“We hold these truths to be self-evident, that all men [sic.] are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men [sic.], deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
– Thomas Jefferson, United States Declaration of Independence
Early versions of the Second Amendment in the debates drafting the Bill of Rights included a lot of libertarian specificity. On June 8, 1789, James Madison (Federalist) proposed the following:
“The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”
Madison was a conservative of his time, fearful that the toiling masses would take up arms against privilege, power, and authority. On September 4, 1789, the Senate voted to change the language of the Second Amendment by removing the definition of militia and striking the conscientious objector clause. On September 9, it was edited again, and on September 21, it was edited for the last time, to read:
“A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.”
This is the infamous Second Amendment. Interpreting “libertarianism” has been incredibly inconsistent historically, for American individualist libertarians and Spanish libertarian communists. While they may have some “anti-authoritarian” sentiments in common, some strategic and visionary differences are very obvious, distinguishing the two as historic enemies on very principled matters—from free association, to property, to sexual rights, to disenfranchised minorities.
Social Libertarianism & The Post-Revolutionary Years in America
Still fresh from the Revolutionary War, during the Articles of Confederation (a loose governing foundation of what was later scrapped), the United States was in debt to many foreign debtors for their aid during the Revolutionary War. States began imposing delinquent taxes upon debts due by poor rural American farmers who had spent the recent years fighting in the War, instead of farming. Then, many states began repossessing these farmers’ machinery, homes, and farms to pay this debt. (Although, populist and libertarian Governor John Hancock refused to conduct such activities.) Farmers began protesting and rebelling, and leading organizers were arrested.
Led by Daniel Shays, farmers began shutting down county courthouses and eventually disrupted hearings on collecting debts and tax. At this time, no standing army actually existed in the US, and former Continental Army General Benjamin Lincoln was requested by the State of Massachusetts to solicit rich private financiers to develop an army to defeat these farmers, quell the rebellion, retain the State’s right to repossess land, teach a lesson about the state, and teach the poor a lesson about who’s discipline and order they lived under.
Shays and the populist farmers expressed a very libertarian sentiment of their time, but their ideas were absolutely inconsistent with the individual economic freedoms or libertarian ideals of the rich of their time.
The most social libertarian view in Revolutionary America was spelled out by Thomas Paine, in his famous pamphlets “Common Sense” and later in “Rights of Man.” While many associates of the Federalist movement and later, the Federalist Party, had hardly veiled their disdain for common people, the writings of Paine empowered many with the notion that people can have collective demands, and that they should make the decisions that effect their lives. During the American Revolution, most of the founding fathers had a very uneasy relationship with Paine. While they appreciated that his rhetoric inspired people to fight the British, they were worried that the rhetoric might be taken seriously.
When the elite began to write their own pamphlets to challenge Paine’s popular view that a constitution should be a charter that is “the act of all and not one” subject to “periodical review and democratic amendment,” radicals showed their disapproval, often in a militant fashion. When an anonymous author wrote a pamphlet titled “The Deceiver Unmasked; or Loyalty and Interest United: In Answer to a Pamphlet Entitled Common Sense,” the New York Mechanics Committee demanded to know who the author was and called for the immediate cessation of its production. When the printer refused, committee members confiscated the print run, and then burned the entire stock. Other cities saw similar displays of collective action against counter-revolutionary propaganda.
In the next several decades after the revolution, many people were under-whelmed with post-revolution America. They included farmers who lost their farms to speculators, republicans who wished the French Jacobins victory, progressive minded citizens who called for a comprehensive public education, and “levelers” who wanted to remove all honorary distinctions and lingering aristocratic elements. Although a diverse crowd with wide-ranging interest, they seemed to always espouse a common them—that the new government was indifferent to the governed. These “self created societies” as they were called by George Washington primarily involved themselves in writing letters, holding discussion groups, and attempting to pressure those in power to implement favorable policies.
