DARRELL MILLER:
Somebody’s dialing. This is not a dial-in show. Yes. [LAUGHTER] Down here. AUDIENCE: In the
Trayvon Martin case, which side exhibited tyranny? DARRELL MILLER:
So Trayvon Martin being the African-American
male killed in Florida by George Zimmerman, who
had a personal sidearm and had taken on the role of
defending the neighborhood. DAVID KOPEL: That’s
the kind of question that is appropriately
answered by juries based on the facts of the case. CHARLES DUNLAP: I agree. I don’t think tyranny is– we don’t want to transform every
criminal act into this larger discussion of tyranny. DAVID KOPEL: Oh, but I
take the founders’ view that it’s all a continuum. If somebody attacks you
and is pounding your head into the sidewalk
to try and kill you, whether that person is an
individual or part of some gang or is part of a
criminal government, is fundamentally the same thing. And your right to
resist all of them is fundamental and inherent
and recognized, but not granted by the Second Amendment. GEORGE MOCSARY: It’s a
fascinatingly complex case. I was asked to write a short
piece in a book review online. And I found myself looking up
all these details on that case. And what we actually
know about it– I listened to the calls. And so I write this piece. And the editor says, well,
there’s too much detail here. There’s too much information. The words were roughly,
this is journalism. This isn’t court,
something like that. So I mean, it’s just
extraordinarily complicated. What happened, who know– I mean, it’s
stunningly complicated. DARRELL MILLER: Gentleman here. AUDIENCE: [INAUDIBLE] DARRELL MILLER: I want to
get to the gentleman here. GEORGE MOCSARY:
That’s a little bit of a facile
oversimplification as well. DARRELL MILLER: Let’s
get this guy here. AUDIENCE: So if tyranny
includes all these things that you said it does,
then tyranny also includes someone with a gun
shooting people in a school, in a movie theater, et cetera. DAVID KOPEL: Absolutely. AUDIENCE: And the way that
you sort of described, like, cherry picked these
examples of minorities needing guns to protect themselves
against armed mobs because they had guns in the
first place, et cetera, sort of ignores– you’re not comparing
it to all the people who are killed because the
tyranny of allowing people to have guns in the
first place, right? So each of these examples of
someone, if they had a gun or they did have a gun,
stopping a killing, can you explain to me how
that matches up or weighs against all the times someone
is killed because someone has a gun in the first place? GEORGE MOCSARY: I
think you’re saying that we have to
do a thorough cost benefit, in effect,
to use economic terms in any situation. How much harm do guns
cause versus how much benefit do they provide? I think you’re exactly right. I think one thing that’s
wrong with this debate, with this public debate,
this public conversation is that all we ever do
really is hear one side of it at one time. Someone shoots 50 people
out of a Las Vegas hotel, which was a completely– another
bizarre situation and all the– anyway, I won’t go there. I’m not much of a
conspiracy theorist. But that’s one where the
conspiracy theory side of me kicks into gear. And that’s all we have. And look, what can we do? We have to stop this. And then the other side, you
hear just recently the CDC ran some studies
that it suppressed that there are over 2 million
defensive gun uses per year. Somehow, if we’re having a
policy conversation at least, which I think is
where you’re going– ultimately, I think you’re
asking a policy question. We have to look
at both of these. And nobody really
does that properly. And so I think your point
is absolutely right. We do need to look
at all of these, the costs and the benefits. Unfortunately, social science
is really, really hard to do. And the reason for that is that
we can’t compare our reality to a counter-factual
reality where there are no guns and no bad
people, there never were guns, and so on. The only place where
we can really get even remotely close to comparing
counter-factual realities to each other is in
the clinical context where we have double
blind studies and so on, like in the pharmaceutical
testing context. Otherwise, there’s an
extraordinary amount of guesswork that goes into it. But fundamentally, your
point is a right one. We need to consider
all of these things, both sides of this question. DARRELL MILLER: Wait,
wait, wait, wait. Charlie, did you
want to say anything? CHARLES DUNLAP: I was just
going to say, you know, we know that most of the
gun deaths are suicides. And so my view now, given
the Supreme Court’s opinion, is that I think the Heller
opinion is very problematic, because if it is about
personal defense, and right now it’s
limited to the home, I think we’re starting to see
cases that, hey, if it really is pertinent, then why not
open carry everything else? I think the Supreme Court is
going to have to come back and revisit it or we’re going to
have to have lower courts that really look at what the courts
said and these constraints that aren’t really logical,
but nevertheless in there, because it takes a long time
before somebody gets confident to use a weapon in a
defensive situation, because if you think I’ve gone
to the gun range twice and took a two-hour course– when somebody is
pointing a gun at you, there’s going to be
all kinds of things going through your head
