By James Ostrowski
Can recent events in Venezuela shed any light on the gun control debate in the United States? That is exactly what I told the New York Appellate Division court on February 28th:
“The problem with intermediate scrutiny is, you have this fundamental right declared by Heller, but nowhere in the intermediate scrutiny test is there any value at all given to the two primary values of the Second Amendment…which is, you have the right to protect yourself against a tyrannical government and, by the way, if you look at the headlines, Venezuela is now shooting unarmed protesters. So, it’s not like, oh, we have a democracy. What if the democracy falls apart, as it is? But also, whenever the government is not around to protect you, you have the right to protect yourself. And in the intermediate scrutiny test, there is absolutely no weight given to either of those values. So that test cannot stand.”
The right to bear arms is recognized as a pre-existing natural right in the Second Amendment by use of the term “the” as in “the right of the people to keep and bear Arms, shall not be infringed.” The right has two main purposes, one of which is essentially ignored by gun control supporters. The right allows people to defend themselves when the government fails to do so or is indeed the aggressor. Thus, the right allows people to defend themselves against tyrannical government or against crime when the government is not around to do so, which is the vast majority of the time.
Opponents of the right to bear arms deal with the prime purpose of the right by ignoring it. I know this since I have filed several lawsuits in which I argue on the basis of the need to deter tyrannical government and find that time and time again, my argument is not refuted but simply ignored by the lawyers on the other side and usually the courts as well.
Why is the argument ignored? Because the opponents of the right to bear arms cannot refute it so they pretend it does not exist and instead get into the weeds on whether guns cause or increase crime. Although I believe private gun ownership deters and reduces crime, under the current lenient legal standard for judging the constitutionality of gun regulations – intermediate scrutiny – all the gun control forces need to do is cite a few tendentious studies, sometimes paid for by gun control proponents, and ask the court to defer to the legislature’s alleged ability to make accurate “predictive judgments” about the laws they pass. That is why I decided it was crucial to add the government tyranny argument to all of my Second Amendment cases. See, e.g., People v. Wassell (p. 12, et seq). Moreover, I do so in a deliberately lurid manner so as to put the argument forward boldly and bluntly so that the nature of the argument cannot possibly be misunderstood and so that my opponents are compelled to respond. For example, I will generally cite R. J. Rummel’s Death by Government and the best-known examples of democidal regimes such as Nazi Germany, the Soviet Union and Mao’s China.
The obvious counter-argument to these examples is that our democracy makes such mass democide virtually impossible by placing constitutional constraints on officials, by dividing power and by allowing the people to make changes through elections. This turns out to be an extremely weak argument. First, the general absence of democide by the United States against its own citizens can be attributed at least in part to the existence of the right to bear arms and the best-armed civilian population on earth. To find out whether the right to bear arms is the decisive factor in deterring democide and other forms of tyranny, we would have to do an experiment and abolish that right and see what happens. As preposterous as this notion is, it is exactly what gun controllers have in mind although they rarely say so. Remember, progressivism has no limiting principle. See, Progressivism: A Primer. Nor do any gun control arguments suggest a limitation that allows room for some private gun ownership since they constantly allege that a gun in the home is more likely to kill a family member than a criminal.
The argument that the right to bear arms is obsolete in a democracy has another fatal flaw illustrated by a rhetorical question I asked the Second Circuit Court of Appeals on February 20th: what happens if they cancel the elections? There is really no answer to this point other than the gun controllers’ mere hope that this will never happen.
Thus, the gun controllers have no rational response to the argument that we need the right to bear arms to deter and defend against tyrannical government. Yet, to flesh out the argument, a contemporary example of a democracy quickly evolving into tyranny is extremely useful. Venezuela provides such an example which the progressive left will be hard-pressed to dismiss or explain away.
Venezuela has a complex political and economic history, however, the country has had national elections since 1958. Because of oil wealth and a relatively free economy, the economy performed relatively well compared to other South American countries. Under Chavez and Maduro, the country has drifted towards socialism, however, the seeds of this trend were established much earlier when the petroleum industry was nationalized in 1975. See, José Niño, “The Pundits Still Don’t Understand Venezuela,” Mises.org (08/25/2018). As Niño explains: “Sadly, Chávez used the same petro-state structure for his own tyrannical ends. He doubled down on the errors of the previous decades and brought the country to its knees through easy money, economic controls, land confiscation, and vote-buying.” As the economy has collapsed, and allegations of election-rigging have been made, civil unrest has increased, resulting in numerous street protests and demonstrations.
Unfortunately, at the same time these authoritarian socialist regimes have wrecked the economy, allegedly rigged elections, banned foreign media and cracked down on free speech and assembly, they were quietly stripping away the right to bear arms, never fully recognized in Venezuela anyway, that allows the people to resist tyranny and indeed, overthrow a tyrannical regime. Venezuela started creating a government gun monopoly in 1939, allowing citizens to have only 22s and shotguns and handguns only with a license. See, José Niño, “Gun Control Preceded the Tyranny in Venezuela,” fee.org (Oct. 22, 2019). When the socialists took over, they further restricted private gun ownership as has been their pattern since Lenin first recommended “immediate execution for anyone caught in possession of a firearm.” José Niño writes:
“In 2002, the Venezuelan government passed the first version of the Control of Arms, Munitions and Disarmament Law, reinforcing the state’s iron grip on firearms in Venezuela. A decade later, the law was modified to enhance the scope of gun control and gave the Venezuelan Armed Forces exclusive power to control, register, and potentially confiscate firearms. Venezuela implemented a ban on the sale of firearms and ammo in 2012.”
What does an authoritarian regime do when the economy collapses and desperate people without arms to protect themselves hit the streets to protest? They shoot them as they have done many times throughout history including during the Hungarian Revolution and at Tiananmen Square. Amnesty International has page after page of more recent examples of this tactic. The Venezuelan regime and allied paramilitary units have shot well over a hundred unarmed protesters in recent years and beaten and tortured thousands more. This is all done with impunity as they know the previously disarmed citizens are highly unlikely to shoot back and the populace lacks the means to form an organized and armed resistance.
This is all happening right now in our Hemisphere in a country with more similarities to the United States than one might think. Their language is shared by 40 million Americans and especially in our two largest states, Californian and Texas. Their primary religion, Catholicism, is shared by 20 percent of Americans. 60 percent of Venezuelans have European roots as do a similar percentage of Americans. Anyone who claims that what happened in Venezuela cannot happen here has an extremely heavy burden of proof.
This case study is important because the usual examples we use to illustrate the dangers of disarming a population seem too distant in time or too culturally or geographically remote to be persuasive. Venezuela is happening right now and not too far away geographically and culturally. It is a clear example of what can happen in a country without a right to bear arms. We Americans are spoiled. We have the right to bear arms and therefore take it for granted. We think, it can’t happen here, unaware of why it can’t and hasn’t happened here: we are armed and can resist and that capability deters tyranny and makes active resistance unnecessary. An armed populace is therefore a promoter of peace. In country after country where civil unrest and genocide are seen, we almost always see either an unarmed or disarmed civil population.
The historical frequency of democratic regimes deteriorating into authoritarianism, rigging elections and ultimately shooting protesters, is fatal to the notion that procedural rights alone, without resort to arms, are sufficient to protect us from tyranny.
America, with some exceptions usually related to disarmed groups not considered to be citizens at the time, has avoided the systematic mass murder, civil unrest and political instability common in countries lacking a right to bear arms. The best kept secret in America is this: The Second Amendment Works!
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