Balkinization: More on militias

Comments:

You hit on something I've been thinking about for a couple of days. One of the problems hte US has been haunted by in Iraq is the fact that they transplanted their believe in the freedom to posses weapons to Iraq.

Every household in Iraq has the right to own at least one AK-47. This makes it much and much harder to crack down on militias and violence in general.

While I fully agree that conservatives arguing against guns would be somewhat ironic, I disagree that this would be hypocritical. The situtation between Iraq en the US is that different, that even a die hard supporter of the 2nd amendment might see a problem in the amount of guns in Iraq. How this could affect the debate on the 2nd amendment in the US, seems to me a separate discussion.

I wonder, if you feel McCain is being a hypocrite, would you call a conservative asking the IRA to surrender it's weapons a hypocrite as well?

We come from different backgrounds. For the Dutch - and I assume for Europeans - the State has monopolized violence and thus forbade guns. The only way to validly monopolize violence is to provide for actual safety. This is where the problem lies: you cannot ask people to surrender there weapons if the government is not up to the task of defending them.

But there is a second reason why your comparison with the second amendment doesn't seem right to me. The second amendment does indeed say that the states retain the power to have armed militias. The reasons behind the 2nd amendment do not apply to Iraq. Iraq is not a federal state in which the states must be able to protect themselves against a possible Federal Government's attack on it's sovereignty. In Iraq there is some autonomy for the different regions, but no sovereignty. The regions don't have militia's, the factions do.

# posted by

Anne : 12:18 PM

Such a demand is hard to imagine Washington complying with, not the least because the founders decidedly were NOT Weberians, and quite firmly believed that the state did NOT have, nor was it entitled to, a monompoly on the legitimate use of violence". On the contrary, they believed that the people had that right, which they only partially delegated to the government, and were entitled to reclaim for cause. They concieved of the state as servent, not master.

Our's is not a Weberian state in it's initial conception, and it would be good to remember that that definition of the state is not uncontraversial.

# posted by

Brett : 12:35 PM

If Republican militias were kidnapping Federalists from their homes and leaving their bodies scattered on the streets, tortured with the 18th century equivalent of power drills, I think there would be ample grounds for condemning their actions and advocating their disbandment. (Actually enforcing that disbandment is a different matter).

Or does Profession Levinson believe that death squad are protected by the Second Amendment?

# posted by

Essayist-Laywer : 12:56 PM

There is some irony in seeing pro-gun US folks decrying militias elsewhere, especially since the comments are (IMO) intended for domestic US consumption. But perhaps I just suffer from a desire for a "foolish consistency."

That said, how about a moratorium on inapt analogies that tend to obscure the underlying point? Or would that be unilateral surrender?

# posted by

Anonymous : 1:51 PM

No, you're not wrong, Shag. The US government has contributed to writing several new constitutions, in the wake of WWII, as well as this war. Not only do they always leave out the 2nd amendment, you'll notice they also leave out trial by jury.

We have a constitution which is based on a fundamental distrust of government. Why be suprised that people who have chosen government as their life's work, rather than (As with the founders)a temporary sacrifice, don't like that constitution?

# posted by

Brett : 7:00 AM

Very nice observation. I would add that the People of Iraq have every right to keep and bear arms to defend themselves from terror where the Government and the Coalition fails to do so.

I would remind folks that, after the liberation, the Shia endured nearly two years of a Sunni and al Qaeda terror bombing campaign massacring tens of thousands of their civilians at markets, funerals and mosques before they began to use their arms to defend themselves.

The objective should not be to disarm the common citizen, but to defeat the terror groups. When the United States defeated Shay and his rebels then later the Confederate rebels, the government did not disarm the citizenry to do it.

# posted by

Bart DePalma : 10:06 AM

@Shaq: true. It did enact a law saying that every household has the right to at least one AK 47. Bart obviously cannot contain himself: terrorist die! Even Bush now believes there is sectarian violence and not terrorist violence. Keep up with the talking points, boy!

# posted by

Anne : 10:22 AM

Professor Levinson, Bart and others defend not just individual gun ownership for one's own personal protection, but the formation of extra-governmental militias (i.e., private armies) to curb the power of abusive governments. Their error is assuming that only governments oppress and that extra-governmental militias are always pure of heart. The evidence does not support that hypothesis.

I agree that the Madhi Army has acted to protect Shiite Iraqis from murderous Sunni insurgents. But it has not limited itself to that. It also drags Sunni men from their houses and kills them after torture. Some of its victims are, no doubt, murderers themselves. Others are guilty of nothing more than having the wrong religion.

Bart mentions Shays Rebellion and points out the government did not respond by outlawing gun ownership. Neither did it treat the Shaysites as a legitimate militia defending the rights of debtors. They treated Shays Rebellion as in illegitimate revolt to be suppressed.

The Civil War is even more revealing. The nearest the US has ever had to an extra-governmental militia of citizens and their guns restricting its power was the Ku Klux Klan during the Reconstruction, which did not attack the US Army directly, but focused on "soft targets." Sort of like the Madhi Army, which has not yet taken on any insurgents in direct battle, but focuses on littering the streets with corpses every morning.

