My last diary, The Fantasy of "Government Tyranny," drew a lot of attention in part for reasons I did not intend. I wrote it in response to Jon Stewart's segment in which he deduced that gun fetishists are motivated primarily by the hypothetical "rise of imaginary Hitler," i.e., the remote and largely imaginary possibility that without guns, without an armed population, the United States of America will become the functional equivalent of the Third Reich, the Soviet Union, the Khmer Rouge, or whatever other historic example of totalitarian dystopia occupies their paranoid fears this week, and that essentially everything President Obama and his administration say and do "proves" that such an event is just around around the corner, if it has not happened already.
Obviously we didn't hear these delusions about "government tyranny" between 20 January 2001 and 19 January 2009, nor between 20 January 1981 and 19 January 1993; at least, not from the same people, and for obvious reasons. Then again, there are a lot of people out there on both sides of the voting-preference spectrum who see "tyranny" out there everywhere, all the time, regardless of who occupies the White House.
The word "tyranny" can be used and understood in two distinct ways. The usage I initially intended was what I described above, viz., an holistic condition under which a nation and its people live under a regime of brutal, oppressive, arbitrary, unlawful, unaccountable totalitarian rule, like the Nazis, Soviets, Khmer Rouge or Orwell's Oceania, against which citizens have no rights and no lawful recourse. The second usage refers not to an overall condition but to discrete, individual, anecdotal acts or behaviors by governmental (particularly law-enforcement or military) actors, i.e., "tyrannical acts." A corollary to this second usage is the existence and enforcement of particular laws and/or policies that the individual observer, in his own subjective judgment, believes are unjust, violative of his own individual liberties or those of others, or for any other reason should not exist; let's call these "tyrannical laws."
So we have two separate concepts, "tyranny" as an holistic condition, and "tyrannical laws" or "tyrannical acts" constituting "examples" of "tyranny," all of which in debate and conversation are all referred to freely and interchangeably as "tyranny." Using a loaded word like "tyranny" so loosely, and more to the point so subjectively, makes it that much harder not only to understand what it is -- and more importantly, what it isn't -- but to even have a conversation about it because the frame of reference is often not the same. People can argue at length about this without ever realizing that they're talking about two different things. The paragraph above in part illustrates why: some of us if not most of us understand and perceive tyranny only by way of example, whereas any reasoned discussion of it, let alone what can and should be done to prevent it from occurring and reverse it if and when and to the extent that it does, requires at least some degree of understanding of what it is by way of definition.
Follow me below the Tyrannical Orange Squiggly of Tyranny for a detailed discussion.
Understanding or identifying something by way of example is very different from doing so by way of definition. It's one reason why legislating and judicial decisionmaking are so difficult, not to mention why the former so often necessitates the latter. Lawmaking, whether by legislatures or by the common law, simply cannot be done by way of example alone. There must be some objective, principled reason why an example falls or does not fall within the scope of a larger definitional principle, in order to guide future actors and future analyses. The question is always, What is the rule, the organizing principle that distinguishes [X] from that which is not [X]? How do you formulate an objective principle that, in the future and in all conceivable situations, will include all that you intend to include without including that which you intend to exclude?
The problem with understanding something like "tyranny" only by way of example and not at all by way of definition, is that it takes something which is extremely important, something that a good number of Americans believe justifies or will soon justify large-scale violence and bloodshed, and render it completely subjective and arbitrary, and therefore essentially meaningless. "Tyranny" has become like pornography, in the sense that the only organizing principle that ultimately defines it is, "I know it when I see it." Except the stakes are a whole lot higher. It is a dangerous world we live in -- and certainly not a free country -- if anyone who perceives "tyranny," by his own subjective understanding, can on his own authority just go to Washington and start shooting.
It's for that reason that I always challenge those who only seem to perceive, understand and identify "tyranny" by way of example, to at least attempt to do so by way of definition. I am always wary of the concept of "tyrannical laws," "tyrannical acts" or "examples of tyranny," because in practically every case they either fail to lend themselves to any understanding of tyranny by way of definition, or the person citing the example has not considered how the example might be parlayed into a definition that would exclude anything, or that would distinguish the purported "tyrannical law" or "tyrannical act" from an analogous law or act that is not "tyrannical."
To use one of the most obvious and ubiquitous examples, the fact that marijuana is still illegal in the U.S., and the fact that a substantial number of people have been arrested, tried, convicted and imprisoned for possessing or using it, is cited as either an "example of tyranny," a "tyrannical law," or as evidence that the U.S. is "tyrannical" nation like the Third Reich or the Soviet Union and that its people are living in a state of "tyranny" (or "systematic oppression"). So, how do we get from this perception/understanding of tyranny by way of example, to an understanding of tyranny by way of definition?
[Let me preface this by saying that I agree that marijuana should be legal, and I believe it eventually will be.]
Obviously, the mere existence of a criminal justice system does not by itself constitute "tyranny." The mere existence of laws making some individual behaviors illegal or criminal, does not by itself constitute "tyranny," neither does the mere fact that such laws are enforced or that people are punished for breaking them. I doubt many people think it does. So, why does the existence and enforcement of this particular law constitute "tyranny," where other laws exist and other laws are enforced that punish people for other behaviors but those laws are not "tyrannical"? In other words, if we can have laws, we can enforce them, and we can punish people for breaking them and still not necessarily have "tyranny," why does this law indicate that we do have "tyranny"? What makes this law "tyrannical" where other similar laws are not?
