New Don Kates article

GENOCIDE, SELF DEFENSE AND THE RIGHT TO ARMS

By Don B.Kates*

__________________________________________

* Don B. Kates is an American criminologist and constitutional lawyer associated with the Pacific Research Institute, San Francisco.

I gratefully acknowledge the generous contributions of Professor Thomas B. Cole (University of North Carolina at Chapel Hill, Social Medicine and Epidemiology), Lt. Colonel Dana K. Drenkowski (U.S.A. Res.), Drs. Joanne Eisen, Paul Gallant, C.B. Kates and Abigail Kohn, (University of Sydney, Law), Prof. David B. Kopel (Independence Institute), Prof. Timothy D. Lytton (Albany Law School), Col. Virgil McVickers (U.S.A. Ret.), Prof. Rudolf J. Rummel (University of Hawaii, Political Science), Lance K. Stell, Ph.D., FACFE (Charles A. Dana Professor of Philosophy, and Director of the Program in Medical Humanities, Davidson College), Jerome Sternstein (Professor Emeritus of History, Brooklyn College, CUNY), Elizabeth Thomas, Robert Weisberg (Edwin E. Huddleson, Jr. Professor of Law - Stanford University), Prof. John Whitley (University of Adelaide, Economics).

Any merits this paper has reflects their advice and contributions, but for errors the responsibility is mine alone.

©) DBK 2006

TABLE OF CONTENTS

1. Genocide and the Second Amendment

2. A note on the meaning of the word "genocide."

3. Misconceiving the Holocaust as a Paradigm of Genocide

4. Deterring genocide from even occurring.

5. Can victim groups successfully defend against genocide?

6. Contrasting policy alternatives, contrasting costs

1. Genocide and the Second Amendment

Though an oversimplification, it is basically correct to say that there are two competing theories of the constitutional right to arms. The "individual right" theory views the Second Amendment and the constitutional guarantees of the right to arms in most state constitutions as preserving a right of law abiding, responsible adults to choose to be armed for the defense of themselves and their families. This has come to be called "the standard model" because it accords with the Amendment’s text1, its interpretation when enacted2, and throughout the 19th and 20th Centuries (until "gun control" became a defining political issue)3 and with the weight of modern scholarship.4

Critics of the standard model view prefer to re-label it "the "insurrectionary view" characterizing it as espousing "the idea of a right to bear arms [which allows private groups] to organize independent armies or to prepare for insurrection against a potentially despotic government."5 From this false premise they proceed to assail the standard model view as absurd because no government would grant a right that would facilitate insurrection against itself.6 This is ironic for the opposing "states right" view of the Amendment is equally "insurrectionary." Its proponents claim the Amendment seeks to protect the states' right to keep militias armed for insurrection against an oppressive federal government.7

Thus the anti-gun lobby, like many pro-gun zealots, sees the Amendment's central purpose as facilitating revolution. Though this is not wholly wrong, it severely distorts the actual purpose of the Amendment. That purpose is to facilitate exercise of the right to self-defense, a right that the Founding Fathers and the thinkers they revered deemed the cardinal human right – and deemed to necessarily include a right to possess the means of self-defense.8

To fully understand this, however, it is necessary to dispel the truncated conception of self-defense which seems to prevail today. As we conceptualize it, "self-defense" is epitomized by – and limited to – incidents like the following which I describe having gleaned them from perusing 2004 publications:

* Detroit Free Press 4/29/04: Detroit businesswoman Barbara Holland was returning to the home she shares with her 18 year old daughter one evening when an armed man knocked her down as she was unlocking her front door. "He looked surprised" she reported when (as he dragged her into the house) she pulled a gun from her purse and shot him dead.

* Eugene, OR Register-Guard 6/25/04: A convenience store clerk gave a robber all the money she had. When he said he would kill her unless she gave him more she drew her gun, chased him out of the store, then shot the back window out of his getaway car. He and his driver were shortly apprehended.

* Johnson City (TN) Press 1/8/04: Alerted when a man broke through her porch door and began kicking in her front door, a 56 year old Erwin, TN woman routed him with two warning shots. He was arrested minutes later.

* Springfield (Ohio) News-Sun 3/22/04: Springfield, Ohio resident MelanyYancey locked herself in her bedroom when two armed men broke into her house. She fired a warning shot when they began breaking down her bedroom door. They shot back but fled when one was shot in the ensuing gun fight.

* Belleville, Il. News-Democrat 8/6/04: Nina Sloan, 87, grabbed her gun and her cane and hobbled toward her kitchen door when she heard a man breaking it in. He fled when she fired a warning shot as he stuck his hand through the broken glass to unlock the door.

