The Trouble With Ducks And Rabbits

The failed October 2013 raid by U.S. special operations in Somalia offers an example of the conceptual issues we are facing in our conflict with Al-Qaeda and similar movements.  In the raid to capture Al-Shabaab leader Ikrima,  failure to accomplish their goal resulted in a withdrawal of U.S. forces, rather than the killing of the target. If Ikrima was truly a valuable enough enemy target to be captured then he is also valuable dead. The raid force could have killed the target as soon as it was determined that they were unable/unlikely to capture him alive, but this was contrary to their orders.  I submit that decision- makers were captive of an “arrest mentality” that is not appropriate for combat in war but is inherent in criminal law.  The result was that, not only did the U.S. fail to capture Ikrima, forfeiting any intelligence value he may have provided, but he is still able to operate.  Moreover, Ikrima will be more difficult to locate in the future, the enemy has been emboldened, and perhaps most damaging, the U.S. has demonstrated to its own people, to its enemies, and to the world that it is still conflicted in its approach to the War on Terror.  This type of confusion, and the resulting undesirable results, are a natural outcome of the application of inappropriate conceptual frameworks to real-world problems.

In an article on ForeignPolicy.com, Mrs. Brooks accurately identifies the problem as confusion over which of the two pre-existing philosophical and legal approaches we should adhere to while combating Violent Non-State Actors (VNSAs), but offers no real resolution.  She uses Wittgenstein's philosophical toy, the duck-rabbit, to portray the crux of the problems by identifying that there are both those who view terror as crime and those who view it as warfare, and implies that its categorization is subjective, that both are wrong and right depending on how they are viewed.  

Mrs. Brooks then attempts to simply rephrase the false dilemma between the two frameworks, focusing on the implications/consequences of each,

"Do we prefer a world in which there are few constraints on the state's use of lethal force, which creates one set of dangers -- or do we want a world in which the state is more constrained, which creates a different set of dangers?" 

 This line of reasoning assumes that because the problem does not fit into either of our current models, it must be forced into one or the other.

These pre-existing frameworks [the legal framework and the military framework] emerged to address different challenges than those to which they are now being applied.  This is not crime, this is not war and neither approach can sufficiently address the problem when the threat does not fall fully into either category. As such these approaches have been expanded, modified and essentially stretched. The result has been confusion, indecision, and usurpation.  On the one hand, the excessive prohibitions of the war framework hamper our effectiveness in combating non-state actors outside our boundaries, as seen in the failed raid in Somalia, rendition programs and the continuing problem of how to handle Guantanamo detainees.  On the other hand, the legal framework is being perverted by increasingly oppressive measures, such as the classification of citizens as enemy combatants, drone killings of citizens, and unbridled government surveillance - clearly undermining civil liberty within our borders.   

For most of history, those that refused to obey the established laws of war were not privy to being protected by them. So, in dealing with many contemporary VNSAs, why are we trying to decide between two equally inappropriate solutions in the legal-criminal framework or the war-enemy nation framework? When the enemy here doesn't fit into either category, why do we think either category is the right solution?  Contrary to Mrs. Brooks’ assertion, we do not have to choose between these two unsatisfactory results.

Mrs. Brooks never considers that perhaps there should be different sets of rules - those that apply to US citizens and non-citizens inside the borders of the United States, and others that apply to non-citizens outside our borders (or if you wish to be more specific: in war zones, or outside sovereign nations, or in failed states, or in VNSA controlled areas, or wherever it is decided to draw this line).  

What is critical is the ability to draw this line.  A nation's highest moral order is to protect its own citizens and their interests.  As a result different frameworks have emerged for how a nation deals with its own population and other nations/groups in the world.  The first set of rules exists to protect our liberties and prevent dangers to our citizens from within, while the second set of rules enables us to be as effective as we can be in combating our enemies abroad, to protect the nation from external threats.  It is naive to think that a nation should treat its own citizens and its enemies in a similar manner.  The international system is one of anarchy.  There is no higher government, there are merely states, and  increasingly non-state organizations and individuals acting in the international arena.  There is no rule of law outside of the nation that provides, guarantees and adjudicates it.  There are international agreements and customs, but these are law only the extent that nations treat them as such. They may abided by as they suit a nation and may be discarded when they do not.  International organizations are not legal entities, but merely organs with which to garner and coordinate the power of their member states - they are the pretty face to disguise placed on the power derived from an international tyranny of the majority.  The reality is that the true law in anarchy is always power.  A government that is capable of killing anyone, anywhere on earth, and can accept the consequences of this (such as the international community uniting against it), can do so...as long as is not violating the only law that truly binds it, the constitutional law that created it.  The law of war may be the right approach under certain enemies, civil law may be the right approach under others, but to address the outliers, these two concepts cannot be stretched without detrimental effects. 

