Copyright 1995 David B. Kopel.
Originally published in the New York Law School Journal of International and Comparative Law, 1995, Vol. 15, pages 355-398.
Lethal Laws, By Jay Simkin, Aaron Zelman, & Alan M. Rice. Jews for the Preservation of Firearms Ownership, P.O. Box 270143, Hartford, WI 53027 (262) 673-9745
Reviewed by David B. Kopel
The most common argument against an armed population as an antidote to genocide is that, in the late twentieth century, the balance of power between governments and the people has tipped decisively towards the government side. How can a rag-tag collection of citizens with rifles, pistols, and shotguns hope to resist a modern standing army with artillery, helicopters, tanks, jets, and nuclear weapons? Such a question is most frequently posed by persons who have neither personal nor intellectual familiarity with the military or with guerilla warfare. If we actually try to answer the question, rather than just presuming the government will win, then the case for the uselessness of citizen resistance becomes weak indeed.
First, the purpose of civilian small arms in any kind of resistance scenario is not to defeat the federal army in a pitched battle, and then triumphantly march into Washington, D.C. Citizen militias and other popular forces, such as guerilla cadres, have rarely been strong enough to defeat a professional army in a head-on battle. Guerilla warfare aims to conduct quick surprise raids on the enemy, at a time and place of the guerillas' choosing. Almost as soon as the first casualties have been inflicted, the guerillas flee, before the army can bring its superior firepower to bear.
In the early years of a guerilla war, as Mao Tse-Tung explained, before guerrillas are strong enough to attack a professional army head on, heavy weapons are a detriment, impeding the guerrillas' mobility. As a war progresses, the guerrillas use ordinary firearms to capture better small arms and eventually heavy equipment.
The military history of the twentieth century shows rather clearly that if guerillas are willing to wage a prolonged war, they can be quite successful. As one author notes that far from proving invincible, in the vast majority of cases in this century in which they have confronted popular insurgencies, modern armies have been unable to suppress the insurgents. This is why the British no longer rule in Israel and Ireland, the French in Indo-China, Algeria, and Madagascar, the Portuguese in Angola, the whites in Rhodesia, or General Somoza, General Battista, or the Shah in Nicaragua, Cuba, and Iran respectively--not to mention the examples of the United States in Vietnam and the Soviet Union in Afghanistan.
Moreover, guerillas need not overthrow a government in order to accomplish their purposes. During World War II, Yugoslav partisans did not directly overthrow the occupying Nazi government, but they did tie down a large fraction of the entire German army, leaving the German armies in the Eastern, Western, and Mediterranean fronts that much weaker. As the war ended, the presence of a well-equipped popular fighting force, ready to assume power, helped convince the advancing Soviet armies not to move into Yugoslavia, and consequently set the foundation for a Yugoslavia that would, relative to the rest of Eastern Europe, be less subject to a Soviet sphere of influence.
A popular guerilla resistance can also deprive an occupying government of much or all of the economic benefit that would normally be gained by occupation. And perhaps most importantly for purposes of this Article, an armed populace can ensure that any efforts to kill people or to send them to prisons and concentrations camps carry a price that must be paid by the government. If the Jews of Nazi-occupied Europe had shot the Nazi soldiers who came to herd them onto cattle cars, the Jews would still have been killed, but so would some of the Nazis. Would the Nazis have had such an easy time sending soldiers into the ghettos to collect the Jews if the soldiers knew that some of them would not come back alive? If the kind of people who specialize in perpetrating genocide are bullies by nature, how many bullies are willing to take a chance of getting shot by the intended victim? If potential massacre victims can plausibly threaten to harm at least a few of their attackers, then the calculus of the attackers may change dramatically. As Sanford Levinson notes, it is not implausible to argue that:
"[I]f all the Chinese citizens kept arms, their rulers would hardly have dared to massacre the [Tiananmen Square] demonstrators. . . ."
