On the Application of Godwin’s Law in Gun Debates

So one retort that I hear now and then when I bring up the Nazi experience when discussing guns is Godwin’s law.  Like anything that goes into the vernacular the term “Godwin’s law” is a little fuzzy around the edges.  The most commonly understood version of it was that whoever invokes Hitler or the Nazis automatically loses the argument.  And sometimes it is expanded to other contexts.  Like I think if you invoke slavery too fast, it has a similar quality.

But there are exceptions to this.  For one thing, if shoe really, really fits, it’s kosher (e.g. here and here).

And I think there is another exception that applies, as outlined here:

When talking about protection against tyranny, there is no such thing as Godwin's law. @garethjonesgb @rangersg @piersmorgan @nra
— Aaron Worthing (@AaronWorthing) January 13, 2013

(And as a point of fact, I wasn't citing Alex Jones.  I was citing the historical fact that the Jews of Warsaw held off the Nazis with guns longer than the entire nation of Poland, a point made by many people.  If Jones said it, it was just a case of a broken clock being right two times a day.)

But my point about the invalidity of Godwin's law is especially true when talking about Constitutional protections.  One major reason why the Constitution is written the way it is, is to prevent the rise of tyranny.  And yes, tyranny can be done by the majority.  Now some of the way this is done is just by the checks and balances inherent in the structure of the system.  If the only way you get anything done is to convince both houses of Congress, to either convince the President or override his veto, and then to convince the Supreme Court it is not unconstitutional, then the chances of a tyrannical law being passed is lowered considerably.  That is the major theme of Federalist #10.

But on top of that, we do have the Bill of Rights, and the explicit purpose in adding it was to do our best to ensure that the Federal Government never became tyrannical, or if it did, to ensure we would be able to remedy that.  So the very purpose of these provisions, as with much of the rest of the Constitution, is to prevent any person from being dictator of America—or to prevent tyranny of the majority.

Now of course the Founding Fathers never imagined a tyranny as monstrous as Nazi Germany (or Stalin’s Russia, for that matter).  It would be over a hundred years before the Nazis existed and of course the dictatorships the Founders knew of and studied were simply in a different class.  The very concept of totalitarianism, one of the hallmarks of the Nazi regime, didn’t even exist as an idea.  Compared to Hitler, a dictator in that era tended to leave his citizens still relatively free.  I am not apologizing for their tyranny, I am just noting a fact.  And of course the Holocaust was something beyond their imagining (although to be fair, slavery and what was happening to the Native Americans rivaled the holocaust in the scale of evil).

But the key thing is that Nazism, and its evil modern cousins, Stalinism, Maoism, fascism, and so on, is still the kind of thing the founders were guarding against.  No, they didn’t specifically worry about it, but if you transported the founding fathers by some time machine to the newly liberated camp of Auschwitz, and taught them how things got to be this bad, they would be shaken to the core.  But this wouldn’t make them suddenly decide that the Bill of Rights is unnecessary.  Instead it would solidify their commitment to the protections that are already there and maybe they would even think of adding some additional ones.

The ultimate purpose of the Constitution is to better protect our right to life, liberty and the pursuit of happiness.  “The Government Exists to Protect Our Rights,” is the title of one post I wrote here.  This is done both negatively and positively.  It is done negatively, by ensuring that the Federal Government doesn’t violate these rights.  But it is also done positively by making the Federal Government strong enough to ensure those rights.  It doesn’t do much good to have a First Amendment right to blaspheme a religion, for instance, if the government cannot protect you from fanatics who would kill you for doing so.  So for there to be true freedom of religion, for instance, you need the government to recognize this right, and you need it to protect you from private individuals who would do violence to you for having exercised it.

A large part of the function of our Constitution is as a risk control system.  It serves other functions.  It grants sweeping powers to the Federal Government.  It also sets the rules of the game in which power is exercised.  But in terms of a risk control system, the founders have said to us “we have chosen to make these things very hard to do.”  This requires a necessary calculus of 1) how sure they are they are right about a given policy, 2) how bad it would be if the policy was not followed, and 3) their estimation of the likelihood of it not being followed if there is no constitutional provision protecting against it.