The obvious and ubiquitous answer: Because marijuana is "harmless." OK, but what does "harmless" mean? Who gets to decide what does and does not constitute, or cause, "harm"? Clearly, the legislatures of the past, i.e., the majority of the people's duly-elected representatives, believed that marijuana use and possession does constitute and cause harm, be it individual harm or social harm, and therefore made it illegal. Since then the people have not elected a national legislature that believes and would legislate otherwise, and no judicial review has found otherwise. The point is that the law decides whether or not something should or should not be a crime; if the law is wrong, then we have a legal and political process in place to correct it. That requires effort, participation, and of course, time. The law has always evolved and will continue to evolve. But is the law equivalent to "tyranny" unless and until it evolves to our liking? Is anyone who thinks the law is fine the way it is, or anyone who disagrees with it but understands it and is willing to let it take its course, an enabler of "tyranny"?
Nevertheless, I tried to parlay this argument into a coherent, objective, organizing principle that would identify and define "tyranny," based on this example. Here is what I came up with:
Tyranny exists in any nation
1. where [X] is
a. any voluntary activity
b. that any citizen thinks is harmless;
2. whose duly-elected representatives, or those of any of its political subdivisions, have, at any time in the past and by their normal legislative process, passed any law making [X] a crime punishable by a term of imprisonment;
3. whose law-enforcement apparatus, or that of any of its political subdivisions, under the aforementioned statute(s) and the procedural requirements of due process established by the constitution and laws of that nation,
a. prosecutes any citizen who is accused of [X]; and
b. imprisons any citizen who is adjudicated guilty of [X]; and
4. where no legal or judicial authority has established that its citizens have an individual, inalienable right to [X] under its constitution.
The key, obviously, is ¶ 1(b). Few would agree that "tyranny" exists if anything that anyone wants to do is against the law, or at least would deny believing that after complaining that they're living under "tyranny" because they can't [X] and being challenged to define tyranny. Most people understand that "freedom" and "liberty" are not the same as
autonomy, and that some things should be against the law. So the next step is, "tyranny" exists if anything that anyone wants to do,
that he should be allowed to do if he wants to, is against the law (or, "tyranny" exists if anything that anyone wants to do is against the law, but
should be legal").
It's when the word "should" gets in there that we start to move away from objective organizing principles and toward subjective perceptions and preferences. And, inevitably, we get back to the point where "tyranny" is literally in the eye of the beholder. ¶ 1(b) could not read, "that is harmless," because the word "harmless" does not define itself; what is and is not harmless is often a matter of subjective opinion and/or reasoned disagreement. Obviously, enough people believe, or believed at one time, that marijuana use is harmful enough to be a crime. So the idea that it, or anything else, is inherently and in all respects "harmless" is not self-evident.
A lot of people believe that smoking marijuana is harmless and should be legal. Fine. But, a much as the very idea nauseates and horrifies me and as much as I hate to use it as a counter-example, there is a segment of the population that believes "consensual" (meaning voluntary, non-coerced, separate from the legal concept of consent) sexual relations between adults and children are "harmless." My point is not that either group is right or wrong. It's that there has to be an objective, principled reason why one is right and the other is wrong, if we are to understand why one group is being "systematically oppressed" by "government tyranny" and the other being properly and lawfully punished for knowingly and willfully committing criminal acts. Each group thinks its own behavior is "harmless," but that is not, and should not be, dispositive.
And, if we can ultimately find no objective principle to distinguish them, and we have to just decide what we will accept and what we won't, based on whatever our values and subjective beliefs are, then the law is the way we decide. The law is the means that we have, and the only means we have, to make these decisions collectively, as a society, over the course of time. There are plenty of things that society once thought were harmful but later came to realize were harmless, and vice-versa. We have people declaring a state of "tyranny" because the law does not permit things they think are harmless, and we have others declaring a state of "tyranny" because the law does permit things they think are harmful and morally wrong. Are we ready to declare a state of "tyranny" because the law has yet to attain a state of absolute and permanent perfection?
I prefer to call what others refer to as "tyrannical acts" or "examples of tyranny" what they really are, which is typically either (a.) abuses of authority or (b.) civil rights violations, which no one denies occur from time to time and which we have a legal and political process to deter and redress without the need for violence, bloodshed, or a wholesale coup d'état. Is any nation in which government officials sometimes abuse their authority and sometimes violate the civil rights of their citizens a "tyrannical" nation? Is the leader or chief executive of any nation in which such things occur, by virtue thereof and by definition, a "tyrant"? Is any person serving in any capacity in any branch, agency or function of government in any nation where such things occur, a "tyrant"? Of course not.
So, if Judge Napolitano is correct that the Second Amendment gives you "the right to shoot tyrants," who exactly do you have the right to shoot, and more to the point, how do you know when you have the right to shoot them? Should that be an affirmative defense to assault or homicide, that the shooter believed the victim is or was a tyrant? If you have "the right to shoot tyrants," what happens when you shoot someone you think is a tyrant, but that I think is not a tyrant? These questions are ridiculous, but they need to be asked and answered if the "right to shoot tyrants" is to have any meaning, let alone any application. Otherwise, it's just rhetorical nonsense.
At the end of the day, understanding and perceiving "tyranny" only by way of example accomplishes little, and throwing the word "tyranny" around so loosely and casually to categorize anything about the law or law enforcement that we don't like, don't agree with or don't approve of accomplishes even less. There may very well be just as much to fear from the subjective perception of tyranny, and from the possibility of any group of Americans acting unilaterally, extralegally and by their own authority based on that perception, than from any actual potential that actually exists for any actual "rise of imaginary Hitler."