It is simply silly to respond that small arms are irrelevant against nuclear-armed states . . . . A state facing a totally disarmed population is in a far better position, for good or for ill, to suppress popular demonstrations and uprisings than one that must calculate the possibilities of its soldiers and officials being injured or killed.
Finally, even in cases where resistance saves not a single victim's life, resistance is still better than submission. Lloyd R. Cohen observes that:
"Dying even futilely defending yourself, your family, and your group has an honor and a dignity to it that is not vouchsafed by being helplessly slaughtered. Thus even if none had escaped from the Warsaw or Vilna Ghettos or the Sobibor extermination camp, those who took vengeance there honored themselves, their families, and their people."
Although the American federal government is the best-armed and wealthiest in the world, so is the American populace. Approximately half of all American households possess a gun. In the United States, there is more than one gun for every adult American. Hundreds of thousands (or millions) of Americans practice "reloading"-- the home manufacture of ammunition -- as a hobby. As of the fall of 1994, commercial American ammunition makers were producing well over a million rounds of ammunition per day and yet cannot keep up with the immense consumer demand. In response to the gun control laws being enacted and proposed in 1993 and 1994, the American gun-owning public has begun stockpiling weapons and ammunition in quantities that may be without historical precedent. Now that Guns and Ammo, a magazine with a circulation of half a million, has begun publishing tips about how to bury guns for long-term storage, it is safe to assume that a rather large number of gun owners are putting away a great deal of provisions for a rainy day.
Everything else that a guerilla army could want is also abundant in America: binoculars, camouflage (owned by millions of hunters), ham radios and other sophisticated communications equipment, and abundant quantities of well-preserved food.
There is something else in abundance in America that guerillas love: a place to hide. The great swamps of the South, the thick forests of the Rocky Mountains and the Northwest, and the dense, crowded cities throughout the nation are only a few of the American locales that would be eminently suitable to providing havens for guerilla fighters.
The American military is also powerful. But, as the authors point out, the police and military combined (assuming that every soldier and every police officer would assist a genocidal government) comprise only about one percent of the U.S. population. Many of the modern army's most effective weapons--such as tanks, artillery, and helicopters--are easy to deploy in a Kuwaiti desert, but considerably less effective in a built-up city. Indeed, a million dollar tank can be incapacitated by a Molotov Cocktail (a glass bottle filled with gasoline and topped with a wick that is lit just before the cocktail is thrown). As a last resort, a dictatorial government could initiate nuclear warfare, but such a step would risk provoking the non-militant faction of the population into full-scale rebellion, risk provoking a faction of the army into attempting a coup, and by destroying the bombed area, certainly deprive the government of any benefit of controlling the area.
Finally, the most important benefit of defensive arms is their deterrent power. As long as a potential dictator (or a potentially genocidal dictator) must take into account very serious risks involved with taking action against the American people, then the prospect for such actions being taken becomes markedly smaller.
No one can forecast exactly what would happen if the American people took up arms against a dictatorial government. But there is no evidence from the history of warfare, or from any other source, to support a simplistic assertion that resistance could not possibly achieve any success.
When to Resist
A much more plausible objection to the authors' thesis is that, even though an armed populace can resist genocide, the population may not know when to resist. Had European Jews shot the soldiers who were herding them into cattle cars for transportation to concentration camps, the survival rate for European Jews might have been much higher. But there were other instances, some of them well-known to European Jewry, where non-resistance proved to be the correct approach.
The classic example involves the Babylonian captivity of Biblical times. As the Babylonian Empire of King Nebuchadnezzar was sweeping westward, the tiny kingdom of Judea fell within its path. As the final Judean stronghold, Jerusalem, was besieged, the Jews faced a choice of surrendering, with the likelihood of being taken into slavery and exile, or fighting to the last man. The prophet Jeremiah insisted on the former course, and that is the course Judea's king eventually chose.