The truth is that we are facing neither a duck nor a rabbit.  We must flip the image again. We need another framework.

Understanding the 2nd Amendment

“On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”
— Thomas Jefferson, letter to William Johnson, June 12, 1823

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Every time the debate about gun control rages, there is invariably a myth that is dusted off, shined up and placed on display to be referred to by every misinformed advocate. The text of the 2nd Amendment is invoked to argue that the Founders only intended “the militia” (implied to mean an organized militia, as in something akin to the National Guard) to keep and bear arms. In actuality, this very wording proves precisely the opposite. 

But this is only evident to those who understand that words are merely tools, used to convey meaning. This is a simple concept that can be seen easily with differing languages. The word “gift” has a meaning in English, but the same word means “poison” in German. The language in which a word, its context, affects meaning. Context is determined by time as well as culture. In the U.S. in the 1950s, the word “gay” had a drastically different meaning than it does today. Without knowing this, someone watching a movie from that decade in which one character referred to another as gay would be gravely confused. Sadly, this same situation occurs when one tries to interpret the text of the 2nd Amendment with no understanding of history or its context. What emerges in this interpretation is a sort of halfway position between adhering to the text (emphasizing one portion and ignoring another) and imposing a different (more modern) interpretation on it, rendering it contrary to its actual intent and how it was understood at the time it was ratified. To understand what the Amendment really means several complimentary approaches can be used.

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 1. Common Sense. The system of government set up by the Founders was based on the political philosophy of individualism, that individual rights are sacred and the basis for society (hence our Bill of Rights, hence limits on the power of the government and limits on the power of the majority). So averse were the Founders to collectivist government that the word democracy does not appear in the Constitution once, but a variation of republic (a form of government based on individualism, with guaranteed protections of rights) does, twice. Franklin, when exiting the convention and asked what government was created, famously replied, “A Republic, if you can keep it.” Why would these men, after creating a whole structure based on a political philosophy of individual rights suddenly and for only only one critical right, shift into a collective mode of thought? The right to free speech is certainly not a collective right (groups benefit from it, but it is not limited to them). 

 The purpose of the right can further be deduced by looking at another of founding document, penned by Thomas Jefferson:

 “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness … But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

Why would men have proclaimed the right and duty of a people to overthrow a tyrannical government, but at the same time deny them the means to do so. Critics of this view ask why the Constitution gave the power to “suppress insurrection” to the federal government, if it wanted the people to be able to overthrow a government. This simplistic view assumes that there cannot be both legitimate causes of revolt and illegitimate ones. It was expected that unlawful movements that did not represent the will of the whole people, like Shay’s Rebellion, would be able to put down by the government, but it was assumed that when a government crossed into tyranny, then the armed populace rising against it would consist of a much greater part of the population. The ability to suppress rebellions was added to protect the republic from domestic insurrection, but the making the government vulnerable to the people by arming them was another means of protecting the republic.

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 2. The text. “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.”

The Framers were incredibly specific and very detail-oriented in creating the Constitution. They haggled over every sentence, every word, every piece of punctuation in Constitution. In fact, the deliberate change of a comma to a semicolon in one version of the draft was an attempt at expanding the central governments power and almost changed the meaning of the document, until it was caught and corrected. With this in mind, why would the Framers grant “the people” the right to bear arms and not “the milita” if that was their intention? This point is made very forcefully in this video.

 Understanding the real meaning of the text requires a knowledge of history. At the time of the Founders, the distinction between the individual and the militia did not exist. The militia was a compulsory and universal system, not something separate from the individual. There was no distinction between the militia and the people and the concept of the militia as an actual separate entity did not exist until after the war of 1812.

This idea can be witnessed in several examples from the time:

- The first draft of the Amendment was actually worded after Virginia’s Declaration of Rights, and it began, “A well regulated militia, composed of the whole body of the people…” 

- During the debates George Mason, made this point explicitly: “Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c., by our representation? I ask, Who are the militia? They consist now of the whole people, except for a few public officers.”

