Speech and Guns

A Reply to Jonathan Wallace

by Walter Lee walt@xroadstx.com

Dear Mr. Wallace,

Your essay on violence as a response to speech is intriguing, and I share many of your suppositions. I agree that when violence is introduced as a trump card, the result may be a more violent world. I agree that the ideal I seek is in the other direction. However, as I make such concessions I feel myself marching into a trap.

It would seem to me that violence has already been introduced into the equation of speech by both individuals and governments. Implicit threats of violence exist all around us. Perhaps we are too quick to respond to many of them, yet the feelings they generate are real. Walk down an inner city street and find yourself "eyed" by a group of teenagers in gang attire. Approach your car in a deserted parking garage late at night and think of the way you feel when you hear footsteps approaching from behind. Consider the feelings of a woman on an elevator when three strangers crowd in around her. There may be no threat intended by any of these parties but the perceptions of potential physical violence are real. Such perceptions are not unreasonable given the "speech" by which we are bombarded all forms of media. Violence is a part of our society.

Such violence is not limited to street crime. While you suggest that governmental power cannot rest solely on violence (a point on which we agree), no composite government (the totality of local, state and national governing bodies) forswears violence as an option. In fact, one mark of governance is a generally self declared monopoly on legitimizing violence in life through military power, the death penalty and laws permitting the exercise of force to both governmental agents and/or individuals. The threat of force (at some level) lies behind all confrontational speech. Parental threats may be veiled but a small child can sense that the bottom line comes from disproportional size and strength. The English Bobby--traditionally without a firearm--carries a truncheon as a symbol of authority. The fundamentalist preacher wields the "wrath of God" like a sword. Violence need not be employed in order to punctuate speech.

Furthermore, communication is not limited to words alone. The tone of voice, the expression on one's face, movements, gestures and prior experience all add to the content communicated. Words alone are always out of context. To suggest that a person who preempts another's use of force by "shooting first" is acting in response to speech alone is faulty logic. It is in the nexus of total communication to which the person responds. If an aggressor pulls a knife on you and demands your wallet, your wife or declares your life forfeit, are you asserting that the knife is only "symbolic speech?"

As you speak of the Prisoner's Dilemma," you investigate only three of the four choices. A and B cooperate, which is optimum. A betrays B while B cooperates, which you call "the suckers" choice. B betrays A while A makes a conscientious effort to act in good faith, which is the classic betrayal. However, the fourth choice comes when B, initially receptive to A's good will, refuses to accept the betrayal. In game theory, this is a lose/lose situation. Assume that A is the initiator of the encounter and B is the responder. If A makes a sincere offer, then it is appropriate for B to respond in kind. They cooperate and there is no moral conflict. If B betrays, then B is the reprobate and is violating not only A's offer and trust, but society's as well. However, when A is perceived as the betrayer, B's position is infinitely more complicated. As a moral responder, B must weigh not only the impact of the response upon self but on others. Of course, B may be a true sucker and never perceive the betrayal.

In the Prisoner's Dilemma, there are four options: win/win, win/lose, lose/win, lose/lose. The game assumes that if B responds in kind to A's betrayal, the outcome is lose/lose. However, in real life, the outcome is not that limited. The "game" may shift to a new dimension in which A and B may both loose, or one of them may win, depending on timing, resources, skill and providence (or luck, depending on your outlook). Statistics indicate that one who yields to an armed aggressor is more likely to survive uninjured than one who offers unarmed physical resistance. However, the odds are good that a person attacked by a robber or rapists will be injured. (Many violent criminals are on a "power trip" as well as seeking material benefit. They get their jollies by seeing other people squirm.) The person who resists with lethal force (against an armed aggressor who controls the situation) is more likely to be killed than one who doesn't resist, but amazingly, they are the least likely to be injured. (The person who responds with less than lethal force is most likely to die.) The presentation of a firearm by a victim is the best statistical chance to emerge from an incident unscathed, particularly if the aggressor is armed with an impact weapon or a knife. If life vs. death is the only measure of win/lose, then the case might be made for non resistance, if only the personal parameters are in play. However, if injury (physical and emotional) are brought into the equation, then the variables become more complex. If society becomes a factor, and the A who preys on B can be expected to later prey on C, D, E, and F, and if B values such compatriots, then the game becomes multi-variable and difficult to define.