* Spokane Review 7/9/04: When a man broke into her home and attempted to enter her bedroom Spokane, WA resident Lisa Hansen arrested and held him at gun point for police.

* The Tennessean 7/19/04 Two young women hid in a bedroom with a gun when two men broke into their Nashville, TN home, but when one man entered the bedroom they shot him and both intruders fled.

Such incidents certainly fall within the Founders’ vision of self-defense, including their tradition of requiring by law that every household have a gun even if no member of the household was subject to militia service.9 But the Founders’ concept of self-defense did not limit it to resisting apolitical thugs. Their concept equally envisioned resistance to murder, massacre, and rape when committed at the behest of government – "a wicked Magistrate" and his "crew of Lewd Villains" as Algernon Sidney put it.10

Though the Founders could not know the 20th Century word "genocide" they were well aware of the hideous reality that word limns. They knew that Europe had for two centuries past been wracked by religious strife in which murder, including mass murders, were commonplace. After all many of their fellows were descendants of people, or whole groups, who had been driven to the New World by the genocidal religious persecutions of the Old.11

Moreover, steeped as they were in the classics and the Bible, the Founders knew that Joshua had massacred the population of Jericho, and of similar incidents throughout the Old Testament.12 From Thucydides they were equally aware of the Athenians’ massacre of the populace of Melos.13 Conscious of the terrible lesson Thucydides drew from it:--"the strong do what they will, the weak endure what they must"14 – the Founders were resolved that the American people would remain armed and strong and never be disarmed and weak. If I may be excused for quoting myself, the Founders’ own writings

and newspaper editorials of the period abound with favorable references to the citizenry’s widespread possession of personal arms as characteristic of the "diffusion of power" necessary to preserve liberty. These writings also express fears that the new federal government would disarm the populace, leading to a "monopoly of power [which] is the most dangerous of all monopolies" 15

The balance of this paper is devoted to discussing how the right to arms deters, and in the ultimate extreme, allows defense against, genocide.

2. A note on the meaning of the word "genocide."

As coined, the word "genocide" referred to mass murder of a particular racial or ethnic group, e.g., the Holocaust or the Ottoman genocide against the Armenians or the Ethiopians massacre of the Eritrean part of their population. However in popular parlance "genocide" has come to mean the slaughter of a particular group because of its group identity, whether that identity is ethnic or religious or political, and that is how it is used throughout this paper. Some specialists use more specific terms such as politicide (e.g., Indonesia’s massacre of as many as one million "leftists" in the 1960s) or religicide (e.g., the Muslim-Hindu civil war that followed Indian independence). I reject such terms both because they are awkward and because they often convey a specious specificity. For instance, a large percentage of the "leftists" murdered by Indonesia were of Chinese extraction and many of these died because of ancestry regardless of any supposed political sentiments. So to call this a "politicide" is to omit a substantial motivation for it. Many mass murders (or genocides as I shall call them) exhibit combinations of motivation.16

3. Misconceiving the Holocaust as a Paradigm of Genocide

The position of the International Society for the Prevention of Genocide is that "Prompt defensive measures are the most effective means for the prevention of genocide."17 The reaction a Westerner is likely to have is that self-defense is impossible against genocide: the army just brings the panzers up and how can even an armed populace defend against that? That reaction, however, is crucially distorted because the example of the Holocaust is what the word genocide brings to Western minds. But 20th Century genocides killed over 260 million unarmed, defenseless victims, and the Holocaust, in which c. six million Jews perished, is an almost unique example contrasting sharply with most of the other genocides.18

The first respect in which the Holocaust was almost unique is that it was perpetrated by military forces – and not just by ordinary soldiers. Germany’s military is generally agreed to have been the best of its day. In contrast, many genocides have been, and will be, perpetrated by civilian hordes incited by governments which lack a military efficient enough to kill hundreds of thousands. That is how upwards of a million victims died in Rwanda – at the hands of peasants led by armed government officials but themselves wielding only knives, machetes, sickles and other common tools.

In other instances though a genocidal government had an army it was too small, badly trained and disorganized to have been able to kill the victims – had they been armed.19 How misleading it is to measure the viability of self-defense by the Holocaust may be illustrated by a simple comparison.. Chronicling Germany’s resistance to the numerically overwhelming forces of the U.S., the British Empire and the USSR, a recent British military history describes Germany’s military as "the greatest fighting machine the world had ever seen..." 20 In contrast, Idi Amin’s 30,000 man Army-cum-secret police ignominiously collapsed when invaded by Tanzania. But they previously had managed to murder over 300,000 civilians – because the 30,000 had guns and the 300,000 were disarmed and rendered helpless by Uganda’s ban on guns for civilians.