The democratic societies in Pennsylvania seemed to be particularly active and well known. Their rhetoric and actions deeply trouble the Federalists in power as well as the new Democratic-Republican Party of Jefferson and Madison. Although President Washington could find no legal justification to forcibly prevent the societies from existing, he issued statements to the press, and even spoke in front of Congress about the danger of such permanent organizations.
Although the societies had caught the attention of the ruling party, they posed very little threat to the established government and economy until George Washington implemented a regressive whiskey tax in 1791. The plan was designed by Alexander Hamilton to raise revenue in order to pay off debt incurred during the Revolution through an excise tax on grain distilled as whiskey. The tax led to Pennsylvanian farmers and distillers entering into the democratic groups, and they demanded action. Although, the governing officials attempted to dismiss their protest as petty, the small scale farmers and distillers in western Pennsylvania depended on the sale of whiskey due to their inability to easily transport grain in any other form over the mountains and to the East. The sale of whiskey happened to also be the means through which these rural farmers obtained federally recognized currency- a commodity which the region was desperate for and also the only means by which the tax could be paid.
Despite their opposition, the tax was implemented, however the farmers insisted on continuous resistance. Tax collectors were tarred and feathered, and even consenting distillers saw the same fate. The Mingo Creek society was particularly ambitious. They formed militias after confiscating guns from armories, formed their own court systems, made foreclosures illegal, and forgave debtors. To George Washington and his allies, this experiment in self-rule was deemed insurrection, and Washington reacted by personally leading conscripted troops into battle against the citizen militias of the democratic societies.
Recognizing their inability to take on the federal government in combat, the militias laid down their arms. Washington had not only defeated the democratic societies militarily, but had crushed their morale as well as their standing in public opinion. Membership dramatically dropped, and most societies ceased to meet entirely. However, the conditions that drove motivated men and women into action in the years after the Revolution continued to produce the same effect throughout the 19th century as well.
Washington and the US federal government’s response exhibits how capitalist states protect property—on the base of individual, not social freedom. In a socially free society, early American rebellions, like Shays’s and the Whiskey Rebellion, would have never been crushed. Property would have become socially owned, not individually. The distinction of social and individual libertarianism is essential to tease out the differences between principled libertarian socialism, and haphazardly articulated anti-authoritarian criticisms and strategies. These differences are perhaps most pronounced in the history of the 2nd Amendment.
Libertarianism and the Second Amendment
The first major US Supreme Court Case (United States v. Cruikshank, 92 US 542 (1875)) ruled possibly the most major decision for US gun regulation. A racist case with a racist decision in the Reconstruction Era, the Supreme Court upheld that Congress could not restrict Americans’ right to bear arms, but that the Constitution did not prohibit individuals and states from restrictions. In this case, the Supreme Court was permitting racist white men from restricting African-Americans from bearing arms, resulting in the massacring of 60 African-Americans, in what came to be known as the Colfax Massacre. This was among other the many decisions in early American history that reinforced devolution or independent “state’s rights” policies—a pseudo argument for political libertarianism, arguing for small states (similar to some arguments for small businesses today), no matter how racist, sexist, or otherwise unprincipled.
Shortly after the Supreme Court approved post-Confederate states to prevent African-Americans from owning guns, the USSC would hear another important case over the Second Amendment. While Cruikshank was the most fundamental marker for fragmenting US public policy and developing the confusion of different policies in every state, the next major Supreme Court 2nd Amendment case was probably the clearest example of distinguishing social from individual liberties, but it, like the first, has context.
In 1877, workers went on strike across the country, in what we now call the Great Railroad Strike of 1877. In Chicago, Illinois, the strike was brutal. Boiling water was used, homes and offices were raided, police shot people marching in the streets, and afterward, the State of Illinois purchased Gatlin Guns. The workers responded by forming a militia. Led by Herman Presser, German socialists trained diligently in Lehr und Wehr Verein. In 1879, they paraded themselves and were arrested. Presser’s militia became famous for Presser v. State of Illinois (116 USSC 252 (1886)): “does not prevent a state from passing such laws to regulate the privileges and immunities of its own citizens as do not abridge their privileges and immunities as citizens of the United States.”