Among other things, I teach the Concealed Handgun Licensing class mandated by the Texas State Legislature and administered by the Texas Department of Public Safety. In that course, a number of topics are taught including firearms safety and storage. Two major components of the class focus on self defense laws (in Texas) and non-violent strategies in times of confrontation.

The non-violent communication skills are the ones for which my students most often express gratitude. They find that there are methods to diffuse all sorts of confrontations, sometimes the minor confrontations which take place on a daily basis. The techniques taught focus on empathy. After learning the implications of shooting someone--the financial, legal, and emotional implications of employing even legal lethal force are staggering--responsible firearm carriers are willing to walk away from threats, insults, curses and challenges. The cost of responding while armed are just too high. It is surprising to many non-gun carriers that many people who are armed will accept more verbal abuse than if unarmed. Very few legally licensed carriers are convicted of the misuse of a firearm. While 31 states have "shall issue" licenses, there are few shootings by CHL holders. The legally armed individual is held to a higher standard of care for they introduce a means of lethal force into every encounter and in most cases, only they are aware of its presence.

However, when threats of death or severe bodily injury are made, and the means of imminent violence are at hand, and safe retreat is impossible, then the rapid employment of a means of self defense are a legal (and in my view, moral) option. We teach a five tiered response to violence: (1)observation of one's surroundings and avoidance of potential threats if possible; (2) verbal response to threats; (3)physical self defense against non lethal, physical threats; (4) intermediate weapons (primarily pepper spray); and (5) as a last resort, lethal force. The paradox of the legally armed person is that on one hand, such a person must "go the extra mile" in avoiding violence. On the other side of the paradox is the awareness that if a weapon is called for, it needs to be employed with speed and skill. While the mere presence of a gun often ends the confrontation. (If the gun is not fired, is it simply "symbolic speech?") I caution my students not to depend on such symbolism for many criminal types weigh the determination and perceived skills of the gun handler more heavily than the mere presence of the firearm. If an aggressor does not believe that their victim is willing and able to employ a weapon, then the weapon has no "symbolic" value.

You ask one very specific question in your essay: Under what circumstances would an individual employ lethal force against a federal agent. Let me quote from Section 9 of the Texas Penal Code: (Section 9.31 c): "The use of force to resist an arrest or search is justified: (1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and (2) when and to the degree necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary. (d) The use of deadly force is not justified under this subchapter except as provided by Sections 9.32, 9.33, and 9.34." Section 9.32: "(a) A person is justified in using deadly force against another: (1) if he would be justified in using force against the other under Section 9.31; (2)if a reasonable person in the actor's situation would not have retreated; and (3) when and to the degree he reasonably believe the deadly force is immediately necessary: (A) to protect himself against the other's use or attempted use of unlawful deadly force; or (B) to prevent the others imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery." (Sections 9.33 and 9.34 speak of using force and deadly force (respectively) to protect another from harm.) This section of law was introduced at the trial of the surviving members of Waco's Davidian group. It was the acceptance off these self defense arguments that allowed the jury to acquit all of them from murder and/or conspiracy to commit murder charges against the federal officers in the initial raid.

The context of your essay raises a larger issue: that of the relationship of keeping and bearing of arms to a stable society. To this point, I have addressed only interpersonal encounters. Those who articulate the need of an armed society echo the sentiments of the Founders of this nation. The opening phrase of the Second Amendment declares a reality generally held in that day and age: "A well regulated militia [is] necessary to a free state." The Founders' position was tainted by their experience under British rule, a situation that they tried to address through petition and non violent assembly and protest prior to taking up arms. The results were more troops quartered in their midst for the purposes of ending their more or less peaceful protests. For the Founders, the final straw came when the authorities of that time attempted to confiscate the cannon and stockpiled munitions held by the militia in Lexington and Concord. Cases have been made that the violence which resulted might have been accidental, but once things were set in motion, those shots echoed round the world.

Following the Revolution, the new government neither wanted nor could afford a standing army. They relied on citizen soldiers for the nation's defense. The Militia Act of 1792 required all citizens capable of bearing arms to enroll in the militia and to procure at their own expense, military weaponry. (The musket was the "assault weapon" of the day. It was faster to reload, carried a bayonet and was stocked to make it a useful club. It was of limited range, heavy for its size and ill suited for hunting; far less desirable for sporting purposes than a Pennsylvania or Kentucky rifle or a fowling piece.) The burden produced by mandatory militia service was severe enough that the actual maintenance of a universal militia was short lived. Select militias of volunteers, both public and private, became the norm. These select public militias were the forerunners of the National Guard. Still, the law of the land still provides for the militia in three distinct forms: the National Guard (subject to immediate federal activation), State Guards (maintained by more than 20 states), and the sedentary (unorganized militia) consisting of all able bodied males from the age of 18 to 45 years. Draft laws technically activate members of the latter group to active serve. In addition, the creation of police forces on municipal, county, state and federal levels produce another layer of armed force in the midst of society. Police forces were non existence in colonial times.

