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"Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance."
     -- Joseph Story
     Commentaries on the Constitution of the United States
     Book III, § 1857.

Thursday, August 15, 2002

INSTAPUNDIT notes a post by Eugene Volokh discussing the right to bear arms and its association with the possibility of armed resistance to the tyrannical impulses of government. Volokh has since elaborated, but he still hasn't quite answered the question originally posed, which is, is there such a thing as a right to rebel? The impression he leaves, though, is, there is, lurking somewhere in the guts of the Second Amendment, an actual right to engage in rebellion, and, unfortunately, the Framers didn't spell out for us just how bad things have to be before that right comes into play.

This is a variation of the same idea Europe has been trying to put over on us since September 11: The idea that war is somehow subsidiary to and controlled by legal process. The reality is different: No one who wins a war is going to relinquish the fruits of victory just because some court claims the authority to decide whether the cause was "just," and no one who loses a war has a defense in the victor's courts that he ought to have won. Once recourse is had to war, legal process is out the window, and there are only two possible outcomes: either one side will defeat the other utterly, in which case it may impose its will as it pleases (and may, also, if it pleases, tart up that will in the form of legal process, as was done in the Nuremberg trials), or the sides will come to a negotiated peace (or a negotiated surrender), in which case the terms settled upon in those negotiations are the last word on the matter.

Volokh quotes Blackstone at one point on the right to bear arms, so he is also presumably familiar with Blackstone's examination of the supposed right of rebellion, in the context of the Glorious Revolution of 1688, and the consequences which the defeat of a government in being must necessarily have on all its positive law -- including whatever pre-existing law might be taken as sanctioning a rebellion. The consequence necessarily is, a legal right to engage in rebellion is a contradiction in terms.

The Framers were far more realistic on this matter; it would not have occurred to them -- except, maybe, as a monumental joke -- that the courts ought to sit in judgment over war. All they did -- all they could do -- was to arrange the fundamental law so as to make rebellion a credible threat against an overreaching government.

The correct answer to the question Volokh danced around -- when is it proper to take up arms and rebel? -- is, when you can win; this, whether or not Volokh finds it satisfying. The question whether a particular war is "just" or not belongs to historians, after the fact; it is not a matter for legal speculation.

No doubt Volokh still finds this view "overly simplified," so I have an assignment for him: Draw up the briefs on the question, "was this rebellion justified?" for both sides in a) the American Revolution, b) Shay's Rebellion, and/or c) the Civil War.

-- posted by Clayton 8/15/2002 04:13:00 PM

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