The courts ruled that Presser’s and other militias would need registered with the state, requiring their approval. Effectively, this was a clear statement that states could prevent people from arming themselves in militias that could potentially challenge their power. This became the most conventional tool to barring anti-government and worker militias in the United States, and it was accompanied by a sweep of parallel new definitions across the US.
The most recent definition in Illinois was in its 1970 State Constitution revision, intentionally defining “militia” for this purpose: The State militia consists of all able-bodied persons residing in the State except those exempted by law. (Article XII: Militia, Section 1: Membership)
This move in state definition of “militia” set a premise for a strictly individualized legislation for firearms conduct and ownership in the United States. On the other hand, recent cases have actually made quite a defense for individual firearms owners’ rights to bear arms. While the United States is not a utopia for the National Rifle Association, it is actually much more libertarian on firearms liberties than most developed states. Most firearms regulations are the result of individual states’ decisions–often an excuse of federal level politicians in the U.S. to get out of taking a stance on political issues. By handing questions down to the states, they can escape blame and appear to uphold the federated state structure that founded the United States of America.
Recently, the District of Colombia v. Heller resulted in a slight victory for the NRA, preserving individuals’ rights to bear handguns in the home for self-defense, regardless of their status in the military. This last stipulation is the most popular conclusion of one aspect of debate in the past two centuries. The NRA definitely cares about individual liberties, as some of its membership even attempted to religiously defend “stand your ground” laws after the murder of Trayvon Martin.
The NRA does not stop when it comes to individuals and their right to have guns. They regularly take up efforts to allow individuals with violent criminal records to possess firearms. This is the same reason, though, they are a main financier of wildlife preservation; because wildlife preservation keeps enough animals abundantly alive to keep hunting a thriving sport and hobby in the rural US.
The NRA is not necessarily concerned with the right of Americans to responsibly bear arms for the originally intended purpose of the Second Amendment. They are concerned with the right of arms and munitions firms to sell their products on the market, because those companies write the checks that keep the NRA in business. It should come as no surprise that the NRA won’t say a peep about overturning Presser v. the State of Illinois. As a bourgeois special interest group, they care about the right of Remington, Winchester, and Federal to sell rounds of ammunition. The NRA does not care about the right to bear arms. If anything, the NRA would probably oppose Herman Presser’s historic effort, because it poses the potential to overthrow the companies that back the NRA financially.
Ironically, this is a classic example of individual libertarianism equating to an incredibly authoritarian social reality. The earliest historic liberals were libertarians in a semi-social sense. The Anti-Federalists and even Federalists, like Thomas Jefferson, clearly had more libertarian perspectives, than conservative Federalists, like Madison.
Jefferson was convinced that their new experiment called America could become just as violent, oppressive, and dangerous as England. As a result, he was on guard, warning against its power; he clearly had political intent behind his interpretation of the Second Amendment. “The beauty of the Second Amendment is that it will not be needed until they try to take it.” He even had an understanding of the dangers of its absence in the private sector: “Those who hammer their guns into plows will plow for those who do not.” (Yes, Jefferson owned slaves. His argument here was very evident of his own ideological inconsistencies; if his quotes about the Second Amendment were applied outside of the context of the Cruikshank court case, African-Americans would have probably obtained social freedom much faster.)
This libertarian perspective was not alone in the US. The National Confederation of Workers (CNT) in Spain was an anarchist (libertarian communist) trades union, and when government crackdowns occurred on arms flows throughout Spain, they did their best to make sure workers and peasants were well armed and equipped to do battle in the impending class war. This strategy of foreseeing war and preparing for it has been common in many revolutionary movements. However, in highly developed capitalist societies, where gun regulation is already tight, media portrayal may be more important.
For example, in Illinois, citizens cannot assemble as a separate militia and bear arms. But in exception states where Right-wing militias already present themselves and are legally acknowledged, training in arms may not be such a bad idea, if for no other reason than to call the question into court to disband the Right-wing militias.