As things turned out, that was the right choice historically for the Jews. The Babylonian captivity turned out not to be terribly arduous; many Jews grew quite prosperous in Babylon. Captivity in Babylon also took the Jews away from Canaanite influence, meaning that the continuing struggle to resist syncretism between Canaanite nature religion and strict Yahwism was ended. The Judaism that emerged from the Babylonian captivity was a purer, stronger form of Judaism than the one that had been under continuous Canaanite assimilative pressure, although some Babylonian myths and legends were incorporated. Within a few generations, Babylon was conquered by the Persian Empire of King Cyrus, and Cyrus allowed many of the Jews to return to Jerusalem and begin rebuilding the Temple. Eventually, re-establishment of an independent Judean state was allowed. Acceptance of transportation and captivity turned out to be a much better long-term choice than a battle to the last man.
During World War II, the Japanese-Americans who were herded into concentration camps fared better by accepting several years of confinement than they would have by taking to the California hills and launching a guerilla war.
How is one to know that the impending forced march or transportation by cattle car is intended not merely for an onerous relocation, but for mass murder? Generally, one cannot. As the authors point out in their chapter on Germany, the Jewish policy of submission had been, for over 1800 years, the policy which saved the most Jewish lives. Not until the Jews realized that Hitler intended to murder them all did Jewish resistance groups begin taking action.
Of the seven genocidal governments studied in Lethal Laws, not one announced its intention to its victims. All of the victims were told that they were being temporarily relocated or another lie in order to induce them not to resist. And one of the reasons that the lies were believed by so many people is that there are many governments throughout world history which have sent people on forced marches or other forms of forced relocation and not killed them.
One guide for when a subject people should resist may be the people's assessment of the government's degree of hatred. King Nebuchadnezzar was no anti-Semite and bore the Jews no more ill will than he bore the people of any nation he conquered. Hitler was obviously different: hatred of Jews was one of the fundamental principles of his life, as he had demonstrated throughout his public career.
Forewarned is forearmed, but the problem of knowing when to take up arms poses a significant challenge to the authors' thesis that gun ownership can always prevent genocide. Even if all of the genocide victims discussed in Lethal Laws had possessed their own semiautomatic rifle, it is far from certain that they all would have decided at the right time to shoot enemy soldiers. Still, some of the genocide victims might have done so, and the more that did so, the less genocide there might have been. It appears that, despite the hopes of the authors, civilian gun ownership may sometimes, but not always, prove capable of stopping genocide.
It Can't Happen Here
It did happen here. The conquest of North America by the European settlers of the future United States was accomplished by "the extermination of some Native American tribes and the near-extinction of others, by U.S. government forces . . . ." The forced march of the Cherokee people from the southeastern United States into Oklahoma along the "Trail of Tears" resulted in the deaths of a large fraction of the Cherokee population, and at best, differs quantitatively rather than qualitatively from the 20th-century genocides described in Lethal Laws. Hitler looked with admiration at how the United States government had cleared the continent of Indians, and he used the U.S. government's 19th-century policies as a model for his own 20th-century policies of clearing Lebensraum for the German people.
In the twentieth century, the United States government forced 100,000 United States citizens into concentration camps. In 1941, American citizens of Japanese descent were herded into concentration camps run by the United States government. Like the victims of other mass deportations, these Americans were allowed to retain only the property they could carry with them. Everything else -- including family businesses built up over generations -- had to be sold immediately at fire-sale prices or abandoned. The camps were "ringed with barbed wire fences and guard towers." During the war, the federal government pushed Central and South American governments to round up persons of Japanese ancestry in those nations and have them shipped to the U.S. concentration camps.
The American concentration camps were not death camps. The American-held prisoners were subject to strict discipline, but not to mass murder. After the American victory at Midway in June 1942, the threat of a Japanese landing on the mainland U.S. vanished, and the tide in the Pacific began to turn. Nevertheless, the incarceration of Japanese-Americans continued long after any plausible national security justification had vanished.