Or consider the Ethiopian Army which was too inept, badly trained, equipped and organized to defeat the armed cadres of the Eritrean independence movement. But the Ethiopian Army could kill 300,000 Eritrean civilians though only because those civilians were unarmed and defenseless. Or consider the ragtag 75,000 man Khmer Rouge Army. Could it have slaughtered two-three million Cambodians if their victims had been armed?

A distinguished analyst, Prof. BenjaminValentino, limns as follows the crucial element that allows millions of victims to be killed by forces that are often comparatively quite small:

The fundamental thing people have to realize about this kind of violence is not like war where one considers the balance of forces on either side and the violence is somehow related to that balance. In [genocide] the perpetrators don’t have to protect themselves because the victims are unarmed civilians. [Emphasis added.]21

The second virtually unique aspect of the Holocaust is that its victims were peculiarly ill-positioned for resistance. The idea of Jews as a sinister power group was paranoid lunacy. Actually they were a tiny minority spread across a whole continent of Christians who were hostile or largely indifferent to their fate. In contrast the victims in other 20th Century genocides were groups of people whom rational governments feared were dangerous or might become dangerous. A recent paper by Valentino and his colleagues focuses on 41 genocides occurring between 1945 and 2000 which took at least 50,000 lives.22 All 41 were perpetrated by governments that were under attack from another nation or by a guerrilla group. In each case the government saw those it exterminated as a group that might or did favor these enemies.

In short, these genocides resulted from a government cold-bloodedly calculating that it could better its situation by a cheap, rapid campaign to exterminate the minority and/or kill enough to terrify the rest into flight. That is to say these genocides might never have occurred had the government involved calculated that the risks were too great.

4. Deterring genocide from even occurring.

It bears emphasis that many 20th Century genocide victim groups had large concentrations in one or more geographic areas of the genocidal nation. Often the group was a majority or near-majority in some areas. Such concentration of population has two implications. One is that the fact of the group being so numerous in particular areas may contribute to the government feeling it is dangerous. On the other hand the same fact may also make the potential victim group appear too dangerous to target for genocide– but only if the group is armed. Compare Prof. Weinberg’s explanation of why extermination continued, and even accelerated, at the end of the Second World War though a better use of German forces would have been defending against advancing Allied armies: the killers "had a vested interest in [genocide for] killing defenseless civilians seemed to them vastly preferable to the far more dangerous alternative of serving at the front where those they faced also carried arms."23

A government’s decision of whether to embark on genocide is a risk calculation. A vital factor is whether the victim group is disarmed and, therefore, helpless. If the group has guns a very different risk assessment applies than if they are defenseless. Exterminating an armed group will be neither fast nor cheap, but rather will lead to a prolonged conflict.

Civilians with light arms cannot necessarily overthrow a well-entrenched and well-armed regime, but even the most powerful governments find it very difficult to perpetrate genocide against populations armed with firearms, for genocide victims can, at the least, ensure that a few secret policemen die every time another family is rounded up. The costs quickly become unacceptably high for a regime that needs the approval and cooperation of its secret police.24

Even if a government thinks it will eventually succeed in a genocide, calculating the risks requires taking account of the heavy costs involved in a prolonged civil war. Among those risks is the possibility that prolonged civil war will lead to overt or covert intervention by foreign powers who may have their own extraneous interest in taking advantage of the situation.25 Cold blooded calculation would sometimes lead a government to eschew genocide on the ground that its costs and risks would exceed the expected value of exterminating the victim group – but only if the group is armed.

The same factors that make a victim group seem potentially dangerous (e.g., it is well organized or dominant in a particular area) can also make genocide seem too risky. In such situations compromise may seem the safer course. This has been discussed by Prof. Ted Robert Gurr, Director of the Minorities at Risk Project at the University of Maryland’s Center for International Development and Conflict Management.26 Looking back on late 20th Century genocide he concluded it was on the wane because many governments and leaders had decided that "[t]he material and social costs of civil war" are just too high; "it is cheaper to negotiate regional and cultural economy and redistribute some funds ... the costs of accommodation are probably less than the costs of prolonged conflict."

To reiterate, one reason the costs are too high may be that the victim group is armed. If an ethnic or religious or political or other group is not armed government often thinks it cheaper to eliminate that minority than to live with them. Three prominent researchers conclude that

Almost without exception, genocide is preceded by a very careful government program which disarms the future victims of genocide....The historical record is quite clear that genocide is almost never [even] attempted against an armed populace."27

5. Can victim groups successfully defend against genocide?

As just discussed, even if a victim group might eventually lose in a civil war initiated by a genocidal government, the potential costs of such a war might deter the government from initiating genocide in the first place. But now I want to discuss whether, if genocide is initiated, an armed victim group might be able to repel it.