In either case, media has definitely changed the need to strategize and present ourselves to the public. The days of street battles not being caught on camera are long gone. Another major difference of today from 1879 is the economic and organizational development of all 50 states in the US. While protests may be able to catch police off-guard times, they cannot plan to defeat the state and federal government’s brute force in combat.
Presser’s efforts were very relevant and worthwhile for his time. They posed serious potential to challenge the state and federal authorities. While these efforts may not seem so worthwhile to us, today, they definitely serve as a lesson for distinguishing social and individual liberties. We can ask why the NRA refuses to take up social questions that are not necessarily profitable to private enterprises, especially when these social freedoms contrast the economic freedoms of private enterprise. We can see class politics overtly at work in the Presser v. the State of Illinois case. The Anti-Federalists sentiment and concerns about the Second Amendment in its drafting were finally expunged in Presser v. the State of Illinois.
Libertarianism and Other Social Issues
The same liberties analysis can be offered for other bourgeois libertarian groups, like the American Civil Liberties Union. When anti-pornography feminists in the 1980s drafted a law to allow victims of sexual crimes to sue perpetrators of the crime, including pornographic filmmakers that promoted similar violence, feminists saw the opportunity to put an end to the silencing and crushing of women’s voices by taking down the pornography industry. Even when Andrea Dworkin and Catherine MacKinnon’s bill passed by referendum and other votes in multiple municipalities and states, Supreme Courts struck it down.
The American Civil Liberties Union sent “free speech” lawyers rushing to the defense of Hustler, Playboy, and the rest of the pornography industry. In an attempt to preserve their right to print and sell whatever degrading imagery they wanted, the ACLU was financed with millions upon millions of dollars to win this case, by any means necessary. The ACLU won, protecting Larry Flynt, Hugh Hefner, and other pornopraphy capitalists’ rights to print whatever images they wanted, to whatever exploitive and socializing ends, whether it includes and promotes rape, child molestation, abuse, or anything else. The ACLU has maintained similar purely individualist interpretations of libertarianism up to today.
They even take it further. The ACLU regularly defends the right of sex offenders to live in close proximities of elementary schools. However, if society had a say in this, they would undoubtedly agree that pedophiles should be allowed nowhere near an elementary school. So, if one supports democracy, the socially libertarian perspective seems to be to prevent individual sex offenders from being endangered. Likewise, if women decide that pornography damages their status, endangers them, and should be brought to an end, the democratically determined decision of those implicated the most may result in ending pornography.
In the same sense, if communities decide they want a halt to arms in their community, they should have a right to regulate arms as such. All of these democratic wills involve social decision. When people democratically voice and exert their will on policies that effect them, that is libertarianism in its most social sense. It is the same libertarianism that the Spanish anarchists promoted, and it is a more clearly articulated, materialist understanding of libertarianism than the founding fathers of the United States.
So, it is not enough to say we are for freedom, liberties, or even in favor of libertarians. Simply preceding these statements by “individual” is not enough either, because the individual liberties of many may require social liberties that trump the liberties of 1% of other individuals. For example, an individual freely associating her/himself with certain ideas on a jobsite would be best defended by freely associating the workers on the jobsite into a union, allowing them to be organized to protect every individuals’ right to freely associate with these ideas. The question of whose freedoms we are protecting is essential.
Individualist libertarians (like the Libertarian Party, Rand Paul, or Ron Paul) in America typically oppose unions on the basis that they constrain the liberties of individual firms to freely act on the market. However, this individual “freedom” trumps the majority and drastically impacts them. To understand Ron Paul, the Libertarian Party, the ACLU, Hugh Hefner, or the NRA as friends of libertarian socialists is counter-intuitive to anti-capitalist strategy. Left libertarians in America would be better to learn from the lessons of Daniel Shays, Thomas Paine, Herman Presser and his socialist militia (Lehr und Wehr Verein), Andrea Dworkin and Catharine MacKinnon, and the Spanish CNT-FAI. Their ideas are irreconcilable with those of the individualist libertarians in history.
Andy Lucker and Travis Albert are members of Autonomy Alliance.
To contact them, email [email protected]