But, the authors ask, what if the war had gone differently? What if a frustrated, angry America, continuing to lose a war in the Pacific, had been tempted to take revenge on the "enemy" that was, in the concentration camps, a safe target. Would killing all the Japanese be a potential policy option? In 1944, by which time America's eventual victory in the war seemed assured, the Gallup Poll asked Americans, "What do you think we should do with Japan, as a country, after the war?" Thirteen percent of Americans chose the response "Kill all Japanese people."
Sadly, Roger Daniels, the author of a recent study of the Japanese internment, concludes that a concentration camp episode could indeed happen again in America. He points out that in 1950, a time by which the oppressiveness and uselessness of the American concentration camps during World War II had been well-established, Congress enacted the Emergency Detention Act, which gave the Attorney General unilateral authority to imprison Americans at will, using the World War II concentration camps as a model. Fortunately, the law was repealed in 1971, but as Daniels points out, the original detentions occurred even though they were not authorized by any law.
Disarming citizens before killing or oppressing them is a time-honored American tradition. After the Civil War, the first act of the Ku Klux Klan (like the Khmer Rouge) was to round up all the guns in the hands of ex-slaves. Only then did other oppressions begin. From the middle of the nineteenth century to the first quarter of the twentieth, race riots in the United States usually took the form of white mobs rampaging against innocent blacks. Black attempts to resist or to shoot back were often followed with governmental efforts to disarm the blacks.
Are modern Americans so dramatically different from their ancestors that concentration camps or mob violence are safely confined to the past? While Mayor of New York City, Edward Koch (who is Jewish) proposed that the federal government set up concentration camps for drug users, in remote locations such as Nevada and Alaska. Under Mayor Koch's successor David Dinkins, after a Jewish religious leader's driver killed a black child, rampaging black mobs conducted a three-day pogrom against a Jewish section of Brooklyn and killed an Australian Jew who was visiting the United States, while the police passively refused to intervene.
Hatemongers such as Louis Farrakhan are now treated as important leaders by an increasingly large segment of the American black community, including the NAACP, which for decades before had been steadfastly opposed to racial hatred and anti-Semitism. In an age of Louis Farrakhan and Al Sharpton, is America immune from the influence of bigots, crackpots, hatemongers, or potential dictators? A Klansman and former Nazi named David Duke was elected to the State House of Representatives in Louisiana in 1989. He then won 44% of the vote against the incumbent U.S. Senator in 1990. The next year, he won 39% of the vote in a race for Governor, garnering over 60% of the vote from the white middle-class and from white Protestants.
What other countries can be presumed forever safe from hatemongering rule? In August 1994, the Labor Minister of the Italian government -- a government which a half-century earlier was a Fascist ally of Hitler -- blamed the fall of the lira on the "Jewish lobby" in the United States. Virtually none of the world's democratic nations can boast an uninterrupted history of democracy, nor can they claim that racist or anti-Semitic elements are of no significance in the nation's current political life.
Imagine that the year is 1900. You are told that within fifty years, a nation in the world will kill over six million members of a religious minority. Which nation would you pick? If you were well-informed about world affairs, it is very unlikely that you would pick Germany. In 1900, Germany was a democratic, progressive nation. Jews living there enjoyed fuller acceptance in society than they did in Britain, France, or the United States. In 1900, probably much less than 13% of the German population favored killing all Jews. Thirty-five years later, circumstances had changed.
The prospect of a dictatorial American government thirty-five years from now seems almost impossible. What about a hundred years from today? Two hundred? It is possible to say, with near-certainty, that "it can't happen here -- in the near future." But in the long run, no one can say; the fact that it did happen here in the nineteenth century, coupled with the fact that American concentration camps were opened in the twentieth century, ought to suggest that only someone wilfully blind to American and world history would attempt to guarantee to future generations of potential American victims that "it can't happen here."