Conjecture suggests that many of the Founders would be skeptical of the standing armies at the disposal of various governments. Additional conjecture exists as to whether or not individual citizens, with a mishmash of individually procured arms and ammunition could offer any meaningful resistence to the multitude of well armed, well disciplined troops in our society. Essentially, we must ask the question as to whether or not the Founders' opinion has relevance for today: Is a well regulated militia necessary to a free state?

Certainly, there are examples of well functioning free states without the right to keep and bear arms, at least in the short term. Canada, Australia, and England come to mind. However, given a longer view, we might remember that not long ago (by historical standards) each of these nations maintained that individual right. Gun control in the British Isles came as a result of the Irish rebellion and as World War II loomed large, the plea went out from the British for arms of all sorts. Tens of thousands of individually owned weapons were donated by American citizens for defense against the generally perceived, imminent invasion by Germany. They were spread across England and Scotland and placed in civilian hands.

We might also remember that most of the severe repression and largely "successful" genocides of the 20th century (Stalin's purges, Hilter's "final solution," the Rwandan massacres and Pol Pot's "killing fields) were all conducted against unarmed civilian populations. Likewise, we might also remember the early days of Vietnam (prior to the active introduction of the North Vietnamese) when homemade weapons and booby traps were used effectively by the Viet Cong to capture American military weaponry with which they carried on. We might remember Afghanistan where a determined, armed society brought the Soviet block to a standstill. As in the individual situation, it is the grit and determination of those behind the weapons which determines the outcome of a conflicted situation. Still, a population perceived to be armed provides a greater deterrent than one perceive as helpless. Even Hitler, who controlled all of Europe save Switzerland, did not want to take on an armed people with orders to resist to the last fighter.

If we can rest secure in the benevolence of our armed forces and police, along with the political powers behind them, then perhaps the Founder's fears are misguided. The question is can any government be trusted with all power in a society? Even if one were willing to accept the premise that the current occupants of seats of power are utterly trustworthy, and that the economic and social forces in place today provide adequate safeguards against government abuse, do we have evidence as to the attitudes toward power and freedom which will exist in a decade or in a quarter of a century? Those who assume that all will remain tranquil have studied neither history nor human nature. To say that the abuses of power and their accompanying policies of genocide cannot happen here, are naive. Many are unaware that Hitler greatly applauded the United States' treatment of the "Indian" populations of the 19th century. Many are unaware of the Bonus Marchers-- American veterans of World War I-- who had machine guns and tanks employed against them on the Mall of Washington, D.C. at the beginning of the Great Depression. "Jim Crow" laws kept blacks "in their place" by the power of the State up until the 1950s. We all know of the results of Waco. Reports this week speak of the use of Serin nerve gas against American defectors in Vietnam by order of President Nixon.

So the question remains, were the Founders correct in their supposition: Is a militia necessary for a free state? There is little long term evidence to prove them wrong, and a great deal of support to prove them right.

I would much rather rely on speech than on firearms. I believe that in a civilized society, honest debate and discourse should rule the day. But by what means can our society be defined as "civil?" Our "arts" reflect violence and retribution on almost every screen. Our "news" reports daily abuse of men, women and children. Those without power remain in poverty, economically oppressed generation after generation. Our foreign policy is based on rapid military deployments backed by weapons of mass destruction. Racial and class tension leave many hiding behind locked doors. Our prisons overflow. Our elderly are often left alone without adequate medical care. School children tend for themselves for multiple hours everyday as their parents strive to make a living-- school children that too often emulate the larger society with superior firepower. The police teach us to protect our homes by making our neighbors' homes the more attractive targets. We justify almost any action by economic advantage. By what means can we define ourselves a civilized society? It would seem to me that in spite of our best intentions, desires, expressed hopes and efforts, we have not risen far above the jungle.

Are the Founder's hopes out of date, or were they simply a bit more realistic than our current crop of intellectuals? Is an armed population necessary for a free state? It is something to think about.

Mr. Lee formerly wore a badge.