Am I the only one here who is troubled by the actions of the Madhi Army?

# posted by

Essayist-Laywer : 2:41 PM

I think there are all sorts of reasons to be upset by the Mahdi militia, just as there are as many reasons to be upset by perhaps the most effective organized militia/insurgency in our history, the Ku Klux Klan during the Reconstruction years. My point is analytic, not normative: There is no good reason to expect voluntary disarmament in significantly divided societies. Had one been a dispassionate adviser to the Klan in 1870, one would no more have advised them to disarm than one would have advised the Americans in 1776 to turn over their arms to the lawful authorities representing His Majesty George III. One's liking or disliking of particular militiars is entirely a question of politics. Some I admire, some I most definitely do not. But that has almost nothing to do with the analytic point. Even normatively, one can support the Weberian definition (which, as Brett points out, is most definitely not the American definition of the state) if and only if one believes that the centralized state is sufficiently likely to be non-tyrannical and, therefore, that the general populace would not have good reason to want to preserve a potential option of armed rebellion (not even to mention self-defense should the state not be able to provide effective police protection against private criminals).

# posted by

Sandy Levinson : 3:07 PM

Enlightened Layperson said...

Professor Levinson, Bart and others defend not just individual gun ownership for one's own personal protection, but the formation of extra-governmental militias (i.e., private armies) to curb the power of abusive governments. Their error is assuming that only governments oppress and that extra-governmental militias are always pure of heart. The evidence does not support that hypothesis.

Perhaps I did not make myself well understood. I support the right of citizens to keep and bear arms for defense of themselves and the nation at large. I also stated that the target of the war should be the illegal terror groups, not to disarm the citizenry. Illegal terror groups would include illegal militias committing terrorist attacks.

I am on vacation and do not have the time or willingness to peruse the Iraqi constitution or statutes, but I would be curious to find out what legal limits, if any, there are to forming popular militias in Iraq.

Until the United States formalized the institution under law, most communities formed their own militias for community self defense without affirmative sanction by the national or state governments. Is a similar situation occurring in Iraq today or are there laws against this?

# posted by

Bart DePalma : 9:23 AM

It is hard not to agree with Bart's last posting. But, as always, the difficulty, as a practical matter, is coming up with a "neutral" definition of an "illegal terrorist group." One of the obvious embarrassments of our own history is that many of our national heroes were legitimately viewed by His Majesty King George III as "illegal terrorists," which is one reason that the signatories to the Declaration of Independence legitimately feared being hanged if their Lockean "appeal to heaven" by force of arms was rejected. And, of course, the Lincoln Administration would easily have used the same appellation for the traitorous Confederates, though, equally of course, they gave them prisoner of war status. My own view is that the leaders of the Confederacy should have been punished far more harshly than they were. But prudent politicians made the judgment that the cause of reconciliation would have been set back, perhaps fatally, had Lee and Davis, among others, been hung. Law, as such, is little help (and may be an active detriment) in trying to figure out how best to end civil wars and create a maintainable polity out of a terribly fragmented one. (This is one reason that I am ambivalent about "universal jurisdiction" for crimes against humanity, since it's altogether possible that the leaders of a successful insurrection could come to the conclusion that it's better to (relatively) forgive and move on (see, e.g. South Africa and the Truth and Reconciliation Commission) than to impose what would in fact be just punishment (including, possibly, the death penalty, which, if ever justified, would be most fitting for tyrants).

# posted by

Sandy Levinson : 1:03 PM

Professor Levinson: ...a "neutral" definition of an "illegal terrorist group."

Professor, the rest of your comment from which I've excerpted the above seems to me to go straight to the heart of the argument for a common law system rather than a system of strict code. Justice, not to mention Liberty, is arguably better served by the flexibility of the former than the rigidity of the latter. The trend toward ubiquitous legislation (i.e. the condition in which an impossibly large and complex collection of code seeks to legislate on all possible situations) does not necessarily bring us a more just society. It seems no coincidence, then, that the people most likely to argue "plain meaning" or "originalist" positions also seem the most willing to legislate away citizen liberties.

# posted by

Robert Link : 3:16 PM

"It seems no coincidence, then, that the people most likely to argue "plain meaning" or "originalist" positions also seem the most willing to legislate away citizen liberties."

It's an illusion, generated by the tendency of non-originalists to interpret away those civil liberties they feel like legislating against. Thus enabling themselves to attack one liberty after another, while seeing themselves as principled civil libertarians.

# posted by

Brett : 6:12 PM

Brett: It's an illusion,...

I might be more inclined to take this at face value if I thought you could add anything to our understanding of the arguments pro and con of a common law system versus something, say, like the Napoleonic code. C'mon, contribute something to the conversation so we can see you're more than just another rw vandal.

# posted by

Robert Link : 6:16 PM

Professor Levinson:

I do not think it is impossble to find a "neutral" definition of an "illegal terrorist." At a bare minimum, actions we would condemn in a government should also be condemned in an extra-governmental armed faction. Setting off bombs in public places intended to kill as many innocent bystanders as possible, killing people for belonging to the wrong religion and driving power drills through living skulls are obvious examples. I do not believe that condemning such actions is a mere subjective "policy preference." (And, yes, I do realize this standard would also condemn tarring and feathering Loyalists and similar acts of mob violence).