that aren’t going to– you don’t know who
you’re going to hit. DARRELL MILLER: Professor
Christie, really quickly. CHARLES DUNLAP: So the
idea is suspect in my mind. DARRELL MILLER: Be terse. AUDIENCE: It’s just that
this problem that you’re talking about is the problem
of the common law, which permits you– if in order to
preserve your own life, you can take the life
of another person. But under the English
rule– and that’s the problem with the
Trayvon Martin is this. You have to retreat to the wall. You just can’t shoot the guy
just because he might kill you. Florida is where
the no retreat law. And there are many states
in this country which do not require any kind of retreat. And in the Trayvon
Martin/Zimmerman situation, Zimmerman claimed that he
thought the guy had a gun. And the jury
believed that, or he had some kind of a knife
or something like that. And that, to me, is
extremely dangerous, because you can always
come up with an argument. Well, it’s also like
the sexual thing, whether it’s agreed or not
agreed or what have you– well, I thought she
was thinking and what– DARRELL MILLER: That’s
drifting a little farther. AUDIENCE: Well, I’m just saying. [INAUDIBLE] DARRELL MILLER: Sure, sure. AUDIENCE: But what a person
could seriously believe is [INAUDIBLE]. DARRELL MILLER: A
really quick response. I think that the observation
is about the common law and the Second Amendment. DAVID KOPEL: To integrate
that with a previous question, yes, of course, a school
shooter, for example, like other criminals,
is a tyrant. And they’re particularly
in their behavior quite interested
in the tyrannical. Their lust for
tyranny is something they planned for to
exercise for months. The US Constitution is
an anti-tyranny document in its division of powers
and many other ways. But it was also something
that said, well, preventing tyranny isn’t just
constraining the government. You also need to have
an effective government that can raise an army
to defend the nation and that can call forth the
militia and do everything else. They have a unified
trade system, which will make our country stronger. And likewise, steps against
people who misuse guns are also part of the anti-tyranny
purpose of our Constitution and are compliant with
the Second Amendment. The Second Amendment does make
the ultimate empirical decision that never will
decent people be left defenseless and unable to
have the essential tools for the protection of themselves
against micro-tyrants or tyrannical governments. DARRELL MILLER: All
right, I’m going to take moderator’s privilege. Really quick– this is
like the lightning round. Lots of states have experimented
with amending their own state constitutional right
to keep and bear arms. They’re not exactly the same. This is the Federal
Second Amendment. If you could take your pen
and redraft the Federal Second Amendment, how would you do so? Charlie. CHARLES DUNLAP: I would redraft
it to make it very explicit. It’s related to the
militia to which the– with the National Guard. And if they want to work in
something about the unorganized militia of the United
States– does everybody know they’re part of the– or males anyway? OK, but it should
be in that context and allow the federalism
to provide the offset. DARRELL MILLER:
All right, George. GEORGE MOCSARY: I’ll
say something similar, except the opposite
that it should– [LAUGHTER] The same idea. It should be made clear to talk
about self-defense and so on. I shouldn’t have to
be writing an article that talks about what each side
has to explain away, right? I should be able to write
an article that says the Second Amendment says this. Here’s why. I shouldn’t have to
make an argument based on this side has a harder
time explaining away what the amendment says
than the other side. It’s– DARRELL MILLER: OK, Dave. DAVID KOPEL: Ever since the
first right to arms provision was put in Anglo-American law,
the 1606 Virginia Charter, people have been upgrading
and improving it. The Second Amendment was
a step in that process. Colorado’s 1876 Constitution
had the strongest right to arms protection ever written
in the English language. And now other states
have exceeded that. Idaho, Missouri,
Louisiana, Kansas are some states
that have recently enacted more modern, more
comprehensive, and more wordy ways to say things. So any of those would be fine. But I think the Second
Amendment was quite good for its terseness, among other
things, because it perfectly captures the fact
that the right to arms is an individual right
and a collective right. Those are not opposites. Those are two complementary
aspects of it. Resistance to tyranny
and of the home invader is something to be
done individually. The right to arms is individual. But at times, protecting
your community from other kinds of
tyranny, whether those are rioters or invaders
or anything else, is something that
necessarily must often be done collectively. And the Second Amendment has
them both in just a few words. DARRELL MILLER: And with that– CHARLES DUNLAP: My advice,
don’t try that at home. DARRELL MILLER: We’re
out of time, Charlie. Thank you very much. [APPLAUSE]

One Comment

  • ken1139

    This debate illustrated one clear point of fact that is utterly indisputable: Professor David Kopel is an indefatigable winner, and charlie dunlap is a phenomenal douche.

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