What Gun Rights Defenders and Police Protesters Have in Common

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Protesters calling for stricter measures against police violence should be on the same side of the barricades as Second Amendment opponents of stricter gun controls, argues a Virginia law professor.

Since both fear the government’s ”monopoly of force” and are skeptical of authorities’ ability to protect citizens during times of unrest, they have an equal interest in Constitutional guarantees of the right to bear arms and protect themselves, Robert Leider writes in a forthcoming article in the Northwestern University Law Review.

“Decentralizing force allows private citizens to defend their interests and to protect the public when the government under-enforces the law,” wrote Leider, an assistant professor at George Mason University.

The Second Amendment upholds a “longstanding Anglo-American tradition of decentralizing the means of political violence,” and “fills the gap between public duties and private rights,” he maintains.

“The right to bear arms helps citizens in “keeping the peace and enforcing the law, provides a check against private and public forms of domination, reinforces separation of powers, and promotes individual liberty and security,” writes Leider,

Differing views on the Second Amendment often turn on the question of whether the government should have a monopoly on the use of force, according to Leider.

One perspective contends the government has the “exclusive right to use force to prevent crimes, enforce the law, and punish wrongdoers,” he said.

But a second perspective offers a much wider definition. While it acknowledges government as the “ultimate decider of when force is permissible,” it also maintains that “government may delegate its preventative policing and law enforcement authority in diverse ways, even to private citizens.”

This is exemplified most commonly in granting the right of self-defense, which allows a person to use deadly or violent force against another person without fear of reprimand in order to protect against a deadly threat.

According to Leider, the notion of self-defense is implicit in the rights granted by the Second Amendment, since there are many situations in which law enforcement “would be ineffective to protect against harm,” wrote Leider.

Leider added that the Second Amendment’s effective challenge to the government’s monopoly of force represents a crucial protection for civilians “in times of emergency and civil unrest.”

The debates over the meaning of the Second Amendment underline profound disagreements over “whether the government is, in fact, sufficiently protecting the people in its jurisdiction,” said Leider.

He cited as an example the national movement for radical police reform, which heightened over the summer.

“The protests consuming America derive largely from allegations of police misconduct, and many have adopted the motto ‘Abolish the police,’” wrote Leider.

“Presently, a large disconnect has emerged among those who both decry the police and who seek to further restrain guns and the private use of force.”

But Leider argues that the two sides share a lot in common, and should unite to advocate for their own self-protection through the Second Amendment.

“The government is under no obligation to furnish any individual citizen with police protection or law enforcement,” said Leider.

“So even if the state has some obscure public duty to furnish police protection in general, individuals lack any means of enforcement when the government refuses to protect them.”

Leider also argues that the lack of sufficient effective law enforcement officials has led to underpolicing, meaning the monopolization of force isn’t even being correctly applied.

According to Leider, police clearance rates are only “45 percent for violent crimes and 15 to 20 percent for property crimes.”

Although a possible way to improve under-enforcement would be to increase the number of officers, “increased police presence could make the overcriminalization problem worse without solving the under-enforcement problem,” wrote Leider.

Under-enforcement also has a disproportionate effect on poor neighborhoods, Leider said.

Police are generally more funded in more wealthy neighborhoods, where tax money from wealthier families can invest more money towards law enforcement. This leaves poor or disadvantaged communities with less law enforcement services than neighborhoods that already are safer, he wrote.

“If the government cannot provide adequate protection—and often it cannot—then the least it can do is to allow members of the community to protect themselves and to preserve law and order,” said Leider.

“We should reject claims that in a modern, urban society the government’s ‘monopoly of force’ is adequate to protect everyone within its jurisdiction.”

Leider conceded that “professional policing has made long strides since the days of incompetent constables, and we may have less need today for citizen’s arrest than in centuries past.”

But he pointed out that private citizens already have even more power than just self-defense. He noted that in certain circumstances American law even allows private citizens to perform a felony arrest.

“In the case of felonies, private citizens may arrest a suspected person if a felony has been committed and they have with municipal police to provide on-duty policing,” said Leider. “That is only slightly narrower than the arrest authority of professional law enforcement, who are excused if they have probable cause even if a crime has not, in fact, been committed.”

Although Leider notes that those in favor of stricter gun control consider such law “archaic” for today’s time period, Leider argued “a government that has no monopoly of force has no moral responsibility to extend supplemental police protection or to indemnify for losses.”

Leider said fears of vigilantism cited by opponents of gun controls are misdirected.

As long as private citizens participate in defensive force, meaning force that protects them from any present threat to themself or their property, vigilantism isn’t an issue, he claimed.

But he conceded that there was a danger if citizens participated in “offensive force,” that is, force against a person or group to “implement policy. ”

“I do not want to suggest that private citizens should have the unqualified right to enforce any criminal law on the books,” said Leider. “Although police agencies may under-enforce the law, we simultaneously suffer from severe statutory overcriminalization.”

Leider also made clear that he’s not sure which laws should enforceable by civilians and which shouldn’t be allowed.

But what he does say is that it would be more problematic when choosing to take responsibility “beyond core common-law mala in se crimes to broad mala prohibita regulatory offenses.”

“The provision of law enforcement may be a public duty, but it is not a private right. And making it a private right would create profound separation-of-powers problems.”

Self-help, decentralization of the government’s monopoly and private law enforcement “are the best remedies when governments undersupply needed levels of police protection,” said Leider.

The right to bear arms still has relevance today, Leider argued, and “should warrant consideration when determining the scope of the right, including that the arms protected by the Second Amendment should continue to include those arms whose primary value is public security rather than individual self-defense.”

The full report can be downloaded here.

This summary was prepared by TCR justice reporting intern Emily Riley.

2 thoughts on “What Gun Rights Defenders and Police Protesters Have in Common

  1. In the article, there are two egregiously incorrect statements of constitutional law. My hope is that these statements are made by the TCR Staff and not assistant professor Robert Leider. The statements are:

    “This is exemplified most commonly in granting the right of self-defense”

    “the notion of self-defense is implicit in the rights granted by the Second amendment”

    The problem with these statements is that the constitution does NOT grant anything to the people. The document defines the powers the people grant to the government. The second amendment explicitly lists a power NOT granted to the government, ie the ability to infringe on the people’s right to keep and bear arms.

    In fact, the constitution explicitly reserves all rights to the people that are not explicitly granted to the government. This idea that citizens need to ask, “Mother may I” for permission to the government is one of the fundamental misunderstandings of current civic understanding. If a law professor is operating under this same misunderstanding then we are in deep trouble.

    • Robert Leider and other legal scholars maintain the right to bear arms for self-defense is “implicit” in the Second Amendment. To support his argument, he maintains that “the right of self-defense and the power to enforce the law must include some power to exercise these functions successfully.” The Second Amendment affirms the prior ‘right of the people to keep and bear Arms” and says it “shall not be infringed.” So we accept the reader’s point that any wording of Leider’s argument to suggest that such a right is ‘granted’ to the people by the Constitution is misleading.

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