I mean if you were talking about adding a new right to the Constitution today, that is the analysis you would go through: 1) are we sure enough to tie future generations’ hands on this, 2) how bad would it be if future generations actually did what we are trying to prevent and 3) how likely would it be that future generations would do the thing we were trying to prevent?  For instance, there is no Constitutional right to buy a car (if you can afford it).  Why not?  Well, for one thing, does anyone think that Congress would ever be insane enough to ban cars entirely—at least not until there is a viable alternative?  And then if there really was an alternative that made sense, would we want to tie our hands on this point?  So there is no right to a car, and no serious desire to amend the Constitution to give us one, because 1) we don’t see a danger of an unwise ban and 2) we are not sure we want to tie the hands of future generations on this point.

So when we talk about whether to add to our Constitution, or whether a part of our Constitution still makes sense, those are the questions we should ask.  And in that context talking about “what’s the worst that can happen” is exactly appropriate.  And if “the worst thing that can happen” is the rise of Hitler-style tyranny (broadly defined), then it is justified to talk about how to avoid that outcome.

Of course people overuse the Hitler reference and it is good to shame people into toning it down.  But we also owe it to the millions he killed to learn from what happened.  “Never forget” is the mantra, and in practical terms, that means we remember how Hitler did what he did, and do what we can to prevent someone else from going down the same road.

So if you are talking about whether to put a rail line in a given place, it is almost always inappropriate to say, “that’s how the Nazis did it!”  Even if that is literally true, there just isn’t that much moral force to that argument.

But when you are talking about the wisdom of provisions in the Constitution that prevent a person from making him or herself absolute ruler of America, from censoring ideas, jailing dissidents, and massacring a minority, it is exactly correct to point out that something is exactly what Hitler did.  What good is it to say we should learn from that experience, if we can’t invoke it for the purpose of keeping it from happening again?

And it is far from paranoid to do so.  Or if it is paranoid, it is a paranoia shared by the founders.  If you read the Constitution and reason from it, the founders believed that the following was sufficiently likely to occur that they wrote part of the Constitution to specifically protect against it:

1) The President would commit a high crime or misdemeanor (impeachment clause);

2) Congresspersons would commit treason, breach the peace, or commit a felony (speech and debate clause);

3) The President might arrest members of Congress in order to push them around (same);

5) Congress might attempt to pass a law declaring a person a criminal without a trial (bill of attainder clause);

6) Congress pass a law outlawing past conduct you had legally engaged in (ex post facto clause);

7) Congress might attempt to pass a law restricting freedom of expression (First Amendment);

8) Congress might attempt to suppress religious freedom (same);

10) Congress might attempt to suppress the right to petition and protest (same);

12) Government officials might attempt to take your guns from you (Second Amendment);

13) Government officials might attempt to quarter soldiers in your home (Third Amendment);

14) Government officials might attempt to search you or your home without cause (Fourth Amendment);

15) Government officials might attempt to take away your life, liberty or property without a fair trial (Fifth Amendment, Sixth);

16) Government officials might attempt to take your property for public use without even paying you back (Fifth Amendment);

17) Government officials might attempt to administer cruel and unusual punishments on persons (Eighth Amendment); and

18) Government officials might attempt to hold a person unlawfully (habeas corpus).

And that is just what the original founders were concerned about.  Those who wrote the Civil War Amendments and other provisions in our Constitution had other concerns, too.  And the thing is with the exception of the Third Amendment and the impeachment clause, each and every one of those provisions has been needed at some time in the sense that they have been violated, at least according to our courts.  Speech has been suppressed.  Cruel and unusual punishments have been applied.  Defendants have been subjected to unfair trials.  I think on balance our Federal Government has been a force for good, but no one would argue it had a spotless record.

