The Second Amendment as a Guard Against Government-Sanctioned Tyrannous Factions

Abstract

The rioting and looting that occurred in American cities during the summer of 2020 highlights an heretofore ignored aspect of the Second Amendment—the Framers’ concerns about the danger of factions. The Framers of the Fourteenth Amendment, through which the Second Amendment applies to the states, witnessed first-hand freedmen and white Republicans being subjected to terrorist campaigns supported or accommodated by local law enforcement which the “Redeemers” controlled politically. Similarly, the riots and looting of 2020 illustrate that even today, local government officials can be complicit in law-enforcement using political, unequal criteria in determining whether and to what extent to preserve and enforce law and order. Reviewing the events of Summer 2020 suggest that the individual right to self-defense is not only still important, but remains a necessary check on violent factions allied with corrupt local government.

This paper argues that the Second Amendment carries a particular force and has special application when individuals must defend themselves and their property against tyrannous factions that operate with the direct or indirect support of government. The Second Amendment counters faction in two ways: it protects the individual right of self-defense against violent factions; and it checks the power of government to oppress its citizens through violent factions. Although the Constitution as a whole embodies a concern about faction, the Second Amendment provides unique protections against the abuses of faction by giving citizens the right to defend themselves from criminal aggression when the government will not.

Keywords: Second Amendment, riots and looting, Summer 2020, self-defense, law and order, individual right

JEL Classification: K10, K14, K42