Congress actually rejected the wording that stated “to keep and bear arms for the common defense” to ensure that the right was seen as an individual right, not simply as part of national defense.
Interestingly, this same debate was had regarding the English Bill of Rights of 1689, but in that case as well, the individual right wording won out. 

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3. Historical Context. At the time of the founding there was a tradition of individual rights to weapons. The Framers based their philosophy on a long history of English law (among many other philosophies) and in this area the right to keep and bear arms has been very present for a long period of time.

- English common law always allowed a right to keep and bear arms, and in fact doing so was REQUIRED for most of English history. 

- This right was protected in an un-named charter by Henry II in 1154. 

- The 1215 Magna Carta ensured the right of individuals to revolt against the government if their rights were not protected — this right not only implies but necessitates a right to keep and bear arms (so also with the Declaration of Independence). 

Disarming of English citizens and raising of a large standing army and tyrannical treatment of citizens by King Charles II and King James II resulted in the English Bill of Rights of 1689 which guaranteed no royal interference in the freedom of the people to have arms for their own defense. This would later be a major influence on the Declaration of Independence, Constitution, and US Bill of Rights. 

This is an outstanding article highlighting this long tradition.

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 4. In Their Own Words. If the Founders intent for the right to bear arms to be an individual right for the purpose of defense against tyranny is not obvious enough at this point, statements that they and others of the time made make this clear.
* It must be noted most of the statements are in the context of a debate between a standing army and the militia, but as already discussed, the militia was viewed as the people and the argument for a militia to be armed to protect against a standing army only further demonstrates the intent was that the people be armed as protection against the government: 

 “And what country can preserve its liberties, if its rulers are not warned from time to time that this people preserve the spirit of resistance? Let them take arms.”
 — Thomas Jefferson in a letter to William S. Smith in 1787

 “Their swords, and every other terrible implement of the soldier, are the birthright of an American… The unlimited power of the sword is not in the hands of either the federal or state government, but, where I trust in God it will ever remain, in the hands of the people.”
— Tench Coxe, Pennsylvania Gazette, Feb. 20, 1788 

 “Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.”
— Patrick Henry, Debates 

 “…to disarm the people — that was the best and most effectual way to enslave them.”
— George Mason, Debates 

“The great object is that every man be armed…everyone who is able may have a gun.”
— Patrick Henry, Debates.

“As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.” 

— Tench Coxe, `Remarks on the First Part of the Amendments to the Federal Constitution,’ Philadelphia Federal Gazette, June 18, 1789

 “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms…”
— James Madison, Federalist Papers #46

 “The right of the people to keep and bear…arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country…”
— James Madison, I Annals of Congress 434 [June 8, 1789]

“A militia, when properly formed, are in fact the people themselves…and include all men capable of bearing arms.”
— Richard Henry Lee, Additional Letters from the Federal Farmer (1788) 

 “The right of the people to keep and bear arms has been recognized by the General Government; but the best security of that right after all is, the military spirit, that taste for martial exercises, which has always distinguished the free citizens of these States….Such men form the best barrier to the liberties of America”
— Gazette of the United States, October 14, 1789

“The whole of the Bill (of Rights) is a declaration of the right of the people at large or considered as individuals…. It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of.”
- Albert Gallatin of the New York Historical Society, October 7, 1789 

“No Free man shall ever be debarred the use of arms.”
— Thomas Jefferson, Proposal Virginia Constitution

 “No kingdom can be secured otherwise than by arming the people. The possession of arms is the distinction between a freeman and a slave. He, who has nothing, and who himself belongs to another, must be defended by him, whose property he is, and needs no arms. But he, who thinks he is his own master, and has what he can call his own, ought to have arms to defend himself, and what he possesses; else he lives precariously, and at discretion.”
— James Burgh, Political Disquisitions: Or, an Enquiry into Public Errors, Defects, and Abuses [London, 1774-1775]

 “The people are not to be disarmed of their weapons. They are left in full possession of them.”
— Zachariah Johnson, Debates

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One may say what they will about whether citizens should or should not be allowed to possess firearms, but one thing that cannot honestly be said is that that the Framers did not intend for it and that the Constitution does not allow for it. 

 (Coincidentally the courts have consistently upheld this view as well, but that is a matter for another post)