To reiterate, this issue cannot be disposed of by reference to the highly atypical example of the Holocaust. No, even if armed, a pitifully small number of Jews thinly spread over the European continent could not have defeated the superb multi-million man WWII German army which also enjoyed the assistance of the Luftwaffe. (Arms did, however, aid individual Jews, and small groups of them, to escape.28 It is noteworthy also that Tito’s Serb guerrillas had some success against the Nazis and so did Mao’s Chinese guerrillas against the Japanese.)

More important, however, are the millions and millions of lives lost in genocides that could have been stopped, or would never have been initiated, if only the victim group had been armed. Consider Rwanda and Burundi where there were no armies, only government officials who were armed but wholly insufficient to kill upwards of a million people themselves. So the officials incited peasants armed with machetes, scythes, hoes, pitchforks and other common tools to do it for them.29 Consider the on-going murder in Darfur by nomadic tribesman – proxies for the Sudanese government – of over 400,000 helpless, unarmed black Africans.30 Or consider the Chinese "cultural revolution"of the 1960s and ‘70s in which students and Red Guards armed only with common tools killed 400,000 supposed reactionaries while the Army stood by neither aiding in the killings nor suppressing them.31 Or Indonesia where in the 1960s an army not strong enough to round up and kill as many as nearly a million leftists-cum-Chinese was able to inspire civilians armed with common tools t o do so.32Or Guatemala where between 1960 and 1986 over 100,000 peasants were murdered by the military and by civilian minions it had armed with guns and/or had encouraged to kill suspected leftists with agricultural implements.33

There can be no doubt that those genocides could have been seriously curtailed (and might not have been attempted at all) if the millions of victims had been armed. It is vital to understand both the characteristics of weapons and the probable reactions of killers if faced with armed victims rather than defenseless ones. Unlike scythes, machetes etc., firearms are preeminently and primarily defensive weapons.34

To see this it is necessary only to consider how a single person armed with a machete would fare if attacked by four men armed with machetes and any kind of primitive shield, e.g., a garbage can lid. The four would reasonably expect to kill their victim with minimal or no injury to themselves. In contrast, if prospective victim and attackers all had guns the latter would reasonably expect that, if they attack, the victim will kill one or more of them before dying.35 Or consider a victim who is a woman of average size and strength. Attacked by just one average size man with a machete-cum-shield she has little chance to inflict any serious wound even if she also has a machete and shield. But if instead they each have a gun he must anticipate that she has roughly the same chance of inflicting a serious wound as does he.

Ironically, those who oppose precautionary gun possession implicitly – though unknowingly – admit that the defensive value of guns exceeds any other weapon when they complain that guns "permit attacks by persons physically or psychologically unable to overpower their victim through violent physical contact"36 or assert that

Even in the hands of a weak and unskilled assailant a gun can be used ... without much risk of effective counterattack ... [and] because everyone knows that a gun has these attributes, the mere display of a gun communicates a highly effective threat.37

Likewise they unknowingly admit the defensive power of guns by lamenting: that their "widespread circulation among sub-State groups or civilians can provide such groups with firepower which matches or exceeds that of national police or even military forces;" that they "are widely used in conflicts involving uneducated combatants and children because they are easy to handle effectively with a minimum of training;" and that "a single individual or small armed group can pose a tremendous threat to society."38

What these sources bewail as features making guns useful for crime are actually features that make guns uniquely useful for self-defense. Alone of all weapons, firearms allow the weak to defend against attacks by the strong.

Of course guns can be used offensively, but their unique effect is to tip the balance in favor of the defense. Consider the following (admittedly simplified) examples:

# 1: ten defenders armed with ordinary tools and ensconced in a house are charged by 50 similarly armed attackers. Probable Result: Assuming equal determination on each side, the attackers will suffer some injury and perhaps even death, but the defenders will all be killed.

# 2: same situation except that the defenders have guns while the attackers do not. Probable Result: Assuming the attackers are determined enough to continue charging regardless of casualties, they will probably be shot with little or no injury to any defender.

(I have emphasized the assumption in the last example because of how unrealistic it is: Defenders may fight to the death if they realize they will receive no quarter anyway. Attackers are very unlikely to fight to the death for they enjoy the option to break off a catastrophic attack and depart.)