To say that there is no way to judge what constitutes an "illegal terrorist group" is to give a blanket justification to all political violence, including (I would assume) the 9-11 attacks.

# posted by

Essayist-Laywer : 7:45 PM

I am sympathetic to the comment of enlightened layperson, but the problem is that states, including the US, have engaged in lots of actions that can easily be described as "terrorist," including the fire bombing of Tokyo and Dresden. As Elaine Scarry points out in her indispensable book The Body in Pain, all modern warfare is essentially a contest in killing, injuring, and maiming, and no stae is overly fastidious in limiting the injuries done to innocent civilians. I will concede that most "civilized" states do not consciously choose strategies that maximize the harm to civilians or even profess indifference to civilian harm. I would like to think that no "civilized" country would engage in the kinds of tortures mentioned in the posting (e.g., the use of drills and the like). But it obviously doesn't get us very far if we agree only to condemn such conduct, since there are always going to be "terrorist groups" that are more fastidious and whose claims may appear compelling given the tyranny of the state they are rebelling against. The ANC in South Africa presented such an example, though the record is scarcely as unmixed as one might prefer.

# posted by

Sandy Levinson : 11:34 PM

Professor Levinson:

I would suggest that terrorists can be fairly easily defined by their actions - the intentional assault, battery, abduction and/or murder of a civilian population with the purpose of sowing terror.

It is not too difficult to identify the perpetrators of car bombings, shootings, torture, beatings and kidnappings aimed at civilians as terrorists.

Such a definition removes intentional terrorism from arguments concerning the levels or uses of force by uniformed armies of nation states aimed at a legitimate enemy which end up harming civilians.

# posted by

Bart DePalma : 5:16 PM

Bart DePalma Declares the U.S. as a Terrorist State:

I would suggest that terrorists can be fairly easily defined by their actions - the intentional assault, battery, abduction and/or murder of a civilian population with the purpose of sowing terror.

"Extraordinary Rendition", we-don't-torture forms of torture like water boarding, well, folks'll get the point. Glad you finally did too, Bart, although given your feelings about aiding and abetting the enemy I'm surprised you would make such a nearly treasonous remark.

What? You say "That's different, we only do it to bad guys!" I imgaine it doesn't matter that that's what they say when they do it to us...

No, Bart, I think it's time to grow up and admit that in their eyes we are the evil ones. Any attempt at a solution which fails to take this absolute truth into account is doomed to failure. I think we've had enough failure already under Bush, don't you?

# posted by

Robert Link : 9:16 PM

Robert:

1) Enemy combatants are not civilians.

2) Coercive techniques do not fall under the definition of torture as the intentional infliction of severe pain.

3) Rendition of enemy combatants for the purpose of detention and legal interrogation is OK, rendition for the purposes of turning the enemy combatant over to a third party for genuine torture is not OK.

4) al Qaeda wants to kill you and the rest of us because we are infidels, not because we broke their leadership through coercive interrogation.

5) Your country is not the moral equivalent of al Qaeda.

# posted by

Bart DePalma : 9:39 AM

"Bart" DePalma:

1) Enemy combatants are not civilians.

And the point? (We've been through this many times before, but need to ask "Bart" for the record once again why he thinks this is significant to anything).

2) Coercive techniques do not fall under the definition of torture as the intentional infliction of severe pain.

"Bart" forgot the part "... equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Yes, I suppose that's true ... when that's the way you define torture ... and by implication non-torturous 'coercion'. Of course, I drive to work in a subjunctive inflection, because that's the way I define those words. Humpty-Dumpty ain't got nuttin' on me, nor "Bart" and the maladministration.....

3) Rendition of enemy combatants for the purpose of detention and legal interrogation is OK, rendition for the purposes of turning the enemy combatant over to a third party for genuine torture is not OK.

No, it's not. The purpose of the "rendition" is not important. What matters more is whether the result would be a likelihood of torture.

4) al Qaeda wants to kill you and the rest of us because we are infidels, not because we broke their leadership through coercive interrogation.

"Bart" just loooovvveess that old "either-or" 'fallacy of bifurcation'. Not to mention that it's arguable whether al Qaeda does in fact "want to kill you and the rest of us". They're not above killing, but it's mostly in "Bart"'s feverish nightmares and day-time hallucinations that al Qaeda is Satan Incarnate, out to kill every "infidel". "Bart", OTOH, would seem to be sanguine at the prospect of killing all "Islamofascists" (particularly when he and Dubya get to deciderate who that happens to be...).

5) Your country is not the moral equivalent of al Qaeda.

No, but the tu quoque fallacy is getting tiresome too. "Bart" is setting the bar rather low for what we should consider acceptable behaviour for the beacon of freedom to the world (not to mention patentee of constitutions and inventor of democracy), the "Uuuuh! Essss! Ayyyyeee!"

Cheers,

# posted by

Anonymous : 11:42 PM