While the country is currently buzzing about gun control, no one has made me think deeper about the Second Amendment than Professor Christopher O. Tollefsen. Professor Tollefsen, a thinker I deeply admire, is a philosophy professor at the University of South Carolina. Recently he published an article in response to one published by David French, where Tollefsen posits a philosophical argument for the banning of “assault weapons.” Although it was incredibly thought provoking, I urge you to read it before you read my critique as I don’t agree with his arguments, nor conclusion.
I don’t hide the fact that I like guns and deeply believe in the importance of the Second Amendment. The NRA sticker attached to the back of my laptop, conveniently located next to my “Freedom not Socialism” sticker, makes that quite clear.
Tollefsen first focuses his argument on the oft cited reason for the Second Amendment: an armed citizenry is necessary in preventing tyranny. Indeed, the Founding Fathers just won a war against a tyrannical government. Hoping to prevent future government oppression, the Founders enshrined into the Bill of Rights the individual right to keep and bear arms. In other words, an armed citizenry serves as a final check on the government.
Tollefsen takes issue with this understanding of the Second Amendment’s purpose. A rebellion, he argues, can “only be justified were there some plausible hope of success.” He goes on to argue that since the size and power of the military is so strong, “no armed resistance that did not already have the military’s backing could succeed.” He therefore concludes that the idea that gun rights are essential to the defense of citizens against tyranny is a “pleasing myth.”
I take issue with this. I find the notion that in order for a rebellion to be justified, it would need to fundamentally have the potential to be successful, perplexing. Perhaps the Founders saw things differently. Perhaps they viewed an armed citizenry as a necessary requisite for freedom. One cannot be truly free if there exists no potential to rebel. Otherwise, the citizenry is effectively relegated to slaves of the state.
In Federalist 46, Madison wrote that the governments in Europe are “afraid to trust the people with arms.” As a result, much of European history is filled with governments infringing upon the rights of the citizenry, who were rendered unable to fight back. The Founders therefore granted the individual the right to bear arms, indeed the very same arms that the government possessed. As David French wrote after the Las Vegas massacre, “an American leaving his home with a musket was on par with a member of the Continental Line.” Nowadays however, “the contemporary gap between civilians and the military is vast and growing.” The semi-automatic AR-15 that sits in the gun vaults of millions of Americans cannot match the firing rate of the military’s M4; but it is the closest citizens can legally get.
The Second Amendment was passed to level the playing field that exists between the citizens and the government. Banning assault weapons would tilt the scale vastly towards the government by removing the very weaponry that would give us a fighting chance if a tyrannical government came knocking at the door. Madison would be rolling over in his grave.
Tollefsen then moves on to three other arguments. First, he argues that French must surely be overstating the idea that assault weapons are a “necessity” for self defense. Perhaps some other firearms could have also been effective. Assault weapons, he argues, might be “overkill.”
I find this argument baffling. What about an assault weapon (let’s use an AR-15) makes it “overkill?” Surely not it’s caliber, since there are more powerful rounds than the .223 it shoots. Does the tactical look of the AR-15 make it overkill? That cannot be either, since its looks do not contribute to its effectiveness. Tollefsen leaves us in the dark here.
Next, he criticizes French’s comparison between citizens and the police. French wrote that if the claim espoused by the gun control lobby is to be taken as true, that one does not “need” a high capacity magazine, why then do police use them? Tollefsen takes issue with this comparison. He argues that “Police are not in the business of personal defense. Their purpose is defense of the citizenry at large, apprehension of criminals, and prevention, when possible, of criminal activity.” Therefore, they go “beyond personal defense” and require different weapons.
Again, I find this argument hard to understand. When an officer draws his weapon, he is doing so because the individual standing at the receiving end of his weapon poses a direct threat to him, or perhaps to other people as well. At that moment, the officer is protecting himself and the others in the immediate vicinity. He is not protecting the citizenry at large at that moment. Surely, the cumulative effect of the apprehension or death of the criminal will contribute to a safer community. But in essence, officers are engaging in personal defense, the same way I would to protect my family and I.
Lastly, Tollefsen goes on to discuss the very right of self defense. Quoting St. Thomas Aquinas, he argues that, “Intentional killing in self-defense is wrong.” He goes on to say that, “If one intends to kill anyone who invades one’s home, one will probably opt for something one expects to do that more effectively.” Therefore, a “law that makes weapons such as the AR-15 available seems to teach that private citizens are entitled to use the same kind and amount of force, and with the same intention, that police are. That, I think, is an error.” Here too, Tollefsen does not tell us why an assault weapon is more lethal or more effective than other type of firearm. Again, it can’t be its caliber. Even a .22 caliber weapon is perfectly capable of incapacitating or neutralizing a threat, so much so that it’s the preferred caliber of the Israeli Mossad. With no clear distinction between assault weapons and other kinds of weaponry, this argument falls short.
While Tollefsen’s essay was very original and thought provoking, I believe his arguments fall short. They are not only in contradiction with an originalist understanding of the Second Amendment, but they fail to meaningfully distinguish between assault weapons like the AR-15 and other types of weapons. But nonetheless, our national conversation about guns should continue, with its goal of ensuring that law abiding Americans can easily keep and bear arms, while also ensuring that criminals and those who pose a threat to society cannot.