# 3: same situation except that both sides have guns. Probable Result: If the attackers are determined enough to continue charging regardless of casualties, they will be shot while the defenders suffer a few injuries or deaths at most.39

The genocide against the Bosnian Muslims exemplifies both the value to victim populations of being armed and the worthlessness of other supposed solutions. The Muslims had been denied arms by the prior Yugoslav government and then were prevented from obtaining arms by a U.N. embargo. So the killers, Christians armed by, and serving as proxies for, the Serb Army enjoyed the monopoly of arms extolled by disarmament advocates. Concomitantly, the killing only ended when Muslim nations, lacking the high-mindedness of disarmament advocates, smuggled in thousands of small arms in violation of the U.N. embargo.40 In contrast, the Serbian genocide against the Croats ended as soon as it started because the Croats turned out to be well enough armed to defend themselves.41

6. Contrasting policy alternatives, contrasting costs

Significantly, the international gun control movement enjoys the enthusiastic support of Iran, Zimbabwe, Cambodia and various other nations that have already perpetrated genocides or are good candidates for doing so in the future.42 But, whatever the reasons for their support, international efforts to disarm civilians are also supported by many good hearted, progressive people who are deeply concerned with the lives taken by apolitical gun violence around the world.

It may well be questioned whether international efforts to disarm criminals can be more effective than gun control has proven in the United States.43 But, whether or not gun control offers a realistic solution, there can be no doubt that apolitical gun criminals take a terrible international toll. It is estimated they kill some 50,000 victims annually which works out to 5 million ordinary apolitical murders across the world over the 20th Century.44 Yet momentous and tragic as that toll is, government is far more murderous. Genocidal 20th Century governments killed an estimated 262 million defenseless unarmed people, many or most being their own citizens.45 (It bears emphasis that this death toll does not include combatants killed in 20th Century wars and revolutions.)

In short, large though was the 20th Century death toll from apolitical gun criminals, government slaughter took over 50 times as many lives (262,000,000 divided by 5,000,000 = 52.4). A few examples illustrate the difference in magnitude: Three times as many unarmed victims were murdered in a single nation, Russia, over twenty years as died from ordinary apolitical gun murder over the entire world in an entire century.46 In fact, apolitical gunmen over the entire world in the space of an entire century did not kill as many victims of all ethnic groups as one nation, Nazi Germany, did of a single group, Jews, in just three years.47 In one small nation, Cambodia, half as many victims were massacred in four years as died in apolitical shootings across the entire world throughout the whole 20th Century.48

These comparisons suggest a calculation which, so far as I can discover, has never even been considered by the advocates of universal civilian disarmament (UCD). Make two implausible assumptions: first, that having UCD laws across the globe would disarm apolitical criminals; and second that, having given up their guns, they would not use other means to kill victims. Under this set of assumptions a UCD policy would save five million victim lives in the course of 100 years. Next make the implausible assumption that even if victim populations had access to arms genocidal governments would still try to exterminate them, and would still succeed 90% of the time. Even under this assumption a policy of allowing civilians access to firearms would save 26.2 million victims (10%of the 262 million unarmed victims murdered by 20th Century governments).

In other words, even if successful, a UCD policy would save at most 5,000,000 lives at the cost of the lives of more than five times as many genocide victims it left defenseless.

CONCLUSION

Our Founding Fathers -- the authors of the Second Amendment – believed a government that would disarm its people could not be trusted and was bound to abuse them.49 Our Founders would not at all have been surprised by the way in which the genocide of 2-3 million Cambodians proceeded, as described by one eyewitness: The Khmer Rouge would

knock on the doors and ask the people who answered if they had any weapons. "We are here now to protect you," the soldiers said, "and no one has a need for a weapon any more." People who said that they kept no weapons were [nonetheless] forced to stand aside and allow the soldiers to look for themselves... 50

Nor would our Founders have been surprised that the killing began when the disarmament occurred. Our Founders’ view is exemplified by Thomas Paine. In early 1775 Paine, who had recently arrived in America, was made managing editor of PENNSYLVANIA MAGAZINE. In an article criticizing Quaker pacifism, Paine wrote:

I am thus far a Quaker, that I would gladly argue with all the world to lay aside the use of arms, and settle matters by negotiation, but unless the whole will, the matter ends, and I take up my musket and thank heaven He has put it in my power.51

Some decades later he addressed the issue in more general terms:

The peaceable part of mankind will be continually overrun by the vile and abandoned while they neglect the means of self-defense. The supposed quietude of a good man allures the ruffian; while on the other hand, arms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The balance of power is the scale of peace. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside... Horrid mischief would ensue were one half the world deprived of the use of them; ... the weak will become a prey to the strong.