And we are founders, too.  Every day we leave the Constitution in place we are saying to ourselves that we agree with what is in place, or at least we can’t get enough people who disagree to change it.  And when we pass judgment on whether this document continues to make sense, it is always a logical question to ask, “will this help reduce the chance of an evil on the scale of Nazism or Stalinism?”  I mean a lot of people might reasonably say, “if our Constitution wouldn’t protect us from a Hitler, what good is it?”  Of course no Constitution can present a 100% guarantee on this point—it is ultimately a piece of parchment dependent on us to make it work—but we can make it do as much as any piece of paper can on this point.

So yes, it is absolutely correct to note that the Nazis took guns from the Jews and this made killing them later that much easier.  Kristallnacht was in part a gun raid.  You may feel that it makes more sense to prevent another Sandy Hook than another Auschwitz.  But don’t pretend this is an invalid concern solely because the other person is talking about Nazis and that is somehow out of bounds.  Don’t invoke Godwin’s Law here.

And when you think of these question in the terms I suggested, as a matter of risk aversion, another dumb argument falls by the wayside.  One common retort when you argue that the right to bear arms protects against tyranny and genocide is to argue that you have to believe that the danger of such a thing occurring is imminent.  Is that what the Constitution is written for?  To deal with immediate problems?

Oh, certainly if George Washington started making noises about suppressing speech, holding people unlawfully without trial and so on, the Founders would have pushed the Bill of Rights through even faster.  But the dangers they were guarding against was not necessarily immediate.  The danger could in fact be far down the road.

Take, for instance, the impeachment clause.  When it comes to Presidents, it represents a chance to peacefully say, sic semper tyrannis and “kill” the king, but in a civil and orderly fashion.  In this sense the impeachment clause serves a purpose similar to the Second Amendment's anti-tyranny function.  But this clause has never been successfully invoked.  Of course we have impeached two presidents (Andrew Johnson and Bill Clinton) and I will leave it to you to debate the correctness of those impeachments, but we have never removed a President using this clause.

So does that mean we don’t need an impeachment clause?  Does that mean we should chuck it as an anachronism?  Of course not.  Just because we have never used it, doesn’t mean we are never going to need it.

And indeed, maybe it has already served a useful purpose.  Let’s put aside the controversial impeachments of Clinton and Johnson, and focus on the impeachment that didn’t happen: Richard Nixon.  I believe it thoroughly to the case that he deserved to be impeached and removed over Watergate.  History tells us that it was when Republicans told him to step down, he finally relented.  Can there be any doubt that if he didn’t resign he would very likely to be the first president removed from office by the impeachment procedure?  And can there be any doubt that the prospect of that historic shame is at least part of what convinced him to resign? It is better to leave with some of your reputation intact.

How many times have presidents contemplated a certain action and were stopped by the fear of impeachment?  I think we can never know, but we certainly feel better having it hang over their heads than not.

So you don’t have to believe that Obama ought to be impeached, to believe there should be an impeachment clause.  And you don’t have to believe that Obama is himself a tyrant, or planning genocide, to cite the prospects of tyranny or genocide as a reason to keep the right to bear arms.  The Founders didn’t write the Constitution for one day but for untold generations and a world they could scarcely imagine.

Besides, if you only had a right to bear arms when tyranny or genocide was imminent how would that actually work?  Imagine we gave up our guns and a future dictator managed to become President.  Imagine he planned to make himself absolute ruler of America, to dissolve the Congress and the Supreme Court, and refuse to stand for election or respect the term limits set for his office.  And then once he had a power, he would massacre an ethnic group he doesn’t like very much.

So before he does that, do you think this would-be dictator will suddenly allow people to have guns?  Do you think he will say to the people, “hey, I plan to overthrow democracy and commit genocide.  So I will lift the restrictions on private gun ownership so you can stop me.”  Not frakking likely.

No, the time to protect our right to bear arms is before we see the dictator rising, because if we wait until after the dictator appears, it just might be too late.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.